UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ SUSAN PFANNENSTIEL; AMBER HARRINGTON; NATASHA McCURDY; KIMBERLY MEADER; JARAH COOPER, Plaintiffs - Appellants, and REBECCA CORAZZIN-McMAHAN, Plaintiff,

v. STATE OF KANSAS; HERMAN JONES; JASON DeVORE, Defendants - Appellees, and MICHAEL MURPHY; ANDREW DEAN; ERIC SAUER; WESLEY LUDOLPH; THOMAS CATANIA, Defendants. No. 23-3145 (D.C. No. 5:21- CV-04006-HLT) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before McHUGH , MURPHY , and FEDERICO , Circuit Judges.

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 25, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 12 ________________ _________________ I. INTRODUCTION In a single, overarching complaint, Su san Pfannenstiel, Am ber Harrington, and Jarah Cooper (referred to collectively as “Appellants”) brought, inter alia, Title VII hostile work environment claims against th e State of Kansas. In addition, Cooper brought a 42 U.S.C. § 1983 clai m against Herman Jones, as serting Jones violated her First Amendment rights. 1 The district court granted su mmary judgment in favor of Kansas on all Title VII hostile work enviro nment claims and in favor of Jones on Cooper’s § 1983 claim. As to the Title VI I claims, the district court concluded no Appellant produced suffici ent evidence to allow a reasonable jury to find any relevant sex-based discriminatio n “was sufficiently severe or pervasive such that it altered the terms or conditi ons of [her] employment.” Throupe v. Univ. of Denver , 988 F.3d 1243, 1251 (10th Cir. 2021). As to Cooper’s § 1983 claim, the district court concluded Jones was entitled to qualified immunity because Cooper failed to identify

1 The Second Amended Complaint, the operative complaint for purposes of this appeal, sets out claims for relief on behalf of Natasha McCurdy and Kimberly Meader. McCurdy and Meader are also listed as appellants in the notice of appeal. Appellants’ joint opening brief does not, however, address the district court’s disposition of any claim rais ed by McCurdy or Meader. Accordingly, all potential claims of error on behalf of McCurdy and Meader are waived. See Sawyers v. Norton , 962 F.3d 1270, 1286 (10th Ci r. 2020). Similarly, Coope r’s § 1983 First Amendment claim, as set out in the Second Amended Comp laint, is stated ag ainst Jones and Jason De Vore. Furthermore, De Vore is listed as an appellee in the notice of appeal. Appellants’ joint opening brief does not, how ever, address how the district court erred in its disposition of Cooper’s § 1983 First Amendment claim against De Vore. Accordingly, Cooper has waived appellate review of the dismissal of her First Amendment claim against De Vore. Id. Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 23 clearly established law. Appe llants appeal, challenging each relevant district court conclusion. We conclude the district court did not err in any as pect of its summary judgment ruling. Thus, exercising jurisdic tion pursuant to 28 U.S.C. § 1291, this

court affirms the district court’s judgment.
II. DISCUSSION
A. Hostile Work Environment Claims 1. Legal Background and Standard of Review Appellants each asserted a Title VII hostile work environment claim against the State of Kansas. 2 See Fitzpatrick v. Bitzer , 427 U.S. 445, 456-57 (1976) (holding Congress validly abrogated the Eleventh Amendment s overeign immunity of the States as to suits under Title VII). Title VII “prohibits an employer from discriminating against any i ndividual because of such i ndividual’s sex. Under Title VII, a plaintiff can prove discrimination in several different ways, including proof of a hostile work environment.” Throupe , 988 F.3d at 1251 (quotation, citation, and alteration omitted). “A hostile work environment claim is composed of a series of separate acts that collectively cons titute one unlawful em ployment practice.” Id. (quotation omitted). For Appellants to state a valid Title VII hostile work environment claim, they must present suff icient evidence sex was a motivating factor in discrimination against them. Id. They must also “o ffer evidence that the

2 Pfannenstiel’s Title VII hostile work environment clai m is set out in Count 6 of the Second Amended Complaint, Harringt on’s is set out in Co unt 13, and Cooper’s is set out in Count 30. Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 34 defendant’s conduct was so seve re or pervasive as to alte r the terms or conditions of employment. Proof of either severity or pervasiveness can serv e as an independent ground to sustain a hostile work environment claim.” Id. at 1252. This determination involves an examination of the “totality of the circumstances” a nd a consideration of “such factors as the frequenc y of the discriminatory con duct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Id. (quotations omitted). This element is assessed both objectively and subjectively. Id. “It is not enough that the plaintiff perceived the conduct to be severe or pe rvasive. Rather, the plaintiff must show that a rational jury could find that the workplace is permeated with discriminatory intimida tion, ridicule, and insult.” Id. (quotation omitted). “[T]he run-of-the mill boorish, juvenile, or a nnoying behavior that is not uncommon in American workplaces is not the stuff of a Title VII hostile work environment claim.” Id. (quotation omitted). Likewise, “a few isolat ed incidents of discriminatory conduct does not make the harassment pervasive.” Id. (quotation omitted). “[W]hether the conduct was severe or pervas ive is typically a question for the jury,” but this court “can affirm a district court’s grant of summa ry judgment when th e plaintiff fails to make this showing.” Id. This court reviews the grant of summary judgment de novo applying the standard set out in Fed. R. Civ. P. 56. Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 670 (10th Cir. 1998). Summary judgment is proper if the m ovant demonstrates “there is no genuine dispute as to any material fact” and it “is entitled to judgment as a Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 45 matter of law.” Fed. R. Civ. P. 56(a). In applying this st andard “we view the factual record and draw all reasonable inferen ces therefrom most favorably to the
nonmovant.” Adler , 144 F.3d at 670. A dispute is “‘genuine’ if there is sufficient evidence on each side so that a rational trier of fact coul d resolve the issue either way.” Id. “ If there is no genuine issue of materi al fact, we next determine whether the district court correctly applied the substantive law.” Id . “[A]lthough our review is de novo, we conduct that review from the pers pective of the district court at the time it made its ruling, ordinarily limiting our review to the materials adequately brought to the attention of the dist rict court by the parties.” Id. at 671; see also Fed. R. Civ. P. 56(c)(1). 2. Analysis
a. Pfannenstiel Pfannenstiel began working for Kansas in 1999. She or iginally work ed in the Kansas Department of Admi nistration (“DOA”), but even tually transferred to the Kansas Highway Patrol’s (“KHP”) Human Resources (“HR”) Department. She was promoted to Director of HR at KHP, a posit ion she held for the th ree years before she retired on September 1, 2020. As KHP’s Di rector of HR, Pfannenstiel reported to Major Scott Harrington 3 at KHP and Craig Kibbe, DOA ’s Deputy Director. Kraig Knowlton, Director of the Office of Personnel Services (“OPS”), was Kibbe’s

