FILED
                                                                      United States Court of Appeals
                         UNITED STATES COURT OF APPEALS                       Tenth Circuit

                                FOR THE TENTH CIRCUIT                      September 9, 2015
                            _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
CHERYL ARABALO,

         Plaintiff - Appellant,

v.                                                          No. 14-1259
                                               (D.C. No. 1:11-CV-02343-MSK-MEH)
CITY OF DENVER, COUNTY OF                                    (D. Colo.)
DENVER, through its elected officials, the
Denver City Council; ASHLEY KILROY,
in her official capacity as Acting Safety
Manager for the City and County of
Denver; CAPTAIN GUTIERREZ;
PHILLIP DEEDS,

         Defendants - Appellees.
                         _________________________________

                                ORDER AND JUDGMENT*
                            _________________________________

Before KELLY, PHILLIPS, and MORITZ, Circuit Judges.
                  _________________________________

     Until March 2012, and for 18 years, Cheryl Arabalo was employed at the Denver

Sheriff’s Department (the “Department”), most recently with the rank of captain.

After being fired, Arabalo sued the City and County of Denver (“Denver”), Chief

Phillip Deeds (her supervisor), Ashley Kilroy (acting safety manager for the city),

and Captain Silver Gutierrez. The district court dismissed on pretrial dispositive

motions all but one of Arabalo’s claims—her Title VII claim based on a hostile work

     *
     This order and judgment is not binding precedent, except under the doctrines of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.
environment. The parties tried this claim to a jury, and the jury found against

Arabalo.

   On appeal, Arabalo makes three arguments: (1) that the district court erred in

concluding that Arabalo had failed to exhaust her administrative remedies for one of

the three bases asserted to support her hostile-work-environment claim: an alleged

rape that occurred at her home; (2) that Denver failed to meet its initial burden for

summary judgment on all claims; and (3) that the district court erred in permitting her

to amend her complaint because the district court should have known that it would

later dismiss the claims it permitted her to add. The defendants argue that Arabalo’s

notice of appeal was insufficient to vest us with jurisdiction on all claims, and

alternatively, they argue that we should affirm the district court on the merits.

   We hold that we have jurisdiction over Arabalo’s entire appeal. Exercising

jurisdiction under 28 U.S.C. § 1291, we AFFIRM the district court’s conclusion that

Arabalo failed to exhaust her administrative remedies for one basis of her Title VII

hostile-work-environment claim, the alleged rape at her home. We AFFIRM the grant

of Denver’s summary judgment motion and the grant of Captain Gutierrez’s motion

to dismiss.


                             FACTUAL BACKGROUND

   A. Sexual Harassment by Inmates

   Arabalo worked for the Department for 18 years as a corrections officer. In late

2008, Denver County Jail inmates began sexually harassing Arabalo as she


                                            2
performed her duties in the jail. In December 2008, a news story had aired on

television called “Sex, Lies, Video Tapes and DPD,” an account of jail employees

participating in a sex tape. Appellant’s App’x at 191. The inmates concluded that

Arabalo was part of the sex tape because the news story had reported that a person

named “Arabalo” was involved. Going forward, the inmates masturbated toward her

during her rounds, cat-called her, and suggested that she engage in various sexual

acts with the inmates and with jail personnel. She reported this problem to the

Department, but it initially did nothing. The Department told her that she was

responsible for enduring the harassment. After she complained for six months, in

June 2009, Denver finally transferred her to the Pre-Trial Arraignment Detention

Facility (“PTDF”). Later in November 2009, Denver transferred Arabalo back to the

Denver County Jail, where the inmates again began sexually harassing her. When she

asked Chief Deeds why she was being transferred back to the jail, he told her that she

had done nothing wrong and that her work had been excellent.

   B. Two Deputies Allegedly Sexually Assault Arabalo in Her Home

   In 2004, Arabalo founded the Denver Sheriff Foundation (“the Foundation”), a

private, nonprofit organization created to assist the Department employees in need of

financial or other assistance. In October 2009, Arabalo and Deputies William Currat

and Tyler Mazotti, two other Foundation volunteers, were at Arabalo’s home for a

Foundation meeting. According to Arabalo, the two men lingered in her basement

after the meeting, commented about her breasts, and asked her to lift her shirt. After

she tried to leave, they blocked her from leaving the basement. She says that the two

                                          3
deputies then attacked and raped her. None of the three were on duty. The next day,

she reported the rape to her supervisor at the PTDF, Chief Deeds, but he told no one

else about the incident, and he advised her to keep quiet about it. The Department

never investigated her allegations. On the verge of termination for his response to

Arabalo, Chief Deeds ultimately resigned from the Department.

   C. Arabalo Files Charges of Discrimination

   In April 2010, Arabalo first filed a charge of discrimination with the Colorado

Civil Rights Division (“CCRD”), alleging that during her employment at the

Department she was subjected to sexual harassment, retaliation, and a hostile work

environment. In July 2010, Arabalo also filed a complaint with the Equal

Employment Opportunity Commission (“EEOC”). In October 2010, she sent an e-

mail to Kimberly Roy at the CCRD, saying that an unnamed captain (Gutierrez) with

the Department had continued to sexually harass her. She did not want to mention his

name for fear of retaliation. In November 2010, the Department received a copy of

Arabalo’s combined CCRD/EEOC charge.

   D. Captain Gutierrez Sexually Harasses Arabalo

   Gutierrez and Arabalo were both captains with the Department, and they both

volunteered for the Foundation. Gutierrez had been with the Department for 16 years.

Gutierrez was also a board member and the treasurer of the Foundation. As far back

as 2008, Arabalo says that Gutierrez had made sexually explicit comments to her at

work while they were both captains at the Denver County Jail. For instance, on one

occasion, Gutierrez asked Arabalo to unbutton her shirt. He also commented to her

                                         4
about the size of her chest and asked if her breasts were real. For two days, August

26–27, 2008, Gutierrez was temporarily in a position of authority over Arabalo when

he served as Acting Chief of the County Jail. Gutierrez denied all of Arabalo’s

allegations, except admitting that he had probably been “playing around” and said

“what are you wearing” to Arabalo once on the phone and that, on another occasion,

he told her to unbutton her shirt. Appellant’s App’x at 448. In October 2010, Arabalo

reported his conduct to Kimberly Roy at the CCRD, but she asked Roy to withhold

Gutierrez’s name in the CCRD report, and Roy complied with Arabalo’s request.

      E. Denver Investigates Arabalo’s Rounds Reports

      In late July 2010, the Department began investigating Arabalo for falsely

reporting that she had uploaded her rounds reports for the Denver County Jail (the

“Rounds-Reports Investigation”). On July 15, 2010, Arabalo had sent an email to a

Major Homer, saying, “I reviewed Guard [O]ne Reports for 2, 4, 22, and 21 and it

appears that rounds are being made in a timely manner an[d] downloaded up through

yesterday 7/14/10.” Appellant’s App’x at 238. Major Homer checked the Guard One

database and “found that it contained no data for July 14, 2010.” 

the

“Guard One” reports that Arabalo referenced in her original email “had not been

downloaded for several days.” 

memorandum that began the disciplinary

process, Major Homer concluded, “Due to the fact that the [reports] were not

downloaded and she did not log onto the Guard One System, I can only conclude she

has falsified a report to her Superior Officer, and ultimately departed from the truth.”

