                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                August 14, 2012 Session

          KARIM SKAAN v. FEDERAL EXPRESS CORPORATION

                 An Appeal from the Circuit Court for Shelby County
                  No. CT-005300-06     Gina Carol Higgins, Judge


              No. W2011-01807-COA-R3-CV - Filed December 13, 2012


This appeal involves a claim of retaliatory discharge. The plaintiff was employed by the
defendant shipping company, working in a job position that required physical labor. The
plaintiff seriously injured his back in the course of his employment. As a result, he
underwent surgery and took an extended leave of absence. After his leave of absence, the
plaintiff returned to his former position with no restrictions. A month later, he suffered
another back injury that necessitated another leave of absence. Pursuant to its medical leave
policy, the defendant company terminated the plaintiff’s employment. Eight months after
his employment was terminated, the plaintiff filed this lawsuit, alleging that he was
discharged in retaliation for his workers’ compensation claim. The plaintiff’s employment
contract included a contractual six-month limitations period. The defendant company filed
a motion for summary judgment based on the six-month contractual limitations period, and
also asserting that it was entitled to judgment on the merits based on the undisputed facts.
The trial court declined to grant the company’s motion for summary judgment based on the
six-month limitation period, but it granted summary judgment in favor of the company on the
merits. The plaintiff now appeals. We reverse in part but affirm the trial court’s grant of
summary judgment on a different basis than that upon which the trial court relied, holding
that the plaintiff employee’s lawsuit is time-barred under the contractual limitations period
in the plaintiff’s employment contract.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Reversed in
                   Part, Grant of Summary Judgment Affirmed

H OLLY M. K IRBY, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and J. S TEVEN S TAFFORD, J., joined.
Michael C. Skouteris and Donnie Allen Snow, Memphis, Tennessee, for the
Plaintiff/Appellant Karim Skaan

John W. Campbell, Memphis, Tennessee, for the Defendant/Appellee Federal Express
Corporation

                                              OPINION

                                 Facts and Proceedings Below 1

On August 11, 1999, Plaintiff/Appellant Karim Skaan (“Mr. Skaan”) submitted an
application for employment with the Defendant/Appellee Federal Express Corporation
(“FedEx”). As part of the application, Mr. Skaan signed an Employment Agreement
(“Agreement”) in which he agreed to certain terms of employment in the event he was hired
by FedEx. On September 2, 1999, FedEx hired Mr. Skaan as a permanent, part-time cargo
handler. Upon Mr. Skaan’s hire, the Agreement Mr. Skaan had signed was executed by a
FedEx representative on behalf of FedEx.

In October 2004, in the course of performing his work duties as a cargo handler, Mr. Skaan
suffered an injury to his back. As a result of this injury, in May 2005, Mr. Skaan underwent
a lumbar diskectomy. Following a medical leave of 385 days, he returned to work at FedEx
on November 8, 2005, in the same job position, with no restrictions. On November 11, 2005,
FedEx advised Mr. Skaan by letter that, under FedEx’s policies on medical leave, he was
permitted medical leave of 365 days for any single injury, and he had exhausted the
allowable medical leave. Although FedEx’s November 11 letter to Mr. Skaan is not in the
appellate record, the parties do not dispute that Mr. Skaan was advised by FedEx that, under
FedEx policies, no further leave was available to him should he experience a recurrence of
the same condition within 180 days.

On December 8, 2005, less than 180 days after he returned to work, Mr. Skaan suffered
another work-related injury to his back. This injury necessitated that Mr. Skaan take another
medical leave of absence. Mr. Skaan took the position that this second back injury was a
new injury, and so he was entitled to additional medical leave under FedEx policies. After
investigation, and upon receiving the opinion of Mr. Skaan’s treating physician, FedEx took
the position that Mr. Skaan’s second back injury was a recurrence of his previous injury, so


1
 This is Mr. Skaan’s second appeal in this case. The first appeal was dismissed by this Court because the
trial court’s order was not a final, appealable judgment. See Skaan v. Fed. Express Corp., No. W2009-
02506-COA-R3-CV, 2010 WL 5140627 (Tenn. Ct. App. Dec. 14, 2010). Some of the facts recited herein
are taken from the Court’s opinion in the first appeal.

