The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
This matter is before the court on defendants'*fn1 motion to dismiss plaintiff Rick Eaton's first claim for relief in the first amended complaint, alleging violation of his equal protection rights, on the ground it fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Defendants move in the alternative to strike, pursuant to Federal Rule of Civil Procedure 12(f),*fn2 certain specific allegations pertaining to the equal protection claim. Plaintiff opposes both motions.*fn3
As set forth in the court's Memorandum and Order of September 22, 2008 ("Sept. 22 Order"), granting in part and denying in part defendants' motion for judgment on the pleadings, plaintiff may assert an equal protection claim, in this action involving public employment, only if he can allege facts demonstrating class-based differential treatment. In Engquist v. Or. Dept. of Agric., 128 S.Ct. 2148 (2008), the United States Supreme Court invalidated "class-of-one" equal protection claims, previously authorized by Village of Willowbrook v. Olech, 528 U.S. 562 (2000),*fn4 in the public employment context. However, the Court in Engquist did not eradicate all equal protection claims by public employees against their public employers. (Sept. 22 Order at 9:3-10 [recognizing that the Court made clear that its prior cases establish that "the Equal Protection clause is implicated when the government makes class based decisions in the employment context treating distinct groups of individuals categorically different."]) Thus, the Court in Engquist held that a public employee can state an equal protection claim if he alleges facts showing "some class-based treatment where a distinct group of individuals is treated differently." (Sept. 22 Order at 9:21-22.) (emphasis in original.)
In the September 22 Order, the court found that plaintiff had not alleged these requisite facts in his complaint, and thus, it granted defendants' motion for judgment on the pleadings as to plaintiff's equal protection claim, which had been expressly based on Village of Willowbrook's "class-of-one" theory. However, the court granted plaintiff leave to amend. (Id. at 9:23-10:13.) Plaintiff filed his first amended complaint on October 11, 2008. Defendants now move, again, to dismiss plaintiff's equal protection claim, arguing plaintiff fails to allege sufficient facts to demonstrate class-based differential treatment, thereby satisfying Engquist's constitutional standards.
For the reasons set forth below, the court DENIES defendants' instant motion. Plaintiff has adequately alleged that he is a member of a distinct group of employees who refused to participate in criminal activity and/or reported illegal activity by defendants as mandated by law, and that this group of individuals was treated arbitrarily and unfairly in comparison to those other employees who participated in illegal activities and refused to report violations of the law by the City and its employees.
The court also DENIES defendants' alternative motion to strike, pursuant to Rule 12(f), certain allegations pertaining to the equal protection claim. All of the challenged allegations are relevant to plaintiff's claims of differential treatment and are not unduly prejudicial to the persons involved in the incidents.
As alleged in the first amended complaint, plaintiff asserts defendants established different classes of employees for the purpose of imposing discipline. (FAC, filed Oct. 11, 2008, at ¶ 85.) Plaintiff alleges the creation of these different classes resulted in the disparate treatment of similarly situated employees who were part of distinct groups. (Id. at ¶ 85.1.) More specifically, plaintiff alleges that defendant Siemens repeatedly referred to employees who were willing to violate the law and willing to not report violations of the law by the City and its employees as "team players," and those who would not violate the law and reported violations of the law and suspected violations of the law by defendants as "not team players" (referred to herein as the "non-team players"). (Id.) Defendant Siemens repeatedly encouraged the "non-team players," to "get on the team." (Id.)
Plaintiff alleges he was a member of the "non-team players," a distinct group of employees who refused to participate in criminal activity and who complained of and reported illegal activity by the City and its employees as mandated by law. This group, plaintiff alleges, was treated arbitrarily and unfairly in comparison to those other employees, the "team players," who participated in the illegal activity and/or who failed and refused to report the illegal activity by defendants. (Id. at ¶ 85.2.)
Plaintiff names specific members of his "non-team players" group, including Bryon Green, Tia Bostian, Robert Nunez, Freda Anderson, David Cox, and Lee Browning. (Id. at ¶s 85.2, 85.13, 85.14, 85.15, 85.16, 85.17, 85.18.) These employees, plaintiff alleges, also sustained adverse employment actions based on their refusal to participate in criminal activity and/or their reports of illegal activity by the City and its employees. (Id.)
Plaintiff provides numerous examples of how he, as a member of this distinct group, was treated less favorably than those employees in the "team players" group. (Id. at ¶s 85.4, 85.5, 85.6, 85.7, 85.8, 85.9, 85.10, 85.11, 85.12.) For example, plaintiff describes how he was brought up on charges and punished by defendants as a result of a conversation he had with another officer about her feelings and beliefs regarding having had a breast augmentation; plaintiff alleges that other employees, including Lt. Johnstone, who were part of the "team players" group, were not similarly punished for the same type behavior. (Id. at ¶ 85.4(a)-(g).) In another example, plaintiff describes that he was ultimately terminated for having revealed violations of the law and criminal activity by the City and its employees, yet other employees, like Steve Newman, were hired and promoted despite convictions for, among other things, theft of police evidence. (Id.)
Plaintiff also provides examples of how the other members of his "non-team players" group were treated arbitrarily and unfairly in comparison to the "team-players." Plaintiff alleges that after Byron Green told the truth and refused to participate, at defendants' counsel's urging, in creating and making false statements against plaintiff during arbitration proceedings, Green was brought up on disciplinary charges. Green ultimately felt compelled to resign in lieu of going through his own termination proceedings. (Id. at ¶ 85.13(a).) Green also told defendants' counsel that he witnessed defendant Siemens' illegal, personal use of an assigned police vehicle; Green further told defendants' counsel the truth about the City's unlawful Red Light Ticket quota program. After providing this truthful information, Green was brought up on disciplinary charges. (Id. at ¶ 85.13(b).)
Plaintiff alleges Tia Bostian complained of sexual harassment and within one year of her complaint she was fired; Bostian also was charged with dishonesty and moral turpitude for her personal use of department computers. Unlike Bostian, plaintiff alleges Community Services Officer Robert Nunez received only minor discipline and was permitted to retain his job despite his distribution of pornographic evidence on department computers. (Id. at ¶ 85.14(a)-(e).)
Plaintiff alleges, however, that later Robert Nunez became a "non-team player" when he filed a complaint against a fellow dispatcher for misconduct similar to the above. After making this complaint, plaintiff alleges Nunez became the focus of an Internal Affairs investigation. He ultimately negotiated a retirement agreement with defendants ...