United States District Court, D. Arizona
ORDER
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.)
II.
LEGAL STANDARD
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
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