UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

EDITH BARKER, 

 Plaintiff - Appellant, 

v. 

UTAH DEPARTMENT OF 

ENVIRONMENTAL QUALITY; 

AMANDA SMITH; BRAD JOHNSON; 

RUSTY LUNDBERG, 

 Defendants - Appellees. 

No. 21-4024 

(D.C. No. 1:18-CV-00061-TC) 

(D. Utah) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before McHUGH, MORITZ, and ROSSMAN, Circuit Judges. 

_________________________________ 

 Edith Barker, pro se, appeals the district court’s dismissal of her amended 

complaint. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

I. BACKGROUND

 Ms. Barker worked as an Environmental Program Coordinator in the Utah 

Division of Waste Management and Radiation Control, which is a division of the 

* 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 28, 2022

Christopher M. Wolpert 

Clerk of Court

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Utah Department of Environmental Quality (DEQ). In 2013, Ms. Barker filed a civil 

action against DEQ and several of its employees, including DEQ’s Executive 

Director, Amanda Smith, and Division Director of Radiation Control, Rusty 

Lundberg. That action included claims against DEQ for hostile work environment 

and retaliation in violation of Title VII of the Civil Rights Act of 1964. The parties 

settled the case in March 2015. About a month later, Ms. Barker received notice that 

her position would be terminated due to a reduction in force. Her last day of 

employment was May 20, 2015. 

 The termination of her employment led Ms. Barker to file this action and two 

others in June 2018. In her initial complaint in this action, she named as defendants 

the State of Utah and the Utah Attorney General (UAG), and she asserted claims 

under Title VII and 42 U.S.C. § 1983. Defendants filed a motion to dismiss, which 

the district court granted. The court ruled that sovereign immunity barred the § 1983 

claim and that Ms. Barker failed to timely exhaust administrative remedies for the 

Title VII claim. But the court gave her an opportunity to establish timely exhaustion 

of administrative remedies for her Title VII claim. In its order on Ms. Barker’s 

subsequent motion for leave to amend, the court allowed her to assert only Title VII 

and § 1983 claims against only the DEQ and three individual defendants—Ms. Smith, 

Mr. Lundberg, and DEQ Deputy Director Brad Johnson. The court denied leave to 

amend the complaint to include a claim under the Family Medical Leave Act (FMLA) 

because the statute of limitations barred any such claim. 

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 Ms. Barker filed her amended complaint on July 15, 2020, asserting a Title VII 

claim against the DEQ and a § 1983 claim against Ms. Smith, Mr. Lundberg, 

Mr. Johnson, and four other individuals. She based these claims on allegations that 

defendants retaliated against her for filing her 2013 action by engaging in a series of 

hostile activities (including increased scrutiny of her performance) culminating in 

termination of her employment. She also asserted two claims under the Americans 

with Disabilities Act (ADA) based on her use of FMLA leave. 

Defendants filed a motion to dismiss the amended complaint, which the district 

court granted. The court dismissed the ADA claims because, as Ms. Barker conceded 

in her response to the motion to dismiss, they were not permitted under the court’s 

order allowing her to amend her complaint. The court dismissed the Title VII claim 

for two alternative reasons. First, Ms. Barker did not name the DEQ in this action 

within the statutory 90-day period, and her amended complaint did not relate back to 

her original complaint. Second, she did not file her charge of discrimination with the 

Equal Employment Opportunity Commission (EEOC) within the prescribed 300-day 

period. Finally, the court dismissed the § 1983 claim because Ms. Barker’s 

allegations were conclusory and failed to identify what each individual defendant did 

to violate her rights. Ms. Barker appeals. 

II. STANDARD OF REVIEW 

We review de novo the district court’s dismissal of a complaint under 

Rule 12(b)(6). Albers v. Bd. of Cnty. Comm’rs, 771 F.3d 697, 700 (10th Cir. 2014). 