3 Appellant Harrington and Scott Harrington are sibli ngs. To avoid confusion, this court refers to appella nt Harrington by her last name and refers to Scott Harrington by his full name. Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 56 supervisor. During the time relevant to Pfannenstiel’s hostile work environment claim, Jones was the head of th e KHP and De Vore was his deputy. 4 In support of her hostile work environm ent claim, Pfannens tiel identifies five categories of acts supporting the existen ce of severe or pervasive sex-based harassment. The first category involves the following instant message exchange between Jones, the head of KHP, a nd Pfannenstiel in October of 2019: [10/10/2019 4:13 PM] [Jones] Getting our money’s worth from you this week huh! [10/10/2019 4:13 PM] [Pfannens tiel] what an understatement (facepalm emoji) It’s all good (thumbs up emoji) [Jones] Well at least I know you’re not sleeping on the company’s couch. (smiley with tongue hanging out emoji) [Pfannenstiel] WE have a couch? Wait...no one told me [10/10/2019 4:17 PM] [Jones] See, you’ve been soooooo busy, you didn’t even notice the beige couc h in the corner. Since you’re not using it I’m going to have it rem oved and place[d] elsewhere. (mmm emoji) [10/10/2019 4:18 PM] [Pfannenstiel ] I see, ok fine (sleep emoji) [10/11/2019 8:25 AM] [Jones] And you came back?! [10/11/2019 8:25 AM] [Pfannenstiel] Yes sir [10/11/2019 8:27 AM] [Jones] I guess you don’t need that couch after all huh! [10/11/2019 8:27 AM] [Pfannenstiel] I guess not

4 The same is true for the time peri ods embraced by Harrington’s and Cooper’s claims. Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 67 [10/11/2019 8:39 AM] [Jones] Have a great da y and thank you for all that you do to a dvance the agency and Kans as. (thumbs up emoji) [10/11/2019 8:40 AM] [Pfannensti el] I am dedicated to the KHP and OPS as well. Have a nice day. [10/11/2019 8:40 AM] [Jones] Yelp ma’am! Pfannenstiel testified this ex change made her feel “ver y uncomfortable.” She felt Jones’s references to the couch were offensive or s uggestive: “Because how does a couch even come... into play, and ... co mbine that with the tongue hanging out emoji, that immediately, I don’t know wh at you want to call it,... it alerted me.” Pfannenstiel advised Scott Harrington about the exchange and read the messages to him. Scott Harrington testif ied Pfannenstiel was “visibly shaken” by the messages and “it was unlike anything [he] had seen from [her] before.” Scott Harrington further testified he thought the messages were sexual in natu re because of the references to the couch. On December 3, 2019, Pfannenstiel ha d what she perceived to be a very uncomfortable encounter with Major Mike Murphy. In notes to herself documenting the encounter, Pfannenstiel desc ribed the incident as follows: Major Mike Murphy came into my offi ce to pick up a file. He closed the door so we could discuss [a n]... employee situation. . . . [Murphy] was attempting to demons trate the way the female employee approached him the first time they met. I was seated behind my desk with my hands in my lap. He came around the desk, got real closed to my face (no more than 5 inches fro m me) and reached for my hand. He stated, “she said well hi, Major. ” I immediately pushed back from him and made distance with the length of my arm while stating, “whoa you’re in my personal space.” He laughed and took a seat across the Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 78 desk from me. He stated “do you s ee what I mean? She made me feel uncomfortable. I couldn’t even look at her in the face.” I was very uncomfortable particul arly since we were behind closed doors. By February of 2020, Jones and De Vore knew unidentifie d individuals were being critical of Jones and his leadersh ip team. On February 10 or 11, 2020, Pfannenstiel was summoned to a meeting with Jones and De Vore about an anonymous letter highly critical of Jones th at was sent to the Governor. The letter accused Pfannenstiel of not doing her job by allowing misconduct to occur and not reporting it. Jones and De Vore said the lett er “had [Pfannenstiel’s] name all over it” when it accused her of shirking her job dutie s. According to Pfannenstiel, Jones said “if he found out who wrot e the [anonymous letter to the governor] or who had anything to do with this information, he w ould see that they ha ve a parting of the ways with this agency.” Jones’s posture was very threatening and both he and De Vore were in uniform with weapons show ing. De Vore said Pfannenstiel should watch what she says in th e future because people were being critical of her. Pfannenstiel reported this meeting to K nowlton and Kibbe. Know lton responded by noting “[t]his is the first I am hearing of this. I will see what I can find out from the Governor’s Office, but rest assured that we have your b ack over here so please don’t stress about this too much.” He fu rther noted that, given the surrounding circumstances “even thou gh the format and tone were fa r less than ideal, I think the message to be careful what you say to whom is good advice.” Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 89 In entirely generalized fa shion, Pfannenstiel asserts that beginning in March of 2020, Jones and De Vore left her out of conversations and policy change decisions which required involvement of the HR Di rector, such as making changes to the interview and selection process, as well as changes to po licies relating to retirement or resignation. In similarly generalized fash ion she asserts that, during staff meetings, her statements, recommendations , and input were discounted in front of the rest of the management staff. Pfa nnenstiel testified these ac tions interfered with the performance of her duties as the HR Direct or, explaining “[i]t became impossible for me to direct my staff appropriately when those legitimate policies and regulations were being usurped at every turn.” 5

