FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 16, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
KELSEY FISHER,
Plaintiff - Appellant,
v. No. 20-3115
(D.C. No. 2:18-CV-02664-DDC)
BASEHOR-LINWOOD UNIFIED (D. Kan.)
SCHOOL DISTRICT NO. 458,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, McHUGH, and CARSON, Circuit Judges.
_________________________________
Kelsey Fisher appeals the district court’s order granting Basehor-Linwood
Unified School District No. 458’s (District) motion for summary judgment on her
claims for disability discrimination and retaliation in violation of the Americans with
Disabilities Act (ADA). See Fisher v. Basehor-Linwood Unified Sch. Dist. No. 458,
460 F. Supp. 3d. 1167, 1207 (D. Kan. 2020). Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,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.
I. BACKGROUND
Ms. Fisher was employed by the District as a certified teacher at Basehor-
Linwood Middle School for school years 2015-16, 2016-17, and 2017-18. During the
relevant time period, Amy Garver served as principal, Garold Baker served as
assistant principal, and David Howard served as superintendent.
Ms. Fisher has Post-Traumatic Stress Disorder (PTSD), which “stems from a
sexual assault she sustained.” Fisher, 460 F. Supp. 3d at 1176. “Her symptoms
include stress, anxiety, elevated heart rate, shortness of breath, panic attacks,
nightmares, and insomnia.” Id. “Dr. Kevin Mays, a psychiatrist, began treating her
in November 2017.” Id. According to Fisher, “[d]uring [her] first year teaching . . .
she had shared with some co-workers—including Principal Garver—that she was a
victim of a sexual assault. But . . . Garver didn’t remember [Fisher] disclosing a
disability diagnosis. Nor did [Fisher] seek accommodation for a disability.” Id.
(citation omitted).
According to Principal Garver, Ms. Fisher “struggled” with “classroom
management,” which is a “huge part of teaching.” Id. at 1174, 1176 (internal
quotation marks omitted). “[F]or the 2015-16 school year . . . [Garver noted that]
students [in Fisher’s classroom] were visiting with each other, working on homework
for other classes, and goofing off.” Id. at 1175 (internal quotation marks omitted).
Also in 2015, Garver issued Fisher a disciplinary reprimand after she told “her
class—out of frustration—‘this is why I hate this class.’” Id. Fisher received “a
second written reprimand in . . . 2016 after she said the word ‘shit’ in front of her
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students.” Id. And in 2017, Garver called Fisher’s attention to an “incident . . .
where she had explained the meaning of the word ‘gangbanging’ to students.” Id. at
1175-76.
On or about November 16, 2017, Ms. Fisher “was in her classroom supervising
25 eighth grade students,” when she had a panic attack. Id. at 1176. “[S]he stepped
. . . into the hallway,” where she was observed by another teacher who “went to the
school office to seek help.” Id. Principal Garver came to assist and “walked [Fisher]
to the school nurse’s office. The nurse checked [her] blood pressure and pulse. Both
were elevated,” id., and she also had a racing heartbeat. The nurse told her to go to
an urgent care facility.
“Principal Garver drove [Ms. Fisher] to the urgent care.” Id. at 1177. But
when Fisher “could not remember basic information like her birthdate,” Garver
helped “complete the [paperwork] for her.” Id. Garver then accompanied Fisher to
the examination room, and “sat in a chair in the corner of the room and read emails
on her phone.” Id. During the examination, Fisher told the nurse practitioner “that
she was depressed and experiencing anxiety. She explained that the [recent] death of
a high school classmate . . . had triggered her panic attack . . . [and] reminded her of
an incident where she had been roofied and sexually assaulted when she was 21 years
old.” Id. (citations omitted). “The nurse . . . responded that her symptoms . . .
sounded like . . . PTSD.” Id. She prescribed anti-anxiety medication and told Fisher
to “schedule a session with her counselor.” Id. Garver later testified that she
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remembered no details about the examination other than the “nurse practitioner
prescribed medication . . . [and] permitted [Fisher] to drive herself home.” Id.
