UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JEANETTE RODRIGUEZ, 

 Plaintiff - Appellant, 

v. 

ARAPAHOE COUNTY 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 deputy sheriff who works at the Arapahoe 

County detention center, appeals the district court’s decision granting her employer, 

the Arapahoe County Sheriff, summary judgment on Rodriguez’s employment 

discrimination claims alleging disparate treatment and hostile work environment 

based on her race (Hispanic), sex (female), and national origin (Venezuelan). The 

district court also granted the Sheriff summary judgment on Rodriguez’s claims 

alleging that the Sheriff retaliated against her when she complained about this 

*

 This order and judgment is not binding precedent, except under the doctrines of law 

of the case, res judicata, and collateral estoppel. It may 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

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discriminatory mistreatment. Having jurisdiction under 28 U.S.C. § 1291, we 

AFFIRM summary judgment for the Sheriff because Rodriguez failed to present 

sufficient evidence from which a reasonable jury could find that any of the 

mistreatment of which she complains was because on her race, sex, or national 

origin, or was taken in retaliation for her discrimination complaints. 

I. BACKGROUND 

We have carefully considered the evidence in detail, viewing it in the light 

most favorable to Rodriguez. See Herrmann v. Salt Lake City Corp., 21 F.4th 666, 

673 (10th Cir. 2021). Here, we recite that evidence only summarily. Rodriguez has 

worked as a deputy at the County detention 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, Cunningham, during a training 

simulation in a “shoot house.” Later that same day, while working with a different 

instructor, Rodriguez committed a safety violation at the shooting range, holstering 

her weapon while she was in a prone position. As a result of these two problems, 

Rodriguez was restricted from using her firearm 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 supervisors would require 

1

 Rodriguez was able to continue working despite this firearm restriction because 

deputies do not carry firearms in the detention center. But she could not perform all 

of her job duties. For example, Rodriguez was not able to transport detainees outside 

the jail because that would have required her to carry a firearm. 

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Rodriguez to undergo additional training, after which the trainers would fail her; her 

supervisors would then place Rodriguez on paid administrative leave and recommend 

that the Sheriff fire her; the Sheriff—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 least three times over four years’ time. 

During this course of events, Rodriguez 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 remedial training and 

her firearm restriction was lifted. 

This litigation, however, continued. Rodriguez sued the Sheriff, in his official 

capacity,2

 asserting four claims: 1) a Title VII claim for disparate treatment 

discrimination and hostile work environment based on Rodriguez’s race (Hispanic), 

sex (female), and national origin (Venezuela); 2) the same discrimination claims 

asserted under the Colorado Anti-Discrimination Act (“CADA”); 3) a Title VII 

retaliation claim; and 4) a retaliation claim under CADA. Following discovery, the 

district court3

 granted the Sheriff’s motion for summary judgment on all of 

Rodriguez’s claims. Rodriguez 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). 

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II. STANDARD OF REVIEW 

We review the district court’s summary judgment decision de novo, viewing 

the evidence in the light most favorable to Rodriguez and drawing all reasonable 

inferences in her favor. See 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 law.” 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, Title VII required Rodriguez to exhaust her administrative 

remedies by filing a complaint with the EEOC within 300 days after each alleged 

discriminatory practice occurred. 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. Morgan, 536 U.S. 101, 105 

(2002). In light of that, the district court ruled: Rodriguez could base her Title VII 

disparate treatment and retaliation claims on only discrete adverse employment 

actions occurring on and after March 9, 2016, which was 300 days before Rodriguez 

filed her first EEOC complaint in January 2017. See Morgan, 536 U.S. at 105, 122. 

But Rodriguez could rely on earlier incidents to support her Title VII hostile work 

environment harassment claim because she had 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. 

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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 administrative remedies. See Colo. Rev. 

Stat. § 24-34-403 (referencing § 24-34-306); see also Deneffe v. SkyWest, Inc., 

No. 14-cv-00348-MEH, 2015 WL 232128, at *4–5 (D. Colo. Jan. 16, 2015) 

(unreported) (applying state-law requirements for timely filing administrative 

complaint for CADA claims while applying federal time requirements for filing 

EEOC complaint for Title VII claims). In the district court, the Sheriff neither 

separately addressed and challenged the timeliness of Rodriguez’s exhaustion of her 

CADA claims, nor did he cite any authority suggesting that the Title VII timeliness 

analysis should apply to the CADA claims. He does not address these CADA 

timeliness issues on appeal, either. Because the Sheriff asserts no statute of 

limitation defense as to the CADA claims, for purposes of this appeal we consider 

Rodriguez’s CADA claims without any time limitations. See generally Deneffe, 

2015 WL 232128, at *4–5 (treating statute of limitations for a CADA claim as an 

affirmative defense); San Juan Basin Consortium, Ltd. v. EnerVest San Juan 

Acquisition Ltd. P’ship, 67 F. Supp. 2d 1213, 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. Sand & Gravel Co. v. 