                                                  -2-
no further medical leave was available to him. Accordingly, on February 3, 2006, FedEx
notified Mr. Skaan that his employment with FedEx was terminated.

                                          Lawsuit

On October 10, 2006, over eight months after his employment with FedEx was terminated,
Mr. Skaan filed this lawsuit against FedEx in the Circuit Court of Shelby County, Tennessee.
The complaint alleged breach of Mr. Skaan’s employment contract and/or wrongful
termination. In March 2007, he amended his complaint, incorporating by reference his
breach of contract claim and adding a claim of retaliatory discharge, asserting that FedEx
discharged him in retaliation for his workers’ compensation claim.

In response, FedEx filed an answer in which it denied Mr. Skaan’s allegations and also
asserted an affirmative defense that his lawsuit was barred by the “applicable statute of
limitations, including the contractual limitation period contained in Plaintiff’s employment
application.” The contractual limitation period to which FedEx referred in its answer is
found in Paragraph 15 of the Employment Agreement Mr. Skaan signed as part of his job
application to FedEx. This provision states:

       To the extent the law allows an employee to bring legal action against Federal
       Express Corporation, 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.

On June 26, 2009, FedEx filed a motion for summary judgment, asserting that it was entitled
to summary judgment on all of Mr. Skaan’s claims. As to the breach-of-contract claim,
FedEx argued that Mr. Skaan was an employee at will and thus there was no contract to be
breached. On the retaliatory discharge claim, FedEx argued that Mr. Skaan could present no
evidence that his termination was motivated by a retaliatory animus based on his workers’
compensation filings, because FedEx had produced undisputed evidence that Mr. Skaan’s
termination was based on FedEx’s medical leave policies. Finally, FedEx argued that Mr.
Skaan’s entire lawsuit was barred by the six-month contractual limitation period quoted
above, because the lawsuit was filed over eight months after Mr. Skaan’s employment was
terminated.

In August 2009, the trial court conducted a hearing on the summary judgment motion. The
appellate record does not include a transcript of that hearing. On November 2, 2009, the trial
court entered an order on the summary judgment motion. The trial court declined to grant
summary judgment to FedEx based on the six-month limitation period contained in the



                                             -3-
Employment Agreement, finding that there were genuine issues of disputed fact that were
material to that affirmative defense:

       With respect to the second issue on the contractual limitations period contained
       in the Employment Agreement, the court finds that there are genuine issues of
       material fact which preclude summary judgment. There is conflicting
       testimony concerning whether [Mr. Skaan] could read and write English
       sufficiently at the time he signed the application. Genuine issues of fact exist
       as to whether he appreciated and understood the import of what he had signed.
       While the court is aware that the first issue disposes of the case, this issue is
       decided in the event that this matter is appealed.

The trial court reviewed the evidence on Mr. Skaan’s claim of retaliatory discharge at length
and concluded that FedEx had negated an essential element of Mr. Skaan’s claim, namely,
the element of improper motive for the discharge. The trial court found that, because FedEx
had produced undisputed evidence that it did not terminate Mr. Skaan’s employment until
it received a letter from Mr. Skaan’s treating physician that Mr. Skaan’s back pain was
related to his prior injury, FedEx had established that the termination of Mr. Skaan’s
employment was not related to the filing of a workers’ compensation claim. On this basis,
the trial court granted summary judgment in favor of FedEx on the retaliatory discharge
claim. The trial court’s order did not address the motion for summary judgment as it related
to Mr. Skaan’s breach-of-contract action. Mr. Skaan appealed this order.2

On December 14, 2010, this Court dismissed Mr. Skaan’s first appeal for lack of a final
order, because the trial court had not disposed of Mr. Skaan’s breach-of-contract claim.
Skaan v. Fed. Express Corp., No. W2009-02506-COA-R3-CV, 2010 WL 5140627, at *2-3
(Tenn. Ct. App. Dec. 14, 2010). The case was remanded to the trial court for further
proceedings. On remand, the trial court entered an order dismissing the breach-of-contract
claim. The trial court stated: “The parties have agreed and represented that Plaintiff’s [claim
based on] breach of contract is without merit and should be dismissed and the Court is in
agreement.” In addition, the trial court determined that the order was final and appealable,
as all matters before the court had been resolved. Mr. Skaan now appeals the grant of
summary judgment in favor of FedEx on his retaliatory discharge claim.




