UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ JEANETTE RODRIGUEZ, Plaintiff - Appellant,

v. ARAPAHOE COUN TY SHERIFF TYLER S. BROWN, in his official capacity, Defendant - Appellee. No. 21-1124 (D.C. No. 1:18- CV-02919-KLM) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , EBEL , and PHILLIPS , Circuit Judges.

________________ _________________ Plaintiff Jeanette Rodriguez, a deput y sheriff who works at the Arapahoe County detention center, appeals the distri ct court’s decision granting her employer, the Arapahoe County Sheriff, summary judgment on Rodriguez’s employment discrimination claims alle ging disparate treatment and hostile work environment based on her race (Hispanic), sex (female), and national origin (Venezuelan). The district court also granted the Sherif f summary judgment on Rodriguez’s claims alleging that the Sheriff retaliated agai nst her when she complained about this

* This order and judgment is not binding precedent, excep t under the doctrines of law of the case, res judicata, and collateral estoppel. It ma y be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 18, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 12 discriminatory mistreatment. Having ju risdiction under 28 U.S.C. § 1291, we AFFIRM summary judgment fo r the Sheriff becau se Rodriguez fail ed to present sufficient evidence from wh ich a reasonable jury could find that any of the mistreatment of which she complains wa s because on her race, sex, or national origin, or was taken in retaliation fo r her discrimination complaints.
I. BACKGROUND We have carefully considered the evid ence in detail, viewing it in the light most favorable to Rodriguez. See Herrma nn v. Salt Lake City Corp., 21 F.4th 666, 673 (10th Cir. 2021). Here, we recite that evidence onl y summarily. Rodriguez has worked as a deputy at the County detenti on center since 2008; there has never been any problem with her job performance. During annual training in 2015, however, Rodriguez drew the ire of a firearms instructor, Cunningha m, during a training simulation in a “shoot house.” Later that sa me day, while working with a different instructor, Rodriguez committed a safety vi olation at the shoo ting range, holstering her weapon while she was in a prone positi on. As a result of these two problems, Rodriguez was restricted from using her fi rearm until she passed additional training. 1 Although Rodriguez contends that she performed well enough to pass the additional training, Instructor Stevie True and another instructor failed Rodriguez. This began a recurring cycle: Various trainers and superv isors would require

1 Rodriguez was able to continue working despite this firearm restriction because deputies do not carry firearms in the deten tion center. But she could not perform all of her job duties. For exampl e, Rodriguez was not able to transport detainees outside the jail because that would have required her to carry a firearm. Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 23 Rodriguez to undergo additional training, afte r which the trainers would fail her; her supervisors would then place Rodriguez on paid administrative leave and recommend that the Sheriff fire her; the Sheri ff—David Walcher—would decline to fire Rodriguez, but would order her to undergo more training; and the cycle would begin again. This scenario played out at le ast three times over f our years’ time. During this course of events, Rodrigu ez filed a complaint with the EEOC in January 2017, and amended that complaint in October 2017. When the EEOC issued Rodriguez a right-to-sue letter , she initiated this litigation in November 2018. After a new Sheriff—Tyler Brown—was elected, Rodriguez passed reme dial training and her firearm restriction was lifted. This litigation, however, continued. Rodr iguez sued the Sheriff, in his official capacity, 2 asserting four claims: 1) a Titl e VII claim for di sparate treatment discrimination and hostile work environmen t based on Rodriguez’ s race (Hispanic), sex (female), and national or igin (Venezuela); 2) the sa me discrimination claims asserted under the Colorado Anti-Discrim ination Act (“CADA”); 3) a Title VII retaliation claim; and 4) a retaliation cl aim under CADA. Following discovery, the district court 3 granted the Sheriff’s motion for summary judgment on all of Rodriguez’s claims. Rodrigu ez appeals that decision.

2 When Rodriguez initiated this litigation in 2018, David Walcher was the Sheriff. But because Rodriguez sued the Sheriff in his official capacity, Tyler Brown was substituted as the defendant after he took office.

3 The parties consented to a magistrate judge deciding this case. See 28 U.S.C. § 636(c). Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 34 II. STANDARD OF REVIEW We review the district court’s summary judgment decision de novo, viewing the evidence in the light mo st favorable to Rodriguez and drawing all reasonable inferences in her favor. Se e Herrmann, 21 F.4th at 673. A court must grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of la w.” Fed. R. Civ. P. 56(a).
III. LEGAL DISCUSSION Before addressing the merits of the district court’s summary judgment decision, we note a couple of preliminary matters that affect the scope of our analysis. Procedurally, T itle VII required Rodriguez to exhaust her administrative remedies by filing a complaint with the EEO C within 300 days after each alleged discriminatory practice occu rred. See 42 U.S.C. § 2000e-5(e)(1); Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1310 & n.2 (10th Cir. 1999), overruled in part on other grounds by Nat’l R. R. Passenger Corp. v. Mo rgan, 536 U.S. 101, 105 (2002). In light of that, th e district court ruled: Rodri guez could base her Title VII disparate treatment and retaliation clai ms on only discrete adverse employment actions occurring on and after March 9, 201 6, which was 300 days before Rodriguez filed her first EEOC complaint in January 20 17. See Morgan, 536 U.S. at 105, 122. But Rodriguez could rely on earlier incide nts to support her Ti tle VII hostile work environment harassment claim because she ha d identified at least one incident that was part of the alleged ongoing harassment that occurred after March 9, 2016. See id. Rodriguez does not challenge these rulings on appeal. Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 45 The district court’s timeliness ruling, however, was limited to Rodriguez’s Title VII claims. Her state-law CADA claims were subject to a different, six-month requirement for timely exhausting state ad ministrative remedies. See Colo. Rev. Stat. § 24-34-403 (referencing § 24-34-306); see also De neffe v. SkyWest, Inc., No. 14-cv-00348-MEH, 2015 WL 232128, at *4–5 (D. Colo. Jan. 16, 2015) (unreported) (applying state-law require ments for timely filing administrative complaint for CADA claims while applyi ng federal time requirements for filing EEOC complaint for Title VII cl aims). In the district court, the Sheriff neither separately addressed and ch allenged the timeliness of R odriguez’s exhaustion of her CADA claims, nor did he cite any authorit y suggesting that the Title VII timeliness analysis should apply to the CADA clai ms. He does not address these CADA timeliness issues on appeal, either. Because the Sheri ff asserts no statute of limitation defense as to the CADA claims, fo r purposes of this a ppeal we consider Rodriguez’s CADA claims without any tim e limitations. See generally Deneffe, 2015 WL 232128, at *4–5 (tr eating statute of limitations for a CADA claim as an affirmative defense); San Juan Basin C onsortium, Ltd. v. EnerVest San Juan Acquisition Ltd. P’ship, 67 F. Supp. 2d 12 13, 1224, 1226 (D. Colo. 1999) (applying relevant Colorado statute of limitations in diversity action, noting defendant can waive affirmative statute-of-limitations defense); John R. Sa nd & Gravel Co. v. United States, 552 U.S. 130, 133 (2008) (no ting that “the law typically treats a limitations defense as an affi rmative defense . . . that is subject to forfeiture and waiver”). Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 56 Substantively, the same legal standa rds apply to both Title VII and CADA claims. See Lamb v. Montrose Cnty. Sh eriff’s Off., No. 19-12 75, 2022 WL 487105, at *3 (10th Cir. Feb. 17, 20 22) (unpublished) (citing John son v. Weld Cnty., 594 F.3d 1202, 1219 n.11 (10th Cir. 2010)). Therefore, the foll owing substantive analysis applies to both Rodriguez’s Title VII and CADA claims. Because procedurally there is no time restriction on the incidents on which Rodriguez can base her CADA claims, we consider all of the alleged inci dents she cites in the following substantive analysis with regard to th e CADA claims. We turn fi rst to Rodriguez’s disparate treatment and hostile work environment claims before addressing her retaliation claims. A. Disparate treatment and ho stile work environment claims 4 Title VII makes it “an unlawful employm ent practice for an employer . . . to discriminate against any individual with respect to his compensation, terms,