“To survive a motion to dismiss, a plaintiff must plead facts sufficient to state a claim 

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to relief that is plausible on its face.” Id. (internal quotation marks omitted). “[W]e 

must accept all the well-pleaded allegations of the complaint as true and must 

construe them in the light most favorable to the plaintiff.” Id. (internal quotation 

marks omitted). 

III. DISCUSSION

A. ADA claims

“The first task of an appellant is to explain to us why the district court’s 

decision was wrong.” Nixon v. City & Cnty. of Denver, 784 F.3d 1364, 1366 

(10th Cir. 2015). Ms. Barker made no attempt to carry out that task with regard to 

the dismissal of her ADA claims. She asks us to “reinstate[]” those claims. Aplt. 

Opening Br. at 4. But she does not explain why she thinks the district court erred in 

dismissing them on the ground that, as she had conceded in her response to the 

motion to dismiss, the court’s order limited her to filing an amended complaint 

raising only Title VII and § 1983 claims. Her entire opening-brief argument is that 

she “conceded the ADA claims were not permitted against the State of Utah under 

sovereign immunity; however, she objected to the Defendants having sovereign 

immunity and argued that her ADA claims are proper against the defendants.” Id.

at 2. Her reply-brief argument also fails to address the basis of the district court’s 

ruling, let alone establish that the district court erred. 

Although we must construe Ms. Barker’s pro se filings liberally, we may not 

act as her advocate. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 

840 (10th Cir. 2005). And we have “repeatedly insisted that pro se parties follow the 

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same rules of procedure that govern other litigants.” Id. (internal quotation marks 

omitted). Thus, because Ms. Barker has failed to confront the basis for the district 

court’s dismissal of her ADA claims, she has waived appellate review of the issue. 

See id. at 841 (explaining that inadequately briefed issues “will be deemed waived”). 

B. Title VII claim 

As noted, the district court dismissed Ms. Barker’s Title VII claim for two 

independent reasons. To prevail on appeal, Ms. Barker must establish that neither 

reason supported dismissal. Because we conclude the district court correctly 

dismissed the Title VII claim on the ground that the amended complaint was 

untimely with regard to the DEQ, we need not address Ms. Barker’s arguments 

regarding the propriety of dismissal for failure to file a timely EEOC charge. 

“Under 42 U.S.C. § 2000e-5(f)(1) a complainant has ninety days in which to 

file suit after receipt of an EEOC right-to-sue letter.” Witt v. Roadway Exp., 

136 F.3d 1424, 1429 (10th Cir. 1998). Ms. Barker does not take issue with the 

district court’s ruling that she did not name the DEQ in this action within the 90-day 

period. But she does contest the ruling that her amended complaint does not relate 

back to her initial complaint. We agree with the district court’s conclusion. 

Federal Rule of Civil Procedure 15(c) “governs when an amended pleading 

‘relates back’ to the date of a timely filed original pleading”; when it does relate 

back, the amended pleading itself is “timely even though it was filed outside an 

applicable statute of limitations.” Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 

541 (2010). Where an amended pleading changes a party or a party’s name, 

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Rule 15(c) requires, among other things, that “within the period provided by [Fed. R. 

Civ. P.] 4(m) for serving the summons and complaint, the party to be brought in by 

amendment . . . knew or should have known that the action would have been brought 

against it, but for a mistake concerning the proper party’s identity.” Fed. R. Civ. P. 

15(c)(1)(C)(ii).1

 “[R]elation back under Rule 15(c)(1)(C) depends on what the party 

to be added knew or should have known, not on the amending party’s knowledge or 

its timeliness in seeking to amend the pleading.” Krupski, 560 U.S. at 541. In other 

words, “Rule 15(c)(1)(C)(ii) asks what the prospective defendant knew or should 

have known during the Rule 4(m) period, not what the plaintiff knew or should have 

known at the time of filing her original complaint.” Id. at 548. The focus is on 

“what the prospective defendant reasonably should have understood about the 

plaintiff’s intent in filing the original complaint against the first defendant.” Id.

at 554. 

Rule 4(m) requires service “within 90 days after the complaint is filed.” 

