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

                             FOR THE TENTH CIRCUIT                        August 28, 2020
                         _________________________________
                                                                       Christopher M. Wolpert
                                                                           Clerk of Court
 ANDREA EARLES,

       Plaintiff - Appellant,

 v.                                                        No. 19-6157
                                                    (D.C. No. 5:17-CV-01186-D)
 ROD CLEVELAND, individually acting as                     (W.D. Okla.)
 an elected member of the Board of County
 Commissioners for Cleveland County;
 DARY STACY, individually acting as an
 elected member of the Board of County
 Commissioners for Cleveland County;
 STEPHAN KORANDA, individually
 acting as the Executive Director of the
 Cleveland County Fair Board; HARLEN
 FIPPS, individually acting as an elected
 member of the Cleveland County Fair
 Board; JIMMY YOUNG, individually
 acting as an elected member of the
 Cleveland County Fair Board,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, HOLMES and MORITZ, Circuit Judges.
                 _________________________________


      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      Andrea Earles alleges she suffered sex discrimination during her employment

with the Cleveland County (Oklahoma) Fair Board, and that she was wrongfully

terminated from that job. Over the course of two lawsuits, she has asserted numerous

theories of relief under both federal and Oklahoma law. In the second lawsuit, the

district court dismissed with prejudice all of her federal claims and some of her

state-law claims, and declined to exercise supplemental jurisdiction over her

remaining state-law claims, per 28 U.S.C. § 1367(c).

      Earles now appeals the dismissal of certain federal claims. We have

jurisdiction under 28 U.S.C. § 1291,1 and we AFFIRM.

I.    BACKGROUND

      A.     First Lawsuit

      Earles filed her first suit in Oklahoma state court in early 2016. She named as

defendants the Board of County Commissioners for Cleveland County (“County”),

the Cleveland County Fair Board (“Fair Board”), and an individual named Stephan

Koranda.

      Earles alleged that the Fair Board (a political subdivision of the County) hired

Earles as a full-time administrative assistant in 2010. Earles had no problems with

her Fair Board job until late 2013, when she applied for the executive director



      1
         See Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1209 n.1
(10th Cir. 2000) (“Federal appeals courts have consistently held . . . that they have
jurisdiction to review a district court order dismissing federal claims on the merits
where the district court subsequently exercised its discretion under [28 U.S.C.]
§ 1367 to remand supplemental state law claims to state court.”).
                                           2
position. She was “summarily rejected for the position as she was a younger female

and presumably less qualified than any male applicant such as Stephen [sic] Koranda,

who had been predetermined for the position by [County] Commissioner [Darry]

Stacy, his friend.” Aplee. Supp. App. at 11.

       As executive director, Koranda treated male employees as friends but verbally

and emotionally abused younger female employees, including Earles. Koranda also

used Earles as a scapegoat for his own mistakes, such as when a Fair Board meeting

was cancelled because he forgot to timely post the meeting agenda.

       Koranda and others further harassed Earles because she would call out

Koranda when he impermissibly used Fair Board property and funds for personal

reasons. Similarly, Earles suffered harassment when she refused Koranda’s requests

to falsify portions of Fair Board meeting minutes, and when she complained that

“open meetings violations occurred with the hiring of Koranda as Commissioner

Stacy informed and demanded that the Fair Board hire Koranda as he was Stacy’s

friend.” Id. at 16.

       Matters came to a head in May 2014, when Earles was fired at the direction of

“Koranda and[/]or [County] Commissioners Stacy and[/]or [Rod] Cleveland as well

as Fair Board members Harlen Fipps and Jimmy Young.” Id. at 13. The Fair Board

(other than Fipps and Young) was not aware that Earles would be terminated, and no

Fair Board meeting to discuss Earles’s termination took place beforehand.

       After the termination, some Fair Board members investigated. Id. at 14.

Eventually, “Koranda was asked to resign . . . due to the concerns about the

                                          3
procedures and manner [by which Earles had been] terminated and the hostility

created [during] his short employment.” Id. But Commissioner Cleveland has since

“discussed [Earles’s] personnel file and employment with members of the public and

Fair Board members and intentionally maligned [Earles].” Id. at 15.

