Appellate Case: 25-3205 Document: 17 Date Filed: 06/15/2026 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS June 15, 2026 FOR THE TENTH CIRCUIT _________________________________ Christopher M. Wolpert Clerk of Court ANDRIA BORSODY,
Plaintiff - Appellant,
v. No. 25-3205 (D.C. No. 2:25-CV-02168-JAR-ADM) FRONTIER HERITAGE (D. Kan.) COMMUNITIES,
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT * _________________________________
Before HARTZ, MATHESON, and ROSSMAN, Circuit Judges. _________________________________
Andria Borsody filed a pro se complaint against her former employer,
Frontier Heritage Communities, alleging claims under Title VII and the
Americans with Disabilities Act. The district court granted Frontier’s
motion to dismiss and denied Ms. Borsody’s request for leave to amend her
* This order and judgment is not binding precedent, except under the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 Federal Rule of Appellate Procedure 32.1 and 10th Circuit Rule 32.1. Neither party has requested oral argument, and 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. Appellate Case: 25-3205 Document: 17 Date Filed: 06/15/2026 Page: 2
complaint. It also denied Ms. Borsody’s motions for entry of default, default
judgment, and Rule 11 sanctions. Ms. Borsody, still proceeding pro se, now
appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
A
In early September 2024, Ms. Borsody dual-filed a discrimination
charge with the Kansas Human Rights Commission (KHRC) and the Equal
Employment Opportunity Commission (EEOC). 1 She named “The Michaels
Organization and its Representatives” (Michaels) as the respondent. RI.73–
74. She claimed she was employed by Michaels “from June 24, 2024, to
August 28, 2024.” RI.73. According to Ms. Borsody, she was “subjected
to . . . harassment, inadequate training, a reprimand, and terminated due
to [her] disability” and “[her] sex,” and was “denied a reasonable
accommodation due to [her] disability and as an act of retaliation[.]” RI.74.
The “Alleged Date of Incident” was “on or about July 3, 2024, to August 28,
2024.” RI.73.
The EEOC issued a right-to-sue letter in January 2025, authorizing
Ms. Borsody to pursue her discrimination charge against Michaels in
federal district court. Two months later, in March 2025, Ms. Borsody filed
1 The discrimination charge was dated August 30, 2024, but was not filed
until September 3, 2024. 2 Appellate Case: 25-3205 Document: 17 Date Filed: 06/15/2026 Page: 3
a pro se complaint in the United States District Court for the District of
Kansas. She attached to her complaint a copy of the right-to-sue letter. The
complaint named Frontier Heritage Communities as the defendant—not
Michaels, the entity named in her dual-filed discrimination charge. Ms.
Borsody asserted claims for retaliation, failure to accommodate, and
wrongful termination under Title VII and the ADA. 2
B
In April 2025, Ms. Borsody attempted to serve Frontier’s counsel with
the summons and complaint. Frontier moved to dismiss under Federal Rule
of Civil Procedure 12(b)(5) for insufficient service of process. In its motion,
Frontier noted Ms. Borsody “named the incorrect Defendant in her lawsuit,”
pointing out her discrimination charge was against “The Michaels
Organization and its Representatives.” RI.19 n.1. The district court found
service deficient but granted Ms. Borsody an extension of time to serve the
complaint properly. The district court thus denied Frontier’s motion to
dismiss under Rule 12(b)(5) without addressing whether Michaels was a
proper defendant.
2 Ms. Borsody’s complaint incorrectly states the discrimination at issue
occurred in June 2024 and that she filed her discrimination charge in July 2024. That error does not impact our disposition. 3 Appellate Case: 25-3205 Document: 17 Date Filed: 06/15/2026 Page: 4
On July 7, 2025, Ms. Borsody served Frontier through its registered
agent. Eleven days later, on July 18, she filed an application for entry of
default under Rule 55. And then, on July 22, she moved the district court
for a default judgment under Rule 55(b)(2), arguing Frontier “failed to
answer or otherwise respond to [her] Employment Discrimination
Complaint, despite being properly served[.]” RI.56. The district court denied
Ms. Borsody’s default-related requests the next day. As the district court
explained, Frontier was served on July 7—so its “answer [was] not due until
July 28, 2025 under Fed. R. Civ. P. 12(a).” RI.98. Ms. Borsody therefore had
not shown Frontier was in default.
Frontier received an extension of its responsive pleading deadline. On
August 11, 2025, the new deadline, it moved under Rule 12(b)(6) to dismiss
Ms. Borsody’s complaint with prejudice. According to Frontier, Ms. Borsody
“failed to exhaust her administrative remedies”—a prerequisite to pursuing
her federal lawsuit—because she never filed a discrimination charge with
the EEOC against Frontier and never received a right-to-sue letter with
respect to Frontier. RI.64. Ms. Borsody had pursued her discrimination
charge against only “The Michaels Organization and its Representatives.”
