Rebecca Shupe v. Asplundh Corporation

Filing

OPINION filed : AFFIRMED the district court s order denying Shupe s motion to remand & the district court s order granting Asplundh s motion for summary judgment; decision not for publication. Eric L. Clay, Bernice Bouie Donald, Circuit Judges and Samuel H. Mays , Jr., U.S. District Judge for the Western District of Tennessee, sitting by designation.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0382n.06
No. 13-5747

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Rebecca Shupe,

)
)
)
)
)
)
)
)
)

Plaintiff-Appellant,
v.
Asplundh Tree Expert Company,
Defendant-Appellee.

BEFORE:

granting

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
KENTUCKY

OPINION

CLAY and DONALD, Circuit Judges; MAYS, District Judge.*

Samuel
Rebecca

May 22, 2014
DEBORAH S. HUNT, Clerk

H.

Shupe

Mays,

District

(“Shupe”)

summary

judgment

Judge.

appeals
to

the

her

Plaintiff-Appellant

district

former

court’s

employer,

order

Defendant-

Appellee Asplundh Tree Expert Company (“Asplundh”) in her suit
for

sexual

termination.

harassment,

gender

discrimination,

and

wrongful

For the reasons below, we AFFIRM the judgment of

the district court.
I.
Asplundh hired Shupe to work as a Permission Taker/PrePlanner in its Lexington, Kentucky offices in August 2008.
*

As a

The Honorable Samuel H. Mays, Jr., United States District Judge for the
Western District of Tennessee, sitting by designation.

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Rebecca Shupe v. Asplundh Tree Expert Company
condition to her at-will employment, Shupe was a required to
sign several forms, including

a “Limitation on Time to File

Claims or Lawsuits” (the “Waiver”).

Shupe signed and dated the

Waiver on August 15, 2008.
The single-page Waiver provides that:
I agree that any claim, administrative claim or
lawsuit relating to my service with [Asplundh] 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 may be
provided
otherwise
in
a
collective
bargaining
agreement currently in effect. I waive any statute of
limitations to the contrary.
I have read and understand the contents of this
limitation and am fully able and competent to complete
it.
The words “IMPORTANT NOTICE” in larger font appear at the
top and bottom of the Waiver.

The words “LIMITATION ON TIME TO

FILE CLAIMS OR LAWSUITS” and “READ CAREFULLY BEFORE SIGNING”
also appear at the top of the Waiver.

The words “PLEASE READ”

in larger font appear at the bottom of the Waiver.
Shupe

continued

to

work

for

Asplundh

until

she

was

terminated in August 2011. Shupe claims that she was wrongfully
terminated in retaliation for complaining of sexual harassment
and gender discrimination by her supervisor at Asplundh, who was
also her ex-husband.
Shupe filed a complaint against Asplundh in the Circuit
Court of Fayette County, Kentucky, on August 10, 2012.
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The

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complaint was filed more than six months after she had been
terminated.

Shupe

alleged

that

Asplundh

had

violated

the

Kentucky Civil Rights Act, K.R.S. §§ 344.010, et seq., when she
was (1) subjected to sexual harassment by her supervisor, her
former husband; (2) terminated based on her gender and age; and
(3) terminated in retaliation for complaining about her former
husband’s actions.
When

Asplundh

removed

the

action

to

the

United

States

District Court for the Eastern District of Kentucky, Shupe filed
a motion to remand the case to the state court on the basis that
her claims did not meet the minimum amount in controversy for
diversity jurisdiction.

The district court disagreed and denied

her motion to remand.
Asplundh then filed a motion for summary judgment, arguing
that

Shupe’s

complaint,

filed

almost

a

year

after

her

termination, was barred by the six-month limitations period in
the Waiver she had signed as a condition of her employment.
The district court granted the motion and Shupe filed this
timely appeal.

On appeal, Shupe argues (1) that the district

court lacked subject matter jurisdiction because her claims did
not

meet

the

minimum

amount

in

controversy

requirement

for

diversity jurisdiction, and (2) that her waiver concerning the
six-month limitations period was invalid and unenforceable.

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II.
Under 28 U.S.C. § 1291, this Court has “jurisdiction of
appeals from all final decisions of the district courts of the
United States.”

