FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 8, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
HEATHER BURKE,
Plaintiff - Appellant,
v. No. 16-2238
(D.C. No. 1:16-CV-00470-RJ-SMV)
STATE OF NEW MEXICO; EDWYNN (D. N.M.)
BURCKLE, in both his official and
individual capacities as Secretary of the
General Services Department; JAY HONE;
MICHAEL GALLEGOS; ANGELA
DAWSON; BRENDA GUETHS; KAREN
BALTZLEY, in their individual capacities,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, HOLMES, and PHILLIPS, Circuit Judges.
_________________________________
In this employment case, Heather Burke appeals pro se from a district court order
that dismissed her complaint and denied leave to amend. Exercising jurisdiction under
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
28 U.S.C. § 1291, we affirm in part, reverse in part, vacate in part, and remand for further
proceedings on her privacy, wage-discrimination, and whistleblowing claims.
BACKGROUND
Ms. Burke began working for the New Mexico General Services Department
(GSD) in January 2013 “as an IT Generalist 2.” R. at 25. Her job duties included
“provid[ing] IT support and customer services for GSD.” Id. at 277. She was supervised
by Karen Baltzley, who reported directly to GSD Secretary Edwynn Burckle.
Ms. Burke claims that she “surveyed the pay levels for her department” and
learned that “[t]he men made 9-12% more than the women in the same positions.” Id. at
26. She also allegedly learned that other employees had committed “malfeasance in
public office,” “violat[ed] . . . state law and administrative code,” engaged in “gross
misconduct and gross mismanagement of staff and public funds, and [committed] abuses
of authority.” Id. at 14. When she reported these issues “to her superiors and to
others[,] . . . the [d]efendants retaliated against [her] by decreasing work responsibilities,
assignments, benefits, income and creating and maintaining a hostile work environment.”
Id.
Ms. Burke also reported one of her coworkers for acting in a “threatening manner”
and for “put[ting] sensitive personal information entrusted to GSD at risk of theft,
exposure, or other breach that could result in great harm.” Id. Instead of remedying
these issues, Supervisor Baltzley notified Ms. Burke’s harasser of the claims she had
made against him, id. at 37, gave the harasser advance notice of a security audit, id. at 53,
and directed him to “secretly record[ ] [Ms. Burke],” id. at 64.
2
In December 2014, Ms. Burke was diagnosed with cancer and several months later
she began chemotherapy. She contends that GSD responded by “increas[ing] [its]
retaliatory and hostile behavior.” Id. at 17. Nevertheless, “[s]he continued to uncover
numerous security issues that she dutifully reported.” Id.
On “several” occasions around May 2015, Supervisor Baltzley “shared
Ms. Burke’s personal health info” with others “despite Ms. Burke asking her not to.” Id.
at 65. When Ms. Burke “confront[ed] [Supervisor] Baltzley about this,” she “was
accused of ‘insubordination.’” Id.
On an unspecified night after work, Ms. Burke found in the parking lot a piece of
paper bearing her name, social-security number, date of birth “and medical diagnosis of
‘Breast Cancer’” along with the “same information for 20 or so other people.” Id. at 22.
She reported her finding, but “GSD did nothing.” Id. at 23.
In June 2015, “Ms. Burke was placed under investigation . . . for an oversight she
made almost exactly a year before.” Id. at 18. She was ultimately suspended for a week
without pay. Ms. Burke’s union declined to arbitrate the suspension, leaving her “no
reasonable method to appeal th[e] . . . disciplinary action.” Id. at 347.
When Ms. Burke returned to work, the retaliation and hostility continued. Fearing
that she was going to “be[ ] fired for having cancer,” Ms. Burke contacted a reporter and
revealed “information about her health and other [private] details” for newspaper articles
that appeared in September and October 2015. Id. at 69; see also id. at 70.
In May 2016, Ms. Burke filed suit in state court against the State of New Mexico,
Secretary Burckle, Human Resources Director Michael Gallegos, Human Resources
3
Manager Brenda Gueths, Supervisor Baltzley, Jay Hone, and Angela Dawson. The
complaint comprised 77 pages and recounted Ms. Burke’s employment experiences at
GSD in almost day-to-day detail. She advanced federal claims for equal-protection and
privacy violations, and state law claims for wage discrimination/retaliation and
whistleblower retaliation. Secretary Burckle removed the case to federal court, where the
defendants moved to dismiss Ms. Burke’s complaint.