2
 This order on FedEx’s motion for summary judgment was issued by Circuit Court Judge Lorrie Ridder. The
subsequent orders were issued by Judge Ridder’s successor, Circuit Court Judge Gina Higgins.

                                                  -4-
                         ISSUES ON A PPEAL AND S TANDARD OF R EVIEW

On appeal, Mr. Skaan raises one issue, whether the trial court erred in granting FedEx
summary judgment on his claim of retaliatory discharge based on its determination that no
genuine issues of material fact existed for trial. Specifically, he claims that sufficient
evidence was submitted from which a reasonable jury could have concluded that FedEx’s
proffered reason for terminating him was a mere pretext for discharging him in retaliation
for his workers’ compensation claims, thus preventing a grant of summary judgment in favor
of FedEx under the standard set forth in Gossett v. Tractor Supply Co., 320 S.W.3d 777
(Tenn. 2010).

FedEx also raises an issue on appeal.3 It claims that the trial court erred in denying its motion
for summary judgment based on the contractual six-month limitation period for filing such
lawsuits set forth in Mr. Skaan’s Employment Agreement. It argues that, even if the record
contains conflicting testimony about whether Mr. Skaan could read and write English
sufficiently when he signed the application, this fact is immaterial, because one who signs
a contract is presumed to know the contents thereof and is bound by the contract. For this
reason, FedEx maintains, Mr. Skaan’s lawsuit was not timely filed and FedEx is entitled to
summary judgment.

Our review of the trial court’s decision to either grant or deny a motion for summary
judgment is a question of law, subject to de novo review, with no presumption of correctness
in the trial court’s decision. Gossett, 320 S.W.3d at 780; see also Kinsler v. Berkline, LLC,
320 S.W.3d 796, 799 (Tenn. 2010). “Generally speaking, a defendant moving for summary
judgment may avail itself of one of two avenues: it may negate an essential element of the
nonmoving party’s claim, or it may establish an affirmative defense, such as the statute of
limitations, that defeats the claim.” Allied Sound, Inc. v. Neely, 909 S.W.2d 815, 820 (Tenn.
Ct. App. 1995) (citing Byrd v. Hall, 847 S.W.2d 208, 215 n.5 (Tenn. 1993)). In this case,
FedEx chose both avenues; it filed a motion for summary judgment both on the merits and
on its affirmative defense based on the six-month contractual limitation in the Employment
Agreement. Under either avenue, summary judgment is to be granted only if “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits,



3
 Mr. Skaan asserts in his appellate brief that “the [contractual] limitations argument is not before this Court
for review” because FedEx had “declined to appeal [the] ruling.” Mr. Skaan, however, misapprehends the
rules of appellate procedure. Rule 13(a) of the Tennessee Rules of Appellate Procedure provides that the
scope of the Court’s review on appeal extends to “any question of law brought up for review and relief by
any party,” and that “[c]ross-appeals, separate appeals, and separate adjudications for permission to appeal
are not required.” Therefore, this issue was properly raised by FedEx, and it was fully addressed in FedEx’s
appellate brief. Accordingly, we will consider the issue in this opinion.

                                                     -5-
if any, show that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.03.