United States, 552 U.S. 130, 133 (2008) (noting that “the law typically treats a 

limitations defense as an affirmative defense . . . that is subject to forfeiture and 

waiver”). 

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Substantively, the same legal standards apply to both Title VII and CADA 

claims. See Lamb v. Montrose Cnty. Sheriff’s Off., No. 19-1275, 2022 WL 487105, 

at *3 (10th Cir. Feb. 17, 2022) (unpublished) (citing Johnson v. Weld Cnty., 594 F.3d 

1202, 1219 n.11 (10th Cir. 2010)). Therefore, the following 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 incidents she cites in the following substantive 

analysis with regard to the CADA claims. We turn first to Rodriguez’s disparate 

treatment and hostile work environment claims before addressing her retaliation 

claims. 

A. Disparate treatment and hostile work environment claims4

 Title VII makes it “an unlawful employment practice for an employer . . . to 

discriminate against any individual with respect to his compensation, terms, 

4

 It is not at all clear that plaintiff is asserting a separate hostile work 

environment claim. She never separately addresses the elements of a hostile work 

environment claim apart from her disparate treatment 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 would 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 was because of her race, sex, or national 

origins. She generally asserts “harassment” only in a conclusory fashion. The 

elements of a disparate treatment claim differ from the standard of hostile work 

environment claims, but we do not dwell on those difference here because both 

claims require that the complained of conduct be based on or related to her race, sex, 

and/or national origin. On appeal, Rodriguez did not address all the elements 

necessary to state a prima facie hostile work environment claim. However, that 

appears to be because in the district court the Sheriff only moved for summary 

judgment on the question of whether the “harassing conduct” was motivated by 

Rodriguez’s race, sex, or national origin. (Aplt. App. 61.) 

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conditions, or privileges of employment, because 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 protected 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 national origin was a motivating factor for any 

employment practice, even though other factors 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 disparate treatment and hostile work environment 

claims, ruling that Rodriguez failed to present sufficient evidence from which a 

reasonable jury could find that the conduct of which she 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”). 

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 1. Disparate treatment claims 

a. This claim requires proof that the challenged conduct was based 

on a protected trait 

Rodriguez sought to prove disparate treatment discrimination indirectly, using 

the burden-shifting McDonnell Douglas paradigm.5

 Under that familiar analytical 

framework, an employee first must establish 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 action under circumstances giving “rise to an 

inference of unlawful discrimination,” Burdine, 450 U.S. at 253. “The prima facie 

case serves an important function in the litigation: it eliminates the most common 

nondiscriminatory reasons for the plaintiff’s rejection.” Id. at 253–54. 

[T]he prima facie case “raises an inference of discrimination only because 

we presume these acts, if otherwise unexplained, are more likely than not 

based on the consideration of impermissible factors.” Establishment of 

the prima facie case in effect creates a presumption that the employer 

unlawfully discriminated against the employee. If the trier of fact believes 

the plaintiff’s evidence, and if the employer is silent in the face of the 

presumption, the court must enter judgment for the plaintiff because no 

issue of fact remains 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 employer’s burden is only one of production. 

5

 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see also Tex. Dep’t of 

Comty. Affairs v. Burdine, 450 U.S. 248, 252–56 (1981) (explaining the McDonnell 

Douglas analytical framework). 

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Id. at 254–56. Here, the Sheriff satisfied his burden by asserting that he took the 

challenged personnel actions because Rodriguez “demonstrated poor safety and 

decision-making skills despite her ongoing training, and [she] could thus not perform 

the duties of the deputy position.” (Aplt. App. at 1727.) The Sheriff’s proffered 

explanation sufficiently rebutted any presumption of discrimination created by 

Rodriguez’s prima facie discrimination claim. See Burdine, 450 U.S. at 254–55. 

“The ultimate burden of persuading the trier of fact that the defendant 

intentionally discriminated against the plaintiff remains at all times with the plaintiff.” 

