PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

COREY MCNELLIS, 

 Plaintiff - Appellant, 

v. 

DOUGLAS COUNTY SCHOOL 

DISTRICT, 

 Defendant - Appellee. 

No. 23-1306 

_________________________________ 

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 PlaintiffAppellant. 

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 

FILED 

United States Court of Appeals 

Tenth Circuit 

September 10, 2024

Christopher M. Wolpert 

Clerk of Court

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(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 

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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 

5 As 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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20 

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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21 

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 

9 Mr. 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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22 

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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24 

‘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. § 2000e2(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 nonChristian 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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33 

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 wellestablished 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) 

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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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38 

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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39 

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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40 

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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41 

¶ 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 

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Page 2 

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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