Salazar v. Dejoy et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
HEATHER M. SALAZAR,
Plaintiff,
v. 	Civ. No. 24-1046 JCH/JMR
DAVID P. STEINER, Postmaster General of
the United States Postal Service, UNITED
STATES POSTAL SERVICE,
Defendants.
MEMORANDUM OPNION AND ORDER
Plaintiff is a former Postal Service employee who asserts that she suffered discrimination
and retaliation due to her disability. The case is before the Court on Defendants’ Motion to Dismiss
for Lack of Subject Matter Jurisdiction and For Failure to State a Claim [Dkt. No. 27]. Plaintiff
has filed her response [Dkt. No. 32] and Defendants their reply [Dkt. No. 34], and therefore the
motion is fully briefed. After reviewing the briefs and the law, the Court concludes that the motion
should be granted in part and denied in part as further explained herein.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges that she suffered discrimination and retaliation at work after she was
injured in a car accident. In her Amended Complaint [Dkt. No. 21], she alleges that she was
employed by the U.S. Postal Service in Santa Fe, New Mexico, as a supervisor and mail carrier.
Plaintiff asserts that on August 11, 2022, she was in a car accident that “resulted in a serious
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medical condition/disability as defined by the VRA/ADA1 , resulting in Plaintiff Salazar needing
to take time off work via FMLA and needing accommodations.” Dkt. No. 21 at ¶ 18. According
to the Amended Complaint, “Plaintiff can show that she has had a qualifying disability based on
medical records for nine months of treatment for neck and shoulder injuries and degenerative disc
issues that prohibit her from being able to work and that restrict her capacity to do so,” and that
her disability “substantially limits her daily activities.” Id. at ¶ 47-48. Plaintiff states that at a
meeting with her supervisor on November 9, 2022, Defendants “wrongfully ended [Plaintiff’s]
higher detail assignment” and wrongfully denied her “the ability to work.” Id. at ¶ 19-20. Plaintiff
also alleges that her supervisor “failed to grant her an accommodation, lied about light and/or
limited duty work being available to her and lied about having told her to fill out the correct form.”
Id. at ¶ 21. According to Plaintiff, light duty work did exist because she had been doing such work
before November 9, 2022, but despite that her supervisor denied its availability. Id. at ¶ 22-23.
Plaintiff also alleges that even though she could still carry mail, her supervisor forced her to give
up her route. Id. at ¶ 24. Plaintiff also asserts that despite statements to the contrary, her supervisor
did not notify her until November 9, 2022, that she had to fill out a form to request light duty.
Plaintiff alleges that in the foregoing actions, Defendant treated her differently than similarly
situated employees whom they permitted to continue working with weight restrictions while on
light duty. Id. at ¶ 25. Plaintiff asserts that she “was set up to be forced to take unpaid leave from
1 Plaintiff refers to the “Vocational Rehabilitation Act,” or VRA. However, that statute was
replaced by the broader Rehabilitation Act of 1973 (the “Rehabilitation Act”), 29 U.S.C. § 791.
See Laura Rothstein, Forty Years of Disability Policy in Legal Education and the Legal
Profession: What Has Changed and What Are the New Issues?, 22 Am. U. J. Gender Soc. Pol’y
& L. 519, 524 (2014). Therefore, the Court analyzes all disability claims under the Rehabilitation
Act. In addition, references to the “ADA” are to the Americans with Disabilities Act, 42 U.S.C. §
12101, et seq.
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work as discrimination due to her disability/serious medical condition and in retaliation for needing
to take time off of work for same, and for protesting the treatment she was experiencing as a
result.” Id. at ¶ 27. Plaintiff avers that this caused her to lose income and forced her to “use time
off which she should not have been forced to use.” Id. at ¶ 28. According to the Amended
Complaint, when Plaintiff complained about these actions, Defendant retaliated against her with
harassment and a hostile work environment from multiple supervisors, demotion, and loss of
supervisory responsibility. Id. at ¶ 29-30. This also included making false accusations against
Plaintiff, such as claiming that Plaintiff had refused the work offered to her. Id. at ¶ 32-33.
