The opinion of the court was delivered by: Honorable Candy W. Dale Chief United States Magistrate Judge
MEMORANDUM DECISION AND ORDER
Plaintiff Dana Ross, a former Ada County Deputy Sheriff, brings this employment action asserting he and others similarly situated were discriminated against on the basis of age, and that he was further discriminated against on account of his disability. Ross claims he was discharged from employment in retaliation for complaining about the discriminatory treatment. Ada County brings several motions taken together that argue Ross, while he may bring his own individual claims, is precluded from asserting a collective action claim.
The Court conducted a hearing on June 28, 2010, on Defendant Ada County's Motion to Dismiss and two Motions to Strike (Dkt. 7, 8, 30), and Ross's Motion to Amend Complaint (Dkt. 22). After the Court issued its Notice of Hearing on these motions, Ross on June 18, 2010, filed a Motion for Leave to File Restated Amended Complaint. (Dkt. 35.) The proposed Restated Amended Complaint is identical to the proposed Amended Complaint (Dkt. 22), with the exception of additional claims relating to a second Plaintiff, Curtis Egge, who also alleges discrimination both individually and on behalf of others similarly situated.
Although Ada County filed its Motion to Dismiss in response to the collective action claims Ross asserted in the Complaint, Ross continues to assert collective action claims, along with his individual claims, in the proposed Restated Amended Complaint. Therefore, the Court considers Ada County's arguments that Ross's collective action claims should be dismissed equally applicable to Ross's collective action claims in the proposed Restated Amended Complaint.
In addition, the Court stated at the hearing its intent to consider Plaintiff's motion to file the proposed Restated Amended Complaint without a further hearing. The Court directed the parties to address whether Egge could be added as a plaintiff under Fed. R. Civ. P. 15, and whether Ross, if he could not assert collective action claims, could opt-in to Egge's collective action claims. On June 29, 2010, Ada County filed a response brief to the motion to file the proposed Restated Amended Complaint. Ross chose not to file a reply brief by the deadline of July 16, 2010. The matter is now ripe for review.
After considering the briefs, oral argument, and relevant authorities, the Court has identified the following disputed issues: (1) whether Ross's collective action claims asserted in the Complaint must be dismissed, thereby precluding Ross from continuing to assert such claims in the proposed Restated Amended Complaint; (2) whether the proposed Restated Amended Complaint can join Egge as a plaintiff; and (3) if Ross cannot assert collective action claims, whether Ross may "opt-in" to Egge's collective action claims. The Court has concluded Ross may file an amended complaint with both he and Egge as plaintiffs asserting their respective individual claims. But while Egge may assert a collective action claim, Ross may not join or otherwise opt-in to that claim. The Court's decision follows.
Ross filed his Complaint on December 17, 2009, seeking injunctive, declaratory, and class-wide relief against Defendants Ada County and its governmental sub-unit, the Ada County Sheriff's Office, Gary Raney in his official capacity as Ada County Sheriff, and the State of Idaho, Idaho State Police. Ross claims he was wrongfully discharged from his employment with the Ada County Sheriff's Office because of his age and on account of a disability, which has left him unable to hear from one ear. On February 24, 2010, Ross filed a notice of voluntary dismissal of the claims against Defendants State of Idaho, Idaho State Police, and Gary Raney contained in Counts III (equal protection claim) and IV (declaratory relief claim) of the Complaint.
In the Complaint and proposed Restated Amended Complaint against the sole remaining defendant, Ada County,*fn1 Ross alleges age discrimination under the Age Discrimination in Employment Act, 29 U.S.C. § 621 ("ADEA"), and retaliatory discharge on account of age and disability discrimination under the Americans With Disabilities Act, 42 U.S.C. § 12117(a) ("ADA"), while Egge alleges he was terminated in violation of the ADEA. (Compl. ¶. Counts I, II, Dkt. 1; Proposed Restated Am. Compl. ¶. Counts II, III, Dkt. 35-1.) Ross and Egge bring their respective collective action claims in Count I under the ADEA on behalf of themselves and any other persons similarly situated who might opt into this action. (Compl. ¶. ¶ 5; Proposed Restated Am. Compl. ¶. Count I, Dkt. 35-1.)
