Higgins v. International Union, Security, Police, Fire Professionals

CLARK v DAIMLERCHRYSLER CORPORATION Docket No. 252765. Submitted July 7, 2005, at Detroit. Decided September 13, 2005, at 9:00 a.m. Leave to appeal sought. Robert W Clark brought an action in the Macomb Circuit Court against DaimlerChrysler Corporation, alleging that the defendant discharged him from employment on the basis of his age in violation of the Civil Rights Act, MCL 37.2101 et seq. The court, Edward A. Servitto, Jr., J., granted the defendant summary disposition after determining that the plaintiffs claim was time-barred by a provision in the plaintiffs employment application requiring that any action relating to the plaintiffs employment be brought within six months. The plaintiff appealed. The Court of Appeals held-. 1. The trial court did not err by applying the shortened six-month period of limitations found in the plaintiffs employment contract. Under Rory v Continental Ins Co, 473 Mich 457 (2005), a contractually modified period of limitations is not analyzed for reasonableness, but is to be enforced as written unless it is contrary to law or public policy, or is otherwise unenforceable under a recognized contract defense. No statute explicitly prohibits the contractual modification of limitations periods in the employment context. Nor does the modification violate public policy. 2. Rory precludes considering whether a contract is one of adhesion when determining whether a modified limitations period is unconscionable. The limitations provision is not unconscionable because neither procedural nor substantive unconscionability is present. Procedural unconscionability exists when the weaker party had no realistic alternative to accepting the contract term. Despite unequal bargaining power, however, the plaintiff has not shown that he had no realistic alternative to employment with the defendant. Substantive unconscionability exists when the challenged provision is not substantively reasonable, such that the inequity of the contract term is so extreme as to shock the conscience. The six-month period of limitations, however, is neither inherently unreasonably nor so extreme that it shocks the conscience. 3. While the plaintiff contended that he did not knowingly waive the three-year period of limitations applicable to civil rights claims, one who signs an agreement is presumed, in the absence of coercion, mistake, or fraud, to know the nature of the document and to understand its contents, even'if he or she has not read the agreement. Affirmed. Neff, J., dissenting, would hold that the provision for the shortened period of limitations is unconscionable and violates public policy and is, therefore, unenforceable under the circumstances of this case. With regard to procedural unconscionability, the plaintiff and the defendant were not dealing at arm’s length when negotiating the contract. The provision was in the defendant’s preprinted application form, which the plaintiff filled out five months before he was hired. The plaintiff clearly had no realistic alternative to the contractually shortened limitations period, which was not a bargained-for term. An applicant would be aware that objecting to the provision at the time of application might thwart a job offer, and it is unlikely that an applicant would recall the provision or recognize its significance when hired much later. Unlike subsequent employment applications used by the defendant, this application did not indicate that the applicant agreed to forgo important legal rights. Thus, there was an absence of meaningful choice, and the provision took advantage of or surprised the plaintiff. The provision was also substantively unreasonable given the three-year period of limitations applicable by statute. The shortened limitations period places the plaintiff at a severe disadvantage and permits the defendant to wholly avoid employee claims. Finally, the manner in which the defendant imposed the shortened limitations period offends public policy. In cases such as a civil rights action, six months may be insufficient to pursue a claim related to a job loss at a time when the employee’s primary concern is maintaining a livelihood. The shortened period is extreme and unnecessary to protect employers from stale claims. 1. Contracts — Employment Contracts — Contractual Periods of Limitations. An unambiguous provision in an employment contract providing for a period of limitations shorter than that provided by statute for a lawsuit relating to employment must be enforced as written unless it is contrary to law or public policy or is otherwise unenforceable under a recognized traditional contract defense, such as duress, waiver, estoppel, fraud, or unconscionability. 2. Contracts — Defenses — Unconscionability. Both procedural and substantive unconscionabihty must be present for a contract or contract provision to be considered unconscionable and thus unenforceable; procedural unconscionability exists when the weaker party had no realistic alternative to accepting a provision; substantive unconscionabihty exists when a challenged provision is not substantively reasonable, such that the inequity of the provision is so extreme as to shock the conscience. 