January 2011, during her disciplinary proceedings, Arabalo said that she had

not meant to say that all of the reports had been downloaded, but instead that she was

having issues with the computer and “was doing the rounds in a way that [she] had

always done them.” 

She said that, in July 2010, she had been able to

download some, but not all, of the reports. But the computer system (which logs all

the dates and times of all users’ entries) showed that Arabalo had not logged into the

system until July 21, 2010. It definitively showed that Arabalo had not logged into

the system on July 14, 2010, as she said she had done. Ashley Kilroy, the Deputy

Manager of Safety, ultimately concluded:

       Your actions amount to conduct prejudicial to the efficiency, good name
       and reputation of the City and County of Denver; and as such would
       cause the public to lose confidence in the Denver Sheriff Department
       and/or the Department of Safety. Among other things, you disobeyed a
       direct order [to submit the rounds reports], you departed from the truth,
       you falsified a record and you failed to perform the required duties of
       your position [to check rounds]. Your actions and admissions have also
       led us to question your truthfulness and good judgment[,] which are
       essential to your position with the Denver Sheriff Department. As a
       member of the Department you are expected to maintain the highest
       standards of character by the Department and by the citizens of the City
       and County of Denver.


Appellant’s App’x at 242. The Department provided Arabalo with the evidence

supporting its conclusion that she had lied about submitting her rounds reports.

Denver then suspended Arabalo for 70 days.1


   1
      In October 2010, Arabalo told the CCRD about the Rounds-Report
Investigation, claiming that it was retaliation for her complaints of sexual harassment
by the inmates.

                                           6
   F. Gutierrez Alleges that Arabalo Embezzled Money from the Foundation

   After learning of Arabalo’s CCRD/EEOC complaint in November 2010, the

Department began investigating Gutierrez for sexual harassment, ultimately

suspending him from work for 75 days.2 In a January 2011 interview about his sexual

harassment, Gutierrez told the internal-affairs investigator that he thought Arabalo

had misappropriated funds from the Foundation. Gutierrez was the Foundation

treasurer, so he received all of its bank statements in the mail. Gutierrez gave the

investigator bank statements showing improper debit-card transactions by Arabalo.

He told the investigator that he knew Arabalo was spending Foundation money on

non-Foundation expenses. In May 2011, Denver began investigating Arabalo for

misappropriating Foundation funds (the “Misappropriation Investigation”).

   G. Independent Monitor’s Report

   In May 2011, Richard Rosenthal—an Independent Monitor from the Office of the

Independent Monitor, a civil-oversight agency tasked with monitoring Denver’s

policing and law enforcement—submitted a report for the first quarter of 2011

entitled “Police and Sheriff Discipline and Critical Incident Report.” Supp. App’x at

688. This quarterly summary included his findings for all recent complaints,

incidents, and discipline for Denver’s police force. This report is roughly 40 pages,

two pages of which deal with Arabalo’s misdoings. He concluded that her 70-day

suspension for her misconduct in the Rounds-Reports investigation was far too


   2
     Gutierrez appealed his suspension, which the Department then reduced to 30
days.
                                         7
lenient. He opined that she should have been demoted and kept from supervising

others upon her return to work.

   The Independent Monitor’s report did not name Arabalo. But Arabalo alleges that

Rosenthal released a statement to the media regarding Arabalo’s suspension,

including her name and providing information from the investigation. While the

magistrate judge, in his report and recommendation for Gutierrez’s motion to

dismiss, did say (without citing to the record) that “Rosenthal released a statement

regarding Plaintiff’s suspension in which he identified Plaintiff by name and opined

that she should be demoted due to her lack of supervision and lying,” Appellant’s

App’x at 193–94, we have found nothing else in the record showing that Rosenthal

released Arabalo’s name to the media.

   H. Denver Investigates Arabalo’s Alleged Misappropriation of Funds from the
      Foundation

   In May 2011, Arabalo reported back to work but was immediately placed on

“investigatory leave.” Appellant’s Br. at 13. By then, the Department had begun an

internal-affairs investigation into whether Arabalo, the President of the Foundation,

had misappropriated funds.3 In January 2011, Gutierrez, the Foundation treasurer,

had alleged this misappropriation of funds and provided internal affairs with the

Foundation’s bank statements. The Department turned over the information it




   3
      The Department has no authority over the Foundation, a separate non-profit
entity.

                                         8
gathered during this investigation to the district attorney’s office, but Arabalo was

never charged.

   During this Misappropriation Investigation, Arabalo was placed on investigatory

leave until March 2012, when the Department terminated her employment.4 During

its investigation, the Department discovered that Arabalo’s daughter had used the

Foundation’s credit card at least three times, incurring charges of about $600.

Arabalo had also used the Foundation’s funds to pay her utility bill. Kilroy, the

Deputy Manager of Safety, ultimately concluded that Arabalo’s actions warranted

termination.

   I.    Arabalo’s Lawsuit

   Arabalo sued Denver and her coworkers, raising eight claims in her Third

Amended Complaint:

         A hostile-work-environment claim against Denver under Title VII (“Title
          VII Hostile Work Environment”);
         A retaliation claim against Denver under Title VII (“Title VII Retaliation”);
         A § 1983 claim against Chief Deeds, arguing that he deprived her of equal
          protection by failing to take proper action in response to her complaint
          about having been raped (“§ 1983 Against Deeds”);
         A § 1983 claim against Denver, arguing that it failed to properly train
          department employees (“§ 1983 Against Denver”);
         A § 1983 claim against Captain Gutierrez, arguing that his sexual
          harassment deprived her of equal protection;
         A common law defamation claim against Captain Gutierrez;
         A common law outrageous conduct claim against Captain Gutierrez; and



   4
      Arabalo never told the CCRD or EEOC about this investigation into her
allegedly misappropriating the Foundation’s money.
                                           9
       A common law claim for breach of an implied employment contract against
        Denver.

Appellant’s App’x at 106–28.

   In pretrial motions, the district court disposed of all of Arabalo’s claims except

one, her Title VII claim based on a hostile work environment. After a seven-day jury

trial on that claim, the jury returned a verdict in favor of Denver. On June 1, 2014,

the district court entered a final judgment in favor of Denver and awarded attorney’s

fees and costs to the defendants. Arabalo appeals.



                                      DISCUSSION

   A. Arabalo’s Notice of Appeal

   Denver and Captain Gutierrez argue that this court lacks jurisdiction to hear this entire

appeal because Arabalo failed to list the June 1, 2014, final judgment in her notice of

appeal. In response, Arabalo acknowledges that she did not list the June 1, 2014, final

judgment in her notice of appeal through inadvertence. Although not stating a ground we

need address, she notes that she “expressly identified the final judgment entered on June

1, 2014, in her Docketing Statement,” which she argues should suffice to cure the

deficiency in her notice of appeal. Appellant’s Rep. Br. at 22–23. She also asserts that

any error was harmless because the defendants cannot show prejudice.

