UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
January 14, 2009
RICK EATON, PLAINTIFF,
MARK J. SIEMENS, AN INDIVIDUAL AND IN HIS CAPACITY AS CHIEF OF POLICE, CARLOS A. URRUTIA, AN INDIVIDUAL AND IN HIS CAPACITY AS CITY MANAGER, CITY OF ROCKLIN, A PUBLIC MUNICIPALITY AND PUBLIC ENTITY, DEFENDANTS.
The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
MEMORANDUM AND ORDER
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 in lieu of any disciplinary action being taken against him. (Id. at ¶ 85.15(a)-(b).)
Plaintiff also alleges that Freda Anderson was part of the "non-team players" group. Plaintiff alleges after she sustained two on-duty work injuries, defendants challenged her fitness to return to duty as an Animal Control Officer and ultimately precluded her from returning to work because Anderson was prepared to give favorable testimony to plaintiff in his arbitration proceedings. Unlike Anderson, plaintiff alleges defendants did not challenge another Animal Control Officer's fitness to return to work after sustaining an off-duty injury. (Id. at ¶ 85.16(a)-(f).)
Additionally, plaintiff identifies David Cox as another member of his group. Plaintiff asserts Cox was unfairly disciplined and brought up on false charges regarding his report writing because Cox testified truthfully in favor of plaintiff at his arbitration proceedings. (Id. at ¶ 85.17(a)-(c).)
Finally, plaintiff alleges Lee Browning is a member of the "non-team players" group. Browning also testified in plaintiff's favor at his arbitration proceeding; plaintiff alleges that as a result of his truthful testimony, describing his knowledge of Officer Newman's arrest for theft of police evidence involving pornographic materials and his efforts to have Newman removed as a Rocklin Police Officer, Browning has had all of his administrative and supervisory authority as a volunteer City firefighter removed. He also is now precluded from taking his first responder vehicle home. (Id. at § 85.18(a)-(d).)
A. Motion to Dismiss
On a motion to dismiss, the allegations of the complaint must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322 (1972). The court is bound to give plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. Retail Clerks Int'l Ass'n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). Thus, the plaintiff need not necessarily plead a particular fact if that fact is a reasonable inference from facts properly alleged. See id.
Nevertheless, it is inappropriate to assume that the plaintiff "can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Calif., Inc. v. Calif. State Council of Carpenters, 459 U.S. 519, 526 (1983). Moreover, the court "need not assume the truth of legal conclusions cast in the form of factual allegations." United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986).
Ultimately, the court may not dismiss a complaint in which the plaintiff alleged "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1973 (2007). Only where a plaintiff has not "nudged [his or her] claims across the line from conceivable to plausible," is the complaint properly dismissed. Id. "[A] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (quoting Hudson v. King & Spalding, 467 U.S. 69, 73 (1984)).
In ruling upon a motion to dismiss, the court may consider only the complaint, any exhibits thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201. See Mir v. Little Co. of Mary Hospital, 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v. Consumers Union of United States, Inc., 12 F.Supp.2d 1035, 1042 (C.D. Cal. 1998).
B. Motion to Strike
Federal Rule of Civil Procedure 12(f) enables the court by motion by a party or by its own initiative to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." The function of a 12(f) motion is to avoid the time and expense of litigating spurious issues. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517 (1994); see also 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1380 (2d ed. 1990). Rule 12(f) motions are generally viewed with disfavor and not ordinarily granted because of the limited importance of the pleadings in federal practice. Bureerong v. Uvawas, 922 F. Supp. 1450, 1478 (C.D. Cal. 1996). A motion to strike should not be granted unless it is absolutely clear that the matter to be stricken could have no possible bearing on the litigation. Lilley v. Charren, 936 F. Supp. 708, 713 (N.D. Cal. 1996).
A. Motion to Dismiss
Preliminarily, the court notes that in large part defendants' motion to dismiss attempts to disprove the allegations of the amended complaint. Defendants argue that plaintiff's equal protection claim must be dismissed because the above persons are not part of any group of employees that refused to participate in criminal activity and complained of or reported illegal activity by the City and its employees as mandated by law. Defendants make various arguments, often citing to materials outside the complaint, to attempt to prove that plaintiff cannot allege an identifiable class of persons sufficient to meet the standards of Engquist.*fn5
As a general matter, defendants' arguments are unavailing because on a motion to dismiss this court must assume the truth of the allegations plead. Cruz v. Beto, 405 U.S. 319, 322 (1972). Thus, this court must assume that each of the factual allegations set forth in the "Background" section above are true. This court cannot pierce behind the allegations at this juncture. Retail Clerks Int'l Ass'n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963) (recognizing the court is bound to give plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint).
Defendants assert that plaintiff has done nothing more than state legal conclusions in his pleading. The court does not agree. As is clear from the description of the facts above, plaintiff's complaint provides abundant facts supporting the equal protection claim. Plaintiff specifically identifies members of his alleged group and describes in detail how those persons were treated differently, arbitrarily and unfairly, in comparison to other, specific members of the "team-players" group, who received allegedly favorable treatment.
Thus, for this over-arching reason, defendants' motion should be DENIED.