      Based on these accusations, Earles alleged gender discrimination in violation

of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and

denial of “both procedural and substantive due process prior to being deprived of her

employment and liberty interests in her good name and employment history.” Id.

at 17. She also asserted several state-law claims.

      Defendants removed the action to the United States District Court for the

Western District of Oklahoma and then moved to dismiss. They argued, among other

things, that Title VII does not permit Earles to sue Koranda because it applies only to

employers, not individual employees.

      Earles responded with two filings. First, she filed a motion to amend her

complaint, asserting that she could “resolve most disputed pleading issues by

amending her complaint and . . . properly nam[ing] the real parties in interest.” Id.

at 61. Second, she filed a response to the motion to dismiss, contesting some of the

defendants’ arguments but mostly declaring those arguments moot in light of her

motion to amend. The district court granted the motion to amend and consequently

denied the motion to dismiss as moot.

      In her amended complaint, Earles dropped the County and Fair Board as

defendants, but added County Commissioners Cleveland and Stacy and Fair Board

                                           4
members Fipps and Young. Koranda remained a defendant.2 Factually, Earles

restated nearly verbatim her original allegations and claims for relief, and then added

some state-law claims.

      Defendants Koranda, Cleveland, and Stacy moved to dismiss the amended

complaint, asserting various arguments, including that Title VII does not permit suits

against non-employer individuals. Earles filed a response, but soon after filed a

stipulation of voluntary dismissal without prejudice under Federal Rule of Civil

Procedure 41(a)(1)(A)(ii). She provided no explanation for the dismissal.

      B.     Second (Current) Lawsuit

             1.     Original Complaint & Motion to Dismiss

      The same day Earles dismissed her first lawsuit, she filed a second lawsuit in

Oklahoma state court against the same defendants named in the amended complaint

she had just dismissed. Her factual allegations were mostly taken verbatim from that

complaint as well. She added, however, that she “was . . . denied [the right] to freely

associate with Fair Board [members] or other public or private persons as to the

alleged basis for her termination.” Aplt. App., Vol. I at 28–29. She similarly alleged

that she “was discriminated against because of her . . . desire to free[ly] associate

with the Fair Board members and[/]or other public or private persons regarding Fair

Board business.” Id. at 29. And, in support of her procedural and substantive due

process allegations, she added that she had been “deprived of her employment


      2
       The defendants named in this amended complaint are the same that Earles
eventually sued in her second lawsuit, which is the lawsuit on appeal before us.
                                            5
opportunities and benefits of her long[-]standing agreement with the Fair [Board].”

Id. But, by way of claims for relief, Earles repeated the claims from her previous

lawsuit, mostly verbatim.

      Defendants removed this second lawsuit to federal court and jointly moved to

dismiss. As in their previous motions, they argued that Title VII cannot apply to

individuals. Defendants further argued that Earles had not plausibly pleaded any of

her claims.

      Earles said nothing in her response brief about the argument that Title VII does

not apply to individuals. Regarding plausible pleading, however, Earles focused on

her procedural due process claim, asserting for the first time “a limited property right

to the procedures provided by the [Oklahoma] Open Meetings Act.” Id. She

explained that “the statutory procedures of the Open Meetings Act create an

enforceable implied contract which was breached when the Open Meetings Act was

violated.” Id. at 148. She also added that defendants “jointly participated in

stigmatizing [her] good name and reputation either in the media and[/]or before the

Fair Board members and members of the attending public.” Id. Earles nonetheless

concluded with a request for leave to amend.

      The district court granted defendants’ motion with prejudice as to certain

state-law claims, but granted the remainder of the motion without prejudice to

amendment.

              2.    Amended Complaint & Renewed Motion to Dismiss

      Earles’s amended complaint—which is her current complaint—presents most

                                           6
of the same material included in her previous three complaints, and asserts causes of

action for:

             deprivation of procedural and substantive due process, in violation of

              the “First, Fifth, and Fourteenth Amendments,” id. at 232, because

              defendants did not follow the Oklahoma Open Meetings Act, acted with

              deliberate indifference toward gender discrimination and retaliation for

              whistleblowing, and placed false accounts of wrongdoing in her

              personnel file;3 and

             sexual discrimination and sex-based hostile work environment in

              violation of Title VII.