In response, Ms. Burke moved to amend her complaint. The proposed amended
complaint substituted GSD for the State of New Mexico and added another individual to
the original list of defendants. While the body of the new complaint shrank to 44 pages,
it (1) added a federal wage-discrimination/retaliation claim that mirrored the existing
state law claim; (2) attacked her union’s arbitration decision as violating due process and
the union’s collective-bargaining agreement; and (3) included 79 pages of exhibits. The
proposed amended complaint revealed that in July 2016, Ms. Burke had “accepted [a]
constructive discharge.” R. at 314.
The district court granted the defendants’ motion, dismissed all of Ms. Burke’s
claims, and denied leave to amend as futile. Ms. Burke appeals.
DISCUSSION
I. Standards of Review
We review a Rule 12(b)(6) dismissal de novo. Childs v. Miller, 713 F.3d 1262,
1264 (10th Cir. 2013). In doing so, “we accept as true the well pleaded factual
allegations and then determine if the plaintiff has provided enough facts to state a claim
to relief that is plausible on its face.” Hogan v. Winder, 762 F.3d 1096, 1104 (10th Cir.
4
2014) (internal quotation marks omitted). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. (internal quotation marks
omitted).
“The 12(b)(6) standard does not require that [the] Plaintiff establish a prima facie
case in [the] complaint, but rather requires only that the Plaintiff allege enough factual
allegations in the complaint to set forth a plausible claim.” Pueblo of Jemez v. United
States, 790 F.3d 1143, 1172 (10th Cir. 2015) (brackets and internal quotation marks
omitted). But the elements of a prima facie case may be used to shed light upon a claim’s
plausibility. See Kahlik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012).
As for leave to amend, it should generally be freely granted. See Jones v. Norton,
809 F.3d 564, 579 (10th Cir. 2015), cert. denied, 137 S. Ct. 197 (2016). But it should be
denied when amendment would be futile, in that “the complaint, as amended, would be
subject to dismissal.” Fields v. City of Tulsa, 753 F.3d 1000, 1012 (10th Cir. 2014)
(internal quotation marks omitted). And where, as here, leave to amend is denied due to
futility, we review for an abuse of discretion, which “includes de novo review of the legal
basis for the finding of futility.” Cohen v. Longshore, 621 F.3d 1311, 1314 (10th Cir.
2010) (internal quotation marks omitted).
Because Ms. Burke “is pro se, we liberally construe h[er] filings, but we will not
act as h[er] advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). Further,
pro se litigants must adhere to the same procedural rules as other litigants. Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
5
II. 42 U.S.C. § 1983
A. Eleventh Amendment Immunity
The district court concluded that it lacked jurisdiction over Ms. Burke’s claims
against the State of New Mexico because the state is immune from suit under the
Eleventh Amendment. See Frazier v. Simmons, 254 F.3d 1247, 1252-53 (10th Cir.
2001). Ms. Burke correctly argues that the district court indeed had jurisdiction
because a state’s “voluntary removal constitutes consent to have the claim heard in a
federal forum.” Trant v. Oklahoma, 754 F.3d 1158, 1172 (10th Cir. 2014). But
Ms. Burke forfeited her removal argument by not raising it in the district court.
See Fish v. Kobach, 840 F.3d 710, 729 (10th Cir. 2016) (observing that “[i]f a new
theory simply wasn’t raised before the district court, we usually hold it forfeited” and
will not reverse absent “a plainly erroneous result” (brackets and internal quotation
marks omitted)). And because she does not seek plain-error review, the argument is
waived on appeal. See United States v. MacKay, 715 F.3d 807, 831 (10th Cir. 2013)
(“In this Circuit, the failure to argue for plain error and its application on appeal . . .
surely marks the end of the road for an argument for reversal not first presented to
the district court.” (internal quotation marks omitted)); see also Muscogee (Creek)
Nation v. Okla. Tax Comm’n, 611 F.3d 1222, 1228 n.3 (10th Cir. 2010) (declining to consider
an argument on waiver grounds that sought to establish that the sovereign had waived
Eleventh Amendment immunity); Sydnes v. United States, 523 F.3d 1179, 1183
(10th Cir. 2008) (noting that “the party asserting jurisdiction bears the burden of proving
that sovereign immunity has been waived”).
