Rebecca Shupe v. Asplundh Tree Expert Company , 566 F. App'x 476 ( 2014 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0382n.06
No. 13-5747
FILED
UNITED STATES COURT OF APPEALS May 22, 2014
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
Rebecca Shupe, )
) ON APPEAL FROM THE UNITED
Plaintiff-Appellant, ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
v. KENTUCKY
)
Asplundh Tree Expert Company, )
)
Defendant-Appellee. ) OPINION
)
BEFORE: CLAY and DONALD, Circuit Judges; MAYS, District Judge.*
Samuel H. Mays, District Judge. Plaintiff-Appellant
Rebecca Shupe (“Shupe”) appeals the district court’s order
granting summary judgment to her former employer, Defendant-
Appellee Asplundh Tree Expert Company (“Asplundh”) in her suit
for sexual harassment, gender discrimination, and wrongful
termination. For the reasons below, we AFFIRM the judgment of
the district court.
I.
Asplundh hired Shupe to work as a Permission Taker/Pre-
Planner in its Lexington, Kentucky offices in August 2008. As a
*
The Honorable Samuel H. Mays, Jr., United States District Judge for the
Western District of Tennessee, sitting by designation.
No. 13-5747
Rebecca Shupe v. Asplundh Tree Expert Company
condition to her at-will employment, Shupe was a required to
sign several forms, including a “Limitation on Time to File
Claims or Lawsuits” (the “Waiver”). Shupe signed and dated the
Waiver on August 15, 2008.
The single-page Waiver provides that:
I agree that any claim, administrative claim or
lawsuit relating to my service with [Asplundh] or any
of its subsidiaries must be filed no more than six (6)
months after the date of the employment action that is
the subject of the claim or lawsuit, except as may be
provided otherwise in a collective bargaining
agreement currently in effect. I waive any statute of
limitations to the contrary.
I have read and understand the contents of this
limitation and am fully able and competent to complete
it.
The words “IMPORTANT NOTICE” in larger font appear at the
top and bottom of the Waiver. The words “LIMITATION ON TIME TO
FILE CLAIMS OR LAWSUITS” and “READ CAREFULLY BEFORE SIGNING”
also appear at the top of the Waiver. The words “PLEASE READ”
in larger font appear at the bottom of the Waiver.
Shupe continued to work for Asplundh until she was
terminated in August 2011. Shupe claims that she was wrongfully
terminated in retaliation for complaining of sexual harassment
and gender discrimination by her supervisor at Asplundh, who was
also her ex-husband.
Shupe filed a complaint against Asplundh in the Circuit
Court of Fayette County, Kentucky, on August 10, 2012. The
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complaint was filed more than six months after she had been
terminated. Shupe alleged that Asplundh had violated the
Kentucky Civil Rights Act, K.R.S. §§ 344.010, et seq., when she
was (1) subjected to sexual harassment by her supervisor, her
former husband; (2) terminated based on her gender and age; and
(3) terminated in retaliation for complaining about her former
husband’s actions.
When Asplundh removed the action to the United States
District Court for the Eastern District of Kentucky, Shupe filed
a motion to remand the case to the state court on the basis that
her claims did not meet the minimum amount in controversy for
diversity jurisdiction. The district court disagreed and denied
her motion to remand.
Asplundh then filed a motion for summary judgment, arguing
that Shupe’s complaint, filed almost a year after her
termination, was barred by the six-month limitations period in
the Waiver she had signed as a condition of her employment.
The district court granted the motion and Shupe filed this
timely appeal. On appeal, Shupe argues (1) that the district
court lacked subject matter jurisdiction because her claims did
not meet the minimum amount in controversy requirement for
diversity jurisdiction, and (2) that her waiver concerning the
six-month limitations period was invalid and unenforceable.
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II.
