Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024Page: 1
FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
September 10, 2024
UNITED STATES COURT OF APPEALS
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
COREY MCNELLIS,
Plaintiff - Appellant,
v. No. 23-1306
DOUGLAS COUNTY SCHOOL
DISTRICT,
Defendant - Appellee.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:22-CV-01636-RM-STV)
_________________________________
Spencer J. Kontnik, Kontnik | Cohen, LLC, Denver, Colorado, for Plaintiff-Appellant.
Jonathan P. Fero (Michael Brent Case with him on the brief), Semple,
Farrington, Everall & Case, P.C., Denver, Colorado, for Defendant-Appellee.
_________________________________
Before HARTZ, BACHARACH, and ROSSMAN, Circuit Judges.
_________________________________
ROSSMAN, Circuit Judge.
_________________________________
Plaintiff Corey McNellis is a former Athletic Director and Assistant
Principal of a high school within Defendant Douglas County School District
Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 2
(DCSD). In a staff email chain, he expressed reservations about an
extracurricular activity at the school—an upcoming performance of The
Laramie Project—and offered to add a “Christian perspective” to the
theatrical production. Shortly thereafter, he was placed on administrative
leave, investigated, and ultimately terminated.
Mr. McNellis sued DCSD in federal district court in Colorado. In his
complaint,1 Mr. McNellis brought a First Amendment retaliation claim
under 42 U.S.C. § 1983 and religious discrimination and retaliation claims
under Title VII and Colorado law. The district court dismissed the case
under Federal Rule of Civil Procedure 12(b)(6). Exercising jurisdiction
under
28 U.S.C. § 1291, we reverse the dismissal of Mr. McNellis’s
discrimination claims under Title VII and the Colorado Anti-Discrimination
Act (CADA) and remand for further proceedings. We otherwise affirm.
I
A
Mr. McNellis worked for fourteen years at Ponderosa High School in
Douglas County.2 At the time of the events alleged in Mr. McNellis’s
1 By “complaint,” we refer to the operative first amended complaint.
2 Because the appeal before us concerns a motion to dismiss, we take
the facts from Mr. McNellis’s complaint.
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complaint, he served as the Athletic Director and Assistant Principal.
Mr. McNellis was also the father of a Ponderosa High School student.
“Throughout his employment with DCSD,” Mr. McNellis alleged, “[he] had
consistently received excellent performance reviews,” and, before the events
underlying this lawsuit, had “never received disciplinary action.” App. at 94
¶¶ 45–46.
Mr. McNellis was a member of the school’s Administrative Team,
along with the school principal, Mr. Ottmann, and other assistant
principals. The Administrative Team met “once a week to discuss any issues
that may arise with respect to extracurricular activities.” App. at 94 ¶ 42.
They did not, however, “debate, discuss, or otherwise address the issues
under their purview in a public forum or with the entire staff at Ponderosa.”
App. at 94 ¶ 43. Nor was the Administrative Team “responsible for
determining the content of the school plays that were produced by the
theatre department.” App. at 94 ¶ 44.
On October 2, 2020, the school theatre director, Kayla Diaz, emailed
the entire staff at Ponderosa High School, including Mr. McNellis, about an
upcoming school play. The email said the school’s theatre department would
perform The Laramie Project later that month. The Laramie Project “depicts
the aftermath of the 1998 murder of Matthew Shepard in Laramie,
Wyoming,” which “is widely acknowledged to have been a hate crime
3
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motivated by Shepherd’s sexuality.” App. at 95 ¶ 54. In her email, Ms. Diaz
wrote,
[O]ur new Technical Theatre teacher . . . and I selected The
Laramie Project for our first production of the year . . . . We
predicted that our students would want to learn about this story
and participate in meaningful dialogue during a time when they
may feel stuck and powerless [due to the COVID-19
pandemic]. . . .
I am very proud of the maturity and responsibility these
students have taken on to learn about the history of this event
and to bring the story of Laramie into our theater. I know that
your support means a lot to them. . . .
Due to the language and the content discussed in the show
(there is no violence shown, only discussed) this is not a familyfriendly show. We are advertising “For mature audiences” and I
would generally recommend high school age and up. We will be
reaching out more soon about advertising in the school, but it is
important that I can answer any questions you may have and
that you are aware of the nature of the play so that if we have
students who have an aggressively adverse reaction to our show
choice that you can support us in helping students understand.
This is a play about perspectives, and we would not want anyone
in the school to believe that we are making a statement against
anything other than hate and violence.
App. at 137–38.3 Mr. McNellis responded in an email,
3 Mr. McNellis described the staff email chain and several of the
individual emails in his complaint. But he did not quote the full email chain
or attach a copy of it to his complaint. “Generally, the sufficiency of a
complaint [under Rule 12(b)(6)] must rest on its contents alone.” Gee v.
Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). If a district court looks
outside the contents of the complaint, “it must convert the Rule 12(b)(6)
motion to a motion for summary judgment, giving proper notice to the
parties.”
Id. “But there are exceptions to this rule.” Toone v. Wells Fargo
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Thanks Kayla, I appreciate the email and I really do admire the
hard work that you do. As a Dad of a student here and also as
an employee in the school, what is my recourse if I disagree with
the production? Was this a heads up to see if everyone is cool?
App. at 138. Several other teachers joined the email conversation. One
teacher thought the show “closely connects to Ponderosa High School’s core
values of kindness, empathy, and respect.” App. at 138. Another added “[a]s
a history teacher I’m glad to hear that our students are engaging with
important historical events across subject areas,” while a social studies
teacher explained the play “pushes students to think critically about our
society.” App. at 139. Another teacher wrote, “I’ve used [the play] in
conjunction with ‘To Kill a Mockingbird’; it is powerful, thought provoking,
and reflective.” App. at 142. And one teacher expressed support for
Bank, N.A., 716 F.3d 516, 521 (10th Cir. 2013); see also Gee,
627 F.3d
at 1186. “Courts are permitted to review ‘documents referred to in the
complaint if the documents are central to the plaintiff's claim and the
parties do not dispute the documents’ authenticity.’” Toone,
716 F.3d at 521
(quoting Gee,
627 F.3d at 1186).
Here, DCSD attached a copy of the email chain to its motion to
dismiss. The district court reasoned the contents of that exchange were
central to Mr. McNellis’s claims and undisputed by the parties. The district
court found it “may consider the email exchange . . . without converting the
Motion into a motion for summary judgment.” App. at 193 n.1. On appeal,
the parties do not challenge the district court’s reliance on the full text of
the email chain. In considering this appeal, we likewise rely on the
undisputed full text of the email exchange attached to DCSD’s motion to
dismiss. See Toone, 716 F.3d at 521 (“[W]e examine the document itself,
rather than the complaint’s description of it.”).
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“expos[ing] our students to the wide variety of perspectives that we all
have,” because “[n]ot everyone has to agree with every ideology that exists,
but it is the discourse that is invoked that matters.” App. at 140.
Mr. McNellis sent three more emails as part of this conversation.
“As a [C]hristian I would love to collaborate with your project.
Please let me know if the love that Jesus can provide will help
your play,” App. at 140;
“For the record, all of administration does not agree with me on
this. I am totally solo. Good night Mustangs!” App. at 141; and
“I understand people support this. Forgive me for having a
different viewpoint and the audacity to publicly share it,”
App. at 143.
The email chain about The Laramie Project was then shared with
Mr. Ottmann, DCSD’s Human Resources Director, Cathy Franklin, and the
Director of Schools, Daniel Winsor.
The next day, Mr. Winsor “called Mr. McNellis and informed him that
[he] needed to stay home on Monday . . . . because of his ‘religious
comments.’” App. at 97 ¶¶ 67, 70. Mr. Winsor told Mr. McNellis “nothing
was unprofessional” and “he did not need to worry.” App. at 97 ¶¶ 70, 72.