The summary judgment standard to be applied in this case is the standard announced in
Hannan v. Alltel Pub. Co., 270 S.W.3d 1 (Tenn. 2008). See Gossett, 320 S.W.3d at 781-83
(rejecting the McDonnell-Douglas framework at the summary judgment stage in
discriminatory and retaliatory discharge cases and applying the standard in Hannan).4 Under
this standard, to be entitled to summary judgment, the movant employer must negate an
essential element of the employee’s claim or defense or show by undisputed evidence that
the employee cannot prove an essential element of the claim or defense at trial. Id.; see also
Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83-84 (Tenn. 2008) (citing Hannan, 270
S.W.3d at 5); McCarley v. W. Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998); Byrd,
847 S.W.2d at 215. If there are disputed facts, we must ascertain whether the facts in dispute
are material to an essential element of the employee’s claim or to an element of the
affirmative defense upon which the employer seeks to rely. “A disputed fact is material if it
must be decided in order to resolve the substantive claim or defense at which the motion is
directed.” Byrd, 847 S.W.2d at 215. A disputed fact presents a genuine issue if “a
reasonable jury could legitimately resolve that fact in favor of one side or the other.” Id.

In determining whether the employer has established an affirmative defense at the summary
judgment stage, we must view all of the evidence in favor of the employee and draw all
reasonable inferences in favor of the employee. Staples v. CBL & Assocs., 15 S.W.3d 83,
89 (Tenn. 2000). Summary judgment should be granted only when a reasonable person could
reach but one conclusion based on the facts and the inferences drawn from those facts. Id.;
see also Gossett, 320 S.W.3d at 784 (citing Staples, 15 S.W.3d at 89).

                                              A NALYSIS

                              Retaliatory Motive for Termination

Mr. Skaan argues that the trial court erred in holding that he cannot establish an essential
element of his retaliatory discharge claim at trial, that is, the element of retaliatory motive
for the discharge. The trial court held that FedEx had met this standard by producing
undisputed evidence that it did not terminate Mr. Skaan’s employment until it received the


4
 The Tennessee General Assembly has enacted legislation providing for a different summary judgment
standard than the standard set forth in both Gossett and Hannan, but the new statutes only apply to cases
filed on or after June 10, 2011 and July 1, 2011, respectively. See Tenn. Code Ann. § 4-21-311(e), 50-1-
304(g) (setting forth burden of proof in discrimination cases); Tenn. Code Ann. § 20-16-101 (setting forth
a new summary judgment standard in other cases).

                                                   -6-
opinion of Mr. Skaan’s treating physician that Mr. Skaan’s December 2005 injury was
related to his 2004 back injury. Based on this, the trial court found that Mr. Skaan cannot
show at trial that FedEx had a retaliatory motive for discharging Mr. Skaan.

We note that the standard for summary judgment under the Tennessee Supreme Court’s
decision in Gossett v Tractor Supply Co. is high indeed. The Gossett Court’s application of
the standard under the facts of that case is instructive. In Gossett, the Court noted that the
employer had produced undisputed evidence that the plaintiff, Mr. Gossett, was discharged
as part of the company’s reduction in workforce. Gossett, 320 S.W.3d at 782-83. The Court
stated that this evidence showed only that the reduction in workforce was “one reason” for
the plaintiff’s discharge. It explained that, in the context of a summary judgment motion on
a claim of retaliatory discharge, the employer is in effect required to prove a negative, that
is, to “show an absence of retaliatory motive” by undisputed evidence. Id. at 783. Thus,
even if the employer’s evidence on the stated reason for the discharge were taken as true and
the plaintiff has no evidence to rebut it, the Court stated, for summary judgment purposes,
there would remain a disputed issue of fact as to whether the retaliatory motive alleged by
the plaintiff employee was a substantial factor in the decision to terminate the plaintiff’s
employment.5 Id.

In the case at bar, the trial court noted that, prior to terminating Mr. Skaan’s employment,
FedEx knew that Mr. Skaan was of the opinion that the second back injury was unrelated to
the first. Other than that, the trial court reasoned, Mr. Skaan had produced no evidence of
improper motive. Because it was undisputed that FedEx did not proceed with the termination
until it received confirmation that Mr. Skaan’s treating physician believed that his December
2005 back problems were related to the 2004 back injury, the trial court reasoned, FedEx had
“successfully negated an essential element of Plaintiff’s case” by establishing by undisputed
evidence that the “termination [of Mr. Skaan’s employment] is not related to the filing of
a workers’ compensation claim.”