5 Pfannenstiel’s reliance on these generalized assertions of retaliatory conduct is not weighty. First, in the district c ourt, Pfannenstiel brought a retaliation claim premised on this exact alleged conduct on th e part of Jones. She asserted that in retaliation for her participation in a DOA i nvestigation of Jones, “she was excluded from policy and procedure discussions and [h ad] her suggestions and input ignored.” The district court recognized the generalize d nature of the retaliation claim and the absence of specific factual bases. At best , Pfannenstiel identifie d two specific emails reflecting policy disagreements with Jone s. Notably, Knowlton, Pfannenstiel’s ultimate supervisor, averred, without dir ect or specific contradiction, that HR managers at agencies like KHP are merely advisors that should simply “advise and abide by the decisions of those who are author ized to make the d ecisions.” He further attested “it is not unusual or surprising that decisionmak ers in an agency will make decisions that are not exac tly in line with HR reco mmendations” and that such situations do “not in any wa y reflect negatively on the HR manager or impact his or her career opportunities.” Fina lly, Knowlton noted he exam ined the only two specific actions identified by Pfannens tiel as retaliatory and conc luded it was his “opinion that there is not anything out of the ordi nary in the interac tions between agency leadership and the HR ma nager described there.” More importantly, the district cour t engaged in a lengthy analysis and concluded no reasonable ju ror could find that Jone s was aware Pfannenstiel participated in the DOA investigation. On appeal, Pfannenstiel has simply Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 910 The final category involves Pfannenstie l’s alleged awarenes s of a “sexually hostile culture” at KHP, speci fically noting her awarene ss of Jones’s harassing actions toward Mead er and Harrington. The district court granted summary judgment in Kansas’s favor, concluding Pfannenstiel failed to demonstr ate acts of harassment that were sufficiently severe or pervasive so as to alter the term s and conditions of her employment. 6 Referencing its decision at the motion-to-dismi ss stage, the district cour t concluded nothing in the instant message exchange could be cons idered objectively severe harassment. According to the district court, the conve rsation included some brief banter about sleeping on an office couch due to long wo rking hours. Both Pf annenstiel and Jones appeared to be joking and both used emojis that reflect a joking tone. The second half of the instant message inter action was mostly just Jones thanking Pfannenstiel for her work. As to the meeting with Jones and De Vore about the anonymous letter to the government, the district court noted it wa s not physical. Althoug h Jones and De Vore were armed and in uniform, the district court recognized such a state was not unusual

repackaged aspects of her now-defunct reta liation claim as part of her hostile work environment claim. She has done so, however , without addressing this critical aspect of the district court order. Th at is, in the district court, Pfannenstiel argued the reason Jones undertook these actions was to puni sh her for reporting to DOA Jones’s harassment. She then simply included the alleged act of re taliation as part of her hostile work environment claim. She does not explain on appeal how the alleged retaliatory acts could continue to support th e existence of a hostile work environment given the unchallenged district court decision that no re taliation could have taken place because Jones was not aware of her actions.
6 The district court assumed, without deciding, that a reasonable juror could find some of the conduct alleged was sex-based. Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 1011 at the KHP. The district court noted the onl y incident involving a physical aspect, the interaction with Murphy, involved Murphy explaining to HR actions of a third employee that made Murphy unc omfortable. Finally, the di strict court concluded all incidents considered in the aggregate could not be considered pervasive. The district court ruled the exceedingly limited evidence Pfannenstiel submitted as to Jones’s allegedly harassing conduct towards other women did no t alter that conclusion. Like the district court, this court c oncludes it is unnecessary to resolve whether Pfannenstiel came forward with sufficient evidence for a jury to find the conduct directed at her was sex-base d. Instead, upon de novo revi ew, we affirm the district court’s ruling that no jury could find the a lleged conduct, considered in its totality and the context of surrounding circumstances , was sufficiently severe or pervasive that it altered the terms or cond itions of Pfannenstiel’s employment. Because it includes the only alleged cond uct directed at Pf annenstiel involving anything approaching a physical element (i.e ., the brief attempt to grab her hands while invading her space), this court begi ns with the incident involving Murphy. 7 The record reveals Pfannenstiel’ s interaction with Murphy took place entirely in the context of Pfannenstiel’s role as the HR Manager tasked with reporting and

7 As set out below in discussing Harringt on’s hostile work environment claim, this court does “not simply . . . accep t [Pfannenstiel’s] claim that all the discriminatory conduct [she] identifie s was part of the same hostile work environment.” Throupe , 988 F.3d at 1255 n.3; see also infra at 19-21. Even if this court considers the Murphy incident as part of a single unified hostile work environment, Pfannenstie l’s Title VII claim fails and, th erefore, we need not consider the matter further. Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 1112 investigating employment issu es. There is no evidence in the record indicating the interaction was anything other than an isol ated event. Murphy attempted to touch Pfannenstiel’s hands while expl aining the nature of his inte ractions with a different KHP employee. When Pfannenstiel objected, Murphy stepped back and sat down on the other side of Pfannenstiel’s desk. Vi ewed objectively, Murphy’s conduct does not satisfy the high bar required to meet Title VII’s seve re-or-pervasive standard. Khalaf v. Ford Motor Co. , 973 F.3d 469, 485 (6th Cir. 2020) (“Alleged harassment in the context of a hostile-work environment-clai m must be sufficiently ‘pervasive’ or ‘severe’ to alter th e conditions of employment. This standard sets a high bar for plaintiffs in order to distinguish mean ingful instances of discrimination from instances of simple disrespect .” (citation omitted)). The same is true as to the meeting involving Jones, De Vore, and Pfannenstiel about the anonymous letter to the governor. Although the meeting was clearly tense, it was not ph ysical. Pfannenstiel emphasizes that Jones and De Vore were in uniform and were armed. Those facts, however, must be consider ed in the context of the relevant surrounding circumstances. As noted by the district c ourt, it was not unusual for KHP employees to be armed and in uniform. See Morris v. City of Colo. Springs , 666 F.3d 654, 668 (10th Cir. 2012) (consideri ng analogous contextual circ umstances in the medical employment context). Nor could a reasonable jury find, base d on the evidence Pfannenstiel presented to the district court, that she was subj ect to pervasive hara ssment. The anonymousletter and Murphy incidents were isolated and unrelated. Pfanne nstiel attempts to Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 1213 cobble them together by asserting (1) Jone s ignored her input on HR matters and (2) there existed in KHP a pervasive atmos phere of sex-based harassment. Neither assertion carries the weight Pfannenstiel attempts to place upon it. As noted above,