RI.69 (quoting RI.27–28). Frontier attached a copy of Ms. Borsody’s
discrimination charge to its motion to dismiss.
4 Appellate Case: 25-3205 Document: 17 Date Filed: 06/15/2026 Page: 5
Ms. Borsody opposed the motion. She argued “[c]ourts in the Tenth
Circuit recognize that a Title VII or ADA claim may proceed against a party
not named in the EEOC charge if there is a ‘substantial identity’ between
the named entity and the defendant.” 3 RI.76. Ms. Borsody insisted that
“Frontier operated the property where [she] worked, under the branding
and supervision of The Michaels Organization.” RI.76; see also RI.75
(contending the discrimination charge “named ‘The Michaels Organization
and its Representatives,’ which includes Frontier . . . as an operational
entity and employer under the same corporate umbrella”). And according to
Ms. Borsody, Frontier had “actual notice of the EEOC proceedings” because
it “was named in substance through the operational identity of” Michaels,
and its “representatives were referenced in the EEOC complaint[.]” RI.76
(bolding omitted). In the event the district court found her complaint
deficient, Ms. Borsody requested leave to amend so she could “clarify the
relationship between Frontier and The Michaels Organization” and “assert
additional facts supporting exhaustion.” RI.76.
3 In support, Ms. Borsody cited “Alford v. City of Canon City, 2019 WL
13202842 (D. Colo. Mar. 29, 2019).” RI.76. Frontier investigated this citation and, in its reply brief, noted counsel “ha[d] searched and been unable to find the Alford case cited by [Ms. Borsody].” RI.79. As we will discuss, the district court confirmed no such case exists and admonished Ms. Borsody to refrain from using AI when drafting legal documents without confirming the accuracy of citations. We too have confirmed “Alford v. City of Canon City” is not a real case. 5 Appellate Case: 25-3205 Document: 17 Date Filed: 06/15/2026 Page: 6
In October 2025, while Frontier’s motion to dismiss was still pending,
Ms. Borsody moved a second time for entry of default under Rule 55(a). In
the same motion, she sought Rule 11 sanctions against Frontier for filing
“recycled procedural motions” that “clearly serve[d] no purpose but delay.”
RI.116. This filing also included argument about the relationship between
Frontier and Michaels. Ms. Borsody said her “formal onboarding, payroll,
and benefits were handled by Michaels, but [she] physically worked at the
Fort Leavenworth property controlled and managed by Frontier[.]” RI.117.
Although “daily duties, discipline, and workplace rules were enforced by
Frontier Heritage,” Michaels was—at least according to Ms. Borsody—
responsible for “benefits and pay[.]” RI.117. She attached “timesheets,
insurance documents, counseling memos, and policy handbooks” and argued
these materials “conclusively prove[d] her employment relationship with
[Frontier].” RI.115; see also RI.119–24 (attached documents).
In November 2025, in a comprehensive consolidated order, the district
court granted Frontier’s motion to dismiss and denied Ms. Borsody’s motion
for entry of default and sanctions. The district court ruled Ms. Borsody had
not exhausted her claims against Frontier because she failed to name them
in her EEOC charge. “Naming a party in the EEOC charge is a fundamental
aspect of the administrative process[,]” the district court explained,
“because a party cannot participate in conciliation without notice.” RI.149–
6 Appellate Case: 25-3205 Document: 17 Date Filed: 06/15/2026 Page: 7
50 (internal quotation marks omitted). Under these circumstances, the
district court determined Ms. Borsody’s complaint could proceed only if she
met “the substantial-identity test[.]” RI.150; see Romero v. Union Pac. R.R.,
615 F.2d 1303, 1311–12 (10th Cir. 1980) (holding “omission of a party’s
name from the EEOC charge does not automatically mandate dismissal of
a subsequent action under Title VII” and listing four factors “pertinent to
an evaluation of the failure to name a party before the EEOC”). In applying
this test, the district court “liberally construed” Ms. Borsody’s
discrimination charge and “assumed as true the allegations in the
[c]omplaint[.]” RI.151. Still, the district court concluded Ms. Borsody had
failed to “administratively exhaust her claims against Frontier.” RI.151–52.