Id. at 253. 

The plaintiff retains the burden of persuasion. She now must have the 

opportunity to demonstrate that the 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 succeed in this either directly by 

persuading the court that a discriminatory reason more likely motivated 

the employer or indirectly by showing that the employer’s proffered 

explanation is unworthy of credence. 

Id. at 256 (citing McDonnell Douglas, 411 U.S. at 804–05). 

 In granting the Sheriff summary judgment, 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 adversary employment actions occurred under 

circumstances which give rise to an inference of unlawful discrimination,” that is 

discrimination because of a protected trait like her race, sex, and/or national origin. 

(Aplt. App. 1744.) The district court further ruled that, at the third step of the 

McDonnell Douglas analysis, Rodriguez had also failed to rebut the Sheriff’s 

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legitimate, nondiscriminatory reasons for the challenged actions he took against 

Rodriguez. 

b. Rodriguez incorrectly asserts that she did not need to produce 

evidence of the Sheriff’s discriminatory motive or intent in support 

of her disparate treatment claim 

Contrary to the preceding discussion, Rodriguez erroneously contends, for the 

first time on appeal, that she does not have to produce any evidence that the Sheriff 

acted with a discriminatory intent or motive in order to support her disparate 

treatment claim. Rodriguez’s argument 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 indirectly proving discrimination, Rodriguez 

forfeited that argument by not raising it in the district court. See Throupe, 988 F.3d 

at 1254. Moreover, that argument fails on its merits. The plaintiff’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 sex,” 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 analytical framework, Rodriguez had to present 

sufficient evidence from which a jury could reasonably infer that the Sheriff took the 

challenged actions, at least in part, because of Rodriguez’s protected trait(s). 

If Rodriguez is, instead, arguing here that the district court erred by requiring 

her to prove more than that—that the district court instead required her to produce 

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direct evidence of the Sheriff’s subjective discriminatory intent—that argument lacks 

merit. Our review of the district court’s decision indicates that the court did not 

require Rodriguez to prove more than what the relevant McDonnell Douglas analysis 

mandates. 

Rodriguez relies on two grounds to support her assertion that she does not 

have to produce any evidence that the Sheriff acted with a discriminatory intent or 

motive. First, she relies on two Supreme Court cases— Albemarle Paper Co. v. 

Moody, 422 U.S. 405, 422–23 (1975), and Griggs v. Duke Power Co., 401 U.S. 424, 

432 (1971)—that address disparate impact, rather than disparate treatment, 

discrimination claims. See Ricci v. DeStefano, 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 discriminatory motive is critical, although it can 

in some situations be inferred from the mere fact of differences in 

treatment. . . . 

“[C]laims that stress ‘disparate impact’ [by contrast] involve 

employment practices that are facially neutral in their treatment of 

different groups but that in fact fall 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 quoting Int’l Bhd. of Teamsters v. United 

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States, 431 U.S. 324, 335–336 n. 15 (1977) (construing Title VII)) (alterations added 

in Hazen Paper). Because Rodriguez alleged only disparate treatment claims, her 

reliance on disparate impact cases like Albemarle and Griggs is misplaced. 

Second, Rodriguez relies on Bostock v. Clayton County, which held that when 

an employer fires an employee “for being homosexual or transgender,” the employer 

violates Title VII’s prohibition against discrimination based on sex. 140 S. Ct. 1731, 

1737 (2020). The employers in Bostock conceded 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 employers’ intent or motivation in 

acting against the employees. The question presented there, instead, was whether 

that conceded motivation based on plaintiffs 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 employers only when they ‘fail or refuse 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-called ‘disparate treatment’ cases like today’s, 

. . . the difference in treatment based on sex must be intentional.” Id. at 1740 

(emphasis added). Consistent with Bostick’s admonition and the language of Title 

VII itself, this court, post-Bostock, has continued to hold that in order “[t]o maintain a 

claim under Title VII, the plaintiff must demonstrate that he was discriminated against 

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because of a protected status, like sex,” race, or national origin. Throupe, 988 F.3d at 

1251 (emphasis added). 