6
The district court also relied on the Eleventh Amendment to dismiss Ms. Burke’s
§ 1983 claims against Secretary Burckle in his official capacity. See Colby v. Herrick,
849 F.3d 1273, 1278 (10th Cir. 2017). But as far as we can tell, Ms. Burke’s complaint
advances no official-capacity § 1983 claims against Secretary Burckle. Rather, the
complaint indicates that the § 1983 claims are brought against the defendants, including
Secretary Burckle, “in their individual capacities.” R. at 85-88. And on appeal,
Ms. Burke represents that she brought only individual-capacity § 1983 claims against
Secretary Burckle.1
Thus, although the district court erroneously believed it lacked jurisdiction over
the State of New Mexico, we will affirm the state’s dismissal, as Ms. Burke has waived
the error. As for the district court’s dismissal of the non-existent claims against Secretary
Burckle in his official capacity, we vacate the district court’s judgment in that regard.
B. Equal Protection
The district court dismissed Ms. Burke’s equal-protection claim because she failed
to allege the personal involvement of any defendant. See Brown v. Montoya, 662 F.3d
1152, 1163 (10th Cir. 2011) (“Personal liability under § 1983 must be based on personal
involvement in the alleged constitutional violation.” (internal quotation marks omitted)).
We agree with that determination.
1
Although there are no official capacity § 1983 claims in the complaint, we
remind the district court that the dismissal of such a claim on jurisdictional grounds
must be without prejudice. See Colby, 849 F.3d at 1278.
7
Ms. Burke alleged that “the Defendants” were aware of “discriminatory
difference[s] in pay” and “gender based harassment,” yet failed to remedy those issues
and instead “retaliate[d] against [her] for reporting” them. R. at 85, 86. But she did not
allege how any particular defendant treated her differently based on her gender. To state
a plausible § 1983 equal-protection claim, a plaintiff must allege facts indicating how
each defendant was personally responsible for treating her “differently from others
similarly situated.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam).
This she did not do.
The only individual Ms. Burke specifically mentioned was Secretary Burckle. She
alleged that he “failed to properly train and discipline his staff in all matters in connection
with violations of [her] constitutional rights.” R. at 86. But she did not allege “an
affirmative link between [Secretary Burckle] and the constitutional violation.” Keith v.
Koerner, 843 F.3d 833, 838 (10th Cir. 2016) (internal quotation marks omitted). In other
words, she alleged no “specific deficiency in” Secretary Burckle’s training regimen that
was “closely related to h[er] ultimate injury” and that “actually caused” unequal
treatment. Id. at 839 (internal quotation marks omitted)
Ms. Burke is correct in arguing that deliberate indifference to known sexual
harassment can, under certain circumstances, serve as a basis for supervisory liability
under an equal-protection theory. See Murrell v. Sch. Dist. No. 1, 186 F.3d 1238, 1250
(10th Cir. 1999). But she has not alleged the facts necessary to proceed under that
theory. She must show how each defendant who occupied a supervisory role “actually
8
. . . acquiesced in” her harassment. Id. (internal quotation marks omitted). As we have
indicated, “direct personal responsibility” is required for any plausible § 1983 claim.
Trujillo v. Williams, 465 F.3d 1210, 1227 (10th Cir. 2006). It is insufficient to allege
merely that a supervisor had “knowledge of [a] subordinate’s discriminatory purpose.”
Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009).
Thus, the district court did not err in dismissing Ms. Burke’s equal-protection
claim. Nor did the district court abuse its discretion in denying leave to amend, as
Ms. Burke’s proposed amended complaint did not cure the deficiencies we have
identified.
C. Right of Privacy
Ms. Burke alleged that Supervisor Baltzley “repeatedly disclosed information
pertaining to [her] medical condition, treatment, medical accommodation, disciplinary
action and other private details with coworkers, contractors and the general public.” R. at
87. Secretary Burckle, Dawson, and Hone were allegedly deliberately indifferent to
Supervisor Baltzley’s conduct and “failed to provide training or discipline . . . to prevent
reoccurrence of these constitutional violations.” Id. We conclude that Ms. Burke’s
privacy claim, which she advances under the Fourth Amendment, is too speculative to
proceed as pled.
