Ardalan v. McHugh

• Decision Date: 27 November 2013
• Docket Number: Case No.: 13-CV-0113B-LHK
• Citation: Ardalan v. McHugh, Case No.: 13-CV-0113B-LHK (N.D. Cal. Nov 27, 2013)
• Parties: FERIAL KAREN ARDALAN, Plaintiff, v. JOHN MCHUGH, SECRETARY OF THE ARMY; UNITED STATES REPRESENTATIVE SAM FARR; CARLTON HADDEN, DIRECTOR OF THE OFFICE OF FEDERAL OPERATIONS OF THE EEOC, Defendants.
• Court: U.S. District Court — Northern District of California

FERIAL KAREN ARDALAN, Plaintiff, v. JOHN MCHUGH, SECRETARY OF THE ARMY;UNITED STATES REPRESENTATIVE SAM FARR;CARLTON HADDEN, DIRECTOR OF THE OFFICE OFFEDERAL OPERATIONS OF THE EEOC, Defendants.

Case No.: 13-CV-0113B-LHK

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

Dated: November 27, 2013

ORDER GRANTING DEFENDANTS'

MOTIONS TO DISMISS AND

DENYING PLAINTIFF'S MOTIONS

FOR DEFAULT JUDGMENT

PlaintiffFerial Karen Ardalan("Ardalan") brings this Complaint against DefendantsJohn McHugh, Secretary of the Army ("McHugh"); United States Representative Sam Farr("Farr"); and Carlton Hadden, Director of the Office of Federal Operations of the United States Equal Employment Opportunity Commission("Hadden"), (collectively, "Defendants") alleging that Defendants discriminatorily terminated and declined to rehire Plaintiff, and participated in a vast conspiracy to retaliate against Plaintiff for whistleblowing.SeeECF No. 1.Defendant Farr moves to dismiss Ardalan's Complaint, seeECF No. 16, and Defendants McHugh and Hadden separately move to dismiss the Complaint, seeECF No. 19.Pursuant to Civil LocalRule 7-1(b), the Courtfinds this matter appropriate for resolution without oral argument.Plaintiff also moves for default judgment against McHugh and Hadden.SeeECF No. 38.¹Having considered the submissions of the parties, the relevant law, and the record in this case, the Court GRANTS Farr's Motion to Dismiss, GRANTS McHugh and Hadden's Motion to Dismiss, and DENIES Plaintiff's Motions for Default Judgment.

I.BACKGROUND

A.Procedural History

1.The Instant Case

Ardalan filed her Complaint on March 13, 2013.SeeECF No. 1.Defendant Farr filed his Motion to Dismiss on June 3, 2013.SeeECF No. 16.Defendants McHugh and Hadden filed their Motion to Dismiss on June 4, 2013.SeeECF No. 19.On June 18, 2013, Ardalan filed a Response to these Motions to Dismiss.SeeECF No. 29.On June 25, 2013, Farr filed a Reply, seeECF No. 31, and McHugh and Hadden filed a separate Reply, seeECF No. 32.

Additionally, Ardalan filed a Motion for Default Judgment against Farr on June 18, 2013.SeeECF No. 30.On June 25, 2013, Farr filed an Opposition to the default judgment motion as part of his reply in support of his Motion to Dismiss.SeeECF No. 31.On July 8, 2013, Ardalan voluntarily withdrew the Motion for default judgment against Farr.SeeECF No. 37.Ardalan filed a separate Motion for Default Judgment against McHugh and Hadden on July 9, 2013.SeeECF No. 38.McHugh and Hadden filed their Opposition to the default judgment motion against them on July 10, 2013.SeeECF No. 40.Ardalan filed a Reply on July 15, 2013.SeeECF No. 41.

2.Administrative Actions and Previous Litigation

Ardalan has filed 23 complaints with the United States Equal Employment Opportunity Commission("EEOC") regarding her termination as an instructor at the United States Army's Defense Language Institute Foreign Language Center ("DLI"), DLI's subsequent decisions declining to rehire her, and an alleged conspiracy among Defendants and various DLI managers to retaliate against her for whistleblowing regarding DLI's curriculum.SeeECF No. 20, Ex. Aat 2.Ardalan has also filed four civil actions in this District related to these same alleged practices.SeeArdalan v. Monterey Inst. Int'l Studies, Case No. 03-CV-1075-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, removed to federal court on Jan. 10, 1995.In all four cases, the courts either dismissed Ardalan's complaint or granted summary judgment in favor of defendants, see ids., and three of the four district court decisions were affirmed by the Ninth Circuit.SeeArdalan v. Monterey Inst. Int'l Studies, 141 Fed. App'x 536 (9th Cir. 2005), affingCase No. 03-CV-01075-JDF;Ardalan v. White, 58 Fed. App'x 350 (9th Cir. 2003), affingCase No. 01-CV-20935-JW;Ardalan v. Caldera, 24 Fed. App'x 827 (9th Cir. 2001), affingCase No. 99-CV-20465-JW.

