Appellate Case: 23-3004 Document: 010111004602 Date Filed: 02/23/2024 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS February 23, 2024
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
CASSANDRA KINCAID,
Plaintiff - Appellant,
v. No. 23-3004
UNIFIED SCHOOL DISTRICT NO. 500,
KANSAS CITY, KANSAS,
Defendant - Appellee.
_________________________________
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 2:21-CV-02059-DDC)
_________________________________
Dan Curry, Brown & Curry, LLC, Kansas City, Missouri (Anthony E. LaCroix, LaCroix
Law Firm, LLC, Kansas City, Missouri, with him on the briefs) for Plaintiff-Appellant.
Gregory P. Goheen, McAnany, Van Cleave & Phillips, P.A., Kansas City, Kansas, for
Defendant-Appellee.
_________________________________
Before HARTZ, TYMKOVICH, and ROSSMAN, Circuit Judges.
_________________________________
HARTZ, Circuit Judge.
_________________________________
Plaintiff-Appellant Cassandra Kincaid appeals the district court’s grant of
summary judgment on her claims of retaliatory harassment under two antidiscrimination
statutes: Title VII, 42 U.S.C. § 2000e et seq., and Title IX, 20 U.S.C. § 1681. Kincaid, a
Appellate Case: 23-3004 Document: 010111004602 Date Filed: 02/23/2024 Page: 2
school administrator in Kansas City, Kansas, claims she was harassed by Defendant-
Appellee Unified School District No. 500 (the District) in retaliation for her reporting a
student-on-student sexual assault. We have jurisdiction under 28 U.S.C. § 1291. Because
we agree with the district court that she has not satisfied her burden of creating a genuine
dispute of material fact that the reasons given for the alleged material adverse actions
against her were pretextual, we affirm the district-court judgment.
I. BACKGROUND
A. Factual Background
On appeal from the grant of a motion for summary judgment, we review the
evidence in the light most favorable to Kincaid, the nonmovant. See Hiatt v. Colo.
Seminary, 858 F.3d 1307, 1310 (10th Cir. 2017).
During the events relevant to this appeal, Kincaid was an assistant principal at
Central Middle School, a school within the District. Kincaid’s supervisor was Principal
Fred Skretta, who began working at Central Middle School in the 2018–19 school year.
Kincaid claims she suffered retaliation for reporting two incidents in early 2019. In
February some girls at the school reported that a male special-education student had
hugged them in the hallway, touched their bottoms, and made them uncomfortable.
Kincaid made a note of the incident at the time in an older school database, but not in the
school’s new “Infinite Campus” computer system. She did not discipline the male student
2
Appellate Case: 23-3004 Document: 010111004602 Date Filed: 02/23/2024 Page: 3
and told his guardian that no disciplinary record would be entered unless a second
incident occurred.
In March another female student reported that the same male student “pushed [her]
up against a wall and grinded up against her with his private parts.” Aplt. App., Vol. 1 at
127 (internal quotation marks omitted). Before letting Skretta know about the incident,
Kincaid contacted the office of the District’s Director of Student Services and wrote up
the student for sexual assault. She emailed Skretta about the assault later that day.
Kincaid testified that she contacted Student Services before contacting Skretta because he
was out of the building and she believed that she was following protocol. The next day,
Kincaid entered information about both the sexual assault and the February incident in
the Infinite Campus system. She also emailed district staff to set up a hearing for the male
student and to inform them that he would serve a 10-day suspension; she did not include
Skretta on her initial email but did copy him on the email chain the next business day.
Earlier in March, before the sexual assault, Skretta had emailed Kincaid and the
other assistant principal at the school to tell them that he would be “taking over the reigns
[sic] for the overall supervision and evaluation of our special services” because the
“stakes are simply too high for me, as building principal, not to be the direct leader at
SPED [the special education program] at Central.” Id., Vol. 3 at 358. Kincaid asked in
response if she had “done anything wrong” and was told by Skretta that she had not but
that he “just had conversations with my higher-ups and know that, like I stated, SPED is
very high stakes and as head principal, I really need to be running it.” Id. at 359 (internal
quotation marks omitted). Skretta testified that he said the stakes were high because of
3
Appellate Case: 23-3004 Document: 010111004602 Date Filed: 02/23/2024 Page: 4
concerns communicated to him by his supervisors about the “discipline of special
education students and being under the watch of the state for that” and “the over-
suspension of special education kids in relation to other populations.” Id. at 579.
The Monday after the sexual assault, Skretta sent both Kincaid and the other
assistant principal an email informing them of a “[n]ew protocol”: “whenever there is an
issue with a Sped kid who [would] potentially be given discipline, please involve me
before making any decisions re. consequences (suspension, etc.).” Id., Vol. 1 at 130.