Plaintiff asserts claims for discrimination and retaliation in violation of the Vocational
Rehabilitation Act (Count I), failure to accommodate under both the common law and the
Vocational Rehabilitation Act (Count II), interference with rights under the Family and Medical
Leave Act (“FMLA”) (Count III)2 , and retaliation in violation of the common law and the FMLA
(Count IV).
DISCUSSION
I. 	Lack of Subject Matter Jurisdiction (Rule 12(b)(1))
“It is elementary that ‘[t]he United States, as sovereign, is immune from suit save as it
consents to be sued ..., and the terms of its consent to be sued in any court define that court’s
jurisdiction to entertain the suit.’” United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting
United States v. Sherwood, 312 U.S. 584, 586 (1941)). The United States’ sovereign immunity
defense “is jurisdictional in nature.” Wyoming v. United States, 279 F.3d 1214, 1225 (10th Cir.
2 Unlike Defendant, the Court construes Count III to assert a statutory claim for interference with
FMLA rights and does not interpret it to also assert a common law claim. If Plaintiff intended to
assert a common law claim in Count III, she did not state as much in her response brief.
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2002). By depriving courts of subject matter jurisdiction over claims against the United States, its
agencies, and officers acting in their official capacity, “[s]overeign immunity generally shields
[these entities] from suit.” Id.; see also United States v. Sherwood, 312 U.S. 584, 586 (1941)
(“[T]he terms of [the United States’] consent to be sued in any court define that court’s jurisdiction
to entertain the suit.”).
Defendant argues that this Court lacks subject matter jurisdiction over Plaintiff’s claims in
Counts II and IV to the extent they purport to state common law, rather than statutory, claims for
failure to accommodate and retaliation.3 Doc. 27 at 5-6. As grounds for this argument, Defendant
points out that the United States has not waived sovereign immunity for common law retaliation
or common law “failure to accommodate” claims. Doc. 27 at 5. For her part, Plaintiff asserts that
Defendant’s characterization of her claims as brought under the common law is “erroneous.” Doc.
32 at 5. She makes no attempt to argue that the United States has waived its sovereign immunity
for common law failure to accommodate (Count II) or retaliation (Count IV) claims.
For clarity in the record, the Court will grant Defendant’s motion to dismiss Counts II and
IV lack of subject matter jurisdiction insofar as they purport to assert common law claims.
II. 	Failure to State a Claim (Rule 12(b)(6))
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim “has
3 Defendant initially argued that the Court also lacks subject matter jurisdiction over Count III
because federal employees have no private right of action under the FMLA. See Doc. 27 at 6-7.
However, in its reply brief Defendant withdrew that argument. Doc. 34 at 3-4.
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facial plausibility” if the plaintiff “pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly,
550 U.S. at 556). A plaintiff must allege sufficient facts to “nudge[ ] [his] claims ... across the line
from conceivable to plausible.” Id. at 680 (second alteration in original) (internal quotation marks
omitted) (quoting Twombly, 550 U.S. at 570). “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id. at 678.
Because this is a motion brought under Rule 12(b)(6), the Court must limit its review to
factual allegations within the four corners of Plaintiff’s Amended Complaint [Doc. 21]. Mobley v.
McCormick, 40 F.3d 337, 340 (10th Cir. 1994) (“The nature of a Rule 12(b)(6) motion tests the
sufficiency of the allegations within the four corners of the complaint after taking those allegations
as true.”); see also Lamb v. Rizzo, 391 F.3d 1133, 1136 (10th Cir. 2004) (finding that, by
improperly considering “material derived from documents outside the four corners” of the
complaint, the trial court had converted the motion to dismiss into a motion for summary
judgment). Plaintiff has added numerous factual allegations in her response brief [Doc. 32] and its
errata [Doc. 33] that are not included in the Amended Complaint. See, e.g., Doc. 32 at 2-3, 7. The
Court does not consider those allegations in its analysis.
