Salazar v. RollinsSalazar v. Rollins
This matter comes before the Court on Defendants’ Motion to Dismiss and Memorandum in Support, filed January 12, 2026 (Doc. 26), and Plaintiff‘s Motion to Amend Complaint, filed January 22, 2026 (Doc. 29). Both motions are fully briefed. Docs. 35, 36. Having reviewed the parties’ submissions and the applicable law, the Court GRANTS the motion to amend (Doc. 29) and DENIES AS MOOT the motion to dismiss (Doc. 26).
BACKGROUND
I. Original Complaint (Doc. 1)
Ms. Salazar originally filed her complaint pro se, Doc. 1 at 1, but subsequently obtained counsel, Doc. 22. In Ms. Salazar‘s original complaint, she alleges that she is a Hispanic female who worked for the Forest Service Human Resources Management Facility (“HRMF“), a federal agency, in Albuquerque, New Mexico. Doc. 1 at 1, 3. “Despite her excellent performance,” she claims she faced “recurring incidents of discrimination and retaliation by her managers and supervisors at the HRMF,” including an unwarranted letter of reprimand from her supervisor, Mr.
II. Proposed Amended Complaint (Doc. 29)
On January 22, 2026, after obtaining counsel, Ms. Salazar moved to amend her complaint. Doc. 29. In her proposed amended complaint, she clarifies the procedural history of this case. Specifically, she alleges the following:
Ms. Salazar filed a formal complaint of discrimination on April 28, 2017, alleging both discrimination (on the basis of race and sex) and retaliation (for filing earlier discrimination complaints). Doc. 29 at 5. The defendants investigated her complaint and issued a Final Agency Decision on August 10, 2020, concluding that defendants had neither discriminated nor retaliated against Ms. Salazar. Id. at 6. Ms. Salazar appealed to the Equal Employment Opportunity Commission (“EEOC“), and the EEOC determined that defendants had not discriminated against Ms. Salazar but had retaliated against her because of her protected activity. Id. Neither party appealed this decision. Id. The EEOC remanded the matter to the defendants for remedial relief
LEGAL STANDARD
ANALYSIS
Here, Defendants moved to dismiss on January 12, 2026, Doc. 26, and Ms. Salazar moved to amend ten days later on January 22, 2026, Doc. 29. This is her first attempt to amend; she is amending a pleading to which a responsive pleading is required (that is, a complaint), and her amendment takes place within twenty-one days after service of a Rule 12(b) motion (the motion to dismiss). Ms. Salazar therefore has the right to amend as a matter of course pursuant to
Further, even if Ms. Salazar had been required to seek leave to amend, the Court would grant it. Her original complaint was filed pro se, and she has since obtained counsel. Doc. 29 at
I. Federal Employees and Title VII
Federal employees who report workplace discrimination or retaliation in violation of Title VII follow a different administrative procedure than private sector employees. See Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1311 (10th Cir. 2005). Private sector employees normally are required to timely file a charge of discrimination or retaliation with the EEOC. Sanderson v. Wyo. Highway Patrol, 976 F.3d 1164, 1170 (10th Cir. 2020). The EEOC may conduct an administrative investigation based on the contents of the charge, id., and if the EEOC issues the employee a right-to-sue letter, the employee may then bring a Title VII claim against the employer in federal court, see id.
In the federal sector, the procedure differs. Federal employees first must contact an Equal Employment Opportunity (“EEO“) counselor; if the federal employee still wishes to file a complaint after meeting with the counselor, she files a formal complaint with the agency that allegedly discriminated against her.
II. Ms. Salazar‘s Procedural Posture and Request for Partial De Novo Review
Ms. Salazar alleges that she appealed defendants’ decisions to the EEOC on two separate occasions: first, her appeal on the merits of the discrimination and retaliation claims (see Doc. 29 at 6 ¶ 10, in which the EEOC concluded that defendants had not discriminatеd but had retaliated), and second, her appeal regarding damages and attorney‘s fees (see id. at 6–7 ¶ 12, in which the EEOC affirmed the agency‘s decisions regarding both compensatory damages and attorney‘s fees). Neither party appealed the first EEOC decision (on the merits), so Ms. Salazar argues that that decision is final and that this Court lacks jurisdiction to alter the results of the EEOC‘s adjudiсation: from her perspective, the ruling that defendants did not discriminate but did retaliate is settled and cannot be re-litigated. Doc. 34 at 4. But, Ms. Salazar argues, she did appeal the second EEOC decision (regarding damages and attorney‘s fees), and she claims she is entitled to a de novo review on these issues without disturbing the merits. See id. at 6.