5
 In Gossett, in response to concerns raised in the separate opinion filed by the minority, the majority opinion
stated: “[O]ur holding does not exclude the possibility of summary judgment when an employer presents
undisputed evidence that a legitimate reason was the exclusive motivation for discharging the employee. In
such a case, the employer has demonstrated that the employee cannot show that a discriminatory or
retaliatory reason was a substantial factor in the discharge decision and therefore has met its burden of
production for summary judgment. Because no genuine issue of material fact exists on an essential element,
either summary judgment or directed verdict may be granted.” Gossett, 320 S.W.3d at 786. Respectfully,
this assertion is difficult to square with the Court’s application of its standard to Mr. Gossett, inasmuch as
the Court stated that the employer had to do more than present undisputed evidence of its reason for
discharge, it had to also prove the negative — the absence of a retaliatory motive — by undisputed evidence.
Id. at 783. The majority in Gossett did not offer an example of how an employer might meet the standard
it enunciated.

                                                     -7-
Respectfully, we must conclude that the evidence presented by FedEx on this prong of its
summary judgment motion is not sufficient to meet the high standard set forth in Gossett.
The Gossett Court explained that it is not sufficient for the employer to present undisputed
evidence supporting its stated reason for terminating the plaintiff’s employment. To obtain
summary judgment on a claim of retaliatory discharge, the employer must also present
undisputed evidence showing “an absence of retaliatory motive.” Id at 783. FedEx has not
done so. Therefore, respectfully, we must conclude that the trial court erred in granting
summary judgment in favor of FedEx on this basis.

                              Contractual Limitation Period

FedEx argues on appeal that the trial court erred in declining to grant its motion for summary
judgment based on the six-month limitation period contained in the Employment Agreement
signed by Mr. Skaan when he applied for the job with FedEx. The trial court decided that
granting summary judgment on this basis would be inappropriate because “[t]here is
conflicting testimony concerning whether [Mr. Skaan] could read and write English
sufficiently at the time he signed the application,” and “[g]enuine issues of fact exist as to
whether he appreciated and understood the import of what he had signed.” As indicated
above, under our standard of review, we examine this issue de novo on the record, giving no
deference to the trial court’s decision.

On appeal, FedEx argues that the undisputed facts establish that the Employment Agreement
required Mr. Skaan to file this lawsuit within six months after the termination of his
employment. As the lawsuit was filed over eight months after his discharge, FedEx argues,
the lawsuit must be deemed untimely filed unless Mr. Skaan can show that the six-month
contractual limitation provision is unenforceable. Referring to the trial court’s ruling, FedEx
argues that the enforceability of the contractual six-month limitation period is unaffected by
either Mr. Skaan’s inability to read or write in English or his inability to appreciate the
importance of the document, because it is well-settled that “one who enters into a written
contract . . . is presumed to know the contents of the writing and is bound thereby.” DeFord
v. Nat’l Life & Accident Ins. Co., 185 S.W.2d 617, 621 (Tenn. 1945). FedEx notes that Mr.
Skaan “accepted, executed, and availed himself of the Employment Agreement,” and argues
that he is therefore bound by its terms. Parties to a contract are free to agree to a limitation
period that is shorter than the limitation period provided for by statute, FedEx contends, and
a six-month time limitation for bringing suit is neither unreasonable nor unconscionable.
Consequently, FedEx insists, based on the undisputed facts, Mr. Skaan’s lawsuit is untimely,
and it is entitled to judgment as a matter of law.




                                              -8-
Mr. Skaan’s appellate brief did not include a substantive response to FedEx’s argument on
this issue.6 Nevertheless, this Court exercised its discretion and permitted Mr. Skaan to make
a substantive argument on the issue at oral argument. In oral argument, Mr. Skaan asserted
that the six-month limitation provision in the Employment Agreement was unconscionable,
so the trial court’s denial of summary judgment on this basis should be upheld on appeal.
Asked whether the “unconscionability” argument was raised in the first instance to the trial
court below, Mr. Skaan asserted that it was argued orally at the trial court’s hearing on
FedEx’s summary judgment motion. This Court invited Mr. Skaan to submit after oral
argument any citations to the record demonstrating that the issue of unconscionability was
raised to the trial court. In response to the Court’s invitation, after oral argument, Mr. Skaan
sent the Court a letter, but it cited only the trial court’s written decision on the summary
judgment motion, which did not allude to unconscionability, and the Employment Agreement
itself. The letter included no citations to the record showing that Mr. Skaan argued to the
trial court that the six-month contractual limitation period was unconscionable.

