ERNEST M TIMKO V OAKWOOD CUSTOM COATING INC
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STATE OF MICHIGAN
COURT OF APPEALS
ERNEST M. TIMKO,
FOR PUBLICATION
January 2, 2001
9:00 a.m.
Plaintiff-Appellant,
v
OAKWOOD CUSTOM COATING, INC., d/b/a
OAKWOOD TOOL & MOLD, and THE
OAKWOOD GROUP,
Defendants-Appellees.
No. 212927
Wayne Circuit Court
LC No. 98-806774 CZ
Updated Copy
March 16, 2001
Before: McDonald, P.J., and Gage and Talbot, JJ.
GAGE, J.
Plaintiff appeals as of right the trial court's grant of summary disposition for defendant.1
The trial court granted defendant summary disposition of plaintiff 's age discrimination claims
pursuant to MCR 2.116(C)(7) (statute of limitations). We affirm.
On August 26, 1996, plaintiff, at age seventy-one, began tool and die work for defendant.
On August 28, 1996, plaintiff signed a three-paragraph portion of defendant's employment
application labeled "Authorization and Understanding." Among other things, the understanding
provided for plaintiff 's agreement that the parties' employment relationship was at will, and in
bold print explained, in relevant part, as follows:
I agree that any action or suit against the firm 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
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days of the event giving rise to the claims or be forever barred. I waive any
limitation periods to the contrary.
Plaintiff 's term of employment lasted for approximately five and one-half months, until February
7, 1997, when defendant discharged plaintiff allegedly because plaintiff unsatisfactorily
performed his job.
On March 3, 1998, plaintiff sued defendant, alleging unlawful age discrimination under
the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. Defendant moved for
summary disposition pursuant to MCR 2.116(C)(7), arguing that because plaintiff filed suit more
than 180 days after his term of employment ended the 180-day period of limitation precluded
plaintiff 's claim. Plaintiff responded that Herweyer v Clark Hwy Services, Inc, 455 Mich 14;
564 NW2d 857 (1997), stood for the proposition that a six-month period of limitation placed
within an employment agreement was unreasonable and therefore unenforceable. The trial court
concluded that the 180-day period of limitation satisfied the requirement under Michigan law that
a shortened period of limitation must qualify as reasonable and granted defendant summary
disposition because plaintiff filed suit beyond the 180-day period.
Plaintiff moved for reconsideration on the bases that no mutuality of obligation supported
defendant's attempted enforcement of the 180-day period contained within the employment
application and that defendant's standard form employment application represented a contract of
adhesion. Plaintiff also reiterated that Michigan law viewed as unreasonable a six-month period
of limitation. The trial court found plaintiff bound by the terms of the employment application.
The court also restated its finding that the 180-day period of limitation was reasonable and,
consequently, determined that the employment application did not constitute an adhesion
contract. Accordingly, the court denied plaintiff 's motion for reconsideration.
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Plaintiff on appeal challenges the trial court's decision to apply the 180-day period of
limitation contained within the employment application. We review de novo a trial court's
summary disposition ruling. Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d
201 (1998). Defendant sought summary disposition based on MCR 2.116(C)(7), which provides
that "[t]he claim is barred because of . . . statute of limitations."
When reviewing a motion for summary disposition under MCR
2.116(C)(7), a court must accept as true a plaintiff 's well-pleaded factual
allegations, affidavits, or other documentary evidence and construe them in the
plaintiff 's favor. If no facts are in dispute and reasonable minds could not differ
concerning the legal effect of those facts, whether a plaintiff 's claim is barred by
the statute of limitations is a question for the court as a matter of law. [Jackson
Co Hog Producers v Consumers Power Co, 234 Mich App 72, 77; 592 NW2d
112 (1999) (citation omitted).]
Plaintiff first asserts that the 180-day period of limitation is unreasonable according to
Herweyer, supra. In Herweyer, the plaintiff signed an employment contract with the defendant
that described a six-month period of limitation for bringing employment-related claims against
the defendant, and additionally provided that "'if any of the above commitments by me is ever
found to be legally unenforceable as written, the particular agreement concerned shall be limited
to allow its enforcement as far as legally possible.'" Herweyer, supra at 16 (emphasis added).
The instant plaintiff reasons that the Supreme Court would not have considered the question
whether the Herweyer parties' above highlighted savings provision applied had it not
preliminarily determined that the six-month period there involved qualified as unreasonable.