The Tenth Circuit case most on point is Timmons v. White, 314 F.3d 1229 (10th Cir. 2003). In Timmons, the plaintiff worked for the McAlester Army Ammunition Plant. Id. at 1230. He filed a formal complaint with the Department оf the Army alleging that he was discriminated against. Id. The Department of the Army investigated and held a hearing, after which it concluded that there had been no discrimination. Id. The plaintiff then appealed to the EEOC, which concluded that he was discriminated against based on disability. Id. at 1230–31. In its final order, the EEOC ordered a correction of records, back pay, and other benefits for the timе period at issue. Id. at 1231. The plaintiff then filed a petition for enforcement with the EEOC claiming that his back pay was improperly calculated and that he was entitled to be promoted; the EEOC
The Tenth Circuit held that the plaintiff‘s action was a civil action under
Ms. Salazar argues that the Tenth Circuit‘s language leaves room to distinguish her case: whereas in Timmons, the plaintiff appealed each and every EEOC decision, the same is not true
If a federal employee has received a favorable determination at thе administrative level, he or she is able to go into federal court to enforce that order without risking de novo review of the merits. Thus, the employing agency cannot challenge issues decided against it if the plaintiff does not seek de novo review. However, a plaintiff is entitled to a de novo hearing if requested.
808 F.2d 1192, 1199 n.4 (6th Cir. 1987). But Ms. Salazar‘s attempt to distinguish Timmons is unpersuasive. As the Court interprets Timmons, the language emphasizing the finality of the EEOC‘s conclusions on liability “where the plaintiff does not appeal the EEOC‘s ruling” refers to instances in which the plaintiff did not file a federal court appeal under
This conclusion reads more harmoniously with the rest of the Tenth Circuit‘s opinion, which speаks of the de novo trial under
In addition to the Tenth Circuit, the Third, Fourth, Fifth, Eleventh, and D.C. Circuits all have issued decisions concluding that partial de novo review is not permissible under Title VII. Morris v. Rumsfeld, 420 F.3d 287, 294 (3d Cir. 2005) (“We hold that, when a federal employee comes to court to challenge, in whole or in part, the administrative disposition of his or her discrimination claims, the court must consider those claims de novo, and is not bound by the results of the administrative process, whether that process culminated in one administrative decision, or in two or more decisions.“); Larber v. Harvey, 438 F.3d 404, 423 (4th Cir. 2006) (overruling Pecker v. Heckler, 801 F.2d 709 (4th Cir. 1986) to conclude that “in order properly to claim entitlement to a more favorable remedial award, the employee must place the employing agency‘s discrimination at issue“); Massengill v. Nicholson, 496 F.3d 382, 385 (5th Cir. 2007) (agreeing with “weight of authority” in other circuit courts to conclude that federal emрloyee plaintiff cannot seek partial de novo review under Title VII); Ellis v. England, 432 F.3d 1321, 1325 (11th Cir. 2005) (“As such, under the better approach adopted by the Third, Tenth, and D.C. Circuits, we reject Ellis‘s argument that he is entitled to a de novo review (by a jury) limited to the question of damages.“); Scott v. Johanns, 409 F.3d 466, 471–72 (D.C. Cir. 2005) (“Under Title VII, federal employees who secure a final administrative disposition finding discrimination and ordering relief have a choice: they may either accept the disposition and its award, or file a сivil action, trying de novo both liability and remedy. They may not, however, seek de novo review of just the remedial award.“); but see Girard v. Rubin, 62 F.3d 1244, 1247 (9th Cir. 1995).
