United States District Court, N.D. Alabama, Southern Division
AUGUST B. TOSCANO, Plaintiff,
REGIONS FINANCIAL CORPORATION, et al. Defendants.
MEMORANDUM OPINION AND ORDER
MADELINE HUGHES HAIKALA, UNITED STATES DISTRICT JUDGE
order concerns a motion in which defendants Regions Financial
Corporation and Regions Bank (collectively Regions) ask the
Court to dismiss plaintiff August Toscano's second
amended complaint. (Doc. 56). Absent outright dismissal,
Regions asks the Court to strike Mr. Toscano's jury
demand. (Doc. 57). Mr. Toscano opposes the motion to dismiss
but not the motion to strike the jury demand. (Doc. 65). For
the reasons stated below, the Court grants the motion to
dismiss in part and grants the motion to strike the jury
Toscano, a native of Brazil, currently is a citizen of
Florida. (Doc. 57, p. 3). Mr. Toscano asserts that he is a
member of protected classes based on his race, ethnicity, and
national origin. (Doc. 53, p. 7). From 2006 until his
termination in July 2014, Mr. Toscano worked for Regions Bank
as the “Human Resources Executive for the East
Region.” (Doc. 53, pp. 2, 7). Regions Bank is a
subsidiary of Regions Financial Corporation, a Delaware
corporation headquartered in Birmingham, Alabama. (Doc. 53,
to Mr. Toscano's second amended complaint, two factual
narratives support his claims. First Mr. Toscano alleges that
executives at Regions engaged in fraudulent business
practices while Mr. Toscano worked for the bank. One of these
practices, the “vendor kick-back scheme, ”
involved a recruiting service that paid kickbacks to certain
Regions's executives in exchange for those
executives' agreement to pay inflated invoices that the
recruiter submitted to Regions. (Doc. 53, p. 3). Another
practice, the “loan fraud scheme, ” involved
Regions's attempts to manipulate its apparent
profitability by reporting uncollectable loans as collectable
on its balance sheets. (Doc. 53, p. 3). Mr. Toscano alleges
that he became aware of these practices and that he reported
the issues to other executives at Regions. (Doc. 53, pp.
10-17). Mr. Toscano contends that Regions retaliated against
him because he reported these illegal business practices.
Mr. Toscano alleges that executives within Regions's
management were “engaging in discriminatory, sexist,
demoralizing, and degrading behavior towards . . . female
employees.” (Doc. 53, p. 19). Mr. Toscano asserts that
he reported complaints several co-workers made to him
concerning the offensive or inappropriate behavior of
Regions's executives towards female employees. (Doc. 53,
p. 19-20). As a regional HR Executive, Mr. Toscano also
investigated and reported allegations of racial
discrimination in Regions's hiring practices in Georgia.
(Doc. 53, pp. 23-24). Mr. Toscano alleges that executives at
Regions responded to his reports by attempting to discredit
them and then by retaliating against him. (Doc. 53, pp.
Toscano alleges that after he reported the illegal business
practices and the complaints of sex and race discrimination
to Regions executives, he “was suddenly
ostracized” and told by his superiors that “he
could not be trusted and [that he] was not a good
‘cultural' fit at Regions.” (Doc. 53, p. 22).
After Mr. Toscano reported the allegations of misconduct at
Regions, he began to receive lower performance ratings,
“was ignored in meetings[, ] and removed from key
projects.” (Doc. 53, p. 22). Mr. Toscano alleges that
Regions was attempting to create a pretext for his eventual
termination. (Doc. 53, p. 23). In addition, Mr. Toscano
alleges that his termination was based in part on his efforts
to report misconduct within the company. (Doc. 53, p.
15, 2014, Regions terminated Mr. Toscano without cause. (Doc.
53, p. 28). Because Regions terminated Mr. Toscano without
cause, Regions became obligated to provide Mr. Toscano with
several forms of severance compensation as well as certain
benefits in accordance with a Severance Protection Agreement
(SPA) that the parties executed in 2007. (Doc. 53, p. 28). On
September 26, 2014, consistent with the terms of the SPA, Mr.
Toscano executed a “General Release” of any
claims he had against Regions. (Doc. 56-1, pp. 36-37).
Regions argues that this release bars Mr. Toscano's
present action. (Doc. 56-1, p. 2). Mr. Toscano, in turn,
argues that the release did not become effective because
Regions did not provide all of the payments and benefits that
the SPA required. (Doc. 65, p. 2).
Toscano sued Regions in Florida state court on December 31,
2015, asserting six causes of action: (1) retaliation in
violation of Title VII; (2) discrimination in violation of
Title VII; (3) retaliation under the False Claims Act; (4)
retaliatory discharge in violation of the Dodd-Frank Act; (5)
retaliation in violation of Florida law; and (6) breach of
contract. (Doc. 2; Doc. 53). Regions removed Mr.
Toscano's case to the Middle District of Florida on
February 12, 2016. (Doc. 1). On Regions's motion, the
District Court for the Middle District of Florida transferred
the case to this Court. (Docs. 27, 33). By joint stipulation
of the parties, Mr. Toscano filed an amended complaint on
January 12, 2017. (Doc. 39). With the Court's leave, Mr.