3. Contracts — Defenses — Knowledge of Terms. One who signs an agreement is presumed, in the absence of coercion, mistake, or fraud, to know the nature of the document and to understand its contents, even if he or she has not read the agreement. Pitt, Dowty, McGehee, Mirer & Palmer, PC. (by Michael L. Pitt and Beth M. Rivers), for the plaintiff. Cattel, Tuyn & Rudzewicz, PLLC (by Thomas A. Cattel, Michelle J. LeBeau, and Debra A. Colby), for the defendant. Before: Neff, EJ., and SMOLENSK and TALBOT, JJ. SMOLENSK, J. In this wrongful termination case, plaintiff appeals as of right the trial court’s order granting summary disposition for defendant. We affirm. Plaintiff asserts that he was approached sometime in 2001 and asked to accept early retirement as part of a salaried work force reduction. When plaintiff declined to retire, he claims he was told that his position would likely be eliminated and that retirement was in his best interest. Plaintiff accepted early retirement and completed his last day of work on August 31, 2001. Plaintiff filed this action on September 8, 2003, alleging that defendant had discharged him on the basis of age in violation of the Civil Rights Act, MCL 37.2101 et seq. Defendant moved for summary disposition pursuant to MCR 2.116(C)(7), arguing that plaintiffs claim was time-barred by a provision in plaintiffs employment application. The relevant portion stated: I agree that any claim or lawsuit relating to my service with [defendant] 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. The trial court applied the shortened six-month period of limitations to plaintiffs claim and granted defendant’s motion. We review de novo a trial court’s decision on a motion for summary disposition under MCR 2.116(C)(7). DiPonio Constr Co, Inc v Rosati Masonry Co, Inc, 246 Mich App 43, 46; 631 NW2d 59 (2001). The proper interpretation of a contract is a matter of law that this Court reviews de novo. DaimlerChrysler Corp v G-Tech Professional Staffing, Inc, 260 Mich App 183, 184-185; 678 NW2d 647 (2003). Plaintiff contends that the trial court erred by applying the shortened six-month limitations provision of plaintiffs employment contract. We disagree. Until recently, the general rule was to uphold contract terms limiting the time to bring suit, provided the limitation was reasonable. See Herweyer v Clark Hwy Services, Inc, 455 Mich 14, 20; 564 NW2d 857 (1997), citing Camelot Excavating Co, Inc v St Paul Fire & Marine Ins Co, 410 Mich 118, 127; 301 NW2d 275 (1981). However, in Rory v Continental Ins Co, 473 Mich 457, 470; 703 NW2d 23 (2005), our Supreme Court overruled the reasonableness rule followed by Camelot and its progeny. The Court held that an unambiguous contractual provision providing for a shortened period of limitations is to be enforced as written unless the provision would violate law or public policy. A mere judicial assessment of “reasonableness” is an invalid basis upon which to refuse to enforce contractual provisions. Only recognized traditional contract defenses may be used to avoid the enforcement of the contract provision. [Id. 3 The contractually modified period of limitations in question is not ambiguous; therefore, under Rory, we are compelled to enforce it as written unless it is contrary to law or public policy, or is otherwise unenforceable under recognized traditional contract defenses. Because there are no statutes explicitly prohibiting the contractual modification of limitations periods in the employment context, the contract provision is not contrary to law. Id. at 472. Furthermore, the Court in Rory clarified that public policy must be clearly rooted in the law. Id. at 471. Hence, this Court “must look to ‘policies that, in fact, have been adopted by the public through our various legal processes, and are reflected in our state and federal constitutions, our statutes, and the common law.’ ” Id., quoting Terrien v Zwit, 467 Mich 56, 66-67; 648 NW2d 602 (2002). Michigan has no general policy or statutory enactment prohibiting the contractual modification of the periods of limitations provided by statute. Rory, supra at 471. Likewise, even before Rory, provisions within an employment contract providing for a shortened period of limitations were held to be reasonable and, therefore, valid and enforceable. See Timko v Oakwood Custom Coating, Inc, 244 Mich App 234, 240-244; 625 NW2d 101 (2001). Consequently, we are unable to conclude that the limitations period provided in the contract violates public policy. Plaintiff further contends that this Court should not enforce the contract’s period of limitations because it constitutes an unconscionable contract of adhesion. We disagree. We shall first address plaintiffs contention that the employment contract in question was one of adhesion requiring close scrutiny. In Herweyer, supra at 