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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.” 

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.” 

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.” 

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.”

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.” 

remedying

these issues, Supervisor Baltzley notified Ms. Burke’s harasser of the claims she had

made against him, 

gave the harasser advance notice of a security audit, 

and directed him to “secretly record[ ] [Ms. Burke],” 

                                               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.” 

Nevertheless, “[s]he continued to uncover

numerous security issues that she dutifully reported.” 

occasions around May 2015, Supervisor Baltzley “shared

Ms. Burke’s personal health info” with others “despite Ms. Burke asking her not to.” 

When Ms. Burke “confront[ed] [Supervisor] Baltzley about this,” she “was

accused of ‘insubordination.’” 

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.” 

She reported her finding, but “GSD did nothing.” 

       In June 2015, “Ms. Burke was placed under investigation . . . for an oversight she

made almost exactly a year before.” 

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.” 

       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. 

see also 

       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, 

,

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, 

, 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.” 

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, 

, 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, 

, 1192 (10th Cir. 2012).

       As for leave to amend, it should generally be freely granted. See Jones v. Norton,

, 579 (10th Cir. 2015), cert. denied, 

(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, 

, 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, 

, 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, 

, 1315 (10th Cir. 2013). Further,

pro se litigants must adhere to the same procedural rules as other litigants. Garrett v.

Selby Connor Maddux & Janer, 

, 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, 

, 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, 

, 1172 (10th Cir. 2014). But

Ms. Burke forfeited her removal argument by not raising it in the district court.

See Fish v. Kobach, 

, 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, 

, 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, 

, 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, 

, 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,

, 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, 

, 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 

.

                                              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, 

, 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, 

, 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. 

(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, 

, 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. 

marks omitted). As we have

indicated, “direct personal responsibility” is required for any plausible § 1983 claim.

Trujillo v. Williams, 

, 1227 (10th Cir. 2006). It is insufficient to allege

merely that a supervisor had “knowledge of [a] subordinate’s discriminatory purpose.”

Ashcroft v. Iqbal, 

, 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.” 

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.,

, 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.” 

.

       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, 

, 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, 

, 992 n.2 (10th Cir.) (emphasis
added), cert. denied, 

(2016). Ms. Burke’s allegations were based on
the latter theory.


                                             10
supervisory relationship alone is insufficient for liability under § 1983[.]”); Jenkins v.

Wood, 

, 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, 

, 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., 

, 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, 

, 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.” 

       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.” 

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., 

, 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.”

(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 

(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, 

, 555 (2007); see Riser v. QEP Energy,

, 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., 

, 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); 

(“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,” 

. 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.” 

(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,” 

, 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.” 

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 

(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, 

, 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,” 

and that the “retaliatory

action against [her] [occurred] because of these communications,” 

These

allegations, which also appear in the proposed amended complaint, are sufficient to state

a plausible WPA claim. See 

(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, 

, 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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