DAPHNIE BOBO V THORN APPLE VALLEY INC
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STATE OF MICHIGAN
COURT OF APPEALS
DAPHNIE BOBO,
UNPUBLISHED
September 2, 1997
Plaintiff-Appellant,
v
No. 184775
Wayne Circuit Court
LC No. 94-427024-CZ
THORN APPLE VALLEY, INC.,
and JOHN COOL,
Defendants-Appellees.
Before: Marilyn Kelly, P.J., and MacKenzie and J. R. Ernst*, JJ.
PER CURIAM.
In this employment discrimination and retaliatory discharge case, plaintiff, Daphnie Bobo,
appeals as of right from an order granting summary disposition to defendants, Thorn Apple Valley, Inc.
and John Cool, pursuant to MCR 2.116(C)(7). Plaintiff argues that the six-month period of limitation
contained in defendant Thorn Apple Valley’s employee handbook is unenforceable and that the trial
court, therefore, erred in dismissing her case upon finding that the limitations period had expired. We
affirm.
I
In 1981, plaintiff was hired by Thorn Apple Valley as a production worker. During the course
of her employment she became a salaried employee when she took a position as a quality control
technician. On September 1, 1990, Thorn Apple revised its Salaried Employee Handbook. The
revised version contained the following provision:
It is also mutually understood by the Corporation and by our employees that whenever
there is a dispute concerning an employee’s termination, it is in the best interest of
everyone that the dispute be resolved quickly. For this reason, both the Corporation
and each employee understand and agree that they will not commence any action,
charge or suit relating to the employee’s employment with Thorn Apple Valley, Inc.,
* Circuit judge, sitting on the Court of Appeals by assignment.
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more than six (6) months after the date on which such employment terminates. Both the
Corporation and each employee expressly waive any statute of limitations which is
longer than the foregoing.
On September 14, 1990, plaintiff went to the company office to receive her paycheck. She
was handed a document captioned “Salaried Employee Acceptance Form”. Plaintiff was not given her
check until she signed the form.
On December 31, 1992, plaintiff’s supervisor, John Cool, terminated her employment on the
basis that she allegedly attempted to steal sausages. On September 13, 1994, plaintiff filed this cause of
action against defendants alleging wrongful, discriminatory, and retaliatory discharge as well as
defamation.
Defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(7). They argued
that plaintiff’s defamation claim was barred by the one-year statutory period of limitations. MCL
600.5805(7); MSA 27A.5805(7). Furthermore, they asserted that the remainder of plaintiff’s claims
were barred by the contractual six-month limitation period contained in the employee handbook.
The trial court found that the language of the handbook was clear and that plaintiff assented to
its terms by signing the acceptance form. Additionally, the trial court held that the waiver of the
limitations period in a civil rights action does not require that the party being bound have actual notice of
the terms in the contract; an agreement to be bound by them is sufficient. Therefore, the trial court
granted defendants’ motion. Plaintiff now challenges the trial court’s dismissal of her discriminatory and
retaliatory discharge claims.
II
First, plaintiff argues that the six-month limitation period specified in the handbook s not
i
enforceable because, absent plaintiff’s assent, there was no contract between the parties. We disagree.
In order to have an enforceable contract, both parties must mutually assent to be bound. Rood
v General Dynamics Corp, 444 Mich 107, 118; 507 NW2d 591 (1993). In determining whether a
party has assented to a contract, this Court follows an objective theory. Id. at 119. We look to all the
relevant circumstances surrounding the transaction, including all writings, oral statements and other
conduct by which the parties manifested their intent. Rowe v Montgomery Ward & Co, Inc, 437 Mich
627, 641; 473 NW2d 268 (1991).
Here, plaintiff signed the handbook acceptance form that expressly stated that she received a
copy of the handbook and accepted its terms. At no time after receipt of the handbook did plaintiff
question any of the terms.
Plaintiff argues that, even though she signed the acceptance form, there was no assent because
neither the acceptance form nor the handbook clearly conveyed that she was entering into a contract.
We disagree.
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A person who signs a written agreement is presumed to know the nature of the document and
understand its contents. McKinstry v Valley Obstetrics-Gynecology Clinic, PC, 428 Mich 167, 184;
405 NW2d 88 (1987). The acceptance form signed by plaintiff stated, “I have received a copy of the
Handbook, and I accept its terms.” The language on the form was sufficient to put plaintiff on notice
that she was not simply signing to acknowledge receipt of the handbook, but was agreeing to be bound
by its terms.