The district court also denied Ms. Borsody’s request for leave to
amend her complaint. While “recogniz[ing] the general rule that pro se
parties should be allowed leave to amend,” the district court determined
amendment would be futile in this case. RI.152–53. Ms. Borsody’s “failure
to exhaust as to the correct defendant [is] not curable[,]” the district court
ruled. RI.153. The district court also observed Ms. Borsody “provide[d] no
indication of how she could plead facts that would avoid the exhaustion
defense.” RI.153. In sum, the district court granted Frontier’s Rule 12(b)(6)
motion and dismissed Ms. Borsody’s complaint without prejudice.
7 Appellate Case: 25-3205 Document: 17 Date Filed: 06/15/2026 Page: 8
Next, the district court denied Ms. Borsody’s motion for entry of
default and Rule 11 sanctions. Although Ms. Borsody had argued Frontier’s
assertion of a procedural defense was wrongful—and merited sanctions—
the district court rejected that argument as “mistaken.” RI.153. The district
court explained Frontier’s answer was not due until 14 days after its motion
to dismiss was denied. And because the district court “now granted that
motion to dismiss,” Frontier was not required to file an answer “at all.”
RI.154.
As a final matter, the district court “cautioned” Ms. Borsody “against
using artificial intelligence for drafting legal documents or citing cases
without confirming their accuracy.” RI.154. It admonished Ms. Borsody for
citing to “Alford v. City of Canon City”—a case the district court confirmed
did not exist—and expressed “concern[] that [Ms. Borsody] relied on
generative artificial intelligence in drafting her response brief.” RI.154. 4
4 The same day, and before filing her notice of appeal, Ms. Borsody filed
a “Notice of Objection to Judgment” identifying several “objections” to the district court’s November 2025 consolidated order. See RI.157–59 (heading formatting omitted). Ms. Borsody asked the district court to “accept” the filing “for the docket and record,” and requested “that all arguments and facts therein be considered in any subsequent appellate review.” RI.159; see also RI.158 (“Plaintiff submits this notice to ensure these objections are preserved for the record and appellate review[.]”). The district court did not acknowledge Ms. Borsody’s filing or take any action on it. And, on appeal, Ms. Borsody does not argue the district court erred in any way with respect to this filing. We therefore do not address it.
8 Appellate Case: 25-3205 Document: 17 Date Filed: 06/15/2026 Page: 9
This timely appeal followed.
II
Ms. Borsody seeks reversal. She argues the district court erred, first,
by dismissing her complaint without prejudice under Rule 12(b)(6); second,
by refusing to grant her leave to amend; and third, by denying her default-
related motions and request for Rule 11 sanctions. We address these
arguments in turn and discern no reversible error.
III
Ms. Borsody first contends the district court erred by dismissing her
complaint under Rule 12(b)(6) for failure to exhaust administrative
remedies. We cannot agree. For the reasons that follow, we endorse the
district court’s application of the identity-of-interest factors and conclude
Ms. Borsody failed to exhaust her claims against Frontier.
“We review de novo a district court’s Rule 12(b)(6) dismissal of a
complaint for failure to state a claim.” Brokers’ Choice of Am., Inc. v. NBC
Universal, Inc., 861 F.3d 1081, 1104 (10th Cir. 2017). “To survive a
Rule 12(b)(6) motion to dismiss, a complaint must allege facts that, if true,
‘state a claim to relief that is plausible on its face.’” Clinton v. Sec. Benefit
Life Ins. Co., 63 F.4th 1264, 1274 (10th Cir. 2023) (quoting Ashcroft v. Iqbal,
9 Appellate Case: 25-3205 Document: 17 Date Filed: 06/15/2026 Page: 10
556 U.S. 662, 678 (2009)). This plausibility standard requires the plaintiff
to plead “factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Hogan v.
Winder, 762 F.3d 1096, 1104 (10th Cir. 2014) (quoting Iqbal, 556 U.S. at
678).
“In reviewing an order granting a motion to dismiss, our role is like
the district court’s: we accept the well-pleaded facts alleged as true and view
them in the light most favorable to the plaintiff[.]” Clinton, 63 F.4th at 1275.
But we “need not accept ‘[t]hreadbare recitals of the elements of a cause of
action [that are] supported by mere conclusory statements[.]’” Id. (third
alteration added) (quoting Iqbal, 556 U.S. at 678); see also Brooks v. Mentor
Worldwide LLC, 985 F.3d 1272, 1281 (10th Cir. 2021) (“An allegation is
conclusory where it states an inference without stating underlying facts or
is devoid of any factual enhancement.”). Nor do we accept “allegations
plainly contradicted by properly considered documents or exhibits[.]” 5
Clinton, 63 F.4th at 1275.