   Arabalo filed her notice of appeal on July 1, 2014, designating the following: (1) the

district court order allowing her to amend her complaint; (2) the district court order

partially granting Gutierrez’s motion to stay; (3) the magistrate judge’s recommendation

                                            10
that the district court grant Gutierrez’s motion to dismiss; (4) the district court order

granting Gutierrez’s motion to dismiss and granting in part Denver’s motion for summary

judgment; (5) the district court order granting Denver’s Rule 50 motion; (6) four district

court rulings from May 28 and 29, 2014, regarding jury instructions; and (7) the district

court’s order awarding the defendants attorney’s fees. Supp. App’x at 756–57.

   Under Federal Rule of Appellate Procedure 3(c)(1)(B), “the notice of appeal must . . .

designate the judgment, order, or part thereof being appealed . . . .” In measuring

compliance with this mandatory requirement, we construe notices of appeal liberally,

seeking to determine what the appealing party intended to appeal. Averitt v. Southland

Motor Inn, 

, 1180–81 (10th Cir. 1983). Noncompliance is fatal on appeal

because the rule’s requirements are jurisdictional. 

   Construing her notice of appeal liberally, we think that Arabalo sufficiently signaled

her intent to appeal the June 1, 2014, judgment entered after her unfavorable jury verdict

on the Title VII hostile-work-environment claim. We note that she designated in her

notice of appeal the district court’s order concluding that she had failed to exhaust her

administrative remedies for one of three bases asserted to support her Title VII hostile-

work-environment claim (the alleged rape at her home).5 Because that designation bore



   5
     We also see that she designated in her notice of appeal some unspecified jury-
instruction rulings that we assume dealt in some fashion with her hostile-work-
environment claim. But she did not pursue this designation by making any argument
about the jury instructions or even including them in the record. In view of this lack
of analysis, we conclude that she has waived any argument regarding the jury
instructions. See Coleman v. B-G Maint. Mgmt. of Colo., Inc., 

, 1205
(10th Cir. 1997) (holding that it is insufficient to merely mention a complaint about a
                                             11
on the Title VII hostile-work-environment claim, it strongly suggests that she intended to

appeal the ultimate judgment entered on June 1, 2014. We think this designation

sufficiently notified the defendants that she intended to appeal the Title VII hostile-work-

environment claim.

   Arabalo also met Rule 3(c)’s notice requirements for her appeal from the district

court’s order granting summary judgment to Denver. “Where, as here, a suit involves

multiple claims, the district court must adjudicate every claim before the court’s decision

can be considered final and appealable.” Rekstad v. First Bank Sys., Inc., 

,

1261 (10th Cir. 2001). This means that Arabalo could not have filed a notice of appeal on

any of her claims dismissed before trial until the court entered its final judgment, but it

does not foreclose Arabalo from doing so afterward. So certainly, it is fair to say that

Arabalo intended to appeal the court’s adverse ruling on summary judgment: she listed

that final order in her notice of appeal. The district court’s grant of summary judgment

constituted a final order subject to appeal after the conclusion of the entire case. See id.;

see also Cunningham v. Hamilton Cty., 

, 203–04 (1999) (“Consistent with

these purposes, we have held that a decision is not final, ordinarily, unless it ends the

litigation on the merits and leaves nothing for the court to do but execute the judgment.”

(citation omitted)). We think that Arabalo sufficiently notified the defendants of her

intent to appeal the district court’s final decision on summary judgment. See Smith v.

Barry, 

, 248 (1992) (“[T]he purpose of this requirement is to ensure that the

jury instruction on appeal and that issues not adequately raised in the opening brief
are deemed abandoned or waived).

                                             12
filing provides sufficient notice to other parties and the courts.”). As such, we turn to

consider the merits of Arabalo’s appeal.

   B. Title VII Hostile Work Environment

   In her notice of appeal, Arabalo listed the district court’s order concluding that

Arabalo had failed to exhaust her administrative remedies for one of the three bases (the

alleged rape at her home) supporting this claim. During trial on Arabalo’s Title VII

hostile-work-environment claim, and after Arabalo rested her case, Denver moved for a

Rule 50 Judgment as a Matter of Law on that entire claim. The district court reserved its

ruling until after the close of Denver’s case, and it ultimately denied the motion.

Although allowing the claim to continue, the district court eliminated one of Arabalo’s

supporting bases, the alleged rape, because Arabalo had never advised the CCRD or the

EEOC of it and thus had failed to exhaust her administrative remedies in asserting that

supporting basis. Because Arabalo’s failure kept the agencies from considering the effect,

if any, of the alleged rape, the district court concluded that she had not exhausted her

administrative remedies. It then took a further step and concluded that, under Jones v.

Runyon, 

(10th Cir. 1996), it lacked subject-matter jurisdiction to allow the

jury to consider the alleged rape in deciding the hostile-work-environment claim. In

short, the district court denied Denver’s Rule 50 motion seeking to defeat the entire

hostile-work-environment claim, but limited Arabalo to the bases she had provided to the

CCRD and EEOC, for instance, sexual harassment by Gutierrez and by the jail’s inmates.

   Recognizing the effect of the district court’s reliance on Jones, Arabalo asks that we

overrule it. As a panel, we have no authority to do so because “[w]e are bound by the

                                           13
precedent of prior panels absent en banc reconsideration or a superseding contrary

decision by the Supreme Court.” In re Smith, 

, 724 (10th Cir. 1993). But that

does not end our analysis. We still need to address a recent case neither party has raised

by a Rule 28(j) letter (the method for notifying the court of changes in the law): Gad v.

Kan. State Univ., 

(10th Cir. 2015).

   In Gad, we concluded that a party’s failure to verify submissions to the EEOC did not

defeat the court’s subject-matter jurisdiction. 

Beyond that, we called into

question some of our circuit’s earlier decisions concluding we lacked subject-matter

jurisdiction for other failures to meet Title VII’s requirements. 

We

suggested that recent Supreme Court cases may have limited jurisdictional requirements

to those set forth in 42 U.S.C. § 2000e-5(f)(3), the subsection vesting jurisdiction of Title

VII actions in the federal courts. 

Even if Gad renders the district court’s

reliance on Jones erroneous—which we do not decide today—we still would affirm the

district court’s excluding evidence of the alleged rape to support the hostile-work-

environment claim. As a condition precedent to suit, even if not a jurisdictional

prerequisite, Arabalo was required to notify the CCRD and the EEOC of the alleged rape

before she could later rely on it in support of her hostile-work-environment claim. See 42

U.S.C. § 2000e-5(b).

