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 Ca se with him on the brief), Semple, Farrington, Everall & Case, P.C., Denv er, Colorado, for Defendant-Appellee.

________________ _________________ Before HARTZ , BACHARACH , and ROSSMAN , Circuit Judges.

________________ _________________ ROSSMAN , Circuit Judge.

________________ _________________ Plaintiff Corey McNellis is a former Athletic Direct or and Assistant Principal of a high school within De fendant Douglas Count y School District FILED United States Court of Appeals Tenth Circuit 

### September 10, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 12 (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 “Chris tian perspective” to the theatrical production. Shortly thereaft er, he was placed on administrative leave, investigated, and ultimately terminated. Mr. McNellis sued DCSD in federal di strict court in Colorado. In his complaint, 1 Mr. McNellis brought a First Amendment retaliation claim under 42 U.S.C. § 1983 and religious dis crimination and retaliation claims under Title VII and Colorado law. Th e district court dismissed the case under Federal Rule of Civil Procedur e 12(b)(6). Exercising jurisdiction under 28 U.S.C. § 1291, we reverse the dismissal of Mr. McNellis’s discrimination claims und er Title VII and the Colo rado Anti-Discrimination Act (CADA) and remand for further proceedings. We otherwise affirm. I A Mr. McNellis worked for fourteen ye ars 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 concer ns a motion to dismiss, we take the facts from Mr. Mc Nellis’s complaint. Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 23 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 exce llent performance reviews,” and, before the events underlying this lawsuit, had “never rece ived disciplinary acti on.” App. at 94 ¶¶ 45–46. Mr. McNellis was a member of th e 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 extracu rricular activities.” App. at 94 ¶ 42. They did not, however, “debate, disc uss, 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 Admi nistrative 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 th eatre director, Kayla Diaz, emailed the entire staff at Ponderosa High Sc hool, 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 acknowle dged to have been a hate crime Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 34 motivated by Shepherd’s se xuality.” App. at 95 ¶ 54. In her email, Ms. Diaz wrote, [O]ur new Technical Theatre teac her . . . and I selected The Laramie Project for our first prod uction of the year . . . . We predicted that our students would want to learn about this story and participate in meaningful dial ogue during a time when they may feel stuck and powerl ess [due to the COVID-19 pandemic]. . . . I am very proud of the matu rity 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 co ntent discussed in the show (there is no violence shown, only discussed) this is not a familyfriendly show. We are advertisi ng “For mature audiences” and I would generally recommend high sc hool age and up. We will be reaching out more soon about advert ising in the school, but it is important that I can answer a ny 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 belie ve that we are maki ng 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. “Genera lly, the sufficiency of a complaint [under Rule 12(b)(6)] mu st 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 judg ment, giving proper notice to the parties.” Id. “But there are except ions to this rule.” Toone v. Wells Fargo Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 45 Thanks Kayla, I appreciate the em ail 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 conn ects to Ponderosa Hi gh School’s core values of kindness, empathy, and resp ect.” 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 subj ect areas,” while a social studies teacher explained the play “pushes stu dents to think critically about our society.” App. at 139. An other teacher wrote, “I’v e used [the play] in conjunction with ‘To Kill a Mockingbird’ ; it is powerful, thought provoking, and reflective.” App. at 142. An d 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 re view ‘documents referred to in the complaint if the documents are centra l 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 th e email chain to its motion to dismiss. The district court reasoned the contents of that exchange were central to Mr. McNellis’s claims and un disputed by the parties. The district court found it “may consider the ema il exchange . . . without converting the Motion into a motion for summary judg ment.” App. at 193 n.1. On appeal, the parties do not challeng e 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 exchan ge attached to DCSD’s motion to dismiss. See Toone , 716 F.3d at 521 (“[W]e ex amine the document itself, rather than the complaint’s description of it.”). Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 56 “expos[ing] our students to the wide va riety 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 administrat ion 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 auda city to publicly share it,” App. at 143. The email chain about The Laramie Project was then shared with Mr. Ottmann, DCSD’s Human Resource s Director, Cathy Franklin, and the Director of School s, Daniel Winsor. The next day, Mr. Winsor “called Mr. McNellis and in formed 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 ne ed to worry.” App. at 97 ¶¶ 70, 72. Mr. McNellis believed he was being treated diffe rently 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. Th ey explained to Mr. McNellis that Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 67 DCSD was investigating him for his “re ligious comments,” App. at 98 ¶ 80, and he would be placed on administr ative leave during the investigation. Mr. McNellis “objected to Defendant’s conduct duri ng the [m]eeting because he did not feel comfortabl e with the way the meeting went.” App. at 98 ¶ 83. While on leave, Mr. McNellis “compl ained 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 “rec eived a complaint from a teacher claiming that Mr. McNellis was part of a good ole boys club,” along with other male teachers and administrat ors. App. at 100 ¶ 101. Unlike Mr. McNellis, those other sta ff members were not in vestigated, placed on leave, or disciplined. The investigati on also uncovered “a single email indicating that Mr. McNellis had comp lained ‘as a parent’ about [the school’s] communications regarding it s COVID safety protocols.” App. at 101 ¶ 106. On October 29, 2020, at the end of the investigation, DCSD terminated Mr. McNellis’s employme nt. According to Mr. McNellis, “Defendant directly cited Mr. McNe llis’ 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 Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 78 behalf of Corey McNellis, a lif elong friend and colleague.” 4 App. at 145. Mr. Ottmann stated he “didn’t feel co mfortable” writing this letter while still employed by DCSD, but since he ha d just retired, he was “finally able to give [his] perspective on what happ ened 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 th ought went too far. I felt like a “Letter of Reprimand” would have been appropriate, along with a conversation and perhaps an ap ology. I later learned that a specific group of people “p iled on” the complaints about [Mr. McNellis], which played into the decision to ultimately terminate him as a DCSD employee.” I truly believe that [Mr. McNe llis] was “railroaded” by the specific group of people based on his political and religious views. In my opinion, his fi ring was unjust and unfair, and unfortunately, even though I was th e 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 expl ained Mr. Ottmann “w rote [the] letter to the District.” App. at 117. Mr. McNellis does not claim otherwise. Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 89 App. at 145–46. 5 That same day, Mr. McNellis su ed DCSD in federal district

court. Mr. McNellis asserted these claims : (1) free speech re taliation 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 state d no plausible claims. This timely appeal followed. II Mr. McNellis contends the district court erroneously dismissed his lawsuit. “We review de novo the di smissal of a complaint under Federal Rule of Civil Procedure 12(b)(6) for fa ilure 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 chai n, Mr. McNellis referred to Mr. Ottmann’s letter in his complaint bu t did not quote the letter in full or attach a copy of it to hi s 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. Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 910 well-pleaded facts, as distinguished fr om 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 a llegations—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, 11 44 (10th Cir. 2023) (“A conclusory allegation is one in which an inference is asserted without stating underlying facts or in cluding any factual enhancement.” (internal quotation marks omitted)). Rather, “[t]o withstand a motion to dismiss, a plaintiff must plead sufficien t 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 und er 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. Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 1011 A Mr. McNellis alleged his emails about The Laramie Project were an exercise of “his right to free speech under the First Amen dment to the U.S. Constitution.” App. at 107 ¶ 154. According to Mr. McNellis, DCSD retaliated against him for exercisi ng his First Amendment free speech rights by placing him on administrativ e leave and ultimately terminating his employment. Mr. McNellis sought re lief for this alle ged retaliation under 42 U.S.C. § 1983. See id. (providing “[e]very pers on who, under color of [the law] . . . subjects . . . any citizen of the Un ited 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 la w—retaliated against him for speech that the First Amendment protects, vi olating 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. Mc Nellis is a “public employee.” See Bailey v. Ind. Sch. Dist. No. 69 of Canadian Cnty. Okla. , 896 F.3d 1176, 1179 (10th Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 1112 Cir. 2018) (describing employee of a pu blic school district as a “public employee”). In the case of public employees, th ere is “inherent te nsion between an employee’s right to free speech and th e government employer’s right to exercise ‘a significant degree of cont rol 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 gove rnment is nonetheless a citizen.” Garcetti , 547 U.S. at 419. Thus, “[t]he Fi rst 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 Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 