5 We generally “must restrict [our] review to only the ‘allegations within
the four corners of the complaint,’ and cannot consider other pleadings or external allegations.” Brown v. City of Tulsa, 124 F.4th 1251, 1263 (10th Cir. 2025) (quoting Waller v. City & County of Denver, 932 F.3d 1277, 1286 n.1 (10th Cir. 2019)). As relevant here, however, we may consider “documents attached to the complaint as exhibits” and “documents referenced in the complaint that are central to the plaintiff’s claims, provided their authenticity is undisputed[.]” Morphew v. Chaffee County, 172 F.4th 802, 813 (10th Cir. 2026) 10 Appellate Case: 25-3205 Document: 17 Date Filed: 06/15/2026 Page: 11
Finally, we remain cognizant of our obligation to liberally construe
pro se pleadings and hold them “to a less stringent standard than formal
pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991). “In practicing leniency, we will often excuse pro se plaintiffs’
‘failure to cite proper legal authority,’ ‘confusion of various legal theories,’
‘poor syntax and sentence construction,’ and ‘unfamiliarity with pleading
requirements.’” Johnson v. Reyna, 57 F.4th 769, 775 (10th Cir. 2023)
(quoting Hall, 935 F.2d at 1110). But we cannot “act as [Ms. Borsody]’s
advocate[.]” Greer v. Moon, 83 F.4th 1283, 1292 (10th Cir. 2023); see also
Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009) (noting we
“will not supply additional factual allegations to round out” a pro se
plaintiff’s complaint “or construct a legal theory on [her] behalf” (quoting
Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997))).
A plaintiff's failure to exhaust administrative remedies before
bringing a Title VII or ADA claim permits the employer to raise an
(quoting Brown, 124 F.4th at 1264). Ms. Borsody attached the right-to-sue letter to her complaint. She also referenced the right-to-sue letter and discrimination charge in her complaint. Both documents are central to her claims against Frontier, and the parties do not dispute their authenticity. The district court accordingly considered these documents in resolving Frontier’s motion to dismiss. Ms. Borsody does not take issue with that on appeal. Like the district court, we also consider the right-to-sue letter and discrimination charge in evaluating the sufficiency of Ms. Borsody’s complaint. 11 Appellate Case: 25-3205 Document: 17 Date Filed: 06/15/2026 Page: 12
affirmative defense. See Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1185 &
n.10 (10th Cir. 2018) (joining the “overwhelming majority” of circuits that
hold “a plaintiff’s failure to exhaust administrative remedies before
bringing a Title VII, ADA, or [ADEA] claim does not deprive a federal court
of jurisdiction over the claim”). And “[a] complaint may be subject to
dismissal under Rule 12(b)(6) when an affirmative defense . . . appears on
its face[.]” Jones v. Bock, 549 U.S. 199, 215 (2007) (internal quotation marks
omitted); see also Cirocco v. McMahon, 768 F. App’x 854, 858 (10th Cir.
2019) (unpublished) (“Although failure to exhaust is now an affirmative
defense, it may be raised in a motion to dismiss when the grounds for the
defense appear on the face of the complaint.”). 6 “We review the district
court’s legal determination that a plaintiff has failed to exhaust her
administrative remedies de novo.” Smith v. Cheyenne Ret. Invs. L.P., 904
F.3d 1159, 1164 (10th Cir. 2018).
Title 42 U.S.C. § 2000e-5(e)(1) establishes the administrative
“prerequisites that a plaintiff must satisfy” with respect to both Title VII
and ADA claims. 7 Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109
6 We may rely on unpublished decisions for their persuasive value. United States v. Engles, 779 F.3d 1161, 1162 n.1 (10th Cir. 2015) (citing 10th Cir. R. 32.1). 7 Although § 2000e-5(e)(1) is Title VII’s “charge filing provision,” Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002), the ADA incorporates “[t]he powers, remedies, and procedures set forth in . . . [§] 2000e- 12 Appellate Case: 25-3205 Document: 17 Date Filed: 06/15/2026 Page: 13
(2002). When, as here, “the person aggrieved has initially instituted
proceedings with a State or local agency with authority to grant or seek
relief” from an unlawful employment practice, the charge must be filed “by
or on behalf of the person aggrieved within three hundred days after the
alleged unlawful employment practice occurred[.]” 42 U.S.C. § 2000e-
5(e)(1); see also Proctor v. United Parcel Serv., 502 F.3d 1200, 1206 n.3 (10th
Cir. 2007) (explaining that Kansas is a “deferral state,” i.e., “a state with an
agency empowered to investigate employment discrimination,” and so
plaintiffs there have 300 days in which to file an administrative charge). “A
claim is time barred if it is not filed within [this] time limit[].” Morgan, 536
U.S. at 109.
