                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                       March 27, 2007
                              FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                         Clerk of Court

    K A TH ER IN E M C NU LTY ,

               Plaintiff-Appellant,

      v.                                                   No. 06-2121
                                                 (D.C. No. CIV-05-221 W J/AC T)
    SA NDOVAL COUNTY; and the                               (D . N.M .)
    SA N D O VA L C OU N TY BO A RD OF
    CO UNTY CO M M ISSIONERS,

               Defendants-Appellees.



                              OR D ER AND JUDGM ENT *


Before HO LM ES, M cKA Y, and BROR BY, Circuit Judges.




           Katherine M cNulty appeals the district court’s grant of summary judgment

to her former employer on her claims of retaliation in violation of Title VII of the

Civil Rights Act, 42 U.S.C. § 2000e-3(a). W e have jurisdiction under 28 U.S.C.

§ 1291, and we AFFIRM .




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
                                         I.

      Sandoval County, New M exico employed M s. M cNulty as a personnel

coordinator. Among her duties was teaching defensive driving to county

employees, as required by the county’s insurance policies. Such training sessions

were considered effective only when taught by an instructor certified by the

National Safety Council (NSC), and in the summer of 2003, M s. M cNulty’s NSC

certification was revoked because she failed to pay the NSC certain monies she

owed for teaching defensive driving to non-county employees on her own time.

In October 2003, her supervisor, Tammie Gerrard, learned of the problem and

asked her to correct it. Because M s. M cNulty did not have the money to pay the

NSC, she did not regain her certification, and another employee had to conduct

the county’s training sessions. During the period from August 2002 to November

2003, M s. M cNulty also was given oral and written reprimands for failing to

return telephone calls, failing to complete workers’ compensation paperwork, and

failing to follow procedures and directions.

      In June 2004, M s. M cNulty filed a written report complaining about

harassment by the county’s finance director, Leroy Arquero, stretching back to

the spring of 2002. A few weeks later she supplemented her initial statement with

another written statement. In these complaints, M s. M cNulty cited about ten or

twelve incidents of harassment. For example, she complained that M r. Arquero

was verbally abusive to employees, including her. In M arch 2002, “he was

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disrespectful and verbally abusive, including derogatory references to my gender

and intelligence.” Aplt. App., Vol. II at 290. In January 2003, he failed to move

out of a doorway to an office she needed to enter, and as she attempted to pass

through, “he made contact with [M s. M cNulty’s] body in a manner that was

clearly inappropriate.” Id. at 292. In the summer of 2003, he summoned her and

M s. Gerrard to a meeting at short notice and did not provide them with handouts.

Another incident was in fall 2003 when M r. Arquero and two or three others w ere

on an elevator. M s. M cNulty said she would wait for the next elevator, and as the

doors closed she heard laughter. She assumed M r. Arquero had made a remark

about her. In June 2004, another employee reported to her that M r. Arquero had

spoken about her in a “venomous” manner, id. at 293-94, and M s. M cNulty said

he through “eye contact and body language” treated her with “obvious hostility

and disrespect” when she encountered him by the reception desk, id. at 287.

      On July 9 and August 3, M s. Gerrard issued written reprimands to

M s. M cNulty. The July 9 reprimand addressed M s. M cNulty’s insubordination

and violation of county policies regarding smoking in vehicles. The August 3

reprimand addressed M s. M cNulty’s failure to timely report claims to the

county’s insurance carrier, causing the insurer to deny the claims, and her failure

to timely transmit notice of a lawsuit to the insurer.

      On August 12, M r. Arquero complained in writing that M s. M cNulty had

comm itted racial harassment against him. He indicated that she had used a racial

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slur about him a year and a half earlier. He complained that she was difficult to

deal with, which he attributed to her racial prejudice. He also complained that

her decision to complain only about him, and not the three white employees who

were also involved in the fall 2003 elevator incident, showed her racial bias. The

county investigated both M s. M cNulty’s and M r. Arquero’s complaints.