21, our Supreme Court noted that employers and employees often do not deal at arm’s length when negotiating employment contracts; instead, the employee is often placed in the position of having to accept the terms of the employment contract or forgo the job. The Herweyer Court concluded, “Where one party has less bargaining power than another, the contract agreed upon might be, but is not necessarily, one of adhesion, and at least deserves close judicial scrutiny.” Id. However, in Rory, supra at 489, the Court overruled the Herweyer rule that contracts of adhesion were subject to heightened review. The Court stated that it is of no legal relevance that a contract is or is not described as “adhesive.” In either case, the contract is to be enforced according to its plain language. Regardless of whether a contract is adhesive, a court may not revise or void the unambiguous language of the agreement to achieve a result that it views as fairer or more reasonable. [Ml Therefore, we may not consider whether the contract was one of adhesion when determining whether the modified period of limitations was unconscionable. In order for a contract or contract provision to be considered unconscionable, both procedural and substantive unconscionability must be present. Northwest Acceptance Corp v Almont Gravel, Inc, 162 Mich App 294, 302; 412 NW2d 719 (1987). Procedural unconscionability exists where the weaker party had no realistic alternative to acceptance of the term. Allen v Michigan Bell Tel Co, 18 Mich App 632, 637; 171 NW2d 689 (1969). If, under a fair appraisal of the circumstances, the weaker party was free to accept or reject the term, there was no procedural unconscionability. Id. Substantive unconscionability exists where the challenged term is not substantively reasonable. Id. at 637-638. However, a contract or contract provision is not invariably substantively unconscionable simply because it is foolish for one party and very advantageous to the other. Gillam v Michigan Mortgage-Investment Corp, 224 Mich 405, 409; 194 NW 981 (1923). Instead, a term is substantively unreasonable where the inequity of the term is so extreme as to shock the conscience. Id. In the present case, plaintiff did not present any evidence that he had no realistic alternative to employment with defendant. Therefore, while plaintiffs bargaining power may have been unequal to that of defendant, we cannot say that plaintiff lacked any meaningful choice but to accept employment under the terms dictated by defendant. Allen, supra at 637-638. Furthermore, the six-month period of limitations is neither inherently unreasonable, Timko, supra at 243, nor so extreme that it shocks the conscience, Gillam, supra at 409. Consequently, plaintiff failed to establish that the contractually modified period of limitations was either substantively or procedurally unconscionable. Finally, plaintiff contends that he did not knowingly waive the statutory three-year limitations period applicable to civil rights claims. This argument is unavailing. The law is clear that one who signs an agreement, in the absence of coercion, mistake, or fraud, is presumed to know the nature of the document and to understand its contents, even if he or she has not read the agreement. See Watts v Polaczyk, 242 Mich App 600, 604; 619 NW2d 714 (2000). Because plaintiff has not demonstrated that the disputed contract provision is contrary to law or public policy, and has failed to demonstrate that the contractually provided period of limitations was unconscionable, we are compelled to enforce that term as written. Therefore, the trial court did not err when it applied the contractually modified period of limitations to plaintiffs claim. Affirmed. TALBOT, J., concurred. These include duress, waiver, estoppel, fraud, or unconscionability. Rory, supra at 470 n 23. While we have much sympathy for the dissent’s argument that there ought to be limitations on an employer’s ability to contractually modify periods of limitations, especially in the civil rights context, we believe such limitations ought to he imposed by the Legislature, not the judiciary. NEFF, P.J. (dissenting). I respectfully dissent. I would hold that the contract provision is unconscionable and violates public policy and is, therefore, unenforceable under the circumstances of this case. RORYv CONTINENTAL INS CO In Rory, decided after oral argument in this case, our Supreme Court revised Michigan law concerning contracts that shorten the legislated periods of limitations. Before Rory, contracts such as that at issue in this case were subject to heightened judicial scrutiny to determine the reasonableness of the shortened period of limitations. Herweyer v Clark Hwy Services, Inc, 455 Mich 14, 20-21; 564 NW2d 857 (1997). In accordance with the general rule applied in a majority of jurisdictions and adopted in Michigan, “a shortened contractual period of limitations was ‘valid if reasonable even though the period is less than that prescribed by otherwise applicable statutes of limitation.’ ” Rory, supra at 466, quoting Tom Thomas Org, Inc v Reliance Ins Co, 396 Mich 588, 592; 242 NW2d 396 (1976) (emphasis in Rory); see also Camelot Excavating Co, Inc v St Paul Fire & Marine Ins Co, 410 Mich 118, 126; 301 NW2d 275 (1981). In Rory, the Court rejected any judicial assessment of reasonableness, stating that “the decision in Camelot was premised upon the adoption of a ‘reasonableness’ test found in the dicta of Tom Thomas.” Rory, supra at 468. The Rory Court held that “an unambiguous contractual provision providing for a shortened period of limitations is to be enforced as written unless the provision would violate law or public policy.” Id. at 470. In rejecting any judicial assessment of reasonableness, the Court observed: A fundamental tenet of our jurisprudence is that unambiguous contracts are not open to judicial construction and must be enforced as written. Courts enforce contracts according to their unambiguous terms because doing so respects the freedom of individuals freely to arrange their affairs via contract. This Court has previously noted that “ ‘[t]he general rule [of contracts] is that competent persons shall have the utmost liberty of contracting and that their agreements voluntarily and fairly made shall be held valid and enforced in the courts.’ ” [Id. at 468 (citations omitted).] The Court further cited its own recent reasoning in Wilkie v Auto-Owners Ins Co, 469 Mich 41, 52; 664 NW2d 776 (2003), quoting Corbin on Contracts: “ ‘One does not have “liberty of contract” unless organized society both forbears and enforces, forbears to penalize him for making his bargain and enforces it for him after it is made. [15 Corbin, Contracts (Interim ed), ch 79, § 1376, p 17.]’ ” [Rory, supra at 469-470.] The Rory Court concluded that “[o]nly recognized traditional contract defenses may be used to avoid the enforcement of the contract provision.” Id. at 470. “Examples of traditional defenses include duress, waiver, estoppel, fraud, or unconscionability.” Id. at 470 n 23. UNCONSCIONABILITY In this case, the applicable statute of limitations permitted plaintiffs action to be brought within three years. That defendant exacted a shortened limitations period of six-months on the basis of a nondescript provision included among several others in a preprinted application for employment, which plaintiff filled out five months before he was hired, is unconscionable. The examination of a contract for unconscionability considers both procedural and substantive unconscionability. Hubscher & Son, Inc v Storey, 228 Mich App 478, 481; 578 NW2d 701 (1998). Our courts have applied a two-pronged test for determining whether a contract is unenforceable as unconscionable: “(1) What is the relative bargaining power of the parties, their relative economic strength, the alternative sources of supply, in a word, what are their options?; (2) Is the challenged term substantively reasonable?” [Id. (citations omitted).] “Reasonableness is the primary consideration.” Id. Although this two-pronged test has been used to assess unconscionability, the general underpinnings of the defense must also be considered: The concept of unconscionability was meant to counteract two generic forms of abuses: the first of which relates to procedural deficiencies in the contract formation process, such as deception or a refusal to bargain over contract terms, today often analyzed in terms of whether the imposed-upon party had meaningful choice about whether and how to enter into the transaction; and the second of which relates to the substantive contract terms themselves and whether those terms are unreasonably favorable to the more powerful party, such as terms that impair the integrity of the bargaining process or otherwise contravene the public interest or public policy; terms (usually of an adhesion or boilerplate nature) that attempt to alter in an impermissible manner fundamental duties otherwise imposed by the law, fine-print terms or provisions that seek to negate the reasonable expectations of the nondrafting party, or unreasonably and unexpectedly harsh terms having to do with price or other central aspects of the transaction. It has been said that this formulation requires a showing that the contract was both procedurally and substantively unconscionable when made. It has often been suggested that a finding of a procedural abuse, inherent in the formation process, must be coupled as well with a substantive abuse, such as an unfair or unreasonably harsh contractual term which benefits the drafting party at the other party’s expense. Another way of viewing this problem is that the fact that a contract is one of adhesion does not itself render the