   For instance, in Shelton v. Boeing Co., 

, 912 (8th Cir. 2005), the Eighth

Circuit noted that “[e]xhaustion of administrative remedies is a condition precedent to the

filing of an action . . . in federal court.” It ultimately held that because the EEOC could

not extend the scope of investigation outside the time period of discriminatory acts the

                                             14
plaintiff identified in his charge of discrimination. It concluded that for any alleged

discriminatory acts outside this period plaintiff had failed to exhaust his administrative

remedies. Id.; cf. Teal v. Potter, 

, 691–93 (7th Cir. 2009) (“The scope of the

EEOC’s investigation was defined by Teal in her complaint; it would be unreasonable to

conclude that the agency would have discovered the July 2003 discharge based on this

single, vague and unsupported sentence.”); Pacheco v. Mineta, 

, 789 (5th

Cir. 2006) (citing Fine v. GAF Chemical Corp., 

, 577–78 (5th Cir. 1993))

(holding that the facts the plaintiff included in his EEOC charge would not cause the

EEOC to investigate a disparate-impact claim). In our view, these cases are consistent

with our own precedent. For example, we have said that “[a] plaintiff’s claim in federal

court is generally limited by the scope of the administrative investigation that can

reasonably be expected to follow the charge of discrimination submitted to the EEOC.”

Jones v. U.P.S., Inc., 

, 1186 (10th Cir. 2007) (alterations omitted) (quoting

MacKenzie v. City & Cty. of Denver, 

, 1274 (10th Cir. 2005)).

   Because she deprived both agencies of the ability to consider the alleged-rape

evidence, Arabalo failed to exhaust her administrative remedies for it. In Gad, we

concluded that “the verification requirement is a condition precedent” to 

, and we conclude it is a condition precedent here, too, for exhausting remedies by

notifying the investigating agencies of the grounds supporting the claim. See, e.g.,

(holding that the failure to include relevant facts in the EEOC

charge was a failure to satisfy the condition precedent). Arabalo’s need to disclose her

bases supporting her alleged claim is a condition precedent to her suit, not a mere

                                            15
affirmative defense for which the defendant must bear the burden. See 

.6 We see no dispute that Arabalo failed to meet the condition precedent necessary to

rely on the alleged rape to support her claim—advising the CCRD and EEOC of this

support for her claim and thus exhausting her administrative remedies.

   As a way of excusing her failure to tell the CCRD or the EEOC of the alleged rape,

Arabalo contends that her “hostile work environment claim was holistic and consisted of

one single claim.” Appellant’s Br. at 38. In response, we fail to see how an administrative

agency investigating Arabalo’s hostile-work-environment claim would naturally stumble

upon the unstated alleged rape at her home.

   C. Title VII Retaliation and § 1983

   Arabalo next appeals the district court’s grant of summary judgment on her Title VII

retaliation claim, her § 1983 claim against Deeds, and her § 1983 claim against Denver.

We review de novo the district court’s grant of summary judgment. Manard v. Fort

Howard Corp., 

, 1067 (10th Cir. 1995). “Summary judgment is appropriate

when there is no genuine dispute over a material fact and the moving party is entitled to

judgment as a matter of law.” Russillo v. Scarborough, 

, 1170 (10th Cir.

1991). “The moving party bears the initial responsibility of presenting evidence to show

the absence of a genuine issue of material fact.”7 Hom v. Squire, 

, 973 (10th


   6
      We note that the administrative-charge requirement is found in the same
subsection as the verification requirement at issue in Gad, likely also making it at
least a condition precedent. See 

.
   7
     Arabalo’s main argument on appeal is that Denver failed to meet its initial
burden in moving for summary judgment on all of her claims. She asks us to reverse
                                              16
Cir. 1996) (citing Celotex Corp. v. Catrett, 

, 323 (1986)). In seeking

summary judgment, the moving party must initiate the process by averring “an absence of

evidence to support the nonmoving party’s case.” Celotex 

. “[T]he

movant need . . . only point to an absence of evidence to support the non-movant’s

claim.” Kannady v. City of Kiowa, 

, 1169 (10th Cir. 2010) (quoting Sigmon

v. CommunityCare HMO, Inc., 

, 1125 (10th Cir. 2000)). “The moving

party may carry its initial burden either by producing affirmative evidence negating an

essential element of the nonmoving party’s claim, or by showing that the nonmoving

party does not have enough evidence to carry its burden of persuasion at trial.” Trainor v.

Apollo Metal Specialties, Inc., 

, 979 (10th Cir. 2002).

   “If a moving party fails to carry its initial burden of production, the nonmoving party

has no obligation to produce anything, even if the nonmoving party would have the

ultimate burden of persuasion at trial.” 

Fire & Marine Ins. Co. v.

Fritz Cos., 

, 1102–03 (9th Cir. 2000)). “If the movant carries this initial

burden, the nonmovant . . . must bring forward specific facts showing a genuine issue for

trial as to those dispositive matters for which it carries the burden of proof.” Kannaday,

the grant of summary judgment entirely on this basis. She relies heavily on Trainor v.
Apollo Metal Specialties, Inc., 

(10th Cir. 2002). In Trainor, we
analyzed the requirements of a moving party’s initial burden, ultimately reversing the
district court’s grant of summary judgment because “even if we were to assume that
defendants carried their initial burden on their motion for summary judgment,” the
nonmoving party had created a factual dispute on a critical issue. 

That
being said, Trainor does not provide relief for Arabalo. Although the district court
described Denver’s motion for summary judgment as “materially deficient,” and we
agree it certainly could have been more complete and helpful, we agree with the
district court that Denver still provided sufficient information and argument to
prevail on summary judgment.
                                            

(quoting Jenkins v. Wood, 

, 990 (10th Cir. 1996)). “Before

summary judgment will be granted it must be clear what the truth is and any doubt as to

the existence of a genuine issue of material fact will be resolved against the movant.”

10A Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 2727 (3d ed.

2015). We review the record in the light most favorable to Arabalo, the nonmoving party.

See Geoffrey E. Macpherson, Ltd. v. Brinecell, Inc., 

, 1245 (10th Cir. 1996).

   With all this in mind, we turn to the following questions: (1) did Denver meet its

initial burden in moving for summary judgment; and (2) if so, did the district court err in

granting summary judgment?

       i. Title VII Retaliation

   To establish a prima facie case of a Title VII retaliation violation, an employee must

demonstrate that: (1) she engaged in conduct protected by Title VII; (2) she suffered an

adverse employment action; and (3) there is some causal connection between that

protected conduct and the adverse action. Conroy v. Vilsack, 

, 1181 (10th

Cir. 2013) (applying the burden-shifting test of McDonnell Douglas Corp. v. Green, 

(1973)). If a plaintiff succeeds in making this prima facie case, the burden then

shifts to the employer to articulate a legitimate, nonretaliatory reason for the adverse

action. Stover v. Martinez, 

, 1070–71 (10th Cir. 2004). Assuming the

employer does so, the employee must establish by a preponderance of the evidence that

the proffered reason is untrue and a pretext. Jaramillo v. Colo. Judicial Dep’t, 

, 1307 (10th Cir. 2005).



                                            18
   In moving for summary judgment on the Title VII retaliation claim, Denver argued

that Arabalo could not show: (1) an adverse employment action; (2) a causal connection

between protected conduct and any adverse employment action; (3) exhaustion of her

administrative remedies; and (4) pretext that would defeat the Department’s legitimate,

nondiscriminatory reason for its actions.