4 It is not at all clear that plaintif f is asserting a se parate hostile work environment claim. She neve r separately addresses the el ements of a hostile work environment claim apart from her disparate tr eatment discrimination claim. We give her the benefit of the doubt in this discussion because even if she did raise a separate hostile work environment claim, it woul d fail for the same reason her disparate treatment claim fails—she fails to allege and put on any evidence that the treatment and environment of which she complains wa s because of her race, sex, or national origins. She generally asserts “harassmen t” only in a conclusory fashion. The elements of a disparate treat ment claim differ from th e standard of hostile work environment claims, but we do not dwe ll on those difference here because both claims require that the complained of conduc t be based on or relate d to her race, sex, and/or national origin. On appeal, Rodr iguez did not address all the elements necessary to state a prima facie hostile wo rk environment claim. However, that appears to be because in the district court the Sher iff only moved for summary judgment on the question of whether the “harassing conduct” was motivated by Rodriguez’s race, sex, or nati onal origin. (Aplt. App. 61.) Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 67 conditions, or privileges of employment, becau se of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Such unlawful employment practices include harassment based on a protect ed trait that creates a hostile work environment. See Morgan, 536 U.S. at 115–16. CADA provides employees with the same protections. See Colo. Rev. Stat. § 24- 34-402(1)(a). “[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or nationa l origin was a motivating factor for any employment practice, even though other fact ors also motivated the practice.” 42 U.S.C.A. § 2000e-2(m). As explained in greater detail below, the district court granted the Sheriff summary judgment on Rodriguez’s disparat e treatment and hostile work environment claims, ruling that Rodriguez failed to present sufficient evidence from which a reasonable jury could find th at the conduct of which sh e complained was “because of” her race, sex, and/or national origin. We uphold that determination. See Throupe v. Univ. of Denver, 988 F.3d 1243, 1253 ( 10th Cir. 2021) (holding in that case that plaintiff’s failure “to raise a triable fact about whether the defendants discriminated against him because of his sex . . . sinks both his hostile work environment and disparate treatment claims”). Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 78 1. Disparate treatment claims a. This claim requires proof that the challenged conduct was based on a protected trait Rodriguez sought to prove disparate tr eatment discrimination indirectly, using the burden-shifting McDonnell Douglas paradigm. 5 Under that familiar analytical framework, an employee first must establis h a prima facie claim for discrimination by showing that she 1) fell within a protected group, 2) was qualified for her position, and 3) suffered an adverse employment acti on under circumstances giving “rise to an inference of unlawful discrimination,” Burd ine, 450 U.S. at 253. “The prima facie case serves an important function in the litigation: it eliminat es the most common nondiscriminatory reasons for the plaint iff’s rejection.” Id. at 253–54. [T]he prima facie case “r aises an inference of di scrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of imperm issible factors.” Establishment of the prima facie case in effect creates a presum ption that the employer unlawfully discriminated ag ainst the employee. If th e trier of fact believes the plaintiff’s eviden ce, and if the employer is silent in the face of the presumption, the court must enter j udgment for the plaintiff because no issue of fact rema ins in the case. Id. at 254 (quoting Furnco Constr. Corp . v. Waters, 438 U.S. 567, 577 (1978)). If an employee succeeds in establishing a prima facie claim, the burden shifts to the employer to proffer a legitimate, non-discriminatory reason for the challenged employment actions. Id. at 253. The empl oyer’s burden is only one of production.

