Ardalan v. McHugh
| Decision Date | 04 August 2014 |
| Docket Number | Case No. 13-cv-01138-BLF |
| Court | U.S. District Court — Northern District of California |
| Parties | FERIAL KAREN ARDALAN, Plaintiff, v. JOHN MCHUGH, et al., Defendants. |
[Re: ECF No. 54]
Plaintiff Ferial Karen Ardalan ("Ardalan" or "Plaintiff") brings this First Amended Complaint ("FAC") against Defendant John McHugh, Secretary of the Army ("McHugh" or "Defendant"), alleging that Defendant terminated Plaintiff from her position as an instructor at the Defense Language Institute Foreign Language Center ("DLI") and failed to rehire her for discriminatory reasons, and that Defendant and employees of DLI engaged in a longstanding conspiracy to retaliate against Plaintiff in response to her whistleblowing activities. Plaintiff further brings a Motion for Leave to File a Second Amended Complaint, Equitable Estoppel and Tolling the Statute of Limitations ("Mot. for Leave"). Defendant opposes Plaintiff's Motion for Leave, and moves to dismiss the First Amended Complaint in its entirety.
Having reviewed the submissions and oral argument of both parties and considered the relevant law and the record in this case, the Court GRANTS Defendant's Motion to Dismiss, but grants Plaintiff leave to amend, pursuant to the terms of this Order, with regard to her claims for discrimination under Title VII and the Whistleblower Act. All other claims are DISMISSED WITH PREJUDICE. The Court further DENIES in its entirety Plaintiff's Motion for Leave.
Plaintiff filed her initial complaint in the instant case on March 13, 2013, bringing suit against three Defendants, McHugh, Congressman Sam Farr, and Carlton Hadden, Director of the Office of Federal Operations for the United States Equal Employment Opportunity Commission. (ECF 1) Farr filed a Motion to Dismiss on June 3, 2013. (ECF 16) McHugh and Hadden filed a separate Motion to Dismiss one day later, on June 4, 2013. (ECF 19) Plaintiff responded to the Motions to Dismiss on June 18, 2013. (ECF 29) On June 25, 2013, Farr filed a Reply, (ECF 31), and McHugh and Hadden filed a separate Reply. (ECF 32)
On November 27, 2013, the Court granted the Motions to Dismiss. (Dismissal Order, ECF 49) The Court granted Plaintiff leave to amend on four separate causes of action: (1) violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., for employment discrimination; (2) violation of the Whistleblower Protection Act of 1989 ("Whistleblower Act"), 5 U.S.C. § 2302, for retaliation; (3) violation of the Privacy Act of 1974 ("Privacy Act"), 5 U.S.C. § 552(a), for adding Plaintiff's Social Security number onto her EEOC complaint forms without her consent; and (4) "common law tort" claims, which the Court construed to be claims under the Federal Tort Claims Act ("FTCA"). (ECF 49) The Court provided detailed instruction to Plaintiff in the ways in which amendment was needed in order to cure the jurisdictional and factual defects in these four causes of action. (Id.) The Court dismissed with prejudice Plaintiff's other five claims. (Id.) The claims dismissed with prejudice include two claims that the Plaintiff has realleged in the FAC: (1) a claim under 18 U.S.C. § 242 for infringement upon Plaintiff's constitutional rights, and (2) a claim under 28 U.S.C. § 1343 for deprivations of her civil rights. (Id.) In dismissing Plaintiff's Complaint, the Court held that "res judicata bars all of Ardalan's claims insofar as they allege violations that occurred prior to October 2, 2001." (Dismissal Order, ECF 49 at 11, 11-13)
On February 25, 2014, Plaintiff filed an FAC, alleging five causes of action and seeking various forms of compensatory and punitive damages. (ECF 51) Plaintiff's FAC sought relief only against McHugh, and she did not join Farr or Hadden as Defendants. (Id.) Defendant McHugh filed a Motion to Dismiss the FAC on March 25, 2014. (ECF 54) Plaintiff filed an Opposition on April 7, 2014. (ECF 55) Defendant replied on April 10, 2014. (ECF 56)
On May 5, 2014, before oral argument was heard on Defendant's Motion to Dismiss, Plaintiff filed a Motion for Leave, in order to file a Second Amended Complaint, and seeking equitable estoppel and tolling of the statute of limitations ("Mot. for Leave"). (ECF 63) Defendant opposed on May 12, 2014 ("Opp. to Mot. for Leave"), (ECF 66), and Plaintiff filed a Reply on May 16, 2014. (ECF 68)
At oral argument, Plaintiff informed the Court that she had recently discovered new evidence that would support her claims. She did not during the hearing inform the Court of the nature of this evidence. The Court provided Plaintiff the opportunity to file a supplemental brief detailing this new evidence, which Plaintiff filed on June 19, 2014 ("Pl.'s Supp. Brief"). (ECF 71) Defendant filed a timely Response to this brief, ("Def.'s Resp. to Supp. Brief), on June 25, 2014. (ECF 72)
Plaintiff has previously filed four civil actions in this District related to her claims of retaliation and discrimination. See Ardalan v. Monterey Institute Int'l Studies, Case No. 03-cv-01075-JDF (filed June 18, 2004); Ardalan v. White, Case No. 01-cv-20935-JW (filed Oct. 2, 2001); Ardalan v. Caldera, Case No. 99-cv-20465-JW (filed May 20, 1999); Ardalan v. USA, Case No. 95-cv-20044-JW (). All four complaints resulted in dismissal or summary judgment in favor of defendants. See ids. Three of the decisions were affirmed by the Ninth Circuit. See Ardalan v. Monterey Institute Int'l Studies, 141 Fed. App'x 536 (9th Cir. 2005); Ardalan v. White, 58 Fed App'x 350 (9th Cir. 2003); Ardalan v. Caldera, 24 Fed. App'x 827 (9th Cir. 2001).