supra n.5, the evidence Pfannens tiel identified in suppor t of the assertion Jones retaliated against her by ignoring her input on HR matters is narrowly limited to two specific instances. These tw o instances are not a patte rn. And, in any event, Pfannenstiel’s conclusory testimony mu st be considered alongside Knowlton’s specific and detailed testim ony to the contrary. Althoug h this court must credit Pfannenstiel’s testimony at the summary judgment stage of proceedings, that testimony demonstrates only that she belie ved Jones was acting contrary to some unidentified policy or directive. Pfa nnenstiel presented no objective evidence— comparative actions of other agency heads or HR managers , written policy, etc.—that Jones wrongly ignored he r input on HR matters. See In re Grandote Country Club
Co. , 252 F.3d 1146, 1149-50 (10th Cir. 2001) (“Unsupported conclusory allegations . . . do not create a genuine issue of fact. . . . To with stand summary judgment, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.” (citations and in ternal quotation marks omitted)). In any event, even assuming Jones did make a sex- based decision to disr egard Pfannenstiel’s input on these two matters, hi s actions are not pervasive. Nor do those actions render the anonymous-letter and Mu rphy incidents pervasive. Pfannenstiel’s reference to an overarc hing atmosphere of sexual harassment suffers from a similar evidentiary failing. As noted by the district court, the only Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 1314 evidentiary support for this assertion, at least the onl y evidence included in the summary judgment record and brought to the district court’s atte ntion, is the fact Pfannenstiel, Harrington, Meader, and McCu rdy were interviewed together for an August 2020 television story. 8 No Appellant, however, in cluded any facts in the summary judgment record as to the contents of that inte rview. Likewise, Pfannenstiel did not allege any discrete ac ts of harassment directed at her during the roughly twoweek interval between the in terview and her retirement. On the record presented to the distri ct court, the district court correctly concluded no reasonable juror could find the alleged acts of harassment directed at Pfannenstiel were sufficiently severe or pervasive that they altered the terms or conditions of her employment. b. Harrington Harrington started worki ng as a KHP trooper in 2000. She was promoted to Captain in 2017, a position she maintains to this day. Harrington’s hostile work environment claim is composed of two co mponent time periods. The first component relates to her direct intera ctions with Jones in late 2019. The second component relates to alleged acts of retaliation that occurred in 2020 to 2021.

