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STATE OF MICHIGAN 

COURT OF APPEALS 

WILLIAM SAMS, 

 Plaintiff-Appellant, 

UNPUBLISHED 

January 31, 2017 

v No. 329600 

Genesee Circuit Court 

COMMON GROUND, LC No. 15-104205-CD 

 Defendant-Appellee. 

Before: BECKERING, P.J., and SAWYER and SAAD, JJ. 

PER CURIAM. 

 In this employment discrimination claim, plaintiff appeals the trial court’s order that 

granted defendant’s motion for summary disposition on the grounds that plaintiff’s claim was 

time barred by the contractual limitation period of one year. For the reasons stated below, we 

affirm. 

I. BASIC FACTS 

 The relevant facts for the issues on appeal are brief and are not in dispute.1

 On August 

15, 2011, plaintiff applied for employment with defendant and agreed to be bound by the 

following: 

In consideration of my employment, I agree to conform to the rules and policies 

of Common Ground. Also, I agree not to begin any action or lawsuit relating 

directly or indirectly to employment with Common Ground more than one (1) 

year after the earlier of (a) the incident or event giving rise to such action or 

lawsuit or (b) the date of the termination of such employment. I waive any statute 

of limitations to the contrary. 

Defendant subsequently hired plaintiff. 

 

1

 Because the sole issue is whether plaintiff contractually waived the statutory three-year statute 

of limitations, the facts underlying plaintiff’s specific civil rights claim are not relevant. 
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 On July 27, 2012, defendant notified plaintiff in a letter that his position would change 

from “Crisis Interventionist 1” to “Recovery Coach” effective August 5, 2012. This change 

would lower plaintiff’s hourly rate and other fringe benefits. The letter had a place for plaintiff 

to sign to show his acceptance of the changes to his employment, and plaintiff signed it on 

August 2, 2012. However, on September 21, 2012, plaintiff advised defendant that he was 

resigning and that his last day of employment would be September 30, 2012. 

 Plaintiff filed suit against defendant on February 5, 2015, approximately 2-1/2 years after 

resigning, and alleged that defendant violated the Persons with Disabilities Civil Rights Act, 

MCL 37.1101, et seq. Plaintiff alleged that defendant’s actions forced him to resign, which 

constituted a constructive discharge. 

 Defendant moved for summary disposition under MCR 2.116(C)(7) and argued that 

plaintiff’s claim was time barred because plaintiff waived the statutory three-year period of 

limitations and agreed to be bound by a one-year period, as stated in his employment application. 

Plaintiff argued that the application did not apply because, when he was offered the new positon 

with defendant, they did not incorporate the terms of the prior application. Plaintiff also argued 

that, in any event, the provision shortening the limitations period was not enforceable because it 

was unconscionable. The trial court agreed with defendant and granted the motion for summary 

disposition. 

II. STANDARD OF REVIEW 

 We review de novo a trial court’s a grant or denial of a motion for summary disposition. 

Dybata v Wayne Co, 287 Mich App 635, 638; 791 NW2d 499 (2010). Summary disposition is 

appropriate under MCR 2.116(C)(7) when a claim is barred by the applicable statute of 

limitations. When considering a motion brought under this subrule, “the trial court must 

consider any affidavits, depositions, admissions, or other documentary evidence submitted by the 

parties to determine whether there is a genuine issue of material fact precluding summary 

disposition.” Id. at 637. In doing so, a court must consider the evidence in the light most 

favorable to the nonmoving party. Moraccini v City of Sterling Heights, 296 Mich App 387, 

391; 822 NW2d 799 (2012). “If no facts are in dispute, or if reasonable minds could not differ 

regarding the legal effect of those facts, then the question whether the claim is barred . . . is an 

issue of law.” Dybata, 287 Mich App at 637. 

 Our review of the proper interpretation of a contract also is a matter of law that we 

review de novo. Burkhardt v Bailey, 260 Mich App 636, 646; 680 NW2d 453 (2004). 

III. ANALYSIS 

 As noted above, as a condition of his employment, plaintiff agreed, in writing, to not 

bring an employment-related lawsuit against defendant unless he filed his suit within one year of 

his termination. Further, he expressly agreed to waive the statutory limitation period to bring 

suit. And he testified that he read and understood all the terms of his agreement and that if he 

did not understand them, he had the opportunity to ask for clarification. 