Based on binding precedent in Timmons and persuasive authority from several other circuits, the Court concludes that Ms. Salazar may not restrict the issue in this case to damages and attorney‘s fees; pursuant to
III. Sufficiency of the Amended Complaint
Having established that Ms. Salazar must prove retaliation de novo, the Court looks to the allegations of retaliation in the Amended Complaint. Defеndants challenge whether Ms. Salazar pleads the elements of a prima facie case of retaliation under the three-part framework in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). But the McDonnell Douglas test “is inapplicable where the plaintiff presents direct evidence of discrimination” or retaliation. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985); Fischer v. Forestwood Co., Inc., 525 F.3d 972, 983 (10th Cir. 2008); Fye v. Okla. Corp. Comm‘n, 516 F.3d 1217, 1225 (“If, however, the plaintiff is unable to directly establish that retaliation played a motivating part in the employment decision at issue, she may rely on the familiar three-part McDonnell Douglas framework . . . .“). Here, Ms. Salazar pleads direct retaliation, not circumstantial: “[O]n February 1, 2017, Plaintiff learned from a coworker that [Mr.] Freeman told coworkers that he was
Defendants argue that “revocation of remote work privileges is not retaliatory within the meaning of Title VII.” Doc. 32 at 3. The Supreme Court has held that the antiretaliation provision of Title VII requires a plaintiff to demonstrate “thаt a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks omitted). The Supreme Court emphasized the importance of separating “significant from trivial harms” and clarified that Titlе VII prohibits “employer actions that are likely to deter victims of discrimination from complaining to the EEOC, the courts, and their employers,” which typically do not include “petty slights, minor annoyances, and simple lack of good manners.” Id. In White, the Supreme Court found that a change of job duties “from forklift duty to standard track laborer tasks” could suffice as a retaliatory action when the track laborer duties were “more arduous and dirtier,” the forklift operator position was more prestigious, and other employees resented the plaintiff for occupying the forklift operator position because it was “objectively considered a better job.” Id. at 71. “Whether a particular reassignment is materially adverse depends on the circumstances of the particular case and should be judged from the perspective of a reasonable person in the plaintiff‘s position, considering all the circumstances.” Id. (internal quotation marks omitted). A more recent Supreme Court case noted that Title VII‘s retaliation standard is not
Here, the Court finds that Mr. Freeman‘s statement to coworkers that he was withdrawing a work privilege previously enjoyed by Ms. Salazar and her work unit because Ms. Salazar had filed discrimination complaints likely would deter other employees from making a discrimination complaint in the future. The Court finds that under this standard, the revocation of remote work authorization may deter other employees from making a discrimination complaint; remote work authorization demonstrates an employer‘s trust in its employees to perform their work under less immediate scrutiny, suggesting an element of prestige, and remote work also allows employees a degree of flexibility not always found in an in-person workplace. Defendants’ citation to Weil v. Carecore Nat‘l, LLC, 833 F. Supp. 2d 1289, 1298 (D. Colo. 2011) is not persuasive because, despite the case citing White for the legal standard discussed above, its analysis does not discuss whether a reаsonable person in the plaintiff‘s position might have been dissuaded from making discrimination complaints in the future.
Defendants also argue that Ms. Salazar fails to allege certain details of the remote work arrangement. Doc. 32 at 6. But Ms. Salazar is not required to prove her entire case at the pleading stage; rather, she merely needs to allege facts sufficient to “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Ms. Salazar has alleged that she and her work group had remote work authorization, that she made complaints of discrimination against her supervisor, that her supervisor told her coworkers that he was revoking the entire group‘s remote work authоrization because of Ms. Salazar‘s complaints, and that he did in fact revoke the group‘s remote work authorization. Doc. 29 at 9. These facts permit the reasonable inference that Mr. Freeman retaliated against Ms.
CONCLUSION
For the reasons discussed above, the Court GRANTS Ms. Salazar‘s motion to amend (Doc. 29) and DENIES AS MOOT Defendants’ motion to dismiss (Doc. 26). Ms. Salazar is ordered to file her amended complaint as a separate docket entry no later than FOURTEEN DAYS from the entry of this Memorandum Opinion and Order.
It is so ordered.
LAURA FASHING
UNITED STATES MAGISTRATE JUDGE