However, the court also finds defendants' specific challenges to the allegations describing plaintiffs' group members unpersuasive. With respect to each of the group members, plaintiff has adequately alleged that due to their refusal to participate in criminal activity and/or based on their complaints or reports of illegal activity by the City and its employees, these persons were considered "non-team players" by defendants and were treated arbitrarily and unfairly in comparison to those "team-players" who participated in illegal activities and did not report about wrongdoing by defendants.*fn6 (FAC, ¶s 85.2, 85.13, 85.14, 85.15, 85.16, 85.17, 85.18.) Under the Federal Rules' notice-pleading standards, such allegations alone are sufficient to state an equal protection claim under Engquist. Fed. R. Civ. P. 8(a)(2) (requiring only a "short and plain statement of the claim showing that the pleader is entitled to relief"); Bell Atlantic, 127 S.Ct. at 1973 (holding that only where a plaintiff has not "nudged [his or her] claims across the line from conceivable to plausible," is the complaint properly dismissed).
In this case, however, plaintiff did not stop with these general allegations. He chose instead to provide additional facts, giving, in many respects, specific examples of the wrongdoing confronted by himself and the other employees within his class. Such further, more specific allegations are not required under the Federal Rules but they are permitted. Here, the additional allegations provide defendants with more notice, than is required by the Rules, of the nature of plaintiff's claim and the bases for which he will allege liability.
For example, plaintiff describes (1) as to Green, that he was forced to resign as a result of his favorable testimony to plaintiff at an arbitration proceeding and after disclosing his knowledge of misconduct by Siemens involving Siemens' personal use of his police vehicle; (2) as to Bostian, she was ultimately terminated for reporting sexual harassment by defendants; (3) as to Nunez, though once considered a "team-player," he became a non-team player when he reported misconduct by a co-worker involving distribution of pornographic materials, and he was ultimately forced to retire; (4) as to Anderson, her fitness to return to work after a work-related injury was challenged by the City, and she was not allowed to return to work after she was prepared to give favorable testimony to plaintiff in arbitration proceedings; (5) as to Cox, he was brought up on disciplinary charges after refusing to give false testimony and instead testifying favorably to plaintiff in arbitration proceedings; and (6) as to Browning, he was stripped of his normal duties as a volunteer firefighter because he refused to give false testimony at plaintiff's arbitration proceedings and due to his complaints about Officer Newman's retention as a police officer, despite Newman's conviction for theft of police evidence involving pornographic materials. With respect to most of these persons, plaintiff also provides specific examples of how similar conduct by members of the "team-players" group was not disciplined by defendants, and/or how despite similar conduct by "team-players," they received favorable treatment by defendants.
Plaintiff's allegations meet the standards of Engquist. Plaintiff has alleged facts to show that defendants have made "class-based decisions . . . treating distinct groups of individuals categorically different." 128 S.Ct. at 2155. Unlike his original complaint which only alleged individualized, subjective personnel decisions that were made on an arbitrary and irrational basis, in the amended complaint, plaintiff has alleged "class-based treatment where a distinct group of individuals is treated differently." (Sept. 22 Order at 9:16-22.)
Accordingly, defendants' motion to dismiss is DENIED.
B. Motion to Strike
Defendants alternatively move to strike the above referenced allegations pertaining to the other members of plaintiffs' alleged group of "non-team players," including Green, Bostian, Nunez, Cox, Anderson, and Browning (FAC at ¶s 85.2 and 85.13-85.18), on the ground the allegations fail to establish that these persons are members of a group that refused to engage in criminal activity and reported violations of law by the City and its employees. For the reasons set forth above, the court finds that the allegations sufficiently establish these persons' participation in the "non-team players" group which was allegedly treated differently, and thus, there is no basis to strike the allegations under Rule 12(f). These are the critical allegations establishing a cognizable class of persons sufficient to state an equal protection claim under Engquist. As such, the court cannot find the allegations "immaterial, impertinent, or scandalous." Fed. R. Civ. P. 12(f).
Finally, defendants move to strike certain allegations supporting the equal protection claim, alleging they do not establish that the relevant persons "participated in illegal activity and/or [failed] and [refused] to report such illegal activity," and thus, plaintiff has not alleged that these persons were members of the class allegedly receiving more favorable treatment. (See FAC at ¶s 85.4-85.5, 85.6-85.8, 85.9, 85.12.) Defendants also maintain that in other respects these allegations are irrelevant to the claim and present scandalous facts designed to embarrass and harass the City employees involved in the incidents.
First, defendants read these allegations too narrowly. In most respects, the allegations set forth how similar persons, who were considered "team-players" by defendants, engaged in misconduct similar to the "non-team players" but were not similarly disciplined by defendants. To the extent these allegations do not provide such a specific comparison, the allegations provide context and background to the particular incidents described, and thus, they are properly alleged in the complaint. Lilley v. Charren, 936 F. Supp. 708, 713 (N.D. Cal. 1996) (holding that a motion to strike should not be granted unless it is absolutely clear that the matter to be stricken could have no possible bearing on the litigation). Moreover, to the extent certain of these allegations raise facts of a highly personal or sexual nature, the court finds the allegations nonetheless pertinent to plaintiff's equal protection claim. The allegations do not unduly prejudice the persons involved, and they demonstrate how certain misconduct, some of a sexual nature, by employees within the "team players" group was not punished by defendants, yet similar conduct by "non-team players" was disciplined.
In sum, Rule 12(f) motions are generally viewed with disfavor and ordinarily should be denied because of the limited importance of the pleadings in federal practice. Bureerong v. Uvawas, 922 F. Supp. 1450, 1478 (C.D. Cal. 1996). Such is the case here. The court finds no grounds to strike the subject allegations as they provide, at a minimum, context to plaintiff's equal protection claim, if not directly material facts to establish the alleged differential treatment, and they are not "scandalous" within the meaning of the Rule.
For the foregoing reasons, defendants' motion to dismiss plaintiff's equal protection claim or, alternatively, to strike certain allegations supporting that claim is DENIED in its entirety.
IT IS SO ORDERED.