Mr. McNellis believed he was being treated differently based on his
“religious comments” about The Laramie Project. App. at 97 ¶ 71.
A few days later, on October 5, 2020, Ms. Franklin, Mr. Winsor, and
Mr. Ottmann met with Mr. McNellis. They explained to Mr. McNellis that
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DCSD was investigating him for his “religious comments,” App. at 98 ¶ 80,
and he would be placed on administrative leave during the investigation.
Mr. McNellis “objected to Defendant’s conduct during the [m]eeting because
he did not feel comfortable with the way the meeting went.” App. at 98 ¶ 83.
While on leave, Mr. McNellis “complained to Principal Ottmann” and
“several co-workers” that he was being investigated “based on his Christian
beliefs.” App. at 100 ¶¶ 95–96.
During DCSD’s investigation, it “received a complaint from a teacher
claiming that Mr. McNellis was part of a good ole boys club,” along with
other male teachers and administrators. App. at 100 ¶ 101. Unlike
Mr. McNellis, those other staff members were not investigated, placed on
leave, or disciplined. The investigation also uncovered “a single email
indicating that Mr. McNellis had complained ‘as a parent’ about [the
school’s] communications regarding its COVID safety protocols.” App.
at 101 ¶ 106. On October 29, 2020, at the end of the investigation, DCSD
terminated Mr. McNellis’s employment. According to Mr. McNellis,
“Defendant directly cited Mr. McNellis’ emails regarding The Laramie
Project as the reason for his termination.” App. at 101 ¶ 114.
On July 1, 2022—nearly two years after Mr. McNellis’s termination—
Mr. Ottmann wrote a letter addressed “To Whom It May Concern . . . on
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behalf of Corey McNellis, a lifelong friend and colleague.”4 App. at 145.
Mr. Ottmann stated he “didn’t feel comfortable” writing this letter while
still employed by DCSD, but since he had just retired, he was “finally able
to give [his] perspective on what happened to [Mr. McNellis].” App. at 145.
Mr. Ottmann wrote,
In October 2020, [Mr. McNellis] responded to an email from our
theater teacher regarding the play “The Laramie Project[.”] He
was concerned about the negative portrayal of Christians within
the play and asked to have a conversation with our theater
teacher. Unfortunately, certain people within the building felt
like his email was inappropriate and contacted Human
Resources. The contents of the email w[ere] eventually the
catalyst for his firing, which I thought went too far. I felt like a
“Letter of Reprimand” would have been appropriate, along with
a conversation and perhaps an apology. I later learned that a
specific group of people “piled on” the complaints about
[Mr. McNellis], which played into the decision to ultimately
terminate him as a DCSD employee.”
I truly believe that [Mr. McNellis] was “railroaded” by the
specific group of people based on his political and religious
views. In my opinion, his firing was unjust and unfair, and
unfortunately, even though I was the principal, I couldn’t save
him because it wasn’t my decision to make.
4 The complaint does not specify to whom Mr. Ottmann sent the letter.
In its motion to dismiss, DCSD explained Mr. Ottmann “wrote [the] letter
to the District.” App. at 117. Mr. McNellis does not claim otherwise.
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App. at 145–46.5 That same day, Mr. McNellis sued DCSD in federal district
court.
Mr. McNellis asserted these claims: (1) free speech retaliation under
42 U.S.C. § 1983; (2) discrimination in violation of Title VII and CADA; and
(3) retaliation in violation of Title VII and CADA. DCSD moved to dismiss
under Federal Rule of Civil Procedure 12(b)(6). The district court granted
the motion, concluding Mr. McNellis stated no plausible claims. This timely
appeal followed.
II
Mr. McNellis contends the district court erroneously dismissed his
lawsuit. “We review de novo the dismissal of a complaint under Federal
Rule of Civil Procedure 12(b)(6) for failure to state a claim for which relief
can be granted.” Reznik v. inContact, Inc., 18 F.4th 1257, 1260 (10th Cir.
2021) (citing Khalik v. United Air Lines,
671 F.3d 1188, 1190 (10th Cir.
2012)). In evaluating a motion to dismiss, “the court must take as true ‘[a]ll
5As with the staff email chain, Mr. McNellis referred to
Mr. Ottmann’s letter in his complaint but did not quote the letter in full or
attach a copy of it to his complaint. DCSD, however, attached a copy of the
letter to its motion to dismiss. The district court considered the full contents
of the letter in ruling on the motion to dismiss, acknowledging “[t]he letter
is referred to in the Complaint” and the parties do not dispute its
authenticity. App. at 203 n.2 (citing Toone, 716 F.3d at 521). We do the same
and for the same reasons. See Gee,
627 F.3d at 1186.
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well-pleaded facts, as distinguished from conclusory allegations,’ view all
reasonable inferences in favor of the nonmoving party, and liberally
construe the pleadings.” Id. (alteration in original) (quoting Ruiz v.
McDonnell,
299 F.3d 1173, 1181 (10th Cir. 2002)). “Still, [a] complaint
cannot rely on labels or conclusory allegations—a ‘formulaic recitation of
the elements of a cause of action will not do.’” Greer v. Moon,
83 F.4th 1283,
1292 (10th Cir. 2023), cert. denied, No. 23-958,
2024 WL 2116298 (U.S.
May 13, 2024) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555
(2007)); Matney v. Barrick Gold of N. Am.,
80 F.4th 1136, 1144 (10th Cir.
2023) (“A conclusory allegation is one in which an inference is asserted
without stating underlying facts or including any factual enhancement.”
(internal quotation marks omitted)). Rather, “[t]o withstand a motion to
dismiss, a plaintiff must plead sufficient factual allegations ‘to state a claim
to relief that is plausible on its face.’” Reznik,
18 F.4th at 1260 (quoting
Twombly,
550 U.S. at 570).
We consider each of Mr. McNellis’s claims in turn. Ultimately, we
affirm the dismissal of Mr. McNellis’s free speech retaliation claim brought
under 42 U.S.C. § 1983 and retaliation claims brought under Title VII and
CADA. But we conclude Mr. McNellis stated a plausible discrimination
claim under Title VII and CADA, so we reverse the district court’s contrary
ruling.
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A
Mr. McNellis alleged his emails about The Laramie Project were an
exercise of “his right to free speech under the First Amendment to the U.S.
Constitution.” App. at 107 ¶ 154. According to Mr. McNellis, DCSD
retaliated against him for exercising his First Amendment free speech
rights by placing him on administrative leave and ultimately terminating
his employment. Mr. McNellis sought relief for this alleged retaliation
under 42 U.S.C. § 1983. See
id. (providing “[e]very person who, under color
of [the law] . . . subjects . . . any citizen of the United States . . . to the
deprivation of any rights . . . secured by the Constitution and laws, shall be
liable to the party injured in an action at law”); see also, e.g., Pryor v. Sch.
Dist. No. 1,
99 F.4th 1243, 1250 (10th Cir. 2024) (“Plaintiff claims
Defendants—acting under color of law—retaliated against him for speech
that the First Amendment protects, violating his constitutional rights.”).
1
“The elements of a First Amendment retaliation claim differ
depending on whether the speaker is employed by the alleged retaliator.”
Pryor, 99 F.4th at 1250. The parties agree that as an employee of DCSD—a
public school district—Mr. McNellis is a “public employee.” See Bailey v.
Ind. Sch. Dist. No. 69 of Canadian Cnty. Okla.,
896 F.3d 1176, 1179 (10th
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Cir. 2018) (describing employee of a public school district as a “public
employee”).