 Under the foregoing facts and pursuant to well-established Michigan precedent, plaintiff 

is bound by his agreement regarding the limitation of action provision. Indeed, our Court has 
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ruled that a virtually identical provision is binding under Michigan law and that this limitation 

provision does not violate public policy. Accordingly, plaintiff is bound by his agreement and 

his claim is time barred and the defenses he raises to the applicability of this provision, which we 

discuss below, are unavailing. 

A. APPLICABILITY OF THE APPLICATION 

 Plaintiff argues that the provision in the application that shortened the amount of time he 

could bring an action against defendant lacks “any contractual significance.” We disagree. 

 Although plaintiff does not deny signing the application, he contends that his signature 

merely reflects that he read and understood the terms contained in the application—not that he 

actually agreed to them. Plaintiff points out that the location where he signed the application 

states, “My signature below indicates that I have read and understood the above paragraphs.” 

(Emphasis added.) However, plaintiff ignores the key and controlling language he agreed to: 

In consideration of my employment, I agree to conform to the rules and policies 

of Common Ground. Also, I agree not to begin any action or lawsuit relating 

directly or indirectly to employment with Common Ground more than one (1) 

year after the earlier of (a) the incident or event giving rise to such action or 

lawsuit or (b) the date of the termination of such employment. I waive any statute 

of limitations to the contrary. [Emphasis added.] 

 Accordingly, plaintiff’s signature represents that he understood and agreed not to begin 

any action against defendant after one year has passed. Further, he understood that he waived 

the application of the otherwise applicable statute of limitations. As a result, we find plaintiff’s 

argument that he did not actually agree to anything in the application to be without merit. The 

facts mandate otherwise.2

 

2

 Plaintiff also claims that because the application has language in it that states that the 

“application for employment shall be considered active for sixty (60) days,” any such agreements 

he made were no longer enforceable after 60 days had passed. First, we note that the language 

does not state that the terms of the application were to be void after 60 days. Instead, it merely 

provides that plaintiff will be considered for employment for 60 days. This subtle difference is 

important. Moreover, the language makes it perfectly clear that plaintiff’s agreement to the 

terms was consideration for any employment with defendant. No reasonable reading of the 

application shows that the consideration he was giving was only to last for 60 days. Indeed, such 

a reading would make the salient terms of the agreement nugatory because if the terms were void 

after 60 days, then the agreement never would be able to effectuate the one-year limitation 

period. When interpreting such contractual documents, we are to “give effect to every word, 

phrase, and clause . . . and avoid an interpretation that would render any part of the contract 

surplusage or nugatory.” Klapp v United Ins Group Agency, Inc, 468 Mich 459, 468; 663 NW2d 

447 (2003). Therefore, we reject plaintiff’s claim that he was no longer bound by his agreements 

after 60 days had lapsed. Plaintiff makes a related argument that any consideration given by 
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 Plaintiff also says that because he subsequently “applied” for a new position with 

defendant, the original application is not relevant and therefore not enforceable. Plaintiff relies 

on the letter that he received from defendant that notified him that his duties would change. 

 Contrary to plaintiff’s contention, the record shows that he did not “apply” for this new 

position. Instead, as employers have the right to do, defendant made changes to plaintiff’s duties 

and related compensation. The letter merely served to confirm plaintiff’s acquiescence and 

acknowledgment of the cited changes regarding his employment. Because plaintiff remained 

employed by defendant at all relevant times, his agreement to provide consideration for his 

employment also remained in force. In brief, there is nothing in the agreement he signed that 

suggests that any consideration was only valid for a particular position while employed at 

defendant. Again, it is important that the record shows that plaintiff remained employed by 

defendant throughout this change; plaintiff’s employment was never terminated such that he had 

to re-apply for employment. 

B. UNCONSCIONABILITY 

 Plaintiff argues that regardless of the applicability of the application, the term reducing 

the amount of time to bring an action under the Persons with Disabilities Civil Rights Act is 

unconscionable and therefore not enforceable. We disagree. 

 Michigan law is clear on this point: An unambiguous contractual provision is to be given 

full effect unless the provision violates law or public policy, or a traditional contract defense, 

such as unconscionability. Rory v Continental Ins Co, 473 Mich 457, 470; 703 NW2d 23 (2005). 