Plaintiff 's argument, however, plainly lacks merit. The Supreme Court "granted [Herweyer]'s
application in order to determine whether the contract's saving provision can be read to require
any claims to be brought within the minimum reasonable period." Id. at 18-19.2 The Court
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specifically enunciated that "we express no opinion regarding the reasonableness of any
shortened period agreed to by the parties." Id. at 18.3
The Supreme Court in Herweyer 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." Id. at 20, citing Camelot Excavating Co, Inc v St Paul Fire &
Marine Ins Co, 410 Mich 118, 127; 301 NW2d 275 (1981). 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-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,4 MCL 37.1101 et
seq.; MSA 3.550(101) et seq. The United States District Court for the Eastern District of
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Michigan (Feikens, J.) granted the defendant's motion for summary judgment based on the sixmonth period of limitation. Myers, supra at 260.
The Sixth Circuit Court of Appeals on appeal addressed the reasonableness of the
abbreviated period of limitation. Judge Keith, writing for the court, restated the Michigan
Supreme Court's reasonableness requirements, see Camelot, supra, then concluded as follows:
There is nothing inherently unreasonable about a six-month limitations
period. For example, six months is the time limit within which claims must be
brought for breach of the duty of fair representation under the Labor Management
Relations Act. 29 USC § 160(b); DelCostello v International Brotherhood of
Teamsters, 462 US 151; 103 S Ct 2281; 76 L Ed 2d 476 (1983). We cannot say
that, under the Camelot criteria, the six-month limitation in this case is less
reasonable than that applied to fair representation claims. [Myers, supra at 262.]
Accordingly, the Court of Appeals affirmed the district court's grant of summary judgment to the
defendant. Id.
In Perez v Western-Southern Life Ins Co, 1987 WL 16355 (ED Mich, 1987), Judge
Newblatt of the United States District Court for the Eastern District of Michigan considered
briefly the reasonableness of a six-month period of limitation according to Michigan law. The
plaintiff therein also signed the defendant's employment contract that provided for a six-month
period of limitation regarding any employment-related claim.
The defendant moved for
summary judgment on the basis of the contractual six-month period of limitation. Although the
parties did not specifically address whether the shortened period qualified as reasonable under
the test described in Camelot, supra, Judge Newblatt concluded "that it is reasonable especially
in the light of the six-month period of limitations imposed by section 301 of the Labor
Management Relations Act, 29 USC § 301." 1987 WL 16355, *1. Judge Newblatt further
observed that
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[t]hough the three-year period of limitations for injuries to a person under MCL[]
600.5805(7) [MSA 27A.5805(7)] is applicable to employees alleging
discrimination in employment practices, . . . there is nothing in either the ElliottLarsen Act or § 600.5805(7) which prohibits a shorter reasonable period agreed
upon by the parties nor which evinces any state public policy to the contrary.
[Perez, supra at *2, n 2.]
The court granted the defendant summary judgment. Id. at *2.
We agree with Judge Keith in Myers, supra at 262, that no inherent unreasonableness
accompanies a six-month period of limitation. We find that in this case the 180-day period of
limitation afforded plaintiff adequate time to investigate and file his age discrimination claim.
Both Michigan law and federal law provide for six-month or even shorter periods of limitation in
the context of various employment actions. See MCL 423.216(a); MSA 17.455(16)(a) ["No
complaint shall issue based upon any unfair labor practice occurring more than 6 months prior to
the filing of the charge with the commission . . . ."]; MCL 15.363(1); MSA 17.428(3)(1) ["A
person who alleges a violation of th[e Whistleblowers' Protection A]ct may bring a civil action
for appropriate injunctive relief, or actual damages, or both within 90 days after the occurrence of
the alleged violation of this act."]; see also 29 USC 160(b) ("[N]o complaint shall issue based
upon any unfair labor practice occurring more than six months prior to the filing of the charge
with the Board . . . ."). Furthermore, both Michigan and federal law apply six-month periods of
limitation even where an employee's civil rights are involved. See 1999 AC, R 37.4(6) (requiring
that a complaint to Michigan's Civil Rights Commission "shall be filed within 180 days from the
date of the occurrence of the alleged discrimination, or within 180 days of the date when the
occurrence of the alleged discrimination was or should have been discovered"); see also 42 USC
2000e-5(e)(1) ("A charge [of an unlawful employment practice] under this section shall be filed
within one hundred and eighty days after the alleged unlawful employment practice occurred . . .