In the case of public employees, there is “inherent tension between an
employee’s right to free speech and the government employer’s right to
exercise ‘a significant degree of control over their employees’ words and
actions.’” Rohrbough v. Univ. of Colo. Hosp. Auth., 596 F.3d 741, 745 (10th
Cir. 2010) (quoting Garcetti v. Ceballos,
547 U.S. 410, 418 (2006)). “When a
citizen enters government service, the citizen by necessity must accept
certain limitations on his or her freedom.” Brammer-Hoelter v. Twin Peaks
Charter Acad.,
492 F.3d 1192, 1202 (10th Cir. 2007) (quoting Garcetti,
547 U.S. at 418). “At the same time, the [Supreme] Court has recognized
that a citizen who works for the government is nonetheless a citizen.”
Garcetti,
547 U.S. at 419. Thus, “[t]he First Amendment limits the ability
of a public employer to leverage the employment relationship to restrict,
incidentally or intentionally, the liberties employees enjoy in their
capacities as private citizens.”
Id.
When, as here, a public employee brings a free speech retaliation
claim against his employer, we apply the “familiar five-part
Garcetti/Pickering test.” Duda v. Elder, 7 F.4th 899, 910 (10th Cir. 2021).
That test, derived from Garcetti v. Ceballos,
547 U.S. 410 (2006) and
Pickering v. Board of Education,
391 U.S. 563 (1968), looks to whether
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(1) the speech was made pursuant to the employee’s official
duties, (2) the speech was on a matter of public concern, (3) the
government’s interests as an employer in promoting efficient
public service outweigh a plaintiff’s free speech interests, (4) the
speech was a motivating factor in the adverse employment
action, and (5) the same employment decision would have been
made without the protected speech.
Roberts v. Winder, 16 F.4th 1367, 1381 (10th Cir. 2021). “The test balances
‘the interests of the [employee], as a citizen, in commenting upon matters
of public concern and the interest of the State, as an employer, in promoting
the efficiency of the public services it performs through its employees.’”
Duda, 7 F.4th at 910–11 (alteration in original) (quoting Pickering,
391 U.S.
at 568). These five factors are “essential elements” of a First Amendment
retaliation claim brought by public employees under § 1983. Tufaro v. Okla.
ex rel. Bd. of Regents of Univ. of Okla.,
107 F.4th 1121, 1138 (10th Cir.
2024). “The first three steps are to be resolved by the district court, while
the last two are ordinarily for the trier of fact.” Brammer-Hoelter,
492 F.3d
at 1203. “To prevail, a plaintiff must show all five elements.”6 Duda, 7 F.4th
at 911.
6 Of course, at the Rule 12(b)(6) stage, “show” means plausibly allege,
not conclusively prove. But the failure to plausibly allege any one of the
Garcetti/Pickering elements is fatal. See Morris v. City of Colo. Springs,
666 F.3d 654, 663 (10th Cir. 2012) (affirming dismissal of First Amendment
retaliation claim where plaintiff failed to plausibly allege the second
element); Lincoln v. Maketa,
880 F.3d 533, 539 (10th Cir. 2018) (finding, at
12(b)(6) stage, alleged retaliation would not have violated a clearly
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2
The district court concluded Mr. McNellis failed to plausibly allege
the first, second, and fourth elements of the Garcetti/Pickering test.7 As to
the first element, the district court found Mr. McNellis’s emails about The
Laramie Project “were made pursuant to his official duties.” App. at 198.
And “Plaintiff’s professed disagreement with the play,” the district court
reasoned, “is a matter of personal, rather than public concern.” App. at 200.
As to the fourth element, the district court found the complaint “lacks
factual allegations that would establish that Plaintiff’s emails were a
motivating factor in his firing.” App. at 200.
On appeal, Mr. McNellis urges reversal, contending his speech was
not made pursuant to his official duties and involved a matter of public
concern. Mr. McNellis also maintains he sufficiently alleged his emails were
established constitutional right where one plaintiff arguably did not
plausibly allege the first element and another plaintiff arguably did not
plausibly allege the fourth element).
7 Because we conclude Mr. McNellis has failed to plausibly allege his
speech was made in his capacity as a private citizen, we do not reach the
parties’ arguments about the remaining elements of the Garcetti/Pickering
test. See Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192,
1202 (10th Cir. 2007) (“If the employee speaks pursuant to his official
duties, then there is no constitutional protection because the restriction on
speech ‘simply reflects the exercise of employer control over what the
employer itself has commissioned or created.’” (quoting Garcetti v. Ceballos,
547 U.S. 410, 422 (2006))).
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a motivating factor in DCSD’s decision to terminate him. We discern no
error in the district court’s decision to dismiss Mr. McNellis’s First
Amendment retaliation claim. Mr. McNellis falters at the first step of the
Garcetti/Pickering test: he has not plausibly alleged that, in his emails with
school staff about The Laramie Project, he was speaking as a private citizen
and not as an employee of DCSD.
Our precedents “have taken a broad view of the meaning of speech
that is ‘pursuant’ to an employee’s ‘official duties.’” Thomas v. City of
Blanchard, 548 F.3d 1317, 1324 (10th Cir. 2008) (internal quotation marks
omitted). “These decisions, however, have not developed a set of bright line
rules to determine when an employee speaks pursuant to her official duties
for the purposes of Garcetti/Pickering.” Rohrbough, 596 F.3d at 746. Rather,
we use “a case-by-case approach, looking both to the content of the speech,
as well as the employee’s chosen audience, to determine whether the speech
is made pursuant to an employee’s official duties.” Id.
“Merely because an employee’s speech was made at work and about
work does not necessarily remove that employee’s speech from the ambit of
constitutional protection.” Thomas, 548 F.3d at 1323. Instead, “speech is
made pursuant to official duties if it is generally consistent with ‘the type
of activities [the employee] was paid to do.’” Brammer-Hoelter,
492 F.3d
at 1203 (alteration in original) (quoting Green v. Bd. of Cnty. Comm’rs,
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472 F.3d 794, 801 (10th Cir. 2007)). “[I]f an employee engages in speech
during the course of performing an official duty and the speech reasonably
contributes to or facilitates the employee’s performance of the official duty,
the speech is made pursuant to the employee’s official duties.”
Id. “The
ultimate question is whether the employee speaks as a citizen or instead as
a government employee—an individual acting ‘in his or her professional
capacity.’”
Id. (quoting Garcetti,
547 U.S. at 422).
DCSD contends Mr. McNellis’s speech about The Laramie Project
“was made as part of his assigned responsibilities” and to “perform[] a task
he was paid to do.” Resp. Br. at 10. We agree.
Recall, Mr. McNellis alleged his duties as a member of the
Administrative Team included “meet[ing] once a week to discuss any issues
that may arise with respect to extracurricular activities.” App. at 94 ¶ 42
(emphasis added). As DCSD persuasively argues, Mr. McNellis’s “email
responses to Ponderosa staff regarding The Laramie Project fall squarely
within that duty.” Resp. Br. at 11. Ms. Diaz contacted school staff about the
upcoming performance of The Laramie Project so she could “answer any
questions [staff] may have” and make staff “aware of the nature of the play
so that if we have students who have an aggressively adverse reaction to
our show choice that you can support us in helping students understand.”
App. at 138. And the email thread garnered several staff responses bearing
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on the relationship between the school’s production of The Laramie Project
and school policies and subjects. See App. at 138–43 (emails describing the
play’s consistency with the school’s “core values” and “anti-bullying
program”; offering to assist by providing a “Social Studies perspective” to
the play’s “engag[ement] with important historical events across subject
areas”; and explaining teachers have “used [The Laramie Project] in
conjunction with ‘To Kill a Mockingbird’”). Mr. McNellis was, as DCSD
points out, “directly responding to” an email conversation about issues
arising out of the extracurricular performance. Resp. Br. at 12.