Under 28 U.S.C. § 1291, this Court has “jurisdiction of
appeals from all final decisions of the district courts of the
United States.” Because the district court’s grant of summary
judgment for Asplundh disposed of all issues relevant to this
appeal, this Court has jurisdiction.
A. Diversity Jurisdiction and the Minimum
Amount-In-Controversy Requirement
The denial of a motion to remand for lack of subject matter
jurisdiction is reviewed de novo. Music v. Arrowood Indem. Co.,
632 F.3d 284, 286 (6th Cir. 2011) (internal citation omitted).
“If removal of a civil action is sought on the basis of the
jurisdiction conferred by [28 U.S.C. § 1332(a)], the sum
demanded in good faith in the initial pleading shall be deemed
to be the amount in controversy . . . .” 28 U.S.C. §
1446(c)(2). A court must conduct a “fair reading” of the
allegations in the complaint to determine the amount in
controversy. Hayes v. Equitable Energy Res. Co., 266 F.3d 560,
573 (6th Cir. 2001).
“[T]he notice of removal may assert the amount in
controversy if the initial pleading seeks . . . (ii) a money
judgment, but the State practice either does not permit demand
for a specific sum or permits recovery of damages in excess of
the amount demanded . . . .” 28 U.S.C. § 1446(c)(2)(A)(ii).
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Kentucky has such a practice. Kentucky Rule of Civil Procedure
8.01(2) states that, “In any action for unliquidated damages the
prayer for damages in any pleading shall not recite any sum as
alleged damages other than an allegation that damages are in
excess of any minimum dollar amount necessary to establish the
jurisdiction of the court . . . .”
A removal action is only proper based on the amount in
controversy asserted in the removal notice “if the district
court finds, by the preponderance of the evidence, that the
amount in controversy exceeds the amount specified in [28 U.S.C.
§ 1332(a)].” 28 U.S.C. § 1446(c)(2)(B). This Court has held
that federal jurisdiction in a diversity case is determined at
the time of removal. Ahearn v. Charter Township of Bloomfield,
100 F.3d 451, 453 (6th Cir. 1996) (internal citations omitted).
“The party seeking removal bears the burden of demonstrating
that the district court has original jurisdiction.” Eastman v.
Marine Mech. Corp., 438 F.3d 544, 549 (6th Cir. 2006) (internal
citations omitted). “The party requesting removal must set
forth, in the notice of removal, specific facts supporting the
assertion that the amount in controversy exceeds the amount
required by statute.” Nat’l Nail Corp. v. Moore, 139 F. Supp. 2d
848, 850 (W.D. Mich. 2001) (citing Laughlin v. Kmart Corp.,
50 F.3d 871, 873 (10th Cir. 1995)). “[B]ecause lack of
jurisdiction would make any decree in the case void and the
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continuation of litigation in federal court futile, the removal
statute should be strictly construed and all doubts resolved in
favor of remand.” Eastman, 438 F.3d at 549-50 (alteration in
original) (internal citations omitted).
A successful claim under the Kentucky Civil Rights Act
entitles a plaintiff to “actual damages.” K.R.S. § 344.450.
“Actual damage is most appropriately defined as all those
damages directly and naturally resulting, in the ordinary course
of events, from the injury in question.” Mitchell v. Seaboard
Sys. R.R., 883 F.2d 451, 453 (6th Cir. 1989) (internal citation
omitted). Actual damages include broader relief than Title VII.
Id. at 454 (internal citation omitted). Actual damages include
back pay, front pay, lost benefits, humiliation, emotional
distress, embarrassment, and attorney’s fees. Williamson v.
Aetna Life Ins. Co., 481 F.3d 369, 376 (6th Cir. 2007);
Mitchell, 883 F.2d at 452-53; Meyers v. Chapman Printing Co.,
Inc., 840 S.W.2d 814, 817 (Ky. 1992) (internal citation
omitted).