Specifically, it is not entirely clear when the revelations of health information
occurred or who was responsible. Timing is critical because Ms. Burke divulged the
same information to a newspaper reporter who used it for two published stories. “What a
person knowingly exposes to the public, even in his own home or office, is not a subject
9
of Fourth Amendment protection.” Brokers’ Choice of Am., Inc. v. NBC Universal, Inc.,
757 F.3d 1125, 1147 (10th Cir. 2014) (internal quotation marks omitted).2
Thus, to the extent Ms. Burke revealed her private information to the reporter
before a defendant disclosed it to a third party, Ms. Burke cannot complain. At most, the
complaint identifies May 2015 in regard to one or more of Supervisor Baltzley’s
revelations. The complaint is silent, however, as to when Ms. Burke spoke to the
reporter. Further, no date is provided for the evening on which Ms. Burke found her
personal information on a paper in GSD’s parking lot. And there are no allegations as to
who was personally responsible for that revelation. As we have already made clear,
§ 1983 requires “personal involvement in the alleged constitutional violation.” Brown,
662 F.3d at 1163.
To the extent Ms. Burke complains that Secretary Burckle, Dawson, and Hone are
liable for Baltzley’s alleged misconduct based on deliberate-indifference or failure-to-
train theories, there are no allegations affirmatively linking their conduct to the revelation
of Ms. Burke’s private information. The fact that they may supervise Baltzley is
insufficient. See Poolaw v. Marcantel, 565 F.3d 721, 732 (10th Cir. 2009) (“[A]
2
To the extent the defendants argue that Ms. Burke’s privacy claim fails
because she did not allege some physical intrusion upon her private documents or
medical records, we note that “[t]he Fourth Amendment protects against the
government’s 1) unprivileged trespass on property expressly protected by the Fourth
Amendment—‘persons, houses, papers, and effects’—for the purpose of conducting a
search or seizure; and 2) infringement of an individual’s reasonable expectation of
privacy.” United States v. Carloss, 818 F.3d 988, 992 n.2 (10th Cir.) (emphasis
added), cert. denied, 137 S. Ct. 231 (2016). Ms. Burke’s allegations were based on
the latter theory.
10
supervisory relationship alone is insufficient for liability under § 1983[.]”); Jenkins v.
Wood, 81 F.3d 988, 994-95 (10th Cir. 1996) (“[T]he defendant’s role must be more than
one of abstract authority over individuals who actually committed a constitutional
violation.”).
Thus, the district court did not err in dismissing Ms. Burke’s privacy claim. Nor
did the district court abuse its discretion in denying leave to amend insofar as the
proposed amended complaint did not materially alter her claim. But there were enough
allegations in those complaints to warrant another opportunity at amendment. See Knight
v. Mooring Capital Fund, LLC, 749 F.3d 1180, 1190 (10th Cir. 2014) (observing that
“pro se parties generally should be given leave to amend” unless “it is obvious that the
plaintiff cannot prevail on the facts . . . alleged and it would be futile to” provide the
chance to amend (internal quotation marks omitted)). Thus, on remand, Ms. Burke
should be given a chance to amend her privacy claim to cure the deficiencies noted
above.
D. Due Process
The district court rejected Ms. Burke’s due-process claim in the proposed
amended complaint because she failed to allege the defendants’ personal involvement.
Indeed, Ms. Burke complained only that her union’s “withdr[awal] from th[e] arbitration”
of her suspension left her “with no reasonable method to appeal.” R. at 347. Given the
absence of allegations showing personal involvement by any of the defendants in her
11
inability to appeal the suspension, there was no abuse of discretion in denying leave to
amend.3
III. Labor Management Relations Act (LMRA)
The LMRA authorizes “[s]uits for violation of contracts between an employer and
a labor organization representing employees in an industry affecting commerce.”
29 U.S.C. § 185(a). Ms. Burke alleged in her proposed amended complaint that the
defendants violated the collective bargaining agreement with her union by “severely
disciplin[ing] [her] for an unintentional infraction” and taking “adverse action against
[her] for her Whistleblower complaints.” R. at 348-49. Further, she alleged that her
union refused to remedy these violations of the collective bargaining agreement. Because
Ms. Burke’s allegations “combine[d] two conceptually independent causes of action, the
first against the company for breach of the contract (a standard [LMRA] § 301
claim [codified at 29 U.S.C. § 185(a)]) and the second against the union for breach of the
duty of fair representation (a claim implied by operation of a union’s status under federal
law as the sole bargaining representative of the employee),” her claim constituted a
hybrid action. Webb v. ABF Freight Sys., Inc., 155 F.3d 1230, 1238 (10th Cir. 1998).