Fed. R. Civ. P. 4(m). The DEQ had no reason to believe, during that 90-day period, 

that Ms. Barker’s failure to initially name it as a defendant in this action was due to a 

mistake concerning the DEQ’s identity. First, in her original complaint, Ms. Barker 

identified as defendants only the State of Utah, the UAG, and various UAG 

1

 Rule 15(c)(1)(C) also provides that the party to be brought in by amendment 

must have “received such notice of the action that it will not be prejudiced in 

defending on the merits.” Fed. R. Civ. P. 15(c)(1)(C)(i). The DEQ did not rely on 

this condition in seeking dismissal, and the district court did not rely on it in the 

dismissal order.

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departments, divisions, sections, and investigators. Second, she identified DEQ 

employees Smith and Lundberg (defendants in the amended complaint) as 

“investigators” the UAG used to scrutinize her, R. at 7, but she issued summonses 

only to the State of Utah and the UAG. Third, and significantly, Ms. Barker named 

the DEQ as a defendant in one of the two other actions she filed close in time to this 

one, alleging the DEQ and the State of Utah were her employers within the meaning 

of Title VII. See Complaint at 1, 3, Barker v. Utah Dep’t of Envtl. Quality, 

No. 1:18-cv-00068-DB (D. Utah June 14, 2018), ECF No. 3.2

 That action was based 

on the same alleged events and wrongful conduct as this action. See id. at 2, 7-12. 

Furthermore, Ms. Barker had named the DEQ as a Title VII defendant in her 2013 

action. Thus, because Ms. Barker had named the DEQ in both a contemporaneous 

Title VII action arising from the same alleged conduct and a prior Title VII action, it 

was reasonable during the Rule 4(m) period for the DEQ to believe her failure to 

name it in her original complaint in this action was not due to a mistake regarding the 

identity of the proper defendant but the product of an informed choice.3

 See Krupski, 

560 U.S. at 549 (explaining “that making a deliberate choice to sue one party instead 

2

 We elect to take judicial notice of these proceedings. See United States v. 

Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007) (“Although we are not obliged to 

do so, we may exercise our discretion to take judicial notice of publicly-filed records 

in our court and certain other courts concerning matters that bear directly upon the 

disposition of the case at hand.”). 

3

 For the sake of argument, we have assumed the DEQ was Ms. Barker’s 

employer within the meaning of Title VII and therefore the proper defendant to the 

Title VII claim. 

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of another while fully understanding the factual and legal differences between the 

two parties is the antithesis of making a mistake concerning the proper party’s 

identity”). 

In light of this analysis, we reject Ms. Barker’s arguments that she did not 

know who the proper defendant was and that the DEQ knew or should have known it 

was a defendant in this action because she served this and her two contemporaneous 

2018 suits on the UAG, who represents the DEQ. We also reject her reliance on the 

fact that she listed all of the defendants in the body of her complaint in this and the 

other suits she filed in 2018. The DEQ was not among the defendants referenced in 

the original complaint in this action, Ms. Barker referred to Ms. Smith and 

Mr. Lundberg as investigators for named defendant UAG, and as just discussed, 

listing the DEQ as a defendant in one of her other suits leads to the conclusion that it 

was reasonable for the DEQ to believe its omission from the original complaint in 

this action was not due to a mistake regarding the proper party’s identity. Finally, we 

find unpersuasive her argument that the amended complaint relates back to the 

original complaint because her “2016 EEOC complaints were identical or nearly 

identical against” “the State of Utah, the DEQ, the [Department of Human Resource 

Management], and the Utah Attorney General.” Aplt. Reply Br. at 6.4

 The substance 

4

 Although Ms. Barker refers in the plural to “2016 EEOC complaints,” there 

is only one 2016 EEOC charge in the record. That charge, which concerns the 

conduct alleged in this case, names the State of Utah as the respondent but also 

identifies the DEQ as a “co-Respondent.” R. at 18. The only other EEOC charge in 

the record names the DEQ, but it alleges other unlawful conduct (retaliation and 

gender and religious discrimination) occurring in 2011. See R. at 500. 