Moreover, the language contained in the handbook reaffirms that the terms written there were
intended to be binding on both the employer and the employees. The foreword of the handbook states:
While it is not intended that this booklet create a contract of employment for any definite
period of time, it is intended that the policies contained in it be binding on both our
employees, and on the Company. (Emphasis added.)
Additionally, the specific language of the clause limiting the period for bringing suit to six months uses
language such as “understand and agree” and “expressly waive”, which would also place plaintiff on
notice that she was bound to the handbook terms. Therefore, the trial court did not clearly err in finding
that plaintiff assented to the terms of the handbook.
III
Next, plaintiff argues that her assent was invalid, as she did not read the handbook and was
coerced into signing the acceptance form.
A party who signs a written agreement is presumed to have understood its terms. McKinstry,
supra. A party’s failure to read is generally not a basis for rescission unless the failure was induced by
“some stratagem, trick or artifice by the parties seeking enforcement”. Moffit v Sederlund, 145 Mich
App 1, 8; 378 NW2d 491 (1985).
As previously discussed, plaintiff signed the acceptance form which expressly provides that she
accepted the handbook’s terms. There is no basis for her assertion that the nature of the acceptance
form was misrepresented to her, or that her failure to read was the result of her misunderstanding that
she was in fact entering into a binding contract. See Hungerman v McCord Gasket Corp, 189 Mich
App 675, 677; 473 NW2d 720 (1991).
However, plaintiff asserts that she signed the acceptance form without reading it or the
handbook because of economic duress. There are two basic elements of economic duress. The party
alleging economic duress must show that (1) he or she has been the victim of a wrongful or unlawful act
or threat, and (2) such act or threat must be one which deprives the victim of his or her unfettered will.
Barnett v International Tennis Corporation, 80 Mich App 396, 406; 263 NW2d 908 (1978).
Furthermore, the party threatened must not have an adequate legal remedy available. Hungerman,
supra at 677.
We find that defendants’ threat to withhold her wages was insufficient to overcome plaintiff’s
free will. Plaintiff was still free to refuse to sign the release, and she had a readily available legal remedy
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to recover her earned wages. Id. Therefore, the trial court did not clearly err in finding that plaintiff’s
assent was validly obtained.
IV
Plaintiff argues that Michigan law does not allow an employer to unilaterally create an
enforceable contract lessening the time period for bringing a cause of action by merely promulgating an
employment handbook containing such a provision. Even though plaintiff raised this issue below, the
trial court refused to address it. However, we find it unnecessary to remand to the trial court for
consideration of this question in light of our disposition of the remaining issues raised by plaintiff.
V
Plaintiff also argues in her reply brief that the six-month limitation period is unenforceable
because it is inherently unreasonable. Parties may contract for a period of limitation shorter that the
applicable statute of limitation, but the contractually specified time period must be reasonable. Camelot
Excavating Co, Inc v St Paul Fire & Marine Ins Co, 410 Mich 118, 126-127; 301 NW2d 275
(1981); Herweyer v Clark Highway Services, Inc, 455 Mich 14; ___ NW2d ___ (1997).
Plaintiff has failed to preserve this issue for appellate review. In the trial court, plaintiff
conceded in her response to defendant’s motion for summary disposition that the contractual limitation
period was reasonable. A party may not take a position in the trial court and later seek redress in an
appellate court that is based on a position contrary to that taken in the trial court. Living Alternatives
for the Developmentally Disabled, Inc v Dep’t of Mental Health, 207 Mich App 482, 484; 525
NW2d 466 (1994). Plaintiff’s concession of the issue also means that it has been raised for the first
time on appeal and was not addressed by the trial court. Issues raised for the first time on appeal are
not subject to appellate review. Garavaglia v Centra, Inc, 211 Mich App 625, 628; 536 NW2d 805
(1995). A party who fails to raise an issue before the trial court has failed to preserve the issue for
appellate review. See Burgess v Clark, 215 Mich App 542, 548; 547 NW2d 59 (1996). Because
this issue was never raised below, there is nothing for us to review.
VI
Finally, plaintiff argues that the trial court erred in holding that Michigan law does not require a
knowing and voluntary waiver of the three-year statute of limitation for bringing a cause of action
alleging discrimination and retaliation under Michigan’s civil rights statutes.
Plaintiff cites several federal cases as her supporting authority. Although not binding, federal
decisions in the area of civil rights law are highly persuasive. Langlois v McDonald’s, 149 Mich App
309, 312; 385 NW2d 778 (1986).