This timeliness requirement goes hand-in-hand with a substantive
prerequisite: a plaintiff may sue only for “claims that were . . . part of a
timely-filed EEOC charge for which the plaintiff has received a right-to-sue
5[.]” 42 U.S.C. § 12117(a). And because “Title I of the ADA . . . expressly incorporates the powers, remedies, and procedures of Title VII,” we have said that “the procedural requirements of those two provisions must be construed identically.” Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1309 (10th Cir. 2005); see also Davidson v. Am. Online, Inc., 337 F.3d 1179, 1183 (10th Cir. 2003) (observing the ADA “incorporat[es] the procedural rules of Title VII”). Cases discussing exhaustion under Title VII therefore apply to exhaustion under the ADA. We have reached a similar conclusion about Title VII cases and exhaustion under the Age Discrimination in Employment Act (ADEA). Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1194 n.1 (10th Cir. 2004) (“As the ADEA and Title VII have virtually identical requirements with respect to the filing of EEOC charges, Title VII cases are applicable here.”).
13 Appellate Case: 25-3205 Document: 17 Date Filed: 06/15/2026 Page: 14
letter.” Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1194 (10th Cir. 2004).
Thus, a plaintiff generally “must file a charge against a party with the
EEOC before she can sue that party under Title VII” or the ADA. Knowlton
v. Teltrust Phones, Inc., 189 F.3d 1177, 1185 (10th Cir. 1999) (emphasis
added); see also MacKenzie v. City & County of Denver, 414 F.3d 1266, 1274
(10th Cir. 2005) (explaining that a plaintiff’s claim “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”).
We have “recognized narrow exceptions to the strict requirement that
each defendant must have been specifically named as the respondent in the
EEOC charge[.]” Romero, 615 F.2d at 1311. For example, “a Title VII action
may proceed against a defendant not named in the EEOC charge when
‘there is a clear identity of interest between the unnamed defendant and
the party named in the administrative charge.’” Knowlton, 189 F.3d at 1185
(quoting Johnson v. Palma, 931 F.2d 203, 209 (10th Cir. 1991)). “This
identity-of-interest exception satisfies a Title VII purpose that the
defendant have notice of the charge and the EEOC have an opportunity to
attempt conciliation.” Id.
We examine four factors to determine whether an identity of interest
exists: (1) “whether the role of the unnamed party could through reasonable
effort by the complainant be ascertained at the time of the filing of the
14 Appellate Case: 25-3205 Document: 17 Date Filed: 06/15/2026 Page: 15
EEOC complaint”; (2) “whether, under the circumstances, the interests of a
named [party] are so similar [to] the unnamed party’s that for the purpose
of obtaining voluntary conciliation and compliance it would be unnecessary
to include the unnamed party in the EEOC proceedings”; (3) “whether [the
unnamed party’s] absence from the EEOC proceedings resulted in actual
prejudice to the interests of the unnamed party”; and (4) “whether the
unnamed party has in some way represented to the complainant that its
relationship with the complainant is to be through the named party.”
Romero, 615 F.2d at 1311–12 (quoting Glus v. G. C. Murphy Co., 562 F.2d
880, 888 (3d Cir. 1977)).
Ms. Borsody argues the district court erred by dismissing her
complaint based on what she calls the “EEOC [n]aming [t]echnicality.” Op.
Br. at 12 (bolding omitted). Ms. Borsody maintains “Frontier and Michaels
share management, personnel, and operational control, satisfying the
substantial identity doctrine.” 8 Op. Br. at 12.
8 Ms. Borsody again cites to “Alford v. City of Canon City,” which she
says “is real, published, and properly applied[,]” and claims the district court committed “factual error” by suggesting the case is “fictitious[.]” Op. Br. at 14. As explained, that case does not exist. We affirm the district court’s decision to admonish Ms. Borsody and caution her to confirm the authenticity of cases before citing them in her briefing.
15 Appellate Case: 25-3205 Document: 17 Date Filed: 06/15/2026 Page: 16
Frontier urges affirmance, emphasizing Ms. Borsody “did not file a
charge of discrimination with the EEOC or the KHRC against Frontier” and
did not “receive a right-to-sue letter regarding any charge of discrimination
against Frontier.” Resp. Br. at 9 (bolding omitted). Frontier walks through
the identity-of-interest factors and contends Ms. Borsody fails to “provide[]
sufficient allegations in support of a substantial identity of interest
argument.” Resp. Br. at 12. We agree with Frontier.
The allegations in Ms. Borsody’s complaint do not establish a
connection between Frontier and Michaels that would satisfy the identity-
of-interest exception. To explain our conclusion, we endorse the district
court’s careful analysis of the four factors in Romero. See RI.151–52.