Principal Garver drove Ms. Fisher back to the school and suggested that she
“take a mental health day off work the next day.” Id. at 1177-78 (internal quotation
marks omitted). Later in the day, she “sent [Fisher] a text message asking if she had
made it home.” Id. at 1178. When Fisher expressed her concern over the day’s
events, Garver told Fisher to “call her counselor and take the next day off work for
her mental health.” Id.
“The next morning . . . [Ms. Fisher] met with Principal Garver[,] [and] shared
that she was embarrassed about . . . Garver having been in the exam room.” Id.
“Garver responded that it was okay, . . . [and] suggested [the school’s part-time
psychologist,] Bo Youngblood[,] and [its social worker,] Kathryn Harter[,] as
resources.” Id. Fisher took the rest of the day off. “That evening, [Fisher] sent . . .
Garver a text message asking for contact information for Dr. Youngblood and
Ms. Harter.” Id.
“On November 28, . . . Assistant Principal Baker met with [Ms. Fisher] about
an incident where a student sustained a head injury in her classroom.” Id.
“According to [Fisher], [he] attributed the injury to her [poor] classroom
management. After the meeting, [Fisher] left the . . . school for an appointment with
her counselor.” Id. (citation and internal quotation marks omitted). “Shortly before
her appointment, [Fisher] sent a text message to Principal Garver, asking her again
for Ms. Harter’s contact information.” Id. When “Garver responded a few minutes
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later with Ms. Harter’s phone number, [Fisher] replied by text message, saying ‘she’s
the person who deals with suicide/depression, right?’” Id.
Minutes later, “Principal Garver responded that Ms. Harter was the social
worker,” and then followed up immediately by “asking if [Ms. Fisher] was concerned
about a student.” Id. Fisher said, “I guess I don’t know what that entails but am
trying to get connected with the right person.” Id. (internal quotation marks omitted).
“Meanwhile, Principal Garver didn’t understand [Ms. Fisher’s] response to her
text message, . . . [so] [t]wenty minutes [later,] she sent another text . . . [in which]
she asked if [Fisher] was concerned for herself or a student. Garver continued to text
[Fisher] but received no response.” Id. She “also contacted Dr. Youngblood and
Ms. Harter to see if they had heard from [Fisher].” Id. at 1179. “The three of them
decided that, out of caution, . . . Garver should call for a welfare check on [Fisher].”
Id. “Garver then called the suicide hotline and . . . [requested] a welfare check.” Id.
“Later that evening, Principal Garver called Assistant Principal Baker to inform him
of what had happened . . . . She also called Superintendent Howard and told him
about [Fisher’s] panic attack.” Id.
On November 30, Principal Garver and Assistant Principal Baker met with
Ms. Fisher to “check on [her] well-being.” Id. During the meeting, Garver asked
Fisher about her “meeting with [her] psychiatrist.” Id. at 1180. Fisher responded
that “she didn’t want to talk about her personal life.” Id. “Garver [told Fisher] that
when [her] personal life began to interfere with her job performance, they needed to
talk about it.” Id. Fisher said that “she understood . . . but objected to [being asked
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questions] in front [of] . . . Baker.” Id. Garver maintained that she was “concerned
about what is happening in the classroom every day and whether students are safe
and being taught their academics.” Id. (internal quotation marks omitted). “During
November and December 2017, [Garver] and . . . Baker never discussed [Fisher’s]
emotional and mental health,” or “whether [the] sexual assault was affecting her
emotional condition.” Id.
In January 2018, “Principal Garver received a complaint from a parent about
an incident . . . in [Ms. Fisher’s] classroom in December 2017,” id., where “students
[were] playing a game that involved saying the word penis,” id. at 1181 (internal
quotation marks omitted). “Garver [investigated and] concluded that [Fisher] had
taken no action to truly stop the students’ behavior, and somewhat participated in the
behavior,” when she “roasted a student by referencing the student’s penis.” Id.
(internal quotation marks omitted).
“Principal Garver discussed the incident with Superintendent Howard, and
they decided to suspend [Ms. Fisher], with pay, for two days.” Id. Garver believed
the suspension was appropriate “because of the severity of making fun or talking
about a student’s private part in front of an entire class.” Id. (internal quotation
marks omitted). Fisher “served her suspension on January 17 and 18.” Id.
Ms. Fisher “returned from her . . . suspension on Friday, January 19.” Id.
