Marilyn Gladle v. Denis McDonough

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:24-cv-08312-CAS-JCx Date July 17, 2025

Title Marilyn Gladle v. Denis McDonough

Present: The Honorable CHRISTINA A. SNYDER

Catherine Jeang Not Present N/A

Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

Not Present Not Present

Proceedings: (IN CHAMBERS) - MOTION TO DISMISS (Dkt. 17, filed on

May 30, 2025)

I. INTRODUCTION

On September 25, 2024, plaintiff Marilyn Gladle (“Gladle”) filed her complaint

against defendant Secretary of the Department of Veterans Affairs (“the VA”) Denis

McDonough (the “Secretary” or “defendant’) asserting three claims for relief: (1)

retaliation and reprisal for engaging in protected activity under Title VII; (2) violation of

the Rehabilitation Act of 1973, 29 U.S.C. § 710 et seq.; and (3) creation of a hostile work

environment in violation of Title VII of the Civil Rights Act of 1964. Dkt. 1

(“Complaint”).

On May 30, 2025, the Secretary filed a motion to dismiss the Complaint. Dkt. 17.

Gladle did not file an opposition or appear at the hearing.! On June 30, 2025, the Court

held a hearing. Having carefully considered the parties’ arguments and submissions, the

Court finds and concludes as follows.

1 Pursuant to Local Rule 7-12, failure to respond to a motion to dismiss may be deemed

to be a non-opposition. In this case, the Court nonetheless proceeds to analyze Gladle’s

claims.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:24-cv-08312-CAS-JCx Date July 17, 2025

Title Marilyn Gladle v. Denis McDonough

II. BACKGROUND

A. Gladle’s Prior Actions

Gladle brought a prior action in this Court asserting similar claims against the then

Secretary of the Department of Veterans Affairs. See Gladle v. U.S. Department of

Veterans Affairs, 15-cv-00057-CAS-JC (the “First Action”). The Court dismissed this

action and Gladle appealed the dismissal to the Ninth Circuit. Id., dkts. 41, 43. The

Ninth Circuit affirmed the Court in part, reversed in part, and remanded, holding that

some of Gladle’s allegations were sufficient to state claims. Id., dkt. 45 (“Ninth Circuit

Order”). Gladle then filed a First Supplemental Complaint following her termination

from the VA, and motion practice began again, culminating in the parties filing cross

motions for summary judgment. Id., dkts. 88, 109, 110. On March 16, 2020, the Court

granted summary judgment in favor of the Secretary and against Gladle on all but one

claim, finding that her termination was justified, among other issues. Id., dkt. 210 (2020

Order on Summary Judgment”). The one remaining claim proceeded to trial, and a jury

found in favor of the Secretary on Gladle’s claim that the Secretary had failed to

accommodate her disability. Id., dkt. 202. Judgment was entered for the Secretary, and

Gladle appealed to the Ninth Circuit. Id. dkts. 210, 217. Gladle’s appeal remains

pending.

Thereafter, Gladle filed a new action. Marilyn Gladle v. Denis McDonough, Case

No. 24-cv-03556 (the “Second Action”). In the Second Action, Gladle filed her original

complaint, and following the Secretary’s filing of his motion to dismiss, Gladle filed a

First Amended Complaint as of right pursuant to Federal Rule of Civil Procedure 15,

mooting the Secretary’s Motion to dismiss. Id. dkts. 1, 16, 18 (“FAC”). In her FAC,

filed on November 22, 2024, Gladle added additional defendant employees of the VA,

Steve Braverman, Daniel Spilsbury, Wandee Kharossach, Marie Weldon, Ann Brown,

and James Doelling, and asserted seven claims for relief: (1) discrimination in violation

of the Rehabilitation Act, 29 U.S.C. § 794: (2) retaliation under the Rehabilitation Act, 29

U.S.C. § 794(d); (3) Equal Protection violation; (4) denial of Due Process; (5) violation

of restoration rights, 5 U.S.C. § 8151(b); (6) a claim under the Cat’s Paw Theory; and (7)

intentional infliction of emotional distress. FAC. The Secretary then filed a motion to

dismiss the FAC, and on April 10, 2025, the Court granted the Secretary’s motion, with

leave to amend. Id., dkts. 21,31. At the time of this order, Gladle has not filed an

amended complaint.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:24-cv-08312-CAS-JCx Date July 17, 2025