8 To the extent Pfannenstiel has combed the summary judgme nt record in an effort to present to this court additional evidentiary s upport not presented to the district court for the asser tion she knew about Jones’s mist reatment of Harrington and Meader prior to this interv iew, we decline to consider the matter. As noted above, this court reviews the correct ness of the district court’ s grant of summary judgment based on the arguments made to and materi als presented to the district court. Adler , 144 F.3d at 670; Fed. R. Civ. P. 56(c)(1). Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 1415 In August 2019, Harrington attended a m eeting with Jones and De Vore. Jones touched or “smacked” Harrington on the back of her shoulder. Harrington told Jones his conduct “was highly inappropriate.” In response, Jones touched her again and said “there, I take it back.” On October 31, 2019, Jones “was going down a row of chairs [at a training session], shaking th e hand of everyone present.” Jones was “talking to the back row”; Harrington felt Jones’s body “near the back of her chair” as he talked to the people behind her. Jones then turned around directly behind Harrington and “placed his ha nd on [her] shoulders and star t[ed] patting them.” Jones brushed “up against [her] ar m to reach in and shake [her] hand.” According to Harrington, as Jones reached for her hand, he “purposely glided his hand across [her] left arm nice and slow.” J ones shook hands with everyone in the room. Finally, on December 27, 2019, Harrington was presenting plaques at a retirement ceremony. Although she did not realize it at the time , another KHP employee said he saw Jones put his hands on Harrington’s shoulders as she was unwrapping pl aques. Jones has not touched Harrington since the plaque incident. Jones’s ex ecutive assistant testified she never saw Jones touch any male empl oyee the way he touched Harrington. Jones has never made a suggestiv e or offensive comment to Harrington and she has not seen him touch other women. Harrington filed a charge of disc rimination with the Equal Employment Opportunity Commission (“EEOC”) on Septem ber 8, 2020. She alleged undescribed acts of “sexual harassment/gender discri mination” occurring on the following dates in 2019: August 1, September 10, Octobe r 2, October 14, October 31, and December Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 1516 27. The charge also asserted that base d on her act of reporti ng discrimination and harassment directed at both her and othe r female KHP employees, she experienced multiple acts of undescribe d, ongoing retaliation. In her brief on appeal, Harrington descri bes the acts of reta liation, beginning with the appointment of Majo r Andrew Dean as her direct supervisor. In July 2020, Major Josh Kellerman was terminated fro m his employment by the KHP. Prior to his termination, Kellerman was Harrington’s di rect supervisor. In August 2020, Dean became Harrington’s direct supervisor. Se veral weeks later, on September 8, Harrington filed her EEOC complaint. On September 16, Harrington sent an email to Dean protesting his directive that she prepare a schedule for a full contingent of officers who would be in the Kansas St ate Capitol for the 2021 Legislative session “at all times and absolutely no overtime ac crued.” Harrington’s email set forth the reasons she believed “it is impossible to fill in the gaps with Troop K’s current manpower.” She concluded by asserting D ean was “setting [her] up for failure” and that she believed his actions in that regard were “dir ectly connected” to her EEOC charge. It is uncontested Dean became awar e of Harrington’s EEOC complaint “right around [the] same time” as her em ail to him on September 16. In late January of 2021, Dean receive d text messages from Lieutenant Crystal Golightley. In those messages, Goligh tley expressed concerns about working underneath Harrington and indicated there ex isted a hostile work environment. A few days later, Dean and a KHP legal counsel met with Golightley at a coffee shop. Golightley told Dean that Harrington creat ed a hostile work environment. Golightley Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 1617 did not, however, fill out a written complain t form. In February of 2021, Lieutenant Dan Diloreto was asked to investigate Golightley’s complain t against Harrington. Diloreto worked in KHP’s Professional St andards Unit (“PSU”). It is uncontested that Jones ordered all PSU investigations. According to Diloreto, “[d]ue to the sensitive nature of the allegations in th e case,” the PSU requested permission from Jones to initially suspend notifying Harringt on of the investigation. Jones approved PSU’s request. On March 9, 2021, Jone s placed Harrington on admini strative leave with pay, relieving her from duty pending the PSU in vestigation. As a result, Harrington’s patrol car and office keys we re taken from her, and her a ccess to KHP’s network and email were suspended. On April 24, 2021, Harrington received a letter from KHP advising her that Golightley’s harassment complaint was not substantiated by the PSU investigation, but a ch arge of insubordination was sustained through factual evidence. According to Dilore to, the factual evidence whic h sustained the charge of insubordination primarily c onsisted of Harrington’s ow n statements to the PSU during an interview. Duri ng her deposition, Harrington testified she was not insubordinate and did not make negative comments about Jones. Harrington was not returned to work until June 14, 2021, almost two months after the investigation was completed. That day, Harrington was given an unsatisfactory performance review by Dean . In this review, Dean enumerated Harrington’s “[f]ailure to fo llow instructions,” her “failu re to follow [the] chain of command,” and the results of the PSU inves tigation. Also on June 14, 2021, Dean Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 1718 placed Harrington on a special performan ce review for 150 days, due to the unsatisfactory rating for her annual perfo rmance review. On November 10, 2021, Harrington successfully completed her special review period. The district court granted summary judgment in Kansas’s favor. It first expressed significant doubt as to whether Harrington produced sufficient evidence for a jury to find any harassment was sex- based. The district court noted that “Harrington acknowledges bei ng touched on other occasi ons by Jones, and though apparently unwelcome, she does not consid er them as sexually motivated.” The district court concluded that even if it assumed a jury could find sex-based harassment, Kansas was sti ll entitled to summary judg ment. That was because, according to the district court, Harringt on failed to adduce ev idence from which a reasonable juror could find that the retaliatory acts by Dean were properly considered as part of a single hostile work environm ent claim. The district court noted the alleged acts of touching a nd alleged acts of retalia tion occurred in different timeframes and involved di fferent perpetrators. See Throupe , 988 F.3d at 1255 n.3. The district court ruled no reasonable jury could find the three acts of touching by Jones amounted to severe or pervasive hara ssment. When the alle ged retaliatory acts were appropriately decoupled from the touc hing incidents, no reasonable jury could find the alleged acts of reta liation were sex-based. Upon de novo review, this court affirms. In so doing, we have little to add to the district court’s astute an alysis. Like the district c ourt, we easily conclude no reasonable juror could find th at the three alleged acts of inappropriate touching by Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 1819 Jones, standing alone, constitu te the type of severe or pervasive harassment that amounts to a Title VII hostile work enviro nment. In her brief on appeal, Harrington does not directly argue to the contrary. In stead, she appears to argue that Dean, in undertaking his acts of retaliation, was ac ting as Jones’s cat’s paw. As set out at length in Kansas’s response brief, however, Harrington’s ar gument in this regard is based entirely on supposition a nd conjecture. For instance, Harrington asserts a jury could find that Dean convinced Goli ghtley to complain about Harrington’s supervisory conduct. The only record eviden ce is to the contrary, with both Dean and Golightley swearing the decision to comp lain was made entirely by Golightley without input from any command staff. The only response to th is evidence in the record is Harrington’s contention that the jury could simply choose to disbelieve Dean and Golightley. As the Supreme Co urt made clear four decades ago in Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 256-57 ( 1986), when a nonmovant like Harrington carries the burden of pr oof, she cannot avoid summary judgment without coming forward with affirmative ev idence. The mere assertion a jury might disbelieve Dean or Goligh tley is simply not enough. Id. In the end, having combed through the record, this court cannot find re motely sufficient evid ence for a jury to find that Jones used Dean to retaliate against Harringt on, rendering Jones’s actions and Dean’s actions a unified hostile work environment cl aim. Instead, the record reveals Golightley herself came forward with the complaint that initiated the investigation; Diloreto conducted the inve stigation consistent with written KHP/PSU policy; and Jones was involved only in a li mited fashion when he was requested to Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 1920 take a specific action by PSU. Harrington’s me re assertions the ju ry could disbelieve this evidence is not enough to cr eate a fact question for the jury. Id. Consistent with the district court, we hold as follows: (1) assuming they are sex based, the three incidents in whic h Jones touched Harri ngton in 2019 are not severe or pervasive and, thus, did not a lter the terms and conditions of Harrington’s employment; (2) no reasonable jury could fi nd Jones’s actions and Dean’s actions amount to a single hostile work envir onment under the standard set out in Throupe , 988 F.3d at 1255 n.3.; and (3) Harrington does not argue, let alone point to record evidence from which a reasona ble jury could find, Dean’s allegedly retaliatory actions were sex-based. Thus, the district court correctly granted summary judgment in Kansas’s favor on Harri ngton’s Title VII hostile work environment claim. c. Cooper Cooper began working for KHP as a Trooper in 2017. At the time, she was assigned to Troop A in Kansas City, Ka nsas. In April 2020, Cooper began dating another trooper, Lucas Bryon. In October 202 0, she learned she was pregnant. That same month, Cooper requested a hardship transfer to Troop C in Riley County, Kansas.; KHP granted this request. KHP al so granted Cooper’s request for limitedduty assignment due to her pr egnancy. After Cooper transf erred to Troop C, both she and Bryon were directly superv ised by Lieutenant Scott Pro ffitt. Proffitt’s supervisor was Captain Bruce Hyman. On December 17, 2020, Cooper sent a letter to Jones, resigning from her employment with KHP. Cooper made no complaints about an Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 2021 alleged hostile work environment while sh e was employed with Troop C. During that time, no one threatened to fire Co oper and no one yelled at her. Cooper claims she was subjected to a hostile work environment between October 20 and November 30, 2020. Accord ing to her brief on appeal, her claim is based on four categories of hos tile acts directed toward her by Proffitt and Hyman. The first category consisted of imposing upon Cooper work restrictions which were beyond what her physician ordered. Initi ally, Cooper’s physician ordered the following pregnancy-related wo rk restrictions: driving onl y one hour per shift; no climbing; light or desk duty; and only liftin g 20-40 pounds one or two times per shift. According to Cooper, however , when Proffitt met with he r on October 21, 2020, he told her that she was not to have any direct contact with the public. 9