It is well settled that a party waives an issue on appeal that was not first raised in the trial
court. Powell v. Cmty. Health Sys., Inc., 312 S.W.3d 496, 511 (Tenn. 2010). As the party
asserting waiver, FedEx has the burden of showing that the issue was not raised to the trial
court. Id. “Determining whether parties have waived their right to raise an issue on appeal
should not exalt form over substance,” and this Court “must carefully review the record to
determine whether a party is actually raising an issue for the first time on appeal.” Id.

As we have indicated, the appellate record does not include a transcript of the hearing on
FedEx’s motion for summary judgment.7 Likewise, Mr. Skaan’s written response to FedEx’s
motion for summary judgment is not included in the appellate record. We can surmise from
the record, however, that Mr. Skaan filed such a written response. The appellate record
contains FedEx’s reply and supplemental reply to Mr. Skaan’s response to FedEx’s motion
for summary judgment, in which FedEx summarizes the arguments apparently made in Mr.
Skaan’s response. In this summary, FedEx refers to Mr. Skaan’s argument “that enforcement
[of the six-month contractual limitation provision] is prohibited because the terms of the
agreement are unconscionable.” The FedEx reply refers to an affidavit, apparently filed by


6
 In his appellate brief, Mr. Skaan relied on the argument that FedEx is not permitted to challenge the trial
court’s denial of summary judgment based on the limitation period because it did not file a notice of appeal.
As noted previously in this opinion, this argument is without merit. Mr. Skaan would have been permitted
to include in his appellate brief an alternative argument on this issue, or to file a reply brief to address the
issues raised on appeal by appellee FedEx. Rule 27(c) of the Tennessee Rules of Appellate Procedure
permits the appellant to file such a reply brief. See Tenn. R. App. P. 27(c) (“The appellant may file a brief
in reply to the brief of the appellee.”).
7
    On December 12, 2011, Mr. Skaan filed a “Notice of No Transcript or Statement of Evidence.”

                                                      -9-
Mr. Skaan, in which Mr. Skaan claims that he “could not read or write English at the time
of the execution of this agreement,” that he was “rushed through [the application] process,”
that he attempted to read the Employment Agreement but could not do so, and that “no one
explained the documents to me.” Once again, Mr. Skaan’s affidavit is not included in the
appellate record. We note that the FedEx reply also refers to deposition testimony given by
Mr. Skaan that contrasts with Mr. Skaan’s affidavit. In his deposition, Mr. Skaan testified
that his cousin “who used to work for Federal Express” filled out the FedEx job application
with him, and that Mr. Skaan read the Employment Agreement before he signed it. Mr.
Skaan also admitted in his deposition that he signed the Employment Agreement on August
11, 2006, and had several weeks to review it before he was hired on September 2, 2006. The
relevant portions of Mr. Skaan’s deposition testimony are in the appellate record as
attachments to FedEx’s supplemental reply to Mr. Skaan’s response to FedEx’s summary
judgment motion.

Thus, it appears from the record that Mr. Skaan argued to the trial court that the Employment
Agreement, or portions of it, are unconscionable. Under these circumstances, Mr. Skaan is
not precluded from arguing unconscionability on appeal based on a failure to raise the issue
in the trial court below.

