            NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                        File Name: 04a0114n.06
                       Filed: November 19, 2004

                                       No. 02-2474

                      UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT


CONNIE THURMAN; JOHN THURMAN,

             Plaintiffs-Appellants,                   ON APPEAL FROM THE
                                                      UNITED STATES DISTRICT
v.                                                    COURT FOR THE EASTERN
                                                      DISTRICT OF MICHIGAN
DAIMLERCHRYSLER, INC.,
JAMES STANFORD PITTMAN,
jointly and severally,

           Defendants-Appellees.
______________________________________/

BEFORE: MARTIN, and ROGERS, Circuit Judges; BELL, District Judge.*

      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



      *
      The Honorable Robert Holmes Bell, Chief United States District Judge for the
Western District of Michigan, sitting by designation.
No. 02-2474                              2
Thurman v. DaimlerChrysler Inc. & Pittman

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.
No. 02-2474                              3
Thurman v. DaimlerChrysler Inc. & Pittman

(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.

       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
No. 02-2474                              4
Thurman v. DaimlerChrysler Inc. & Pittman

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.
No. 02-2474                              5
Thurman v. DaimlerChrysler Inc. & Pittman

                                              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 asserts 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
No. 02-2474                              6
Thurman v. DaimlerChrysler Inc. & Pittman

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 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.
No. 02-2474                              7
Thurman v. DaimlerChrysler Inc. & Pittman

       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,
No. 02-2474                              8
Thurman v. DaimlerChrysler Inc. & Pittman

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 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


       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                              9
Thurman v. DaimlerChrysler Inc. & Pittman

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
No. 02-2474                             10
Thurman v. DaimlerChrysler Inc. & Pittman

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,
No. 02-2474                             11
Thurman v. DaimlerChrysler Inc. & Pittman

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 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.
No. 02-2474                             12
Thurman v. DaimlerChrysler Inc. & Pittman

       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
No. 02-2474                             13
Thurman v. DaimlerChrysler Inc. & Pittman

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.

       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-
No. 02-2474                             14
Thurman v. DaimlerChrysler Inc. & Pittman

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.