1213 (1) the speech was made pursuant to the employee’s official duties, (2) the speech was on a ma tter of public concern, (3) the government’s interests as an em ployer in promoting efficient public service outweigh a plaintif f’s free speech interests, (4) the speech was a motivating factor in the adverse employment action, and (5) the same employme nt decision would have been made without the protected speech. Roberts v. Winder , 16 F.4th 1367, 1381 (10th Ci r. 2021). “The test balances ‘the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of th e State, as an empl oyer, in promoting the efficiency of the pu blic services it performs through its employees.’” Duda , 7 F.4th at 910–11 (alteratio n in original) (quoting Pickering , 391 U.S. at 568). These five factors are “esse ntial elements” of a First Amendment retaliation claim brought by pu blic 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) st age, “show” means plausibly allege, not conclusively prove. But the failur e 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) (affirm ing dismissal of First Amendment retaliation claim where plaintiff faile d 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 wo uld not have violated a clearly Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 1314 2 The district court concluded Mr. McNe llis failed to plausibly allege the first, second, and fourth elements of the Garcetti / Pickering test. 7 As to the first element, the district cour t found Mr. McNellis’s emails about The Laramie Project “were made pursuant to his o fficial duties.” App. at 198. And “Plaintiff’s professed disagreement with the play,” the district court reasoned, “is a matter of personal, rath er than public conc ern.” App. at 200. As to the fourth element, the distr ict court found the complaint “lacks factual allegations that would estab lish that Plaintiff’s emails were a motivating factor in his firing.” App. at 200. On appeal, Mr. McNellis urges re versal, contending his speech was not made pursuant to his official du ties and involved a matter of public concern. Mr. McNellis also maintains he sufficiently alleged his emails were

established constitutional right wh ere one plaintiff arguably did not plausibly allege the first element an d 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 commission ed or created.’” (quoting Garcetti v. Ceballos , 547 U.S. 410, 422 (2006))). Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 1415 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 alle ged 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, ha ve not developed a set of bright line rules to determine wh en an employee speaks pursua nt to her official duties for the purposes of Garcetti / Pickering .” Rohrbough , 596 F.3d at 746. Rather, we use “a case-by-case approach, looki ng both to the content of the speech, as well as the employee’s chosen audi ence, to determine whether the speech is made pursuant to an em ployee’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 empl oyee] was paid to do.’” Brammer-Hoelter , 492 F.3d at 1203 (alteration in original) (quoting Green v. Bd. of Cnty. Comm’rs , Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 1516 472 F.3d 794, 801 (10th Ci r. 2007)). “[I]f an empl oyee engages in speech during the course of performing an offi cial duty and the speech reasonably contributes to or facilitates the employ ee’s performance of the official duty, the speech is made pursuant to th e employee’s official duties.” Id . “The ultimate question is whether the employ ee 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 re sponsibilities” 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 “mee t[ing] once a week to discuss any issues that may arise with respect to extracurricular activities.” App. at 94 ¶ 42 (emphasis added). As DCSD persuasi vely argues, Mr. McNellis’s “email responses to Ponderosa staff regarding The Laramie Project fall squarely within that duty.” Resp. Br. at 11. Ms. Diaz contac ted 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 ga rnered several staff responses bearing Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 1617 on the relationship between the school’s production of The Laramie Project and school policie s 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 provid ing a “Social Studies perspective” to the play’s “engag[ement] with import ant historical events across subject areas”; and explaining teachers have “used [ The Laramie Project ] in conjunction with ‘To Kill a Mockingb ird’”). Mr. McNellis was, as DCSD points out, “directly responding to” an email conversation about issues arising out of the extracurricula r performance. Resp. Br. at 12. The question remains whether Mr. McNellis’s speech was made “during the course of perf orming an official duty.” Brammer-Hoelter , 492 F.3d at 1203. Consideri ng 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 ot her words, Mr. McNellis, pursuant to his official duties , raised concerns about an extrac urricular activity at the school— Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 1718 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 offici al duties.”). We therefore have no trouble concluding Mr. McNellis was spea king not as an ordinary citizen but “in his . . . professional capacity.” Garcetti , 547 U.S. at 422. Our conclusion is bolstered by look ing 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 sp eech is made pursuant to an employee’s official duties.” Rohrbough , 596 F.3d at 747. But we have