Because the district court’s grant of summary

judgment for Asplundh disposed of all issues relevant to this
appeal, this Court has jurisdiction.
A.

Diversity Jurisdiction and the Minimum
Amount-In-Controversy Requirement

The denial of a motion to remand for lack of subject matter
jurisdiction is reviewed de novo.

Music v. Arrowood Indem. Co.,

632 F.3d 284, 286 (6th Cir. 2011) (internal citation omitted).
“If removal of a civil action is sought on the basis of the
jurisdiction

conferred

by

[28

U.S.C.

§

1332(a)],

the

sum

demanded in good faith in the initial pleading shall be deemed
to

be

the

amount

1446(c)(2).

A

allegations

in

controversy.

in

controversy

court
the

must

.

conduct

complaint

to

.
a

.

.”

“fair

determine

28

U.S.C.

reading”
the

of

amount

§

the
in

Hayes v. Equitable Energy Res. Co., 266 F.3d 560,

573 (6th Cir. 2001).
“[T]he

notice

of

removal

may

assert

the

amount

in

controversy if the initial pleading seeks . . . (ii) a money
judgment, but the State practice either does not permit demand
for a specific sum or permits recovery of damages in excess of
the amount demanded . . . .”

28 U.S.C. § 1446(c)(2)(A)(ii).

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Kentucky has such a practice.

Kentucky Rule of Civil Procedure

8.01(2) states that, “In any action for unliquidated damages the
prayer for damages in any pleading shall not recite any sum as
alleged damages other than an allegation that damages are in
excess of any minimum dollar amount necessary to establish the
jurisdiction of the court . . . .”
A removal action is only proper based on the amount in
controversy

asserted

in

the

removal

notice

“if

the

district

court finds, by the preponderance of the evidence, that the
amount in controversy exceeds the amount specified in [28 U.S.C.
§ 1332(a)].”

28 U.S.C. § 1446(c)(2)(B).

This Court has held

that federal jurisdiction in a diversity case is determined at
the time of removal.

Ahearn v. Charter Township of Bloomfield,

100 F.3d 451, 453 (6th Cir. 1996) (internal citations omitted).
“The party seeking removal bears the burden of demonstrating
that the district court has original jurisdiction.”

Eastman v.

Marine Mech. Corp., 438 F.3d 544, 549 (6th Cir. 2006) (internal
citations

omitted).

“The

party

requesting

removal

must

set

forth, in the notice of removal, specific facts supporting the
assertion

that

the

amount

required by statute.”
848, 850
50 F.3d

in

873

exceeds

the

amount

Nat’l Nail Corp. v. Moore, 139 F.Supp.2d

(W.D. Mich. 2001)
871,

controversy

(10th

(citing

Cir.

Laughlin v. Kmart Corp.,

1995)).

“[B]ecause

lack

of

jurisdiction would make any decree in the case void and the
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continuation of litigation in federal court futile, the removal
statute should be strictly construed and all doubts resolved in
favor of remand.”

Eastman, 438 F.3d at 549-50 (alteration in

original) (internal citations omitted).
A

successful

claim

under

the

Kentucky

entitles a plaintiff to “actual damages.”
“Actual

damage

is

most

appropriately

Civil

Rights

Act

K.R.S. § 344.450.

defined

as

all

those

damages directly and naturally resulting, in the ordinary course
of events, from the injury in question.” Mitchell v. Seaboard
Sys. R.R., 883 F.2d 451, 453 (6th Cir. 1989) (internal citation
omitted).

Actual damages include broader relief than Title VII.

Id. at 454 (internal citation omitted).
back

pay,

distress,
Aetna

front

pay,

lost

embarrassment,

Life

Ins.

Co.,

benefits,

and

attorney’s

481

F.3d

369,

Actual damages include
humiliation,
fees.
376

emotional

Williamson

(6th

Cir.

v.

2007);

Mitchell, 883 F.2d at 452-53; Meyers v. Chapman Printing Co.,
Inc.,

840

S.W.2d

814,

817

(Ky.

