                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                              File Name: 05a0032p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                        X
                                 Plaintiffs-Appellants, -
 CONNIE THURMAN; JOHN THURMAN,
                                                         -
                                                         -
                                                         -
                                                             No. 02-2474
           v.
                                                         ,
                                                          >
 DAIMLERCHRYSLER, INC.; JAMES STANFORD                   -
                                                         -
                               Defendants-Appellees. -
 PITTMAN, jointly and severally,

                                                         -
                                                        N
                         Appeal from the United States District Court
                        for the Eastern District of Michigan at Detroit.
                       No. 01-73446—Arthur J. Tarnow, District Judge.
                                            Argued: April 27, 2004
                                  Decided and Filed: November 19, 2004*
             Before: MARTIN and ROGERS, Circuit Judges; BELL, Chief District Judge.**
                                              _________________
                                                   COUNSEL
ARGUED: H. Wallace Parker, BLOOMFIELD LAW CENTER, Bloomfield Hills, Michigan, for
Appellants. Joseph J. Vogan, VARNUM, RIDDERING, SCHMIDT & HOWLETT, Grand Rapids,
Michigan, William McCandless, DeNARDIS, McCANDLESS & MILLER, Mt. Clemens, Michigan,
for Appellees. ON BRIEF: H. Wallace Parker, BLOOMFIELD LAW CENTER, Bloomfield Hills,
Michigan, for Appellants. Joseph J. Vogan, Jennifer J. Stocker, VARNUM, RIDDERING,
SCHMIDT & HOWLETT, Grand Rapids, Michigan, William McCandless, DeNARDIS,
McCANDLESS & MILLER, Mt. Clemens, Michigan, for Appellees.




         *
         This decision was originally issued as an “unpublished decision” filed on November 19, 2004. The court has
now designated the opinion as one recommended for full-text publication.
         **
            The Honorable Robert Holmes Bell, Chief United States District Judge for the Western District of Michigan,
sitting by designation.


                                                          1
No. 02-2474           Thurman, et al. v. DaimlerChrysler, Inc., et al.                        Page 2


                                       _________________
                                           OPINION
                                       _________________
        BELL, District Judge. The issue before the Court is whether an employee effectively waived
the statutory limitations period for a civil lawsuit by signing an employment application that
provided for an abbreviated period of limitations. This action arises from the employment
relationship between Plaintiff-Appellant Connie Thurman and Defendant-Appellee DaimlerChrysler,
Inc. (“DaimlerChrysler”). Connie and John Thurman (collectively “the Thurmans”) assert claims
of sex discrimination under Michigan’s Elliott-Larsen Civil Rights Act, MICH. COMP. LAWS
§ 37.2101, et seq., race discrimination under 42 U.S.C. § 1981, and negligent hiring/retention,
negligent supervision, assault and battery, negligence and gross negligence, as well as loss of
consortium. The claims arise from two separate incidents in which Defendant James Stanford
Pittman (“Pittman”) sexually harassed Ms. Thurman while in the workplace. The Thurmans appeal
the district court’s order granting DaimlerChrysler’s motion for summary judgment. The Thurmans
contend that the district court erred in holding that their claims were time barred by the abbreviated
statute of limitations contained in the DaimlerChrysler employment application.
      For the reasons set forth below, we affirm the district court’s order granting
DaimlerChrysler’s motion for summary judgment on all claims against DaimlerChrysler and we
remand the remaining claims against Defendant Pittman to the district court with instructions to
remand the case to the Circuit Court for the County of Oakland, State of Michigan.
                                                  I.
        Ms. Thurman is an employee of DaimlerChrysler and a former co-worker of Pittman. Prior
to beginning her employment with DaimlerChrysler, Ms. Thurman completed an employment
application for DaimlerChrysler (then Chrysler Corporation). Among other provisions, the
application contained a clause waiving any statute of limitation and agreeing to an abbreviated
limitations period in which to file suit against the employer. Specifically, the clause stated:
       (8)     I agree that any claim or lawsuit relating to my service with Chrysler
               Corporation 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. I waive any statute of limitations to the contrary.
(J.A. 212-13). This clause was printed in the same size font as all other printed portions of the
application. In addition, the clause was preceded by the statement, “READ CAREFULLY
BEFORE SIGNING,” in bold and capitalized letters. (J.A. 212). The application also contained
a clause stating: “This application will be considered active for twelve (12) months from the date
filed. If you are hired, it becomes part of your official employment record.” Id. Ms. Thurman
signed the application, acknowledging that she read and understood the application. Id. Upon her
hiring, Ms. Thurman was covered by the collective bargaining agreement between DaimlerChrysler
and UAW Local 1264.
        Ms. Thurman began working for DaimlerChrysler in November 1994. On September 9,
1999, Ms. Thurman and Pittman were engaged in a conversation in the plant cafeteria. When Ms.
Thurman excused herself to attend a meeting, she bent over to pat Pittman’s shoulder. Pittman
misunderstood the gesture and grabbed her left breast. After conducting an investigation of the
incident, the DaimlerChrysler Labor Relations Staff concluded that there was insufficient evidence
to punish Pittman. On September 29, 1999, Plaintiff filed a statement of concern with the Michigan
Department of Civil Rights claiming harassment owing to the conduct of Pittman on September 9,
1999.
No. 02-2474           Thurman, et al. v. DaimlerChrysler, Inc., et al.                        Page 3