5 McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973); see al so Tex. Dep’t of Comty. Affairs v. Burdine, 450 U.S. 248, 252–56 (1981) (expl aining the McDonnell Douglas analytic al framework). Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 89 Id. at 254–56. Here, the Sheriff satisfied his burden by asserting that he took the challenged personnel actions because Rodriguez “demons trated poor safety and decision-making skills despite her ongoing trai ning, and [she] could thus not perform the duties of the deputy position.” (Aplt. App. at 1727.) The Sheriff’s proffered explanation sufficiently rebutted any pr esumption of discrimination created by Rodriguez’s prima facie discrimination cl aim. See Burdine, 450 U.S. at 254–55. “The ultimate burden of persuading th e trier of fact that the defendant intentionally discriminated agai nst the plaintiff remains at a ll times with the plaintiff.” Id. at 253. The plaintiff retains the burden of persuasion. She now must have the opportunity to demonstrate that th e proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination. She may su cceed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by show ing that the empl oyer’s proffered explanation is unworthy of credence. Id. at 256 (citing McDonnell Douglas, 411 U.S. at 804–05). In granting the Sheriff summary judgm ent, the district court ruled that Rodriguez had failed to establish the third element of her prima facie claim because she “has not demonstrated that the adve rsary employment actions occurred under circumstances which give rise to an infe rence of unlawful discrimination,” that is discrimination because of a pr otected trait like her race, se x, and/or national origin. (Aplt. App. 1744.) The district court furt her ruled that, at th e third step of the McDonnell Douglas analysis, Rodriguez ha d also failed to rebut the Sheriff’s Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 910 legitimate, nondiscriminatory reasons fo r the challenged actions he took against Rodriguez. b. Rodriguez incorrectly asserts th at she did not need to produce evidence of the Sheriff’s discriminato ry motive or intent in support of her disparate treatment claim Contrary to the preceding discussion, R odriguez erroneously contends, for the first time on appeal, that she does not have to produce any evid ence that the Sheriff acted with a discriminatory intent or motive in order to support her disparate treatment claim. Rodriguez’s ar gument is not entirely clear. If Rodriguez is asserting that she does not have to produce evidence of the Sheriff’s discriminatory intent or motive because she is invoking McDonnell-Douglas’s method of indirec tly proving discrimination, Rodriguez forfeited that argument by not raising it in th e district court. See Throupe, 988 F.3d at 1254. Moreover, that argument fails on its merits. The plainti ff’s protected status “need only be a ‘motivating factor’ in the unlawful employment practice,” but “[t]o maintain a claim under Title VII, the plaintiff must demonstrate that he was discriminated against because of a protected status, like se x,” race, or national origin. Id. at 1251 (quoting 42 U.S.C. § 2000e-2(m)). As we have just explained, even under the McDonnell Douglas indirect-proof analytic al framework, Rodriguez had to present sufficient evidence from which a jury could reasonably infe r that the Sheriff took the challenged actions, at least in part, becaus e of Rodriguez’s prot ected trait(s). If Rodriguez is, instead, arguing here th at the district c ourt erred by requiring her to prove more than that—that the dist rict court instead required her to produce Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 1011 direct evidence of the Sheri ff’s subjective discriminatory intent—that argument lacks merit. Our review of the district court’ s decision indicates th at the court did not require Rodriguez to prove more than what the relevant McDonnell Douglas analysis mandates. Rodriguez relies on two grounds to s upport her assertion that she does not have to produce any evidence that the Sheri ff acted with a discri minatory intent or motive. First, she relies on two Suprem e Court cases— Albemarle Paper Co. v. Moody, 422 U.S. 405, 422–23 (1975), and Gr iggs v. Duke Power Co., 401 U.S. 424, 432 (1971)—that address di sparate impact, rather th an disparate treatment, discrimination claims. See Ricci v. DeSt efano, 557 U.S. 557, 577–78 (2009). The Supreme Court has “long” distinguished between “disparate treatment” and “disparate impact” theories of employment discrimination. “‘Disparate treatment’ . . . is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion [or other protected characteristics.] Proof of discriminato ry motive is critical, although it can in some situations be inferred fro m the mere fact of differences in treatment. . . . “[C]laims that stress ‘disparate impact’ [by contrast] involve employment practices that are facia lly neutral in their treatment of different groups but that in fact fa ll more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive . . . is not required under a disparate-impact theory.” Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993) (emphasis added) (Age Discrimination in Employment Act case quo ting Int’l Bhd. of Teamsters v. United Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 1112 States, 431 U.S. 324, 335–336 n. 15 (1977) (construing Title VII)) (alterations added in Hazen Paper). Because Rodriguez alle ged only disparate tr eatment claims, her reliance on disparate impact cases like Albemarle and Griggs is misplaced. Second, Rodriguez relies on Bostock v. Cl ayton County, which held that when an employer fires an employee “for bei ng homosexual or transgender,” the employer violates Title VII’s prohibition against di scrimination based on se x. 140 S. Ct. 1731, 1737 (2020). The employers in Bostock c onceded that the reason they fired the plaintiffs was because they were homosexual or transgender. Id. at 1744. So, unlike this case, there was no dispute in Bostock as to the employe rs’ intent or motivation in acting against the employees. The questi on presented there, instead, was whether that conceded motivation based on plain tiffs being homosexual or transgender amounted to discrimination based on sex. Id. at 1737. The Supreme Court concluded that it did. Id. In reaching that conclusion, Bostock reiterated that Title VII “imposes liability on employe rs only when they ‘fail or re fuse to hire,’ ‘discharge,’ ‘or otherwise . . . discriminate against’ someone because of a statutorily protected characteristic like sex”; discrimination means treating an “individual worse than others who are similarly situated”; and “[i]n so-calle d ‘disparate treatment’ cases like today’s, . . . the difference in treatment based on sex must be intentional.” Id. at 1740 (emphasis added). Consistent with Bost ick’s admonition and the language of Title VII itself, this court, post-Bos tock, has continued to hold that in order “[t]o maintain a claim under Title VII, the plaintiff must demo nstrate that he was discriminated against Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 1213 because of a protected status, like sex,” race, or national origin. Th roupe, 988 F.3d at 1251 (emphasis added). In sum, then, Rodriguez is incorrect that she does not have to produce evidence from which a reasona ble jury could find that the Sheriff acted with a discriminatory intent or motive because of a protected trait like he r race, sex, and/or national origin. We conclude next that Rodr iguez failed to presen t such evidence. c. Rodriguez failed to produce evidence from which a jury could find or reasonably infer that th e Sheriff took the challenged employment actions against Rodr iguez because of her protected trait(s) We focus on the third step in the McDonnell Douglas analysis, where it was Rodriguez’s “ultimate burden” to persuade “the trier of fact that the defendant intentionally discriminated against” her be cause of her race, sex, and/or national origin. Burdine, 450 U.S. at 253. In response to the Sheri ff’s assertion of a legitimate, non-discriminatory reason fo r the challenged employment actions, Rodriguez had to produce ev idence that the Sheriff’s “p roffered reason was not the true reason for the employment decision[s].” Id. at 256. “She may succeed in this either directly by persuading the court th at a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Id. 6

6 Although we focus our discussion on th e third step of the McDonnell Douglas analysis, the district court was also probably correct that , at step one, Rodriguez did not state a prima facie disparate treatment claim because she failed to demonstrate “that the adversary employ ment actions occurred under circumstances which give rise to an inference of unlawful discrimina tion,” that is discri mination because of a Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 1314 Rodriguez adds one additional layer of analysis to her disparate treatment claim by relying at least in part on a “cat’ s paw” theory. “Unde r a cat’s-paw theory of recovery (also known as ‘s ubordinate bias’ or ‘rubber stamp’ theory), an employer who acts without discriminatory intent can be liable for a subordinate’s discriminatory animus if the employer uncr itically relies on the biased subordinate’s reports and recommendations in deciding to take adve rse employment action.” Tudor v. Se. Okla. State Univ., 13 F.4t h 1019, 1032 (10th Ci r. 2021) (quoting Thomas v. Berry Plastics Corp., 803 F. 3d 510, 514 (10th Cir. 2015)). Here, Rodriguez asserted that it was Instructor s Cunningham and True who were biased against Rodriguez because of he r race, sex, and/or national origin and that their bias influenced the Sheriff’s decisions to take adverse employment actions against