Title Marilyn Gladle v. Denis McDonough

B. ‘The Instant Action

In her Complaint in this case, Gladle alleges, as to her first claim for relief based

on “Retaliation [and] Reprisal for Engaging in Protected Activity under Title [VII],” that

she has “applied for over 200 open positions (RN) for which she is qualified and actually

held for 25 [years].” Complaint ] 6. She alleges that she “has an ANCC in Psychiatric

[and] Mental [health] Nursing” with more than thirty years of having a “CA BRN

License continuous [and] in good standing.” Id. Gladle alleges that she was retaliated

against because she engaged in protected activity. Id. {7. She claims that “[t]he stated

reasons for the [d|efendant’s conduct were not the true reasons, but instead were pretext

to hide the [d]efendant’s retaliatory animus by not employing plaintiff in an RN position

[for] which she is qualified.” Id, Gladle claims that she is being retaliated against for

having filed more than ten EEO claims and federal civil claims “in the effort to right the

wrong of retaliation.” Id. § 8.

As to Gladle’s second claim for a violation of the Rehabilitation Act of 1973, 29

U.S.C. § 710 et seq., Gladle alleges that “the pretext to hide the discrimination 1s false.”

Id. § 10. She alleges that she is experiencing a “continuing violation of employment

discrimination based on an illegal termination considering [p]laintiff is not fit for

employment.” Id. 4 11. Gladle alleges that this has affected all of her applications for

new positions and claims that the determination is “based on an illegal termination on

April 30, 2017.” Id, Further, she contends that “[t|his termination has never been

rectified in [p]laintiff’s favor although management has been given the information.” Id.

For her third claim for relief, plaintiff alleges a violation of Title VII based on a

hostile work environment. She alleges that she is experiencing “a continuing violation of

employment discrimination as noted by not employing [p]laintiff in a capacity which she

is entitled to perform.” Id. § 13. Gladle alleges that she “had an excellent career at the

VAGLAHCS until sustaining a debilitating injury in 2010 which required time away

from a position she performed well and helped many veterans.” Id.

Gladle also attaches what she refers to as “Exhibit A,” setting forth additional

allegations. Dkt. 1, Exh. A (“Exh. A”). The first thirteen paragraphs of Exhibit A are

identical to those in Exhibit A to her original complaint in the earlier filed action, Case

No. 24-cv-03556.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL ‘Oo’

Case No. 2:24-cv-08312-CAS-JCx Date July 17, 2025

Title Marilyn Gladle v. Denis McDonough

Gladle asserts that she is a registered nurse and that she has been licensed in the

state of California since April, 1993, without interruption. Id. 1. Gladle claims that she

holds an American Nursing Credentialing Certification in Psychiatric and Mental Health

nursing and that this Certification has been active and in good standing since October

2007. Id. { 2. According to Glade, she is “a qualified permanently disabled person under

the Rehabilitation Act of 1973 from a Veterans Administration Greater Los Angeles

Health Care System workplace injury on 04/27/2024.” Id. 43. As aresult, Gladle claims

she “use[s| a cane for assisted ambulation due to the on-the-job injury [for] which [she is]

receiving [Office of Workers’ Compensation Programs (“OWCP”)] benefits as [she is]

not yet working.” Id. Gladle asserts that “[t]he disability also affects many of [her] daily

activities.” Id.

Gladle claims that she began employment with the VA as a registered nurse in

1993, holding several positions over the course of her employment. Id. 4] 4-5. Gladle

asserts that she has “been discriminated against due to disability from a VA workplace

injury and for participating in protected activity through retaliation, hostile workplace,

disparate treatment, etc., because [she] complained about discrimination before and after

[she] was terminated by the [VA] in 2017 while on Office of Workers Comp.” Id. □ 6.

Gladle states that she has been “passed over for applicants who are not reinstatement and

restoration rights qualified under the federal law/code.” Id.

Gladle alleges that she is a qualified disabled person pursuant to the Rehabilitation

Act of 1973 because she has permanent disabilities that affect mobility and other aspects

of her life. Id. 47. Accordingly, she alleges that she has reinstatement rights pursuant to

5 U.S.C. § 8151. Id. Gladle asserts that she has been subjected to a hostile workplace,

and that as a result she has lost employment opportunities. Id. { 8.

Specifically, Gladle states that she applied for three positions for which she was

qualified, but for which she was not hired. Id. § 9. Gladle claims that on or before June

24, 2022 she applied for “the TeleCare Position”; on or before December 12, 2022, she

applied for “the Registered Nurse All Vacancies”; and that on or before November 6,

2022, she applied for “the Registered Nurse Outpatient Mental Health” position. Id.

