BONITA WILLIAMS V GRAND TRAVERSE PAVILIONS
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STATE OF MICHIGAN
COURT OF APPEALS
BONITA WILLIAMS,
UNPUBLISHED
November 2, 2004
Plaintiff-Appellant,
v
No. 247063
Grand Traverse County
LC No. 02-22350-CL
GRAND TRAVERSE PAVILIONS,
Defendant-Appellee.
Before: Borrello, P.J., and Murray and Fort Hood, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s granting of summary disposition in favor of
defendant pursuant to MCR 2.116(C)(7) (statute of limitations) based on a six month limitation
period contained in plaintiff’s employment application. We affirm.
Plaintiff, a Native American, was employed as a Certified Nursing Aide (CNA) by
defendant Grand Traverse Pavilions, a long-term medical care facility. Defendant hired plaintiff
on April 10, 2000;1 plaintiff resigned on September 13, 2001. On December 17, 2001, plaintiff
filed a civil rights complaint against defendant alleging violations of the Elliott-Larsen Civil
Rights Act (ELCRA), MCL 37.2101, et seq., with the Michigan Civil Right Commission
(MCRC). While her complaint was pending before the MCRC, plaintiff instituted this action in
circuit court on September 6, 2002, alleging violations of the ELCRA, defamation and
intentional infliction of emotional distress. The MCRC dismissed plaintiff’s civil rights charge
when plaintiff filed this lawsuit in circuit court.
Plaintiff alleges that the wife of a patient at defendant’s facility referred to plaintiff as a
“dirty Indian” and requested that plaintiff not be assigned to care for her husband. According to
plaintiff, she was thereafter demoted by being reassigned to a different unit. Plaintiff contends
that her demotion and reassignment caused her to suffer medical problems as a result of the
embarrassment, humiliation, anxiety and confusion concerning her demotion, caused her to be
1
Plaintiff had previously worked for defendant in 1999. She took time off to care for her sick
father and reapplied for employment with defendant as a CNA in April 2000.
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the object of ridicule by other employees, and caused her to suffer emotional distress as a result
of the lack of support afforded to her by defendant.
Before being hired by defendant, plaintiff signed an employment application that
provides as follows:
I agree that any action or suit against the organization arising out of my
employment or termination of employment, including but not limited to claims
arising under State or Federal civil rights statutes, must be brought within 180
days of the event giving rise to the claims or be forever barred. I waive any
limitation periods to the contrary.
Based on this language, defendant moved for summary disposition under MCR
2.116(C)(7) and (C)(10). The trial court granted the motion pursuant to MCR 2.116(C)(7),
holding that this Court’s decision in Timko v Oakwood Custom Coating, Inc, 244 Mich App 234;
625 NW2d 101 (2001), permitted parties in an employment agreement to contract for a shortened
limitations period as long as the time period was reasonable and that a 180 day limitations period
qualified as reasonable. On appeal, plaintiff contends that the trial court erred in granting
summary disposition in favor of defendant because the hire agreement contains an integration
clause that supersedes the 180 day limitation period contained in plaintiff’s employment
application, because the 180 day limitation period in the application was unreasonable under
Timko, and because the filing of her complaint with the MCRC tolled the 180 day limitation
period.2 We disagree.
A motion for summary disposition pursuant to MCR 2.116(C)(7) is appropriate where
“[t]he claim is barred because of . . . statute of limitations.” MCR 2.116(C)(7). All well-pleaded
factual allegations and documentary evidence is construed in the plaintiff’s favor. Jackson Co
Hog Producers v Consumers Power Co, 234 Mich App 72, 77; 592 NW2d 112 (1999). Where
there are no factual disputes and reasonable minds cannot differ on the legal effect of the facts,
the decision regarding whether a plaintiff's claim is barred by the statute of limitations is a
question of law that this Court reviews de novo. Geralds v Munson Healthcare, 259 Mich App
225, 230; 673 NW2d 792 (2003). Additionally, whether contract language is ambiguous is a
question of law which we review de novo. Port Huron Ed Ass’n v Port Huron Area School Dist,
452 Mich 309, 323; 550 NW2d 228 (1996).
Plaintiff first argues that the integration clause contained in her hire agreement
superseded or canceled the limitation period contained in the employment application, or, at a
minimum, created a question of fact for the trier of fact. Although the trial court did not
explicitly address this issue below, we will consider it on appeal because the trial court, in
2
Plaintiff also argues on appeal that the trial court erred in failing to rule that the National Labor
Relations Board has exclusive jurisdiction to interpret plaintiff’s employment application. The
trial court did not address or decide this issue. Issues that have not been raised in and decided by
the trial court are not preserved for appeal. Fast Air, Inc v Knight, 235 Mich App 541, 549; 599
NW2d 489 (1999). We therefore decline to review this unpreserved issue.
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granting summary disposition in favor of defendant based on the 180 day limitation period
contained in the employment application, implicitly rejected plaintiff’s contention that the hire
agreement superseded the application. The relevant portion of the hire agreement provides:
This constitutes the entire agreement of the parties and supersedes and
cancels all previous written or oral communications between the parties referring
to the subject matter of this agreement.