        On October 2, 1999, Ms. Thurman was in the cafeteria eating lunch with her co-workers
when Pittman entered the room. As he was leaving the cafeteria, Pittman walked by Ms. Thurman
and grabbed his crotch, shaking his genitals at her. Ms. Thurman reported this incident to her
superiors. DaimlerChrysler did take action against Pittman after the October 2, 1999, incident.
Pittman was given a 10-day suspension for violating the DaimlerChrysler Standards of Conduct.
In response to the two harassment incidents, Ms. Thurman filed a criminal complaint with the
Sterling Heights Police Department on October 19, 1999. Pittman pled guilty to fourth degree
criminal sexual conduct and aggravated assault. (J.A. 482).
       After being transferred to another shift in January 2000, Ms. Thurman was given a leave of
absence from work on February 26, 2000, and has not returned to active duty with DaimlerChrysler.
        On June 1, 2000, the Thurmans filed a lawsuit in federal district court, naming
DaimlerChrysler and Pittman as defendants, alleging violations of the Michigan Elliot Larsen Civil
Rights Act, Title VII, 42 U.S.C. § 1981, and various state law tort claims. On December 15, 2000,
the suit was dismissed by the district court due to the repeated failure of the Thurmans' counsel to
appear and participate in court ordered conferences. (J.A. 531-53). While the district court
permitted reinstatement of the action for good cause within 30 days, the Thurmans did not move to
reinstate the action or appeal the dismissal. Instead, the Thurmans filed a second lawsuit in August
2001, the present suit before the Court, in the Oakland County Circuit Court alleging the same
claims as the previous suit. The suit was removed to the United States District Court, Eastern
District of Michigan, based on federal question and supplemental jurisdiction. Thereafter, the court
below granted summary judgment in favor of DaimlerChrysler and Pittman and dismissed the suit
as untimely filed pursuant to the abbreviated limitations agreement in the DaimlerChrysler
application.
                                                 II.
        The Court reviews de novo a district court’s grant of a motion for summary judgment. Lewis
v. Philip Morris, Inc., 355 F.3d 515, 523 (6th Cir. 2004) (citing Williams v. General Motors Corp.,
187 F.3d 553, 560 (6th Cir. 1999)).
       The district court below held that the abbreviated six-month statute of limitations in the
DaimlerChrysler employment application was reasonable and barred the Thurmans’ suit against
DaimlerChrysler. (J.A. 517-18). In addition, the district court held that the tort claims against
Pittman were also time barred. (J.A. 520-21).
        The Thurmans first assert on appeal that the district court erred in holding that their claims
were time barred by the abbreviated statute of limitations because by its terms the application
expired before Ms. Thurman was hired by DaimlerChrysler. The Thurmans point to the application
language stating: “This application will be considered active for twelve (12) months from the date
filed. If you are hired, it becomes part of your official employment record.” (J.A. 212). The
Thurmans contend that the six-month statute of limitations could not apply to this case because the
application expired in October 1994 (twelve months after it was signed), and Ms. Thurman was not
hired by DaimlerChrysler until November 1994.
        We are unpersuaded by the Thurmans' argument that the employment application was
expired and therefore the six-month statute of limitations period is inapplicable. It is uncontested
that Ms. Thurman was hired pursuant to the employment application that she filled out. Indeed,
because Ms. Thurman was hired based upon the information contained in the application, it became
part of her employment record. (J.A. 212) (“If you are hired, it becomes part of your official
employment record.”). Moreover, Michigan courts have held that terms in an employment
application constitute part of an employee’s contract of employment. See e.g., Timko v. Oakwood
No. 02-2474               Thurman, et al. v. DaimlerChrysler, Inc., et al.                                    Page 4