The question remains whether Mr. McNellis’s speech was made
“during the course of performing an official duty.” Brammer-Hoelter,
492 F.3d at 1203. Considering the substance of his emails, we conclude the
answer is yes. Mr. McNellis replied to Ms. Diaz’s email, asking “[a]s a Dad
of a student here and also as an employee in the school, what is my recourse
if I disagree with the production?” and stating he wished to “collaborate” so
“the love that Jesus can provide will help your play.” App. at 138, 140
(emphasis added). In other words, Mr. McNellis, pursuant to his official
duties, raised concerns about an extracurricular activity at the school—
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precisely the sort of thing he was paid to do.8 See Brammer-Hoelter,
492 F.3d at 1203. (“[I]f an employee engages in speech during the course of
performing an official duty and the speech reasonably contributes to or
facilitates the employee’s performance of the official duty, the speech is
made pursuant to the employee’s official duties.”). We therefore have no
trouble concluding Mr. McNellis was speaking not as an ordinary citizen
but “in his . . . professional capacity.” Garcetti,
547 U.S. at 422.
Our conclusion is bolstered by looking at who was on the receiving end
of Mr. McNellis’s emails. “Regarding the employee’s chosen audience, or
chosen method of disseminating speech, the court has . . . refrained from
establishing per se rules for determining whether speech is made pursuant
to an employee’s official duties.” Rohrbough, 596 F.3d at 747. But we have
8 DCSD appears also to contend Mr. McNellis’s speech was made
pursuant to his official duties, relying on a list of employee responsibilities
found in a DCSD personnel document. See Resp. Br. at 11 (describing
Mr. McNellis’s job duties as including “coordinating effective
communication strategies among students, community members and
staff”); App. at 135 (listing employee’s responsibility to “[c]oordinate
effective communications strategies among the students, the community,
the faculty, and the administration”). This personnel document, as
Mr. McNellis correctly points out, was attached as an exhibit to DCSD’s
motion to dismiss. The exhibit was not incorporated by reference into
Mr. McNellis’s complaint, and DCSD has not identified any basis under
which we could consider it. See Gee, 627 F.3d at 1186 (listing exceptions to
the general rule that “the sufficiency of a complaint must rest on its
contents alone”). The district court did not consider the exhibit, and neither
do we.
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“observed that speech directed at an individual or entity outside of an
employee’s chain of command is often outside of an employee’s official
duties,” while “speech directed . . . within an employee’s chain of command
is often found to be pursuant to that employee’s official duties.” Id. (citing
cases).
As DCSD points out, “McNellis’s responses to Diaz’s email were . . . in
an internal email thread that only included Ponderosa staff.” Resp. Br.
at 12. While not dispositive, the staff-only nature of the email exchange
further suggests Mr. McNellis was speaking pursuant to his official duties.
See Knopf v. Williams, 884 F.3d 939, 945 (10th Cir. 2018) (describing “the
recipient of the employee’s speech” as “relevant” to the first
Garcetti/Pickering element but not dispositive on its own). The
circumstances before us are distinguishable from those in which an
employee was speaking as a private citizen. See, e.g., Pryor,
99 F.4th at 1251
(finding the first Garcetti/Pickering prong “weighs in Plaintiff’s favor”
where “Plaintiff voiced criticism through his personal Facebook page,
independent news outlets, and at public comment sessions—all forums
citizens often use for civic discourse”); Brammer-Hoelter,
492 F.3d at 1205
(finding some of the speech at issue “pass[ed] the first step of the
Garcetti/Pickering analysis” in part because “the discussions included
ordinary citizens and parents who were not employed by the [defendant]”).
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Accordingly, we agree with the district court that Mr. McNellis “has
not alleged facts that would satisfy the first prong of the Garcetti/Pickering
test.” App. at 199.
3
Mr. McNellis unsuccessfully attempts to resist this conclusion.
First, Mr. McNellis contends he was asking “about his recourse as a
‘Dad of a student’ if he disagreed with the production,” so he was speaking
purely as a citizen. Opening Br. at 10. Mr. McNellis was “merely
commenting on the play as a father and a Christian,” he insists, “which is
his prerogative as a parent and not part of his responsibilities as an
employee.” Opening Br. at 12. We are not persuaded.
Mr. McNellis’s decision to marshal his status as a parent when
participating in the staff email exchange is not insignificant. But
Mr. McNellis cites no authority suggesting his reference to being a “Dad of
a student” is necessarily dispositive of the first prong of the
Garcetti/Pickering test—particularly when he said he was also speaking “as
an employee in the school.” See App. at 138. The First Amendment inquiry
requires “a case-by-case approach,” Rohrbough, 596 F.3d at 746, and here,
when considering the substance and context of his speech in the totality,
Mr. McNellis’s self-identification as a parent does not change our conclusion
that he was speaking pursuant to his official duties as a DCSD employee.
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As the district court properly explained, there is no indication “Plaintiff’s
reference to his parental status suffices to establish that he was speaking
as a private citizen rather than a public employee” when he spoke from his
staff email address, to a staff-only audience, referencing his role as a staff
member.9 App. at 198.
Second, Mr. McNellis contends “to the extent there was any ambiguity
about the nature of his speech, McNellis followed up and explained that he
was acting alone.” Opening Br. at 10. In support, Mr. McNellis directs us to
his email stating “[f]or the record, all of administration does not agree with
me on this. I am totally solo.” Opening Br. at 10 (alteration in original)
(quoting App. at 141). This email, Mr. McNellis insists, indicates he was
speaking in his capacity as a private citizen. We disagree. At most, this
statement means precisely what it says: his colleagues on the
Administrative Team did not agree with Mr. McNellis on this matter.10
9Mr. McNellis notes “other staff commented on the play in their
capacity as parents.” Opening Br. at 12. But he does not explain how—if at
all—this fact changes the analysis, particularly when Mr. McNellis was
speaking pursuant to his official duties when he discussed potential issues
surrounding the school’s performance of The Laramie Project in a staff
email exchange.
10 Relatedly, Mr. McNellis faults the district court’s interpretation of
his “I am totally solo” email. In considering this email, the district court
explained “it could reasonably be interpreted to mean that he was speaking
as an administrator, albeit one without the full backing of the
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Finally, Mr. McNellis next contends the “well-pled facts . . . establish
that [his] responsibilities did not include commenting on or selecting the
play.” Opening Br. at 11. In support, he directs us to two allegations:
(1) “[t]he Administrative Team was not responsible for determining the
content of the school plays that were produced by the theatre department”;
and (2) “the ‘Administrative Team would not debate, discuss, or otherwise
address the issues under their purview in a public forum or with the entire
staff at Ponderosa.’” Opening Br. at 9 (alteration in original) (quoting App.
at 94 ¶¶ 43–44).
Mr. McNellis’s argument misunderstands the law. “An employee’s
official job description is not dispositive” of the question before us: “whether
the employee speaks ‘pursuant to [his] official duties.’” Brammer-Hoelter,
492 F.3d at 1203 (alteration in original) (quoting Garcetti,
547 U.S. at 421).
Indeed, “speech may be made pursuant to an employee’s official duties even
if it deals with activities that the employee is not expressly required to
perform.”
Id. We must ask whether the speech is “generally consistent with
Administrative Team.” App. at 198. Mr. McNellis says the district court
reversibly erred because it construed the email in favor of DCSD. It is true
that in reviewing an order on a motion to dismiss, we “view all reasonable
inferences in favor of the nonmoving party[] and liberally construe the
pleadings.” Reznik v. inContact, Inc.,
18 F.4th 1257, 1260 (10th Cir. 2021).
But applying this standard, no reasonable inference can be drawn in
Mr. McNellis’s favor, as we have already explained.