MAGEE v DAIMLERCHRYSLER CORPORATION Docket No. 126219. Decided March 8, 2005. On application by the defendant for leave to appeal, the Supreme Court, after hearing oral argument on whether the application should he granted and in lieu of granting leave, reversed part of the judgment of the Court of Appeals and remanded the case to the circuit court for reinstatement of the order of summary disposition for the defendant. Jacquelyn V Magee brought an action in the Macomb Circuit Court against DaimlerChrysler Corporation, alleging sexual harassment, sex and age discrimination, retaliation, and constructive discharge from employment. The defendant moved for summary disposition, arguing that the action was barred by the statute of limitations because it was not brought within three years of any of the alleged acts of discrimination or retaliation. The trial court, James M. Biernat, Sr., J., granted the defendant’s motion. The Court of Appeals, Schdette, EJ, and Meter and Owens, JJ., affirmed the grant of summary disposition with regard to the constructive discharge claim and reversed the grant of summary disposition with regard to the other claims. Unpublished memorandum opinion, issued March 2,2004 (Docket No. 243847). The Court’s decision was based on the fact that the action was brought within three years of the date that the plaintiff resigned her employment. The defendant sought leave to appeal. In an opinion per curiam, signed by Chief Justice Taylor, and Justices Corrigan, Young, and Markman, the Supreme Court held,-. The Court of Appeals erred in concluding that the plaintiffs claims accrued on the date she terminated her employment as opposed to her last day of work. No discriminatory conduct is alleged to have occurred after the plaintiffs last day of work. The claims were not timely filed within three years of that date. The part of the Court of Appeals judgment that reversed part of the judgment of the trial court must be reversed and the case must be remanded to the trial court for reinstatement of the order granting summary disposition in favor of the defendant with regard to all the claims brought by the plaintiff. Justice Weaver, concurring, stated that she concurs in the result of the opinion per curiam because the applicable three-year period of limitations began to run when the plaintiff went on medical leave on September 12, 1998, and the plaintiffs claims were not filed within three years of that date. The trial court correctly granted summary disposition in favor of the defendant. Affirmed in part, reversed in part, and remanded to the circuit court. Justice Cavanagh, joined by Justice Kelly, dissenting, stated that the defendant’s failure to stop the harassment after the plaintiff made repeated complaints was discriminatory conduct. The conduct occurred during the three years that preceded the filing of the complaint; therefore, the complaint was timely filed. Tucker & Hughes, PC. (by Juanita Gavin Hughes), for the plaintiff. Cattel, Tuyn & Rudzewicz, PLLC (by Tomas A. Cattel and Debra A. Colby), for the defendant. PER CURIAM. In this case involving the Civil Rights Act, the Court of Appeals held that plaintiffs claims of sexual harassment, sex and age discrimination, and retaliation were timely filed, because the lawsuit was brought within three years of the date she resigned her employment with defendant. We conclude that plaintiffs claims were not filed within the limitations period because none of the alleged discriminatory or retaliatory conduct occurred within the three years that preceded the fifing of the complaint. We therefore reverse that part of the judgment of the Court of Appeals and remand the matter to the trial court for reinstatement of the trial court’s grant of summary disposition to defendant. i Plaintiff Jacquelyn Magee was an hourly production employee who began work for defendant Daimler-Chrysler in 1976. She went on medical leave for emotional distress on September 12, 1998, and, without first returning to work, resigned her job on February 2, 1999. On February 1, 2002, Magee filed a lawsuit under the Civil Rights Act, MCL 37.2101 et seq., claiming that she had been unlawfully discriminated against and harassed during most of her twenty-two years at Daimler-Chrysler. Magee’s complaint lists separate counts for sex harassment based on hostile work environment, sex harassment based on quid pro quo harassment, retaliation, sex discrimination, and age discrimination. In her complaint, Magee alleges that she suffered harassment from the 1980s until her last day of work on September 12, 1998, and that her supervisors periodically retaliated against her during this period as a result of her resistance to the harassment. Magee alleges that this constant harassment caused her to leave her job at DaimlerChrysler on September 12, 1998, and that she decided to resign on February 2, 1999, because she anticipated that the harassment would continue if she returned. DaimlerChrysler moved for summary disposition, asserting that Magee’s February 1, 2002, complaint failed to allege any discriminatory acts after September 12,1998, and that the complaint was therefore not filed within the three-year period of limitations applicable to Civil Rights Act claims, MCL 600.5805(10). The trial court initially denied DaimlerChrysler’s motion without prejudice, allowing Magee to amend her complaint to allege harassment