Toscano filed a second amended complaint on April 7, 2017.
(Doc. 53). Regions now asks the Court to dismiss the second
amended complaint. (Docs. 56, 57).
STANDARD OF REVIEW
ruling on the defendants' motion to dismiss, the Court
must consider whether Mr. Toscano has alleged facts that
“state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). The facts that Mr. Toscano alleges must
“allow [the court] to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. At the
motion to dismiss stage, the Court “must and do[es]
assume that any well-pleaded allegations in the amended
complaint are true.” Edwards v. Prime, Inc.,
602 F.3d 1276, 1284 (11th Cir. 2010).
evaluating a motion to dismiss, a court may consider certain
materials outside of the complaint without converting a
motion to dismiss into one for summary judgment. See
Russo v. Fifth Third Bank, 634 Fed.Appx. 774, 775 n.2
(11th Cir. 2015).
[W]here the plaintiff refers to certain documents in the
complaint and those documents are central to the
plaintiff's claim, then the Court may consider the
documents part of the pleadings for purposes of Rule 12(b)(6)
dismissal, and the defendant's attaching such documents
to the motion to dismiss will not require conversion of the
motion into a motion for summary judgment.
Crespo v. Coldwell Banker Mortg., 599 Fed.Appx. 868,
872 n.1 (11th Cir. 2014) (quoting Brooks v. Blue Cross
& Blue Shield of Fla., Inc., 116 F.3d 1364, 1369
(11th Cir. 1997)).
Whether the General Release Bars Mr. Toscano's
Mr. Toscano did not attach copies of the SPA or the general
release to his complaint, both agreements are central to Mr.
Toscano's claim for breach of contract. (See
Doc. 53, pp. 28-29, 39-41). Regions attached these documents
to its motion to dismiss. (Doc. 56-1, pp. 36-37; Doc. 69-1).
In construing the effect of the SPA and the release, the
Court relies on general principles of contract law. See
In Re Managed Care, 756 F.3d 1222, 1232 (11th Cir.
2014). “District Courts must construe contracts to give
effect to the parties' intentions.” In Re
Managed Care, 756 F.3d at 1232. The SPA states that it
“will be governed by and construed in accordance with
the law of the State of Alabama applicable to contracts made
and to be performed entirely within that state.” (Doc.
69-1, pp. 13-14). Because the release is an outgrowth of SPA,
(see Doc. 56-1, p. 36), the Court also will use
Alabama contract law to construe the release.
Alabama law, “[a] previous settlement of claims is an
affirmative defense to an action.” Cherry v. Pinson
Termite & Pest Control, LLC, 206 So.3d 557, 565
(Ala. 2016). “‘When parties . . . make a final
settlement between themselves, such settlement is as binding
on them in many respects as a decree of a court.'”
Oaks v. City of Fairhope, 515 F.Supp. 1004, 1032
(S.D. Ala. 1981) (quoting Burks v. Parker, 68 So.
271, 272 (Ala. 1915)). A valid settlement agreement is
conclusive as to any claims that the parties intended to
include within the terms of their agreement. Ex Parte
PinnOak Res., LLC, 26 So.3d 1190, 1200 (Ala. 2009).
The Scope and Validity of the Release
language of Mr. Toscano's agreement with Regions states
that he released:
any and all manner of action, causes of action, suits, claims
and demands whatsoever heretofore existing, now existing or
which may hereafter ripen, directly or indirectly, from the
beginning of time until the date hereof whether arising under
any applicable provisions of statutory or common law with the
exception of any employee benefits which cannot be freely
alienated under ERISA.
(Doc. 56-1, p. 37). Mr. Toscano executed the release on
September 26, 2014, several months after his termination on
July 15, 2014. (Doc. 56-1, p. 37; Doc. 53, pp. 2, 6). Mr.
Toscano does not dispute that all of the facts underlying his
claims for retaliation and discrimination occurred while he
was employed at Regions. Consequently, these claims either
existed when Regions terminated Mr. Toscano, or the claims
ripened shortly after his termination as in the case of those
claims covered by his EEOC charge. (Doc. 65, p. 9). Either
way, the claims Mr. Toscano presents in counts I, II, III,
IV, and V of his second amended complaint are covered by the
plain language of the release. Because Mr. Toscano asserts
causes of action granted to him by federal remedial statutes
in those counts, the Court must examine the circumstances
surrounding his execution of the release. See Sparks v.
Sunshine Mills, Inc., 2013 WL 4760964, at *7 (N.D. Ala.
Sept. 4, 2013).
conclude that Mr. Toscano has waived his federal rights, the
Court must find that Mr. Toscano's assent to the release
provision was knowing and voluntary. Sparks, 2013 WL
4760964, at *7 (citing Bledsoe v. Palm Beach City,
133 F.3d 816, 819 (11th Cir. 1998)). In examining this issue,
the Court may consider:
the plaintiff's education and business experience; the
amount of time the plaintiff considered the agreement before
signing it; the clarity of the agreement; the plaintiff's
opportunity to consult with an attorney; the employer's
encouragement or discouragement of consultation with an
attorney; and the consideration given in exchange for the