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‘the type of activities [the employee] was paid to do.’” Id. (alteration in
original) (quoting Green,
472 F.3d at 801). Here, as we have explained,
Mr. McNellis’s emails about The Laramie Project aligned with his duty to
“discuss any issues that may arise with respect to extracurricular activities”
in the Administrative Team’s weekly meetings. App. at 94 ¶ 42; see also
Brammer-Hoelter,
492 F.3d at 1203 (acknowledging speech may be made
under an employee’s official duties “even though the speech concerns an
unusual aspect of an employee’s job that is not part of his everyday
functions”).11
On de novo review, we cannot conclude Mr. McNellis spoke “as a
citizen” rather than a “government employee” when sending his emails to
DCSD staff about The Laramie Project. See Brammer-Hoelter, 492 F.3d
at 1203; see Thomas,
548 F.3d at 1323 (“[E]mployee speech that is made
11 For the first time in his reply brief, Mr. McNellis also insists
reversal is required because “the speech occurred after-hours,” the email
recipients were “outside of McNellis’ chain of command,” and the emails
“did not invoke his authority as an administrator.” Reply Br. at 3. “It is our
general rule . . . that arguments and issues presented at such a late stage
are waived.” Hill v. Kemp, 478 F.3d 1236, 1250 (10th Cir. 2007); see also
Bronson v. Swensen,
500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely
have declined to consider arguments that are not raised . . . in an appellant’s
opening brief.”). We will not address these belated contentions. In any
event, we note, as the district court did, “[e]mployees commonly read and
send work-related emails outside of work hours,” App. at 199, and
Mr. McNellis’s email signature identified himself as “Athletic
Director/Assistant Principal,” App. at 138, 140–41.
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‘pursuant’ to the employee’s professional duties is not accorded First
Amendment protection under Garcetti.”). We affirm the dismissal of
Mr. McNellis’s free speech retaliation claim.
B
We turn now to Mr. McNellis’s discrimination claims under Title VII
and CADA.
“Title VII makes it unlawful ‘to discharge any individual, or otherwise
to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s
. . . religion . . . .’” Khalik, 671 F.3d at 1192 (quoting 42 U.S.C. § 2000e-
2(a)(1)). Similarly, CADA forbids employers from “discharg[ing] . . . any
individual otherwise qualified because of . . . religion.”
Colo. Rev. Stat. § 24-
34-402. “Colorado and federal law apply the same standards to
discrimination claims.” Johnson v. Weld Cnty., Colo.,
594 F.3d 1202, 1219
n.11 (10th Cir. 2010).
“A plaintiff proves a violation of Title VII either by direct evidence of
discrimination or by following the burden-shifting framework of McDonnell
Douglas Corp. v. Green.” Khalik, 671 F.3d at 1192 (citing
411 U.S. 792
(1973)). We briefly describe these two paths, then explain their application
to the procedural posture of a motion to dismiss under Rule 12(b)(6).
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“Direct evidence is ‘[e]vidence, which if believed, proves [the]
existence of [a] fact in issue without inference or presumption.’” Shorter v.
ICG Holdings, Inc., 188 F.3d 1204, 1207 (10th Cir. 1999) (alterations in
original) (quoting Black’s Law Dictionary 460 (6th ed. 1990)), overruled on
other grounds by Desert Palace, Inc. v. Costa,
539 U.S. 90 (2003). For
example, “[s]tatements showing ‘an existing policy which itself constitutes
discrimination’ are direct evidence of discrimination.” Heim v. Utah,
8 F.3d
1541, 1546 (10th Cir. 1993) (quoting Ramsey v. City & Cnty. of Denver,
907
F.2d 1004, 1008 (10th Cir. 1990), cert denied,
506 U.S. 907 (1992)).
Statements that “require the trier of fact to infer that discrimination was a
motivating cause of an employment decision,” however, “are at most
circumstantial evidence of discriminatory intent.” EEOC v. Wiltel, Inc.,
81 F.3d 1508, 1514 (10th Cir. 1996). “Usually, . . . a plaintiff will not have
direct evidence of discrimination and will establish her claims through
circumstantial evidence.” Sanders v. Sw. Bell Tel., L.P.,
544 F.3d 1101, 1105
(10th Cir. 2008).
By contrast, “[u]nder McDonnell Douglas, a three-step analysis
requires the plaintiff first prove a prima facie case of discrimination.”
Khalik, 671 F.3d at 1192. “[T]he expression ‘prim[a] facie case’ in Title VII
litigation popularly refers to a common, but not exclusive, method of
establishing a triable issue of [employment] discrimination.” Volling v.
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Kurtz Paramedic Servs., 840 F.3d 378, 383 (7th Cir. 2016) (first alteration
in original) (quoting Loyd v. Phillips Bros. Inc.,
25 F.3d 518, 522 (7th Cir.
1994)). To set forth a prima facie case of discrimination, a plaintiff must
establish the elements of a Title VII discrimination claim. See Khalik,
671 F.3d at 1192; see also EEOC v. PVNF, L.L.C.,
487 F.3d 790, 800 (10th
Cir. 2007) (explaining a prima facie case of discrimination must consist of
evidence of the elements of the claim). “Only after the plaintiff clears this
initial hurdle does the burden shift to the employer to prove a ‘legitimate,
non-discriminatory reason for the adverse employment action.’” Barlow v.
C.R. Eng., Inc.,
703 F.3d 497, 505 (10th Cir. 2012) (quoting Khalik,
671 F.3d
at 1192). “If the defendant does so, the burden then shifts back to the
plaintiff to show that the plaintiff’s protected status was a determinative
factor in the employment decision or that the employer’s explanation is
pretext.” Khalik,
671 F.3d at 1192.
Of course, at the 12(b)(6) stage, a plaintiff need not conclusively prove
a violation of Title VII. And the McDonnell Douglas burden shifting
framework “does not create a pleading requirement.” Barrett v. Salt Lake
Cnty., 754 F.3d 864, 867 (10th Cir. 2014) (explaining McDonnell Douglas
applies “predominantly at summary judgment . . . to cases relying on
indirect proof of discrimination”). At the 12(b)(6) stage, the “plaintiff must
‘nudge [his] claims across the line from conceivable to plausible’ in order to
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survive a motion to dismiss.” Khalik, 671 F.3d at 1190 (alteration in
original) (quoting Twombly,
550 U.S. at 570). We therefore consider only
whether Mr. McNellis has “sufficiently stated . . . claims for relief” by
plausibly alleging either direct evidence of discrimination or a prima facie
discrimination claim. See Khalik,
671 F.3d at 1193; see also Reznik,
18 F.4th
at 1260 (explaining a plaintiff must “state a prima facie case” of her
Title VII claim to survive a Rule 12(b)(6) motion to dismiss).
Here, Mr. McNellis asserts the district court erred in dismissing his
discrimination claims because (1) “the allegations in the Amended
Complaint contain direct evidence of discrimination”; and (2) “there are
numerous allegations in the First Amended Complaint that establish a
prima facie case of discrimination.” Opening Br. at 22, 25. We are not
persuaded Mr. McNellis has alleged any facts that, if true, would constitute
direct evidence of discrimination. But we conclude Mr. McNellis has alleged
facts that, from circumstantial evidence, “give rise to a reasonable inference
of discrimination” based on his religion. See Bekkem v. Wilkie, 915 F.3d
1258, 1275 (10th Cir. 2019). We explain our reasoning as to each conclusion.