Earles also asserts various state-law claims.

       Defendants again moved to dismiss. They argued, among other things, that:

(i) non-employer individuals cannot be liable under Title VII; (ii) the First

Amendment right to freedom of association does not extend to associating with

co-workers during work hours for work-related reasons; (iii) the Fifth Amendment

applies only to the federal government; (iv) Earles did not have a property interest in

her Fair Board job, so procedural and substantive due process do not apply; and

(v) Earles failed to plausibly plead her Title VII and state-law theories of relief.

       Concerning her First Amendment claim, Earles responded that her “reference

to [a] First Amendment violation is addressed as part of tort actions and is not alleged


       3
        Presumably her allegation that defendants denied her the right to associate
with the Fair Board falls under the First Amendment portion of this claim.
                                            7
as a standalone 1983 action.” Id. at 288. She then directed the reader to a section of

her brief discussing a state-law claim for intentional infliction of emotional distress,

where she argued that “Oklahoma has a clear public policy to protect those

employees who choose to exercise their First Amendment rights.” Id. at 304

(emphasis removed). She did not explain the connection between this argument and

her claim for intentional infliction of emotional distress.

      As for due process, Earles asserted for the first time that “the county’s

personnel policy manual” supported her claim of a property interest in her job. Id.

at 291. She also repeated her previous description of her property interest: “a limited

property right to the procedures provided by the Open Meetings Act.” Id. at 293. In

terms of a liberty interest, she asserted an interest in her “good name and reputation.”

Id.

      Turning to her Title VII claim, Earles argued that she had plausibly pleaded a

constitutional violation, namely, gender discrimination in violation of the Fourteenth

Amendment. She did not explain whether she now meant to plead an Equal

Protection claim only, or an either-or gender discrimination claim (Equal Protection

or Title VII or both). She also did not respond to defendants’ argument that Title VII

applies to employers, not individuals.

             3.     District Court’s Dismissal Order

      The district court granted defendants’ motion to dismiss. See Earles v.

Cleveland, 418 F. Supp. 3d 879 (W.D. Okla. 2019). It rejected as untimely Earles’s

apparent attempt to assert a First Amendment retaliation claim by way of her

                                            8
intentional infliction of emotional distress claim. Id. at 892–93 & n.4. The court

also held that the emotional distress claim did not meet the high bar established by

Oklahoma law for such a claim. Id. at 897–98. As for her original First Amendment

theory—denial of the right to associate with the Fair Board—the district court held

that Earles had no such First Amendment right under the circumstances. Id. at 893.

       The district court dismissed Earles’s Fifth Amendment due process claim

because the Fifth Amendment applies only to the federal government. Id. at 894. As

for her Fourteenth Amendment due process theories, the district court found Earles

had not plausibly pleaded a property interest in her job. Id. at 894–95. The court

specifically rejected as untimely Earles’s attempt to invoke the County policy manual

as a basis for that property interest. Id. at 894 n.5. And the court found that Earles

had not pleaded any real stigma arising from the defendants’ alleged publicizing of

the reasons they terminated her, so she also failed to state a deprivation of a liberty

interest in her reputation. Id. at 897.

       Regarding Title VII, the district court agreed with defendants that the statute

does not apply to non-employer individuals, id. at 892, and that Earles had otherwise

failed to plausibly plead a claim, id. at 898–900. As for Earles’s new argument that

her Title VII claim was instead (or also) an Equal Protection claim, the district court

deemed the argument untimely and refused to consider it. Id. at 900 n.8.

       Turning to Earles’s remaining state-law claims, the district court declined to

exercise supplemental jurisdiction over them per 28 U.S.C. § 1367(c)(3), and

remanded them to state court. Id. at 900–01. Finally, the district court announced it

                                            9
was dismissing Earles’s federal claims and her emotional distress claim with

prejudice because this was Earles’s “fourth attempt to bring her claims. Although

liberality in amendment is important to assure a party a fair opportunity to present

her claims, equal attention should be given to the idea that there must be an end to a

litigation.” Id. at 901 & n.11.