The district court did not recognize the hybrid nature of Ms. Burke’s claim, and it
concluded the claim could not proceed without Ms. Burke’s union as a named defendant.
3
Insofar as Ms. Burke argues on appeal that her constructive discharge was a
violation of due process, she did not plead any such claim. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 n.3 (2007) (“Without some factual allegation in the
complaint, it is hard to see how a claimant could satisfy the requirement of providing
not only ‘fair notice’ of the nature of the claim, but also ‘grounds’ on which the claim
rests.”).
12
Ms. Burke correctly notes on appeal that in a hybrid § 301 case she “need not sue both
h[er] union and former employer in the same case, and [s]he may choose to seek damages
against only one of the potential defendants.” Id. at 1239.
In any event, we conclude that Ms. Burke’s claim fails because she proposed suing
GSD, which does not qualify as an employer under the LMRA. Specifically, the LMRA
excludes from the definition of “employer” “any State or political subdivision thereof.”
29 U.S.C. § 152(2). Ms. Burke alleged that “GSD is a division of the Executive Branch
of the State of New Mexico Government.” R. at 314. Further, we note that GSD was
established by the State of New Mexico “to make state government more efficient and
responsive through consolidating certain state government service functions[ ] and . . . to
administer laws relating to services for governmental entities.” N.M. Stat. Ann. § 9-17-2.
GSD is thus a political subdivision of the State of New Mexico. Denial of leave to
amend to pursue an LMRA claim was therefore appropriate.
IV. Equal Pay
A. Wage Discrimination
The district court analyzed Ms. Burke’s claims asserting a violation of New
Mexico’s Fair Pay for Women Act (FPWA) under the rubric of the federal Equal Pay Act
(EPA), given the statutes’ similarity. Compare N.M. Stat. Ann. § 28-23-3(A) (FPWA
prohibiting discrimination “between employees on the basis of sex by paying wages to
employees in the establishment at a rate less than the rate that the employer pays wages to
employees of the opposite sex in the establishment for equal work on jobs the
performance of which requires equal skill, effort and responsibility and that are
13
performed under similar working conditions”) with 29 U.S.C. § 206(d)(1) (EPA same).4
Using that approach, the district court determined that Ms. Burke had “stated facts
relative to the conclusion that men were paid more than women for the same position.”
R. at 487.
But the district court dismissed Ms. Burke’s FPWA claim and denied leave to
amend to include an EPA claim, explaining that Ms. Burke had “lump[ed] Defendants
together,” offering no “specificity as to which Defendants knew what and when.” Id. at
487. We conclude that the district court relied on faulty reasoning.
First, whether an employer acted with discriminatory intent is not relevant in an
EPA case. See Mickelson v. N.Y. Life Ins. Co., 460 F.3d 1304, 1310-11 (10th Cir. 2006)
(observing that “[t]he EPA[ ] . . . impos[es] a form of strict liability on employers who
pay males more than females for performing the same work”).
Second, a plaintiff need only “plead[ ] factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft, 556 U.S. at 678 (internal quotation marks omitted). As the district court
acknowledged, Ms. Burke alleged she was paid less than a male colleague for “the exact
same work” based solely on her sex, R. at 83. Further, Ms. Burke specifically targeted
GSD as responsible for the wage discrimination. See id. at 83 (alleging that “GSD has no
4
Given the dearth of New Mexico case law discussing the FPWA and the
consensus among the parties and the district court that the FPWA and EPA are
coterminous, we will address Ms. Burke’s wage discrimination claims using the legal
principles applicable in the EPA context. We do so, however, without expressing a
view as to the reach of the FPWA.
14
legitimate, non-discriminatory business reason for failing to pay Ms. Burke equitably”
and that “[GSD] does not pay pursuant to any seniority, merit or quantity/quality of
production system”). This is sufficient “to raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Riser v. QEP Energy,
776 F.3d 1191, 1196 (10th Cir. 2015) (“To establish a prima facie case of pay
discrimination under the EPA, a plaintiff must demonstrate that: (1) she was performing
work which was substantially equal to that of the male employees considering the skills,
duties, supervision, effort and responsibilities of the jobs; (2) the conditions where the
work was performed were basically the same; (3) the male employees were paid more
under such circumstances.” (internal quotation marks omitted)).