In sum, then, Rodriguez is incorrect that she does not have to produce 

evidence from which a reasonable jury could find that the Sheriff acted with a 

discriminatory intent or motive because of a protected trait like her race, sex, and/or 

national origin. We conclude next that Rodriguez failed to present such evidence. 

c. Rodriguez failed to produce evidence from which a jury could 

find or reasonably infer that the Sheriff took the challenged 

employment actions against Rodriguez 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 because of her race, sex, and/or national 

origin. Burdine, 450 U.S. at 253. In response to the Sheriff’s assertion of a 

legitimate, non-discriminatory reason for the challenged employment actions, 

Rodriguez had to produce evidence that the Sheriff’s “proffered 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 that 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 the 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 employment actions occurred under circumstances which give 

rise to an inference of unlawful discrimination,” that is discrimination because of a 

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 Rodriguez adds one additional layer of analysis to her disparate treatment 

claim by relying at least in part on a “cat’s paw” theory. “Under a cat’s-paw theory 

of recovery (also known as ‘subordinate bias’ or ‘rubber stamp’ theory), an employer 

who acts without discriminatory intent can be liable for a subordinate’s 

discriminatory animus if the employer uncritically relies on the biased subordinate’s 

reports and recommendations in deciding to take adverse employment action.” 

Tudor v. Se. Okla. State Univ., 13 F.4th 1019, 1032 (10th Cir. 2021) (quoting 

Thomas v. Berry Plastics Corp., 803 F.3d 510, 514 (10th Cir. 2015)). Here, 

Rodriguez asserted that it was Instructors Cunningham and True who were biased 

against Rodriguez because of her 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 national origin. (Aplt. App. 1744.) We have 

still other concerns about Rodriguez’s prima facie claim. Chief among those 

concerns is whether Rodriguez established that she suffered a sufficiently adverse 

employment action—that is, “‘a significant change in employment status, such as 

hiring, firing, failing to promote, reassignment with significantly different 

responsibilities, or a decision causing a significant change in benefits.’” Throupe, 988 

F.3d at 1252 (quoting Hiatt v. Colo. Seminary, 858 F.3d 1307, 1316 (10th Cir. 2017)). 

Here, the Sheriff did not fire or demote Rodriguez from her deputy position. Those in her 

chain of command placed Rodriguez on a performance 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 treatment claim. See Paige v. Donovan, 511 

F. App’x 729, 734–35 (10th Cir. 2013) (unpublished) (PIP); Juarez v. Utah, 263 F. App’x 

726, 731, 737–38 (10th Cir. 2008) (unpublished) (paid administrative leave). 

Furthermore, although we need not decide the question definitively, we doubt that 

requiring Rodriguez to undergo remedial training 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 retaliation claim, applying more expansive 

definition of “adverse” than applies in Title VII disparate treatment claims). 

 

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Rodriguez. “To survive summary judgment on a ‘Cat’s Paw’ theory,” Rodriguez had to 

establish (1) “bias by the subordinates,” (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 Rodriguez failed to present sufficient evidence from which a 

reasonable jury could find that the conduct of which 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 that either Cunningham or True 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. For example, even if 

Cunningham was biased against 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 the 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 instructors who also failed Rodriguez, yet 

Rodriguez does not allege that those other trainers acted with any discriminatory 

animus. Additionally, before placing Rodriguez on paid leave and recommending 

that the Sheriff fire Rodriguez, members 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 Sheriff just rubber-stamped and uncritically 

accepted his allegedly biased subordinates’ recommendation. See Tudor, 13 F.4th at 

1032. Furthermore, before requiring Rodriguez to undergo more training, the Sheriff 

first met with her and twice ordered an independent investigation into complaints she 

made that her instructors were discriminating against her. In light of all of these 

problems, Rodriguez’s cat’s paw disparate treatment claim cannot survive summary 

judgment. See id.; Hiatt, 858 F.3d at 1321; Ward, 772 F.3d at 1205. 

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rejected as insufficient included Rodriguez’s belief that Instructors Cunningham and 

True were biased against her 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 protected characteristics, and other 

miscellaneous evidence. 

i. There is insufficient evidence from which a reasonable jury 

could find that either Cunningham 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 toward her. Nevertheless, Rodriguez believed 

that they mistreated her because of her race, sex, and/or national origin. No matter 

how earnest her subjective and 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. According to Deputy Trujillo, Cunningham responded, “‘Oh, I’ll 

change it’ or ‘Don’t worry about it,’ or something to that effect.” (Aplt. App. 1319.) 

There is no indication that Cunningham continued to use the white and brown targets 

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after Deputy Trujillo’s question and no evidence of discriminatory motive or that 

Rodriguez was made aware of this matter. 