In Alexander v Gardner-Denver Co, 415 US 36; 94 S Ct 1011; 39 L Ed 2d 147 (1974), the
United States Supreme Court held that the plaintiff did not waive Title VII rights by first submitting a
claim of wrongful discharge to arbitration under a collective bargaining agreement. The Court noted that
it was possible to waive Title VII rights. However, the waiver must be v
oluntary and knowing.
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Likewise, other federal courts have observed that a waiver of civil rights claims must be voluntary and
knowing. Watkins v Scott Paper Co, 530 F2d 1159, 1172 (CA 5, 1976); Cox v Allied Chemical
Corp, 538 F2d 1094 (CA 5, 1976).
The Sixth Circuit has addressed a case analogous to the one before this Court. Myers v
Western-Southern Life Ins Co, 849 F2d 259 (CA 6, 1988). In Myers, the plaintiff signed an
employment contract with a provision similar to the one contained in the handbook here. He was
required to bring suit against his employer not more than six months after the date of termination and
was required to waive any statute of limitations to the contrary. Id. at 260. He argued that because
civil rights actions are normally afforded a heightened scrutiny, civil rights claims cannot be restricted or
limited without a knowing and intelligent waiver by the aggrieved party. Id. at 262. The Court stated:
[T]he heightened scrutiny which is applied to civil rights cases in this context involves the
knowing and voluntary nature of the waiver of civil rights claims.…Thus, in order to
benefit from the heightened scrutiny afforded civil rights actions, Myers would be
required to demonstrate that his waiver of the statute of limitations was not knowing and
voluntary. [849 F2d 261.]
We adopt this view. The Michigan Constitution provides:
No person shall be denied the equal protection of the laws; nor shall any person
be denied the enjoyment of his civil or political rights or be discriminated against in the
exercise thereof because of religion, race, color or national origin. The legislature shall
implement this section by appropriate legislation. [Const 1963, art 1, § 2.]
A primary mission of this provision was to ensure equal opportunity in the pursuit of employment. See
Heurtebise v Reliable Business Computers, 452 Mich 405, 427; 550 NW2d 243 (1996) (Cavanagh,
J.). This provision “elevated an employee’s statutory right under the FEPA to the status of a
constitutional right.”1 Id., quoting Boscaglia v Michigan Bell Telephone Co, 420 Mich 308, 314, n 8;
362 NW2d 642 (1984). Constitutional rights can be waived, but only if the waiver is knowingly and
intelligently made. Verbison v Auto Club Ins Ass’n, 201 Mich App 635, 642; 506 NW2d 920
(1993). Therefore, we believe that a waiver of a civil rights claim or a waiver of the time frame under
which a civil rights claim must be brought, must be carefully scrutinized for voluntariness. Myers, supra.
The trial court erred in holding otherwise.
Nevertheless, we are convinced that the error was harmless. Under Myers, supra, to benefit
from the heightened scrutiny afforded civil rights actions, plaintiff had to make a showing that her waiver
of the statute of limitations was not knowing and voluntary. In this regard, the Myers court offered the
following analysis:
Although waivers in civil rights cases ought to be carefully scrutinized for
voluntariness…it does appear that the waiver in this case was knowing and voluntary.
The contractual language is quite clear; moreover, if Myers believed that the terms were
unreasonable, he clearly had the option of not signing the agreement. Indeed, the only
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evidence of compulsion is Myer’s conclusionary [sic] affidavit to that effect. Under
these circumstances, we cannot say that the waiver of the applicable statute of
limitations was unknowing or unintelligent. [849 F2d 262; citations omitted.]
In this case, as previously noted, the language of the form that plaintiff signed was sufficiently clear to put
her on notice that she was entering into a binding contract regarding the terms of her employment as
stated in the handbook. Additionally, as previously noted, there is no basis to plaintiff’s claims of
misrepresentation, misunderstanding, or that she signed the form involuntarily while under “economic
duress.” Under these circumstances, plaintiff has failed to offer facts giving rise to a showing that her
waiver of the applicable statute of limitations was unknowing or unintelligent.
Affirmed.
/s/ J. Richard Ernst
/s/ Barbara B. MacKenzie
1
The FEPA (Fair Employment Practices Act), MCL 423.301 et seq.; MSA 17.458 et seq., was
repealed by 1976 PA 453 and replaced by the Michigan Civil Rights Act. MCL 37.2101 et seq.;
MSA 3.548(101) et seq.
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