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of Ms. Barker’s EEOC charges is of no consequence given that she named the DEQ 

in her 2013 action and one of her three 2018 actions, but not this one. 

C. § 1983 claim

We also find no error in the district court’s dismissal of Ms. Barker’s § 1983 

retaliation claim against Ms. Smith, Mr. Lundberg, and Mr. Johnson for failure to 

allege sufficient facts showing what each individual defendant did to violate her 

rights. 

To survive a motion to dismiss in a § 1983 case like this one, where the 

defendants include “a number of government actors sued in their individual 

capacities,” it is “particularly important . . . that the complaint make clear exactly 

who is alleged to have done what to whom, to provide each individual with fair notice 

as to the basis of the claims against him or her.” Robbins v. Oklahoma, 519 F.3d 

1242, 1249-50 (10th Cir. 2008). And as in Robbins, Ms. Barker’s amended 

complaint uses “either the collective term ‘[§ 1983] Defendants’ or a list of the 

defendants named individually but with no distinction as to what acts are attributable 

to whom.” Id. at 1250. 

Even more problematic, Ms. Barker included four other individuals who are 

not named as defendants in her definition of “§ 1983 Defendants” and she often 

included one or more of them when listing multiple individuals and describing what 

the listed individuals had allegedly done to violate her rights. See, e.g., R. at 295 

(“Rusty Lundberg, Amanda Smith, Craig Jones, Brad Johnson, Dana Powers, and 

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Scott Baird participated in the malicious and bad faith scrutiny.”).5

 And in those few 

instances where she isolated Ms. Smith, Mr. Lundberg, or Mr. Johnson, she provided 

only conclusory statements, not plausible allegations that any of them retaliated 

against her for having brought her 2013 action. See id. (“Rusty Lundberg used the 

malicious and bad faith scrutiny and investigations as a pretext to recommend 

eliminating Ms. Barker’s position . . . .”); R. at 297 (alleging that instead of giving 

increased scrutiny to a program that had received a federal deficiency notice, 

“Mr. Lundberg . . . selected Ms. Barker and her programs, and then used efficiency 

scrutiny to recommend . . . that [she] be terminated”); id. (“Amanda Smith and Brad 

Johnson . . . maliciously terminated Ms. Barker’s employment.”); R. at 298 

(“Ms. Smith timed Ms. Barker’s last day to coincide with [Ms.] Smith’s last day 

. . . .”).6

For these reasons, we conclude the amended complaint “fails to isolate the 

allegedly unconstitutional acts of each defendant, and thereby does not provide 

adequate notice as to the nature of the claims against each.” Robbins, 519 F.3d 

at 1250. 

Ms. Barker’s appellate argument is limited and unpersuasive. She contends 

that she made “factual arguments,” Aplt. Opening Br. at 3, that she needs discovery 

5

 In response to defendants’ motion to dismiss the amended complaint, 

Ms. Barker agreed her § 1983 claims were against only Ms. Smith, Mr. Johnson, and 

Mr. Lundberg. 

6

 Although these examples are set out in her Title VII claim, Ms. Barker 

incorporated them by reference into her § 1983 claim. 

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“to collect facts,” id., and that sworn testimony from the individual defendants in a 

2015 trial before the Utah Career Service Review Office corroborates her allegations. 

But as just discussed, her factual allegations are insufficient. Further, she had 

first-hand knowledge of the factual basis of her claims, and she was the grievant in 

the trial before the Review Office. We therefore fail to see why Ms. Barker required 

the individual defendants’ depositions or the transcripts of the trial before the Review 

Office in order to allege facts sufficient to state a plausible § 1983 claim.7

IV. CONCLUSION

 The district court’s judgment is affirmed. 

Entered for the Court 

Carolyn B. McHugh 

Circuit Judge 

7

 We note that portions of those transcripts were appended to the motions to 

dismiss filed in this case, suggesting Ms. Barker could have accessed them if she 

thought it necessary to drafting her amended complaint. 

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