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Habitat for Humanity International, Inc. v. Morris

United States District Court, M.D. Florida, Fort Myers Division

October 30, 2019


          OPINION AND ORDER [1]


         This matter comes before the Court on Plaintiff's Motion to Dismiss Defendant's Counterclaims With Prejudice (Doc. 44) filed on September 6, 2019. Defendant filed a Response in Opposition (Doc. 52) on October 4, 2019. For the reasons set forth below, the Motion is granted in part with leave to amend.


         Habitat for Humanity International, Inc. (HFHI) sues one of its former employees, Robert Derrick Morris, for fraud and unjust enrichment due to Morris' inappropriate use of HFHI resources which was discovered after Morris' separation pursuant to a severance agreement. Defendant (a white male) filed a five-count Counterclaim (Doc. 34) for race, color, and gender discrimination under Title VII, race discrimination under 42 U.S.C. § 1981, and age discrimination under the Age Discrimination in Employment Act. Plaintiff moves to dismiss all five counts for failure to state a claim and request its attorneys' fees and costs incurred as a result of the Counterclaims because they are frivolous or based on a contractual provision in Defendant's separation agreement. Plaintiff also alleges that Counts I, II, III, and V are barred because Defendant failed to exhaust his administrative remedies with the Equal Employment Opportunity Commission (EEOC).

         Although Plaintiff moves to dismiss the Counterclaims, it is helpful to the Court's discussion to recount the factual allegations of the Second Amended Complaint (Doc. 29). Morris is a former employee of HFHI who worked for the company for approximately ten years. (Doc. 29 at ¶¶ 13-15). In April 2013, Morris was promoted to Director of Construction Technology and Safety, working remotely out of his current home in Estero, Florida. (Doc. 29 at ¶ 15). On August 1, 2017, Morris' new supervisor questioned some expenses that Morris had submitted to HFHI for reimbursement, which appeared to be personal in nature, and asked him for additional supporting documentation to show that the expenses were business-related as he had initially claimed. (Doc. 29 at ¶¶ 20-22). Later that same day, Morris informed his supervisor that he no longer wanted to work for HFHI and asked to resign (rather than being fired) so that he would be eligible for a severance package. (Doc. 29 at ¶ 23). HFHI's management granted Morris' request, unaware at that time of the large number of fraudulent expense reports and other improper charges by Morris made during his employment with HFHI, which the company would only discover through a subsequent investigation. (Doc. 29 at ¶¶ 24, 26-30).

         Morris executed a “Separation Agreement and Release” on August 7, 2017[2] in connection with his voluntary resignation in exchange for a $14, 960 payment. (Doc. 29 at ¶ 24).[3] As consideration for that payment, Morris agreed to the following general release of claims:

In exchange for the compensation provided to you as described above, you . . . hereby release and forever discharge HFHI, all current and former executives, directors and officers, affiliates, national organizations, related entities, partners and with respect to each of them, their predecessors and successors, and with respect to each such entity, all of its past, present, and future employees, officers, directors, owners, representatives, assigns, attorneys, agents, insurers, donors and any other persons acting by, through, under or in concert with any of the persons or entities listed herein, and their successors (the “Released Parties”) of and from any and all charges, complaints, actions, causes of action, suits, liabilities, obligations, promises, controversies, damages, losses, debts and expenses (including attorneys' fees and costs) and claims in law or in equity or any nature whatsoever, known or unknown, suspected or unsuspected, you may have, ever had, now have or shall have against each or any of the Released Parties, to and including the date of execution of this Agreement, including, but not limited to, claims for breach of an implied or express employment contract, claims for wrongful discharge, claims for negligent or intentional tort, claims alleging a violation of Title VII of the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, as amended, the Age Discrimination in Employment Act of 1967, as amended, the Americans with Disabilities Act, as amended, claims pursuant to federal, state or local law regarding discrimination based on including, but not limited to, age, race, sex, religion, national origin, disability, marital status, sexual orientation or preference, or claims for alleged violation of any other local, state, or federal law, regulations or ordinance or public policy, having any bearing whatsoever on the terms or conditions of your employment with or by HFHI or the termination of your employment with or by HFHI.

(Doc. 44-1 at ¶ 8) (emphasis added).

         The next paragraph of Morris' Separation Agreement also contains the following covenant not to sue, and agreement to pay attorneys' fees and costs in the event of a breach:

Furthermore, you promise that to the fullest extent permitted by applicable law, you will not sue or initiate any action or other proceeding asserting any such claim or proceeding, individually or as a member of a class . . . . You further agree that if you breach this promise, you shall in addition to all other remedies provided hereunder or otherwise, pay as damages all costs incurred by any party in defending such action or proceeding, including their reasonable attorneys' fees. This promise not to sue and the release in the previous paragraph are binding on your heirs, legal representatives, successors, assigns and personal representatives, and may not be changed orally.

(Doc. 44-1 at ¶ 9).

         Morris' employment with HFHI ended effective August 18, 2017. (Doc. 29 at ¶ 24). A subsequent investigation was conducted into his business expenses (Doc. 29 at ¶ 27), and after HFHI uncovered evidence of wrongdoing, it initiated this lawsuit on November 6, 2018, in Georgia state court.[4] The case was removed by Morris to federal court, and then transferred to this Court from the Northern District of Georgia on July 2, 2019. (Doc. 10). The Second Amended Complaint asserts five claims: (1) breach of fiduciary duty; (2) fraud and concealment; (3) unjust enrichment; (4) money had and received; and (5) attorney's fees and costs. (Doc. 29).


         A motion to dismiss a counterclaim under Rule 12(b)(6) “is evaluated in the same manner as a motion to dismiss a complaint.” Whitney Info. Network, Inc. v. Gagnon, 353 F.Supp.2d 1208, 1210 (M.D. Fla. 2005) (citation omitted). A pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal when a plaintiff fails “to state a claim upon which relief can be granted.” When considering a motion to dismiss under Rule 12(b)(6), the reviewing court must accept all factual allegations in the counterclaim as true and view them in a light most favorable to the plaintiff. SeeAshcroft v. Iqbal, 556 U.S. 662, 678 (2009). This preferential standard of review, however, does not permit all pleadings adorned with facts to survive the next stage of litigation. The Supreme Court has been clear on this point-a district court should dismiss a claim where a party fails to plead facts that make the claim facially plausible. SeeBell Atl. Corp. v. Twombly, 550 U.S. 544, ...

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