In 2008—seven years before the events at issue here began—Instructor True, 

while booking into the detention center individuals charged with being in the United 

States illegally, “expressed 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 whether they were Hispanic. 

Each of these two incidents was ambiguous as to whether either Cunningham 

or True were intentionally acting with a bias against Hispanics. Furthermore, these 

incidents were isolated and occurred years 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 against 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 against Rodriguez because of 

her race, sex, and/or national origin. 

ii. There is insufficient evidence that the Sheriff treated 

Rodriguez less favorably than he treated similarly situated 

deputies who do not share Rodriguez’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 

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and decision-making skills despite her ongoing training” (id. 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 and his subordinates treated Rodriguez less favorably than 

they treated similarly situated deputies who do not share Rodriguez’s protected traits. 

Rodriguez points to the following deputies as comparators: 

1. Deputy Brieske, a white male, accidentally shot himself 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, accidentally 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, missing a knife that was then smuggled 

into the jail. After Internal Affairs (“IA”) investigated him, his supervisor 

suspended Hanson without pay 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; that is, she contends 

that she was discriminated against and harassed because she is an Hispanic woman 

originally from Venezuela. For summary judgment purposes, the district court 

accepted Rodriguez’s contention. We do the same. The Tenth Circuit has recognized 

Title VII claims based on discrimination because of more than one protected trait. 

See Frappied v. Affinity Gaming Black Hawk, LLC, 966 F.3d 1038, 1045 (10th Cir. 

2020) (“Title VII also prohibits discrimination based on a combination of protected 

characteristics, such as ‘sex-plus-race’ discrimination, i.e., discrimination targeted only at 

employees of a particular race and sex.”). 

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could access. Carter received a letter of reprimand and the violation was noted 

in his TrakStar record. A few days later, Carter left his “general access keys” 

unattended in an area inmates could access. This resulted in an IA 

investigation, and another letter of reprimand 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 that 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 1189, 1194 (10th Cir. 2005) (quoting Kendrick[ v. 

Penske Transp. Servs., Inc.], 220 F.3d [1220,] 1232 [(10th Cir. 2000]). 

E.E.O.C. v. BCI Coca-Cola Bottling Co., 450 F.3d 476, 489 (10th Cir. 2006). Here, for 

summary judgment purposes, the district court accepted Rodriguez’s assertion that 

these comparators were subject to the same performance standards as she was and 

that their safety violations were of comparable seriousness to one of Rodriguez’s 

safety violations—the violation for holstering her weapon in the prone position on 

the firing range—because all of these violations fell under the same Sheriff’s policy. 

Even so, the comparators were not similarly situated to Rodriguez. 

9

 In addition to these four deputies, Rodriguez also points to Deputy Vigil, an 

Hispanic male who forgot to bring his weapon with him while transporting an inmate 

for medical treatment, yet suffered no adverse consequences. The Sheriff’s Office, 

however, had no record of this safety violation and Rodriguez submits no evidence 

that this incident was ever brought to the attention of Vigil’s supervisors. We, 

therefore, have no basis to compare the Sheriff’s treatment of Vigil with his treatment 

of Rodriguez. 

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Comparators Brieske, Hunt, and Hanson 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 poor judgment during 

the training simulation in the “shoot house.” Comparator Carter had more than one 

safety violation. But he self-corrected his problems by resigning from the 

Alternative Sentencing Program. 

A further difference between Rodriguez and the proffered comparators was 

that Rodriguez continued to have trouble remediating the training officers’ concerns 

about her judgment in using her firearm. While True was one of the instructors who 

noted these continuing problems, and Rodriguez asserts that True harbored a 

discriminatory animus against her, Rodriguez, as previously explained, failed to 

provide evidentiary support for that assertion. Moreover, it was not just True who 

noted Rodriguez’s continuing problems exercising judgment as to how and when to 

use her firearm. A number of other instructors 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 situation of these other four deputies.10 

10 Although the Sheriff has not raised the issue, another problem with the proffered 

comparators is that Rodriguez has not shown that they share the same supervisor as 

Rodriguez. “Generally, to be similarly situated, employees must ‘deal with the same 

supervisor,’ McGowan v. City of Eufala, 472 F.3d 736, 745 (10th Cir. 2006), because 

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iii. Other evidence of discriminatory bias 