B.Factual Allegations

Ardalan is an Iranian-born American who was employed as a Farsi language instructor at DLI from October 2, 1989, until her termination on October 20, 1995.ECF No. 1 ¶¶ 1, 14;ECF No. 29at 15.Defendant McHugh currently serves as Secretary of the United States Army; Defendant Farr is the United States Representative for the 20th Congressional District of California, which includes Monterey, California, where DLI is located; and Defendant Hadden is the Director of the Office of Federal Operations at the EEOC.²SeeECF No. 1 ¶¶ 98-102;ECF No. 16at 1;ECF No. 19at 2.The DLI is a United States Army language school that provides foreign language instruction, including Farsi, Arabic, and various Eastern European languages, to military personnel and civilian personnel employed by the United States government.SeeECF No. 1 ¶ 1 n.1.

Ardalan alleges that DLI terminated her in October 1995 because, "in 1992[she] engaged in innocent and good faith whistle blowing acts" against the language school.SeeECF No. 1 ¶ 54.Ardalan further alleges that, since 2002, she has applied for various positions at DLI but has been"denie[d] almost 90 vacancies."SeeId.¶¶ 3, 33.After being denied these "several employment applications for multiple vacancies in Persian Farsi language and ESL at DLI and/or other sister language schools," Ardalan "engaged in timely EEO[C][c]omplaint procedures" against DLI.Id. at 33.It appears DLI contended that Ardalan was terminated for cause after being absent without leave ("AWOL").ECF No. 19at 3.Ardalan acknowledges that, in all cases, the EEOC found that DLI staff engaged in "no discrimination or retaliation" in declining to rehire Ardalan.SeeECF No. 1.

In the instant proceeding, Ardalan asserts that the EEOC's repeated findings of non-discrimination were erroneous for three reasons.First, she alleges that DLI's policy of not rehiring individuals previously terminated for cause (the "No Hire policy") was not a formal, written policy until August 18, 2008.Thus, she claims, the No Hire policy could not have been in effect when Ardalan was terminated in 1995, or when she applied for rehire prior to August 18, 2008.Id.¶¶ 43-46.Second, Ardalan alleges that "she[was] treated disparately by the Defendants and their agents, who have denied her equal protection under the law,"id.¶15, and that Defendants"ha[ve] retaliated against [her], an Iranian born American of Persian ancestry,"id.¶¶ 11.

Third, Ardalan alleges that the refusal to rehire her and the unfavorable outcome of her EEOC proceedings were the result of a "continual conspiracy" to punish her for her 1992 whistleblowing.Seeid.¶ 4.According to Ardalan, in "July-August" of 1992, she told National Security Agency officials investigating DLI's curriculum that the school's Farsi curriculum was "outdated and required revision."Id.¶76.Ardalan states that this report "led to the disclosure of the [DLI] civilian management's long term failure to update [the curriculum]."Id.¶¶ 78.This, according to Ardalan, caused the DLI provost, "who was receiving government funds for the unsuccessful curriculum developments, [to] orchestrate[] vast retaliatory measures against [Ardalan]."Id.This conspiracy included "[d]enial of promotions ... demotion causing reduction of salary ... [b]lackballing Plaintiff through conspiracy with his administration ... [and] instructing [DLI staff] to make sure Plaintiff would never be rehired at DLI."Id.¶¶ 79.

"The conspirators," including all three Defendants and numerous other staff at the DLI and EEOC, allegedly "denied [Ardalan] employment not just at DLI ... but at other sister language schools, and local colleges,"id.¶ 1;"placed a 'Red Label' stating 'Not Eligible for Rehire' on [her] employment file,"id.¶ 5; and "tamper[ed]" with the "dates, facts and evidence," of Ardalan's complaints filed in this District, id.¶ 2.Ardalan also alleges that the unfavorable outcomes of her EEOC proceedings were the result of "the EEOC, once again, knowingly and maliciously accommodat[ing] DLI and the conspirators by issuing the [d]ecisions for DLI and the perpetrators."Id.¶ 4.Finally, Ardalan states that Defendants Farr and Hadden have, since 1996, "interfered with the investigations and/or grievance procedures [regarding these employment claims] causing the denial of Plaintiff's federally protected rights."Id.¶ 12.

Based upon the DLI's alleged discriminatory employment practices and Defendants' alleged conspiracy to punish Ardalan for whistleblowing against DLI, Ardalan asserts the following causes of action in her Complaint: (1) violation 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 her right to free speech under the First Amendment of the United States Constitution, (3) violation of the Fourteenth Amendment of the United States Constitution for denial of equal protection under the law; (4) violation of the Whistleblower Protection Act of 1989 ("Whistleblower Act"), 5 U.S.C. § 2302, for retaliation; (5) violation of 18 U.S.C. §§ 1505,1506,1512, and1622and42U.S.C. §§ 1505and1506 for obstruction of justice, obstruction of proceedings, document tampering, witness tampering, subornation of perjury; (6) violation of the Civil Rights Act("Civil Rights Act"), 42 U.S.C. §§ 1981,1983,1985, and1986, for deprivation of civil rights; (7) violation of the Privacy Act of 1974("Privacy Act"), 5 U.S.C. § 552(a), for inserting Plaintiff's Social Security number on her EEOC complaint forms against her wishes; (8) violation of 18 U.S.C. §§ 242and245, for infringement upon Plaintiff's constitutional rights; and (9)"common law tort" violations.Id.¶¶ 14-70, 73.Ardalan identifies 28 U.S.C. § 1331and§ 1343 as jurisdictional bases for her suit.³Id.¶¶ 71-72.

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