First, the district court found Ms. Borsody “d[id] not explain why she
could not have discovered Frontier’s role through reasonable diligence when
she filed the charge.” RI.151. Second, the district court could not conclude
on this record “that Frontier’s interests are so similar [to] Michaels’ that for
the purpose of obtaining voluntary conciliation and compliance it would be
unnecessary to include Frontier in the EEOC proceedings.” RI.151. The
district court acknowledged Ms. Borsody’s “conclusory assertion” about the
parties being “part of the same ‘corporate umbrella’” but observed her
complaint “provides no allegations about this[.]” RI.151. Third, the district
court dismissed as “conclusory” Ms. Borsody’s assertion that Frontier was
16 Appellate Case: 25-3205 Document: 17 Date Filed: 06/15/2026 Page: 17
not prejudiced by its absence from the EEOC proceedings. RI.151. “The fact
that Frontier was unable to participate in voluntary conciliation,” the
district court reasoned, “and did not receive prior notice of the lawsuit
against it through the EEOC charge constitutes actual prejudice.” RI.151–
52. Fourth, the district court found Ms. Borsody’s complaint contained
“nothing” to permit the inference that “Michaels in some way represented
to [Ms. Borsody] that its relationship with [her was] to be through Frontier,
or vice versa.” RI.152. On appeal, Ms. Borsody fails to advance any
convincing contrary argument. 9
Because Ms. Borsody did not name Frontier in her EEOC charge and
there is no clear identity of interest between Frontier and Michaels, we
must affirm the district court’s dismissal of Ms. Borsody’s complaint for
failure to exhaust her Title VII and ADA claims.
9 In her reply brief, Ms. Borsody asserts for the first time “that the same
defense counsel . . . has represented the Defendant(s) in this matter continuously from the earliest EEOC mediation . . . under the company Michaels” and “through the proceedings in the United States District Court under Frontier Heritage[] following through the appeal before this Court.” Reply Br. at 4. “This unbroken chain of legal representation directly contradicts any suggestion of confusion, lack of notice, or corporate separation[,]” she argues, “and demonstrates the substantial identity—and close operational relationship—between The Michaels Organization and Frontier[.]” Reply Br. at 4. None of these allegations appear in Ms. Borsody’s complaint. In any event, assertions “raised by an appellant for the first time on appeal in a reply brief are generally deemed waived,” and so “we will not consider the arguments [Ms. Borsody] raised for the first time in h[er] reply brief.” Wheeler v. C.I.R., 521 F.3d 1289, 1291 (10th Cir. 2008).
17 Appellate Case: 25-3205 Document: 17 Date Filed: 06/15/2026 Page: 18
IV
Ms. Borsody next argues the district court erred by denying her leave
to amend the complaint under Rule 15(a)(2). Recall, the district court
concluded amendment “would be futile because [Ms. Borsody’s] deficiencies
with failure to exhaust as to the correct defendant are not curable.” RI.153.
We cannot say amendment would necessarily be futile. But affirmance is
still required because, as the district court observed, Ms. Borsody failed to
explain how she would amend her complaint to show the identity-of-interest
exception was satisfied.
“We usually review the denial of leave to amend a complaint under
the abuse-of-discretion standard.” Castanon v. Cathey, 976 F.3d 1136, 1144
(10th Cir. 2020). But when, as here, “a district court denies leave to amend
because amendment would be futile, ‘our review for abuse of discretion
includes de novo review of the legal basis for the finding of futility.’” Id.
(quoting Miller ex rel. S.M. v. Bd. of Educ. of Albuquerque Pub. Schs., 565
F.3d 1232, 1249 (10th Cir. 2009)).
District courts “should freely give leave [to amend] when justice so
requires.” Fed. R. Civ. P. 15(a)(2); see Hall, 935 F.3d at 1110 n.3 (noting pro
se plaintiffs must have a “reasonable opportunity to remedy the defects in
their pleadings”). “The liberal granting of motions for leave to amend
18 Appellate Case: 25-3205 Document: 17 Date Filed: 06/15/2026 Page: 19
reflects the basic policy that pleadings should enable a claim to be heard on
its merits.” Calderon v. Kan. Dep’t of Soc. & Rehab. Servs., 181 F.3d 1180,
1186 (10th Cir. 1999). Our “liberal policy” of permitting amendment “is not
without limits.” Albers v. Bd. of Cnty. Comm’rs of Jefferson Cnty., 771 F.3d
697, 706 (10th Cir. 2014). “[E]ven though pro se parties generally should be
given leave to amend, it is appropriate to dismiss without allowing
amendment ‘where it is obvious that the plaintiff cannot prevail on the facts
[s]he has alleged and it would be futile to give [her] an opportunity to
amend.’” Knight v. Mooring Cap. Fund, LLC, 749 F.3d 1180, 1190 (10th Cir.