      On August 20, 2004, M s. Gerrard issued M s. M cNulty a notice of proposed

discipline based on her failure to regain her N SC certification. After a

pre-discipline hearing, by notice dated September 10, M s. M cNulty was

suspended without pay for three days and ordered to bring her certification

current by October 1. M s. Gerrard also ordered her to prepare a list of employees

who had taken defensive driving classes from her while she lacked her

certification. On the same day, M s. M cNulty filed a complaint of sex

discrimination and retaliation with the Equal Employment Opportunity

Commission (EEOC). During the remainder of September and October she did

not comply with either of M s. Gerrard’s orders. A county hearing officer upheld

the suspension.

      On November 8, M s. Gerrard issued M s. M cNulty a notice of proposed

discipline that indicated the county was considering terminating her employment

for four reasons: (1) her continued failure to reinstate her NSC certification and

to provide the list of employees whose training was not effective; (2) her failure

in October 2004 to assist another employee in locating paperwork required to

                                         -4-
complete the leasing of a fleet of vehicles; (3) her continued failure from April

2004 to November 2004 to complete paperwork necessary for an insurance claim;

and (4) the county’s belief that she had used racial slurs about M r. A rquero.

After receiving the notice, M s. M cNulty sent a check to the NSC to bring her

certification current. The check was never cashed, and M s. M cNulty never

regained her NSC certification. After holding a pre-discipline hearing, the county

terminated her employment on November 16, 2004, for the four reasons listed in

the notice of proposed discipline. Another county hearing officer upheld that

decision as well.

      M s. M cNulty brought claims against the county and its commissioners for

sexual harassment and retaliation under Title VII, 42 U.S.C. §§ 2000e-2, 2000e-3;

for violations of her constitutional rights under 42 U.S.C. § 1983; and for

violations of state statutes and state common-law causes of action. After

defendants answered her first amended complaint, she sought to further amend

her complaint to add M r. Arquero and M s. Gerrard as defendants under Title VII

and § 1983 and to add new claims under Title VII and New M exico’s public

records law . The district court denied her motion to amend and granted summary

judgment to defendants. It held that her quid pro quo sexual harassment claim

was barred for failure to timely file a complaint with the EEOC. It further held

that her hostile work environment sexual harassment claim failed because most of

the conduct she complained about did not constitute discriminatory, unwelcome

                                          -5-
sexual conduct, and the conduct that did qualify was not pervasive or sufficiently

severe. W ith regard to her retaliation claim, the court determined that she had not

shown the defendants’ actions were pretext for discrimination, and that even

assuming the fourth ground for termination constituted evidence of retaliation, the

evidence as a whole showed that the defendants would have made the same

decision even if the retaliatory ground had not been considered. Finally, it

disposed of her remaining federal claims and declined to exercise supplemental

jurisdiction over the remaining state-law claims, dismissing them w ithout

prejudice. M s. M cNulty appeals the grant of summary judgment to defendants on

her retaliation claims and the court’s refusal to allow her to amend her complaint.

                                          II.

      On appeal, M s. M cNulty has abandoned the majority of her claims.

Focusing primarily on the district court’s rejection of her Title VII retaliation

claim under a mixed-motive analysis, she argues the district court erred in three

ways: (1) allowing defendants to rely on a mixed-motive analysis, which is an

affirmative defense that was not raised in their answ er and was not adequately

raised in their written summary judgment submissions; (2) finding that no

reasonable jury could have found in M s. M cNulty’s favor; and (3) not allowing

her to amend her complaint.




                                          -6-
                                         A.

      M s. M cNulty first complains that defendants did not raise a mixed-motive

analysis until oral argument on their summary judgment motion. She argues that

the district court erred in employing this untimely-raised affirmative defense in

granting summary judgment to defendants. W e review this issue for abuse of

discretion. See Ahmad v. Furlong, 435 F.3d 1196, 1202 (10th Cir. 2006)

(applying abuse-of-discretion standard of review to the question “whether an

affirmative defense may first be raised in a motion for summary judgment”).