Finally, Defendant urges the Court to analyze Plaintiff’s claims under the burden-shifting
scheme set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Doc. 27 at
8. However, that standard, which was designed to evaluate evidence on a motion for summary
judgment, is inapplicable at the pleading stage. See Leibowitz v. Cornell University, 445 F.3d 586,
591 (2d Cir. 2006) (holding that the district court erred in requiring the plaintiff to establish a prima
facie case of employment discrimination under the McDonnell Douglas burden shifting framework
in order to survive a 12(b)(6) motion to dismiss, because “the prima facie case under McDonnell
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Douglas ... is an evidentiary standard, not a pleading requirement”) (quoting Swierkiewicz v.
Sorema, N.A., 534 U.S. 506, 510 (2002)). See also Marcus v. Leviton, 661 Fed. Appx. 29, 32 n.2
(2d Cir. Sept. 2, 2016) (“The district court applied the McDonnell Douglas burden-shifting
framework to the motion to dismiss. This was error, for McDonnell Douglas is an evidentiary
standard, not a pleading standard, and is therefore not the relevant standard at the 12(b)(6) stage.”)
(internal citation omitted); Keys v. Humana, Inc., 684 F.3d 605 (6th Cir. 2012) (finding district
court erred by applying the burden-shifting analysis to a motion to dismiss).
A. 	Claim for Disability Discrimination (Count I)
The Rehabilitation Act prohibits discrimination by federal agencies, including USPS,
against employees based on a qualified disability. 29 U.S.C. § 791. “We apply the standards from
the Americans with Disabilities Act in analyzing a Rehabilitation Act claim.” Wilkerson v.
Shinseki, 606 F.3d 1256, 1262 (10th Cir. 2010). A prima facie case of discrimination under the
Rehabilitation Act includes three elements, “(1) [the employee] is a handicapped person within the
meaning of the Act; (2) she is otherwise qualified for the job; and (3) she was discriminated against
because of the handicap.” Woodman v. Runyon, 132 F.3d 1330, 1338 (10th Cir. 1997). Similarly,
to establish a prima facie case of discrimination under the ADA, a plaintiff must demonstrate “‘(1)
that she is disabled within the meaning of the ADA; (2) that she is qualified—with or without
reasonable accommodation; and (3) that she was discriminated against because of her disability.’”
McKenzie v. Dovala, 242 F.3d 967, 969 (10th Cir. 2001) (quoting Aldrich v. Boeing Co., 146 F.3d
1265, 1269 (10th Cir. 1998)). The ADA defines the term “disability” as “(A) a physical or mental
impairment that substantially limits one or more of the major life activities of such individual; (B)
a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C.
§ 12102(2).
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To demonstrate such discrimination an employee is “required to show that he suffered an
adverse employment action because of his disability.” Brown v. Austin, 13 F.4th 1079, 1092 (10th
Cir. 2021). “An adverse employment action is one that causes a significant change in employment
status or benefits.” Id. These changes typically include actions such as “hiring, firing, failing to
promote, reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits.” E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1040 (10th Cir.
2011).
Plaintiff’s Amended Complaint is not a model of artful pleading. In support of its motion,
Defendant argues that Plaintiff makes only conclusory statements, rather than plausible factual
allegations. The Court agrees with Defendant in large part. Plaintiff has alleged facts in support of
the third element of her claim to pleading that she suffered an adverse employment action because
of her physical condition—that is, she alleged that Defendant ended her “higher level detail
assignment,” and forced her to give up her route. Doc. 21 at ¶ 19, 24. Plaintiff also alleges that
Defendant forced her to take unpaid leave. Id. at ¶ 27. These could reasonably be construed as
facts supporting the inference that Plaintiff suffered an adverse employment action due to her
physical condition.