2. Factual Background*fn2
Ross was employed as an Ada County Sheriff's deputy from March of 1989 until his employment was terminated on or about December 14, 2006. (Compl. ¶. ¶¶ 1, 8, 13, Dkt. 1; Gary Raney Aff. ¶ 3, Dkt. 7-2.) According to Ada County, in September of 2006, while on duty, Ross "became agitated at a 12-year-old child and struck the child in the face inside the child's home and in front of his parents and his younger sibling." (Gary Raney Aff. ¶ 4.) The boy's parents complained about Ross's conduct to the Ada County Sheriff's Office. (Id.) As a result of an investigation, the Ada County Sheriff's Office determined that Ross had struck the boy, and that Ross's use of force was unjustified in violation of Ada County Sheriff's Office policies. (Id. at ¶ 5.) Thereafter, the Ada County Sheriff's Office terminated Ross's employment. (Id. at ¶ 6.)
In the Complaint, Ross alleges that he was not terminated for cause, but that he and other older employees were discriminated against by the Ada County Sheriff's Office, and that Ada County retaliated against him for asserting his rights under the ADEA and ADA. Ross contends that, beginning in April of 2004, he was subjected to a constant barrage of disparaging remarks regarding his age and regarding his disability. (Compl. ¶. ¶ 19--23.) Ross asserts that after he brought such disparaging remarks to his superiors' attention, he was subjected to "unusually close scrutiny of his job performance," and thereafter his employment was terminated while younger employees were not disciplined for the same type of conduct. (Compl. ¶. ¶ 23--24.) Ross makes the same factual and legal claims in the proposed Restated Amended Complaint. (Dkt. 35-1.)
3. Ross's Formal Charges of Discrimination
Before his employment was terminated, Ross filed formal charges with the Idaho Human Rights Commission ("IHRC") and the Equal Employment Opportunity Commission ("EEOC"), and again filed a formal charge after his discharge from employment. The content of those notices are the subject of Ada County's Motion to Dismiss. Turning now to the charges Ross filed with the IHRC and the EEOC, there does not appear to be any dispute about the following facts.*fn3
On or about November 7, 2005, Ross filed a Charge of Discrimination with the IHRC alleging discrimination on the basis of age and disability during a period between April 28, 2004 and November 2, 2005 ("2005 Charge"). (Compl. ¶. ¶ 25; Proposed Restated Am. Compl. ¶. Ex. 1, Dkt. 35-1.) The IHRC identified the Charge as File Number 380-2006-00090. The 2005 Charge was forwarded to the EEOC and similarly identified as File Number 380-2006-00090. (Aff. of Petty Ex. A, Dkt. 23-1.) On or about November 9, 2005, the EEOC issued a Notice of Charge of Discrimination to Ada County. (Id.). On or about January 4, 2006, Ross amended the 2005 Charge to allege that he was filing his charges of discrimination on behalf of himself and others similarly situated ("Amended 2005 Charge"). (Compl. ¶. ¶ 26; Proposed Restated Am. Compl. ¶. ¶ 26; Aff. of Thomas Ex. A, Dkt. 20-1; Aff. of Petty Ex. A, Dkt. 23-1.) On January 10, 2006, the EEOC issued to Ada County a Notice of Charge of Discrimination attaching the Amended 2005 Charge, thereby notifying Ada County of the collective nature of Ross's claims. (Aff. of Petty Ex. B, Dkt. 23-1.)
The Amended 2005 Charge set forth that Ross, beginning on or about April 28, 2004, and continuing through the present, was: subjected to a series of actions, that have created a hostile work environment. These actions include unusually close scrutiny of my job performance, the imposition of higher standards of performance, the issuance of inconsistent instructions and feedback and the award of a smaller than average pay increase. Disparaging remarks have been made to me and about me concerning my disability. Management officials stated before witnesses that Patrol Deputies should be 35 years of age or younger. I have complained to officials of the Sheriff's Office about discrimination based on age and disability, but the harassing behavior toward me continues.
The Amended 2005 Charge conspicuously stated that Ross was "filing this charge on behalf of [himself] and other similarly situated employees who work for the Ada County Sheriff's Office." The Amended 2005 Charge concluded with Ross's allegations that he believed he was being discriminated against because of his age in violation of the ADEA and because of his disability in violation of the ADA, as well as subjected to retaliation for his complaints about such matters to his supervisors.
At the conclusion of its investigation on May 22, 2006, the EEOC provided Ross with its Notice of Dismissal and Notice of Rights regarding Charge File No. 380-2006-00090 as amended. (Aff. of Petty Ex. C, Dkt. 23-1.) The Notice of Dismissal indicated that the EEOC was unable to conclude the information Ross provided established a violation of either the ADA or the ADEA as Ross alleged. (Id.) The Notice informed Ross that he had 90 days from the date of receipt of the Notice within which to sue his employer. There is no evidence that Ross filed suit against Ada County within the 90 day period.