According to Gladle, the VA maintains a list of all registered nurses who are eligible for

reinstatement, and that she herself has been eligible since September 2, 2018. Id. □ 10-

11. Gladle claims that the VA has not hired registered nurses who are reinstatement

eligible if they have filed discrimination claims. Id. §] 12. Gladle states “I believe I have

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:24-cv-08312-CAS-JCx Date July 17, 2025

Title Marilyn Gladle v. Denis McDonough

been and continue to be discriminated against as I have applied for multiple positions

[for] which I am highly qualified but have not been reinstated.” Id. ] 11. Gladle asserts

that those who were hired for the positions for which she applied are less qualified than

she 1s for the positions. Id. § 13.

Gladle alleges that on June 10, 2023, she attended a job fair at the VA Greater Los

Angeles Health Care System. Id. 14. She alleges that though she had pre-registered,

her name did not appear on the registration list, and she had to wait with other applicants

who had walked into the event for about one and a half hours. Id. After registering to

participate in the hiring fair, Gladle alleges that she was taken to a separate waiting area

for interviews. Id. § 15. She alleges that she had her documentation and notified the

individual handling intake that she was “a Schedule A hiring authority which is a

qualified disabled person and is a non-compete designation,” but she “later found out that

Title A does not apply to Title 38 designated employees.” Id.

Gladle alleges that she completed a form regarding her positions of interest. Id. {

17. She alleges that she could hear discussion of who she would be placed with to

interview, and learned that she was assigned to Pamela Henderson, who had interviewed

her two other times for the same position in the previous year and she was never hired.

Id. 18-19. According to Gladle the interview went well, but she heard discussion

about whether she would be hired or not as she waited to hear the results. Id. § 20.

Gladle alleges that she was then taken to a large room to wait with others to talk with an

HR representative about whether she would be hired. Id.

Gladle alleges that when her name was called, she stood up and went to where a

man without identification was standing, and in front of the approximately 30 people

waiting he “began speaking to [Gladle] loudly telling [her] there was not a position for

[her] at Greater Los Angeles but [she] could try the Long Beach VA.” Id. § 21. Gladle

states that she informed the man, who told her his name was Shane, that “it was wrong

for him to announce to [her] so that everyone else waiting could hear that [she] did not

and would not get a position.” Id. Gladle alleges that she was “not only surprised but ...

was humiliated.” Id.

Gladle alleges that she has applied for more than 200 open RN positions at the VA

and she has “not been hired for any position to date even though [she is] well qualified.”

Id. 22. She states that she has filed more than ten EEO complaints and a federal claim.

Id. § 23. She alleges that her complaints “include retaliation, disability discrimination,

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:24-cv-08312-CAS-JCx Date July 17, 2025

Title Marilyn Gladle v. Denis McDonough

hostile work place, all a continuing violation of rights under Title [VII], the

Rehabilitation Act of 1973 and the 1964 Civil Rights Act.” Id.

Gladle alleges that she was “illegally terminated on 4/30/2017 after 24 years of

service with the GLAHS and while temporarily and totally disabled.” Id. 24. Gladle

claims that the termination was based on her RN license not being renewed, but that her

ability to practice was continuous. Id. 24. She alleges that there was a 36 hour delay in

the website information updating the status of her RN license. Id.

Gladle alleges that the VA policy for verification of RN licensing was not followed

in her case. Id. { 25. According to Gladle, “the VA has used the pretext of the 2017

termination for failure to renew her RN license as not being fit for employment at the

VA.” Id. 4 26. Gladle alleges that she provided proof that her license was timely

renewed to relevant VA employees. Id. 27. Gladle alleges that her “SF71 continues to

show the termination for failure to maintain her RN license which is false and has not

been corrected.” Id. § 28.

Il. LEGAL STANDARD

A motion pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal

sufficiency of the claims asserted in a complaint. Under this Rule, a district court

properly dismisses a claim if “there is a ‘lack of a cognizable legal theory or the absence

of sufficient facts alleged under a cognizable legal theory.’” Conservation Force v.

Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Balisteri v. Pacifica Police Dep’t,

901 F.2d 696, 699 (9th Cir. 1988)). “While a complaint attacked by a Rule 12(b)(6)

motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to

provide the ‘grounds’ of his “entitlement to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not

do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[F]actual allegations

must be enough to raise a right to relief above the speculative level.” Id.