8 DCSD appears also to conten d 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 in cluding “coordinating effective communication strategies among stu dents, 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 poin ts 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 iden tified any basis under which we could consider it. See Gee , 627 F.3d at 1186 (lis ting exceptions to the general rule that “t he sufficiency of a comp laint must rest on its contents alone”). The district court did not consider the exhibit, and neither do we. Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 1819 “observed that speech dire cted at an individual or entity outside of an employee’s chain of command is often outside of an employee’s official duties,” while “speech direct ed . . . within an empl oyee’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 respon ses to Diaz’s email were . . . in an internal email thread that only included Po nderosa staff.” Resp. Br. at 12. While not dispositive, the sta ff-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 speec h” as “relevant” to the first Garcetti / Pickering element but not dispositive on its own). The circumstances before us are disti nguishable 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 th rough his personal Facebook page, independent news outle ts, and at public comme nt sessions—all forums citizens often use fo r 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 becaus e “the discussions included ordinary citizens and parents who were not employed by the [defendant]”). Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 1920 Accordingly, we agree with the dist rict court that Mr. McNellis “has not alleged facts that would sa tisfy the first prong of the Garcetti / Pickering test.” App. at 199.
3 Mr. McNellis unsuccessful ly attempts to resi st this conclusion. First, Mr. McNellis contends he wa s 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 marsha l his status as a parent when participating in the staff email ex change is not insignificant. But Mr. McNellis cites no auth ority suggesting his refere nce to being a “Dad of a student” is necessarily disposit ive 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 co ntext of his speech in the totality, Mr. McNellis’s self-identification as a pa rent does not change our conclusion that he was speaking pursuant to his official duties as a DCSD employee. Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 2021 As the district court properly explained, there is no indication “Plaintiff’s reference to his parental status suffic es to establish that he was speaking as a private citizen rather than a pub lic employee” when he spoke from his staff email address, to a staff-only audi ence, referencing his role as a staff member. 9 App. at 198. Second, Mr. McNellis contends “to th e 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.” Open ing 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 th e analysis, particularly when Mr. McNellis was speaking pursuant to his official duti es when he discusse d 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 cons idering this email, the district court explained “it could reasonably be inte rpreted to mean that he was speaking as an administrator, albeit one without the full backing of the Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 2122 Finally, Mr. McNellis next contends th e “well-pled facts . . . establish that [his] responsibilitie s did not include commenti ng 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 woul d 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 misundersta nds the law. “An employee’s official job description is not dispositive” of the que stion 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 offi cial 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 fa vor 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 reas onable inference can be drawn in Mr. McNellis’s favor, as we have already explained. Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 2223 ‘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 (acknowled ging speech may be made under an employee’s official duties “even though the sp eech 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 em ployee” 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 sp eech occurred after-hours,” the email recipients were “outside of McNellis’ chain of command,” and the emails “did not invoke his authority as an admi nistrator.” Reply Br. at 3. “It is our general rule . . . that arguments and is sues 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 Ci r. 2007) (“[W]e routinely have declined to consider arguments that are not raised . . . in an appellant’s opening brief.”). We will not address these belate d 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 id entified himself as “Athletic Director/Assistant Principa l,” App. at 138, 140–41. Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 2324 ‘pursuant’ to the employee’s professi onal 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 disc rimination claims under Title VII and CADA. “Title VII makes it unlawful ‘to disc harge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or priv ileges 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 empl oyers 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 viol ation of Title VII either by direct evidence of discrimination or by following th e burden-shifting framework of McDonnell Douglas Corp. v. Green .” Khalik , 671 F.3d at 1192 (c iting 411 U.S. 792 (1973)). We briefly describe these two paths, then explain their application to the procedural posture of a moti on to dismiss under Rule 12(b)(6). Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 2425 “Direct evidence is ‘[e]vidence, which if believed, proves [the] existence of [a] fact in issue wi thout inference or presumption.’” Shorter v. ICG Holdings, Inc. , 188 F.3d 1204, 1207 (10th Ci r. 1999) (alterations in original) (quoting Black’s Law Di ctionary 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 ex isting policy which itself constitutes discrimination’ are direct ev idence 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 th e trier of fact to infer that discrimination was a motivating cause of an employment de cision,” however, “are at most circumstantial evidence of discriminatory intent.” EEOC v. Wiltel, Inc. , 81 F.3d 1508, 1514 (10th Ci r. 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 fi rst prove a prima facie ca se 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. Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 2526 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 Titl e 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 th e 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 Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 2627 survive a motion to dismiss.” Khalik , 671 F.3d at 1190 (alteration in original) (quoting Twombly, 550 U.S. at 570). We th erefore consider only whether Mr. McNellis has “sufficiently st ated . . . 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 “s tate a prima facie case” of her Title VII claim to survive a Rule 12(b)(6) motion to dismiss). Here, Mr. McNellis asserts the dist rict court erred in dismissing his discrimination claims because (1 ) “the allegations in the Amended Complaint contain direct evidence of discriminati on”; and (2) “there are numerous allegations in the First Am ended 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. Bu t we conclude Mr. McNellis has alleged facts that, from circumstantial evidence , “give rise to a re asonable 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 Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 2728 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 th at Defendant was investigating him due to the ‘religious comments.’”); App. at 101 ¶ 114 (“Defendant directly cited Mr. McNellis’s emails regarding The La ramie Project as the reason for his termination.”). We cannot conclude Mr. McNellis has id entified direct evidence of discrimination. Based on th e allegations, a factfinder still would need to infer DCSD investigated and te rminated plaintiff for his religious beliefs , and not, for example, for maki ng 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 Re primand” would have been appropriate, along with a convers ation 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. McNe llis] was “railroaded” by this specific group of people based on his political and religious views. In my opinion, his fi ring was unjust and unfair, and unfortunately, even though I was th e 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 co nstitutes discrimination.’” Wiltel , 81 F.3d Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 2829 at 1514 (quoting Ramsey , 907 F.2d at 1008)). But according to Mr. McNellis, the letter contains an admi ssion 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 compla in about him while he was under investigation. App. at 146. And those complaints “p layed into [DCSD’s] decision to ultimately terminate him.” App. at 146. But Mr. Ottmann also opined that some form of disciplinary action woul d have been “appropriate” under the circumstances, proposing a letter of reprimand, a conversation about Mr. McNellis’s behavior, and an apolog y. Still, Mr. Ottmann’s statements, taken as true, “require the trier of fa ct to infer that discrimination was a motivating cause of an employment decision.” Wiltel , 81 F.3d at 1514. We thus conclude Mr. McNe llis has not stated plau sible 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 discri mination 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 Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 2930 elements of each alleged cause of action help to determin e whether Plaintiff has set forth a plausible claim.” Khalik , 671 F.3d at 1192 (emphasis added). To evaluate whether a comp laint survives a motion to dismiss, we consider whether a plaintiff has “set forth a plau sible 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 examin e the first step of the McDonnell Douglas framework: the elements [plaintiff] wo uld need to establish to prove a prima-facie case of . . . discrimination.”). 12 We therefore turn to the elements of Mr. McNellis’s discrimina tion claims and consider de novo whether the complaint sufficiently states those elements. We have articulated the elemen ts of a prima facie Title VII discrimination claim differe ntly 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 pers uasive value. See 10th Cir. R. 32.1(A) (“Un published decisions are not precedential, but may be cited for their persuasive value.”). Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 3031 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 faci e 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] adve rse 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 elem ents: (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 discrimi nation claims as comprising the following four elements: “(1) [plainti ff] is a member of a protected class, (2) she suffered an adverse employment action, (3) she qualified for the Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 3132 position at issue, and (4) she was trea ted less favorably than others not in the protected class.” Id. This formulation of the el ements 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 (10t h Cir. 2020) (describing elements as “(1) he [or she] belongs to a protected cl ass; (2) he [or she] was qualified for his [or her] job; (3) despite his [or he r] qualifications, he [or she] was discharged; and (4) the job was not elimin ated 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 gi ving 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 partie s’ arguments blend elements from both Khalik and other Tenth Circuit discri mination 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 partie s also advance arguments about whether Mr. McNellis sufficien tly alleged DCSD treated similarly situated employees more favorably. Although Khalik references disparate treatment to “others not in the prot ected class,” it does not explicitly frame this element in terms of thos e other employees being similarly situated or describe what it means for employees to be similarly situated. 671 F.3d at 1192, 1194. Indeed, whether empl oyees are considered “similarly situated” is a separate in quiry that looks to whether the individuals “deal with the same supervisor, are subjec ted 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 descri bed the “similarly situated” question as only “[o]ne method by which” a plaintiff can show the adverse employment action took pl ace “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 Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 3233 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 di scrimination. 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-Chri stians at Ponderosa or in the school district.” App. at 202. Th e district court acknowle dged Mr. McNellis alleged that, during his investigation, DCSD rece ived a complaint that he was part of a so-called “good ole boys club,” al ong with at least th ree other employees. App. at 202 (quoting App. at 100 ¶ 101). But “nowhere does he allege these individuals were non-Christ ians,” the district cour t 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 th e more general recitation of the elements set forth in Bennett and PVSFis consistent with the wellestablished proposition that “we do no t mandate the pleading of any specific facts in particular” for Title VII claims. Khalik , 671 F.3d at 1188. Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 3334 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 dis crimination.” 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 plau sible claim. App. at 202. It is wellestablished that “we do not mandate th e pleading of any specific facts in particular” to survive a motion to dism iss 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 al l [discrimination] cases” is whether the plaintiff has adequately alleged “the adverse employment action occurred under circumstances which give ri se to an inference of unlawful discrimination.” Barlow , 703 F.3d at 505 (quoting Plotke , 405 F.3d at 1100). We thus proceed to cons ider whether Mr. McNellis’s allegations meet this standard. Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 3435 Alleging “the employer treated simi larly situated employees more favorably” is “[o]ne method by whic h” a plaintiff can plead circumstances that give rise to an in ference of discrimination. PVNF , 487 F.3d at 800–01. “Individuals are considered ‘similarly -situated’ when th ey 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 Ci r. 2006)). According to DCSD, Mr. McNellis has not successfully alleged the other memb ers 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 perf ormance standards, or comparable behavior. But we find Mr. McNellis’s other allegations suffici ent 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 perf orm 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 disciplina ry action. App. at 94 ¶¶ 45–46. Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 3536  In a staff email chain, Mr. Mc Nellis 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 “th e 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 “re ligious 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, DC SD terminated Mr. McNellis’s employment, and “Defendant di rectly cited Mr. McNellis’s emails regarding The Laramie Pr oject 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 cont ext and detail to link the allegedly adverse employment action to a discri minatory 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 “religio us comments” before investigating and terminating him provide a plausible link between his termination and a discriminatory motive. Under these ci rcumstances, 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) Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 3637 (quoting Twombly , 550 U.S. at 570). Accordingl y, we reverse the district court’s dismissal of Mr. McNellis’s re ligious discrimination claims under Title VII and CADA and rema nd for further proceedings. C We next address Mr. McNellis’s ch allenge 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 oppose d any practice ma de 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 Titl e VII retaliation claim must “plausibly allege ‘(1) that she engaged in prot ected opposition to discrimination, (2) that a reasonable employee woul d have found the challenged action materially adverse, and (3) that a causal connection existed between the protected activity and the ma terially 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 discriminati on claim, “[a] plaintiff can . . . establish retaliation either by direct ly showing that retaliation played a motivating part in the employment decisi on, or indirectly by relying on the Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 3738 CADA retaliation claims “r ise 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 “subjec t to the same le gal 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. Ot tmann and “several co-workers” about being investigated over his Christia n 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, no r do we identify any alle gations 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 pr esumption.’” (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 decision s for their persuasive value). Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 3839 in asserting his Title VII and CADA reta liation claims, he maintained only that “Defendant retalia ted against Mr. McNellis based on his religion .” App. at 103 ¶ 124, 106 ¶ 144 (emphasis added) . The complaint did not allege DCSD retaliated against Mr. McNe llis for complaining about the investigation. Later, when opposi ng DCSD’s motion to dismiss, Mr. McNellis framed his retaliation claims somewhat differently. He contended he was terminated beca use he complained about being investigated “due to his reli gious comments.” App. at 158. The district court granted DCSD’s mo tion to dismiss the Title VII and CADA retaliation claims. The district court first explained Mr. McNellis’s emails about The Laramie Project “cannot be consider ed 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, howeve r, “might be cons idered 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 Plaintif f’s firing.” App. at 203.
2 Mr. McNellis maintains reversal is required because he sufficiently alleged a causal connection between hi s complaints about the investigation Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 3940 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 inve stigated due to his religious beliefs.” Opening Br. at 26. We are unpersuaded. “Pleadings that do not allow for at least a reas onable 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 pl aintiff 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 pr otected activity (c omplaining to his colleagues about the investigation) and the materially adverse action (his termination). The complaint incl udes no allegations connecting Mr. McNellis’s workplace complaints an d his firing. Just the opposite: the complaint alleged “Defenda nt retaliated against Mr . McNellis based on his religion,” not based on his compla ints 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. Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 4041 ¶ 124, 106 ¶ 144. He also alleged De fendant “[t]erminat[ed] Mr. McNellis based on comments he made in his indi vidual capacity as a Christian and a father of a child at Defendan t’s school.” App. at 106 ¶ 147. 17 See Khalik , 671 F.3d at 1194 (affirming dismissal of Ti tle VII retaliation claim where “there is nothing other than sheer speculation to link the . . . term ination 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 br ought 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 ca usation can be inferred “[g]iven the proximity [in time] of McNellis’ co mplaints and his termination.” Reply Br. at 14–15. “We have held, ‘[a] reta liatory motive may be inferred when an adverse action closely fo llows 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)). Bu t Mr. McNellis advances this argument for the first time in his repl y brief. As we ha ve explained, “we routinely have declined to consider ar guments that are not ra ised . . . in an appellant’s opening brief.” Bronson , 500 F.3d at 1104. Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 4123-1306, McNellis v. Douglas Cnty. Sch. Dist. HARTZ , J., concurring I fully join Judge Rossman’s opinion. I write separately, however, because it c ontinues 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 engage d 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 wh ether the complaint adequately alleges that the plaintiff was injured by the employer’s intentional di scrimination 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 tr aditional, neutral approach? The present Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 42Page 2 complicated framework si mply distracts the courts from wh at 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). Appellate Case: 23-1306 Document: 57-1 Date Filed: 09/10/2024 Page: 43