Rodriguez asserts other evidence that she contends suggests that the Sheriff’s 

asserted nondiscriminatory reasons for requiring her to undergo more training were a 

pretext for discrimination. Rodriguez points, for example, to a 2013 settlement that 

then-Sheriff Robinson entered into with the U.S. Department of Justice because the 

Sheriff had “improperly restricted law enforcement positions to U.S. citizens 

notwithstanding the fact that no law, regulation, executive order, or government 

contract authorized it to restrict employment in this manner.” (Aplt. App. 1741 

(quoting DOJ Press Release).) Because this settlement and the policy it addressed 

pre-date Walcher becoming Sheriff, they are 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 first remedial firearms 

training on February 13, 2015, contrary to Instructors True’s and Van Hook’s 

assertion that Rodriguez failed that training. But the Sheriff presented undisputed 

‘[d]ifferent supervisors will inevitably react differently’ to employee misconduct. 

Kendrick v. Penske Transp. Servs., 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 this case indicates that firearms instructors have discretion 

in how they deal with safety violations occurring 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 Carter’s work-related safety violations. Like Rodriguez, they 

all worked for the Sheriff. But, while the Sheriff was actively involved in the challenged 

employment actions involving Rodriguez, it does not appear that he was involved in any 

of the proffered comparators’ cases. 

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evidence that Lt. Wickstrom meant only to note that Rodriguez had successfully 

“qualified” with her firearm during the remedial training. Qualifying involves a 

deputy accurately firing a specified number of rounds 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 Rodriguez had successfully “qualified,” not that 

she had dispelled all of the concerns about her judgment in using her firearm. 

Moreover, Lt. Wickstrom had not attended the training and so had no first-hand 

knowledge of what transpired during the training. 

Further, there were during the ensuing months and years a number of other 

instructors—instructors to whom Rodriguez does not attribute a discriminatory 

animus, including Van Hook, Hallett, Dyffryn, and Hoffman—who also expressed 

similar concerns with Rodriguez’s judgment in using her firearm. Those instructors’ 

reports corroborated, rather than contradicted, the Sheriff’s belief that Rodriguez 

exhibited poor judgment in using her firearm. In light of that evidence, Lt. 

Wickstrom’s TrakStar entry was insufficient to create a triable issue of fact as to 

whether the Sheriff’s asserted non-discriminatory reason for requiring Rodriguez to 

undergo additional training was a pretext for discriminating against Rodriguez 

because of her race, sex, and/or national origin.11 

11 In her appellate brief, “Rodriguez adamantly denies” that she continued to commit 

safety violations throughout her ongoing training. (Aplt. Br. 31.) Even if the other 

instructors were mistaken about Rodriguez’s continuing struggles in passing the 

remedial firearm training—she does not allege that these other instructors were 

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Lastly, Rodriguez asserts that the district 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 which she was treated, and that True lied 

about training Rodriguez when she attended the training academy in 2008. We find 

no error in the district court’s treatment of this or any other evidence. We, thus, 

agree with the district court that Rodriguez failed to present sufficient evidence from 

which a reasonable jury could find that the adverse employment actions she 

challenges occurred because of her race, sex, and/or national origin. 

biased against her because of her race, sex, and/or nation origin—thus, her assertion 

is insufficient to suggest that the Sheriff’s proffered non-discriminatory reasons for 

requiring Rodriguez to undergo further training was a pretext for discrimination on 

the bases she alleges. 

“Evidence that the employer should not have made the [adverse 

employment] decision—for example, that the employer was mistaken or 

used poor business judgment—is not sufficient to show that the employer’s 

explanation is unworthy of credibility.” . . . “The relevant inquiry is not 

whether the employer’s proffered reasons were wise, fair or correct, but 

whether it honestly believed those reasons and acted in good faith upon those 

beliefs.” 

Hiatt, 858 F.3d at 1316 (quoting Swackhammer 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 Norman, 270 F.3d 1288, 1295 (10th Cir. 

2001)); we do not look to the plaintiff’s subjective evaluation 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). 

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2. Harassment/hostile work 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 unwelcome 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 employment and create an abusive working 

environment. See Payan v. United Parcel Serv., 905 F.3d 1162, 1170 (10th Cir. 