   As protected conduct, Arabalo points to her complaining to her employer about the

inmates’ and Gutierrez’s sexual harassment and her reporting discrimination to the

CCRD and the EEOC. In particular, she claims three adverse-employment actions: (1) the

July 2010 Rounds-Reports Investigation into Arabalo’s falsification of rounds reports and

her resulting suspension; (2) the May 2011 Misappropriation Investigation and her

termination; and (3) the release of information to the media from the Independent

Monitor’s semi-annual report on police incidents and discipline. For the first action, the

district court concluded that Arabalo had failed to prove pretext, making summary

judgment in favor of Denver appropriate. For the second, the court concluded that

Arabalo had failed to exhaust her administrative remedies, a jurisdictional bar to judicial

review. And, for the third, the district court concluded that Arabalo had failed to show

causation between her protected activity and the release of the information to the media.

We discuss each in turn below.

              a. Pretext for the Rounds-Report Investigation

   For the Rounds-Reports Investigation, the district court concluded that Arabalo had

met her burden to establish a prima facie case of retaliation. Even so, the district court

granted summary judgment in favor of Denver, concluding that Denver had given a

                                            19
nondiscriminatory reason for this investigation and that Arabalo failed to show pretext.

The district court found that Arabalo had failed to identify facts that refuted Denver’s

proffered nondiscriminatory basis for her termination:

       Ms. Arabalo does not point to evidence that other similarly-situated
       employees who had falsely (or, perhaps in Ms. Arabalo’s view, incorrectly)
       claimed to have uploaded work data were not investigated, does not
       contend that Major Homer’s allegations were demonstrably false (i.e. that
       the rounds data had been uploaded promptly), nor has she pointed to
       evidence that would suggest that the decision to investigate a supervisory
       employee with law enforcement responsibilities that appears to have falsely
       claimed to have ensured that rounds were being performed is a particularly
       implausible one.

Appellant’s App’x at 524.

   We agree with the district court. Because Arabalo established her prima facie case for

the Rounds-Reports Investigation, the burden then shifted to Denver to articulate a

legitimate and nonretaliatory reason for the adverse action. See 

–

71 (applying the McDonnell-Douglas burden-shifting test). We think that Denver met its

initial burden in moving for summary judgment on the question of pretext. See Celotex

. Denver’s argument was that “[e]ven if Plaintiff is able to show a

prima facie case of retaliation under Title VII, she will not be able to prove the City’s

articulated reasons for the disciplinary actions taken against her were pretextual.”

Appellant’s App’x at 214. In a footnote, Denver explained that “[t]he non-discriminatory

reasons for disciplining Plaintiff are set forth in great detail in Exhibit 1 and Exhibit 2.”

   Exhibit 1 was a January 31, 2011, letter from Denver to Arabalo that explained why

Denver was suspending her without pay for 70 days. In this letter, Denver identified the

                                             20
“alleged misconduct upon which discipline is being contemplated.” Appellant’s App’x at

238. It discussed the false reporting allegations that Denver had begun investigating in

July 2010. Denver concluded that Arabalo’s actions hurt Denver’s good name, would

cause the public to lose confidence in the city, and caused Denver to question her

truthfulness and good judgment.

   Exhibit 2 was a March 16, 2012, termination letter from Denver to Arabalo relying on

her misconduct revealed in the May 2011 Misappropriation Investigation. It did not

mention the Rounds-Reports Investigation or its conclusions.

   We think that the suspension letter—with its findings and conclusions that Arabalo

had falsified her rounds reports—sufficiently met Denver’s initial burden in moving for

summary judgment. After all, poor performance of job duties is “the quintessential

legitimate, nondiscriminatory reason” for discipline. Bertsch v. Overstock.com, 

, 1029 (10th Cir. 2012). Denver’s proffered reason for Arabalo’s suspension is a

sufficient, nondiscriminatory reason for its decision. By citing to her suspension letter in

its motion, Denver met its initial burden in moving for summary judgment on pretext.

   At this point, Arabalo bore the burden of proving by a preponderance of the evidence

that the employer’s articulated reason was mere pretext. 

,

1312 (holding that plaintiffs bear the burden of showing that “each reason given by the

employer is unworthy of credence”). A plaintiff demonstrates pretext by producing

evidence of “such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s proffered legitimate reasons for its action that a

reasonable factfinder could rationally find them unworthy of credence and hence infer

                                            21
that the employer did not act for the asserted non-discriminatory reasons.” 

(quoting Morgan v. Hilti, Inc., 

, 1323 (10th Cir. 1997)). Evidence of

pretext may include: (1) earlier treatment of the plaintiff; (2) the employer’s policy and

practice regarding employment of protected classes; (3) disturbing procedural

irregularities; and (4) the use of subjective criteria. Garrett v. Hewlett-Packard Co., 

, 1217 (10th Cir. 2002).

   Arabalo argued before the district court that “[a] reasonable jury could conclude that,

based on this and other evidence that will be presented at trial, the [Rounds-Report]

Investigation was not warranted, and the discipline imposed was excessive, especially

compared to other egregious acts committed by high-ranking officials.” Appellant’s

App’x at 382. However, Arabalo never disputes that the Department believed that she

had lied about uploading her rounds reports. Instead, she only suggests that the

Department should not have begun investigating her in the first place. Even considering

the evidence in the light most favorable to Arabalo, she has not produced evidence of

“such   weaknesses”     or   any    “inconsistencies”   in   the   Department’s   asserted

nondiscriminatory bases for her suspension sufficient to show pretext. 

; see also Metzler v. Fed. Home Loan Bank, 

, 1179–80 (10th

Cir. 2006) (concluding that the plaintiff did not produce sufficient evidence to refute the

employer’s allegations of poor performance). While Arabalo argues that she had a reason

for not submitting her reports—a computer malfunction—we do not think that this is

sufficient to undermine the Department’s reason for her suspension. Arabalo never

“refute[d] the facts underlying [the Department’s] proffered explanation: that she

                                            22
submitted an e-mail claiming to have done something that she did not, in fact, do.”

Appellant’s App’x at 524.

   We therefore affirm the district court’s grant of summary judgment in favor of Denver

on the question of pretext.

              b. Administrative Exhaustion for the Misappropriation Investigation

   Our circuit has previously held that it is a jurisdictional prerequisite that a plaintiff

exhaust administrative remedies before she may bring a Title VII lawsuit. 

(“Exhaustion of administrative remedies is a ‘jurisdictional prerequisite’ to suit

under Title VII.”). But, as we discussed in more depth above, we note that our circuit has

recently concluded that the verification requirement is not jurisdictional. 

. In fact, in Gad we called into question a whole host of our circuit’s Title VII

jurisdictional cases. 

We suggested that recent Supreme Court cases may

limit jurisdictional requirements to those listed in 42 U.S.C. § 2000e-5(f)(3). 

   Again, as we did above, we need not answer whether administrative exhaustion is a

jurisdictional bar. Even if administrative exhaustion is only a condition precedent to suit,

Arabalo still did not exhaust her administrative remedies for her claim predicated on the

Misappropriation Investigation.

   First, we think that Denver satisfied its initial burden in moving for summary

judgment on the question of administrative exhaustion. Denver identified the alleged acts

of discrimination, and then argued:

       It is undisputed that Plaintiff’s last charge of discrimination was filed with
       the CCRD on October 19, 2010. Nor has Plaintiff received a right-to-sue
       letter based on any of those claims. Accordingly, to the extent Plaintiff’s

                                             23
        Title VII retaliation claims are based on discrete acts which took place after
        October 19, 2010, Defendant is entitled to summary judgment on its
        affirmative defense8 of failure to exhaust administrative remedies.