In addition to her civil complaints, Plaintiff has filed twenty-three (23) separate complaints with the United States Equal Employment Opportunity Commission ("EEOC") regarding her termination as an instructor at DLI, and DLI's subsequent decisions not to rehire her. Plaintiff further alleges in these EEOC complaints a conspiracy amongst employees at DLI, including managerial staff, to retaliate against her for engaging in protected whistleblowing activities. (See, e.g., ECF 20 Exhs. A-E)
Plaintiff is an Iranian-born American citizen. (FAC, ECF 51 ¶ 1) From October 1989 through October 20, 1995, she was employed by DLI as a Farsi language instructor. Defendant is the Secretary of the United States Army. (Id. ¶ 10) DLI is an Army language school, operating in Monterey, California, which provides training in various foreign languages for military and civilian employees of the United States government. (Id. ¶¶ 1 n.1, 11)
Plaintiff alleges that she was terminated in 1995 because she engaged in whistleblowing activities to the National Security Administration. She describes this whistleblowing as "innocently and in good faith respond[ing] to the NSA Educational Investigators on the quality of the Persian language curriculum and ma[king] suggestions for the improvement of the curriculum," (FAC ¶ 56), along with other various reports she has filed with the EEOC, the Department of Labor, and statements she has made to local newspapers. (Id. ¶¶ 52, 56) She further alleges in her FAC that she has been "blackballed" by DLI after reporting "continual workplace daily physical and verbal sexual harassment (touching, caressing & requesting cuddling in her home)" that she was subjected to while employed at DLI, (id. ¶ 52), including writing letters to Congressmen Leon Panetta and Sam Farr, and to commanders and managers at DLI. (Id.)
Plaintiff does not in her FAC describe the reason for her termination in 1995, other than as a "constructive discharge." (FAC ¶ 4) Defendant, however, contends that Plaintiff was terminated for cause after being absent without leave ("AWOL"). (See ECF 19 at 3, see also Def.'s Reply, ECF 56 at 3 ()) Plaintiff does not allege in her FAC that her actual termination was for any reason other than cause, butrather that DLI retaliated against Plaintiff (and continues to do so) by failing to re-hire her. The operative adverse personnel actions in this FAC, therefore, are the times in which Plaintiff applied for positions with DLI and was not re-hired, and not her termination in 1995.
Plaintiff asserts that, following her termination, Defendant and employees at DLI engaged in a longstanding, nearly twelve-year conspiracy to deny her reemployment, both at DLI and elsewhere. (See FAC ¶¶ 2, 25)1 Plaintiff charges that these individuals both knowingly gave adverse employment references to those at DLI responsible for hiring employees, and placed adverse employment references with other prospective employers who contacted DLI to verify Plaintiff's previous employment. (Id.) Plaintiff states that, between 2002 and 2012, she has applied for "almost 90 vacancies" at DLI, (id. ¶ 17), including in DLI's Persian Farsi and English as a Second Language ("ESL") programs. She further states that she was placed on "some sort of black list," (id. ¶ 36a), that a "red tag" signifying she was "terminated for cause - not rehireable" was placed on her applications, (id. ¶ 60), and that her applications for employment went "unanswered." (Id.) Apart from her applications to DLI, Plaintiff additionally alleges that "any prospective employer/s contacting the Agency CPO for employment verification [were told] that Plaintiff's 'termination was for cause.'" (Id. ¶ 36c)
After Plaintiff was not selected for any of the positions for which she applied at DLI, she filed complaints with the EEOC. (FAC ¶¶ 41-43) Plaintiff does not allege that the EEOC has ever found that DLI engaged in discriminatory or retaliatory treatment against Plai...
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