The hire agreement encompassed four subject matter areas: (1) the applicant’s
certification that the information on the employment application was correct, (2) the applicant’s
passage of a physical examination and acceptance of certain responsibilities associated with
employment, (3) the applicant’s licensing qualifications, and (4) the applicant’s position, hourly
pay rate. Because the four subject matter areas in the hire agreement do not include or
encompass a limitation period, nothing in the hire agreement can be construed as superseding the
limitation period set forth in the employment application. The hire agreement plainly and
unambiguously limits the “entire agreement” to those four areas that are the specific “subject
matter” of the hire agreement. We cannot ignore the language in the hire agreement limiting its
application to the areas that are within its “subject matter.” Contracts must be construed so as to
give effect to every word or phrase as far as practicable. Klapp v United Insurance Group
Agency, Inc, 468 Mich 459, 467; 663 NW2d 447 (2003). Interpreting the integration clause as
superseding plaintiff’s application would render meaningless the language limiting its
application to the “subject matter” of the hire agreement. We conclude that the plain and
unambiguous language of the hire agreement limits its application and does not supersede the
limitation period in plaintiff’s application. If a contract is plain and unambiguous, this Court
must enforce it according to its terms. Burkhardt v Bailey, 260 Mich App 636, 656; 680 NW2d
453 (2004). Accordingly, we reject plaintiff’s contention that the hire agreement superseded the
limitation period contained in plaintiff’s application for employment.
Plaintiff next argues that the trial court erred in failing to rule that the 180 day limitation
period is unreasonable under Timko. Again, we disagree. This Court set forth the requirements
to determine whether a contractually established limitation period is unreasonable in Timko,
supra, when we stated:
The Supreme Court in Herweyer v Clark Hwy Services, Inc, 455 Mich 14;
564 NW2d 857 (1997) restated the accepted principle that parties may contract for
a period of limitation shorter than the applicable statute of limitation provided that
the abbreviated period remains reasonable. The period of limitation ‘is reasonable
if (1) the claimant has sufficient opportunity to investigate and file an action, (2)
the time is not so short as to work a practical abrogation of the right of action, and
(3) the action is not barred before the loss or damage can be ascertained . . . .’ To
this point, no published opinion by this Court or the Supreme Court has
specifically addressed the reasonableness of a shortened, 180-day period of
limitation in the context of an employment agreement.
Plaintiff does not address how the instant, shortened period of limitation
violates any of the three prescribed considerations. Applying Michigan law, at
least two federal courts have found that a six-month period of limitation contained
within an employment agreement qualified as reasonable. In Myers v Western-3-
Southern Life Ins Co, 849 F2d 259, 260 (CA 6, 1988), the plaintiff signed an
employment contract agreeing ‘[n]ot to commence any action or suit relating to
your employment . . . more than six months after the date of termination of such
employment, and to waive any statute of limitation to the contrary.’ More than
sixteen months after the plaintiff retired, he filed a constructive discharge lawsuit
against the defendant, alleging age and handicap discrimination in violation of the
Michigan Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and
the Michigan Handicappers’ Civil Rights Act, MCL 37.1101 et seq.; MSA
3.550(101) et seq. The United States District Court for the Eastern District of
Michigan (Feikens, J.) granted the defendant’s motion for summary judgment
based on the six-month period of limitation. [Timko, supra, 239-240 (internal
citations and footnote omitted).]
In light of Timko’s holding that a “180-day period qualifies as reasonable,” we find that
the 180 day limitation period in this case also was not unreasonable. Id., 244. Plaintiff’s
arguments that the limitation period works a practical abrogation of plaintiff’s civil rights cause
of action are unpersuasive, and plaintiff does not even argue on appeal that the 180 day
limitation is unreasonable under the remaining two considerations articulated in Herweyer. To
the extent that plaintiff has not argued that the limitation was unreasonable under the remaining
two considerations articulated in Herweyer, she has abandoned this issue on appeal. Yee v
Shiawassee Co Bd of Comm’rs, 251 Mich App 379, 406; 651 NW2d 756 (2002). A party may
not merely “‘announce a position or assert an error and then leave it up to this Court to discover
and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then
search for authority either to sustain or reject his position.’” Wilson v Taylor, 457 Mich 232,
243; 577 NW2d 100 (1998), quoting Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388
(1959). Therefore, we reject plaintiff’s argument that the trial court erred in determining that the
180 day limitation period was reasonable.
Plaintiff finally argues that her filing of a civil rights claim with the MCRC either
satisfied or tolled the 180 day limitations period contained in her application for employment.
We disagree.
In asking this Court to grant such extraordinary relief, plaintiff devotes less than one page
of written text, and cites neither the tolling statute itself nor a single case to support its
application to this contractual period. Plaintiff’s confusing argument on this point seemingly
rests on the argument that the contract language is ambiguous, which somehow leads to the
applicability of our tolling statutes. As such, we decline to address this issue because plaintiff
herself must “‘adequately prime the pump; only then does the appellate well begin to flow.’”
Columbia Assoc, LP v Dep’t of Treasury, 250 Mich App 656, 678; 649 NW2d 760 (2002),
quoting Mitcham, supra, 203.
Affirmed.
/s/ Stephen L. Borrello
/s/ Christopher M. Murray
/s/ Karen M. Fort Hood
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