However, Plaintiff has not alleged any facts to show that she is “disabled” within the
meaning of the ADA. Plaintiff alleges only that she was in a car accident and that she had “nine
months of treatment for neck and shoulder injuries and degenerative disc issues that prohibit her
from being able to work and that restrict her capacity to do so.” Id. at ¶ 18, 47. Plaintiff alleges no
facts that show how her injuries may have manifested in the inability to perform one or more major
life activity. Instead, Plaintiff merely alleges in conclusory fashion that she has a disability that
substantially limits one or more major life activity. See, e.g., id. at ¶ 39. That is insufficient to
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support a conclusion that Plaintiff has a qualifying disability. Similarly, Plaintiff has failed to
allege facts to show that she is qualified to perform her job, either with or without reasonable
accommodation. Again, she alleges that bare conclusion, and she asserts generally that she
requested a reasonable accommodation, id. at ¶ 40-42, but she does not address her ability to
perform her job and or describe what accommodation, if any, she would need to do so.
In short, Plaintiff’s complaint contains insufficient facts to support a claim for disability
discrimination, and that claim will be dismissed without prejudice.
B. 	Claim for Retaliation (Counts I and IV)
The standards used to prove a prima face claim of retaliation are similar for both the FMLA
and Rehabilitation Act. See Brown v. Austin, 13 F.4th 1079, 1090 (10th Cir. 2021); Metzler v. Fed.
Home Loan Bank of Topeka, 464 F.3d 1164, 1171 (10th Cir. 2006). To demonstrate retaliation
under both Acts an employee must show “(1) that he engaged in protected opposition to
discrimination, (2) that a reasonable employee would have found the challenged action materially
adverse, and (3) that a causal connection existed between the protected activity and the materially
adverse action.” Brown, 13 F.4th at 1090. Similar to a disability discrimination claim, a qualifying
adverse action under the Rehabilitation Act “is generally one that causes a significant change in
employment status or benefits.” Id.
As discussed in the previous section, Plaintiff fails to plead sufficient factual allegations
regarding the ADA/Rehabilitation Act. Here, Plaintiff alleges that she engaged in protected
activity under the ADA by “requested accommodations as an individual with a serious medical
condition/disability.” Doc. 21 at ¶ 56, 71. However, Plaintiff alleges neither the nature of her
disability nor the nature of the accommodations she requested. Having failed to allege protected
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activity as required in the first element, Plaintiff cannot state a claim for retaliation under the ADA,
and the motion to dismiss that claim will be granted.
On the other hand, Plaintiff does allege that she engaged in protected activity under the
FMLA by “filing for and using FMLA leave,” Doc. 21 at ¶ 71, satisfying the first element.
Regarding the second element, Defendant’s challenged action being materially adverse, Plaintiff
has alleged that in retaliation for complaining, “she suffered harassment and a hostile work
environment from multiple supervisors.” Id. at ¶ 29. These are legal terms and conclusory
allegations that Plaintiff has failed to support with facts explaining who harassed her, in what
manner they did so, and what actions Defendant took to make her work environment hostile.
However, Plaintiff does allege one specific retaliatory action: a demotion from supervisor to a non-
supervisory position. Id. at ¶ 30. A reasonable employee would find such a demotion to be
materially adverse. She also alleges that Defendant retaliated against her by falsely accusing her
of refusing the work that had been offered to her. Id. at ¶ 32-33. Therefore, she has plead sufficient
facts to satisfy the second element. Finally, though the factual allegations are thin, when reading
the Amended Complaint as a whole one can reasonably infer that there was a causal connection
between the materially adverse employment actions and Plaintiff exercising her rights under the
FMLA. Therefore, the motion to dismiss the FMLA retaliation claim will be denied.
C. 	Claim for Failure to Accommodate Under the Rehabilitation Act (Count II)
“To state a claim for failure to accommodate under the Rehabilitation Act, [the employee]
must show that he ‘(1) is disabled; (2) is otherwise qualified; and (3) requested a plausibly
reasonable accommodation.’” Brown, 13 F.4th at 1084-85 (quotation omitted). As previously
discussed, Plaintiff has alleged that she is disabled in conclusory fashion, but she has failed to
allege specific facts to support that conclusion. Asserting that she underwent “nine months of
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treatment for neck and shoulder injuries and degenerative disc issues” simply is inadequate to show
that she is disabled within the meaning of the statute. Similarly, Plaintiff has alleged no facts to
show that she is otherwise qualified to perform her job. Finally, although Plaintiff alleges in
conclusory fashion that she requested an accommodation from Defendant, she does not allege
exactly what accommodation she requested or how it would enable her to perform her job.