or retaliation occurring up to her February 2, 1999, resignation. However, because Magee’s amended complaint continued to allege only harassment and retaliation through September 12, 1998, her last day of work, the trial court granted DaimlerChrysler’s motion and dismissed Magee’s complaint. Magee appealed the trial court’s ruling to the Court of Appeals, which relied on this Court’s recent decision in Collins v Comerica Bank, 468 Mich 628; 664 NW2d 713 (2003), to reverse the lower court’s dismissal of the harassment, retaliation, and discrimination claims. The Court of Appeals concluded that these claims were timely, because they were filed within three years of the date of Magee’s resignation. DaimlerChrysler then sought leave to appeal to this Court. After hearing oral argument from both parties on the application, this Court has now determined that the Court of Appeals misapplied Collins and erroneously reinstated Magee’s Civil Rights Act claims. ii In the absence of disputed facts, whether a cause of action is barred by the applicable statute of limitations is a question of law, which this Court reviews de novo. Boyle v Gen Motors Corp, 468 Mich 226, 229-230; 661 NW2d 557 (2003). Likewise, this Court reviews de novo rulings on summary disposition motions. Neal v Wilkes, 470 Mich 661, 664; 685 NW2d 648 (2004). hi In Collins, supra at 633, this Court held that a cause of action for discriminatory termination does not accrue until the date of termination. The plaintiff employee, Gwendolyn Collins, was suspended pending an investígation; when the investigation was completed several weeks later, her employment was terminated. Within three years of her termination, Collins filed a complaint alleging that her termination was the result of race and gender discrimination. The Court of Appeals ruled that Collins’s suit was not timely under the three-year period of limitations because her causes of action accrued on the last day that she actually performed employment duties (as opposed to her later termination date). This Court disagreed with the Court of Appeals last-day-worked analysis and reversed, holding that a claim for discriminatory discharge cannot arise until a claimant has actually been discharged. Id. Relying on Collins, the Court of Appeals in this case reasoned that Magee’s claim also accrued on her termination date as opposed to her last day of work. The Court acknowledged that Magee resigned, and was not terminated. But it found significant that “her last day of work was followed by a period in which she was on a medical leave of absence” and that she was employed by DaimlerChrysler while on leave. Accordingly, it concluded that her causes of action, if any, arose on February 2, 1999. The Court of Appeals reliance on Collins to reinstate Magee’s claims of sexual harassment, sex and age discrimination, and retaliation is misplaced. Magee was never terminated from her employment and does not allege discriminatory termination. She bases her Civil Rights Act claims on alleged discriminatory conduct that occurred before her leave of absence. Indeed, when given a chance to amend her complaint to plead claims falling within the period of limitations, Magee was unable to do so. Collins, a discriminatory termination case, simply does not apply in this situation. To determine whether Magee’s claims were timely filed, we look to MCL 600.5805(10), which establishes that the applicable period of limitations is three years from the date of injury. Because Magee alleged no discriminatory conduct occurring after September 12, 1998, the period of limitations on Magee’s claims expired, at the latest, three years from that date, or by September 12, 2001. Accordingly, as the trial court held, Magee’s February 1, 2002, complaint was not timely filed. The dissent argues that the defendant violated the Civil Rights Act within the three years preceding the filing of plaintiffs claim by failing to “prevent future harassment.. ..” Post at 115. This interpretation of the Civil Rights Act amounts to a continuing violations doctrine in which an employer is continuously liable from the time it or its agent violates the act until the time that violation is remedied by the employer. Thus, in Justice CAVANAGH’s view, a plaintiff subjected to a hostile work environment on December 31, 2005, may file a timely complaint in December 2030 if the employer has failed to remedy the sexual harassment in the ensuing twenty-five years. This theory renders nugatory the period of limitations established by the Legislature in MCL 600.5805(10). It is therefore a theory we must reject. For these reasons, we reverse the relevant part of the judgment of the Court of Appeals and remand this case to the Macomb Circuit Court for reinstatement of the order granting DaimlerChrysler’s motion for summary disposition. Taylor, C. J., and Corrigan, Young, and Markman, JJ., concurred. Unpublished memorandum opinion, issued March 2, 2004 (Docket No. 243847). Magee’s complaint also includes a separate count alleging