After Ross's employment was terminated, Ross filed a second Charge of Discrimination with the IHRC (the "2007 Charge") on or about March 19, 2007, which alleged Ross had been subject to discrimination by his employer between November 2, 2005 and December 11, 2006.*fn4 (Aff. of Raney Ex. A, Dkt. 7; Aff. of Petty Ex. D, Dkt. 23-1.) The 2007 Charge was identified as File Number 551-2007-00841, and does not allege that Ross was filing his charge of discrimination on behalf of himself and others similarly situated. On March 22, 2007, the EEOC issued a Notice of Charge of Discrimination to Ada County, attaching the 2007 Charge. (Id.)
The 2007 Charge states that Ross, while employed as a Deputy with the Ada County Sheriff's Office: filed a charge of Discrimination against the Sheriff's Office with the EEOC [in November of 2005]. Following my filing of that Charge, I was transferred involuntarily and outside normal procedure to an assignment that I considered to be undesirable. Contrary to regular practice, I was issued two performance evaluations, both of which were unfair and negative. I was denied an annual pay increase. On December 11, 2006, I was discharged from employment.
The 2007 Charge concludes that Ross believed the above facts constituted discrimination in violation of the ADEA and ADA, and that he was subjected to retaliation for opposing such discrimination.
On or about January 9, 2009, Ross received a Determination Letter from the EEOC based upon the 2007 Charge, finding reasonable cause to believe Ross was discriminated against in violation of the ADEA on the basis of age and was subjected to retaliation in violation of the ADEA and ADA. (Compl. ¶. Ex. A, Dkt. 1-1.) The IHRC sent a Notice of Right to Sue Letter on January 20, 2009, notifying Ross that he had 90 days from the date of the notice to sue his employer under the Idaho Human Rights Act. (Aff. of Mallet Ex. A, Dkt. 7-3.) According to the record, Ross took no action within the 90 day period.
On or about September 30, 2009, the EEOC sent to Ross a Notice of Right To Sue letter based upon the 2007 Charge, notifying him he had ninety days from the date of the Notice within which to commence a civil action under the ADA and ADEA. (Compl. ¶. Ex. B.) Ross filed the Complaint in this matter on December 17, 2009. (Dkt. 1.)
4. Egge's Charge of Discrimination
Curtis Egge was a commissioned Deputy Sheriff who began employment with Ada County on October 5, 1992, and was discharged from his employment on December 15, 2009. He filed a charge with the EEOC on April 2, 2010, alleging that between approximately August of 2008 and up until his termination from employment in December of 2009, he was subjected to discriminatory treatment on account of his age ("Egge Charge"). (Pl.'s Mot. Ex. F, Dkt. 35-1.) Egge complained that his termination from employment was based upon a minor policy infraction and false accusations, while younger workers who committed equally egregious or more serious infractions were not disciplined with the loss of their jobs. Egge contends that the Ada County Sheriff's Office administration had a policy of discrimination whereby, as employees aged, they would receive consistently poor performance reviews, unattractive job transfers, and be accused of fabricated policy infractions to support termination of their employment. (Pl. Mot. Ex. F, Dkt. 35-1.) In the Egge Charge, Egge conspicuously states he is claiming age bias not only on behalf of himself, but "on behalf of all other current and former employees similarly mistreated and/or situated." (Id.)
1. Ada County's Motion to Strike (Dkt. 8)
On February 10, 2010, Ada County filed a motion to strike under Fed. R. Civ. P. 12(f) all references in the Complaint to Ross's collective action/class action claims, all state law claims, the constitutional claims brought pursuant to 42 U.S.C. § 1983, claims brought under the Idaho Human Rights Act, Idaho Code § 67-5901, claims brought against Defendant Raney, and Counts III and IV of the Complaint. Under Fed. R. Civ. P. 12(f), "[a] court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Motions to strike are, however, generally disfavored and rarely granted. See Tonka Corp. v. Rose Art Industries, 836 F.Supp. 200, 217 (D.N.J., 1993); Pease & Curren Refining, Inc. v. Spectrolab, Inc., 744 F.Supp. 945, 947 (C.D.Cal.1990), abrogated on other grounds, Stanton Road Assocs. v. Lohrey Enters., 984 F.2d 1015 (9th Cir.1993).
Ada County also filed a motion to dismiss with a brief identical to and containing the same arguments as in the one filed in support of its Motion to Strike. (Dkt. 7.) Ross clearly conceded several claims, filing a Notice of Dismissal on February 24, 2010, dismissing Defendant Raney, all claims raised in Counts III and IV of the Complaint, the state law and § 1983 claims, and encompassing the issues raised by Ada County in Sections C through E of its briefs. (Pl.'s Response at 19, Dkt. 19). Ross's proposed Amended Complaint (Dkt. 22-1) and the proposed Restated Amended ...