2018) (emphasis added). Most relevant here, then, to survive summary judgment, 

Rodriguez had to “produce evidence from which a rational jury could infer that she 

was targeted for harassment because of her 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 Sheriff summary judgment on Rodriguez’s 

harassment claims because “the evidence does not demonstrate that Cunningham’s, 

True’s, or any other decision-makers’ actions constitute a race, gender, or national 

origin-based hostile work environment. Without such evidence, [Rodriguez] cannot 

12 In her complaint, Rodriguez alleged “harassment.” Hostile work environment 

describes generally a subset of harassment claims actionable under Title VII. See 

Jones v. Needham, 856 F.3d 1284, 1289 (10th Cir. 2017) (distinguishing between 

“quid pro quo” sexual harassment and “hostile work environment” sexual 

harassment). The type of harassment claim asserted by Rodriguez is hostile work 

environment harassment. 

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show the purported hostile work environment 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 unlawful employment practice.’” Throupe, 988 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 race, sex, or national origin, as well as acts 

that might seem neutral but when viewed in the context of other, overtly discriminatory 

conduct, are also part of the allegedly discriminatory work environment. 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, 1097 (10th Cir. 1999). Rodriguez could 

also rely on discriminatory acts taken against others in her workplace, so long as she 

shows that she was aware of those acts at the time she claims she was subject to a hostile 

environment based on her race, sex, or national 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 heard 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 whether Rodriguez had established that the 

harassment of which she complained was sufficiently severe or pervasive “as it was 

not argued in” the Sheriff’s summary judgment motion. (Aplt. 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. 

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To prove her harassment claims, Rodriguez 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 treatment claims. But as previously explained, 

Rodriguez did not assert any acts 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 taken against her were actually 

because of her race, sex, or national origin. 

Deputy Trujillo testified at his deposition that he experienced discrimination at the 

Sheriff’s Office because he was Hispanic, including 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 Rodriguez has not established 

that she was aware of these acts against Trujillo at the time she complained 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 discrimination against him because of a perceived 

disability. There is no indication that Rodriguez was aware of these incidents but, in 

any event, they would not support her claims of a hostile work environment because 

of race, sex, or national origin. 

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has Rodriguez established that she was present for white hands/brown hands drill. If not, 

she failed to address when she first heard about 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 other discriminatory 

comments or conduct, but fails to establish those incidents in any detail. The district 

court, thus, correctly granted the Sheriff summary judgment on the hostile work 

environment claims. 

3. Conclusion: Summary judgment for the Sheriff on Rodriguez’s 

disparate treatment and hostile work environment claims was proper 

There is no evidence from which a reasonable jury could find that Rodriguez’s 

alleged mistreatment was because of her race, sex, and national origin. “Not all 

offensive or hurtful conduct within the workplace is actionable under Title VII,” 

Throupe, 988 F.3d at 1255; only conduct undertaken because of an employee’s protected 

trait(s). The district court, therefore, properly granted the Sheriff summary judgment 

on Rodriguez’s disparate treatment 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 discriminated against. In explaining why, we first 

state the relevant legal principles, briefly set forth Rodriguez’s retaliation claims, and 

then discuss the fatal flaws the district court identified in these claims. 

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1. Relevant legal principles 

 Both Title VII and the CADA 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, Rodriguez did not present direct evidence of 

retaliation, she can prove her claim indirectly, using the McDonnell-Douglas 

burden-shifting framework. See Parker Excavating, Inc. v. Lafarge W., Inc., 863 F.3d 

1213, 1220 (10th Cir. 2017). Under that framework, the employee must first establish a 

prima facie retaliation claim by 

plausibly alleg[ing] “(1) that [s]he engaged in protected opposition to 

discrimination, (2) that a reasonable employee would have found the 

challenged action materially adverse, and (3) that a causal connection 

existed between the protected activity and the materially adverse action.” 

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 succeeds in establishing a prima facie retaliation claim, the 

burden shifts to the employer to assert a legitimate non-retaliatory reason for the 

challenged adverse action. See Edmonds-Radford v. Sw. Airlines Co., 17 F.4th 975, 

994 (10th Cir. 2021) (applying McDonnell Douglas framework to retaliation claim 

under Americans with Disabilities Act). 

15 In the retaliation context, a materially adverse employment 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 employment actions, then, can support a retaliation 

claim than can support a disparate treatment discrimination claim. See id. at 56–57, 63–

67. 

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Once the employer asserts a non-retaliatory 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 unlawful 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 specific retaliation claims 

Rodriguez alleged the following retaliatory actions, which we list 

chronologically: 

1) Rodriguez complained about discrimination to Sergeant Walker, during the 

June 2015 IA investigation, 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 her as a deputy. 