“Sometime that day, a female student, L.A., used [Fisher’s] computer to prepare a
written statement asserting that other students had bullied her.” Id. “[Fisher] deleted
the statement [without ever] report[ing] L.A.’s concerns to her parents[,] . . . school
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counselors[,] or administrators.” Id. “[L]ater that day . . . S.P., [another] female
student[,] asked to talk to [Fisher.]” Id. Fisher “invited S.P. to sit at a table in the
back of the classroom and talk, although S.P. should have been completing the
assigned classroom activity.” Id. “L.A. . . . immediately joined their conversation.”
Id. S.P. began to complain about “her classmates, and females [in general].” Id.
A.M., a female high school student who volunteered as a teacher’s aide, came into
the classroom and joined the discussion.
Sometime later, “an announcement over the intercom dismissed students from
class to attend a pep assembly in the gymnasium.” Id. at 1182. “Principal Garver
expected the entire school to attend this assembly, and for teachers to sit with their
students in designated areas.” Id. S.P., L.A., and A.M., however, asked Ms. Fisher if
they could stay in her classroom and skip the assembly and Fisher agreed, although
she “never sought approval for the students to miss the assembly.” Id. “During [the
ensuing] conversation, [Fisher] permitted the students to read the letter of reprimand
about her suspension and [also] discussed her discipline with the students.” Id.
“Meanwhile, . . . Assistant Principal Baker took roll of the teachers,” and
“noted [Ms. Fisher’s] absence . . . . Principal Garver also had noticed. After the
assembly, she escorted [Fisher’s] students back to her classroom” where she “saw
[Fisher] and the three students sitting at the back table.” Id. The students gathered
their belongings and began leaving the classroom. But “[b]efore [S.P., L.A., and
A.M.] left, [Fisher] told them not to let the administration back them into a corner
when questioned about [skipping] the assembly.” Id. (brackets and internal quotation
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marks omitted). Fisher “knew she was in trouble for having met with the three
students during the pep assembly.” Id. (internal quotation marks omitted). When
Garver asked S.P. and L.A. why they missed the pep rally, “[t]hey explained that they
were talking to [Fisher] about friend problems.” Id. (internal quotation marks
omitted). Fisher later sent a text message to S.P. to find out what Garver asked her.
Ms. Fisher “took the following Monday . . . as a personal day.” Id. She “spent
time that day reviewing [the District’s] policies on its website[,]” exchanging text
messages with S.P., and then advising S.P. to delete their messages to prevent them
from falling into the hands of school administrators. Id. at 1182-83. “Sometime that
day, S.P. met with Principal Garver.” Id. at 1183. Following the meeting, S.P. sent
Fisher a text message telling her that “during the meeting, she had started to [fake]
cry,” a tactic that Fisher enthusiastically embraced. Id. (internal quotation marks
omitted).
Principal Garver also met with L.A.’s mother, who reported the details of
L.A.’s interaction with Ms. Fisher when she skipped the pep assembly and stayed
behind in the classroom. “L.A. [told her mother] that [Fisher] had told her to tell . . .
Garver that they had been talking about teen problems and friend issues, which L.A.
did.” Id. at 1184. But that was not true; instead, during the gathering, Fisher “told
the students about her own personal issues and that she had been [sexually assaulted]
and was attending counseling,” and also that “Garver had called the police to
[Fisher’s] apartment because she believed she was suicidal.” Id. L.A.’s mother also
brought Garver’s attention to several text messages between Fisher and L.A. where
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they referred to each other as “mom” and “daughter,” and Fisher told L.A. that she
loved her. Id. (internal quotation marks omitted). L.A.’s mother believed the
messages were inappropriate.
The next day, Ms. Fisher sent a text message to A.M. reminding her to stick to
their story if contacted by school administrators, writing, “[w]e all have the same
story. We talked about those student problems. You gave your input. That was it.”
Id. at 1185 (internal quotation marks omitted). She then “sent a second text message
to A.M., saying ‘I don’t want them to know I talked to you so make sure you delete
texts!!’” Id.
That same day, Ms. Fisher met with Principal Garver and Assistant Principal
Baker about the pep assembly incident, who told her that she had been “negligent for
not supervising her students.” Id. (brackets and internal quotation marks omitted).