Here, plaintiff claims that the provision in the application that limits the period of time to bring 

an action against defendant is unconscionable. 

 In order for a contract or contract provision to be considered

unconscionable, both procedural and substantive unconscionability must be 

present. Procedural unconscionability exists where the weaker party had no 

realistic alternative to acceptance of the term. If, under a fair appraisal of the 

circumstances, the weaker party was free to accept or reject the term, there was no 

procedural unconscionability. Substantive unconscionability exists where the 

challenged term is not substantively reasonable. However, a contract or contract 

provision is not invariably substantively unconscionable simply because it is 

foolish for one party and very advantageous to the other. Instead, a term is 

substantively unreasonable where the inequity of the term is so extreme as to 

shock the conscience. [Clark v DaimerChrysler Corp, 268 Mich App 138, 143-

144; 706 NW2d 471 (2005) (citations omitted).] 

defendant in return for plaintiff’s wavier was illusory and therefore he is not bound by the 

waiver. This position is meritless. This Court has specifically addressed this contention and 

rejected it because an employee’s waiver of such a statutory right in an application is supported 

by consideration by the defendant employer through the employment, itself, and the 

accompanying wages. Timko v Oakwood Custom Coating, Inc, 244 Mich App 234, 244; 625 

NW2d 101 (2001). 
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 Michigan case law directly rejects plaintiff’s position. In Clark, this Court held that the 

plaintiff’s agreement in an employment application to reduce the amount of time to bring a suit 

related to employment is enforceable, because it does not violate the law, or public policy and is 

thus, not unconscionable. Id. at 142-144. Regarding unconscionability, the Court further noted 

that the plaintiff presented no evidence that he had no realistic alternative to employment with 

the defendant. Id. at 144. As such, although the plaintiff had unequal bargaining power with 

defendant, the Court could not conclude that the “plaintiff lacked any meaningful choice but to 

accept employment under the terms dictated by defendant.” Id. The same holds true here. 

Plaintiff has not offered any evidence to show that he had to accept employment with defendant. 

Thus, the fact that defendant essentially made the terms of the application a precondition to 

employment does not rise to the level of procedural unconscionability. Further, the Courts in 

Clark, 268 Mich App at 144, and Timko, 244 Mich App at 243, ruled that reducing the 

limitations period to 180 days or six months is not substantively unconscionable.3

 Further, as 

here, Clark and Timko both dealt with shortened periods to bring an employment discrimination 

claim. Clark, 268 Mich App at 140, 144; Timko, 244 Mich App at 237; see also Hicks v EPI 

Printers, Inc, 267 Mich App 79, 84, 91; 702 NW2d 883 (2005). Therefore, because we found 

the shortened periods in Hicks (one year) and Clark and Timko (six months) to be reasonable and 

not unconscionable, is it is clear that here, one year is not substantively unconscionable. 

 We would note that the Hicks Court cautions that the “[w]aiver of a statutory period of 

limitations for a civil rights claim is subject to heightened judicial scrutiny that asks if the waiver 

was knowing, intelligent, and voluntary.” Hicks, 267 Mich App at 91. Again, as noted above, in 

his deposition, plaintiff was asked specifically if he read the application and understood all of its 

terms. He replied that he did. As a result, we find that plaintiff’s waiver was indeed knowing, 

intelligent, and voluntary. Moreover, had plaintiff not admitted that he read and understood the 

terms, his signing of the application, absent any coercion, mistake, or fraud, is sufficient to show 

that it was knowing, intelligent, and voluntary. See Clark, 268 Mich App at 144-145. 

C. CONCLUSION 

 Plaintiff’s agreement to waive the statutory limitations period and replace it with a oneyear period is valid under well-established Michigan law. Accordingly, plaintiff’s suit, which 

was filed more than one year after his employment was terminated with defendant, was not 

timely, and the trial court properly granted defendant’s motion for summary disposition pursuant 

to MCR 2.116(C)(7). 

 

3

 The Court in Hicks upheld a one-year period to bring claims as not unconscionable. Hicks, 267 

Mich App at 91. 
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 Affirmed. Defendant, as the prevailing party, may tax costs pursuant to MCR 7.219. 

/s/ Jane M. Beckering 

/s/ David H. Sawyer 

/s/ Henry William Saad