Custom Coating, Inc., 625 N.W.2d 101, 106 (Mich. Ct. App. 2001) (holding that terms of an
employment application are part of an employment contract); Butzer v. Camelot Hall Convalescent
Centre, Inc., 454 N.W.2d 122, 124 (Mich. Ct. App. 1989) (concluding that an at will termination
provision in an employment application was part of an employment contract). Given the fact that
DaimlerChrysler hired Ms. Thurman based upon the application she filled out and that the
application became part of her employment record, it cannot be argued that the application expired
prior to her hiring.
        The Thurmans next argue that the provisions of the employment application were superseded
by the collective bargaining agreement entered into between DaimlerChrysler and UAW Local 1264.
The Thurmans contend that an employee’s waiver of a statute of limitations is a mandatory subject
of collective bargaining that must be included in the collective bargaining agreement in order to
protect the employer. Further, the Thurmans argue that because the collective bargaining agreement
is the only agreement governing the terms and conditions of the relationship between
DaimlerChrysler and UAW, and it did not include a six-month statute of limitation for lawsuits
arising out of employment, it nullifies the employment application’s abbreviated limitations period.
        In response, DaimlerChrysler contends that there is no express restriction in the collective
bargaining agreement on their authority to contract directly with their employees concerning
limitations periods. Further, DaimlerChrysler asserts that the collective bargaining agreement
reserves the right of DaimlerChrysler to manage and direct its affairs and employees unless
specifically limited by the collective bargaining agreement. Appellee DaimlerChrysler’s Br. at 27.
         We conclude that the collective bargaining agreement does not supersede the employment
application's six-month statute of limitations. “[I]ndividual employment contracts are not inevitably
superseded by any subsequent collective agreement covering an individual employee . . . .”
Caterpillar Inc. v. Williams, 482 U.S. 386, 396 (1987). Indeed, the collective bargaining agreement
at issue expressly reserves the right of DaimlerChrysler to manage its employees and direct its
affairs, “except as limited by the terms of th[e] Agreement . . . .” Appellee DaimlerChrysler’s Br.
at 27 (quoting Agreement between DaimlerChrysler Corporation and the UAW, dated September
27, 1999). As DaimlerChrysler noted, there is no provision in the collective bargaining agreement
limiting the right of the employer to enter into abbreviated limitations periods with individual
employees. We also note that the Thurmans have not pointed to any authority holding that statutes
of limitation are a mandatory subject of bargaining. Federal law mandates that any collective
bargaining agreement deal with “mandatory subjects” of bargaining such as hourly pay rates, work
shifts, pensions, grievance procedures, seniority, and compulsory retirement age. 29 U.S.C.
§ 158(d); See also Detroit Police Officers Ass’n v. Detroit, 214 N.W.2d 803, 808-09 (Mich. 1974)
(distinguishing between “mandatory subjects” and “permissive subjects” of bargaining). The
collective bargaining agreement in this case apparently contains a clause stating, “[i]t is the intention
of the parties that this agreement during its term shall cover all arrangements between       the parties
concerning wage, hours, and conditions of employment.” Appellants' Br. at 18-19.1 Nothing in the
quoted language bars the employer from including a waiver of statute of limitations in an
employment contract. Therefore, the six-month statute of limitations contained in the employment
application is not superseded by the collective bargaining agreement.
        Upon concluding that the employment application was not expired prior to Ms. Thurman’s
hiring nor superseded by the collective bargaining agreement, we turn to whether the six-month
statute of limitations clause is enforceable. The Thurmans contend that the application is
unenforceable because it is an unconscionable contract of adhesion. Under Michigan law, courts

         1
         The quoted language is apparently contained in an exhibit that was attached to Plaintiffs-Appellants' Brief in
Response to DaimlerChrysler’s Motion for Summary Judgment below. On appeal, the exhibit may have been
erroneously left out of the joint appendix.
No. 02-2474            Thurman, et al. v. DaimlerChrysler, Inc., et al.                           Page 5