In considering a motion pursuant to Rule 12(b)(6), a court must accept as true all

material allegations in the complaint, as well as all reasonable inferences to be drawn

from them. Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). The complaint must be

read in the light most favorable to the nonmoving party. Sprewell v. Golden State

Warniors, 266 F.3d 979, 988 (9th Cir. 2001). However, “a court considering a motion to

dismiss can choose to begin by identifying pleadings that, because they are no more than

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:24-cv-08312-CAS-JCx Date July 17, 2025

Title “Marilyn Gladle v. Denis McDonough

conclusions, are not entitled to the assumption of truth. While legal conclusions can

provide the framework of a complaint, they must be supported by factual

allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009): see Moss v. United States

Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) (“[F]or a complaint to survive a motion

to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that

content, must be plausibly suggestive of a claim entitling the plaintiff to

relief.”). Ultimately, “[d]etermining whether a complaint states a plausible claim for

relief will . . . be a context-specific task that requires the reviewing court to draw on its

judicial experience and common sense.” Iqbal, 556 U.S. at 679.

Unless a court converts a Rule 12(b)(6) motion into a motion for summary

judgment, a court cannot consider material outside of the complaint (e.g., facts presented

in briefs, affidavits, or discovery materials). In re American Cont’] Corp./Lincoln Sav. &

Loan Sec. Litig., 102 F.3d 1524, 1537 (9th Cir. 1996), rev’d on other grounds sub nom

Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998). A court

may, however, consider exhibits submitted with or alleged in the complaint and matters

that may be judicially noticed pursuant to Federal Rule of Evidence 201. In re Silicon

Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999); see Lee v. City of Los

Angeles, 250 F.3d 668, 689 (9th Cir. 2001).

As a general rule, leave to amend a complaint which has been dismissed should be

freely granted. Fed. R. Civ. P. 15(a). However, leave to amend may be denied when “the

court determines that the allegation of other facts consistent with the challenged pleading

could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture

Co., 806 F.2d 1393, 1401 (9th Cir. 1986).

IV. DISCUSSION

A. Res Judicata

First, the Secretary argues that Gladle’s claims arising out of plaintiffs termination

are barred by res judicata. Mot. at 3. The Secretary argues that the Court already

explained that claims arising out of her 2017 termination are barred by res judicata

because the Court’s 2020 Order on Summary Judgment was a final judgment on the

merits. Id. The Secretary contends that nothing has changed here, as Gladle brings the

same Rehabilitation Act claim against the Secretary regarding her 2017 termination. Id.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:24-cv-08312-CAS-JCx Date July 17, 2025

Title Marilyn Gladle v. Denis McDonough

at 3-4. The Secretary argues that Gladle’s claims relating to her 2017 termination should

be dismissed without leave to amend. Id. at 4.

In its order dismissing Gladle’s FAC in the Second Action, the Court concluded

that Gladle’s claims arising out of her 2017 termination were barred by res judicata

because there was (1) an identity of claims, (2) a final judgment on the merits (the 2020

Order on Summary Judgment), and (3) identity or privity between the parties. Case No.

24-cv-03556, dkt. 31 (“Order on MTD”). Here Gladle asserts that she was retaliated

against for filing EEO claims, and therefore terminated in 2017, and that she has been

denied positions she since sought at the VA because of her prior EEO activity.

Complaint § 8. Because these claims also relate to her 2017 termination, they arise from

the same transactional nucleus of facts as the claims the Court ruled on in its 2020 Order

on Summary Judgment, and they are barred by res judicata, as explained in the Court’s

Order on MTD. See Order on MTD at 14-16. Here, this means that Gladle’s first claim

for relief, for retaliation and reprisal for engaging in protected activity, must be

dismissed, with leave to amend.

B. Non-Selection Claim

The Secretary argues that Gladle is not entitled to restoration rights as she claims

pursuant to 5 U.S.C. § 8131(b)(2) and is incorrect that therefore her non-selections were

unlawful. Mot. at 4. The Secretary argues that the Court already concluded that on the

same claim raised in the Second Action, the factual circumstances she alleges are not

contemplated by the plain language of the statute. Id. (quoting Order on MTD). The

Secretary argues that plaintiff does not assert that she was separated due to compensable

injury temporarily rendering it impossible for her to work. Rather, she was terminated

for failure to maintain her license, which she contends was pretextual. Id. Further, the

Secretary argues that the statutory language in § 8151(b), requires that an individual

overcome his or her workplace injury that resulted in temporary disability in order to be

entitled to reinstatement. Id. Gladle contends that she remains disabled. Id. at 5.

