VIRGINIA JOLIET V GREGORY E PITONIAK
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STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
August 31, 2004
VIRGINIA JOLIET,
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.
Zahra, J. (concurring).
I concur in the result reached by because I am bound to so by Jacobson v Parda Federal
Credit Union, 457 Mich 318, 321; 577 NW2d 881 (1998).1 I write separately to express my
agreement with Justice Taylor’s dissent in Jacobson. 457 Mich at 330. But for the majority
opinion in Jacobson, supra, I would hold that it is the employer’s adverse action, not the date an
1
I respectfully submit that the majority’s reliance on Collins v Comerica Bank, 468 Mich 628,
632; 664 NW2d 713 (2003), is misplaced. Collins did not involve a “constructive discharge.”
“Constructive discharge is a defense against the employer’s argument that the employee is
precluded from bringing suit because he voluntarily terminated his employment. Jacobson,
supra at 321 n 9, citing Vagts v Perry Drug Stores, Inc, 204 Mich App 481, 487; 516 NW2d 102
(1994). In Collins, the employer fired the plaintiff. Here, plaintiff resigned. Collins did not
interpret when plaintiff’s claim “accrued” in the context of the defense of “constructive
discharge,” and therefore is not applicable to the instant case. Nonetheless, because I am bound
to follow Jacobson, supra, and I conclude that Jacobson requires me to affirm the judgment of
the trial court, I concur in the majority opinion.
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employee unilaterally chooses to resign, that triggers the limitation period in an employment case
involving a constructive discharge.
The statute of limitation at issue MCL 600.5808, states in relevant part:
(1) A person shall not bring or maintain an action to recover damages for
injuries to persons or property unless, after the claim first accrued to the plaintiff
or to someone through whom the plaintiff claims, the action is commenced within
the periods of time prescribed by this section.
*
*
*
(9) The period of limitations is 3 years after the time of the death or injury
for all other actions to recover damages for the death of a person, or for injury to a
person or property.[2]
The statute clearly commences the limitation period from the date plaintiff’s claim first
“accrued,” under MCL 600.5805(9).
In Jacobson, however, our Supreme Court held that a claim of employment
discrimination, in the context of a “constructive discharge,” generally accrues at the moment of
resignation. Jacobson, supra at 321. The Jacobson Court expressed concern that an employee,
by controlling the date of resignation, controls the date her cause of action accrues. Id. at 328329 n 22. And while the majority in Jacobson recognized the potential for abuse when plaintiffs
control the accrual of a cause of action, it concluded that the abuse would be mitigated in
practice: “[o]bviously a person claiming ‘intolerable’ working conditions for some number of
years will be hard pressed to convince a trier of fact, or even raise a question of fact, that such
conditions were unreasonably ‘intolerable.’” Id. at 330 n 24.3
However, it is legally irrelevant that “[t]he hypothetical tardy plaintiff . . . is more likely
to harm, rather than help, her cause by delaying action.” Jacobson, supra. Statutes of limitation
define the time frame in which a plaintiff can file suit, not whether a plaintiff would be hard
pressed to prove the claim. “A rule that allows plaintiffs to determine when a statute of
limitations begins to run, e.g. by deciding when to resign, undermines the[] primary purposes of
statutes of limitation.” Jacobson, supra at 339 (Taylor, J., dissenting). I agree with Justice
Taylor that “it is the adverse employment action leading to the employee’s decision to leave that
constitutes the ‘discharge’ giving rise to the cause of action.” Jacobson, supra at 335 (Taylor, J.,
dissenting). “Mere continuity of employment, without more, is insufficient to prolong the life of
2
This statute has since been amended and, effective March 31, 2003, this provision is cited as
MCL 600.5805(10).
3
Simply put, Jacobson permits a plaintiff to postpone bringing a cause of action long after any
discriminatory act occurred. Applied to the facts of this case, plaintiff effectively “controlled”
the accrual of her cause of action by resigning after taking a brief vacation, during which no
event occurred that supports a “constructive discharge.”
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a cause of action for employment discrimination.” Id. (Taylor, J., dissenting), citing Delaware
State College v Ricks, 449 US 250, 257; 101 S Ct 498; 66 L Ed 2d 431 (1980).
Although I agree with the dissenting opinion in Jacobson, I am duty bound to follow the
rule of law established by the majority opinion in Jacobson. I therefore concur in the result
reached by the majority opinion in this case.
/s/ Brian K. Zahra
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