Julie French v. Midmichigan Medical Center-Gladwin ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
JULIE FRENCH, UNPUBLISHED
March 23, 2023
Plaintiff-Appellant,
v No. 360239
Gladwin Circuit Court
MIDMICHIGAN MEDICAL CENTER-GLADWIN, LC No. 20-010548-CD
Defendant-Appellee.
Before: K. F. KELLY, P.J., and BOONSTRA and REDFORD, JJ.
PER CURIAM.
Plaintiff, Julie French, appeals by right the trial court’s order granting summary disposition
in favor of defendant, MidMichigan Medical Center-Gladwin, on the issue of whether plaintiff’s
claims brought under the Elliot-Larsen Civil Rights Act (“ELCRA”), MCL 37.2101 et seq., were
time-barred under a limitations period set forth in plaintiff’s job application. Finding no errors
warranting reversal, we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
On December 16, 2012, plaintiff applied for a job as a registered nurse (“RN”) with
MidMichigan Physicians Group, a subsidiary of MidMichigan Health (“MMH”), which itself is
the parent nonprofit corporation of defendant, as well as other medical centers in Michigan.
Plaintiff had already worked for MMH since 2000 but quit her job in September 2012 to move out
of state with her spouse. Plaintiff returned to Michigan three months later and applied with MMH
to regain her position. As part of the application process, plaintiff signed a form entitled
“Applicant’s Certification and Agreement,” in which plaintiff agreed, as relevant here, to the
following provision:
3. Limitation on Claims: I agree that any lawsuit against MidMichigan Health
and/or its agents 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 the following time limits or be forever barred: (a)
for lawsuits requiring a Notice of Right to Sue from the EEOC, within 90 days after
the EEOC issues that notice; or (b) for all other lawsuits, within (i) 180 days of the
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event(s) giving rise to the claim or (ii) the time limit specified by statute, whichever
is shorter. I waive any statute of limitations that exceeds this time limit.
In June 2014, plaintiff applied for and was granted a transfer to defendant’s hospital to be
closer to home. As part of the process, plaintiff completed an MMH “Transfer Request” form in
which she affirmed that she was a current employee of MMH. Plaintiff was subsequently
terminated from this position on January 7, 2019, after a series of incidents concerning plaintiff’s
role as a supervisor occurred in late 2018, none of which are relevant to the issues raised in this
appeal.
Plaintiff filed her complaint on September 8, 2020, 20 months after she was terminated.
The trial court ultimately granted summary disposition in defendant’s favor, concluding that the
180-day limitations period in plaintiff’s job application barred plaintiff’s claims under the ELCRA.
This appeal followed.
II. STANDARD OF REVIEW
The trial court’s decision to grant summary disposition in defendant’s favor under MCR
2.116(C)(7) on the basis of statute of limitations is reviewed by this Court de novo. Zarzyski v
Nigrelli, 337 Mich App 735, 740; 976 NW2d 916 (2021). In a motion brought under this subrule,
this Court must consider not only the pleadings, but also any affidavits, depositions,
admissions, or other documentary evidence filed or submitted by the parties. The
contents of the complaint must be accepted as true unless contradicted by the
documentary evidence. This Court must consider the documentary evidence in a
light most favorable to the nonmoving party. If there is no factual dispute, whether
a plaintiff’s claim is barred under a principle set forth in MCR 2.116(C)(7) is a
question of law for the court to decide. If a factual dispute exists, however,
summary disposition is not appropriate. [Id. (quotation marks and citation
omitted).]
This Court also reviews de novo the proper interpretation of a contract. Clark v
DaimlerChrysler Corp, 268 Mich App 138, 141; 706 NW2d 471 (2005).
III. ANALYSIS
On appeal, plaintiff contends the trial court erred when it granted summary disposition in
defendant’s favor because the limitations period did not apply to plaintiff because she was not an
employee of MMH, but rather an employee of defendant. Plaintiff also argues that any attempt by
an employer to shorten the limitations period under the ELCRA in an employment contract violates
public policy as a matter of law. We find plaintiff’s arguments unpersuasive and, therefore, affirm
the trial court’s order.