2014) (alterations in original). “A proposed amendment is futile if the
complaint, as amended, would be subject to dismissal.” United States ex rel.
Barrick v. Parker-Migliorini Int’l, LLC, 878 F.3d 1224, 1230 (10th Cir. 2017)
(quoting Barnes v. Harris, 783 F.3d 1185, 1197 (10th Cir. 2015)).
As particularly relevant here, “a request for leave to amend must give
adequate notice to the district court and to the opposing party of the basis
of the proposed amendment[.]” Calderon, 181 F.3d at 1186–87. “Without
this information the district court is not required to recognize, let alone
grant, a motion to amend.” Hall v. Witteman, 584 F.3d 859, 868 (10th Cir.
2009). We have made clear that “a bare request to amend in response to a
motion to dismiss is insufficient to place the court and opposing parties on
19 Appellate Case: 25-3205 Document: 17 Date Filed: 06/15/2026 Page: 20
notice of the plaintiff’s request to amend and the particular grounds upon
which such a request would be based.” Albers, 771 F.3d at 706.
Ms. Borsody argues the district court “[v]iolated [her] [r]ights as a
[p]ro [s]e [l]itigant” and “denied” her the benefit of Rule 15(a)(2)’s liberal
policy. Op. Br. at 13 (bolding omitted). She claims “amendment could have
resolved any naming or procedural concerns.” Op. Br. at 13. In Ms.
Borsody’s view, “the record contains substantial evidence of operational and
management overlap between” Frontier and Michaels, and “[a] modest
amendment (adding more detail, clarifying naming, or supplementing with
further evidence) could have easily cured any perceived deficiency and
allowed for merits-based adjudication.” Reply Br. at 3–4. For its part,
Frontier contends “there are no facts that [Ms. Borsody] could plead that
would ‘cure’ her failure to exhaust administrative remedies against
Frontier[.]” 10 Resp. Br. at 13.
10 Frontier also contends Ms. Borsody “is now out of time to file a charge
of discrimination against Frontier” because more than 300 days have passed since the discriminatory conduct alleged in her complaint. Resp. Br. at 12. We agree the 300-day window for filing a discrimination charge properly naming Frontier as a respondent has long since expired. In other words, Ms. Borsody cannot simply refile a discrimination charge against Frontier. But that is beside the point when it comes to assessing whether it would be futile to grant leave to amend Ms. Borsody’s complaint because there is an identity of interest between Frontier and Michaels. 20 Appellate Case: 25-3205 Document: 17 Date Filed: 06/15/2026 Page: 21
Unlike the district court, we cannot say amendment would be futile.
If Ms. Borsody’s amended complaint plausibly established a connection
between Frontier and Michaels under the identity-of-interest factors, her
“complaint, as amended, would [not] be subject to dismissal.” Barrick, 878
F.3d at 1230 (quoting Barnes, 783 F.3d at 1197). The real problem for Ms.
Borsody—as the district court aptly observed—is she “provide[d] no
indication of how she could plead facts that would avoid the exhaustion
defense.” RI.153. In other words, Ms. Borsody failed to explain what she
would add to the complaint that would make any difference. See Moya v.
Garcia, 895 F.3d 1229, 1239 (10th Cir. 2018) (concluding the district court
did not abuse its discretion by denying leave to amend because plaintiffs
“did not say how they could cure th[e] pleading defect” and “did not tell the
district court what they could have added to” the complaint). In the district
court, Ms. Borsody indicated only that amendment would allow her to
“clarify the relationship between Frontier and The Michaels Organization”
and “assert additional facts supporting exhaustion.” RI.76. Without more,
this is the kind of “bare request” we have found “insufficient” to place the
district court and the opposing party on notice of “the particular grounds”
for the proposed amendment. Albers, 771 F.3d at 706.
Accordingly, we discern no reversible error in the district court’s
decision to deny Ms. Borsody leave to amend her complaint.
21 Appellate Case: 25-3205 Document: 17 Date Filed: 06/15/2026 Page: 22
V
Finally, Ms. Borsody challenges the district court’s denial of her
motion for Rule 11 sanctions, motion for entry of default, and motion for
default judgment. 11 We review the district court’s Rule 11 determination for
an abuse of discretion. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405
(1990). We also review its default rulings for an abuse of discretion. See
Ashby v. McKenna, 331 F.3d 1148, 1151–52 (10th Cir. 2003) (entry of
default); Bixler v. Foster, 596 F.3d 751, 761 (10th Cir. 2010) (default
judgment). Once again, we discern no error.