This, however, is not the only hurdle to this Court’s consideration of Mr. Skaan’s substantive
argument on the six-month contractual limitation period. As noted above, Mr. Skaan’s
appellate brief filed in this appeal did not include a substantive argument on the
enforceability of the six-month limitation period. This Court exercised its discretion to allow
him to address the issue in oral argument, but reserved the issue of whether it would take his
argument under consideration. On appeal, a party’s failure to argue an issue in the body of
its brief constitutes a waiver of that argument on appeal. See Newcomb v. Kohler Co., 222
S.W.3d 368, 401 (Tenn. Ct. App. 2006) (failure “to cite to any authority or to construct an
argument regarding [a] position on appeal constitutes waiver of that issue”); Bean v. Bean,
40 S.W.3d 52, 55-56 (Tenn. Ct. App. 2000) (“Courts have routinely held that the failure to
make appropriate references to the record and to cite relevant authority in the argument
section of the brief constitutes a waiver of the issue.”). Here, Mr. Skaan’s appellate brief
provides the Court with neither the legal nor the factual basis for his argument that the six-
month limitation period in the Employment Agreement is unconscionable. “[I]t is not
incumbent upon this Court to sift through the record in order to find proof to substantiate the
factual allegations of the parties.” Brooks v. Collinwood Church of God, No. 846, 1989 WL
73232, at *1 (Tenn. Ct. App. July 6, 1989). Under these circumstances, we will consider the
issue raised by FedEx on appeal based only on FedEx’s arguments and on the appellate
record.




                                             -10-
The record reflects, and it is undisputed on appeal, that FedEx terminated Mr. Skaan’s
employment in February 2006, and that Mr. Skaan filed the instant lawsuit in October 2006,
over eight months after the termination of his employment. This is well beyond the six-
month limitation period set forth in the Employment Agreement executed by Mr. Skaan as
part of his job application with FedEx. Thus, Mr. Skaan’s lawsuit against FedEx arising out
of the termination of his employment is untimely unless the record shows that the six-month
limitation in the Employment Agreement is unenforceable.

The trial court below declined to grant summary judgment based on the contractual limitation
period because it determined that genuine issues of material fact existed regarding whether
Mr. Skaan could read or write in English and whether he could understand the importance
of the agreement that he was signing. While this may be a disputed issue of fact,
respectfully, it is not material to the enforceability of the contractual limitation period. It is
well established in Tennessee that a person who signs a contract is presumed to understand
the terms of the agreement that he has signed. In DeFord v. Nat’l Life & Accident Ins. Co.,
the Court explained:

       “It will not do for a man to enter into a contract, and, when called upon to
       respond to its obligations, to say that he did not read it when he signed it, or
       did not know what it contained. If this were permitted, contracts would not be
       worth the paper on which they are written. But such is not the law. A
       contractor must stand by the words of his contract; and, if he will not read
       what he signs, he alone is responsible for his omission.” Upton v. Tribilcock,
       91 U.S. 45, 50, 23 L.Ed. 203 [(1875)].
               ...
       “A party’s mere ignorance, occasioned by his limited intelligence and
       understanding of the language and of the contents of the contract which he
       voluntarily executes, is not, in the absence of fraud, a ground for avoiding it,
       although it is different from what he supposed. So, where a person cannot read
       the language in which a contract is written, it is ordinarily as much his duty to
       procure some person to read and explain it to him before he signs it as it would
       be to read it before he signed it if he were able so to do, and his failure to
       obtain a reading and an explanation of it is such gross negligence as will estop
       him from avoiding it on the ground that he was ignorant of its contents.” [17
       C.J.S., Contracts, § 13.9.] Many cases are cited.
               It is further said that the fact that a person is unable to read creates no
       presumption that he was ignorant of the contents of a contract signed by him.

DeFord, 185 S.W.2d at 621-22. This is a bedrock principle of Tennessee law: “Tennessee
has strong public policy in favor of upholding contracts. Written contracts would be

                                              -11-
worthless if the law allowed a party to enter into a contract and then seek to avoid
performance because he or she did not read the agreement or know its contents.” Mathews
Partners, LLC v. Lemme, No. M2008-01036-COA-R3-CV, 2009 WL 3172134, at *7 (Tenn.
Ct. App. Oct. 2, 2009) (citations omitted). Thus, “[a]bsent fraud or duress, the law generally
holds parties responsible for what they sign.” Id. The record contains no indication that Mr.
Skaan alleged either fraud or duress in the signing of the Employment Agreement during his
job application process.