Fisher acknowledged that she “was responsible for supervising students at the
assembly, but that particular assembly was the first time that administrators had
conveyed that it was important for teachers to attend.” Id.
Superintendent Howard and Principal Garver also met and decided to suspend
Ms. Fisher, with pay, until they could raise terminating her employment with the
Board of Education (Board) at its next meeting. “According to . . . Howard, the pep
assembly incident drove the termination decision,” and Garver “never expressed
concern . . . about [Fisher’s] mental or emotional capacity to perform as a teacher.”
Id. Howard agreed with Garver’s recommendation on the grounds that Fisher
violated a policy that requires teachers to maintain professional relationships with
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students and because her “absence from the pep assembly was inexcusable.” Id. at
1186.
Principal Garver gave Ms. Fisher “a document outlining her neglect of her
teacher responsibilities,” including “carrying on conversations with middle school
students about her personal life,” which “exceeded the boundaries of a
teacher/student relationship,” and informed her that she would “not be retained as a
teacher in the classroom.” Id. (brackets and internal quotation marks omitted).
“Later that day, Superintendent Howard notified [Fisher], in writing, of her
suspension, pending the Board[’s] next meeting.” Id.
In the meantime, Ms. Fisher retained legal counsel and filed a complaint with
the Equal Employment Opportunity Commission (EEOC). At the invitation of
Fisher’s counsel, the District agreed to mediate the dispute; however, when mediation
failed, the District formally terminated her employment in April 2018.
Eventually, Ms. Fisher sued under the ADA for (1) an improper disability-
related inquiry (42 U.S.C. § 12112(d)(4)(A)), (2) disability discrimination (42 U.S.C.
§ 12112(a), and (3) retaliation (42 U.S.C. § 12203(a)). The district court granted the
District’s motion for summary judgment. This appeal followed.
II. STANDARD OF REVIEW
“The court shall 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). “We review the district court’s grant of
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summary judgment de novo, reviewing the evidence in the light most favorable to the
nonmoving party.” Kilcrease v. Domenico Transp. Co., 828 F.3d 1214, 1218
(10th Cir. 2016) (brackets and internal quotation marks omitted).
III. ANALYSIS
A. Disability-Related Inquiry
The ADA prohibits an employer from “mak[ing] inquiries of an employee as
to whether such employee is an individual with a disability or as to the nature or
severity of the disability, unless such . . . inquiry is shown to be job-related and
consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A). “A plaintiff
asserting a claim under § 12112(d)(4)(A) must show (1) that [s]he is an employee of
the defendant-employer, and (2) that the defendant-employer required h[er] to
undergo a medical examination or made a disability-related inquiry of him.”
Williams v. FedEx Corp. Servs., 849 F.3d 889, 901 (10th Cir. 2017). But “[e]ven if
the plaintiff makes the required showing, the employer may avoid liability by
demonstrating that the medical examination or disability-related inquiry was job-
related and consistent with business necessity.” Id. “[C]ourts will readily find a
business necessity if an employer can demonstrate that a medical examination or
inquiry is necessary to determine whether the employee can perform job-related
duties when the employer can identify legitimate, non-discriminatory reasons to
doubt the employee’s capacity to perform his or her duties.” Adair v. City of
Muskogee, 823 F.3d 1297, 1312 (10th Cir. 2016) (ellipsis and internal quotation
marks omitted).
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According to Ms. Fisher, the district court erred in finding that Principal
Garver’s question about her appointment with her psychiatrist was not a prohibited
disability-related inquiry. But Fisher’s argument misses the mark. The court did not
resolve, one way or the other, whether the inquiry was disability-related; instead, it
resolved the claim on the grounds that the inquiry was job-related and consistent with
the business needs of the District.
“Even construing . . . Garver’s question as a disability-related inquiry, a
reasonable factfinder only could find that her inquiry was job-related and consistent
with business necessity.”
As principal, . . . Garver was responsible for ensuring teachers could teach
and supervise students effectively. In this context, her question about
[Fisher’s] psychiatrist appointment sought information about [Fisher’s]
ability to perform the essential functions of her job: teaching and
supervising students . . . . [Fisher] had a panic attack in her classroom,
rendering her unable to supervise her students. This incident alone gave . . .