protected trait like her race, sex, and/or nati onal origin. (Aplt. App. 1744.) We have still other concerns about Rodriguez’s prima facie claim. Chief among those concerns is whether Rodriguez establishe d that she suffered a sufficiently adverse employment action—that is, “‘a significant change in employment status, such as hiring, firing, failing to promote, rea ssignment with significantly different responsibilities, or a decision causing a signific ant change in benefits.’” Throupe, 988 F.3d at 1252 (quoting Hiatt v. Colo. Seminary, 858 F.3d 1 307, 1316 (10th Cir. 2017)). Here, the Sheriff did not fire or demote Rodr iguez from her deputy pos ition. Those in her chain of command placed Rodriguez on a pe rformance improvement plan, or PIP, and several times placed her on paid administrative leave. But those actions usually are not sufficiently adverse to support a disparate tr eatment claim. See Paige v. Donovan, 511 F. App’x 729, 734–35 (10th Cir. 2013) (unpublis hed) (PIP); Juarez v. Utah, 263 F. App’x 726, 731, 737–38 (10th Cir. 2008) (unpub lished) (paid administrative leave). Furthermore, although we need not decide the questio n definitively, we doubt that requiring Rodriguez to undergo remedial trai ning was sufficiently adverse to support her disparate treatment claim. Cf. Couch v. Bd. of Trustees of Mem’l Hosp., 587 F.3d 1223, 1237–38, 1243 (10th Cir. 2009) (holding, in First Amendment case, that required training was not sufficiently adverse to support re taliation claim, applying more expansive definition of “adverse” than applies in T itle VII disparate treatment claims). Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 1415 Rodriguez. “To survive summary judgment on a ‘Cat’s Paw’ theory,” Rodriguez had to establish (1) “bias by the subo rdinates,” (2) “their influence in the decision-making process,” and (3) the Sheriff’s adoption of a “biased recommendation without an independent investigation.” Ward v. Jewell, 772 F.3d 1199, 1205 (10th Cir. 2014) (citing cases). 7 With Rodriguez’s theories in mind, we next explain why we agree with the district court that Rodri guez failed to present suffi cient evidence from which a reasonable jury could find that the conduct of whic h she complained occurred because of her race, sex, and/ or national origin. The evidence which the district court

7 As explained next, Rodriguez failed to present sufficient evidence from which a reasonable jury could find th at either Cunningham or Tr ue were biased against Rodriguez because of her race, sex, and/or national origin. But, in addition, there are a number of other problems with Rodriguez’s cat’s paw theory. Fo r example, even if Cunningham was biased agains t Rodriguez because of her race, sex, and/or national origin, there was no evidence implicating him in any adverse action taken against Rodriguez except for th e initial February 2015 report on her poor performance in the “shoot house.” While True was involved in a number of the remedial trainings that followed, so were a number of other inst ructors who also failed Rodriguez, yet Rodriguez does not allege that those other trainers acted with any discriminatory animus. Additionally, before placing R odriguez on paid leave and recommending that the Sheriff fire Rodriguez, member s of her chain of command first met with Rodriguez to hear her side of the story. Generally, under a cat’s paw theory, the fact that a supervisor meets with the employee is sufficient to break any taint flowing from a biased subordinate. See Hiatt, 858 F.3d at 1321; Ward, 772 F.3d at 1205. Moreover, although members of Rodriguez’ s chain of command recommended that the Sheriff fire her, the Sheriff did not accept that recommendation, which preludes a reasonable jury from finding that the Sherif f just rubber-stamped and uncritically accepted his allegedly biased subordinates’ recommendation. See Tudor, 13 F.4th at 1032. Furthermore, before requiring Rodri guez to undergo more training, the Sheriff first met with her and twice ordered an inde pendent investigation into complaints she made that her instructors were discriminating against her. In light of all of these problems, Rodriguez’s cat’s paw disparat e treatment claim ca nnot survive summary judgment. See id.; Hiatt, 858 F.3d at 1321; Ward, 772 F.3d at 1205. Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 1516 rejected as insufficient included Rodriguez’ s belief that Instructors Cunningham and True were biased against he r because of her race, sex, and/or national origin, her assertion that the Sheriff better treated deputies who were similarly situated to Rodriguez but who did not share her pr otected characteristics, and other miscellaneous evidence.
i. There is insuffici ent evidence from which a reasonable jury could find that either Cunni ngham or True acted against Rodriguez because of her race, sex, and/or national origin Rodriguez testified at her deposition that neither Cunningham nor True directed any racist or sexist comments towa rd her. Nevertheless, Rodriguez believed that they mistreated her becau se of her race, sex, and/or national origin. No matter how earnest her subjective a nd otherwise unsupported belief is, however, it alone is not sufficient for her claims to survive summary judgment. See, e.g., Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875–76 (10th Cir. 2004). In further support of her belief, Rodriguez points to two earlier incidents involving Cunningham and True. Sometime between 2008 and 2011, at least four years before the events at issue here began, Cunningham , in conducting a shoot/don’t shoot drill, used targets shaped like hands. Participants in the drill were not to shoot the white hands—the good guys—but were to shoot the brown hands—the bad guys. An Hispanic male deputy, Trujillo, asked Cunningham why the brown hands had to be the bad guys. Accordi ng to Deputy Trujillo, Cunning ham responded, “‘Oh, I’ll change it’ or ‘Don’t worry about it,’ or something to that effe ct.” (Aplt. App. 1319.) There is no indication that Cunningham con tinued to use the white and brown targets Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 1617 after Deputy Trujillo’s question and no evid ence of discriminatory motive or that Rodriguez was made awar e of this matter. In 2008—seven years before the events at issue here began—Instructor True, while booking into the detention center indi viduals charged with being in the United States illegally, “expresse d joy over the deportation of undocumented aliens of Hispanic heritage by saying, ‘Woo-hoo! We got another one.’” (Id. at 1734-35.) The district court aptly noted that this comment is ambiguous. True could have simply been pleased at the deportation of undocumented aliens because they were immigrants without regard to wh ether they were Hispanic. Each of these two incidents was ambigu ous as to whether either Cunningham or True were intentionally acting with a bi as against Hispanics. Furthermore, these incidents were isolated and occurred year s before the course of events involving Rodriguez. In light of that, they provide no insight into Cunningham’s or True’s motivation for taking the challenged actions ag ainst Rodriguez. These two incidents, then, are insufficient, alone or considered together, to support a reasonable jury finding that Cunningham and/or True acted were biased ag ainst Rodriguez because of her race, sex, and/or national origin.
ii. There is insufficient evid ence that the Sheriff treated Rodriguez less favorably than he treated similarly situated deputies who do not share Ro driguez’s protected traits Moving beyond Cunningham’s and True’s alleged discriminatory motive, Rodriguez next asserts that the Sheriff’ s proffered non-discriminatory reason for requiring her to undergo additional training— because “she demonstrated poor safety Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 1718 and decision-making skills despite her ongoing training” (i d. at 1727)—was unworthy of belief and was, instead, a pretext for discrimination based on Rodriguez’s race, sex, and/or national origin . In support of that assertion, Rodriguez contends that the Sheriff a nd his subordinates tr eated Rodriguez less favorably than they treated similarly situat ed deputies who do not share R odriguez’s protected traits. Rodriguez points to the followi ng deputies as comparators: 1. Deputy Brieske, a white male, acci dentally shot hims elf while holstering his weapon during a training exercise , suffering minor injuries. Deputy Brieske received a letter of reprimand and successfully completed remedial firearms training. His use of a firearm was never restricted. 2. Deputy Hunt, a white woman, acciden tally fired her weapon at a target during a training exercise, while unloading it. Deputy Hunt was subjected to on-the-spot remediation. 8 3. Deputy Hanson, a white male, while on duty at the detention center, inadequately patted-down a detainee, mi ssing a knife that was then smuggled into the jail. After Intern al Affairs (“IA”) investig ated him, his supervisor suspended Hanson without pa y for one or two days, he received a letter of reprimand, and his supervisor made a notation in his electronic TrakStar personnel record. 4. Deputy Carter, a black male, while on duty in the “Alternative Sentencing Program”—a program where detainees have greater freedom than they have in the detention center—left his firearm in an unsecured cubicle, which inmates