1
As for direct evidence, Mr. McNellis first points us to his allegations
that DCSD told him he was being investigated—and then ultimately
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terminated—for his religious comments in the email exchange with DCSD
staff about The Laramie Project. See App. at 98 ¶ 80 (“Ms. Franklin . . .
informed Mr. McNellis that Defendant was investigating him due to the
‘religious comments.’”); App. at 101 ¶ 114 (“Defendant directly cited
Mr. McNellis’s emails regarding The Laramie Project as the reason for his
termination.”). We cannot conclude Mr. McNellis has identified direct
evidence of discrimination. Based on the allegations, a factfinder still would
need to infer DCSD investigated and terminated plaintiff for his religious
beliefs, and not, for example, for making religious comments that might
have violated DCSD’s policies.
Next, Mr. McNellis says Mr. Ottmann’s letter is direct evidence of
discrimination. We disagree. Recall, Mr. Ottmann wrote,
The contents of [The Laramie Project emails were] eventually
the catalyst for his firing, which I thought went too far. I felt
like perhaps a “Letter of Reprimand” would have been
appropriate, along with a conversation and perhaps an apology.
I later learned that a specific group of people “piled on” the
complaints about [Mr. McNellis], which played into the decision
to ultimately terminate him as a DCSD employee.
I truly believe that [Mr. McNellis] was “railroaded” by this
specific group of people based on his political and religious
views. In my opinion, his firing was unjust and unfair, and
unfortunately, even though I was the principal, I couldn’t save
him because it wasn’t my decision to make.
App. at 145–146. Mr. Ottmann’s letter is plainly not “evidence of ‘an
existing policy which itself constitutes discrimination.’” Wiltel, 81 F.3d
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at 1514 (quoting Ramsey, 907 F.2d at 1008)). But according to Mr. McNellis,
the letter contains an admission DCSD terminated him “for his . . . ‘religious
views.’” Opening Br. at 23 (quoting App. at 102 ¶ 116). To be sure, the letter
suggests Mr. McNellis’s coworkers were motivated by his “political and
religious views” to complain about him while he was under investigation.
App. at 146. And those complaints “played into [DCSD’s] decision to
ultimately terminate him.” App. at 146. But Mr. Ottmann also opined that
some form of disciplinary action would have been “appropriate” under the
circumstances, proposing a letter of reprimand, a conversation about
Mr. McNellis’s behavior, and an apology. Still, Mr. Ottmann’s statements,
taken as true, “require the trier of fact to infer that discrimination was a
motivating cause of an employment decision.” Wiltel,
81 F.3d at 1514. We
thus conclude Mr. McNellis has not stated plausible Title VII and CADA
claims by alleging direct evidence of discrimination.
2
We next consider whether Mr. McNellis has plausibly alleged
circumstantial evidence of discrimination. In doing so, we consider the first
step of the McDonnell Douglas framework: whether a plaintiff has “state[d]
a prima facie case” of discrimination under Title VII. See Reznik, 18 F.4th
at 1260; see also Khalik,
671 F.3d at 1193. “While the 12(b)(6) standard does
not require that Plaintiff establish a prima facie case in her complaint, the
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elements of each alleged cause of action help to determine whether Plaintiff
has set forth a plausible claim.” Khalik, 671 F.3d at 1192 (emphasis added).
To evaluate whether a complaint survives a motion to dismiss, we consider
whether a plaintiff has “set forth a plausible claim in light of the elements
of [her] claim.” Frappied v. Affinity Gaming Black Hawk, LLC,
966 F.3d
1038, 1050 (10th Cir. 2020); see also Morman v. Campbell Cnty. Mem. Hosp.,
632 F. App’x 927, 935 (10th Cir. 2015) (“[A]bsent direct evidence of
discrimination, we examine the first step of the McDonnell Douglas
framework: the elements [plaintiff] would need to establish to prove a
prima-facie case of . . . discrimination.”).12 We therefore turn to the elements
of Mr. McNellis’s discrimination claims and consider de novo whether the
complaint sufficiently states those elements.
We have articulated the elements of a prima facie Title VII
discrimination claim differently from case to case. See Bennett v.
Windstream Commc’ns., Inc., 792 F.3d 1261, 1266 n.1 (10th Cir. 2015)
(noting “[t]he Tenth Circuit has utilized a number of similar versions of the
test” for a prima facie discrimination claim). This flexible approach
recognizes “the precise requirements of a prima facie [discrimination] case
12 We cite this unpublished opinion only for its persuasive value. See
10th Cir. R. 32.1(A) (“Unpublished decisions are not precedential, but may
be cited for their persuasive value.”).
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can vary depending on the context and were ‘never intended to be rigid,
mechanized, or ritualistic.’” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512
(2002) (quoting Furnco Constr. Corp. v. Waters,
438 U.S. 567, 577 (1978));
see also Plotke v. White,
405 F.3d 1092, 1099 (10th Cir. 2005) (“[T]he
articulation of a plaintiff’s prima facie case may well vary, depending on the
context of the claim and the nature of the adverse employment action
alleged.”). “The critical prima facie inquiry in all cases is whether the
plaintiff has [alleged] that [an] adverse employment action occurred under
circumstances which give rise to an inference of unlawful discrimination.”
Barlow,
703 F.3d at 505 (quoting Plotke,
405 F.3d at 1100). In general, then,
a Title VII plaintiff bringing a claim of employment discrimination must
plausibly allege these elements: (1) “she is a member of a protected class,”
(2) “she suffered an adverse employment action,” and (3) “the challenged
action occurred under circumstances giving rise to an inference of
discrimination.” Bennett,
792 F.3d at 1266; see also PVNF,
487 F.3d at 800.
We rely on this “general” recitation of the elements in evaluating whether
dismissal was required.13
13 The district court had a slightly different understanding of the
elements of a discrimination claim as set forth in Khalik, 671 F.3d at 1192.
In Khalik, we described Title VII discrimination claims as comprising the
following four elements: “(1) [plaintiff] is a member of a protected class,
(2) she suffered an adverse employment action, (3) she qualified for the
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position at issue, and (4) she was treated less favorably than others not in
the protected class.” Id. This formulation of the elements of a discrimination
claim is not incorrect. But recall, the elements of a prima facie case “may
vary depending on the nature of a claim.” Barlow v. C.R. England, Inc.,
703 F.3d 497, 505 (10th Cir. 2012); see also, e.g., Frappied v. Affinity
Gaming Black Hawk, LLC,
966 F.3d 1038, 1050 (10th Cir. 2020) (describing
elements as “(1) he [or she] belongs to a protected class; (2) he [or she] was
qualified for his [or her] job; (3) despite his [or her] qualifications, he [or
she] was discharged; and (4) the job was not eliminated after his [or her]
discharge.” (alterations in original) (quoting Kendrick v. Penske Transp.
Servs., Inc.,
220 F.3d 1220, 1229 (10th Cir. 2000))); Barlow,
703 F.3d at 505
(identifying elements as “(1) he was a member of a protected class; (2) he
was qualified and satisfactorily performing his job; and (3) he was
terminated under circumstances giving rise to an inference of
discrimination” (quoting Salguero v. City of Clovis,
366 F.3d 1168, 1175
(10th Cir. 2004))).
