                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           APR 12 2000
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    RANDY BIGGS,

                 Plaintiff-Appellant,

    v.                                                   No. 99-6251
                                                   (D.C. No. CIV-97-1439-T)
    LOGAN COUNTY BOARD OF                                (W.D. Okla.)
    COUNTY COMMISSIONERS,
    and/or Logan County, Oklahoma,
    a political subdivision of the State
    of Oklahoma,

                 Defendant-Appellee.


                              ORDER AND JUDGMENT          *




Before KELLY , HENRY , and MURPHY , Circuit Judges.



         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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Plaintiff appeals the district court’s grant of summary judgment to

defendant Board of County Commissioners on his claims for unpaid overtime

under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 207, 216, and his claim

for gender discrimination under Title VII, 42 U.S.C. §§ 2000e-2000e-17.

Plaintiff also appeals the district court’s denial of leave to amend the complaint to

assert a claim for retaliation under the FLSA.

       In a well-reasoned order, the district court concluded that plaintiff, who

was a deputy sheriff and undersheriff of Logan County during the relevant period,

was not entitled to compensation for overtime under the FLSA because the

undisputed evidence showed he fell within the FLSA’s exception for personal

staff of an elected official (the sheriff).   See 29 U.S.C. § 203(e)(2)(C)(i), (ii)(II);

see also Nichols v. Hurley , 921 F.2d 1101, 1110-14 (10th Cir. 1990) (concluding

plaintiff deputy sheriffs and undersheriffs of two Oklahoma counties fell within

personal staff exception to FLSA under evidence presented). Likewise, the court

concluded that plaintiff was not entitled to relief under Title VII because of a

similar personal staff exception in that statute.    See 42 U.S.C. § 2000e(f).

Therefore, the district court granted summary judgment to defendant on both

claims.

       We review the district court’s grant of summary judgment de novo,

applying the same standard as the district court under Fed. R. Civ. P. 56(c).      See


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Frank v. U.S. West, Inc. , 3 F.3d 1357, 1361 (10th Cir. 1993). In applying this

standard, “[w]e view the evidence in a light most favorable to the nonmovant.

However, it is not enough that the nonmovant’s evidence be merely colorable or

anything short of significantly probative; the nonmovant must come forward with

specific facts showing a genuine issue for trial.”   Id. (citations and quotations

omitted). Based upon our review of the record, the parties’ briefs, and the

pertinent law, we conclude the district court correctly granted summary judgment

to defendant on plaintiff’s claims for uncompensated overtime under the FLSA

and for gender discrimination under Title VII based on those statutes’ respective

personal staff exceptions.

       In his complaint, plaintiff also asserted a claim under 42 U.S.C. § 1983 for

retaliation in violation of his First Amendment rights. In response to defendant’s

motion for summary judgment, however, plaintiff said he believed “his retaliation

claim is more appropriately brought under [Section 215(a) of the FLSA] than as a

Section 1983 action. Therefore, if necessary, the Plaintiff seeks to amend his

complaint to assert his claim for retaliation under 29 U.S.C. § 215(a)(3).”

Appellant’s App. at 188-89. The district court interpreted plaintiff’s statements

as a concession that his “complaint about failure to receive overtime

compensation does not qualify as an expression of public concern protected by the

First Amendment,” and as a withdrawal of plaintiff’s § 1983 claim.      Id. at 325.


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The court further construed plaintiff’s statements as a request to amend the

complaint pursuant to Fed. R. Civ. P. 15, which the court denied. The court

concluded that plaintiff’s request to amend was untimely, that plaintiff had given

no reason for his undue delay, and, in any event, that the amendment would be

futile.

          We review the district court’s denial of leave to amend for an abuse of

discretion. See Pallottino v. City of Rio Rancho   , 31 F.3d 1023, 1027 (10th Cir.

1994). “We have often found untimeliness alone a sufficient reason to deny leave

to amend, especially when the party filing the motion has no adequate explanation

for the delay.”    Id. (quotation omitted). Likewise, denial is appropriate “[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.” Id. (quotation omitted).

          The proposed amendment was not based on facts that were unavailable at

the time the complaint was filed sixteen months earlier. Rather, the amendment

proposed a theory that plaintiff did not choose to advance until after defendant

showed plaintiff’s original theory was fatally flawed.

          A busy district court need not allow itself to be imposed upon by the
          presentation of theories seriatim. . . . Much of the value of summary
          judgment procedure . . . would be dissipated if a party were free to
          rely on one theory in an attempt to defeat a motion for summary
          judgment and then, should that theory prove unsound, come back
          along thereafter and fight on the basis of some other theory.

                                            -4-
Id. (quotation omitted). The district court did not abuse its discretion in denying

plaintiff’s motion to amend his complaint.

      The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED for substantially the reasons set forth by the district

court in its Order of May 26, 1999.



                                                    Entered for the Court



                                                    Paul J. Kelly, Jr.
                                                    Circuit Judge




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