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Rebecca Sue Shupe Plaintiff v. Asplundh Corporation Defendant

May 2, 2013

REBECCA SUE SHUPE PLAINTIFF
v.
ASPLUNDH CORPORATION DEFENDANT



MEMORANDUM OPINION AND ORDER

This matter is before the Court on the Motion for Summary Judgment filed by Defendant Asplundh Tree Expert Co. *fn1 (DE 5). Asplundh argues that Plaintiff Rebecca Sue Shupe's claims are barred by a six-month contractual period of limitation. Because the contractual limitation is valid and enforceable, the Court grants Defendant's Motion.

I.Background

The essential facts are not in dispute.*fn2 Shupe was an employee of Asplundh from 2008 to 2011 and worked at its Lexington, Kentucky location. (DE 1-1, Compl. ¶ 4). She was hired on August 15, 2008, as a "Permission Taker/Pre-Planner" under the supervision of her former husband. (DE 1-1, Compl. ¶¶ 4-5). At that time, she was required to sign a document titled "LIMITATION ON TIME TO FILE CLAIMS OR LAWSUITS" in exchange for her at-will employment and as a condition of her employment. (DE 5-2, Phillip Tatoian Decl., Exh. A). This waiver also carried the words "IMPORTANT NOTICE" (in two places), "READ CAREFULLY BEFORE SIGNING," and "PLEASE READ," all of which were in bold and large type. (Id.). The one-page waiver provided, in its entirety, as follows:

I agree that any claim, administrative claim, or lawsuit relating to my service with the Company 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, except as provided in a collective bargaining agreement currently in effect. I waive any statute of limitation to the contrary.

I have read and fully understand the contents of this limitation and am fully able and competent to complete it. (Id.). Shupe signed and dated the document on August 15, 2008. Her employment ended on August 17, 2011. (DE 1-1, Compl. ¶ 4).

On August 10, 2012, Shupe filed a Complaint in Fayette Circuit Court seeking damages for Asplundh's alleged violations of the Kentucky Civil Rights Act, K.R.S. § 344.010 et seq., based upon on her sex and age. (DE 1-1, Compl. ¶¶ 5, 11). Specifically, she claims that she was subjected to daily sexual harassment from her supervisor, her former husband, and that her reports of this harassment were not addressed by Asplundh. (Id. at ¶¶ 5-6). She further claims that "by implication and innuendo," Asplundh accused her of being involved in the wrongdoing that led to her former husband's termination. (Id. at ¶ 8). Asplundh removed the case to this Court based on diversity jurisdiction. Asplundh now seeks summary judgment on all of Shupe's claims against it based on the contractual waiver signed by Shupe.

II. Summary Judgment Standard

Summary judgment is appropriate "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); Pennington v. State Farm Mut. Automobile Ins. Co., 553 F.3d 447, 450 (6th Cir. 2009). The party bringing the summary judgment motion has the initial responsibility of informing the Court of the basis for its motion and identifying portions of the record that demonstrate the absence of a genuine dispute over material facts. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (196). The moving party may satisfy this burden by presenting affirmative evidence that negates an element of the non-moving party's claim or by demonstrating an absence of evidence to support the nonmoving party's case. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003) (citing Celotex Corp., 477 U.S. at 324). Once the moving party has satisfied this burden, the non-moving party must go beyond the pleadings and come forward with specific facts to demonstrate there is a genuine issue. Id.

The central issue is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251--52, 106 S.Ct. 2505 (1986). The Court must view all of the evidence in the light most favorable to the party opposing summary judgment. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

III. Analysis

Asplundh argues that summary judgment is proper because Shupe signed a waiver agreeing to bring any claims related to her employment within six months of her termination. Asplundh argues that this lawsuit, based on her employment and filed twelve months after her employment was terminated in August of 2011, is time-barred because of this waiver. In response, Shupe argues that while the signature is hers, she does not recall signing this waiver and that she never received notice of its effects.

Under Kentucky law, a contractual limitation period in an employment agreement generally is enforceable. In Kentucky, it is well settled that "parties, dealing at arm's length, may contract for a limitation shorter than that provided by statute, so long as the period provided for is a reasonable one." Prewitt v. Supreme Council of Royal Arcanum, 302 Ky. 301, 194 S.W.2d 633, 635 (1946). See also Munday v. Mayfair Diagnostic Laboratory, 831 S.W.2d 912, 914 (Ky. 1992) ("Parties are at liberty to contract for a limitation period less than the period fixed by statute."). In the employment context, federal district courts in Kentucky have found contractual limitation provisions are enforceable and dismissed untimely claims. Aytes v. Fed. Express Corp., No. 5:10-CV-230-KSF, 2012 WL 1831272, at *9 (E.D. Ky. May 18, 2012); Thornton v. W. & S. Fin. Grp. Beneflex Plan, 797 F. Supp. 2d 796, 809 (W.D. Ky. 2011); Dunn v. Gordon Food Servs. Inc., 780 F.Supp.2d 570, 576 (W.D. Ky. 2011).

Shupe essentially argues that the waiver is ineffective because she did not knowingly and voluntarily execute it. In determining whether a waiver was executed knowingly and voluntarily, a court considers: (1) plaintiff's experience, background, and education; (2) the amount of time the plaintiff had to consider whether to sign the waiver, including whether the employee had an opportunity to consult with a lawyer; (3) the clarity of the waiver; (4) consideration for the waiver; as well as (5) the totality of the circumstances.

Morrison v. Circuit City Stores, Inc., 317 F.3d 646, 668 (6th Cir. 2003) (quoting Adams v. Philip Morris, Inc., 67 F.3d 580, 583 (6th Cir. 1995)). Although Shupe acknowledges that the waiver contains her signature, she contends that she does not remember the document (or any she signed in order to obtain employment), that she was not allowed to review the documents with an attorney because she was told to sign them immediately, and that she was never provided a copy of ...


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