1992)

(internal

citation

omitted).
It is appropriate to consider back pay beyond the time of
removal

when

a

plaintiff

includes future accruals.

seeks

an

award

for

back

pay

that

Weaver v. A.T.&T. Corp., 2010 WL

2521462, at *2 (W.D. Ky. June 18, 2010) (citing Gafford v. Gen.
Elec., 997 F.2d 150, 160-61 (6th Cir. 1993)).

There is no

statutory limit on damages for “emotional distress” under the
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Kentucky Civil Rights Act.

Childers Oil Co., Inc. v. Adkins,

256 S.W.3d 19, 28 (Ky. 2008).
Claims

for

punitive

amount-in-controversy,

damages

“unless

should

it

is

be

included

apparent

certainty that such cannot be recovered.”

to

in
a

the

legal

Hayes v. Equitable

Energy Res. Co., 266 F.3d 560, 572 (6th Cir. 2001) (internal
citation omitted).
Kentucky

Civil

Punitive damages are not available under the

Rights

Act.

Kentucky

Dep’t

of

Corr.

v.

McCullough, 123 S.W.3d 130, 139-40 (Ky. 2003).
Punitive
acted

grossly

damages

are

available

negligently

toward

against

a

a

defendant

plaintiff.

Kinney

Butcher, 131 S.W.3d 357, 358-59 (Ky. Ct. App. 2004).

who
v.

“[T]he

prevailing understanding defines gross negligence as a ‘wanton
or reckless disregard for the safety of other persons.’”

Id.

“It is not necessary that the jury find the defendant to have
acted with express malice; rather, it is possible that a certain
course

of

conduct

can

be

so

outrageous

implied from the facts of the situation.”

that
Id.

malice

can

be

Punitive damages

must be proven by clear and convincing evidence under Kentucky
law.

K.R.S. § 411.184(2).
B. The District Court Properly Determined that
Plaintiff’s Claims Exceeded $75,000.00.
In

8.01(2),

compliance
Shupe’s

with

Kentucky

complaint

does
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Rule
not

of

Civil

state

an

Procedure
amount

in

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controversy.

She alleges that her damages exceed the minimum

amount necessary to confer jurisdiction on the Fayette County
Circuit

Court.

The

minimum

amount

necessary

to

confer

jurisdiction in Fayette County is $5,000.00.
Shupe’s

complaint

“embarrassment,
distress,

alleges

physical

requiring

that

she

and

suffering,

pain

[her]

to

incur

suffered

medical

damages

and

for

emotional

treatment

and

expenses for same” as a result of Asplundh’s failure to stop the
sexual harassment to which she was subjected.

The complaint

alleges that Shupe is entitled to damages for “loss of wages and
employment benefits, and that she continues and will continue to
suffer said damages . . .” due to her wrongful termination.
Shupe
knowing

alleges

of

the

that

Asplundh

wrongful

conduct

concerning Defendant’s property.”
“grossly

negligent,

“falsely
of

accus[ed]

Defendant’s

her

of

supervisor

That conduct was allegedly

outrageous,

extreme,

intentional,

[and]

designed to hold her in false light to others within the company
and

done

with

such

reckless

disregard

entitling her to [p]unitive damages.”

to

the

Plaintiff,

Shupe alleges that she is

entitled to attorney’s fees.
Defendant-Appellee’s Notice of Removal states the following
specific facts about the amount in controversy.
off in August 2011.

Shupe was laid

She was working approximately 42.5 hours a

week when she was terminated.

Her pay rate was $15.00 an hour.
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Shupe

could

have

earned

approximately

$34,123.00

if

she

had

remained employed from August 2011, to September 10, 2012, when
the action was removed.
Asplundh alleges that trial would not occur until September
2013.

Shupe would then be seeking more than two years of back

pay.

Two years of unmitigated back pay would be approximately

$68,250.00.

Asplundh alleges that this figure and “Plaintiff’s

request for punitive damages, damages for ‘actual damages’ of
emotional

distress,

humiliation,

or

embarrassment”

and

attorney’s fees total more than $75,000.00.
The

district

court

agreed

with

Asplundh’s

damages

calculation and found by a preponderance of the evidence that
Shupe’s claim for damages exceeded $75,000.00.