.").5
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The instant record reveals no explanation why the 180-day period of limitation at issue
did not provide plaintiff a sufficient opportunity to investigate and to file this action within the
abbreviated period, and no indication exists that the 180-day period effectively abrogated
plaintiff 's right to bring his age discrimination claims. Moreover, we find the approximate sixmonth period of limitation wholly adequate to permit plaintiff to ascertain any alleged
discrimination that may have occurred during the approximate five-and-one-half-month term of
plaintiff 's employment with defendant. Because the 180-day period of limitation does not
constitute an inherently unreasonable amount of time and because plaintiff failed to otherwise
demonstrate that the shortened period unfairly deprived him of the opportunity to file his instant
claims, we conclude that the 180-day period qualifies as reasonable. Camelot, supra; Myers,
supra.
Plaintiff next argues that the 180-day period of limitation cannot be enforced because
defendant is "attempting to enforce the provisions contained in the employment application as if
it is a contract, a contract where the Defendants have absolutely no obligation."
"The
enforceability of a contract depends, however, on consideration and not mutuality of obligation."
Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 600; 292 NW2d 880 (1980); 1
Restatement Contracts, 2d, § 79, p 200. This Court previously has recognized that the terms of
an employment application constituted part of an employee's and employer's contract of
employment. Butzer v Camelot Hall Convalescent Centre, Inc, 183 Mich App 194, 200; 454
NW2d 122 (1989); Eliel v Sears, Roebuck & Co, 150 Mich App 137, 140; 387 NW2d 842
(1985). Here, defendant clearly provided plaintiff consideration to support enforcement of the
terms of the application, specifically employment and wages. 1 Restatement Contracts, 2d, § 71,
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p 172 (consideration may constitute a return promise or a performance, including an act, a
forbearance, or "the creation, modification, or destruction of a legal relation"); Black's Law
Dictionary (7th ed), p 300 (defining consideration as "[s]omething of value [such as an act, a
forbearance, or a return promise] received by a promisor from a promisee").
Lastly, plaintiff alternatively argues that the parties' employment contract constitutes an
unenforceable adhesion contract because plaintiff could not negotiate the terms of the standard
form contract drafted by defendant. However, because we have found the 180-day period of
limitation reasonable, plaintiff 's adhesion contract argument must fail. Rembert v Ryan's Family
Steak Houses, Inc, 235 Mich App 118, 157; 596 NW2d 208 (1999) ("Courts will not invalidate
contracts as adhesion contracts where the challenged provision is reasonable.").
In conclusion, because undisputed facts establish plaintiff 's assent to a reasonable 180day period of limitation regarding employment-related claims, the trial court properly found that
defendant was entitled to summary disposition of plaintiff 's complaint, which was filed almost
thirteen months after plaintiff 's termination.
Affirmed.
Talbot, J., concurred.
/s/ Hilda R. Gage
/s/ Judge Talbot
1
Because it appears that the various defendant names appearing in the case caption represent
alternate appellations for the same entity, when referring to this entity we utilize the singular
"defendant."
2
The Supreme Court cited its order granting leave to appeal, which "limited [the issue to be
considered] to whether, if the contractual limitation period contained in the employment contract
was unreasonable, the limitation could be saved by reading it as providing for an unspecified
minimum reasonable time that is less than the applicable statutes of limitations." 453 Mich 915
(1996).
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3
While plaintiff also on appeal states that "[f]urther, Plaintiff 's waiver of the statutory period of
limitation was not knowing, intelligent and/or voluntary as is required by law," we decline to
address this contention because plaintiff failed to raise the issue before the trial court, failed to
raise the issue in his appellate brief 's statement of questions presented, and on appeal failed to
adequately brief the issue. Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959); Wallad
v Access BIDCO, Inc, 236 Mich App 303, 308; 600 NW2d 664 (1999); Hilliard v Schmidt, 231
Mich App 316, 318; 586 NW2d 263 (1998). We nonetheless note with respect to this allegation
that the language describing the abbreviated period of limitation appeared in bold print in a
paragraph of text located immediately above plaintiff 's signature acknowledging his agreement
with the provisions of the text.
4
This act currently is known as the Persons with Disabilities Civil Rights Act. MCL 37.1101;
MSA 3.550(101).
5
When "the person aggrieved has initially instituted proceedings with a State or local agency
with authority to grant or seek relief from" the allegedly unlawful employment practice, Congress
provided a 300-day period of limitation from the time of the occurrence of the unlawful practice,
or for filing "within thirty days after receiving notice that the State or local agency has terminated
the proceedings under the State or local law, whichever is earlier." 42 USC 2000e-5(e)(1).
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