The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER ON DEFENDANT'S RULE 12(b)(6) MOTION TO DISMISS
This is a suit brought under 29 U.S.C. § 621 et seq., the Age Discrimination in Employment Act ("ADEA"), by the Equal Employment Opportunity Commission ("EEOC") against Defendant Timeless Investments ("Defendant"). The EEOC brings this suit on behalf of two charging parties, James Rex ("Rex") and Larry Carlberg ("Carlberg"), who unsuccessfully applied for employment with Defendant. Defendant now brings a Rule 12(b)(6) motion to dismiss. For the reasons that follow, the motion will be denied.
From the complaint, it is alleged that:
Since at least July 2004, Defendants have engaged in unlawful employment practices in Fresno County . . . in violation of Section 4 of the ADEA, 29 U.S.C. § 623 by failing and/or refusing to hire [Rex and Carlberg] and similarly situated individuals because of their age (40 or over). Both [Rex and Carlberg] were in their sixties when they submitted employment applications for a cashier position to Defendant's Fresno facility and were denied employment because of their age after being asked to list their age on their employment applications.
The effect of the practices complained of herein has been to deprive [Rex and Carlberg] and similarly situated individuals of equal employment opportunities because of their age (40 and over).
Defendant argues that the only factual basis identified in the complaint is at paragraph 11. Specifically, the basis identified in paragraph 11 is that charging parties were asked to list their age on their employment applications. The allegation is conclusory and is the lone pled fact upon which the EEOC has based its complaint. The Ninth Circuit has specifically held that dismissal is appropriate when the only fact alleged is that an employment application required an applicant to list his age. See Centeno v. Transp. Leasing Co., 902 F.2d 1578 n.1 (9th Cir. 1990). Further, under 29 C.F.R. § 1625.5, a request to state one's birth date or age on an application "is not, in itself, a violation of the ADEA."
The EEOC argues that it has exceed the requirements of Rule 8 and has put Defendant on fair notice. The complaint identifies all of the parties, the parties' role giving rise to the ADEA cause of action, the relevant date of discriminatory conduct, the acts give rise to the ADEA claim, and the basis for relief, i.e. denial of employment on the basis of age (40 and over). Defendant's own motion affirms its awareness form the complaint as to the alleged violation. Further 29 C.F.R. § 1625.5 goes on to state that, because an application that requires an applicant to state his age may deter older applicants, such application forms should be closely scrutinized to assure the request is for a permissible purpose.
Federal Rule of Civil Procedure 8(a) sets the pleading standard for claims for relief. "Under the liberal rules of pleading, a plaintiff need only provide a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" Sagana v. Tenorio, 384 F.3d 731, 736 (9th Cir. 2004) (quoting Fed. R. Civ. P. 8(a)). This rule does "not require a claimant to set out in detail the facts upon which he bases his claim." Conley v. Gibson, 355 U.S. 41, 47 (1957). The pleadings need only give the opposing party fair notice of a claim and the claim's basis. Conley, 355 U.S. at 47; Sagana, 384 F.3d at 736; Fontana v. Haskin, 262 F.3d 871, 877 (9th Cir. 2001). 47). The pleadings are also to "be construed as to do substantial justice," and "no technical forms of pleading . . . are required." Fed. Rules Civ. Pro. 8(e)(1), 8(f); Sagana, 384 F.3d at 736; Fontana, 262 F.3d at 877. "Specific legal ...