      W hile M s. M cNulty is correct that the Supreme Court has described the

mixed-motive approach as “most appropriately deemed an affirmative defense,”

Price Waterhouse v. Hopkins, 490 U.S. 228, 246 (1989), modification by statute

recognized in Desert Palace, Inc. v. Costa, 539 U.S. 90, 98-102 (2003), this court

has indicated that a mixed-motive analysis should be employed whenever it is

appropriate, not necessarily only when the defendant invokes it. In Thom as v.

Denny’s, Inc., 111 F.3d 1506, 1511-12 (10th Cir. 1997), the defendant asserted

that a mixed-motive instruction was not appropriate and did not request one.

Noting Price Waterhouse’s affirmative-defense characterization, this court

nevertheless stated “it does not follow from that statement that a mixed-motives

instruction is only available when requested by the defendant.” Id. at 1512.

Quoting the Second Circuit, it continued:




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       “Price Waterhouse is thus a defense. How ever, for tactical reasons,
      it is often only the plaintiff who asks for a Price Waterhouse
      instruction . . . . W e thus believe that the plaintiff will be entitled to
      a burden-shifting instruction on the Price Waterhouse defense w here
      the evidence is sufficient to allow a trier to find both forbidden and
      permissible motives.”

Id. (quoting Ostrowski v. Atl. M ut. Ins. Cos., 968 F.2d 171, 181 (2d Cir. 1992)).

      The district court interpreted M s. M cNulty’s arguments and the evidence

presented before it as requiring a mixed-motive analysis. Given that defendants

cited four reasons for terminating M s. M cNulty’s employment, and that one of the

reasons w as arguably retaliatory while the others w ere unquestionably legitimate

performance-based concerns, that interpretation was reasonable. 1 W e do not find

the district court abused its discretion by considering the mixed-motive approach.

                                           B.

      M s. M cNulty also argues that there was insufficient evidence that

defendants would have terminated her employment even in the absence of the

retaliatory ground (the fourth ground for termination cited in the notice of

discipline). She contends that the fourth ground must have been “the straw that



1
       M s. M cNulty contends that the fourth ground for discharge, that she used a
racial slur in reference to M r. Arquero, was retaliatory because M r. Arquero only
filed his complaint of racial harassment in response to her complaint of sexual
harassment. W e are not convinced that, even assuming M r. Arquero’s complaint
was prompted by M s. M cNulty’s complaint, the county’s investigation of
M r. Arquero’s complaint and its acting on the results of its investigation
constitute retaliatory action by the county for purposes of Title VII. Like the
district court, however, we assume for purposes of our decision that these
statements may be direct evidence of retaliation.

                                           -8-
broke the camel’s back” because the other three grounds were either addressed by

the three-day suspension or occurred before that suspension was issued.

         M s. M cNulty’s argument rests on a fundamental misconception. As the

district court explained, the first three grounds for termination cited in the notice

of discipline were not the same conduct underlying the three-day suspension. The

suspension was based on M s. M cNulty’s failure to regain her certification since

M s. Gerrard’s initial request in October 2003. In contrast, the first ground for

termination was based on M s. M cNulty’s continued failure, from September 10

through November 8, 2004, to regain her certification. M oreover, the second

ground for termination cited conduct in October 2004, which had not happened

when the suspension was imposed in September. The third ground for

termination cited conduct continuing from April to November 2004; again, the

latter portion of that period was after the September suspension. Consequently,

there is no indication that the fourth ground was “the straw that broke the camel’s

back.”

         As the district court concluded, no reasonable jury could conclude that

M s. Gerrard would not have terminated M s. M cNulty’s employment in the

absence of M r. Arquero’s allegations. M s. M cNulty failed to follow

M s. Gerrard’s repeated instructions to regain her NSC certification, and thus she

was unable to perform one of her job duties. She was disciplined for failing to

perform other job duties several times in 2002 and 2003, before she ever filed her

                                           -9-
complaints of discrimination, and her failures to fulfill her job responsibilities

continued in 2004. The district court’s grant of summary judgment on this issue

is affirmed.

                                          C.

      Finally, M s. M cNulty argues that the district court erred in refusing to

allow her to amend her complaint. W e review this issue for abuse of discretion.

