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Spaw v. Amcor Rigid Plastics USA, LLC

United States District Court, E.D. Kentucky, Central Division, Lexington

September 24, 2018

JEFFREY C. SPAW, Plaintiff,
v.
AMCOR RIGID PLASTICS USA, LLC, Defendant.

          MEMORANDUM OPINION AND ORDER

          JOSEPH M. HOOD SENIOR U.S. DISTRICT JUDGE.

         Plaintiff Jeffrey Spaw, a former employee of Amcor Rigid Plastics USA, LLC, brings this action alleging that he was terminated due to his age in violation of the Age Discrimination in Employment Act (“ADEA”) and the Kentucky Civil Rights Act (“KCRA”). [DE 1');">1]. Amcor moves for dismissal of the case, or in the alternative for summary judgment, asserting that Spaw's lawsuit is untimely because it violates a six-month limitations period for filing a claim or lawsuit contained in his application for employment and employment contract. [DE 1');">10]. Spaw has responded to Amcor's Motion, arguing that he complied with the limitations period because he filed a claim when he filed a charge of discrimination with the United States Equal Employment Opportunity Commission (“EEOC”) before the expiration of the six-month limitations period. [DE 1');">12]. Amcor has replied [DE 1');">13], making this matter ripe for review. The Court does not find that oral argument will assist with resolution of the issues raised by the parties at this stage. For the reasons stated herein, Defendant's Motion to Dismiss, or in the alternative, Motion for Summary Judgment [DE 1');">10] is DENIED.

         I. Factual and Procedural Background

         A. The Limitations Period in the Employment Contract and Employee Handbooks

         Jeffrey Spaw was employed by Amcor at a plant located in Nicholasville, Kentucky, beginning June 3, 201');">11');">1. [DE 1');">1, Complaint pp. 1');">1-2; DE 1');">12-1');">1, Charge of Discrimination to Kentucky Commission on Human Rights, p. 1');">1]. Prior to his employment, Spaw completed an employment application that contained a six-month limitations period for any claim or lawsuit arising out of his employment with Amcor. [DE 1');">10-1');">1, Exh. A, Employment Application, p. 8]. The contractual limitations period found on the fifth page of the application states:

In consideration for Amcor Rigid Plastic's review of my application, and employment if I am hired, I agree that any claim or lawsuit arising out of my employment with, or my application for employment with, Amcor, or any of its subsidiaries must be filed no more than six (6) months after the date of the employment action, I agree to be bound by the six (6) month period of limitations set forth herein, and I WAIVE ANY STATUTE OF LIMITATIONS TO THE CONTRARY.

[Id. (emphasis in original)]. Below the language containing the limitations period, in a box at the bottom of the same page, the application states: “I agree to the terms and conditions stated in the Job Applicant's Agreement and Certification.” [Id. (emphasis in original)]. On the same page, in a separate box directly to the right of the language concerning agreement to the terms and conditions, the application says, “I Agree, ” which is circled on Spaw's application. [Id.]. Finally, at the top of the next page, the employment application is signed by “Jeff Spaw” and dated May 24, 201');">11');">1. [Id. at 9].

         In addition to the employment application, on March 1');">12, 201');">14, Spaw signed a “Receipt of Co-Worker Handbook” acknowledgement form that stated:

Finally, I agree to be bound by the Time Limitation for Filing Claims policy as described in Section 8.8 of the Employee Handbook. I acknowledge that I am required to file a claim or lawsuit against Amcor within six (6) months after the date of the decision, event, or employment action that is the subject of my claim or lawsuit. If a claim or lawsuit is not submitted timely, my claim or lawsuit will be deemed to have been waived and forever released. I understand that the time limitation for filing claims or lawsuits arising out of an employment action may be longer than six (6) months under state or federal law, but I acknowledge that I am bound by the six (6) month time limitation for filing claims set forth in the policy and waive any time limitation for filing claims to the contrary, to the fullest extent permitted by law.