2) Rodriguez alleged that, after she complained about discrimination to the 

Sheriff on August 26 and September 1, 2015, the Sheriff retaliated against her 

by placing her on a PIP in November 2015. But the evidence indicates that it 

was the training sergeant, Chase, who recommended placing 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 complained about discrimination to her 

immediate supervisor, Sergeant Steffa, and soon thereafter, the PIP was 

extended. 

16 Perhaps because of this evidentiary problem, Rodriguez, for the first time on 

appeal, argues more generally that the Sheriff retaliated by requiring 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. 

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4) Rodriguez complained to the Sheriff about discrimination in June 2016. 

She did not specifically allege, however, any adverse employment action 

resulting from that complaint. (This may be part of Rodriguez’s claim, raised 

for the first time on appeal, that the Sheriff retaliated 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, decommissioned 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 anyone in the Sheriff’s Office knew about 

the EEOC complaint until Rodriguez 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, and her fourth claim is inadequate. But those allegations, 

as well as the others, fail for other reasons too, as explained next. 

3. Rodriguez failed to show 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 element of her prima facie retaliation claims, 

Rodriguez had to show a causal connection between her protected activity opposing 

discrimination and the adverse employment actions of which she complains. See 

17 In the district court, Rodriguez also alleged that, a few months after the new 

sheriff, Brown, was elected, his undersheriff, Nicastle, retaliated against Rodriguez 

by requiring her to undergo still more training. And Rodriguez alleged a cat’s paw 

argument based apparently on True holding a retaliatory animus against Rodriguez 

for complaining that True was discriminating. Rodriguez, however, does not reassert 

those claims on appeal. In any event, summary judgment for the Sheriff on those 

claims was appropriate. 

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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 challenged adverse action against her the actor 

knew about Rodriguez’s protected opposition to discrimination. See Singh, 936 F.3d 

at 1043. Several of Rodriguez’s retaliation claims lack this causal connection. 

Specifically, Rodriguez failed to present evidence that either Chief Line or 

Lieutenant Knight knew that she had filed a complaint with the EEOC before they 

placed her on paid administrative 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 Sheriff proffered a non-retaliatory reason for requiring 

Rodriguez to undergo more training—“[T]he officers training [Rodriguez] 

consistently found that she demonstrated poor safety and decision-making skill 

despite her ongoing training” (Aplt. App. 1727). Rodriguez contends, 

unpersuasively, that this reason was a pretext for retaliation. On appeal, however, 

she addresses this argument in only a perfunctory manner, relying on some of the 

same evidence that she contends shows discrimination. 

 As a starting point, Rodriguez’s chain of command, and the Sheriff in 

particular, consistently asserted, throughout this four-year course of events and the 

ensuing litigation, that they took the adverse actions against Rodriguez because they 

believed that she had demonstrated poor judgment and committed numerous safety 

violations during her remedial training sessions. “The consistency of their 

explanations cuts against a finding of pretext.” Hiatt, 858 F.3d at 1319. 

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Rodriguez argues that it was incorrect that she continued to make safety errors 

and show poor judgment during her training. But she has failed to present any 

evidence that the Sheriff or the rest of her chain of command asserted these reasons 

to cover up their desire to retaliate against Rodriguez. Nor does she assert any 

evidence suggesting that the Sheriff or Rodriguez’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 again relied on Lieutenant Wickstrom’s 

notation in TrakStar that Rodriguez “successfully completed” the first remedial 

training in February 2015. That, 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 training, warranting more training. The two 

trainers who conducted the February 2015 remedial training, as well as numerous 

trainers after that—trainers to whom Rodriguez 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 Sheriff and Rodriguez’s chain 

of command asserted to justify the adverse 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 actions she incurred is 

sufficient alone for her retaliation claims to survive summary judgment. Even if 

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Rodriguez could rely on close temporal proximity 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 proving that a retaliatory 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 judgment on Rodriguez’s retaliation claims. 

IV. CONCLUSION

The district court properly granted the Sheriff summary judgment on all of 

Rodriguez’s claims. Fatal to her disparate treatment and hostile work environment 

claims, Rodriguez failed to present sufficient evidence from which a reasonable jury 

could find that the challenged adverse actions taken against 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 jury find that her work environment was 

hostile because of harassment based on race, sex, or national origin. We, therefore, 

AFFIRM the district court’s summary judgment decision. 

Entered for the Court 

David M. Ebel 

Circuit Judge 

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