will not invalidate contracts as adhesion contracts where the challenged provision is reasonable.
Rembert v. Ryan’s Family Steak Houses, Inc., 596 N.W.2d 208, 226 (Mich. Ct. App. 1999) (citing
Rehmann, Robson & Co. v. McMahan, 466 N.W.2d 325, 329 (Mich. Ct. App. 1991); Ryoti v. Paine,
Webber, Jackson & Curtis, Inc., 371 N.W.2d 454, 455-56 (Mich. Ct. App. 1985)). Previously, this
Court determined that there is nothing inherently unreasonable about a six-month limitations period
contained in an employment agreement. Myers v. Western-Southern Life Ins. Co., 849 F.2d 259, 262
(6th Cir. 1988). Moreover, Michigan courts have consistently held that contracting parties may
agree to an abbreviated statute of limitations so long as it is reasonable. See Camelot Excavating
Co., Inc. v. St. Paul Fire & Marine Ins. Co., 301 N.W.2d 275, 276 (Mich. 1981); Timko, 625
N.W.2d at 106. In Timko, the Michigan Court of Appeals held that a six-month statute of limitations
clause in an employment application was not inherently unreasonable. Timko, 625 N.W.2d at 106.
The court held that an abbreviated limitations period within an application for employment “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. (citing Camelot Excavating Co., Inc., 301 N.W.2d
at 276.). Applying the three factors to the six-month limitations period at issue in Timko, the court
held that the six-month limitations period was reasonable. Id.
        The Thurmans assert that Timko is factually distinguishable from the present case and should
not apply. The Thurmans contend that Timko did not involve a unionized employee subject to a
collective bargaining agreement, the time period between the date the application was signed and
the date the cause of action arose was much greater, and the abbreviated limitations clause in the
Timko case was in bold print.
       As we discussed above, the fact that Ms. Thurman is subject to the collective bargaining
agreement does not nullify the provisions of her employment application. Further, the Thurmans
overstate the importance of the time elapsed between application for employment and accrual of the
cause of action. Timko turned on the fact that the six-month period of limitations satisfied the three
considerations used in evaluating the reasonableness of an abbreviated limitations period, not the
time elapsed between the date of application and the date the cause of action arose. Timko, 625
N.W.2d at 106.
        Finally, the Thurmans correctly point out that the abbreviated limitations clause in Timko
was in bold print and the clause in the DaimlerChrysler application was in plain type. This, however,
does not render Timko inapplicable. The six-month statute of limitation clause is located within a
section with the heading “READ CAREFULLY BEFORE SIGNING.” (J.A. 212). Further, the
clause is located directly above Ms. Thurman’s signature acknowledging that she read and
understood the document. Id. Ms. Thurman also testified that she read the application and did not
have any concern or disagreement with the provisions, including the abbreviated limitation clause.
(J.A. 86-87). We are satisfied that the differences between the clause in Timko and the
DaimlerChrysler clause are not material. Consequently, we conclude that Timko is applicable to the
present case.
         Turning to whether the abbreviated limitations clause in this case is reasonable, the
Thurmans contend that the clause is unreasonable because there was not a sufficient opportunity to
investigate her claims and determine the extent of her damages. We find this argument unavailing
given that the record is replete with evidence that Ms. Thurman had ample time to investigate her
claim and determine her damages. The best example from the record is that the Thurmans filed the
first lawsuit encompassing the underlying events within the abbreviated limitations period. (J.A.
549). Surely, a sufficient investigation and determination of damages had been conducted prior to
filing the first lawsuit. Moreover, Ms. Thurman was referred to medical and psychological treatment
one week after the first incident with Mr. Pittman. (J.A. 158). Further, Ms. Thurman filed a
complaint with the Michigan Department of Civil Rights on September 29, 1999 and filed a criminal
No. 02-2474           Thurman, et al. v. DaimlerChrysler, Inc., et al.                           Page 6