The calculation

of Shupe’s backpay appropriately included accruals through the
projected trial date, because she alleged that “she continues
and will continue to suffer” damage from her loss of wages.

See

Weaver, 2010 WL 2521462, at *2 (citing Gafford, 997 F.2d at 16061) (“[Plaintiff] seeks back pay ‘for wages and other monetary
damages incurred and to be incurred in the future.’ . . . Thus,
because at the time of removal [Plaintiff] sought an award for
back pay that included future accruals, it is appropriate to
consider back pay beyond the time of removal.”)

Shupe’s damages

for humiliation, embarrassment, and attorney’s fees would be in
addition to that amount.
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Shupe alleges that she is entitled to punitive damages for
Asplundh’s

grossly

negligent

conduct.

Although

she

is

not

entitled to punitive damages under the Kentucky Civil Rights
Act, a fair reading of Shupe’s complaint demonstrates that she
brings additional claims for gross negligence.

Shupe alleges

that Asplundh’s conduct was outrageous and extreme.

If Shupe

presented evidence of that conduct, she could show that Asplundh
was grossly negligent.

A plaintiff must prove punitive damages

by clear and convincing evidence.

K.R.S. § 411.184(2).

That

standard does not amount to a legal certainty.
Evaluating Shupe’s request for damages, it is more likely
than not that the amount in controversy is at least $75,000.00.
The district court did not err in its calculation of the amount
in controversy.
C. Neither the Pre-Suit Demand Letter nor the
Subsequent Affidavit Changes Our Analysis
Shupe relies on her pre-suit settlement demand letter to
show that she does not seek more than $75,000.00 in damages.
The letter states that “Ms. Shupe will waive all claims and
causes

of

actions

arising

out

of

this

wrongful

termination

matter against Asplundh Company, in exchange for the Company
paying Ms. Shupe her salary through August 31, 2012, back-dated
to her date of termination, commencing immediately.”

The letter

states that Shupe will “need to be reimbursed for the value of
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the company’s medical, dental, and other insurance benefits she
did

not

receive.”

Alternatively,

“Ms.

Shupe

will

consider

taking a lump sum cash payment in the sum of $60,000.00 . . . .”
“It

is

settled

that,

in

ascertaining

the

amount

in

controversy for jurisdictional purposes, where the law gives the
rule,

the

legal

causes

of

demand, must be regarded.”

action,

and

not

the

plaintiff’s

Smith v. Phillips & Jordan, Inc.,

2011 WL 250435, at *2 (E.D. Ky. January 24, 2011) (internal
quotations

and

citations

omitted).

“[A]

settlement

demand

letter is ‘some evidence’ regarding the amount in controversy.”
Id. (emphasis in original) (internal citation omitted)

“[T]he

fact that Plaintiff attempted to settle the claim for less than
the amount in controversy is not probative of the true amount
because litigants often settle claims for less than the amount
in controversy.”

Hollon v. Consumer Plumbing Recovery Ctr., 417

F.Supp.2d 849, 854 (E.D. Ky. 2006) (internal citations omitted).
“[A]n

offer

falling

just

below

the

jurisdictional

threshold

tends to suggest that the amount in controversy exceeds this
threshold, especially since parties ‘routinely offer and accept
settlement amounts significantly below the total amount placed
into controversy . . . .’”

Osborne v. Pinsonneault, 2007 WL

710131, at *2 (W.D. Ky. March 2, 2007) (quoting Sayre v. Potts,
32 F.Supp.2d 881, 888 (S.D.W. Va. 1999).

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Shupe’s settlement demand letter requested a lump sum of
$60,000.00 to cover her lost pay and benefits.

That falls below

the federal jurisdictional limit of $75,000.00.

It does not

take into account the request in her complaint for damages for
embarrassment,

humiliation,

or

emotional

punitive damages or attorney’s fees.

distress,

or

for

Shupe’s settlement demand

letter is not inconsistent with the district court’s finding
that

her

claims

meet

the

federal

amount-in-controversy

requirement.
Shupe also relies on her post-suit affidavit to limit the
amount of damages she seeks.

