United States District Court, W.D. Michigan, Southern Division
Janet T. Neff Judge.
REPORT AND RECOMMENDATION
S. CARMODY U.S. MAGISTRATE JUDGE.
matter is before the Court on Defendants' Motion for
Partial Summary Judgment. (ECF No. 35). Plaintiff
initiated this action on December 27, 2018, against
Tentcraft, Inc. and four of its employees. Plaintiff alleges
that Tentcraft hired her on May 7, 2018, only to unlawfully
terminate her employment nine (9) days later. Plaintiff has
asserted state and federal law claims concerning
Defendants' allegedly unlawful conduct. Defendants move
for summary judgment as to Plaintiff's state law claims
on the ground that such were untimely filed. Pursuant to 28
U.S.C. § 636(b)(1)(B), the undersigned recommends that
Defendants' motion be denied.
judgment ''shall'' be granted ''if
the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.'' Fed.R.Civ.P. 56(a). A party moving
for summary judgment can satisfy its burden by demonstrating
''that the respondent, having had sufficient
opportunity for discovery, has no evidence to support an
essential element of his or her case.'' Minadeo
v. ICI Paints, 398 F.3d 751, 761 (6th Cir. 2005). Once
the moving party demonstrates that ''there is an
absence of evidence to support the nonmoving party's
case, '' the non-moving party ''must identify
specific facts that can be established by admissible
evidence, which demonstrate a genuine issue for
trial.'' Amini v. Oberlin College, 440 F.3d
350, 357 (6th Cir. 2006).
the Court must view the evidence in the light most favorable
to the non-moving party, the party opposing the summary
judgment motion ''must do more than simply show that
there is some metaphysical doubt as to the material
facts.'' Amini, 440 F.3d at 357. The
existence of a mere ''scintilla of evidence''
in support of the non-moving party's position is
insufficient. Daniels v. Woodside, 396 F.3d 730,
734-35 (6th Cir. 2005). The non-moving party ''may
not rest upon [his] mere allegations, '' but must
instead present ''significant probative
evidence'' establishing that ''there is a
genuine issue for trial.'' Pack v. Damon
Corp., 434 F.3d 810, 813-14 (6th Cir. 2006).
the non-moving party cannot defeat a properly supported
motion for summary judgment by ''simply arguing that
it relies solely or in part upon credibility
determinations.'' Fogerty v. MGM Group Holdings
Corp., Inc., 379 F.3d 348, 353 (6th Cir. 2004). Rather,
the non-moving party ''must be able to point to some
facts which may or will entitle him to judgment, or refute
the proof of the moving party in some material portion, and.
. .may not merely recite the incantation,
'Credibility,' and have a trial on the hope that a
jury may disbelieve factually uncontested proof.''
Id. at 353-54. In sum, summary judgment is
appropriate ''against a party who fails to make a
showing sufficient to establish the existence of an element
essential to that party's case, and on which that party
will bear the burden of proof at trial.''
Daniels, 396 F.3d at 735.
moving party without the burden of proof need only show that
the opponent cannot sustain his burden at trial, a moving
party with the burden of proof faces a
''substantially higher hurdle.'' Arnett
v. Myers, 281 F.3d 552, 561 (6th Cir. 2002). Where the
moving party has the burden, ''his showing must be
sufficient for the court to hold that no reasonable trier of
fact could find other than for the moving party.''
Calderone v. United States, 799 F.2d 254, 259 (6th
Cir. 1986). The Sixth Circuit has emphasized that the party
with the burden of proof ''must show the record
contains evidence satisfying the burden of persuasion and
that the evidence is so powerful that no reasonable jury
would be free to disbelieve it.'' Arnett,
281 F.3d at 561. Accordingly, summary judgment in favor of
the party with the burden of persuasion ''is
inappropriate when the evidence is susceptible of different
interpretations or inferences by the trier of fact.''
Hunt v. Cromartie, 526 U.S. 541, 553 (1999).
assert that Plaintiff's state law claims must be
dismissed because they were untimely filed. In support of
this argument, Defendants rely on a single-page document
which Plaintiff allegedly signed at the outset of her
employment. (ECF No. 35-2 at PageID.246). According to this
document, Plaintiff allegedly agreed to “not commence
any state law action or suit related to [her] employment. .
.more than six months after the termination of [her]
employment, if the action or suit is related to the
termination of [her] employment.” (ECF No. 35-2 at
PageID.246). As Defendants correctly note, agreements such as
this are permissible under Michigan law. See, e.g., Rory
v. Continental Ins. Co., 703 N.W.2d 23, 31-32 (Mich.
2005) (“Michigan has no general policy or statutory
enactment. . .which would prohibit private parties from
contracting for shorter limitations periods than those
specified by general statutes”).
shortcoming with Defendants' argument, however, is that
Defendants have failed to demonstrate that the document on
which their argument is based binds Plaintiff
vis-à-vis Defendants. The agreement contains only
Plaintiff's signature and was not signed by any of the
individual defendants or by any other representative of
Tentcraft. The document does not make any reference to
Tentcraft, but instead merely references “company,
” a term which is not defined in the agreement. The
agreement does contain a single reference to “OLHSA,
however, Defendants have presented no evidence establishing
that OLHSA refers to, or is in any way affiliated with,
Tentcraft or any of the individual defendants. On the other
hand, Plaintiff has submitted evidence that OLHSA is a
separate entity from Tentcraft and, moreover, that the
agreement on which Defendants' argument rests was
plagiarized from an OLHSA employment application. (ECF No.
47-2 at PageID.372-77). Defendants apparently failed,
however, to modify the agreement to reflect that it
constituted an agreement between Tentcraft and its employees
rather than between OLHSA and its employees.
argue that the shortcoming with the agreement is a mere
typographical error and that the Court should instead read
the agreement as if “Tentcraft” were inserted for
“OLHSA.” This argument is rejected. First,
Defendants have presented no authority standing for the
proposition that the failure to properly identify in an
agreement the identity of the parties bound thereby is merely
a typographical error. Second, Defendants have identified no
authority that permits a court to simply re-write a contract
in the manner Defendants seek. In sum, the agreement in
question, by its express terms, does not bar Plaintiff from
asserting against the present defendants state law claims
concerning her employment with Tentcraft. To the extent
Defendants seek a different result by reference to evidence
extrinsic to the agreement itself, Defendants have failed to
demonstrate that consideration of such evidence is
appropriate at this juncture or that such evidence would
result in a different result.
reasons articulated herein, the undersigned recommends that
Defendants' Motion for Partial Summary ...