With respect to sanctions, Ms. Borsody claims she “satisfied
[Rule 11’s] requirements” because her motion “was filed separately,
described the conduct at issue, and allowed time for correction.” Op. Br. at
15. Ms. Borsody contends the district court’s “denial of sanctions for lack of
notice was factually incorrect and procedurally unjustified.” Op. Br. at 15.
But the district court did not deny Ms. Borsody’s motion for sanctions on
11 Although Ms. Borsody twice moved for entry of default and default
judgment—first in July 2025 and then again in October 2025—the section of her opening brief arguing for reversal as to the denial of the default motions discusses only the July motions. Ms. Borsody does not identify any difference between the motions filed in July and the motions filed in October—or the district court’s treatment of those motions—relevant to this appeal. Nor do we see any difference. When discussing the default motions, we discuss only the district court’s denial of the July motions. 22 Appellate Case: 25-3205 Document: 17 Date Filed: 06/15/2026 Page: 23
procedural grounds like “lack of notice.” It denied her motion because
Frontier never violated Rule 11(b).
Rule 11(b)(1) states that by filing a pleading, a party certifies “it is
not being presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation[.]” Fed. R.
Civ. P. 11(b)(1). Ms. Borsody premised her request for sanctions on her
belief that Frontier’s motions to dismiss “serve[d] no purpose but delay.”
RI.116. The district court rejected this argument, ruling Ms. Borsody was
“mistaken” in characterizing Frontier’s “assertion of a procedural defense”
as “somehow wrongful.” RI.153. Ms. Borsody does not challenge that
determination on appeal. Nor could she. Nothing in the record suggests
Frontier’s motions to dismiss were submitted for any improper purpose.
Both were timely assertions of good-faith defenses to Ms. Borsody’s
complaint. 12 The district court did not abuse its discretion by denying Ms.
Borsody’s motion for Rule 11 sanctions.
We next turn to Ms. Borsody’s motions for entry of default and default
judgment. She claims Frontier defaulted because it failed to file a timely
12 In any event, Ms. Borsody did not satisfy Rule 11’s requirements because she failed to move for sanctions “separately from any other motion[.]” FED. R. CIV. P. 11(c)(2). Ms. Borsody instead filed a combined motion for entry of default and sanctions.
23 Appellate Case: 25-3205 Document: 17 Date Filed: 06/15/2026 Page: 24
answer after being served with the complaint on July 7, 2025. The district
court rejected this argument, and so do we.
Frontier’s motion to dismiss tolled the responsive pleading deadline.
See Marquez v. Cable One, Inc., 463 F.3d 1118, 1120 (10th Cir. 2006) (noting
the filing of a Rule 12(b) motion “toll[s] the time to answer”). And once the
district court granted the motion to dismiss, Frontier did not need to file an
answer at all. Entry of default against Frontier “before it had any obligation
to file an answer[] would have been incorrect as a matter of law.” Ashby,
331 F.3d at 1152. Nor, by extension, could the district court have entered a
default judgment. See Choice Hospice, Inc. v. Axxess Tech. Sols., Inc., 125
F.4th 1000, 1005 n.1 (10th Cir. 2025) (explaining that a party applies for
default judgment only “[a]fter default is entered”). Frontier correctly argues
“it was never in default” because its motion to dismiss “was timely and
procedurally proper[.]” Resp. Br. at 15. The district court did not abuse its
discretion by denying Ms. Borsody’s motions for entry of default and default
judgment. 13
13 Ms. Borsody also contends the district court engaged in “unequal enforcement of procedural rules and judicial bias against [her] as a pro se litigant.” Op. Br. at 15. She failed to preserve this argument. At no point in the district court did Ms. Borsody mention judicial bias or move for recusal. We typically would review this argument for plain error. United States v. Nickl, 427 F.3d 1286, 1297–98 (10th Cir. 2005) (reviewing judicial-bias claim for plain error because defendant did not move for recusal during trial). Because Ms. Borsody fails to request plain-error review, however, we “decline to review the 24 Appellate Case: 25-3205 Document: 17 Date Filed: 06/15/2026 Page: 25
VI
We AFFIRM the district court’s judgment in all respects.
Entered for the Court
Veronica S. Rossman Circuit Judge
issue at all—for plain error or otherwise.” United States v. Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019). In any event, our independent review of the record shows the district court did not engage in unequal treatment or bias against Ms. Borsody. 25