8 Hunt shares Rodriguez’s protected status as a woman. It is Rodriguez’s theory, however, that her protected traits should be considered together; th at is, she contends that she was discriminated against and hara ssed because she is an Hispanic woman originally from Venezuela. For summa ry judgment purposes, the district court accepted Rodriguez’s contention. We do the same. The Tenth Circuit has recognized Title VII claims based on discrimination becau se of more than one protected trait. See Frappied v. Affinity Gaming Black Ha wk, LLC, 966 F.3d 10 38, 1045 (10th Cir. 2020) (“Title VII also prohibits discrimi nation based on a combin ation of protected characteristics, such as ‘sex-p lus-race’ discrimination, i.e., discrimination targeted only at employees of a particular race and sex.”). Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 1819 could access. Carter receiv ed a letter of reprimand and the violation was noted in his TrakStar record. A few days late r, Carter left his “general access keys” unattended in an area inmates could acces s. This resulted in an IA investigation, and another letter of re primand and TrakStar notation. Carter then resigned his position with the “Alternative Sentencing Program.” 9 Id. at 1729, 1732. An employee can “show pretext ‘by providing evidence th at he was treated differently from other similarly situated, nonprotected employees who violated work rules of comparable seriousness,’” provided the “similarly situated” employee shares the same supervisor, is subject to the same performance standards, and otherwise faces comparable “relevant employment circumstances.” Green v. New Mexico, 420 F.3d 11 89, 1194 (10th Cir. 2005) (quoting Kendrick[ v. Penske Transp. Servs., Inc.] , 220 F.3d [1220,] 12 32 [(10th Cir. 2000]). E.E.O.C. v. BCI Coca-Cola Bo ttling Co., 450 F.3d 476, 489 (1 0th Cir. 2006). Here, for summary judgment purposes, the district court accepted Rodriguez’s assertion that these comparators were subj ect to the same performance standards as she was and that their safety violations were of co mparable seriousness to one of Rodriguez’s safety violations—the violation for hol stering her weapon in the prone position on the firing range—because all of these violations fell under th e same Sheriff’s policy. Even so, the comparators were not similarly situated to Rodriguez.

9 In addition to these four deputies, Rodr iguez also points to Deputy Vigil, an Hispanic male who forgot to bring his w eapon with him while tr ansporting an inmate for medical treatment, yet suffered no advers e consequences. Th e Sheriff’s Office, however, had no record of this safety vi olation and Rodriguez submits no evidence that this incident was ever brought to the attention of Vigil’s supervisors. We, therefore, have no basis to co mpare the Sheriff’s treatment of Vigil with his treatment of Rodriguez. Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 1920 Comparators Brieske, Hunt, and Ha nson committed only a single safety violation. Rodriguez, on the other hand, on the same day that she holstered while in the prone position at the firing range, also reportedly exhibited p oor judgment during the training simulation in the “shoot house.” Comparator Carter had more than one safety violation. But he self-corr ected his problems by resigning from the Alternative Sentencing Program. A further difference between Rodrigu ez and the proffered comparators was that Rodriguez continued to have trouble re mediating the training officers’ concerns about her judgment in using her firearm. While True wa s one of the instructors who noted these continuing problems, and Rodr iguez asserts that True harbored a discriminatory animus against her, Rodrig uez, as previously explained, failed to provide evidentiary support for that asserti on. Moreover, it was not just True who noted Rodriguez’s continuing problems exer cising judgment as to how and when to use her firearm. A number of other inst ructors echoed those concerns, instructors that Rodriguez has not alleged harbored a discriminatory bias against her, including Johnston, Van Hook, Hallett, Gabriel, Dyffryn, and Hoffman. Rodriguez has not identified any proffered comparator who had similar continuing difficulties passing remedial training. The district court, therefore, properly rejected Rodriguez’s comparison of her situation to the s ituation of these other four deputies. 10

10 Although the Sheriff has not raised the is sue, another problem with the proffered comparators is that Rodriguez has not shown that they share the same supervisor as Rodriguez. “Generally, to be similarly s ituated, employees must ‘deal with the same supervisor,’ McGowan v. City of Eufala , 472 F.3d 736, 745 (10t h Cir. 2006), because Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 2021 iii. Other evidence of discriminatory bias Rodriguez asserts other evid ence that she contends su ggests that the Sheriff’s asserted nondiscriminatory reasons for re quiring her to undergo mo re training were a pretext for discrimination. Rodriguez point s, for example, to a 2013 settlement that then-Sheriff Robinson entered into with the U.S. Departme nt of Justice because the Sheriff had “improperly restricted law en forcement positions to U.S. citizens notwithstanding the fact that no law, re gulation, executive or der, or government contract authorized it to restrict employment in this manner.” (Aplt. App. 1741 (quoting DOJ Press Release).) Because th is settlement and the policy it addressed pre-date Walcher becoming Sheriff, they ar e not relevant to whether Sheriff Walcher acted with any bias against Rodriguez. Rodriguez next points to the TrakStar entry her supervisor, Lt. Wickstrom, made indicating that Rodriguez “successfully completed” the firs t remedial firearms training on February 13, 2015, contrary to Instructors True’s and Van Hook’s assertion that Rodriguez failed that trai ning. But the Sheriff presented undisputed