The Secretary argues that even liberally construing Gladle’s allegations of non-

selection as pleading a regular retaliation claim for the three non-selections in 2022, her

claim does not rise to the level of plausible. Id. To demonstrate a prima facie case of

retaliation, the Secretary argues, plaintiff must show “(1) involvement in a protected

activity, (2) an adverse employment action and (3) a causal link between the two.” Id. at

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL ‘Oo’

Case No. 2:24-cv-08312-CAS-JCx Date July 17, 2025

Title Marilyn Gladle v. Denis McDonough

6. The Secretary argues that Gladle has alleged that she filed more than ten EEO

complaints, which is protected activity, but that she does not allege a causal nexus to

between the protected activity and the adverse employment action she alleges resulted.

Id. The Secretary argues that the only purported retaliation she alleges is based on §

8151(b)(2), a statute that does not apply to her circumstances. Id, Additionally, the

Secretary argues that Gladle’s “effort to assert a retaliation claim has similarly been

dismissed before for these same reasons, and that dismissal was affirmed by the Ninth

Circuit.” Id.

The Court reiterates the conclusion it reached in its Order on MTD, that Gladle is

not entitled to restoration rights. Here, as her second claim for relief, Gladle sets forth a

claim that she is entitled to restoration rights pursuant to 5 U.S.C. § 8151(b). Complaint

9-11. Gladle is not entitled to relief under § 8151(b) both because she does not allege

that she has overcome her injury and because she was not separated on the basis of a

workplace injury. 5 C.F.R. § 353.103; see also Johnson v. Merit Sys. Prot. Bd., 455 F.

App'x 984, 986 (Fed. Cir. 2012) (holding that plaintiff must show “his separation was

substantially related to his compensable injury,” and “whether he has fully or partially

recovered from his injury” to be entitled to restoration nights under 5 U.S.C. § 8151): 5

U.S.C. § 8151(b)(2).

As to a potential retaliation claim, the Court finds that Gladle fails to plead any

such claim because she does not allege a nexus between her protected activity, the filing

of EEO claims, and her termination, an essential element of a retaliation claim. Coons v.

Sec’y of U.S. Dep’t of Treasury, 383 F.3d 879, 887 (9th Cir. 2004); see also Ninth

Circuit Order at 2 (holding that the Court had properly dismissed Gladle’s similarly

deficient prior retaliation claim “because Gladle failed to allege facts sufficient to identify

the individuals who engaged in the alleged adverse employment actions or show that

those individuals were aware of her protected activities”). Additionally, the Court

previously found in its 2020 Order on Summary Judgment that Gladle was terminated

because she failed to maintain an active license, not because of her protected activity.

2020 Order on Summary Judgment at 7.

C. Hostile Work Environment Claim

The Secretary argues that Gladle’s hostile work environment claim should be

dismissed because it is “both facially inconsistent with her allegations and devoid of any

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL ‘Oo’

Case No. 2:24-cv-08312-CAS-JCx Date July 17, 2025

Title “Marilyn Gladle v. Denis McDonough

supporting facts.” Mot. at 7. The Secretary contends that Gladle’s claim fails to allege

sufficient facts because she merely states that she was subjected to a hostile workplace

and that this resulted in a loss of employment opportunities, but she does not explain how

that may have happened. Id. The Secretary argues that even a liberal reading of the

Complaint does not state a claim because Gladle alleges that she was humiliated at the

VA job fair, but “[t]his context necessarily precludes a hostile work environment claim,

as the Complaint acknowledges that [she] was not and is not a federal employee at the

time.” Id. As an applicant, rather than an employee, the Secretary argues plaintiff cannot

state a hostile work environment claim. Id.

Insofar as Gladle alleges that she was retaliated against for filing EEO complaints,

it is clear from the caselaw that even if Gladle had pled additional facts, as the Secretary

argues she must, she is unable to state a claim due to her status. Though a plaintiff may

file a hostile work environment claim against a former employer, a plaintiff cannot file

such a claim when they are merely an applicant. Wassman v. City of Dana Point, No.

8:18-cv-468-JLS-DFM, 2018 WL 5906346, at *6 (C.D. Cal. July 2, 2018). While the

Court recognizes that Gladle is a former VA employee, her hostile work environment

claims relate only to the VA’s hiring process. Because Gladle’s allegations relate only to

seeking new employment with the VA, rather than to her time as an employee there, she

cannot state a hostile work environment claim on these allegations. Accordingly, the

claim is dismissed, with leave to amend.

V. CONCLUSION

In accordance with the foregoing, the Court GRANTS the Secretary’s motion to

dismiss, with leave to amend. Gladle shall file her amended complaint on or before

August 18, 2025.

IT IS SO ORDERED.

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Initials of Preparer OM