Accordingly, this claim will be dismissed without prejudice under Rule 12(b)(6).
D. 	Claim for Interference With FMLA Rights (Count III)
The Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2615, prohibits interference
with the employee’s rights set forth therein. The statute “guarantees the substantive rights of up to
twelve weeks of unpaid leave for eligible employees of covered employers for serious health
conditions and reinstatement to the former position or an equivalent one upon return from that
leave.” Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1180 (10th Cir. 2006); see
also 29 U.S.C. § 2612. The Act forbids an employer to “interfere with, restrain, or deny the
exercise of or attempt to exercise” this protected leave. 29 U.S.C. § 2615(a)(1). To demonstrate a
prima facie claim of FMLA interference, “a plaintiff must establish (1) that he was entitled to
FMLA leave, (2) that some adverse action by the employer interfered with his right to take FMLA
leave, and (3) that the employer’s action was related to the exercise or attempted exercise of his
FMLA rights.” Jones v. Denver Pub. Sch., 427 F.3d 1315, 1319 (10th Cir. 2005).
In arguing that Plaintiff’s Amended Complaint fails to state a claim, Defendant cites
Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007), in which the Court
stated that”[i]In order to satisfy the second element of an interference claim, the employee must
show that she was prevented from taking the full 12 weeks of leave guaranteed by the FMLA,
denied reinstatement following leave, or denied initial permission to take leave.” Id. As Defendant
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correctly notes, Plaintiff has not alleged that Defendant prevented her from taking the full 12 weeks
of FMLA leave, denied her reinstatement, or initially denied her permission to take leave.
Accordingly, she has failed to state a plausible claim for interference with FMLA rights, and this
claim will be dismissed without prejudice.
E. 	Request for Leave to Amend
In her response brief, Plaintiff requests the opportunity to file a Second Amended
Complaint, correctly noting that further amendment would require leave of Court. Doc. 32 at 2.
However, such requests for leave to amend should be made by separate motion rather than as part
of an argument in a response brief. Furthermore, under the District of New Mexico’s the Local
Rule 15.1, “a proposed amendment to a pleading must accompany the motion to amend.” The
purpose of this is to allow the Court to determine if the amendment would be futile. Frank v. U.S.
West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). Accordingly, if Plaintiff wishes to file a motion for
leave to file a second amended complaint, she must do so no later than April 20, 2026, and she
must attach a copy of her proposed second amended complaint.
CONCLUSION
To the extent that Plaintiff’s First Amended Complaint [Doc. 21] purports to state any
common law claims against Defendant for which it has not waived sovereign immunity, those
claims are dismissed with prejudice for lack of subject matter jurisdiction.
Plaintiff’s claims that Defendant discriminated against her for her disability in violation of
the ADA and the Rehabilitation Act is dismissed without prejudice. Plaintiff’s claim that
Defendant retaliated against her for exercising her rights under the ADA is dismissed without
prejudice. Plaintiff’s claim for failure to accommodate under the Rehabilitation Act is dismissed
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without prejudice. Finally, Plaintiff’s claim for interference with FMLA rights is dismissed with
prejudice.
Plaintiff’s FMLA retaliation claim remains pending.
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss for Lack of Subject
Matter Jurisdiction and For Failure to State a Claim [Dkt. No. 27] is GRANTED IN PART and
DENIED IN PART as described herein. If Plaintiff wishes to file a motion for leave to amend,
she must do so no later than April 20, 2026, and she must adhere to Local Rule 15.1.
_______________________________________
SENIOR UNITED STATES DISTRICT JUDGE
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