Las Vegas Ice & Cold Storage Co. v. Far W. Bank, 893 F.2d 1182, 1185

(10th Cir. 1990). “A court properly may deny a motion for leave to amend as

futile when the proposed amended complaint would be subject to dismissal for

any reason, including that the amendment would not survive a motion for

summary judgment.” Bauchman ex rel. Bauchman v. W. High Sch., 132 F.3d 542,

562 (10th Cir. 1997).

      Several factors are typically considered by the courts in determining
      whether to allow amendment of a complaint. These include whether
      the amendment will result in undue prejudice, whether the request
      was unduly and inexplicably delayed, was offered in good faith, or
      that the party had sufficient opportunity to state a claim and failed.
      W here the party seeking amendment knows or should have known of
      the facts upon which the proposed amendment is based but fails to
      include them in the original complaint, the motion to amend is
      subject to denial.

Las Vegas Ice & Cold Storage Co., 893 F.2d at 1185 (quotation omitted).

      On August 5, 2005, almost four months after she filed her first amended

complaint and about six weeks after defendants filed their answ er, M s. M cNulty

sought to add new claims and new defendants. For her new claims, she alleged

                                         -10-
that defendants violated the New M exico Inspection of Public Records A ct,

N.M . Stat. §§ 14-2-1 to 14-2-12, by refusing to produce tapes of her

administrative hearing and that defendants further retaliated against her, in

violation of Title VII, by including in their answer their counterclaim for a

preliminary injunction. Concerning the new defendants, she alleged that

M r. Arquero and M s. Gerrard qualified as “employers” under Title VII and were

liable for the alleged Title VII violations as well as violations under 42 U.S.C.

§ 1983. The district court held a hearing on the motion before denying it, stating:

      I’m going to deny the motion to amend at this time. It seems to me
      that this is too late in the proceeding to bring up matters that have
      been known all along, that even though they may or may not be
      stronger, based on subsequent depositions and interrogatories, it’s a
      timing issue, that’s very significant with the discovery deadline in
      the next week or two. And, frankly, I’m also not impressed with the
      claims that I’m hearing. They sound more like matters of evidence
      rather than claims against new parties. I don’t believe 10th Circuit
      law allows individual defendants in a Title 7 claim, so that would be
      totally futile based on my understanding of 10th Circuit law, and
      other than having a punitive damage target, I’ve not heard any
      subsequent legal reason to bring in the individual defendants. I will
      deny the motion.

Aplt. App., Vol. III at 577.

      The district court did not abuse its discretion in denying M s. M cN ulty’s

motion to amend. Concerning the proposed new defendants, the district court

correctly noted that it generally is improper to name persons in their individual

capacity in a Title VII suit. See Sauers v. Salt Lake County, 1 F.3d 1122, 1125

(10th Cir. 1993) (“Under Title VII, suits against individuals must proceed in their

                                         -11-
official capacity; individual capacity suits are inappropriate.”). And the record

reveals no reason why the proposed § 1983 claims against M r. Arquero and

M s. Gerrard could not have been included in the original or first amended

complaints.

      Regarding the proposed new Title VII claim against the existing

defendants, amendment would have been futile. M s. M cNulty sought to allege a

discrete retaliatory act, but because she did not exhaust her administrative

remedies for such claim, the district court would not have been able to entertain

it. See Martinez v. Potter, 347 F.3d 1208, 1211 (10th Cir. 2003) (noting that

discrete acts that occur after the filing of the EEOC charge require separate

exhaustion of administrative remedies). Finally, concerning the proposed new

state records law claim, even if the district court had allowed the amendment, it

ultimately dismissed most of M s. M cNulty’s state law claims – including another

public records act claim – w ithout prejudice, leaving her free to pursue those

claims in state court. Because the proposed claim would also have been

dismissed, any error in not allowing the amendment would not justify reversal of

the decision.




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                               III.

The judgment of the district court is AFFIRMED.


                                          Entered for the Court

                                          W ade Brorby
                                          Circuit Judge




                               -13-