It is appropriate to consider back pay beyond the time of
removal when a plaintiff seeks an award for back pay that
includes future accruals. Weaver v. A.T.&T. Corp., 2010 WL
2521462, at *2 (W.D. Ky. June 18, 2010) (citing Gafford v. Gen.
Elec., 997 F.2d 150, 160-61 (6th Cir. 1993)). There is no
statutory limit on damages for “emotional distress” under the
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Kentucky Civil Rights Act. Childers Oil Co., Inc. v. Adkins,
256 S.W.3d 19, 28 (Ky. 2008).
Claims for punitive damages should be included in the
amount-in-controversy, “unless it is apparent to a legal
certainty that such cannot be recovered.” Hayes v. Equitable
Energy Res. Co., 266 F.3d 560, 572 (6th Cir. 2001) (internal
citation omitted). Punitive damages are not available under the
Kentucky Civil Rights Act. Kentucky Dep’t of Corr. v.
McCullough, 123 S.W.3d 130, 139-40 (Ky. 2003).
Punitive damages are available against a defendant who
acted grossly negligently toward a plaintiff. Kinney v.
Butcher, 131 S.W.3d 357, 358-59 (Ky. Ct. App. 2004). “[T]he
prevailing understanding defines gross negligence as a ‘wanton
or reckless disregard for the safety of other persons.’” Id.
“It is not necessary that the jury find the defendant to have
acted with express malice; rather, it is possible that a certain
course of conduct can be so outrageous that malice can be
implied from the facts of the situation.” Id. Punitive damages
must be proven by clear and convincing evidence under Kentucky
law. K.R.S. § 411.184(2).
B. The District Court Properly Determined that
Plaintiff’s Claims Exceeded $75,000.00.
In compliance with Kentucky Rule of Civil Procedure
8.01(2), Shupe’s complaint does not state an amount in
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controversy. She alleges that her damages exceed the minimum
amount necessary to confer jurisdiction on the Fayette County
Circuit Court. The minimum amount necessary to confer
jurisdiction in Fayette County is $5,000.00.
Shupe’s complaint alleges that she suffered damages for
“embarrassment, physical pain and suffering, and emotional
distress, requiring [her] to incur medical treatment and
expenses for same” as a result of Asplundh’s failure to stop the
sexual harassment to which she was subjected. The complaint
alleges that Shupe is entitled to damages for “loss of wages and
employment benefits, and that she continues and will continue to
suffer said damages . . .” due to her wrongful termination.
Shupe alleges that Asplundh “falsely accus[ed] her of
knowing of the wrongful conduct of Defendant’s supervisor
concerning Defendant’s property.” That conduct was allegedly
“grossly negligent, outrageous, extreme, intentional, [and]
designed to hold her in false light to others within the company
and done with such reckless disregard to the Plaintiff,
entitling her to [p]unitive damages.” Shupe alleges that she is
entitled to attorney’s fees.
Defendant-Appellee’s Notice of Removal states the following
specific facts about the amount in controversy. Shupe was laid
off in August 2011. She was working approximately 42.5 hours a
week when she was terminated. Her pay rate was $15.00 an hour.
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Shupe could have earned approximately $34,123.00 if she had
remained employed from August 2011, to September 10, 2012, when
the action was removed.
Asplundh alleges that trial would not occur until September
2013. Shupe would then be seeking more than two years of back
pay. Two years of unmitigated back pay would be approximately
$68,250.00. Asplundh alleges that this figure and “Plaintiff’s
request for punitive damages, damages for ‘actual damages’ of
emotional distress, humiliation, or embarrassment” and
attorney’s fees total more than $75,000.00.