II.   ANALYSIS

      Earles appeals the district court’s dismissal of her due process theories. She

also argues that the district court should have given her an opportunity to amend to

state a First Amendment retaliation claim.4 We review de novo the district court’s

determinations that Earles failed to state a claim, Janke v. Price, 43 F.3d 1390, 1391

(10th Cir. 1994), and we review for abuse of discretion the district court’s decision to

dismiss with prejudice, rather than with leave to amend, United States ex rel. Stone v.

Rockwell Int’l Corp., 282 F.3d 787, 809 (10th Cir. 2002).

      A.     Procedural Due Process

      “To determine whether a plaintiff was denied procedural due process, we

engage in a two-step inquiry: (1) Did the individual possess a protected interest to

which due process protection was applicable? (2) Was the individual afforded an

appropriate level of process?” Hennigh v. City of Shawnee, 155 F.3d 1249, 1253


      4
        Earles’s opening brief contains an unelaborated assertion that the district
court erred in holding Title VII does not apply to non-employer individuals. See
Aplt. Opening Br. at 12. She also inserts two instances of the phrase “equal
protection,” without elaboration. Id. at 12, 14. “Arguments inadequately briefed in
the opening brief,” such as these ones, “are waived.” Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664, 679 (10th Cir. 1998).
                                          10
(10th Cir. 1998). Earles alleges a property interest in her Fair Board job and a liberty

interest in her good name and reputation.

               1.     Property Interest

         “The standard for the existence of a property right in [public] employment is

whether the plaintiff has a legitimate expectation of continued employment.” Id.

This usually requires tenure, an employment contract for a definite term, a clearly

implied promise of continued employment, or a statute, regulation, or state-

law-endorsed collective bargaining agreement that requires cause (or similar

concepts) for termination. See Bd. of Regents of State Colleges v. Roth, 408 U.S.

564, 576–77 (1972); Greene v. Barrett, 174 F.3d 1136, 1140 (10th Cir. 1999). Earles

asserts that Oklahoma’s Open Meetings Act, Okla. Stat. tit. 25, §§ 301–14, creates a

legitimate expectation of continued employment. The district court disagreed, and so

do we.

         In Trant v. Oklahoma, we rejected a claim that the Open Meetings Act creates

an implied contract with public employees, enforceable through a state-law breach of

contract action. 754 F.3d 1158, 1174 (10th Cir. 2014). We reasoned that the Open

Meetings Act “does not guarantee an employee any procedural rights by virtue of his

employment. [It] was enacted for the public’s benefit and not to provide a private

right of action in employment matters.” Id. Although one might sue directly under

the Act for whatever relief the Act makes available, one “cannot seek reinstatement




                                            11
or damages on a breach of implied contract theory.” Id. at 1175.5

      Although Trant arose in the breach-of-contract context, its reasoning applies

equally to the procedural due process context. The Open Meetings Act is meant “to

encourage and facilitate an informed citizenry’s understanding of the governmental

processes and governmental problems.” Okla. Stat. tit. 25, § 302. It contains no hint

that it was meant to provide public employees with an expectation of continued

employment. It therefore does not show that Earles had a property interest in her Fair

Board job. The district court did not err in dismissing this aspect of Earles’s

procedural due process claim.

             2.     Liberty Interest

      Although defendants’ actions did not deprive Earles of a constitutionally

protected property interest, the “liberty” component of the Due Process Clause may

still provide relief. More specifically, “[a] public employee has a liberty interest in

his good name and reputation as they relate to his continued employment.”

McDonald v. Wise, 769 F.3d 1202, 1212 (10th Cir. 2014).