Mr. Skaan argued to the trial court that there were disputed issues of fact that were material
to his contention that the Employment Agreement is unconscionable. We disagree. “The
question of whether a contract or provision thereof is unconscionable is a question of law”
for the court to decide. Taylor v. Butler, 142 S.W.3d 277, 285 (Tenn. 2004). Generally, a
contract is unconscionable “where the ‘inequality of the bargain is so manifest as to shock
the judgment of a person of common sense, and where the terms are so oppressive that no
reasonable person would make them on the one hand, and no honest and fair person would
accept them on the other.’” Taylor, 142 S.W.3d at 285 (quoting Haun v. King, 690 S.W.2d
869, 872 (Tenn. Ct. App. 1984) (quoting In re Friedman, 64 A.D.2d 70, 407 N.Y.S.2d 999
(1978))). Under the circumstances of this case, the fact that Mr. Skaan lacked skills in
English is not material to the issue of unconscionability. The Employment Agreement was
signed by Mr. Skaan as part of his application to FedEx; simply put, it was part of the terms
on which FedEx would consider hiring him. Mr. Skaan agreed to the terms in order to be
considered for a position at FedEx, and FedEx hired Mr. Skaan based on his execution of the
Employment Agreement. Overall, we see nothing in these facts that are either oppressive
or shocking.

Moreover, it is well established that a contractual provision setting a time limitation for
bringing a legal action arising out of that contract is not inherently unconscionable. The
United States Supreme Court has explained: “[A] provision in a contract may validly limit,
between the parties, the time for bringing an action on such contract to a period less than that
prescribed in the general statute of limitations, provided that the shorter period itself shall be
a reasonable period.” Order of United Commercial Travelers of Am. v. Wolfe, 331 U.S.
586, 608 (1947); Harris v. Provident Life and Accident Ins. Co., No. E2007-00157-COA-
R3-CV, 2008 WL 1901110, at *9 (Tenn. Ct. App. Apr. 30, 2008) (stating that “[p]arties are
free . . . to contract for a shorter [limitation] period, unless a statute specifically forbids them
from doing so”).

FedEx cites several cases specifically holding that a contractual six-month time limitation
for filing a lawsuit is reasonable. Myers v. Western-Southern Life Ins. Co., 849 F.2d 259,
262 (6th Cir. 1988) (holding that “[t]here is nothing inherently unreasonable about a six-
month limitations period”); see Thurman v. DaimlerChrysler, Inc., 397 F.3d 352, 357 (6th

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Cir. 2004) (same); AMOCO Canada Petroleum Co. v. Lakehead Pipe Line Co., 618 F.2d
504, 506 (8th Cir. 1980) (stating that “courts almost invariably uphold contractual limitation
periods of six months or more”). Indeed, this Court has held that a contractual limitation
period of less than six months is enforceable. See Morgan v. Town of Tellico Plains, No.
E2001-02733-COA-R3-CV, 2002 WL 31429084, at *5 (Tenn. Ct. App. Oct. 30, 2002)
(upholding a 60-day contractual limitation period).

Thus, the only conclusion that may be reached from the undisputed facts in the record is that
the six-month time limitation in the Employment Agreement is enforceable. FedEx has
established an affirmative defense by undisputed facts, meeting the high standard for
summary judgment set forth in Gossett. We must agree with FedEx that Mr. Skaan’s lawsuit
was untimely, and that the trial court erred in declining to grant summary judgment in favor
of FedEx on that basis.

We may affirm the trial court’s grant of summary judgment on a different basis than the basis
upon which the trial court relied. See Hill v. Lamberth, 73 S.W.3d 131, 136 (Tenn. Ct. App.
2001). We affirm the grant of summary judgment in favor of FedEx on the basis of the six-
month contractual time limitation in the Employment Agreement, holding that Mr. Skaan’s
lawsuit is time-barred.

                                       C ONCLUSION

The decision of the trial court is reversed in part, and the judgment in favor of Appellee
FedEx is affirmed. Costs on appeal are taxed to Appellant Karim Skaan and his surety, for
which execution may issue, if necessary.




                                                    _________________________________
                                                    HOLLY M. KIRBY, JUDGE




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