The district court agreed with Asplundh’s damages
calculation and found by a preponderance of the evidence that
Shupe’s claim for damages exceeded $75,000.00. The calculation
of Shupe’s backpay appropriately included accruals through the
projected trial date, because she alleged that “she continues
and will continue to suffer” damage from her loss of wages. See
Weaver, 2010 WL 2521462, at *2 (citing Gafford, 997 F.2d at 160-
61) (“[Plaintiff] seeks back pay ‘for wages and other monetary
damages incurred and to be incurred in the future.’ . . . Thus,
because at the time of removal [Plaintiff] sought an award for
back pay that included future accruals, it is appropriate to
consider back pay beyond the time of removal.”) Shupe’s damages
for humiliation, embarrassment, and attorney’s fees would be in
addition to that amount.
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Shupe alleges that she is entitled to punitive damages for
Asplundh’s grossly negligent conduct. Although she is not
entitled to punitive damages under the Kentucky Civil Rights
Act, a fair reading of Shupe’s complaint demonstrates that she
brings additional claims for gross negligence. Shupe alleges
that Asplundh’s conduct was outrageous and extreme. If Shupe
presented evidence of that conduct, she could show that Asplundh
was grossly negligent. A plaintiff must prove punitive damages
by clear and convincing evidence. K.R.S. § 411.184(2). That
standard does not amount to a legal certainty.
Evaluating Shupe’s request for damages, it is more likely
than not that the amount in controversy is at least $75,000.00.
The district court did not err in its calculation of the amount
in controversy.
C. Neither the Pre-Suit Demand Letter nor the
Subsequent Affidavit Changes Our Analysis
Shupe relies on her pre-suit settlement demand letter to
show that she does not seek more than $75,000.00 in damages.
The letter states that “Ms. Shupe will waive all claims and
causes of actions arising out of this wrongful termination
matter against Asplundh Company, in exchange for the Company
paying Ms. Shupe her salary through August 31, 2012, back-dated
to her date of termination, commencing immediately.” The letter
states that Shupe will “need to be reimbursed for the value of
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the company’s medical, dental, and other insurance benefits she
did not receive.” Alternatively, “Ms. Shupe will consider
taking a lump sum cash payment in the sum of $60,000.00 . . . .”
“It is settled that, in ascertaining the amount in
controversy for jurisdictional purposes, where the law gives the
rule, the legal causes of action, and not the plaintiff’s
demand, must be regarded.” Smith v. Phillips & Jordan, Inc.,
2011 WL 250435, at *2 (E.D. Ky. January 24, 2011) (internal
quotations and citations omitted). “[A] settlement demand
letter is ‘some evidence’ regarding the amount in controversy.”
Id. (emphasis in original) (internal citation omitted) “[T]he
fact that Plaintiff attempted to settle the claim for less than
the amount in controversy is not probative of the true amount
because litigants often settle claims for less than the amount
in controversy.” Hollon v. Consumer Plumbing Recovery Ctr., 417
F. Supp. 2d 849, 854 (E.D. Ky. 2006) (internal citations omitted).
“[A]n offer falling just below the jurisdictional threshold
tends to suggest that the amount in controversy exceeds this
threshold, especially since parties ‘routinely offer and accept
settlement amounts significantly below the total amount placed
into controversy . . . .’” Osborne v. Pinsonneault, 2007 WL
710131, at *2 (W.D. Ky. March 2, 2007) (quoting Sayre v. Potts,
32 F. Supp. 2d 881, 888 (S.D.W. Va. 1999).
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Shupe’s settlement demand letter requested a lump sum of
$60,000.00 to cover her lost pay and benefits. That falls below
the federal jurisdictional limit of $75,000.00. It does not
take into account the request in her complaint for damages for
embarrassment, humiliation, or emotional distress, or for
punitive damages or attorney’s fees. Shupe’s settlement demand
letter is not inconsistent with the district court’s finding
that her claims meet the federal amount-in-controversy
requirement.