      To state a claim for deprivation of one’s liberty interest in good name and

reputation, the plaintiff must plausibly allege the following:

      1.     a state actor made a statement that impugned the plaintiff’s good name,



      5
        Earles’s original and amended complaints in her previous lawsuit, and her
original complaint in this lawsuit, contained a state-law declaratory judgment claim
alleging an Open Meetings Act violation. The district court dismissed that claim
from Earles’s original complaint in this lawsuit. Earles has not appealed that
dismissal.
                                           12
             reputation, honor, or integrity;

      2.     the statement was false;

      3.     the statement was made during the course of termination and forecloses

             other employment opportunities; and

      4.     the statement was “published” (disclosed to the public).

Id. The remedy for a deprivation of the liberty interest in good name and reputation

is “an adequate name-clearing hearing.” Id. at 1213.

      The district court concluded that Earles had not plausibly pleaded the first

element of her claim because the allegedly false statements were not sufficiently

stigmatizing. See Earles, 418 F. Supp. 3d at 897 (“The statements alleged in the First

Amended Complaint do not implicate concerns of constitutional stature.” (internal

quotation marks omitted)). The district court also concluded that Earles “ha[d] not

sufficiently pled facts to show . . . the alleged statements have precluded her from

other employment opportunities”—in other words, that she had failed to plausibly

plead the third element of her claim. Id. We agree with the first conclusion and

therefore need not reach the second.

      To satisfy the first element of a reputational liberty interest claim, the

allegedly false statement must be stigmatizing, not merely disparaging. “[N]ot every

dismissal assumes a constitutional magnitude. The concern is only with the type of

stigma that seriously damages an individual’s ability to take advantage of other

employment opportunities.” Weathers v. W. Yuma Cty. Sch. Dist. R-J-1, 530 F.2d

1335, 1339 (10th Cir. 1976) (internal quotation marks omitted); see also Graham v.

                                           13
City of Okla. City, 859 F.2d 142, 145 n.2 (10th Cir. 1988) (“For an employee to make

a successful liberty deprivation claim, he must show that his dismissal resulted in the

publication of information which was false and stigmatizing.”); Asbill v. Hous. Auth.

of Choctaw Nation, 726 F.2d 1499, 1503 (10th Cir. 1984) (“[C]ircumstances which

make an employee somewhat less attractive to employers would hardly establish the

kind of foreclosure of opportunities amounting to a deprivation of liberty.” (internal

quotation marks omitted)).

       Here, Earles’s only clear assertion of an allegedly false, published statement is

that

              Defendant Cleveland by agreement with Defendant Stacy
              openly discussed Plaintiff’s personnel file and employment
              with Koranda as well as other members of the public and
              other Fair Board members including Defendants Fipps and
              Young. Defendants Stacy and Cleveland intentionally
              maligned without good cause Plaintiff[’s] reputation and
              good name by intentionally leading the public to believe
              that she was being disciplined for good cause . . . .

Aplt. App., Vol. II at 223. Earles does not describe the contents of her personnel file

or the details of her employment with Koranda that permitted Stacy and Cleveland to

represent that she had been disciplined for good cause. She may mean to refer,

however, to Koranda’s accusations that Earles was “doing personal activities on her

computer and . . . [had] anger problems,” id. at 214, and his “derogatory statements

about her such as she was incompetent and worthless[,] . . . was not working hard and

[was] trying to disrupt his activities,” id. at 216.

       Assuming Stacy and Cleveland publicized statements such as these, they do


                                             14
not create the sort of stigma required for a liberty interest deprivation. See Sullivan

v. Stark, 808 F.2d 737, 739 (10th Cir. 1987) (“The [plaintiff’s termination] letter . . .

consisted of a variety of complaints against [him], each of which asserted that he was

negligent or derelict in performing the duties of [his government job]. These

complaints do not implicate concerns of constitutional stature.”); Stritzl v. U.S.

Postal Serv., 602 F.2d 249, 252 (10th Cir. 1979) (“the characterization of Stritzl by

[his former employer] as one possessed of ‘poor work habits and low productivity’

. . . [does not] amount to a type of ‘stigma’ [sufficient for a liberty interest

deprivation]”); compare Palmer v. City of Monticello, 31 F.3d 1499, 1503 (10th Cir.