Garver a legitimate, nondiscriminatory reason to question [Fisher’s]
capacity to perform her job duties . . . . Given the undisputed facts that
[Fisher] had suffered a panic attack in her classroom shortly before the
inquiry, she had sent . . . Garver a text message referencing suicide and
depression, and a student had sustained a head injury in [Fisher’s]
classroom while under her supervision, . . . Garver had compelling reasons
to inquire about [Fisher’s] ability to perform her job.
Fisher, 460 F. Supp. 3d at 1192.
Because Ms. Fisher failed to come forward with any evidence that Principal
Garver’s inquiry was not related to her job as a teacher and somehow inconsistent
with the District’s business needs, we affirm the district court’s grant of summary
judgment.
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B. Disability Discrimination
The ADA provides that “[n]o covered entity shall discriminate against a
qualified individual on the basis of disability in regard to . . . the hiring,
advancement, or discharge of employees.” 42 U.S.C. § 12112(a). “ADA
discrimination claims are generally subject to the McDonnell Douglas burden-
shifting framework adapted from Title VII discrimination caselaw.” Kilcrease,
828 F.3d at 1220.
At step one, “a plaintiff carries the burden of raising a genuine issue of
material fact on each element of his prima facie case.” Id. (internal quotation marks
omitted). To establish a prima facie case, “a plaintiff must show (1) that [s]he is
disabled within the meaning of the ADA; (2) that [s]he is qualified, with or without
reasonable accommodation, to perform the essential functions of the job held . . .; and
(3) that [s]he was discriminated against because of his disability.” Id. at 1218-19
(internal quotation marks omitted). At step two, “[i]f plaintiff establishes a prima
facie case, the burden shifts to the defendant to offer a legitimate nondiscriminatory
reason for its employment decision.” Id. at 1220 (internal quotation marks omitted).
And at step three, “[i]f defendant articulated a nondiscriminatory reason [for its
actions], the burden shifts back to plaintiff to show a genuine issue of material fact as
to whether the defendant’s reason for the adverse employment action is pretextual.”
Id. (internal quotation marks omitted).
For purposes of summary judgment, the district court assumed that Ms. Fisher
carried her burden to establish a prima facie case, see Fisher, 460 F. Supp. 3d at
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1193-96, and then found that the District “carried its burden to articulate legitimate,
nondiscriminatory reasons for its adverse employment actions,” id. at 1197.
To show pretext at step three, Ms. Fisher sought to compare her situation to
four other teachers, without disabilities, who were not terminated for engaging in
misconduct that she argued was more egregious than failing to attend a pep assembly
and staying behind in the classroom to talk with a handful of students about her own
mental-health problems, and then telling her students to lie about what they
discussed. Specifically, she noted that the four non-disabled teachers received (1) a
four-day suspension in 2015 for slapping a student, (2) a five-day suspension in 2016
for kicking a student in the foot, (3) a written reprimand in 2017 for bullying
behavior toward students, and (4) a four-day suspension in 2018 for inappropriately
touching a student’s leg during track practice.
As further evidence of pretext, Ms. Fisher also cited Principal Garver’s actions
in November 2017, when she (1) directed her to take a mental health day following
her panic attack, (2) assumed that she was talking about herself when she asked for
information about suicide resources, (3) called for a welfare check, and (4) asked
about her psychiatrist appointment. But the district court found that Fisher’s
evidence was insufficient “to [create] a triable issue whether [the District’s] reasons
for its adverse employment actions were pretextual.” Id. at 1198. We agree.
“A plaintiff can establish pretext by showing the defendant’s proffered non-
discriminatory explanations for its actions are so incoherent, weak, inconsistent, or
contradictory that a rational factfinder could conclude they are unworthy of belief.”
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Williams, 849 F.3d at 900 (internal quotation marks omitted). One way a plaintiff
can show pretext is with evidence that she was “treated differently from other
similarly-situated employees who violated work rules of comparable seriousness.”
Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000).