On appeal, DCSD invokes Khalik for the elements of a discrimination
claim under Title VII. But the parties’ arguments blend elements from both
Khalik and other Tenth Circuit discrimination cases. For example,
consistent with the fourth element from Khalik, DCSD contends
Mr. McNellis failed to allege he was treated less favorably than non-Christian DCSD employees. But the parties also advance arguments about
whether Mr. McNellis sufficiently alleged DCSD treated similarly situated
employees more favorably. Although Khalik references disparate treatment
to “others not in the protected class,” it does not explicitly frame this
element in terms of those other employees being similarly situated or
describe what it means for employees to be similarly situated. 671 F.3d
at 1192, 1194. Indeed, whether employees are considered “similarly
situated” is a separate inquiry that looks to whether the individuals “deal
with the same supervisor, are subjected to the same standards governing
performance evaluation and discipline, and have engaged in conduct of
‘comparable seriousness.’” EEOC v. PVNF, L.L.C.,
487 F.3d 790, 800–01
(10th Cir. 2007) (quoting McGowan v. City of Eufala,
472 F.3d 736, 745
(10th Cir. 2006)). And we have described the “similarly situated” question
as only “[o]ne method by which” a plaintiff can show the adverse
employment action took place “under circumstances that give rise to an
inference of discrimination.” See, e.g.,
id. (identifying the elements of a
discrimination claim as “(1) the victim belongs to a protected class; (2) the
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Applying these principles, we now consider whether Mr. McNellis has
plausibly alleged a claim under Title VII and CADA based on circumstantial
evidence of religious discrimination. We conclude Mr. McNellis has done
what our law requires at the pleading stage.
According to the district court, Mr. McNellis “needed to plead that he
was treated less favorably than non-Christians at Ponderosa or in the school
district.” App. at 202. The district court acknowledged Mr. McNellis alleged
that, during his investigation, DCSD received a complaint that he was part
of a so-called “good ole boys club,” along with at least three other employees.
App. at 202 (quoting App. at 100 ¶ 101). But “nowhere does he allege these
individuals were non-Christians,” the district court observed. App. at 202.
Mr. McNellis did not plead this specific fact, the district court reasoned, so
his complaint “f[e]ll well short of” alleging the fourth element of a
discrimination claim as described in Khalik: that the plaintiff was “treated
victim suffered an adverse employment action; and (3) the challenged action
took place under circumstances giving rise to an inference of discrimination”
(emphasis added)).
Here, our decision to rely on the more general recitation of the
elements set forth in Bennett and PVSF is consistent with the wellestablished proposition that “we do not mandate the pleading of any specific
facts in particular” for Title VII claims. Khalik, 671 F.3d at 1188.
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less favorably than others not in the protected class.” App. at 202–03;
Khalik, 671 F.3d at 1192.
On appeal, Mr. McNellis contends the district court erred because
“there are numerous allegations in the First Amended Complaint that
establish a prima facie case of discrimination.” Opening Br. at 25. He
alleged he was treated less favorably than other DCSD employees and
claimed DCSD’s termination decision was “premised on [his] religious
beliefs.” Opening Br. at 25. We agree.
As an initial matter, we reject the district court’s apparent
assumption that Mr. McNellis “needed to plead” the non-Christian status
of other DCSD employees to state a plausible claim. App. at 202. It is well-
established that “we do not mandate the pleading of any specific facts in
particular” to survive a motion to dismiss a Title VII discrimination claim.
Khalik, 671 F.3d at 1194; see also Bekkem,
915 F.3d at 1274 (same). Rather,
the “critical prima facie inquiry in all [discrimination] cases” is whether the
plaintiff has adequately alleged “the adverse employment action occurred
under circumstances which give rise to an inference of unlawful
discrimination.” Barlow,
703 F.3d at 505 (quoting Plotke,
405 F.3d at 1100).
We thus proceed to consider whether Mr. McNellis’s allegations meet this
standard.
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Alleging “the employer treated similarly situated employees more
favorably” is “[o]ne method by which” a plaintiff can plead circumstances
that give rise to an inference of discrimination. PVNF, 487 F.3d at 800–01.
“Individuals are considered ‘similarly-situated’ when they deal with the
same supervisor, are subjected to the same standards governing
performance evaluation and discipline, and have engaged in conduct of
‘comparable seriousness.’” Id. at 801 (quoting McGowan v. City of Eufala,
472 F.3d 736, 745 (10th Cir. 2006)). According to DCSD, Mr. McNellis has
not successfully alleged the other members of the so-called “good ole boys”
club were similarly situated to him. That is true. Mr. McNellis alleged no
facts that would allow us to conclude these other DCSD employees shared
a supervisor, evaluation and performance standards, or comparable
behavior.
But we find Mr. McNellis’s other allegations sufficient to give rise to
an inference of discrimination. We consider the following allegations in
reaching our conclusion:
Mr. McNellis is a Christian man.
Mr. McNellis was “qualified to perform the position of Assistant
Principal and Athletic Director” at Ponderosa High School. App.
at 102 ¶ 120.
Throughout his employment with DCSD, Mr. McNellis
“consistently received excellent performance reviews” and had
never been subject to disciplinary action. App. at 94 ¶¶ 45–46.
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In a staff email chain, Mr. McNellis voiced his disagreement
with the performance of a school play about the murder of a gay
college student.
He offered to “collaborate” with the school theatre department
“[a]s a [C]hristian,” citing how “the love that Jesus can provide
will help [the] play.” App. at 140; see also App. at 96 ¶ 64.
The next day, DCSD informed Mr. McNellis he needed to stay
home from work due to his “religious comments.” App. at 97
¶ 70.
Three days after the email exchange, DCSD told Mr. McNellis
he was being investigated and placed on leave due to “the
religious comments.” App. at 98 ¶ 80–81.
Less than one month later, DCSD terminated Mr. McNellis’s
employment, and “Defendant directly cited Mr. McNellis’s
emails regarding The Laramie Project as the reason for his
termination.” App. at 101 ¶¶ 113–14.
“‘While we do not mandate the pleading of any specific facts in particular,’
a plaintiff must include enough context and detail to link the allegedly
adverse employment action to a discriminatory or retaliatory motive with
something besides ‘sheer speculation.’” Bekkem, 915 F.3d at 1274–75
(quoting Khalik, 671 F.3d at 1194). Here, Mr. McNellis’s allegations that
DCSD repeatedly invoked his “religious comments” before investigating and
terminating him provide a plausible link between his termination and a
discriminatory motive. Under these circumstances, and at this procedural
stage, that is sufficient to “nudge [his] claims across the line from
conceivable to plausible.” Khalik,
671 F.3d at 1190 (alteration in original)
36
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(quoting Twombly, 550 U.S. at 570). Accordingly, we reverse the district
court’s dismissal of Mr. McNellis’s religious discrimination claims under
Title VII and CADA and remand for further proceedings.
C
We next address Mr. McNellis’s challenge to the district court’s
dismissal of his retaliation claims brought under Title VII and CADA. On
de novo review, we agree with the district court that Mr. McNellis failed to
state plausible Title VII and CADA retaliation claims.