1994) (“We are satisfied that an accusation that a police officer falsified a speeding

ticket qualifies as a stigmatizing charge which amply supports that element of a

liberty interest violation.”); McGhee v. Draper, 564 F.2d 902, 910 (10th Cir. 1977)

(district court should not have directed verdict against plaintiff on liberty interest

claim where plaintiff, a school teacher, had been accused of “[distributing] allegedly

pornographic materials,” “improper changing of grades,” “misconduct with male

students,” and “drunkenness”).

       Earles fails at the outset to raise a liberty interest worthy of procedural due

process protection. The district court correctly dismissed this claim.

       B.     Substantive Due Process

       In some circumstances, a public employee’s termination can be “so arbitrary or

capricious as to violate the concept of ‘substantive’ due process embodied in the

Fourteenth Amendment.” Brenna v. S. Colo. State Coll., 589 F.2d 475, 476

                                            15
(10th Cir. 1978). Such a termination must be “conscience shocking” to qualify as a

substantive due process violation. Koessel v. Sublette Cty. Sheriff’s Dep’t, 717 F.3d

736, 750 (10th Cir. 2013).

         The district court’s opinion includes a heading for substantive due process but

the ensuing analysis actually addresses procedural due process (as it relates to

Earles’s reputational liberty interest claim). See Earles, 418 F. Supp. 3d at 895–97.

The district court therefore made no ruling about Earles’s substantive due process

claim.

         “Where an issue has not been ruled on by the court below, we generally favor

remand for the district court to examine the issue,” Tabor v. Hilti, Inc., 703 F.3d

1206, 1227 (10th Cir. 2013), unless the “proper resolution is beyond any doubt,”

Singleton v. Wulff, 428 U.S. 106, 121 (1976). Here, the proper resolution is beyond

any doubt.

         “In order to present a claim of denial of ‘substantive’ due process by a

discharge for arbitrary or capricious reasons, a liberty or property interest must be

present to which the protection of due process can attach.” Brenna, 589 F.2d at 476.

Because the district court correctly concluded that Earles failed to plausibly plead a

deprivation of a property interest in her employment or a liberty interest in her

reputation, the outcome of Earles’s substantive due process claim is inevitable: it

likewise fails. Accordingly, we affirm notwithstanding the district court’s lack of

analysis on this point.



                                            16
      C.     Further Leave to Amend

      Earles argues that the district court should have granted her leave to amend so

she could plead a First Amendment retaliation claim—in what would effectively be a

fourth amended complaint (the fifth overall).

      “The court should freely give leave [to amend] when justice so requires.” Fed.

R. Civ. P. 15(a)(2). Thus, the district court’s discretion to deny leave in this context

is confined to circumstances “such as undue delay, bad faith or dilatory motive on the

part of the movant, repeated failure to cure deficiencies by amendments previously

allowed, undue prejudice to the opposing party by virtue of allowance of the

amendment, futility of amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962).

Particularly relevant here,

             Courts will properly deny a motion to amend when it
             appears that the plaintiff is using Rule 15 to make the
             complaint a moving target, to salvage a lost case by
             untimely suggestion of new theories of recovery, to present
             theories seriatim in an effort to avoid dismissal, or to
             knowingly delay raising an issue until the eve of trial.

Minter v. Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir. 2006) (internal quotation

marks, brackets, and citations omitted).

      Save for raising a new theory on the eve of trial, this case embodies the

foregoing quotation. Throughout the proceedings below, Earles continually modified

her theories—often through briefing alone, rather than by amending the complaint.

      Earles has continued this approach on appeal. As previously noted, Earles

represented to the district court that her First Amendment claim was really part of her


                                           17
intentional infliction of emotional distress claim. Now, in her opening brief, she

argues that she can satisfy the elements of a standalone First Amendment retaliation

claim. And, in her reply brief, she asserts for the first time a new “class of one”

Equal Protection theory.

       In short, the district court did not abuse its discretion in concluding that a fifth

chance to state viable claims was unwarranted. It appropriately denied Earles the

opportunity to plead a First Amendment retaliation claim.

III.   CONCLUSION

       For the reasons stated, we AFFIRM.


                                             Entered for the Court


                                             Timothy M. Tymkovich
                                             Chief Judge




                                            18