‘[d]ifferent supervisors will inevitably react differently’ to employee misconduct. Kendrick v. Penske Transp. Se rvs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000).” Luke v. Hosp. Shared Servs., Inc., 513 F. App’x 763, 766 (10th Cir. 2013) (unpublished). Furthermore, the evidence in th is case indicates that firearms instructors have discretion in how they deal with safety violations oc curring at the shooting range. Here, however, we do not know who the instructors were who addressed comparators Brieske’s and Hunt’s firearms safety violations. Nor do we know what supervisors addressed comparator Hanson’s and Carte r’s work-related safety violati ons. Like Rodriguez, they all worked for the Sheriff. Bu t, while the Sheriff was activ ely involved in the challenged employment actions involving Rodriguez, it does not appear that he was involved in any of the proffered comparators’ cases. Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 2122 evidence that Lt. Wickstrom meant only to note that Rodriguez had successfully “qualified” with her firearm during the re medial training. Qualifying involves a deputy accurately firing a specified number of r ounds at a target in a set time period. Qualifying does not mean that Rodriguez passed other firearm training addressing a deputy’s judgment in how and when to use a firearm. Thus, Lt. Wickstrom stated that she only meant to indicate that Rodrig uez had successfully “qualified,” not that she had dispelled all of the concerns a bout her judgment in us ing her firearm. Moreover, Lt. Wickstrom had not attended the training and so had no first-hand knowledge of what transpir ed during the training. Further, there were during the ensui ng months and years a number of other instructors—instructors to whom Rodri guez does not attribut e a discriminatory animus, including Van Hook, Hallett, Dyff ryn, and Hoffman—who also expressed similar concerns with Rodriguez’s judgment in using her firearm. Those instructors’ reports corroborated, rather than contradi cted, the Sheriff’s be lief that Rodriguez exhibited poor judgment in using her fir earm. In light of that evidence, Lt. Wickstrom’s TrakStar entry wa s insufficient to create a tr iable issue of fact as to whether the Sheriff’s asserted non-discriminatory reason for requiring Rodriguez to undergo additional training was a pretex t for discriminating against Rodriguez because of her race, sex, and/or national origin. 11

11 In her appellate brief, “Rodriguez adaman tly denies” that she continued to commit safety violations throughout her ongoing training. (Aplt. Br. 31.) Even if the other instructors were mistaken about Rodrigu ez’s continuing struggles in passing the remedial firearm training—she does not al lege that these othe r instructors were Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 2223 Lastly, Rodriguez asserts that the distri ct court erred in failing to consider evidence from her co-workers indicating, among other things, that they had never seen any deputy treated in the manner in wh ich she was treated, and that True lied about training Rodriguez when she attende d the training academy in 2008. We find no error in the district cour t’s treatment of this or a ny other evidence. We, thus, agree with the district cour t that Rodriguez failed to present sufficien t evidence from which a reasonable jury could find that the adverse employment actions she challenges occurred because of her r ace, sex, and/or national origin.

biased against her because of her race, se x, and/or nation orig in—thus, her assertion is insufficient to suggest th at the Sheriff’s proffered non- discriminatory reasons for requiring Rodriguez to undergo further trai ning was a pretext for discrimination on the bases she alleges. “Evidence that the employer shou ld not have ma de the [adverse employment] decision—for example, that the employer was mistaken or used poor business judgment—is not su fficient to show that the employer’s explanation is unworthy of credibility.” . . . “The relevant inquiry is not whether the employer’s proffered reas ons were wise, fair or correct, but whether it honestly believed those re asons and acted in good faith upon those beliefs.” Hiatt, 858 F.3d at 1316 (quoting Swackham mer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1169–70 (10th Cir. 2007)). In determining whether the proffered reason for a decision was pretextual, we examine the facts as they appear to the person making the decision ,” Zamora v. Elite Logistics, Inc.], 478 F. 3d [1160,] 1166 [(10th Cir. 2007) (en banc)] (quoting Watts v. City of Norm an, 270 F.3d 1288, 1295 (10th Cir. 2001)); we do not look to th e plaintiff’s subjective eval uation of the situation, see McKnight v. Kimberly Clark Corp ., 149 F.3d 1125, 1130 (10th Cir. 1998). E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1044 (10th Cir. 2011). Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 2324 2. Harassment/hostile wo rk environment claims Giving Rodriguez the benefit of the doubt , we assume that she also alleged harassment that made her work environment hostile. 12 To establish actionable harassment, Rodriguez had to show that 1) she is a member of a protected group, 2) she was subjected to un welcome harassment, 3) the harassment was based on her protected trait(s), and 4) the harassment was sufficiently severe or pervasive to alter the terms and conditions of her employm ent and create an abusive working environment. See Payan v. United Par cel Serv., 905 F.3d 1162, 1170 (10th Cir. 2018) (emphasis added). Mo st relevant here, then, to survive summary judgment, Rodriguez had to “produce ev idence from which a rational ju ry could infer that she was targeted for harassment because of he r gender, race, or national origin.” Sandoval v. City of Boulder, Colo., 388 F. 3d 1312, 1327 (10th Cir. 2004); see also Payan, 905 F.3d at 1170. The district court granted the Sher iff summary judgment on Rodriguez’s harassment claims because “the evidence do es not demonstrate that Cunningham’s, True’s, or any other decisi on-makers’ actions constitute a race, gender, or national origin-based hostile work environment. Without such evidence, [Rodriguez] cannot

12 In her complaint, Rodriguez alleged “h arassment.” Hostile work environment describes generally a subset of harassment clai ms actionable under Title VII. See Jones v. Needham, 856 F.3d 1284, 1289 ( 10th Cir. 2017) (distinguishing between “quid pro quo” sexual ha rassment and “hostile work environment” sexual harassment). The type of harassment cl aim asserted by Rodriguez is hostile work environment harassment. Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 2425 show the purported hostile work envir onment was based on a protected trait.” 13 (Aplt. App. 1745.) We agree with the district court. “A hostile work environment claim is ‘composed of a series of separate acts that collectively constitute one unl awful employment practice.’” Throupe, 98 8 F.3d at 1251 (quoting Morgan, 536 U.S. at 117). To prove a claim of harassment, Rodriguez could rely on acts that are overtly taken because of ra ce, sex, or national origin, as well as acts that might seem neutral but wh en viewed in the context of other, overtly discriminatory conduct, are also part of the allegedly discri minatory work environm ent. See id. (quoting Sanderson v. Wyo. Highway Patrol, 976 F.3d 1164, 1174 (10th Cir. 2020)); O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 10 97 (10th Cir. 1999). Rodriguez could also rely on discriminatory acts taken agains t others in her workplace, so long as she shows that she was aware of those acts at th e time she claims she wa s subject to a hostile environment based on her race, sex, or na tional origin and so long as such acts contributed to the hostile work environment she alleges. See Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 959 (10th Cir. 2021); Tademy v. Union Pac. Corp., 614 F.3d 1132, 1146 (10th Cir. 2008). This is true whether Rodriguez witnessed the discriminatory acts against others or hear d about them second hand. See Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 681 & n. 5 (10th Cir. 2007).