Appellant’s App’x at 232 (citations omitted). We think that this is sufficient to meet

Denver’s initial burden on the issue of whether Arabalo exhausted her administrative

remedies.9 See Celotex 

–24 (“The import of these subsections is

that, regardless of whether the moving party accompanies its summary judgment motion

with affidavits, the motion may, and should, be granted so long as whatever is before the

district court demonstrates that the standard for the entry of summary judgment, as set

forth in Rule 56(c), is satisfied. One of the principal purposes of the summary judgment

rule is to isolate and dispose of factually unsupported claims or defenses, and we think it

should be interpreted in a way that allows it to accomplish this purpose.”). We thus

address whether Denver was therefore entitled to summary judgment on this issue.10




   8
     Consistent with Gad and our other cited authorities, we conclude that Arabalo
needed, as a condition precedent to her claim, to exhaust her administrative remedies
for the alleged claim, that is, advise the administrative agencies of that supporting
basis for her claim so that it could investigate it and decide its merits. 

.
   9
       Again, even assuming that Gad clarified the law in our circuit to hold that
administrative exhaustion is a condition precedent to suit, not a jurisdictional bar, it
is still Arabalo’s burden to show she satisfied the requirement. 

–
36.
   10
      In an attempt to defeat summary judgment in the district court, Arabalo argued
that the continuing-violation doctrine saved her claims arising after the charge of
discrimination she filed in October 2010. Arabalo has since abandoned this theory on
appeal, instead relying on new theories for why the district court had jurisdiction
over the Misappropriation Investigation.
                                             24
   The district court explained that “Arabalo’s CCRD charge makes no mention

whatsoever of the commencement of an investigation into allegations of alleged

embezzlement, and thus, the EEOC’s investigation into the issues raised in her charge

would not have encompassed that issue.” Appellant’s App’x at 521. The district court

expressly found “that Ms. Arabalo did not administratively exhaust any retaliation claim

predicated on the May 2011 investigation into allegations that she misappropriated funds

from the Foundation, and thus, Denver is entitled to summary judgment on any retaliation

claim predicated on that investigation.” 

   Arabalo first argues that that Misappropriation Investigation is reasonably related to

the Rounds-Reports Investigation. In response, Denver argues that each discrete act of

discrimination constitutes its own unlawful employment practice for which Arabalo must

exhaust her administrative remedies before the court can properly hear those claims. We

agree with the district court and Denver that the Misappropriation Investigation was

entirely separate from the Rounds-Reports Investigation. Arabalo has never disputed that

she last communicated with the EEOC or the CCRD in October 2010. We think it

unlikely that the agencies would even know about the Misappropriation Investigation

based on its knowing about the Rounds-Reports Investigation. The two investigations

concerned two unrelated matters. While the pleading standard on administrative

exhaustion is lenient, we think it reasonable to require that Arabalo supplement her

October 2010 charge with the agencies or initiate a new charge after the Misappropriation

Investigation had begun.



                                             25
   Second, Arabalo argues that supplemental jurisdiction under 28 U.S.C. § 1367

permits jurisdiction over the claim predicated on the Misappropriation Investigation, and

so the district court could have elected to ignore the administrative exhaustion

requirement. Arabalo did not make this argument to the district court, and she does not

ask for plain error on appeal. As such, this argument is waived. See Singleton v. Wulff,

, 120 (1976) (“It is the general rule, of course, that a federal appellate court

does not consider an issue not passed upon below.”). Even if Arabalo had preserved this

argument, it would be unsuccessful. As she admits, “[t]he Court’s exercise of ancillary

jurisdiction has been classified as discretionary.” Appellant’s Br. at 32. She argues that

“exercising ancillary jurisdiction would be the appropriate catalyst to vindicate values of

economy, convenience, fairness and comity.” 

We are not persuaded. The

purpose of the administrative exhaustion requirement is to require that aggrieved parties

notify the administrative agency in order to achieve the very values she identifies—

economy, convenience, fairness, and comity. Because ancillary jurisdiction is

discretionary, we see no abuse of discretion in holding a party to her burden to exhaust

her administrative remedies before seeking judicial recourse.

   Third, Arabalo argues that we should overrule 

, and eliminate

the Tenth Circuit’s rule interpreting the administrative-exhaustion requirement as

jurisdictional. Yet, as mentioned, Arabalo would still lose even if administrative

exhaustion was not a jurisdictional requirement but instead was a mere condition

precedent—she still failed to exhaust her administrative remedies. See 

. Thus, overruling Jones still would provide her no relief.

                                            26
             c. Causation for the Independent Monitor Report

   For the third adverse employment action, the district court concluded that Arabalo had

failed to establish a prima facie case of retaliation because she could not demonstrate any

causal relationship between her protected activity and the Independent Monitor’s alleged

release of information about her to the media. As mentioned earlier, Rosenthal, an

Independent Monitor, wrote a semi-annual “Police and Sheriff Discipline and Critical

Incident Report” where he examined all the recent complaints, incidents, and

discipline for Denver’s law enforcement. Supp. App’x at 688. As part of the larger

report, Rosenthal examined Arabalo’s discipline following the Rounds-Reports

Investigation. He was of the opinion that given Arabalo’s documented lies, she

should have been demoted. Rosenthal’s report did not mention Arabalo by name.

Even so, Arabalo alleges that Rosenthal released a statement to the media regarding

Arabalo’s suspension, including her name and information related to Denver’s

investigations against her.

   To us, Arabalo argues that she “never once claimed the Independent Monitor’s report

was retaliatory.” Appellant’s Rep. Br. at 6. She instead challenges the release of

information to the media. She says that she “was humiliated and incredibly angered by

the release of this statement to the media, especially because she did in fact check the

rounds.” Appellant’s Rep. Br. at 7–8. Her argument is that she “experienced extreme

difficulty obtaining employment due to the damage to her reputation as a result of the

allegations released to the media, which were only lodged against her because she

complained about discrimination.” 

                                              27
   Based on Arabalo’s explanation of her argument, we need not analyze whether the

district court correctly concluded that she failed to establish causation. Instead, we must

address the “release of this statement to the media” and determine whether she has some

legal redress available. Arabalo suggests that, because Denver supposedly had wrongly

concluded that she lied about uploading her rounds report, its release of that conclusion to

the media is a further aggravation of that same wrong. Given our conclusion that

Denver’s conclusion that she had lied about uploading the rounds reports was a

legitimate, nondiscriminatory conclusion, we certainly would hesitate to conclude that

Denver could not freely release information to the public about its own poor performance

without subjecting itself to liability. Because Arabalo does not dispute that Denver

concluded that she lied about having submitted her rounds reports, she gives us no other

reason to question the legality of the “release of this statement to the media.” We

therefore affirm on this issue as part of our conclusion that Arabalo failed to show that

any discipline from her rounds-report misconduct was pretextual.

       ii. Section 1983 Claims

   The Equal Protection Clause of the Fourteenth Amendment guarantees that “[n]o

State . . . shall deny to any person within its jurisdiction the equal protection of the laws.”