Shupe also relies on her post-suit affidavit to limit the
amount of damages she seeks. Shupe states that, “I have never
believed or been led to believe that I could recover or receive
more than $75,000 . . . by asserting this lawsuit.” She also
states that, “I have never demanded, claimed, requested or
otherwise indicated in any way to any person that I seek or
desire more than $75,000 . . . to settle or compromise this
lawsuit.” Finally, Shupe states that, “I have never sought more
than $75,000 . . . for any and all claims which could be, or
have been raised in this lawsuit.”
“[A] post-removal stipulation [or affidavit] reducing the
amount in controversy to below the jurisdictional limit does not
require remand to the state court.” Rogers v. Wal-Mart Stores,
Inc., 230 F.3d 868, 872 (6th Cir. 2000). A plaintiff may
stipulate to a claim less than the federal jurisdictional amount
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“where a plaintiff provides specific information about the
amount in controversy for the first time . . . .” Egan v.
Premier Scales & Sys., 237 F. Supp. 2d 774, 778 (W.D. Ky. 2002).
That is a clarification rather than a reduction of the amount in
controversy. Id. at 778. “[O]nly unequivocal statement[s] and
stipulation[s] limiting damages will serve this purpose.” Id.
An actual limitation on the amount of a potential judgment “is
essential to any such stipulation.” Id. “To merely say that
one will not accept money in excess of a certain amount limits
neither the judgment nor the demand.” Id.
The district court in Egan found that the statement that
the plaintiff “will accept a sum of $74,999 exclusive of
interest and costs as a judgment regardless of what any court
finds in excess of that amount” was not an unequivocal
stipulation. Id. at 775, 778. The same district court found
that the statement that the plaintiff “hereby certifies to the
Court that he will not be making a claim nor pursuing damages in
amount equal to or exceeding the sum of $75,000.00” was an
unequivocal stipulation limiting damages. Van Etten v. Boston
Scientific Corp., 2009 WL 3485909, at *1 (W.D. Ky. Oct. 23,
2009). That district court did find that the statement that the
plaintiff “will not seek or accept an award of damages in excess
of $74,999.00 inclusive of punitive damages, attorney’s fees,
and the fair value of any injunctive relief” was an unequivocal
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stipulation limiting damages. Spence v. Centerplate, 931
F. Supp. 2d 779, 780, 782 (W.D. Ky. 2013) (emphasis in original).
Counsel for Shupe argued that there was no guidance about
the words a post-suit limitation on damages should contain when
Shupe filed her affidavit. That argument is not well taken.
Both Egan and Van Etten were decided before Shupe filed her
complaint in Kentucky court. None of the statements in Shupe’s
post-suit affidavit is an unequivocal limitation on damages.
None of her statements is an actual limit on the potential
judgment she would receive. All of Shupe’s statements are
backward looking. She does not mention the potential judgment
in her case at all. Her post-suit affidavit is not an
unequivocal statement limiting her damages to an amount below
the jurisdictional limit. The district court did not err in
denying Shupe’s motion for remand.
III.
We now turn to the merits of the district court’s summary
judgment order. The granting of a motion for summary judgment
is reviewed de novo. Tysinger v. Police Dep’t of City of
Zanesville, 463 F.3d 569, 572 (6th Cir. 2006).
Waivers of statutes of limitations are valid and
enforceable under Kentucky law. Dunn v. Gordon Food Servs.,
Inc., 780 F. Supp. 2d 570, 573 (W.D. Ky. 2011) (citing Edmondson
v. Pa. Nat. Mut. Cas. Ins. Co., 781 S.W.2d 753, 755-56 (Ky.
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1989)). “[T]his Court determined that there is nothing
inherently unreasonable about a six-month limitations period
contained in an employment agreement.” Thurman v.
DaimlerChrysler, Inc., 397 F.3d 352, 357 (6th Cir. 2004)
(internal quotations and citation omitted). Kentucky’s highest
court has held that a six-month limitations period is
reasonable. Ashland Fin. Co. v. Hartford Acc. & Indem. Co.,
474 S.W.2d 364, 366 (Ky. 1971) (internal citation omitted).
Shupe does not dispute the enforceability of a statute-of-
limitations waiver. She admits that she signed the Waiver at
issue. Shupe argues that her acceptance of the Waiver was not
“knowing and voluntary.”