Shupe states that, “I have never

believed or been led to believe that I could recover or receive
more than $75,000 . . . by asserting this lawsuit.”
states

that,

“I

have

never

demanded,

claimed,

She also

requested

or

otherwise indicated in any way to any person that I seek or
desire more than $75,000 . . . to settle or compromise this
lawsuit.”

Finally, Shupe states that, “I have never sought more

than $75,000 . . . for any and all claims which could be, or
have been raised in this lawsuit.”
“[A] post-removal stipulation [or affidavit] reducing the
amount in controversy to below the jurisdictional limit does not
require remand to the state court.”
Inc.,

230

F.3d

868,

872

(6th

Cir.

Rogers v. Wal-Mart Stores,
2000).

A

plaintiff

may

stipulate to a claim less than the federal jurisdictional amount
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“where

a

plaintiff

provides

specific

information

about

amount in controversy for the first time . . . .”

the

Egan v.

Premier Scales & Sys., 237 F.Supp.2d 774, 778 (W.D. Ky. 2002).
That is a clarification rather than a reduction of the amount in
controversy.

Id. at 778.

“[O]nly unequivocal statement[s] and

stipulation[s] limiting damages will serve this purpose.”

Id.

An actual limitation on the amount of a potential judgment “is
essential to any such stipulation.”

Id.

“To merely say that

one will not accept money in excess of a certain amount limits
neither the judgment nor the demand.”

Id.

The district court in Egan found that the statement that
the

plaintiff

“will

accept

a

sum

of

$74,999

exclusive

of

interest and costs as a judgment regardless of what any court
finds

in

excess

stipulation.

of

that

amount”

Id. at 775, 778.

was

not

an

unequivocal

The same district court found

that the statement that the plaintiff “hereby certifies to the
Court that he will not be making a claim nor pursuing damages in
amount

equal

to

or

exceeding

the

sum

of

unequivocal stipulation limiting damages.

$75,000.00”

was

an

Van Etten v. Boston

Scientific Corp., 2009 WL 3485909, at *1 (W.D. Ky. Oct. 23,
2009).

That district court did find that the statement that the

plaintiff “will not seek or accept an award of damages in excess
of $74,999.00 inclusive of punitive damages, attorney’s fees,
and the fair value of any injunctive relief” was an unequivocal
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stipulation

limiting

damages.

Spence

v.

Centerplate,

931

F.Supp.2d 779, 780, 782 (W.D. Ky. 2013) (emphasis in original).
Counsel for Shupe argued that there was no guidance about
the words a post-suit limitation on damages should contain when
Shupe filed her affidavit.

That argument is not well taken.

Both Egan and Van Etten were decided before Shupe filed her
complaint in Kentucky court.
post-suit
None

affidavit

is

of

her

statements

judgment

she

would

backward looking.
in

her

case

at

an

None of the statements in Shupe’s
unequivocal

is

an

actual

receive.

All

limitation
limit

of

on

Shupe’s

on

the

damages.
potential

statements

are

She does not mention the potential judgment
all.

Her

post-suit

affidavit

is

not

an

unequivocal statement limiting her damages to an amount below
the jurisdictional limit. The district court did not err in
denying Shupe’s motion for remand.
III.
We now turn to the merits of the district court’s summary
judgment order.
is

reviewed

de

The granting of a motion for summary judgment
novo.

Tysinger

v.

Police

Dep’t

of

City

of

Zanesville, 463 F.3d 569, 572 (6th Cir. 2006).
Waivers

of

statutes

of

limitations

enforceable under Kentucky law.

are

valid

and

Dunn v. Gordon Food Servs.,

Inc., 780 F.Supp.2d 570, 573 (W.D. Ky. 2011) (citing Edmondson
v. Pa. Nat. Mut. Cas. Ins. Co., 781 S.W.2d 753, 755-56 (Ky.
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1989)).

“[T]his

Court

inherently

unreasonable

contained

in

an

DaimlerChrysler,

determined

about

a

six-month

employment

Inc.,

397

that

F.3d

352,

has

held

reasonable.
474 S.W.2d
Shupe

does

that

six-month

nothing
period

Thurman

357

(6th

Cir.

v.
2004)

Kentucky’s highest

limitations

period

is

Ashland Fin. Co. v. Hartford Acc. & Indem. Co.,
364,
not

366

(Ky.

dispute

limitations waiver.
issue.

a

is

limitations

agreement.”