U.S. Const. amend. XIV, § 1. “The Equal Protection Clause ‘keeps governmental

decision makers from treating differently persons who are in all relevant respects alike.’”

Soskin v. Reinertson, 

, 1247 (10th Cir. 2004) (quoting Nordlinger v. Hahn,

, 10 (1992)); see also Corder v. Lewis Palmer Sch. Dist. No. 38, 

, 1233 (10th Cir. 2009) (“Equal protection ‘is essentially a direction that all persons

                                              28
similarly situated should be treated alike.’” (quoting City of Cleburne v. Cleburne Living

Ctr., 

, 439 (1985))). Generally, to state a claim under § 1983 for violation of

the Equal Protection Clause, a plaintiff must show that he or she is a member of a class of

individuals that is being treated differently from similarly situated individuals who are

not in that class. SECSYS, LLC v. Vigil, 

, 688 (10th Cir. 2012).

   Denver moved for summary judgment on all of Arabalo’s § 1983 claims, arguing that

she had simply not identified any sort of equal-protection violation. On appeal, Arabalo

argues that the district court should not have conducted a summary-judgment analysis of

these claims at all because of Denver’s failure to meet its initial burden. Alternatively,

she argues that disputed issues of material fact prevented summary judgment. We discuss

both aspects of her appeal on each claim separately below.

             a. § 1983 Claim Against Deeds

   In moving for summary judgment, Denver argued that Arabalo could show neither a

constitutional deprivation, nor a municipal policy, nor a custom as the moving force

behind her deprivation. In particular, “[p]laintiff’s claims premised on the Equal

Protection Clause must fail because she presents no allegations (and cannot prove) that

she was treated differently from others similarly situated.” Appellant’s App’x at 217. We

think that this is sufficient to satisfy Denver’s initial burden in moving for summary

judgment on this issue. See Celotex 

. Thus, we must determine

whether the district court correctly granted summary judgment in favor of Denver.

   Arabalo argued to the district court that Chief Deeds’ failure to report or investigate

her allegations of rape constituted an equal-protection violation. She emphasized that

                                            29
disputed issues of material fact remained regarding whether failing to report and

investigate her rape constituted a constitutional violation. She argued that:

       A jury could reasonably conclude that Deeds’ failure to investigate and
       report the allegations of rape violated Mrs. Arabalo’s constitutional rights.
       . . . Indeed, Deeds is fully aware that rape is a serious crime and violates a
       victim’s rights, and that he had a duty to report allegations of such a serious
       crime.

Appellant’s App’x at 385. She also contended that Deeds failed to train any of his

subordinates, including the men who raped Arabalo, “regarding the Department’s anti-

discrimination or harassment policies.” 

court granted Denver’s motion for summary judgment on this issue. The

court noted that “[t]he parties’ briefing on this claim is somewhat unclear as to the

precise contours o[f] Ms. Arabalo’s claim.” Appellant’s App’x at 525. Even so, the

district court decided to “do its best to unpack the claim.” 

for Arabalo’s

claims against Chief Deeds in his individual capacity, the district court granted summary

judgment because:

       [T]hat claim appears to be predicated on Mr. Deeds’ failure to pass along
       her report of having been raped by the Deputies to other authorities or his
       failure to commence an investigation into the matter. . . . The crux of [the
       right to equal protection] is that the government is required to treat
       similarly-situated persons similarly, or to articulate a sufficient reason for
       affording unequal treatment.

Appellant’s App’x at 526. “Ms. Arabalo is thus required to show that Mr. Deeds did

choose to investigate (or to report to higher authorities) allegations that other employees

had been victims of an off-duty rape.” 

(emphasis in original). This Arabalo

failed to do. Second, regarding the claims against Chief Deeds in his official capacity, the


                                              30
district court explained that while Arabalo’s response explains that Chief Deeds did not

train his subordinates about Denver’s antidiscrimination or harassment policies and that

“[t]o the extent she is attempting to suggest that Mr. Deeds’ failure to train or to

supervise the two Deputies . . . caused the rape to occur, Ms. Arabalo fails to account for

the fact that the rapes occurred when all parties involved were off-duty and off-

premises.” Appellant’s App’x at 525.

   On appeal, Denver argues that Arabalo’s equal-protection claims fail as a matter of

law. It says that Arabalo did not demonstrate that “she was treated less favorably than

similarly situated individuals with respect to the issues Plaintiff attempted to raise against

all Defendants.” Department’s Br. at 11. Further, “[s]he failed to cite authority to show

Defendant Phillip Deeds’ actions arose to the level of a constitutional violation or that he

breached any alleged duty causing a constitutional violation.” 

with Denver and with the district court: Arabalo has not articulated any sort

of cognizable constitutional deprivation based on either Deeds’ failure to report her

allegations of rape or his failure to train or supervise his subordinates. She fails to cite to

a single case providing legal support for her equal-protection-clause theory. Even on

appeal, she has yet to explain how any of the facts she alleges rise to the level of an

equal-protection violation. Taking every fact Arabalo alleges in the light most favorable

to her, we cannot see how those facts rise to the level of a constitutional deprivation.

Indeed, Arabalo’s account does not paint Deeds or his subordinates favorably, but that

does not create a deprivation of constitutional rights. Arabalo’s failure to come forward



                                              31
with evidence showing that she was treated differently than other similarly situated

individuals defeats this claim as a matter of law.

   Arabalo has not persuaded us that Deeds deprived her of her constitutional rights

when he failed to act after she told him that two deputies had raped her in her home. As

the district court correctly explained, the purpose of equal protection is to ensure that the

government treats similarly situated people similarly or otherwise gives a sufficient

reason for affording unequal treatment. Appellant’s App’x at 526 (citing Engquist v. Or.

Dep’t of Agric., 

, 601 (2008); Taylor v. Roswell Indep. Sch. Dist., 

, 53–54 (10th Cir. 2013); Brown v. Montoya, 

, 1172–73 (10th Cir.

2011)). Never in this case, either at the district court or before us, has Arabalo claimed

that Deeds acted differently with regard to other similarly situated employees.

   As to her argument that Deeds’ failure to train and supervise his subordinates caused a

constitutional violation (presumably, the two deputies sexually assaulting her at her

home), she makes no argument that those two men were acting under the color of state

law or exercising any authority derived from their employer.

   We affirm the district court.

             b. § 1983 Claim Against Denver

   Denver moved for summary judgment on this claim, arguing that Arabalo could not

prove a municipal policy or custom and that “Plaintiff cannot show a direct causal link

between any municipal action by Kilroy (or anyone else) and the deprivation of any of

Plaintiff’s federal rights.” Appellant’s App’x at 221. Given this, we think that Denver met



                                             32
its initial burden in moving for summary judgment. See Celotex 

.

We turn to whether the district court erred in granting summary judgment to Denver.