“In evaluating whether a [waiver] has been knowingly and
voluntarily executed, we look to (1) plaintiff’s experience,
background, and education; (2) the amount of time the plaintiff
had to consider whether to sign the waiver, including whether
the employee had an opportunity to consult with a lawyer;
(3) the clarity of the waiver; (4) consideration for the waiver;
as well as (5) the totality of the circumstances.” Morrison v.
Circuit City Stores, Inc., 317 F.3d 646, 668 (6th Cir. 2003)
(internal quotations and citation omitted).
The record contains no evidence about Shupe’s education or
experience. Courts have upheld statute-of-limitations waivers
when the plaintiff had only a high school education. Sako v.
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Ohio Dept. of Admin. Servs., 278 F. App’x 514, 518 (6th Cir.
2008); Dunn, 780 F. Supp. 2d at 577 (internal citations omitted).
Without more, this factor is neutral.
Shupe has stated that she “was presented several documents
and directed to sign them, which were not explained to me nor
did I understand what or why I was signing said documents other
than I was told I had to sign said documents in order to obtain
employment with the Defendant.” (Shupe Aff. ¶ 2.) Shupe stated
that, “I was not allowed an opportunity to have [the Waiver] or
other documents I was forced to sign in order to obtain
employ[ment] reviewed by an attorney of my choosing.” (Id. ¶
3.) Shupe stated that, “I was never provided a copy of the
Waiver or any other document I was required to sign . . . .”
(Id. ¶ 4.)
There is no evidence that Shupe asked for more time to
complete the Waiver or to speak to an attorney. There is no
evidence that Shupe indicated she did not understand the terms
of the Waiver when she signed it. There is no evidence that
Shupe asked for a copy of the Waiver after she signed it. There
is no evidence of fraud when Shupe signed the Waiver.
“In general, a person who has the opportunity to read a
contract, but does not do so and signs the agreement, is bound
to the contract terms unless there was some fraud in the process
of obtaining his signature.” Aytes v. Federal Exp. Corp., 2012
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WL 1831272, at *13 (E.D. Ky. May 18, 2012) (citing Cline v.
Allis-Chalmers Corp., 690 S.W.2d 764, 766 (Ky. 1985)). This
Court has held that a plaintiff “had an obligation to seek
assistance before she signed if she felt she did not understand
the application.” Reid v. Sears, Roebuck and Co., 790 F.2d 453,
461 (6th Cir. 1986). This Court has upheld a statute-of-
limitations waiver when “[t]he [district] court also noted that
despite [the plaintiff’s] claim that he was given only a few
minutes to decide whether or not to sign the waiver, there was
no indication that he had requested more time to consider the
situation or that he was pressured into signing the agreement.”
Sako, 278 F. App’x at 519. “Even assuming the verification of
[the plaintiff’s] . . . inability to consult an attorney,
standing alone these facts do not show lack of knowledge [or]
voluntariness.” Dunn, 780 F. Supp. 2d at 577. In the absence of
any evidence that Shupe requested more time to review the
Waiver, indicated she did not understand the Waiver, or asked
for time to have an attorney review the Waiver, this factor
weighs in favor of Shupe’s having knowingly and voluntarily
executed the Waiver.
The district court found that “[t]he waiver is quite clear,
both in content and in form. The font directing the reader’s
attention is bold and capitalized, and the font containing the
actual language of the waiver is clear from a normal reading
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distance. The language itself is relatively plain and clear.”
(Order on Mot. Summ. Judg. at 4, ECF No. 16.) Shupe does not
dispute that the font is appropriate and that the language is
clear and unambiguous.