9 The record identified by Cooper in support of this asserti on is her deposition, which reads as follows: Cooper: [Proffitt] told me that he had origina lly talked to [Hyman] about what my limited duty assignment would be. And they discussed having me check VIN numbers for the—they get numerous calls for troopers to go check the VINs around— usually it’s done at the person’s residence or it c ould be done at wherever location. And they discussed having me do that, because they get a lot of calls for that. And [Proffitt] told me that [Hyman] said he didn’t want me to have direct persona l contact with the public. Counsel: Because of COVID? Cooper: I don’t recall. Counsel: So you don’t know if [your physician] provided you any thoughts on how to protect yourself as a pregnant person and COVID pandemics? Cooper: I don’t remember it being a primary concern. Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 2122 The second category consisted of the cl ose monitoring of Cooper by Proffitt. In her answer to interrogatori es, Cooper asserted as follows: [Proffitt] would physically drive to her station to ensure she was working and drive to her home to see why [she] was not at the station. He would consistently check her whereabouts and follow[] up on [her] assignments. Others in limited duty assignments did not receive the same treatment as [her] nor did [P roffitt] consistently check other troopers’ whereabouts. The third category consiste d of refusing to allow Coop er to attend a four-day training class on human trafficking in Novemb er of 2020. Prior to her transfer to Troop C, Cooper was granted approval to attend the training. On October 21, 2020, Cooper requested approval from Troop C to at tend the training. Pro ffitt told Cooper that Hyman refused to approve her request due to the one-hour driving restriction imposed by her physician. October 28, 2020, Cooper received a revised limited-duty restriction from her physician allowing her to drive up to three hours per shift. Proffitt again refused to author ize her to attend the training. The fourth category consisted of what Cooper describes as Proffitt “spying” on her apartment on November 19, 2020. In her deposition, Cooper described this incident, which occurred at 7:15 am, as follows: “My husband caught him across the street at a gas station spyi ng on our apartment. My husb and told me that he had

Counsel: But you don’t know what you discussed with [your physician]; correct? Cooper: I don’t recall. Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 2223 binoculars in his hands, and he started to wrap them up because my husband approached him and they had a conversation.” 10 The district court granted summary judgment in Kansas’s favor, concluding Cooper had not raised a genuine fact a bout either element of her hostile work environment claim. First, the district court conclude d Cooper failed to produce sufficient evidence from whic h a jury could find her alle ged mistreatment was based

on sex: Although Cooper compla ins she was the only fe male trooper in Troop C, this doesn’t demonstrate that a ny of the allegedly harassing actions she complains about were done because of her sex. Although facially neutral harassment may be consider ed when joined with sex-based harassment, [ Sanderson v. Wyo. Highway Patrol , 976 F.3d 1164, 1174- 75 (10th Cir. 2020)], here, Cooper has nothing of the latter. . . . [A]lthough she complains that she was treated differently than similarly situated men, she has failed to po int to any such facts that would support such a conclusion. Nor is any of the conduct sexual in nature.

10 In support of the notion Proffitt’s ac tions in this regard were unusual, Cooper notes that Jones tes tified he was not aware of a ny supervisor who had ever “staked out” an employee’s residence. No r was he aware of any employee who had their residences “staked out.” Cooper does not explain how Jones’s lack of information creates a fact i ssue as to this matter given other evidence in the record. Proffitt testified he drives past “all [his] people’s resi dence hopefully once or twice a year” for emergency response pu rposes. Proffitt had been to Byron’s residence before Cooper moved there. The first time Pro ffitt drove past Byron’s and Cooper’s residence was when Cooper was supposed to be, but was not, at work. Proffitt drove by the residence because he could not fi nd Cooper. Once Proffitt was not at the residence but was, instead, parked a few blocks away. Pr offitt was seeing if Byron was timely going where he was assigned to wo rk because Proffitt had an issue with Byron not reporting to his loca tion. Previously, Proffitt drove past an unrelated male trooper’s house twice because the trooper wa s not replying to the radio and was suspected of sitting at home during his sh ift. Cooper admitted she did not know why Proffitt drove past her residence. Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 2324 The district court further concluded that ev en if Cooper had created a genuine issue as to whether the harassmen t she suffered was sex-base d, the harassment was not objectively severe or pervasiv e. In so concluding, the district court noted Cooper failed to identify any conduct that wa s physically threatening or humiliating. See Throupe , 988 F.3d at 1252. Nor had Cooper id entified any offensive comments made to her or within her knowledge. Finally, th e district court rule d that as to some aspects of the alleged hara ssment—allegations Proffitt followed up on her work assignments and made sure she complete d her assigned tasks—no reasonable jury could find the actions am ounted to harassment. Upon de novo review, this court conc ludes the district court did not err in granting summary judgment to Kansas on Cooper’s Title VII hostile work environment claim. Cooper failed to come forward with evidence her alleged mistreatment was sex-based. In a three- sentence paragraph, Cooper asserts she has satisfied her burden because (1) she was th e only woman in Troop C and (2) she was denied permission to attend the training session because of the initial pregnancyrelated work restrictions imposed by her p hysician. But Cooper fails to explain how these two facts bear on whet her her alleged harassment was sex-based. Indeed, Cooper does not identify any part of the re cord that would support a specific finding of differential treatment. At base, Cooper is asserting her stat us as a woman is enough to show sex-based ha rassment. This assertion is obviously at odds with the governing law. Chavez v. New Mexico , 397 F.3d 826, 832 (10th Cir. 2005) (“[S]imply being the lone member of [a class protected by Title VII] within a Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 2425 supervisor’s chain of co mmand, without more, does not demonstrate [sex-based] animus.”). And, as to the training seminar, Cooper does not say how complying with an established work restriction impos ed by her physician amounts to sex-based mistreatment. Nor does she explain how a re fusal to disregard su ch an established limitation that benefitted her, in favor of a late blooming lesser restriction designed to allow her to undertake training she specifi cally desired, is se x-based harassment. Furthermore, the district court corr ectly concluded the alleged acts of harassment, considered in context and totalit y, were insufficiently pervasive or severe to change the terms or conditions of Coope r’s employment. At most, viewed entirely in Cooper’s favor, the facts reveal an overzealous manage ment style on the part of Proffitt, a management style di rected at male and female troopers alike. Cooper does not identify a single case with remotely anal ogous facts, from this court or any other, holding that similar conduct is objectively severe or pervas ive enough to create a fact question for the jury on Title VII liability. Sh e does not point to evidence of physical intimidation or name-calling. Nor does she poi nt to any concrete interference with her ability to conduct her j ob duties. Her complaint boils down to a simple assertion it was not pleasant to work unde r Proffitt’s supervision. As this court has made clear, however, “run-of-the mill boorish, juven ile, or annoying behavior that is not uncommon in American workpl aces is not the stuff of a Title VII hostile work environment claim.” Throupe , 988 F.3d at 1252 (quotation omitted). Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 2526 B. First Amendment Claim 11 1. Factual and Procedural Background The background facts adduced by Coope r in support of her First Amendment claim are extraordinarily limit ed. At the end of the summer of 2020, Cooper drafted a letter to the Governor of Kansas. The letter complained (1 ) KHP did not allow mourning bands to be worn on troopers’ uniforms for as long as Cooper hoped to honor a trooper friend of hers who committed suicide, (2) troopers were not initially allowed to make a “last cal l” on the radio for the dece ased trooper, (3) a debrief about the suicide was not as prompt as Cooper hoped, and (4) Jones and De Vore “completely revamped the structure and placement of people within [KHP].” In addition, the draft letter stated, in a single paragraph, the following: I have already seen the way they treat females in a world that’s supposed to be equal. My mentors and friends have been disrespected by sexism and sexual harassment. My peers and immediate supervisors have given me every opportunity my male counterparts receive, but what value does that hold if the lead ers at the top profoundly disrespect women? I am fairly new to the [KHP ]; and, seeing the proof I have of their disrespecting women abso lutely makes me disgusted. Cooper did not send her draft letter to the Governor because she feared being fired. Cooper averred that Jones used a canoe an alogy: “if you’re not in my canoe then basically you’re out of the loop, you’re out of the club.” She testified generally that Jones used this language to threaten th e jobs of noncoopera ting KHP employees.