   The district court summarized Arabalo’s claim: “[It] also alleges that Ms. Kilroy’s

decision to terminate Ms. Arabalo as retaliation for her complaints of discrimination

violated her right to equal protection.” Appellant’s App’x at 528. In particular, Arabalo

was arguing that Denver and Kilroy violated her right to equal protection by punishing

her more harshly than others similarly situated. Arabalo was therefore required to

demonstrate that she received worse treatment than other similarly situated individuals

who are alike in all relevant respects. See Taylor v. Roswell Indep. Sch. Dist., 

, 54 (10th Cir. 2013).

   Arabalo argues that Kilroy treated other individuals differently than Kilroy treated

her. On appeal, she briefly explains that Denver and Kilroy treated Gutierrez and Deeds

differently when each male employee engaged in wrongdoing. Denver permitted Deeds

to resign after his wrongdoing, and it suspended Gutierrez for 75 days, which it later

reduced to 30 days.

   Regarding Deeds, the district court found that Arabalo and Deeds were “at least

roughly, similarly situated . . . . Both were found to have engaged in misconduct taking

the form of untruthfulness on matters relating to their official duties.” Appellant’s App’x

at 530. In this regard, the district court compared Arabalo’s 70-day suspension for

falsifying rounds reports to Deeds’ impending termination (although he resigned before

being terminated) for his failure to report Arabalo’s allegations of rape. The district court

then concluded that Arabalo was treated more favorably because she was not terminated

                                             33
for lying about uploading her rounds reports. Arabalo makes no argument on appeal that

this conclusion is wrong, and we are inclined to agree with the district court. Comparing

Deeds’ punishment to Arabalo’s, it does seem like Deeds received harsher punishment.

   Concerning Gutierrez, the district court found that Arabalo and Gutierrez were not

similarly situated. While both forms of misconduct (sexual harassment and falsifying

reports) are serious and warrant punishment, the court did not think they were of the same

qualitative character. Arabalo makes no argument on appeal that this conclusion was

wrong, and we agree with the district court. While both Arabalo’s and Gutierrez’s actions

were serious, they each received serious punishment. In fact, Gutierrez, before he

appealed, actually received a harsher suspension period of 75 days compared to

Arabalo’s 70. We see no reason to disturb the district court’s finding that Arabalo and

Gutierrez were not similarly situated for the purpose of an equal-protection analysis.

   Overall, we think that Denver was entitled to summary judgment on this issue. Again,

as with Arabalo’s appeal for her § 1983 claims against Deeds, she fails to cite to a single

case that provides legal support for her theory on this claim. She simply asserts that

Kilroy’s actions were in contravention of the equal-protection clause. She argues that,

“[a]s a result of the City’s policies, customs and/or practices, the City and the

Department’s employees and agents had reason to believe their discriminatory actions

would not be properly monitored by supervisory officers and that misconduct would not

be investigated or sanctioned, but instead would be tolerated.” Appellant’s Rep. Br. at 17.

This conclusory statement is not persuasive.

   We affirm the district court.

                                            34
   D. Arabalo’s Motion to Amend Her Complaint

   Arabalo filed a motion to amend her complaint, seeking to add state-law tort claims

against Captain Gutierrez. The district court referred this issue to the magistrate judge,

who later recommended that the district court grant Arabalo’s motion to amend her

complaint.

   Four weeks after the district court allowed Arabalo to amend her complaint, Captain

Gutierrez moved to dismiss the claims against him. The district court again referred the

issue to the magistrate judge, who later recommended that the district court grant Captain

Gutierrez’s motion to dismiss. The district court adopted the recommendation and

dismissed all of Arabalo’s claims against Captain Gutierrez, including the state-law tort

claims.

   On appeal, Arabalo does not challenge the district court’s order granting Gutierrez’s

motion to dismiss.11 Instead, she argues that the district court erred in granting her

motion to amend “when it was clear [the district court] would subsequently deny her

ability to conduct discovery and simply dismiss the claims upon motion from

Defendants.” Appellant’s Br. at 39. She argues that “[g]iven the legal authority . . .

Arabalo should not have been permitted to add the [state law] claims in the first

instance.” 

True, the magistrate judge later recommended that the district court

dismiss the state-law tort claims against Gutierrez, and the district court did dismiss those




   11
      Even so, she did list this order in her notice of appeal. But because she makes
no attempt to argue the merits, any appeal from this order is waived.
                                             35
claims with prejudice. But adding additional claims in an amended complaint is hardly an

ironclad guarantee that they will not be dismissed with prejudice.

   We review for an abuse of discretion a district court’s ruling on a motion to amend a

complaint. Stubblefield v. Windsor Capital Grp., 

, 994 (10th Cir. 1996).

Under that standard, we reject this issue out of hand.

   Arabalo did not object to the magistrate judge’s recommendation that she be allowed

to amend her complaint. Fed. R. Civ. P. 72(a) requires such an objection:

       When a pretrial matter not dispositive of a party’s claim or defense is
       referred to a magistrate judge to hear and decide, the magistrate judge must
       promptly conduct the required proceedings and, when appropriate, issue a
       written order stating the decision. A party may serve and file objections to
       the order within 14 days after being served with a copy. A party may not
       assign as error a defect in the order not timely objected to.

Parties that fail to make timely objections to a magistrate’s order waive appellate review.

Boyd Motors, Inc. v. Emp’rs. Ins. of Wausau, 

, 270 (10th Cir. 1989) (per

curiam). This is known as the “firm waiver rule.” Moore v. United States, 

,

659 (10th Cir. 1991). There are two exceptions to the firm waiver rule: (1) when a pro se

litigant has not been informed of the time period for objecting; or (2) when the interests

of justice require review. 

exception does not apply here because an attorney

represented Arabalo. For the second, we generally require a “miscarriage of justice.”

Morales-Fernandez v. I.N.S., 

, 1120 (10th Cir. 2005). Because Arabalo is

appealing the magistrate’s decision to grant her own motion, this simply does not qualify

as a miscarriage of justice. Even further, under the “invited error doctrine,” a party cannot




                                             36
request that a court do something and then appeal when that request is granted. See

ClearOne Commc’ns, Inc. v. Bowers, 

, 771 (10th Cir. 2011).

   We affirm the district court.

   E. Captain Gutierrez’s Motion to Dismiss and Defendants’ Attorney’s Fees

   The district court granted Gutierrez’s motion to dismiss, and while Arabalo listed that

order in her notice of appeal, she failed to argue against—or even mention—the merits of

that order once in her briefing to this court. Further, after the district court dismissed the

state-law tort claims against Gutierrez, it also awarded him attorney’s fees and costs.

Arabalo also included the district court’s orders awarding attorney’s fees and costs in her

notice of appeal. But she failed to discuss them whatsoever. Therefore, she has waived

any appeal that she intended from these orders. Adler v. Wal-Mart Stores, Inc., 

, 679 (10th Cir. 1998); State Farm Fire & Cas. Co. v. Mhoon, 

, 984 n.7

(10th Cir. 1994). We affirm any ruling relating to Captain Gutierrez’s motion to dismiss

or the award of attorney’s fees and costs.


                                      CONCLUSION

   We AFFIRM the district court.

                                              Entered for the Court


                                              Gregory A. Phillips
                                              Circuit Judge




                                             37