13 The district court did not address whet her Rodriguez had es tablished that the harassment of which she complained was su fficiently severe or pervasive “as it was not argued in” the Sheriff’s su mmary judgment motion. (Ap lt. App. 1745 n. 7.) As we have stated previously, we have doubt whether this record establishes that the alleged harassment was sufficiently severe or pervasive. But we do not rely on that because this point was not raised in the district court or in this appeal. Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 2526 To prove her harassment claims, Rodrig uez relied on the same events on which she based her disparate treatment claims. In fact, she did not address her harassment claims separately from her disparate treatmen t claims. But as previously explained, Rodriguez did not assert any act s taken against her that were overtly because of her race, sex, or national origin. She acknowledged, for example, that neither Cunningham nor True, nor anyone else in her workplace, made derogatory comments based on her race, sex, or national origin. There was, then, no discriminatory context through which a reasonable jury could infer that any of the neutral acts take n against her were actually because of her race, sex, or national origin. Deputy Trujillo testified at his deposition that he experi enced discrimination at the Sheriff’s Office because he was Hispanic, in cluding his supervisor Aspinall refusing to call Trujillo by his name, but instead referring to Trujillo by other Hispanic surnames. The same supervisor physically assaulted Trujillo. But Rodrigu ez has not established that she was aware of these acts against Truji llo at the time she comp lained that her work environment was hostile to Hispanics. 14 As previously explained, Cunningham’ s white hands/brown hands drill, which was discontinued, and True’s glee at nabbing an immigrant not lawfully in the country occurred long before the events involving Rodriguez and were at most ambiguous. Nor

14 Trujillo also testified about discrimina tion against him becau se of a perceived disability. There is no indication that Rodr iguez was aware of these incidents but, in any event, they would not support her clai ms of a hostile work environment because of race, sex, or national origin. Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 2627 has Rodriguez established that she was presen t for white hands/brown hands drill. If not, she failed to address when she first heard a bout it. She also does not explain how the Sheriff’s Office’s settlement with DOJ or any conduct it involved affected her work environment. She otherwise makes vague assertions about ot her discriminatory comments or conduct, but fails to establish t hose incidents in any detail. The district court, thus, correctly granted the Sheri ff summary judgment on the hostile work environment claims. 3. Conclusion: Summary judgment for the Sheriff on Rodriguez’s disparate treatment and hostile wo rk environment claims was proper There is no evidence from which a reasona ble jury could find that Rodriguez’s alleged mistreatment was because of her ra ce, sex, and national origin. “Not all offensive or hurtful conduct within the workplace is actionable under Title VII,” Throupe, 988 F.3d at 1255; on ly conduct undertak en because of an employee’s protected trait(s). The district court, therefore, properly granted the Sheriff summary judgment on Rodriguez’s disparate tr eatment and hostile work environment claims.
B. Retaliation claims We also uphold the district court’s decision to grant the Sheriff summary judgment on Rodriguez’s claims alleging that the Sheriff retaliated against her for complaining that she was being discriminate d against. In expl aining why, we first state the relevant legal princi ples, briefly set forth Rodri guez’s retaliation claims, and then discuss the fatal fl aws the district court id entified in these claims. Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 2728 1. Relevant legal principles Both Title VII and the C ADA protect employees from an employer’s retaliation for opposing discrimination. See 42 U. S.C.A. § 2000e-3(a); Colo. Rev. Stat. § 24-34-402(1)(e)(IV). Where, as here, Rodr iguez did not present direct evidence of retaliation, she can prove her claim i ndirectly, using the McDonnell-Douglas burden-shifting framework. See Parker Excava ting, Inc. v. Lafarge W., Inc., 863 F.3d 1213, 1220 (10th Cir. 2017). Under that frame work, the employee mu st first establish a prima facie retaliation claim by plausibly alleg[ing] “(1) that [s]h e engaged in protected opposition to discrimination, (2) that a reasonab le employee would have found the challenged action materially adverse, and (3) that a causal connection existed between the protect ed activity and the materially adverse action.” See Khalik[ v. United Air Lines] , 671 F.3d [1188,] 1193 [(10th Cir. 2012)]. Reznik v. inContact, Inc., 18 F. 4th 1257, 1260 (10th Cir. 2021). 15 If the employee succeed s in establishing a prima fa cie retaliation claim, the burden shifts to the employer to assert a legitimate non-retaliatory reason for the challenged adverse action. See Edmonds-Ra dford v. Sw. Airlines Co., 17 F.4th 975, 994 (10th Cir. 2021) (applying McDonnell Douglas fram ework to retaliation claim under Americans with Disabilities Act).

15 In the retaliation contex t, a materially adverse em ployment action is one that “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry . Co. v. White, 548 U.S. 53, 57 (2006). A broader range of materially adverse employ ment actions, then, can support a retaliation claim than can support a dispar ate treatment discrimination claim. See id. at 56–57, 63– 67. Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 2829 Once the employer asserts a non-retaliat ory reason for the challenged actions, the burden shifts back to the employee to show that the employer’s asserted non-retaliatory reason was a pretext for unlaw ful retaliation. See id. The employee ultimately bears the burden of proving that “that the desire to retaliate was the but-for cause of the challenged employment action.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013). 2. Rodriguez’s specif ic retaliation claims Rodriguez alleged the following reta liatory actions, which we list chronologically: 1) Rodriguez complained about discri mination to Sergeant Walker, during the June 2015 IA investigati on, and on August 19, 2015, Lieutenant Burson, who was overseeing the IA investigation, decommissioned Rodriguez, placed her on paid leave, and recommended that the Sheriff terminate he r as a deputy. 2) Rodriguez alleged that, after she co mplained about discrimination to the Sheriff on August 26 and September 1, 20 15, the Sheriff retaliated against her by placing her on a PIP in November 2015. But the evidence i ndicates that it was the training sergeant, Chase, who recommended placi ng Rodriguez on a PIP, and her chain-of-command agreed. There is no indication that it was the Sheriff who ordered Rodriguez placed on the PIP. 16 3) In November 2015, Rodriguez comp lained about discrimination to her immediate supervisor, Sergeant Steffa , and soon thereafter, the PIP was extended.