(internal quotations and citation omitted).
court

there

1971)

the

(internal

enforceability

citation
of

a

omitted).

statute-of-

She admits that she signed the Waiver at

Shupe argues that her acceptance of the Waiver was not

“knowing and voluntary.”
“In evaluating whether a [waiver] has been knowingly and
voluntarily

executed,

we

look

to

(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)
(internal quotations and citation omitted).
The record contains no evidence about Shupe’s education or
experience.

Courts have upheld statute-of-limitations waivers

when the plaintiff had only a high school education.
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No. 13-5747
Rebecca Shupe v. Asplundh Tree Expert Company
Ohio Dept. of Admin. Servs., 278 F. App’x 514, 518 (6th Cir.
2008); Dunn, 780 F.Supp.2d at 577 (internal citations omitted).
Without more, this factor is neutral.
Shupe has stated that she “was presented several documents
and directed to sign them, which were not explained to me nor
did I understand what or why I was signing said documents other
than I was told I had to sign said documents in order to obtain
employment with the Defendant.”

(Shupe Aff. ¶ 2.)

Shupe stated

that, “I was not allowed an opportunity to have [the Waiver] or
other

documents

I

was

forced

to

sign

in

order

to

employ[ment] reviewed by an attorney of my choosing.”
3.)

obtain
(Id. ¶

Shupe stated that, “I was never provided a copy of the

Waiver or any other document I was required to sign . . . .”
(Id. ¶ 4.)
There is no evidence that Shupe asked for more time to
complete the Waiver or to speak to an attorney.

There is no

evidence that Shupe indicated she did not understand the terms
of the Waiver when she signed it.

There is no evidence that

Shupe asked for a copy of the Waiver after she signed it.

There

is no evidence of fraud when Shupe signed the Waiver.
“In general, a person who has the opportunity to read a
contract, but does not do so and signs the agreement, is bound
to the contract terms unless there was some fraud in the process
of obtaining his signature.”

Aytes v. Federal Exp. Corp., 2012
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Filed: 05/22/2014

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No. 13-5747
Rebecca Shupe v. Asplundh Tree Expert Company
WL 1831272, at *13 (E.D. Ky. May 18, 2012) (citing Cline v.
Allis-Chalmers Corp., 690 S.W.2d 764, 766 (Ky. 1985)).

This

Court

seek

has

held

that

a

plaintiff

“had

an

obligation

to

assistance before she signed if she felt she did not understand
the application.”
461

(6th

Cir.

Reid v. Sears, Roebuck and Co., 790 F.2d 453,

1986).

This

Court

has

upheld

a

statute-of-

limitations waiver when “[t]he [district] court also noted that
despite [the plaintiff’s] claim that he was given only a few
minutes to decide whether or not to sign the waiver, there was
no indication that he had requested more time to consider the
situation or that he was pressured into signing the agreement.”
Sako, 278 F. App’x at 519.
[the

plaintiff’s]

.

.

“Even assuming the verification of

.

inability

to

consult

an

attorney,

standing alone these facts do not show lack of knowledge [or]
voluntariness.”
any

evidence

Dunn, 780 F.Supp.2d at 577.

that

Shupe

requested

more

In the absence of

time

to

review

the

Waiver, indicated she did not understand the Waiver, or asked
for time to have an attorney review the Waiver, this factor
weighs

in

favor

of

Shupe’s

having

knowingly

and

voluntarily

executed the Waiver.
The district court found that “[t]he waiver is quite clear,
both in content and in form.

The font directing the reader’s

attention is bold and capitalized, and the font containing the
actual language of the waiver is clear from a normal reading
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Rebecca Shupe v. Asplundh Tree Expert Company
distance.

The language itself is relatively plain and clear.”

(Order on Mot. Summ. Judg. at 4, ECF No. 16.)

Shupe does not

dispute that the font is appropriate and that the language is
clear and unambiguous.
The Eastern District of Kentucky has upheld a waiver that
stated: “To the extent the law allows an employee to bring legal
action against Federal Express, 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.”

Aytes,

2012

WL

1831272,

at

*12.