Under the ELCRA, a plaintiff has three years from the date of each adverse employment
action to bring a claim. Garg v Macomb Co Community Mental Health, 472 Mich 263, 282; 696
NW2d 646 (2005); MCL 600.5805. However, “an unambiguous contractual provision providing
for a shortened period of limitations is to be enforced as written unless the provision would violate
law or public policy.” Rory v Continental Ins Co, 473 Mich 457, 470; 703 NW2d 23 (2005). To
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that end, “Michigan has no general policy or statutory enactment prohibiting the contractual
modification of the periods of limitations provided by statute.” Clark, 268 Mich App at 142. Thus,
a contractual limitations period, if unambiguous, is to be enforced as written and will not be
invalidated as against public policy. See id.; Coates v Bastian Bros, Inc, 276 Mich App 498, 503;
741 NW2d 539 (2007).
In Rory, the plaintiffs were insureds of the defendant-insurer who were injured in an
automobile accident but had their claim denied because they filed it after the one-year contractual
limitations period. Rory, 473 Mich at 461-462. The defendant moved for summary disposition
on the basis of the limitations period, which the trial court denied and this Court affirmed. Id.
at 462-463. The Michigan Supreme Court granted leave and reversed, concluding first that the
“reasonableness doctrine” in Michigan no longer had validity:
[A]n unambiguous contractual provision providing for a shortened period of
limitations is to be enforced as written unless the provision would violate law or
public policy. A mere judicial assessment of “reasonableness” is an invalid basis
upon which to refuse to enforce contractual provisions. Only recognized traditional
contract defenses may be used to avoid the enforcement of the contract provision.
[Id. at 470.]
The Supreme Court also concluded that the defendant’s one-year limitations period did not violate
public policy because there were no general nor specific statutes or policy enactments that
prevented a shorter contractual limitations period. Id. at 471-472.
Subsequently, in Clark, this Court concluded that contractual limitations periods in
employment contracts were enforceable as well. Clark, 268 Mich App at 142-145. In that case,
the plaintiff brought suit against his employer under the ELCRA for age discrimination. Id. at 140.
The trial court granted the defendant’s motion for summary disposition under MCR 2.116(C)(7),
concluding the defendant’s six-month limitations period was enforceable, and this Court affirmed.
Id. at 141. This Court stated:
Because there are no statutes explicitly prohibiting the contractual
modification of limitations periods in the employment context, the contract
provision is not contrary to law. Furthermore, the Court in Rory clarified that public
policy must be clearly rooted in the law. Hence, this Court must look to policies
that, in fact, have been adopted by the public through our various legal processes,
and are reflected in our state and federal constitutions, our statutes, and the common
law. Michigan has no general policy or statutory enactment prohibiting the
contractual modification of the periods of limitations provided by statute.
Likewise, even before Rory, provisions within an employment contract providing
for a shortened period of limitations were held to be reasonable and, therefore, valid
and enforceable. Consequently, we are unable to conclude that the limitations
period provided in the contract violates public policy. [Id. at 142 (quotation marks
and citations omitted).]
In this case, MMH had a provision in its job application that any lawsuit brought against it
must be filed within 180 days:
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3. Limitation on Claims: I agree that any lawsuit against MidMichigan Health
and/or its agents 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 the following time limits or be forever barred: (a)
for lawsuits requiring a Notice of Right to Sue from the EEOC, within 90 days after
the EEOC issues that notice; or (b) for all other lawsuits, within (i) 180 days of the
event(s) giving rise to the claim or (ii) the time limit specified by statute, whichever
is shorter. I waive any statute of limitations that exceeds this time limit.
Plaintiff makes no argument that this provision is unambiguous. Accordingly, under Rory and
Clark, defendant’s limitations period is valid, enforceable, and does not violate public policy.
Plaintiff contends that Rory and Clark are distinguishable, however, because plaintiff was
hired by MMH but terminated by defendant, both of which are distinct legal entities. Thus,
plaintiff contends that when she was transferred to defendant’s hospital in 2014, a new contractual
agreement was entered into by the parties.
As an initial matter, plaintiff cites no authority for the proposition that when she transferred
to defendant’s hospital, a new contractual agreement was created. Plaintiff has, therefore,
abandoned the argument. See Movie Mania Metro, Inc v GZ DVD’s Inc, 306 Mich App 594, 605-
606; 857 NW2d 677 (2014) (“An appellant may not merely announce his position and leave it to
this Court to discover and rationalize the basis for his claims, nor may he give issues cursory
treatment with little or no citation of supporting authority.”) (quotation marks and citation
omitted). But even if not abandoned, the argument lacks merit.
