VIRGINIA JOLIET V GREGORY E PITONIAK
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STATE OF MICHIGAN
COURT OF APPEALS
VIRGINIA JOLIET,
UNPUBLISHED
August 31, 2004
Plaintiff-Appellee,
v
GREGORY E. PITONIAK and FRANK BACHA,
No. 247590
Wayne Circuit Court
LC No. 01-140733-CZ
Defendants-Appellants,
and
JAMES ARANGO,
Defendant.
Before: Neff, P.J., and Smolenski and Zahra, JJ.
PER CURIAM.
Defendants appeal by leave granted the trial court’s order denying their motion for
summary disposition, and concluding that the statute of limitations did not bar plaintiff’s claims
of age and gender discrimination, sexual harassment, and breach of contract against the mayor of
the city of Taylor and the former executive director of the department of public works. We
affirm.
Defendants argue that the trial court erred in denying their motion for summary
disposition pursuant to MCR 2.116(C)(7) because plaintiff’s complaint was filed more than three
years after her cause of action accrued, i.e., the last day she actually worked for the city of
Taylor. We disagree.
We review a trial court’s grant of a motion for summary disposition pursuant to MCR
2.116(C)(7) de novo to determine whether the moving party was entitled to judgment as a matter
of law. Blazer Foods, Inc v Restaurant Properties, Inc, 259 Mich App 241, 244-245; 673 NW2d
805 (2003). Absent a disputed issue of fact, whether a cause of action is barred by a statute of
limitations is a question of law, which we review de novo. Van Reken v Darden, Neef &
Heitsch, 259 Mich App 454, 456; 674 NW2d 731 (2003).
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In reviewing a motion under MCR 2.116(C)(7), this Court accepts as true the
plaintiff’s well-pleaded allegations and construes them in the plaintiff’s favor.
This Court considers the pleadings, affidavits, depositions, admissions, and
documentary evidence filed or submitted by the parties to determine whether the
claim is barred by law. [Blazer Foods, supra at 245 (citations omitted).]
It is undisputed that plaintiff worked for the city onsite in Taylor for the last time on
November 23, 1998. According to plaintiff’s affidavit, submitted in response to the motion for
summary disposition, and other supporting evidence, she took vacation from Tuesday, November
24, through Monday, November 30, 1998. During her vacation, plaintiff was on-call to the staff
at the city and accessed her computer in the mornings to check on the status of the city’s
computer network. On Monday, November 30, 1998, plaintiff mailed her letter of resignation to
defendant mayor, and the letter stated that plaintiff’s resignation was effective December 1,
1998.
Defendants, citing Parker v Cadillac Textron, Inc, 214 Mich App 288, 290; 542 NW2d
365 (1995), argue that the last day of plaintiff’s employment was November 23, 1998, and the
fact that plaintiff was on vacation for the remainder of the week does not alter that fact. In
Parker, three employees were laid off and a dispute arose regarding when the statute of
limitations on their claim for discriminatory discharge began to run. Id. at 289-290. The
employees’ last day of work was December 21, 1990, but some of the employees’ records
mistakenly indicated that January 4, 1991, was the last day worked and the records also stated
that January 7, 1991, was the “effective date of separation.” Id. at 289. The Parker Court held
that a claim for discriminatory discharge accrues on the date the plaintiff is discharged and the
last day worked is the date of discharge. Id. at 290. Subsequent severance or vacation pay does
not affect the date of discharge. Id. Unlike the employees in Parker, however, evidence in this
case indicated that plaintiff continued to perform duties for the city of Taylor after November 23,
1998, and thus her last day of work, i.e., the day her claim accrued, was November 30, 1998.
This conclusion is supported by the recent decision in Collins v Comerica Bank, 468
Mich 628, 632; 664 NW2d 713 (2003), in which the Court observed that the last date worked is
not necessarily the date that a cause of action for discriminatory discharge accrues. In Collins,
the employee was suspended on September 5, 1996, and required to be available during normal
working hours while an investigation into her conduct was completed. Id. at 629. Defendant
later terminated the plaintiff’s employment on September 25, 1996. Id. at 630. The Court held
that the plaintiff’s claim for discriminatory termination did not arise until the date she was
discharged. Id. at 634. The Court reasoned that if a discharge has yet to occur, it cannot be said
that the last day worked represents the discharge date. Id. at 633.
Similarly, in Jacobson v Parda Federal Credit Union, 457 Mich 318, 321, 328; 577
NW2d 881 (1998), the Court focused on the date of resignation in determining the date the
employee was constructively discharged for purposes of filing her claim under the
Whistleblowers’ Protection Act.1 The Court declined to depart from the longstanding rule that a
1
MCL 15.361 et seq.
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discharge occurs when a reasonable person in the employee’s place would feel compelled to
resign. Id. at 328. Generally, discharge must be viewed as occurring at the moment of
resignation. Id. “Until the employee resigns, the employer’s action has yet to prove to be one of
discharge.” Id. at 327.
Even if plaintiff’s last day of onsite work was November 23, 1998, that date preceded the
date of her separation from the city of Taylor and does not act as the date her cause of action
accrued. Accordingly, plaintiff’s complaint, filed on November 30, 2001, was filed within the
three-year statute of limitations. Therefore, the trial court did not err in denying defendants’
motion for summary disposition under MCR 2.116(C)(7).
Because we conclude that plaintiff’s complaint was timely filed, we need not address
whether the continuing violations doctrine applies to extend the statute of limitations. Similarly,
we need not address defendants’ argument that plaintiff’s breach of contract claim does not
extend the limitations period.
Affirmed.
/s/ Janet T. Neff
/s/ Michael R. Smolenski
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