“[S]imilarly situated employees are those who deal with the same supervisor
and are subject to the same standards governing performance evaluation and
discipline.” Riggs v. AirTran Airways, Inc., 497 F.3d 1108, 1117 (10th Cir. 2007)
(internal quotation marks omitted). Moreover, in determining whether employees are
similarly situated, a “court should also compare the relevant employment
circumstances, such as work history . . ., applicable to the plaintiff and the intended
comparable employees.” Aramburu v. Boeing Co., 112 F.3d 1398, 1404 (10th Cir.
1997); see also Salguero v. City of Clovis, 366 F.3d 1168, 1177 (10th Cir. 2004)
(affirming summary judgment and holding that allegations of disparate discipline
were insufficient to show pretext because court courts “afford substantial latitude to
employers in making discipline related decisions,” and there were “significant
differences in conduct” among employees). “[A]t summary judgment, the court must
determine whether plaintiff has adduced enough evidence to support a finding that
the other employee and plaintiff were sufficiently similarly situated to support an
inference of discrimination.” Riggs, 497 F.3d at 1117 (brackets and internal
quotation marks omitted).
We agree with the district court that Ms. Fisher failed to demonstrate that she
was similarly situated to the teachers who were either reprimanded or suspended—
15
but not terminated—for violating school policy. First, because Fisher provided no
details of the teacher’s bullying behavior that led to a reprimand, there was no
evidence from which the court could conclude that Fisher and the teacher who bullied
the students were similarly situated. Second, “[i]n the other three episodes of teacher
misconduct—kicking a student’s foot, slapping a student’s face, and inappropriately
touching a student—the disciplined teachers had one-time misconduct issues,” and
therefore, were “not similarly situated to [Fisher],” who had been “formally
disciplined . . . twice . . . before [being] suspend[ed] [in January 2018].” Fisher,
460 F. Supp. 3d at 1201. We further agree that Principal Garver’s actions did not
create a triable issue whether the District’s reasons for terminating Fisher’s
employment were pretextual because, as previously explained, her actions were job
related and consistent with business necessity.
C. Retaliation
Title 42 U.S.C. § 12203(a) provides that “[n]o person shall discriminate
against any individual because such individual has opposed any act or practice made
unlawful by this chapter or because such individual made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or hearing under this
chapter.” When the plaintiff “attempts to prove his retaliation claim using
circumstantial evidence, the analytical framework pronounced in McDonnell Douglas
. . . guides our review.” Foster v. Mountain Coal Co., 830 F.3d 1178, 1186
(10th Cir. 2016) (brackets and internal quotation marks omitted). “Under this
framework, once the plaintiff establishes a prima facie case of retaliation, the
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employer has the burden of showing it had a legitimate, nondiscriminatory reason for
the adverse action.” Id. (internal quotation marks omitted). To establish a prima
facie case, “a plaintiff must prove that (1) he engaged in a protected activity; (2) he
was subjected to or an adverse employment action subsequent to or contemporaneous
with the protected activity; and (3) there was a causal connection between the
protected activity and the adverse employment action.” Id. at 1186-87 (brackets and
internal quotation marks omitted). “If the employer can do so, the burden of
production shifts back to the plaintiff to prove pretext, which requires a showing that
the proffered nondiscriminatory reason is unworthy of belief.” Id. at 1186 (brackets
and internal quotation marks omitted).
Ms. Fisher’s theory for recovery is that the District terminated her employment
in April 2018 as retaliation for filing a complaint with the EEOC. For purposes of
summary judgment, the district court assumed that Fisher carried her burden to
establish a prima facie case, see Fisher, 460 F. Supp. 3d at 1202-06, and that the
District carried its burden to articulate legitimate, nondiscriminatory reasons for its
adverse employment action, id. at 1206.
To show pretext at step three, Ms. Fisher “incorporate[d] by reference the
pretext argument [and evidence] she made to support her discrimination claim,”
namely, that the District “had disciplined four similarly situated employees less
harshly . . . for similar misconduct.” Id. In other words, Fisher did not present any
additional evidence of pretext in the context of a retaliation claim. We agree with the
district court that “[f]or the same reasons [that this evidence did not support pretext
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for discrimination], this evidence is insufficient to support a triable issue whether
[the District] retaliated against [Fisher] for filing an EEOC [complaint].” Id.
IV. CONCLUSION
The judgment of the district court is affirmed.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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