[DE 1');">10-1');">1, Exh. B, Receipt of Co-Worker Handbook form (Adopted Jan. 201');">13), p. 1');">12]. Additionally, Spaw signed a different Receipt of Co-Worker Handbook acknowledgement form on August 22, 201');">15 that contained nearly identical language regarding the contractual limitations period. [DE 1');">10-1');">1, Exh. B, Receipt of Co-Worker Handbook form (Adopted Mar. 201');">15), p. 1');">11');">1]. Finally, the time limitations policy is also outlined in section 8.8 of the Co-Worker Handbook. [DE 1');">1-1');">10, Co-Worker Handbook, p. 4');">p. 45].

         B. Spaw's Termination, Filing of Charge of Discrimination with EEOC, and Lawsuit

         After a series of reprimands, Spaw's employment with Amcor was terminated on May 8, 201');">17. [DE 1');">1, pp. 2');">p. 2-7; see DE 1');">1-2, Supervisor's Report; DE 1');">1-3, Supervisor's Report; DE 1');">1-5, Note to File; DE 1');">1-6, Note to File; DE 1');">1-7, Supervisor's Report; DE 1');">1-8, Supervisor's Report]. At the time of his termination, Spaw was fifty-four years old. [DE 1');">1, p. 2');">p. 2]. Feeling that the reprimands were frivolous, or at least that they failed to justify his termination, and believing that he was terminated based on his age, Spaw filed a charge of age-based discrimination under the ADEA with the EEOC, which was also sent to the Kentucky Commission on Human Rights (“KCHR”). [DE 1');">12-1');">1; see DE 1');">1-1');">1, EEOC Dismissal and Notice].[1');">1" name= "FN1');">1" id="FN1');">1">1');">1] Subsequently, the EEOC issued a Dismissal and Notice of Rights on January 24, 201');">18 indicating that the “EEOC [was] unable to conclude that the information establishe[d] violations of statutes” and informing Spaw that he had a right to file a lawsuit within ninety days of receiving the notice. [DE 1');">1-1');">1, p. 1');">1]. A stamp at the top of the Dismissal and Notice form indicates it was received on January 26, 201');">18. [Id.]. Then, Spaw initiated this lawsuit on April 4, 201');">18, alleging violations of the ADEA, 26 U.S.C. § 623 and the KCRA, K.R.S. § 344.040(1');">1).

         II. Standard of Review

         As an initial matter, the most appropriate procedural vehicle to determine whether the contractual limitations period bars Spaw's claim is a Motion for Summary Judgment under Fed.R.Civ.P. 56. See Engleson v. Unum Life Ins. Co. of Am., 1');">11');">1');">723 F.3d 61');">11');">1, 61');">16 (6th Cir. 201');">13) (“The district court dismissed the case pursuant to Rule 1');">12(b)(6) . . . that rule, however, is generally an inappropriate vehicle for dismissing a claim based upon a statute of limitations.” (internal citations and quotations omitted)). According to Fed.R.Civ.P. 7.1');">1(c)(1');">1), expiration of a statute of limitations is an affirmative defense upon which relief may be granted to a defendant based on a fact of set of facts other than those alleged by the plaintiff. See Fed. R. Civ. P. 7.1');">1(c); see also Campbell v. Grand Trunk Western R. Co., 238 F.3d 772, 775 (6th Cir. 2001');">1). Of course, “the defense of [statute of] limitations may be raised by a Rule 1');">12 motion to dismiss when . . . the time alleged in the complaint shows that an action was not brought within the statutory [limitations] period.” Rauch v. Day & Night Mfg. Corp., 576 F.2d 697, 702 (6th Cir. 1');">1978). Alternatively, “where the defect does not appear on the face of the complaint, the defendant can still raise [a statute of limitations defense]” that the court will treat as a motion for summary judgment. Id. Finally, Rule 1');">12(d) is instructive, providing that “[i]f, on a motion under Rule 1');">12(b)(6) . . . matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 1');">12(d); see Engleson, 723 F.3d at 61');">16.

         Additionally, Fed.R.Civ.P. 8(c) provides that a party must assert a statute of limitations defense in its responsive pleading or risk waiving the argument. There is no meaningful distinction between statutory statutes of limitations and contractual limitations periods. Courts have routinely referred to contractual limitations periods as “statutes of limitations.” See Ray v. Fedex Corp. Servs., Inc., 1');">1063');">668 F.Supp.2d 1');">1063, 1');">1066 (W.D. Tenn. 2009); Order of United Commercial ...


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