constructive discharge. The trial court dismissed this count, and the Court of Appeals affirmed the trial court’s ruling. Magee did not appeal, and the dismissal of that claim is not before this Court. Wickens v Oakwood Healthcare Sys, 465 Mich 53, 60; 631 NW2d 686 (2001). WEAVEE, J. (concurring). I concur in the result of the opinion per curiam that reverses the Court of Appeals judgment in part and remands the matter to the trial court for reinstatement of the trial court’s grant of summary disposition to defendant. Under the facts pleaded by plaintiff, the three-year period of limitations began to run when plaintiff went on medical leave on September 12, 1998, for emotional distress. Plaintiffs claims were required to be filed within three years of September 12, 1998. Because they were not, the trial court was correct to grant summary disposition to defendant. Therefore, I concur in the result of the opinion per curiam. MCL 600.5805(10). CAVANAGH, J. (dissenting). I disagree with the majority’s contention that defendant engaged in no discriminatory conduct during the three years that preceded the filing of plaintiffs complaint. Therefore, I must respectfully dissent. Plaintiff began working for defendant in 1976. Over the years, plaintiff complained of various incidents of harassment. Plaintiff complained that her foreman was making sexual advances toward her. When plaintiff was assigned to a different supervisor, her former foreman still worked in the same complex and continued to harass her. Because of the harassment, plaintiff was ordered by her psychiatrist to take an approximately four-month medical leave. When plaintiff returned from her medical leave, her former foreman was still working in the same complex as plaintiff. A subsequent foreman of plaintiffs also made sexual advances toward her, including intentionally touching plaintiffs breast. For an entire year, plaintiff also complained to defendant about a sign in the men’s restroom that referred to plaintiff in a derogatory and sexually suggestive manner. Because of the stress of the harassment she continued to suffer, plaintiff was ordered to take another medical leave of absence. While she was employed by defendant, plaintiffs union steward also made sexually suggestive comments about plaintiffs “ass” and touched her in an inappropriate manner. Plaintiffs coworkers made sexually suggestive comments about her body and began hitting her with cardboard sticks. When plaintiff asked her union steward to intercede, he just laughed and said, “Yea, hit that ass.” Plaintiff repeatedly complained to defendant, yet nothing was done. When plaintiff requested a transfer, her union steward told her that she could transfer if she had sex with him. Once plaintiff was transferred, the union steward told her that she “owed” him and he wanted her to have sex with him. He later stopped plaintiff from training for another position because she was not having sex with him. Plaintiff again complained to a foreman, but he said there was nothing he could do. Because of the stress plaintiff was suffering as a result of the harassment, plaintiff was then ordered to take a third medical leave. Because defendant took no steps to stop the harassment while plaintiff was on her third medical leave, she was forced to decide not to return to the harassing environment. Defendant’s discriminatory conduct in failing to take steps to prevent future harassment continued throughout plaintiffs medical leave. Requiring plaintiff to return to the harassing setting to work in the unchanged environment would be unreasonable and possibly dangerous to plaintiffs health, considering that her doctor had ordered three medical leaves because of the stress of the harassment. As plaintiff explained, in order to have even been considered for a possible transfer to another plant after having been out on her third harassment-related medical leave, she would have had to return to the plant she left and hope for a transfer, despite that her multiple complaints had garnered no response before or during her medical leave. Thus, for plaintiff to be able to try and leave the harassing environment, she would have had to return to work with the same men who harassed her and whose conduct necessitated that plaintiff take medical leaves in the first place, without any assurance that defendant would protect her. This case presents a unique set of circumstances because plaintiffs doctor-ordered medical leave was directly related to the harassment. Plaintiffs final medical leave was actually her third leave related to the stress of the harassment she suffered. Defendant maintained a hostile work environment despite plaintiffs repeated complaints. Defendant’s failure to stop the harassment after these complaints is, under the facts of this case, discriminatory conduct. Because this conduct occurred during the three years that preceded the filing of plaintiffs lawsuit, I find that her complaint was timely filed. Accordingly, I respectfully dissent. Kelly, J., concurred with Cavanagh, J.