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Ardalan v. McHugh

United States District Court, N.D. California, San Jose Division

February 10, 2015

JOHN McHUGH, Defendant.



This case arises out of a longstanding employment discrimination dispute between Plaintiff and the Defense Language Institute Foreign Language Center ("DLI"). Plaintiff, who was terminated from her position as an instructor at DLI, alleges that Defendant, the Secretary of the Army, failed to rehire her for discriminatory reasons - namely, her national origin and for engaging in protected whistleblowing activities. Defendant contends that Plaintiff was terminated for cause and that a regulation, DLI Regulation 690-1, [1] precludes him from rehiring any employee so terminated.

Presently before the Court are two motions. First, Defendant moves to dismiss Plaintiff's Second Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Second, Plaintiff seeks leave to bring a second motion for equitable estoppel and equitable tolling, which the Court construes to be a motion for leave to file a motion for reconsideration of its previous order denying Plaintiff leave to file a motion for equitable estoppel. See Dismissal Order, ECF 75 at 26-28. Having reviewed the submissions of the parties and the governing law, the Court DENIES Defendant's motion to dismiss, and further DENIES Plaintiff's motion for leave.


This case, and the underlying dispute from which it arises, has a complex and lengthy history. The Court provided a detailed explanation of the procedural and factual history of the case in its prior Dismissal Order. See Dismissal Order at 2-6. In that Dismissal Order, the Court dismissed with prejudice all of Plaintiff's claims except two: a claim for relief under the federal Whistleblower Protection Act, 5 U.S.C. § 2302, and a mixed-case discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The Court granted Plaintiff leave to amend in order to allege that she was not rehired by DLI because of both her national origin and her whistleblowing activities.

Plaintiff timely filed a Second Amended Complaint ("SAC"), in which she alleges that she is a former Persian Farsi language instructor at DLI. SAC ¶ 1.[2] Following her termination, she applied for more than ninety vacant positions at DLI, though she was not selected for any of those positions. SAC ¶ 43. Though Plaintiff alleges that she has been discriminated against in various ways with regard to nearly all of her non-selections, this case concerns only six non-selections that occurred between 2009 and 2011. See, e.g., Dismissal Order at 17.[3] Plaintiff claims Defendant's argument that she was terminated for cause and thus not re-hireable is pretextual, SAC ¶ 84, and that DLI regulation 690-1, on which Defendant relies in support of his position that employees terminated for cause are per se not re-hireable, "has not yet been included and/or published in any of the vacancy announcements [for DLI positions], and there is no showing that any such Policy' was legitimately enacted or used as a uniform No Hire Policy.'" SAC ¶ 85.

Plaintiff contends that she has "been denied her rights to employment not just at DLI and other Army sister language schools, but at local colleges and universities, " SAC ¶ 22, due to a "conspiracy to deny [employment to] Plaintiff, from the Iranian national origins, from a protected class, and for her continual whistle blowing activities." SAC ¶ 23. Plaintiff contends that she was subjected to differential treatment based on her national origin because she, "a terminated employee from an Iranian national origin, " was treated disparately from "similarly situated applicants not in Plaintiff's protected class." SAC ¶ 80. Plaintiff alleges that three DLI employees who are not Iranian and were not whistleblowers - Mr. Jack Franke, Ms. Hana Yarkon, and Ms. Esti Tabak - were terminated by DLI but subsequently rehired, SAC ¶¶ 80-81, 89, 94, which she claims "indicat[es] that the alleged Policy' was not legitimately enacted or used... and [] was not implemented and/or applied uniformly at DLI." SAC ¶ 87.

Defendant moves to dismiss for several reasons. First, he argues that Plaintiff has failed to plead that she was not rehired by DLI on the basis of her national origin. Second, he argues that she has not sufficiently pled that she was eligible to be rehired, because an employer cannot be held liable for a failure to hire an individual who was categorically ineligible to be hired under a neutral, generally applicable no-hire policy. Third, he argues that Plaintiff has not sufficiently shown that the terminated employees DLI allegedly rehired were similarly situated to her. Finally, Defendant argues that Plaintiff has not pled any facts that link her purported whistleblowing - which took place from 1992 to 1994 - to DLI's failure to rehire her from 2009 to 2011, contending that "such a long delay between her alleged whistleblowing activities and the six non-selections [at issue]... does not raise an inference of retaliation." Mot. to Dismiss at 12.[4]

Plaintiff opposes the motion, and also seeks leave to file a motion for equitable estoppel and equitable tolling, based on her contention that Defendant has engaged in the fraudulent concealment of facts that prevented Plaintiff from filing suit. See Mot. for Leave, ECF 78 at 1. The Court has previously denied a similar request by Plaintiff. See Dismissal Order, ECF 75 at 24-28. Defendant opposes the motion for leave. See ECF 80.


A. Rule 12(b)(1)

A motion to dismiss under Rule 12(b)(1) challenges whether a court has subject matter jurisdiction to hear the action. In deciding a Rule 12(b)(1) motion, the court is not restricted to the pleadings, but can also "review any evidence, such as affidavits and testimony, to resolve factual disputes regarding the evidence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). Once subject matter jurisdiction is challenged, the party opposing the motion bears the burden of establishing jurisdiction. See, e.g., Chandler v. State Farm Mut. Auto Ins. Co., 598 F.2d 1115, 1122 (9th Cir. 2010).

B. Rule 12(b)(6)

A motion to dismiss under Rule 12(b)(6) concerns what facts a plaintiff must plead on the face of her claim. Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Any complaint that does not meet this requirement can be dismissed pursuant to Rule 12(b)(6). In interpreting Rule 8(a)'s "short and plain statement" requirement, the Supreme Court has held that a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face, " Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), which requires that "the plaintiff plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This standard does not ask a plaintiff to plead facts that suggest she will probably prevail, but rather "it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. ...

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