Of course, Ms. Burke did not name GSD as a defendant in her original complaint.
Liability under the EPA is limited to employers. See Peppers v. Cobb Cty., 835 F.3d
1289, 1296 (11th Cir. 2016). And the EPA includes “public agenc[ies]” within the
definition of “employer.” 29 U.S.C. § 203(d). Because Ms. Burke did not sue the agency
she had alleged was responsible for the discrimination, her claim was properly dismissed,
but not for the reasons given by the district court.
Ms. Burke’s proposed amended complaint did, however, name GSD as a
defendant. To complete her state and federal wage discrimination claims, Ms. Burke
should be granted leave to amend on remand. Leave to amend should include
Ms. Burke’s proposed EPA claim, not just the addition of GSD as a defendant.
15
B. Retaliation
The retaliation component of Ms. Burke’s wage claim does not fare as well. In
regard to retaliation, the district court concluded that Ms. Burke failed to allege that she
had engaged in a statutorily protected activity, such as asserting her rights to receive
equal pay. We agree.
It is unlawful for an employer to “discharge or in any other manner discriminate
against any employee because such employee has” opposed or complained of wage
discrimination. 29 U.S.C. § 215(a)(3); Mickelson, 460 F.3d at 1315 (“To state a prima
facie case of [EPA] retaliation, a plaintiff is required to demonstrate: (1) that she
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.” (brackets and
internal quotation marks omitted)).
Granted, Ms. Burke alleged in her complaint that after “question[ing] her gender
based pay disparity to her superiors and to others,” R. at 14, she was “stripped of her job
duties and [was] no longer assigned meaningful work,” id. at 83. But we can find no
allegations indicating whether her “question[ing]” of pay disparity rose to the level of an
actual objection or opposition to pay disparity. Also missing are allegations of a causal
connection between her “question[ing]” and the loss of job duties and meaningful work
assignments. Her complaint provides only a scattered description of events. Although a
plausible claim does not require “detailed factual allegations,” there must be “something
more than a statement of facts that merely creates a suspicion of a legally cognizable
16
right of action.” Twombly, 550 U.S. at 555 (brackets, ellipses, and internal quotation
marks omitted). Ms. Burke’s proposed amended complaint repeats these pleading
defects.
On appeal, Ms. Burke attempts to shift the focus of her retaliation claim from
“question[ing]” her superiors, R. at 14, to her filing of “[a]n EEOC charge,” Aplt.
Opening Br. at 22. But since we cannot draw from Ms. Burke’s complaint or her
proposed amended complaint “the reasonable inference” that any of the defendants are
“liable for the [retaliatory] misconduct [actually] alleged,” Iqbal, 556 U.S. at 678, we
conclude that the district court did not err in dismissing her retaliation claim and denying
leave to amend.5
V. Whistleblower Protections
New Mexico’s Whistleblower Protection Act (WPA) prohibits a public employer
from retaliating against an employee because she (1) “communicate[d] . . . information
about an action or a failure to act that the public employee believes in good faith
constitutes an unlawful or improper act”; (2) “provide[d] information to, or testifie[d]
before, a public body as part of an investigation, hearing or inquiry into an unlawful or
5
Although the FPWA does not include language prohibiting retaliation, it does
provide that “[a] person claiming to be aggrieved by an unlawful discriminatory
practice in violation of the [FPWA] may[ ] . . . seek relief under the [New Mexico]
Human Rights Act.” N.M. Stat. Ann. § 28-23-4(A)(2). The Human Rights Act
makes it unlawful for a person or employer to “engage in any form of threats, reprisal
or discrimination against any person who has opposed any unlawful discriminatory
practice.” Id. § 28-1-7(I)(2). Even assuming that either of Ms. Burke’s complaints
invokes the retaliation proscription contained in the Human Rights Act, her claim
nevertheless lacks allegations necessary to qualify as plausible.
17
improper act”; or (3) “object[ed] to or refuse[d] to participate in an activity, policy or
practice that constitutes an unlawful or improper act.” N.M. Stat. Ann. § 10-16C-3. The
district court found Ms. Burke’s WPA claim inadequate on two grounds. We conclude
that neither ground completely forecloses her claim.