Title VII “makes it unlawful for an employer to retaliate against an
employee ‘because [s]he has opposed any practice made an unlawful
employment practice by this subchapter.’” Khalik, 671 F.3d at 1192
(alteration in original) (quoting 42 U.S.C. § 2000e-3(a)). To survive a motion
to dismiss, a plaintiff asserting a Title VII retaliation claim must “plausibly
allege ‘(1) that she engaged in protected opposition to discrimination,
(2) that a reasonable employee would have found the challenged action
materially adverse, and (3) that a causal connection existed between the
protected activity and the materially adverse action.’” Reznik,
18 F.4th
at 1260 (quoting Khalik,
671 F.3d at 1193).14 Mr. McNellis’s Title VII and
14 Similar to a Title VII discrimination claim, “[a] plaintiff can . . .
establish retaliation either by directly showing that retaliation played a
motivating part in the employment decision, or indirectly by relying on the
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CADA retaliation claims “rise or fall together.” Johnson, 594 F.3d at 1219
n.11 (internal quotation marks omitted); see also Luke v. Hosp. Shared
Servs., Inc.,
513 F. App’x 763, 767 (10th Cir. 2013) (explaining Title VII and
CADA retaliation claims are “subject to the same legal standards”).15
1
Before reaching the merits of Mr. McNellis’s appellate arguments, we
provide a brief procedural background. In his complaint, Mr. McNellis
alleged he “complained” to Mr. Ottmann and “several co-workers” about
being investigated over his Christian beliefs. App. at 100 ¶¶ 95–96. He
further alleged DCSD “was aware Mr. McNellis had complained . . .
regarding retaliation based on his religious beliefs.” App. at 100 ¶ 97. But
. . . McDonnell Douglas framework.” Khalik, 671 F.3d at 1192. Mr. McNellis
does not contend he alleged facts that, if proven, would constitute direct
evidence of retaliation, nor do we identify any allegations in his complaint
that would constitute direct evidence of retaliation. See Opening Br. at 22
(referring only to Mr. McNellis’s alleged direct evidence of discrimination);
see also Shorter v. ICG Holdings, Inc.,
188 F.3d 1204, 1207 (10th Cir. 1999)
(“Direct evidence is ‘[e]vidence, which if believed, proves [the] existence of
[a] fact in issue without inference or presumption.’” (alterations in original)
(quoting Black’s Law Dictionary 460 (6th ed. 1990))), overruled on other
grounds by Desert Palace, Inc. v. Costa,
539 U.S. 90 (2003). We therefore
analyze Mr. McNellis’s claim only by reference to the elements of a
retaliation claim under Title VII and CADA.
15 Although not precedential, we find the reasoning of this
unpublished opinion instructive. See 10th Cir. R. 32.1(A) (permitting
citation to unpublished decisions for their persuasive value).
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in asserting his Title VII and CADA retaliation claims, he maintained only
that “Defendant retaliated against Mr. McNellis based on his religion.” App.
at 103 ¶ 124, 106 ¶ 144 (emphasis added). The complaint did not allege
DCSD retaliated against Mr. McNellis for complaining about the
investigation. Later, when opposing DCSD’s motion to dismiss,
Mr. McNellis framed his retaliation claims somewhat differently. He
contended he was terminated because he complained about being
investigated “due to his religious comments.” App. at 158.
The district court granted DCSD’s motion to dismiss the Title VII and
CADA retaliation claims. The district court first explained Mr. McNellis’s
emails about The Laramie Project “cannot be considered opposition to
discrimination for purposes of stating a retaliation claim,” and Mr. McNellis
“does not argue otherwise.” App. at 203. Mr. McNellis’s complaints to
Mr. Ottmann and other coworkers, however, “might be considered protected
opposition to discrimination.” App. at 203. But even so, the district court
reasoned, “there are no allegations showing a causal connection between
those complaints and Plaintiff’s firing.” App. at 203.
2
Mr. McNellis maintains reversal is required because he sufficiently
alleged a causal connection between his complaints about the investigation
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and his termination.16 According to Mr. McNellis, “it stands to reason that
Defendant, by way of its principal [Mr. Ottmann], terminated McNellis
because he complained about being investigated due to his religious beliefs.”
Opening Br. at 26. We are unpersuaded.
“Pleadings that do not allow for at least a reasonable inference of the
legally relevant facts are insufficient.” Bekkem, 915 F.3d at 1275 (quoting
Burnett v. Mortg. Elec. Registration Sys., Inc.,
706 F.3d 1231, 1236 (10th
Cir. 2013)). “The burden is on the plaintiff to frame a ‘complaint with
enough factual matter (taken as true) to suggest’ that he or she is entitled
to relief.” See Robbins v. Oklahoma,
519 F.3d 1242, 1247 (10th Cir. 2008)
(quoting Twombly,
550 U.S. at 556).
Mr. McNellis failed to allege facts that, if true, could establish a
causal link between the asserted protected activity (complaining to his
colleagues about the investigation) and the materially adverse action (his
termination). The complaint includes no allegations connecting
Mr. McNellis’s workplace complaints and his firing. Just the opposite: the
complaint alleged “Defendant retaliated against Mr. McNellis based on his
religion,” not based on his complaints to his colleagues. See App. at 103
16 Mr. McNellis does not contend on appeal that his emails about The
Laramie Project should be understood as protected opposition to
discrimination.
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¶ 124, 106 ¶ 144. He also alleged Defendant “[t]erminat[ed] Mr. McNellis
based on comments he made in his individual capacity as a Christian and a
father of a child at Defendant’s school.” App. at 106 ¶ 147.17 See Khalik, 671
F.3d at 1194 (affirming dismissal of Title VII retaliation claim where “there
is nothing other than sheer speculation to link the . . . termination to a . . .
retaliatory motive”). We affirm the district court’s dismissal of
Mr. McNellis’s Title VII and CADA retaliation claims.
III
We AFFIRM the dismissal of Mr. McNellis’s free speech retaliation
claim brought under 42 U.S.C. § 1983. We also AFFIRM the dismissal of
Mr. McNellis’s retaliation claims brought under Title VII and CADA. We
REVERSE the dismissal of Mr. McNellis’s discrimination claims brought
under Title VII and CADA and remand to the district court for further
proceedings consistent with this opinion.
17 Mr. McNellis appears to contend causation can be inferred “[g]iven
the proximity [in time] of McNellis’ complaints and his termination.” Reply
Br. at 14–15. “We have held, ‘[a] retaliatory motive may be inferred when
an adverse action closely follows protected activity.’” Piercy v. Maketa, 480
F.3d 1192, 1198 (10th Cir. 2007) (quoting Anderson v. Coors Brewing Co.,
181 F.3d 1171, 1179 (10th Cir.1999)). But Mr. McNellis advances this
argument for the first time in his reply brief. As we have explained, “we
routinely have declined to consider arguments that are not raised . . . in an
appellant’s opening brief.” Bronson,
500 F.3d at 1104.
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23-1306, McNellis v. Douglas Cnty. Sch. Dist.
HARTZ, J., concurring
I fully join Judge Rossman’s opinion.
I write separately, however, because it continues to baffle me why we treat
employment-discrimination claims differently from all other causes of action on review
of a dismissal for failure to state a claim or a summary judgment. The McDonnell
Douglas framework is an anomaly. Think how much simpler and more straightforward
the opinion in this case would be if we engaged in the typical analysis of a dismissal on
the pleadings. There would be no need to determine whether the complaint’s allegations
provided direct evidence of discrimination or merely circumstantial evidence. There
would be no need to determine precisely what is necessary to state a prima facie case and
whether each element was adequately alleged. Instead, we could do what we do in all
other cases and just review whether the complaint adequately alleges that the plaintiff
was injured by the employer’s intentional discrimination against him. That may not
always be an easy thing to determine, but at least we would not need to jump through the
intricate hoops of McDonnell Douglas.
At the outset McDonnell Douglas was no doubt motivated to assist plaintiffs
facing a judicial reluctance (there were no jury trials under Title VII at that time) to find
discrimination by employers. Ironically now, or so I have heard, McDonnell Douglas is a
favorite of the defense bar. It apparently is a wonderful tool to obtain dismissals or
summary judgments. Why not adopt the traditional, neutral approach? The present
Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 43
complicated framework simply distracts the courts from what should be the focus of the
inquiry—the sufficiency of the allegations, or the evidence, of discrimination vel non.
Perhaps one day this court will have the opportunity to en banc this issue and
determine to what extent our use of McDonnell Douglas is compelled by Supreme Court
precedent. See generally Timothy M. Tymkovich, The Problem with Pretext, 85 Denver
U. L. Rev. 503 (2008) (critiquing the McDonnell Douglas framework).
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