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Ditko v. Fabiano Communications Inc.

United States District Court, D. Arizona

December 13, 2019

Stephen Ditko, Plaintiff,
Fabiano Communications Incorporated, Defendant.


          Michael T. Liburdi United Status District Judge.

         Plaintiff Stephen Ditko filed suit against his former employer, Defendant Fabiano Communications Incorporated (“FabCom”), alleging claims of sexual harassment and retaliation under Title VII (Counts I and II) and violations of the Age Discrimination in Employment Act (Count III). Pending before the Court is FabCom's Partial Motion to Dismiss, which seeks dismissal of Counts I and II. (Doc. 8.) Oral argument was not requested. For the following reasons, FabCom's Partial Motion to Dismiss is denied.

         I. BACKGROUND

         Plaintiff is the former Senior Arts Director of Defendant FabCom. (Doc. 1-4 ¶¶ 4, 7.) He was hired on December 26, 2013, at 57 years old. (Id. ¶ 7-8.) Plaintiff alleges that beginning in early July 2015, Brian Fabiano, FabCom's Chief Executive Officer and Plaintiff's supervisor, began to make “sexually charged comments” to and about Plaintiff. (Id. ¶¶ 6-9.) The comments continued “at least weekly, ” both privately and in front of other employees, until Plaintiff was fired on January 19, 2016. (Id. ¶¶ 10-11.) Plaintiff asserts that he “repeatedly rejected” Mr. Fabiano's comments and complained about them. (Id. ¶ 15.) Prior to Plaintiff's complaints, Mr. Fabiano “praised Plaintiff's work and dedication publicly” (Id. ¶ 18); “gave Plaintiff a $3, 000 bonus at Defendant's company event” (Id. ¶ 19); “increased Plaintiff's compensation and agreed to pay Plaintiff's debt to the Internal Revenue Service as part of Defendant's compensation to Plaintiff” (Id. ¶ 20); and “expressed no dissatisfaction” with Plaintiff's performance or work schedule (Id. ¶¶ 21- 22). Following his complaints, however, Plaintiff claims that Mr. Fabiano reassigned work away from him, “reneged” on Plaintiff's compensation agreement, and “encouraged others to criticize Plaintiff.” (Id. ¶ 23-28.) Plaintiff was terminated on January 19, 2016. (Id. ¶ 33.)

         Plaintiff, pro se, filed the Complaint on May 1, 2019 in Maricopa County Superior Court. (Doc. 1-4 at 3.) The Complaint asserts claims for sexual harassment and retaliation under the Title VII of the Civil Rights Act of 1964 (Counts I and II), and violations of the Age Discrimination in Employment Act (Count III). It seeks compensatory damages, front pay, punitive damages, injunctive relief, and attorneys' fees and costs. (Id. at 9.) The Complaint attaches the Charge of Discrimination, dated February 19, 2016, that Plaintiff filed with the Arizona Attorney General's Office and the Equal Employment Opportunity Commission (“EEOC”), as well as the EEOC's Notice of Right to Sue dated February 4, 2019. (Doc. 1-4 at 10-12.) FabCom removed the action to this Court on June 11, 2019. (Doc. 1.)

         FabCom filed a Partial Motion to Dismiss on June 18, 2019, arguing that Counts I and II are “barred by a release executed by plaintiff more than three years ago.” (Doc. 8 at 1.)[1] The referenced document, titled, “Stephen Ditko / Severance, ” (the “Severance Agreement”) is attached as Exhibit 1 to FabCom's motion. (Doc. 8-1.) It includes a severance payment of $2, 692.28 and states, “By signing below, you acknowledge that you understand the terms of this Severance Agreement, and that it is your intent to release any claims you have or may have against FabCom, in exchange for the severance pay offered by the Company.” (Id.) It is signed and dated January 27, 2016. (Id.) The motion states that courts “routinely enforce settlement agreements that release employment discrimination claims.” (Doc. 8 at 2.) Because Plaintiff signed the agreement, FabCom argues that he waived any employment-related claims and that Counts I and II should therefore be dismissed. (Id. at 3.)

         Plaintiff filed a Response on July 2, 2019. (Doc. 10.) It argues that the Severance Agreement “was not a waiver and only signified a current ‘intent' not to sure Defendant” and that his “execution of the document was not knowingly with respect to what, if anything, he was waiving” due to both the agreement's language and circumstances of signing. (Id. at 1.) FabCom filed a Reply on July 8, 2019. (Doc. 12.)


         A. Rule 12(b)(6)

         To survive a motion to dismiss, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief” such that the defendant is given “fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 545, 555 (2007) (quoting Fed.R.Civ.P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 47 (1957)). Dismissal under Rule 12(b)(6) “can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri, 901 F.2d at 699. A complaint should not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle it to relief.” Williamson v. Gen. Dynamics Corp., 208 F.3d 1144, 1149 (9th Cir. 2000).

         The Court must accept material allegations in the Complaint as true and construe them in the light most favorable to Plaintiff. North Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 580 (9th Cir.1983). “Indeed, factual challenges to a plaintiff's complaint have no bearing on the legal sufficiency of the allegations under Rule 12(b)(6).” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001).

         B. Extraneous Information

         Review of a Rule 12(b)(6) motion is “limited to the content of the complaint.” North Star Int'l, 720 F.2d at 581. A district court generally “may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” Lee, 250 F.3d at 688 (citation omitted).

         If “matters outside the pleadings are presented to and not excluded by the court” on a Rule 12(b)(6) motion, “the motion must be treated as one for summary judgment under Rule 56.”[2] Fed.R.Civ.P. 12(d). A 12(b)(6) motion need not be converted when extraneous information is introduced, however, provided that “nothing in the record suggest[s] reliance on those extraneous materials.” Keams v. Temple Technical Institute, Inc., 110 F.3d 44, 46 (9th Cir.1997) (citation omitted). The decision whether to convert the motion to dismiss into a motion for summary judgment, or to merely exclude the evidence, is within the Court's discretion. See Hamilton Materials, Inc. v. Dow ...

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