In Dzurka v MidMichigan Medical Center-Midland, unpublished per curiam opinion of the
Court of Appeals, issued January 22, 2019 (Docket No. 343162), p 2, this Court examined the
identical language in MMH’s job application in the context of a plaintiff who was terminated from
MidMichigan Medical Center-Midland. This Court rejected the plaintiff’s argument that there was
no mutuality of obligation or consideration when she signed the application and concluded that the
contractual limitations period in MMH’s application was enforceable against the plaintiff in the
context of her lawsuit. Id. at 2-4. Although Dzurka is unpublished, we find the reasoning
persuasive.
Plaintiff also argues that the Michigan Supreme Court’s recent decision in McMillon v
Kalamazoo, ___ Mich ___; 938 NW2d 79 (2023), dictates reversal in this case. In McMillon, the
plaintiff applied for a job with the defendant-city but was not hired. McMillon, ___ Mich at ___.
In the application, she agreed to file any claim against the defendant within nine months. Id. The
plaintiff was later hired for a different position and, when the plaintiff eventually sued the
defendant for race, age, and disability discrimination, the defendant sought summary disposition
on the basis of the limitations period from the plaintiff’s initial application. Id. The Michigan
Supreme Court reversed the trial court’s order granting summary disposition in the defendant’s
favor, concluding that “[w]hether plaintiff had notice that defendant intended to reuse her prior
application materials or that plaintiff intended or agreed to be bound by the initial contractual
application process remain genuine issues of material fact.” Id.-4-
McMillon is distinguishable from this case, however, because unlike the plaintiff in
McMillon, plaintiff here was hired initially by MMH and subsequently transferred within MMH’s
network of hospitals in 2014 to defendant. Thus, the question of whether there was notice that
defendant would use plaintiff’s application materials is irrelevant because plaintiff was hired
immediately, always remained an employee of MMH and was, therefore, always bound by the
terms she agreed to in 2012. Moreover, contrary to plaintiff’s arguments that she was unaware of
the limitations provision and had no notice of it, “one who signs a contract will not be heard to
say, when enforcement is sought, that he did not read it, or that he supposed it was different in its
terms.” Wilkie v Auto-Owners Ins Co, 469 Mich 41, 59; 664 NW2d 776 (2003) (quotation marks
and citation omitted). Likewise, plaintiff’s assertion that she was unaware she was still bound by
her application agreement is belied by the fact that when she transferred to defendant’s hospital,
she did so through an MMH “Transfer Request” form in which plaintiff affirmed she was a current
employee of MMH.
Undaunted, plaintiff asks the Court to conclude that a limitations provision in an
employment contract that shortens the time to file a claim under the ELCRA violates public policy
as a matter of law. However, this issue has already been decided against plaintiff’s position and
this Court is bound by the Michigan Supreme Court’s decision in Rory and by our own decision
in Clark. DC Mex Holdings LLC v Affordable Land LLC, 320 Mich App 528, 540; 907 NW2d
611 (2017) (“This Court is bound by stare decisis to follow the decisions of our Supreme Court”)
(quotation marks and citation omitted); MCR 7.215(C)(2) (“A published opinion of the Court of
Appeals has precedential effect under the rule of stare decisis”). Those cases stand for the
proposition that such limitations periods are valid and enforceable and do not violate public policy.
Lastly, plaintiff argues that the trial court erred when it granted summary disposition
because discovery was ongoing and plaintiff would have uncovered further evidence supporting
her claims. This argument is not persuasive for two reasons. First, plaintiff was the party to the
litigation that sought a decision on the statute of limitations issue when she moved for summary
disposition under MCR 2.116(C)(9) as to defendant’s statute of limitations affirmative defense.
She should not now be heard to complain that the trial court erred because it made a decision on
her motion. And second, plaintiff does not identify what evidence in discovery she may uncover
that would be relevant to her claim not being time-barred. See MCR 2.116(H)(2) (“A party may
show by affidavit that the facts necessary to support the party’s position cannot be presented
because the facts are known only to persons whose affidavits the party cannot procure.”). Nor can
she, as the application she signed unambiguously provided for a shorter limitations period than
what is afforded by statute. See Shay v Aldrich, 487 Mich 648, 667; 790 NW2d 629 (2010) (stating
that under the parol-evidence rule, extrinsic evidence is not admissible to interpret an unambiguous
contract).
Affirmed. Defendant, as the prevailing party, may tax costs. MCR 7.219(A).
/s/ Kirsten Frank Kelly
/s/ Mark T. Boonstra
/s/ James Robert Redford
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