11 Cooper’s First Amendment claim is set out in count 28 of the Second Amended Complaint. Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 2627 Jones moved for summary judgment on Cooper’s § 1983 First Amendment claim. He argued he was entitled to qualif ied immunity because Cooper failed to demonstrate a violation of her clearly es tablished First Amendment right to speech. In her response in opposition to Jones’s re quest for summary judgment, Cooper did not even mention qualified immunity. Inst ead, after briefly setting out the legal standard applicable to su ch a claim, Cooper’s res ponse in opposition focused exclusively on three issues relating to whet her her speech involved matters of public concern. The district court granted summa ry judgment in Jones’s favor, ruling as follows: “[Cooper does] not respond to th e assertion of qualified immunity by Jones . . . at all. Although [she] re spond[s] to some of the substa ntive arguments . . . , [she failed] to identify any clearly established law that aligns with the facts of this case
. . . .” 2. Legal Background and Standard of Review “[A] state cannot condition public em ployment on a basis that infringes [an] employee’s constitutionally protected in terest in freedom of expression.” Arndt v. Koby , 309 F.3d 1247, 1251 (10th Cir. 200 2) (quotation omitted). The First Amendment “does not apply with full force, ” however, in the co ntext of government employees. Id. (quotation omitted). “If the govern ment restrains the free speech rights of its employees, we assess the va lidity of that restra int by balancing the interests of the employee, as a citizen, in commenting up on matters of public concern and the interest of the State, as an employer, in promoti ng the efficiency of the public services it performs th rough its employees.” Id. (quotation and a lteration omitted). Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 2728 This court assesses the constitutionality of speech restrictions under the “so-called
Garcetti / Pickering test.” Avant v. Doke , 104 F.4th 203, 208 (10th Cir. 2024); see also Arndt , 309 F.3d at 1251 (holding this test a pplies in both the re taliation and prior restraint contexts). The first three parts of the test, all le gal questions, are as follows: (1) whether the employee’s speech relates to the employee’s official duties; (2) whether the speech involves a matter of pub lic, as opposed to private, concern; and (3) whether the government’s in terest in the effi ciency of the public services it performs through its employees outweighs the employee’s intere st in free speech.
Avant , 104 F.4th at 208 & n.3; Gardetto v. Mason , 100 F.3d 803, 811 (10th Cir. 1996). The last two parts of the test, relating to the fact issue of causation, query whether (4) an adverse action was at leas t partially caused by the employee’s speech; and (5) the employee would not have been otherwise fired in the absence of the protected speech. Id

. 12
State actors sued in their indivi dual capacities under § 1983 may assert qualified immunity. Gutierrez v. Cobos , 841 F.3d 895, 899 (10th Cir. 2016). As noted above, Jones specifically made such an assertion in his request for summary

12 Although Arndt holds that this court assesses prior restraint cases under the Garcetti / Pickering test, no decision of this court considers how the causation portions of the test should apply in such cases. Instead, our case s have been resolved in government employer’s favor at the public concern and balancing parts of the test. Arndt , 309 F.3d at 1252-53; Belcher v. City of McAlester , 324 F.3d 1203, 1208-09 (10th Cir. 2003). Given Coope r’s failure to address the i ssue of qualified immunity in her brief in opposition to summa ry judgment, this court need not consider the matter further. Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 2829 judgment. The “assertion of qualified imm unity creates a presumption [Jones is] immune from suit.” Perea v. Baca , 817 F.3d 1198, 1202 (10th Cir. 2016). Thus, the burden shifted to Cooper to show Jones violated a constitutional right that was clearly established at th e time of his conduct. Gutierrez, 841 F.3d at 900; see also
Avant , 104 F.4th at 207-08. In contrast to “most affirmative defe nses, the plaintiff bear[s] the ultimate burden of persua sion to overcome qualified immunity.”
Gutierrez , 841 F.3d at 900 (quota tion and citation omitted)