16 Perhaps because of this evidentiary pr oblem, Rodriguez, for the first time on appeal, argues more generally that the Sher iff retaliated by requi ring her to undergo more training. Because she did not assert this argument to the district court, however, she has forfeited it. See Singh v. Cordle, 936 F.3d 1022, 1043 (10th Cir. 2019). Nevertheless, even on the merits it cannot survive summary judgment, as explained below. Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 2930 4) Rodriguez complained to the Sheriff about discrimination in June 2016. She did not specifically allege, howe ver, any adverse employment action resulting from that complaint. (This ma y be part of Rodriguez’s claim, raised for the first time on appeal, that the Sheriff retaliat ed against her by requiring more training.) 5) Rodriguez filed a complaint with the EEOC on January 3, 2017, alleging discrimination and retaliation, and the next day, January 4, Chief Line, accompanied by Lieutenant Knight, deco mmissioned her, placed her on paid administrative leave, and told her he was again recommending that the Sheriff terminate her as a deputy. But the evidence is undisputed that the EEOC complaint was not served on the Sheriff’s Office until January 5. Rodriguez points to no evidence indicating that a nyone in the Sheriff’s Office knew about the EEOC complaint until Rodr iguez told Chief Line about it on January 4. That was after Line informed her of these challenged adverse personnel actions. The undisputed evidence further indicates that she was returned to work within an hour of being placed on administrative leave on January 4, while the Sheriff investigated her discrimination claims. 17 The record, then, does not support Rodriguez’s second and fifth factual allegations of retaliation, a nd her fourth claim is inade quate. But those allegations, as well as the others, fail for other reasons t oo, as explained next. 3. Rodriguez failed to sh ow that the persons taking these adverse actions against her knew at the time that Rodriguez had complained about discrimination In order to establish the third elemen t of her prima facie retaliation claims, Rodriguez had to show a causal connectio n between her protected activity opposing discrimination and the advers e employment actions of wh ich she complains. See

17 In the district court, R odriguez also alleged that, a few months after the new sheriff, Brown, was elected, his undersheri ff, Nicastle, retaliated against Rodriguez by requiring her to undergo s till more training. And R odriguez alleged a cat’s paw argument based apparently on True holding a retaliatory animus against Rodriguez for complaining that True was discriminati ng. Rodriguez, however, does not reassert those claims on appeal. In any event, summary judgment for the Sheriff on those claims was appropriate. Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 3031 Reznik, 18 F.4th at 1260. In order to show a causal connection, Rodriguez had to show that at the time an actor took the ch allenged adverse action against her the actor knew about Rodriguez’s protec ted opposition to discrimina tion. See Singh, 936 F.3d at 1043. Several of Rodriguez’s retaliation claims lack this causal connection. Specifically, Rodriguez failed to presen t evidence that eith er Chief Line or Lieutenant Knight knew that she had file d a complaint with th e EEOC before they placed her on paid administrativ e leave in January 2017.
4. Pretext Even if Rodriguez was able to establish a prima facie claim as to the rest of her retaliation claims, the Sher iff proffered a non-retaliatory reason for requiring Rodriguez to undergo more training—“[ T]he officers training [Rodriguez] consistently found that sh e demonstrated poor safety and decision-making skill despite her ongoing training” (Aplt. App. 1727). Rodriguez contends, unpersuasively, that this re ason was a pretext for retaliation. On appeal, however, she addresses this argument in only a pe rfunctory manner, relying on some of the same evidence that she conte nds shows discrimination. As a starting point, Rodriguez’s ch ain of command, and the Sheriff in particular, consistently assert ed, throughout this four-year course of events and the ensuing litigation, that they took the advers e actions against Rodriguez because they believed that she had demonstrated poor judgment and committed numerous safety violations during her reme dial training sessions. “The consistency of their explanations cuts against a finding of pretext.” Hiatt, 858 F.3d at 1319. Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 3132 Rodriguez argues that it was incorrect that she continue d to make safety errors and show poor judgme nt during her training. But sh e has failed to present any evidence that the Sheriff or the rest of her chain of co mmand asserted these reasons to cover up their desire to retaliate ag ainst Rodriguez. No r does she assert any evidence suggesting that the Sheriff or Ro driguez’s subordinate chain of command, even if mistaken, did not honestly believe that Rodriguez had failed her remedial training. See id. at 1316; C.R. England, 644 F.3d at 1044. In the district court, Rodriguez ag ain relied on Lieutenant Wickstrom’s notation in TrakStar that Rodriguez “suc cessfully completed” the first remedial training in February 2015. Th at, again, is insufficient to create a disputed question of fact as to whether the Sheriff honestly believed that Rodriguez had shown poor judgment throughout the remedial traini ng, warranting more training. The two trainers who conducted the February 2015 remedial trai ning, as well as numerous trainers after that—trainers to whom R odriguez does not attribute any retaliatory motive, including Van Hook, Hallett, Dyffryn, and Hoffman—corroborated Rodriguez’s poor judgment and safety record in using her firearm. Those reports bolster, not contradict, the non-retaliatory reasons the Sh eriff and Rodriguez’s chain of command asserted to justify the adve rse actions they took against her. 5. Temporal proximity Finally, Rodriguez contends that the close temporal proximity between her discrimination complaints and the allegedly retaliatory adverse ac tions she incurred is sufficient alone for her retaliation claims to survive summary judgment. Even if Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 3233 Rodriguez could rely on close temporal pr oximity here to establish a prima facie retaliation claim, see Bekkem v. Wilkie, 915 F.3d 1258, 1271 (10th Cir. 2019), it is insufficient for her to meet her ultimate burden of provi ng that a reta liatory motive was the “but for” cause of those adverse actions, see Bird v. W. Valley City, 832 F.3d 1188, 1204 (10th Cir. 2016) (citing cases) . The district court, then, did not err in granting the Sheriff summary judgmen t on Rodriguez’s retaliation claims.
IV. CONCLUSION The district court properly granted th e Sheriff summary judgment on all of Rodriguez’s claims. Fatal to her disparat e treatment and hostile work environment claims, Rodriguez failed to present suffi cient evidence from whic h a reasonable jury could find that the challenged adverse actions taken agains t her were either because of her race, sex, and/or national origin or taken in retaliation for her claims of discrimination. Nor could a reasonable ju ry find that her work environment was hostile because of harassment based on race, se x, or national origin. We, therefore, AFFIRM the district court’s su mmary judgment decision.

Entered for the Court

David M. Ebel Circuit Judge Appellate Case: 21-1124 Document: 010110726534 Date Filed: 08/18/2022 Page: 33