In McNellis v. Douglas Cnty. School District, 116 F.4th 1122 (10th Cir. Sept. 10, 2024), the court, inter alia, reversed the lower court’s dismissal of plaintiff’s religious discrimination claims asserted under Title VII of the Civil Rights Act of 1964 and the Colorado Anti-Discrimination Act.
In sum, plaintiff, an assistant principal, was terminated following an investigation of his religion-related comments regarding a school production of The Laramie Project, which concerns a hate crime motivated by the victim’s sexuality.
While the court affirmed the dismissal of plaintiff’s First Amendment retaliation, it held that he plausibly alleged religious discrimination. From the decision:
As an initial matter, we reject the district court’s apparent assumption that Mr. McNellis “needed to plead” the non-Christian status of other DCSD employees to state a plausible claim. App. at 202. It is well-established that “we do not mandate the pleading of any specific facts in particular” to survive a motion to dismiss a Title VII discrimination claim. Khalik, 671 F.3d at 1194; see also Bekkem, 915 F.3d at 1274 (same). Rather, the “critical prima facie inquiry in all [discrimination] cases” is whether the plaintiff has adequately alleged “the adverse employment action occurred under circumstances which give rise to an inference of unlawful discrimination.” Barlow, 703 F.3d at 505 (quoting Plotke, 405 F.3d at 1100). We thus proceed to consider whether Mr. McNellis’s allegations meet this standard.
Alleging “the employer treated similarly situated employees more favorably” is “[o]ne method by which” a plaintiff can plead circumstances that give rise to an inference of discrimination. PVNF, 487 F.3d at 800–01. “Individuals are considered ‘similarly-situated’ when they deal with the same supervisor, are subjected to the same standards governing performance evaluation and discipline, and have engaged in conduct of ‘comparable seriousness.’ ” Id. at 801 (quoting McGowan v. City of Eufala, 472 F.3d 736, 745 (10th Cir. 2006)). According to DCSD, Mr. McNellis has not successfully alleged the other members of the so-called “good ole boys” club were similarly situated to him. That is true. Mr. McNellis alleged no facts that would allow us to conclude these other DCSD employees shared a supervisor, evaluation and performance standards, or comparable behavior.
33But we find Mr. McNellis’s other allegations sufficient to give rise to an inference of discrimination. We consider the following allegations in reaching our conclusion:
• Mr. McNellis is a Christian man.
• Mr. McNellis was “qualified to perform the position of Assistant Principal and Athletic Director” at Ponderosa High School. App. at 102 ¶ 120.
• Throughout his employment with DCSD, Mr. McNellis “consistently received excellent performance reviews” and had never been subject to disciplinary action. App. at 94 ¶¶ 45–46.
• In a staff email chain, Mr. McNellis voiced his disagreement with the performance of a school play about the murder of a gay college student.
• He offered to “collaborate” with the school theatre department “[a]s a [C]hristian,” citing how “the love that Jesus can provide will help [the] play.” App. at 140; see also App. at 96 ¶ 64.
• The next day, DCSD informed Mr. McNellis he needed to stay home from work due to his “religious comments.” App. at 97 ¶ 70.
• Three days after the email exchange, DCSD told Mr. McNellis he was being investigated and placed on leave due to “the religious comments.” App. at 98 ¶ 80–81.
• Less than one month later, DCSD terminated Mr. McNellis’s employment, and “Defendant directly cited Mr. McNellis’s emails regarding The Laramie Project as the reason for his termination.” App. at 101 ¶¶ 113–14.
“ ‘While we do not mandate the pleading of any specific facts in particular,’ a plaintiff must include enough context and detail *1142 to link the allegedly adverse employment action to a discriminatory or retaliatory motive with something besides ‘sheer speculation.’ ” Bekkem, 915 F.3d at 1274–75 (quoting Khalik, 671 F.3d at 1194). Here, Mr. McNellis’s allegations that DCSD repeatedly invoked his “religious comments” before investigating and terminating him provide a plausible link between his termination and a discriminatory motive.
The court concluded that under these circumstances, and at this procedural stage, this was sufficient to “nudge [plaintiff’s] claims across the line from conceivable to plausible.”