. If, and only if, a plaintiff meets this burden, does the traditional summary-judgment burden shift back to the defendant to show there is no genuine issue of material fact for trial. Rojas v. Anderson , 727 F.3d 1000, 1004-05 (10th Cir. 2013). This court reviews all as pects of the district cour t’s decision—the grant of summary judgment, the applicability of qualified immunity, and First Amendment questions—de novo. Avant , 104 F.4th at 207; Arndt , 309 F.3d at 1250-51. 3. Analysis Cooper asserts the district court erre d in concluding she failed to carry her initial burden of demonstrating the existence of a clearly establis hed violation of her First Amendment rights. In so arguing, she not es she cited to this court’s decision in Wulf v. City of Wichita , 883 F.2d 842 (10th Cir. 1989). She further asserts Wulf clearly establishes that re ports of sexual harassment involve matters of public

concern. See id. at 859-60. The problems with Cooper’s assertions in this regard are numerous. It is enough, however, to note that Wulf discusses only a single aspect of the Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 2930 Garcetti / Pickering test—whether the spee ch at issue there rela ted to a matter of public concern. Id. Our precedent obligates Cooper, however, to come forward with sufficient evidence which, if believed by a jury, demons trates the existence of a clearly established violation of her First Amendment rights. Gutierrez, 841 F.3d at 900. Even setting aside issues of causati on, Cooper was obligated to demonstrate (1) the existence of a speech rest riction, (2) relating to matters outside her official duties, (3) that prevented her from speaking on a matter of public concern, and (4) her interest in speaking outweighe d KHP’s interest in the e fficient provision of public services. Avant , 104 F.4th at 208 & n.3; Gardetto , 100 F.3d at 811. Because Cooper did not carry her burden of persuasion by establishing the existence of a clearly established violation of her speech rights, the ultimate burden neve r shifted to Jones, entitling Jones to qualified immunity. Rojas , 727 F.3d at 1004-05. Even setting this failure aside and focusing solely on Wulf , as Cooper suggests, would not result in a different outcome. Wulf involved a discrete act of reasonably perceived sexual harassment of a subordinate by an identified supervisory police officer. 883 F.2d at 860. Cooper’s proposed speech references a generalized atmosphere of sexism a nd sexual harassment. In Wulf , every aspect of the plaintiff’s letter, in addition to the di screte allegation of sexual ha rassment, addressed a matter of public concern. Id. Cooper’s draft letter to th e Governor addresses multiple additional topics, none of which she assert s are matters of public concern. It is certainly true that, at l east as to the matter of c ontent, only a portion of the communication need address a matter of public concern. Id. Nevertheless, embedding Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 3031 a matter of public concern in a much larg er letter involving a personal dispute bears on whether the form and context of th e communication support the conclusion the speech at issue addresses a matter of public concern. Id. at 860 n.26. This court must consider not only the content, but also the context and purpose. For example, speech that would ordi narily trigger a public concern is not protected if the employee's prim ary purpose was to air a personal dispute. So even when the conten t might otherwise involve a public concern, an official must determ ine whether the employee had been trying to expose misconduct or to a ddress a personal dispute. Given the inherent uncertainty in that determ ination, we’ve held that officials enjoy qualified immunity when they reasonably regard a plaintiff's primary motive as personal even when the content of the plaintiff's statement involves a public entity’s improper conduct.
Avant , 104 F.4th at 209 (citations and quotations omitted). 13 Thus, even as to the discrete question of the existence of speech touching on a matter of public concern,

13 Of course, this question is further co mplicated by the entirely tenuous nature of the speech restriction id entified by Cooper: the canoe analogy. The only basis set out in Cooper’s response in opposition to summary judgment for treating the canoe analogy as a speech restriction governing he r proposed letter to the Governor is the following: “Jones testified th at he had previously indicated that members of the highway patrol needed to get in the canoe or they would be ‘dealt with.’” At no point, however, does Cooper produce evidence she h eard or was aware of the “dealt with” language. And, in any event, the cited porti ons of Jones’s deposition testimony do not reasonably support the interpretation Cooper places on this language. Jones explained that “dealt with” did not mean “terminated,” but instead meant “addressed, spoken to an individual that is outsi de the boundaries of our polic y, counsel, not necessarily disciplined but say this is the policy, you ’re outside the boundari es of that. So I would just say managed, addr essed instead of—addressed.” In an apparent effort to support the contention Jones’ s canoe analogy was a speech restriction, Cooper’s opening brief asserts Jones “conceded” employees who did not get in the canoe were eventually terminated . The problems with this line of argument are legion. At no point in her summary judgment briefing in th e district court did Cooper refer to the terminations of other employees to support the contention the canoe analogy amounted to a speech restricti on. Because she did not disc uss those terminations, she also did not discuss the ci rcumstances surrounding thos e terminations, leaving the Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 3132 Cooper is wrong in asserting that her bare reference to Wulf satisfied her burden on establishing clearly established law. See, e.g. , Duda v. Elder , 7 F.4th 899, 919 (10th Cir. 2021) (concluding Wulf clearly established a First Amendment retaliation claim only after noting important factual parallel s between the speech a nd context at issue there and the speech and context at issue in Wulf ). Upon de novo review, this court ha s no doubt the district court correctly concluded Cooper failed to carry her in itial burden of demonstrating a clearly established violation of her First Amendmen t speech rights. Thus, the district court correctly granted Jones qualified immunity as to this claim.
III. CONCLUSION For those reasons set out above, the judgment of the United States District Court for the District of Kansas in favor of Kansas and Jones is AFFIRMED

.
Entered for the Court
Michael R. Murphy Circuit Judge

identified summary judgment r ecord devoid of any indicat ion those terminations are relevant to Cooper’s speech suppression claim. Appellate Case: 23-3145 Document: 010111085014 Date Filed: 07/25/2024 Page: 32