First, the district court noted that Ms. Burke had identified GSD as a public
employer subject to WPA liability despite not naming GSD as a defendant. That defect is
remedied, however, in the proposed amended complaint. We note too that Secretary
Burckle was identified as a public employer subject to liability. While this is permissible
in his official capacity, see id. § 10-16C-2(C) (stating that “public employer” includes
“every office or officer” of an agency or branch of state government), “the WPA does not
create a right of action against a current or former state officer in his or her personal
capacity,” Flores v. Herrera, 384 P.3d 1070, 1073 (N.M. 2016). Thus, the district court
properly dismissed the original WPA claim to the extent GSD was not named as a
defendant and others were named in their individual capacities. And the district court
appropriately denied leave to amend insofar as the proposed amended complaint contains
WPA allegations against Secretary Burckle, Supervisor Baltzley, Human Resources
Director Gallegos, Human Resources Manager Gueths, Dawson, and Hone in their
individual capacities. But the district court should not have dismissed the WPA claim to
the extent it designated Secretary Burckle as a § 10-16C-2(C) employer and should not
have denied leave to amend to include GSD as a defendant.
Second, the district court erroneously determined that Ms. Burke’s WPA claim
failed because she did not specify “which communication is the basis for her WPA
18
claim” or how the defendants retaliated against her. R. at 489. Although the original
complaint is prolix and often discursive, the requisite WPA allegations are decipherable.
For instance, Ms. Burke alleged that (1) in April 2014 she notified Secretary Burckle,
Director Gallegos, and Manager Gueths about security concerns, code violations, and
gender harassment, and (2) Supervisor Baltzley soon retaliated against her by
restructuring her job assignments during a project. See R. at 36-37, 42-46. Baltzley also
allegedly damaged Ms. Burke’s credibility and reputation by “ensur[ing] that facts [she]
reported . . . were obscured, downplayed and falsified,” id. at 84, and that the “retaliatory
action against [her] [occurred] because of these communications,” id. at 85. These
allegations, which also appear in the proposed amended complaint, are sufficient to state
a plausible WPA claim. See Flores, 384 P.3d at 1072 (stating that the WPA “prohibits a
public employer from taking retaliatory action against a public employee because the
public employee communicate[d] information about conduct that the public employee
believes in good faith to be unlawful or improper”).
Accordingly, on remand the district court should grant Ms. Burke an opportunity
to pursue the WPA claim in her proposed amended complaint, minus the
individual-capacity allegations.
VI. Post-Ruling Amendment
Ms. Burke argues that the district court should have given her another chance to
amend after dismissing her original complaint and rejecting her proposed amended
complaint. While we believe that Ms. Burke should have had another chance to plead her
privacy claim, we conclude that the district court did not abuse its discretion in
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terminating her equal-protection, due-process, and LMRA claims based on the existing
allegations. A district court does not abuse its discretion in denying leave to amend when
“it is obvious that the plaintiff cannot prevail on the facts [s]he has alleged and it would
be futile to give [her] an opportunity to amend.” Gee v. Pacheco, 627 F.3d 1178, 1195
(10th Cir. 2010) (internal quotation marks omitted). Ms. Burke’s original complaint and
proposed amended complaint each contained over 200 paragraphs of allegations in
support of only a handful of non-complex legal claims. Yet despite providing an
overabundance of factual information, Ms. Burke failed to plead equal-protection, due-
process, or LMRA claims suggesting plausibility. Giving her another opportunity to
recast her myriad allegations to support those claims would have been futile.
CONCLUSION
We affirm the district court’s judgment insofar as it (1) dismissed Ms. Burke’s
individual-capacity § 1983 claims; (2) dismissed her FPWA discrimination and
retaliation claims; and (3) dismissed her WPA claim against the defendants in their
individual capacities.
We reverse the district court’s judgment insofar as it dismissed Ms. Burke’s WPA
claim against Secretary Burckle in his official capacity.
We vacate the district court’s judgment to the extent it purported to dismiss
non-existent § 1983 claims against Secretary Burckle in his official capacity.
We affirm the district court’s decision denying leave to amend except to the extent
it prohibited (1) the addition of FPWA and EPA discrimination claims that named GSD
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as a defendant; (2) the naming of GSD in a WPA claim; and (3) the submission of a new
amended privacy claim.
Accordingly, we remand for further proceedings as to violation of privacy, wage
discrimination, and whistleblowing that are consistent with this Order and Judgment.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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