The

language

Asplundh’s Waiver is similar to the language in Aytes.
factor

weighs

in

favor

of

Shupe’s

knowing

and

in

This

voluntary

execution of the Waiver.
Shupe does not dispute that there was consideration for
Asplundh’s

Waiver.

Asplundh

provided

employed Shupe and paid her wages.

consideration

when

it

Dunn, 780 F.Supp.2d at 574.

This factor weighs in favor of Shupe’s knowing and voluntary
execution of the Waiver.
Shupe argues that the cases in which courts have upheld
statute-of-limitations

waivers

have

turned

on

“the

negative

circumstances presented in [her] case in isolation, as opposed
to a combination of all of them in one case . . . .”
contrary,
waiver

the

where

court
the

in

Dunn

plaintiff

upheld
allegedly

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a

To the

statute-of-limitations
“received

only

a

high

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Rebecca Shupe v. Asplundh Tree Expert Company
school

education,

Application,

and

was
was

signing [the waiver].”

given

insufficient

unable

to

consult

time
an

780 F.Supp.2d at 577.

to

review

attorney

the

before

Shupe’s argument

is not well taken.
Shupe also relies on this Court’s decision in Walker v.
Ryan’s Family Steak Houses, Inc., 400 F.3d 370 (6th Cir. 2005).
This Court held that an arbitration agreement was not knowingly
and voluntarily signed when:
Plaintiffs typically were hired on the spot after a
brief interview, during which the hiring manager
hurriedly presented them with various documents that
they were instructed to sign in order to be considered
for a job.
According to one . . . plaintiff, Ryan’s
managers would place an ‘x’ in every spot an applicant
is required to sign, and applicants would be told to
sign every ‘x’ without any explanation.
The hiring
manager usually would not mention the arbitration
agreement, and Plaintiffs had no opportunity to take
the Arbitration Agreement home or consult an attorney,
even though the agreement purports to afford them that
right. . . . Plaintiffs were given no option to revoke
their consent to the Arbitration Agreement.
Id. at 381-82.
Walker is distinguishable for three reasons.
an

arbitration

judicial forum.

agreement

involves

Id. at 382.

The

waiver

in

substantive

right

to

a

The shorter statute of limitations

here involves a procedural right.
*13.

a

The waiver of

Walker

was

Aytes, 2012 WL 1831272, at
contained

in

a

twelve-page

application packet that contained five pages of single-spaced
rules

and

procedures

governing
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the

arbitration

procedure.

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Walker, 400 F.3d at 373.

The Waiver in this case was a single

page and was clear and direct.
provided

misleading

agreement

meant.

The management in Walker also

information
Id.

at

about

382.

what

Shupe

has

the
not

arbitration
provided

any

evidence that Asplundh attempted to mislead her in any way.
Walker is not controlling or persuasive in this case.
Shupe also argues that Asplundh should have provided her
with a copy of the Waiver when she was terminated in August
2011.

An employer is not required to provide an employee with

notice

of

a

termination.

statute-of-limitations

waiver

at

the

time

of

“One who signs a contract cannot seek to avoid it

on the basis that he did not read it or that he supposed it was
different in its terms.”
526,

533

(6th

Cir.

Mannix v. Cnty. of Monroe, 348 F.3d

2003).

This

factor

weighs

in

favor

of

Shupe’s knowing and voluntary execution of the Waiver.
The

district

knowingly

and

court

did

voluntarily

err

signed

material

the

deciding

Waiver.

There

did

not

validity

is

err

in

of

no

Shupe did not bring her claims within six months of her
court

the

Shupe

Waiver.

district

about

that

dispute

The

fact

in

genuine

termination.

of

not

the

granting

Asplundh’s motion for summary judgment.
IV.
The

district

controversy

court

exceeded

properly

$75,000.00.
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found
The

that

district

the

amount

court’s

in

order

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Rebecca Shupe v. Asplundh Tree Expert Company
denying Shupe’s motion to remand is

AFFIRMED.

The district

court properly found that Shupe knowingly and voluntarily signed
the

six-month

statute-of-limitations

waiver.

The

district

court’s order granting Asplundh’s motion for summary judgment is
AFFIRMED.

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