The Eastern District of Kentucky has upheld a waiver that
stated: “To the extent the law allows an employee to bring legal
action against Federal Express, I agree to bring that complaint
within the time prescribed by law or 6 months from the date of
the event forming the basis of my lawsuit, whichever expires
first.” Aytes, 2012 WL 1831272, at *12. The language in
Asplundh’s Waiver is similar to the language in Aytes. This
factor weighs in favor of Shupe’s knowing and voluntary
execution of the Waiver.
Shupe does not dispute that there was consideration for
Asplundh’s Waiver. Asplundh provided consideration when it
employed Shupe and paid her wages. Dunn, 780 F. Supp. 2d at 574.
This factor weighs in favor of Shupe’s knowing and voluntary
execution of the Waiver.
Shupe argues that the cases in which courts have upheld
statute-of-limitations waivers have turned on “the negative
circumstances presented in [her] case in isolation, as opposed
to a combination of all of them in one case . . . .” To the
contrary, the court in Dunn upheld a statute-of-limitations
waiver where the plaintiff allegedly “received only a high
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school education, was given insufficient time to review the
Application, and was unable to consult an attorney before
signing [the waiver].” 780 F. Supp. 2d at 577. Shupe’s argument
is not well taken.
Shupe also relies on this Court’s decision in Walker v.
Ryan’s Family Steak Houses, Inc., 400 F.3d 370 (6th Cir. 2005).
This Court held that an arbitration agreement was not knowingly
and voluntarily signed when:
Plaintiffs typically were hired on the spot after a
brief interview, during which the hiring manager
hurriedly presented them with various documents that
they were instructed to sign in order to be considered
for a job. According to one . . . plaintiff, Ryan’s
managers would place an ‘x’ in every spot an applicant
is required to sign, and applicants would be told to
sign every ‘x’ without any explanation. The hiring
manager usually would not mention the arbitration
agreement, and Plaintiffs had no opportunity to take
the Arbitration Agreement home or consult an attorney,
even though the agreement purports to afford them that
right. . . . Plaintiffs were given no option to revoke
their consent to the Arbitration Agreement.
Id. at 381-82.
Walker is distinguishable for three reasons. The waiver of
an arbitration agreement involves a substantive right to a
judicial forum. Id. at 382. The shorter statute of limitations
here involves a procedural right. Aytes, 2012 WL 1831272, at
*13. The waiver in Walker was contained in a twelve-page
application packet that contained five pages of single-spaced
rules and procedures governing the arbitration procedure.
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Walker, 400 F.3d at 373. The Waiver in this case was a single
page and was clear and direct. The management in Walker also
provided misleading information about what the arbitration
agreement meant. Id. at 382. Shupe has not provided any
evidence that Asplundh attempted to mislead her in any way.
Walker is not controlling or persuasive in this case.
Shupe also argues that Asplundh should have provided her
with a copy of the Waiver when she was terminated in August
2011. An employer is not required to provide an employee with
notice of a statute-of-limitations waiver at the time of
termination. “One who signs a contract cannot seek to avoid it
on the basis that he did not read it or that he supposed it was
different in its terms.” Mannix v. Cnty. of Monroe, 348 F.3d
526, 533 (6th Cir. 2003). This factor weighs in favor of
Shupe’s knowing and voluntary execution of the Waiver.
The district court did not err in deciding that Shupe
knowingly and voluntarily signed the Waiver. There is no
genuine dispute of material fact about the validity of the
Waiver. Shupe did not bring her claims within six months of her
termination. The district court did not err in granting
Asplundh’s motion for summary judgment.
IV.
The district court properly found that the amount in
controversy exceeded $75,000.00. The district court’s order
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denying Shupe’s motion to remand is AFFIRMED. The district
court properly found that Shupe knowingly and voluntarily signed
the six-month statute-of-limitations waiver. The district
court’s order granting Asplundh’s motion for summary judgment is
AFFIRMED.
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