McNellis v. Douglas County School DistrictMcNellis v. Douglas County School District
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 (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
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 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.
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 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 family-friendly 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,
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 “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 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
On July 1, 2022—nearly two years after Mr. McNellis‘s termination—Mr. Ottmann wrote a letter addressed “To Whom It May Concern . . . on 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.
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
II
Mr. McNellis contends the district court erroneously dismissed his lawsuit. “We review de novo the dismissal of a complaint under
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
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
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 Cir. 2018) (describing employee of a public school district as a “public employee“).
In the case of public employees, there is “herent 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
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
- the speech was made pursuant to the employee‘s official duties,
- the speech was on a matter of public concern,
- the government‘s interests as an employer in promoting efficient public service outweigh a plaintiff‘s free speech interests,
- the speech was a motivating factor in the adverse employment action, and
- 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.
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.
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, 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 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
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— 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 “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
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.
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
Finally, Mr. McNellis next contends the “well-pled facts . . . establish that [his] responsibilities did not include commenting
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 ‘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 ‘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
“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. 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
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 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 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
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
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 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
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 victim suffered an adverse employment action; and (3) the challenged action took place under circumstances giving rise to an inference of discrimination” (emphasis added)).
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 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
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.
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, 472 F.3d at 745). 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.
- 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
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
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
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 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 ¶ 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
III
We AFFIRM the dismissal of Mr. McNellis‘s free speech retaliation claim brought under
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 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).