complaint against Mr. Pittman on October 20, 1999. (J.A. 305-06). These facts demonstrate that
she had an ample opportunity to investigate her claims and determine her losses. Therefore, the six-
month limitations period gave the Thurmans a sufficient opportunity to investigate and file an action,
as well as ascertain the damages suffered. Accordingly, we conclude that the abbreviated limitations
period contained in the employment application is reasonable. Myers, 849 F.2d at 262; Timko, 625
N.W.2d at 105-06.
        Finally, the Thurmans contend that the waiver of the statutory period of limitation is void
because Ms. Thurman did not sign the waiver knowingly, intelligently, and voluntarily. Waivers
in civil rights cases must be carefully scrutinized for voluntariness. See Myers, 849 F.2d at 262
(citing Cox v. Allied Chem. Corp., 538 F.2d 1094, 1098 (6th Cir. 1976)). Even under a heightened
level of scrutiny, we conclude that the waiver in this case was knowing and voluntary. Ms.
Thurman’s own deposition testimony refutes her argument. Ms. Thurman testified that she read and
understood the application prior to signing it and did not have any concern or disagreement with any
of the provisions, including the abbreviated limitations period. (J.A. 112-14). Moreover, the
contractual language is clear and unambiguous. (J.A. 212). Under the circumstances of this case,
we cannot say that the waiver of the statutory period was unknowing and involuntary.
         In light of our holding that the abbreviated limitations period contained in the
DaimlerChrysler employment application is reasonable, all of Ms. Thurman’s claims against
DaimlerChrysler are time barred by the six-month limitations period. Assuming that the cause of
action accrued at the latest possible date, February 26, 2000, when Ms. Thurman last worked at the
Sterling Stamping Plant, she would have had until August 26, 2000, to commence a lawsuit against
DaimlerChrysler. This cause of action was filed on August 13, 2001. (J.A. 1). Even allowing for
the tolling of the statute of limitations during the pendency of the first lawsuit between the parties,
this lawsuit was filed well after the bar date specified in the employment application. Consequently,
the district court correctly granted DaimlerChrysler’s motion for summary judgment. We affirm the
decision below granting summary judgment on all claims against DaimlerChrysler.
        Mr. Thurman’s loss of consortium claim is also time barred by the employment application's
six-month statute of limitation. Mr. Thurman’s claim is derivative and thus “stands or falls on the
primary claims in the complaint.” Cole v. Knoll, 984 F. Supp. 1117, 1136 (W.D. Mich. 1997)
(quoting Long v. Chelsea Cmty. Hosp., 557 N.W.2d 157, 162-63 (Mich. Ct. App. 1996)). Since Ms.
Thurman’s claims are barred by the abbreviated limitations period, Mr. Thurman’s claims are barred
as well.
                                                  III.
         We now turn to the Thurmans' remaining claims against Pittman. The district court below
dismissed all claims asserted against Pittman because the district court viewed them as barred by
the state statutes of limitation. (J.A. 520-21). The Thurmans asserted claims of intentional infliction
of emotional distress, assault, and negligence against Pittman. (J.A. 12-14). The period of
limitations applicable to claims of intentional infliction of emotional distress and negligence is three
years. See MICH. COMP. LAWS § 600.5805(9) (2004); Lemmerman v. Fealk, 534 N.W.2d 695, 697
(Mich. 1995) (“claims for negligence and intentional infliction of emotional distress must be brought
within three years . . . to avoid the limitation bar.”). The statute of limitation for an action alleging
assault or battery is two years. MICH. COMP. LAWS § 600.5805(2) (2004). The district court was
informed that the limitations period for assault and intentional infliction of emotional distress was
one year, leading the court to conclude that the causes of action against Pittman were time barred.
(J.A. at 519-521). The district court erroneously concluded that the claims against Pittman were
barred by the statutes of limitation.
No. 02-2474           Thurman, et al. v. DaimlerChrysler, Inc., et al.                        Page 7


        The remaining claims against Pittman, however, encompass state law tort claims between
citizens of the same state. The district court therefore did not have original subject matter
jurisdiction over them. Cmty. Health Plan of Ohio v. Mosser, 347 F.3d 619, 622 (6th Cir. 2003)
(“existence of subject matter jurisdiction, moreover, is an issue that may be raised any time, by any
party or even sua sponte by the court itself”) (quoting Ford v. Hamilton Inv., Inc., 29 F.3d 255, 257
(6th Cir. 1994)). The district court asserted supplemental jurisdiction over the claims against
Pittman pursuant to 28 U.S.C. § 1367. We have held previously that when all federal claims have
been dismissed before trial, the best course is to remand the state law claims to the state court from
which the case was removed. Musson Theatrical, Inc. v. Fed. Exp. Corp., 89 F.3d 1244, 1254-55
(6th Cir. 1996) (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988)); see also 28
U.S.C. § 1367(c)(3) (district courts may decline to exercise supplemental jurisdiction if all claims
over which it has original jurisdiction have been dismissed). Accordingly, the remaining claims
against Pittman are remanded to the district court with instructions to enter an order remanding the
case to the Circuit Court for the County of Oakland, State of Michigan.
                                                 IV.
        For the foregoing reasons, we AFFIRM the district court’s order granting DaimlerChrysler’s
motion for summary judgment on all claims against DaimlerChrysler and REMAND the remaining
claims against James Stanford Pittman to the district court with instructions to remand the claims
to the Circuit Court for the County of Oakland, State of Michigan.