Four days later, Skretta sent Kincaid a “formal letter of concern regarding
processes related to Infinite Campus and entry of discipline records.” Id. at 131. He
expressed his concern about how Kincaid had handled the February incident, saying that
it was an “impropriety” to tell the male student’s guardian that no disciplinary record
would be entered unless there was a second incident, and that because the student “has
significant special needs, . . . it would have been appropriate to address his behaviors
immediately following the first incident with more intensive and sustained consequential
behavior support” than was provided. Id.
Skretta’s letter of concern also addressed Kincaid’s handling of the sexual assault.
It said it was “an error” on Kincaid’s part to have “communicated directly with Student
Services about it rather than speaking with [Skretta] first,” as he “should always be
informed of any incident that might be escalated beyond Central Middle School.” Id. He
therefore wanted to “clarify” two points. Id. First, Skretta was “ultimately responsible for
special education services at Central,” as he had already communicated to Kincaid, and
he needed to exercise “supervision of everything related to supervision of special
4
Appellate Case: 23-3004 Document: 010111004602 Date Filed: 02/23/2024 Page: 5
education students and staff.” Id. That meant he must be involved before any “decisions
re. consequences” were made regarding “a Special Education student who is potentially
being given discipline.” Id. Second, when Kincaid had “concerns related to student
discipline, whether . . . related to a special education or regular education student,”
Skretta was to be “the first contact prior to contacting anyone at Student Services.” Id.
Part of Kincaid’s “responsibility as an Assistant Principal” was to keep Skretta “fully
informed, including incidents [Kincaid was] considering for escalation beyond Central
Middle School.” Id. at 131–32. Skretta concluded by informing Kincaid that any “future
concerns of this nature will lead to further disciplinary action, up to and including
termination of employment.” Id. at 132.
The letter of concern was placed in Kincaid’s personnel file. Skretta did not issue
any other formal letters of concern to Kincaid or formally discipline her in any other way
during the rest of his time at Central Middle School. Elizabeth Faircloth, a member of the
District’s human-resources department who investigated Kincaid’s allegations, testified
that a letter of concern was considered “non-disciplinary,” id., Vol. 3 at 483, although
one of Skretta’s supervisors, Kristen Scott, testified that while she “kn[e]w it’s called a
letter of concern, . . . if it’s going in the personnel file, to me it’s a letter of reprimand,”
id. at 475. Faircloth recommended that the letter of concern be amended to be a letter of
reprimand, because she thought Kincaid’s policy violations had been serious.
Two days after receiving the letter of concern, Kincaid emailed a written
complaint to the District’s human-resources department about Skretta’s behavior. The
complaint alleged that “[f]or the last couple of months,” Kincaid had “felt singled out and
5
Appellate Case: 23-3004 Document: 010111004602 Date Filed: 02/23/2024 Page: 6
harassed” by Skretta, that it was unfair for Skretta to issue the letter of concern without
stating what policy Kincaid violated in reporting the sexual assault, and that a reprimand
for her handling of the February incident was unwarranted. Id., Vol. 1 at 135–36. The
complaint also said that Skretta had scheduled a meeting with her to discuss the letter of
concern but she would prefer not to meet with him alone. See id. at 136. Dr. Eva Tucker-
Nevels, one of Skretta’s supervisors, attended the meeting. Kincaid testified that at the
meeting Skretta was “very upset, very angry, and very curt,” and disagreed with Dr.
Tucker-Nevels when she indicated the letter of concern would not go into Kincaid’s file.
Id., Vol. 3 at 541.
As described in more detail below, Kincaid claims that after her report of the
sexual assault and her receipt of the letter of concern, “Skretta changed his behavior and
became more aggressive with her,” with “[m]ost of his harassment of Kincaid
beg[inning] after she made the report.” Aplt. Br. at 9. This alleged retaliatory harassment
included singling Kincaid out for criticism, talking down to her, assigning her duties to
the other assistant principal, requesting that she be transferred from his building, and
excluding her from meetings.
B. Procedural History
Kincaid filed a charge of discrimination with the Equal Employment Opportunity
Commission in November 2020, and filed suit in February 2021 after receiving a right-to-
sue letter. Kincaid alleged retaliation under both Title VII and Title IX. The District
6
Appellate Case: 23-3004 Document: 010111004602 Date Filed: 02/23/2024 Page: 7
moved for summary judgment on all Kincaid’s claims, which the district court granted.
The district court also denied Kincaid’s request to amend or modify the pretrial order.
II. ANALYSIS
A. Standard of Review
We review the district court’s grant of summary judgment de novo, applying the
same standard that the district court is to apply. See Hiatt, 858 F.3d at 1315. Viewing the
evidence in the light most favorable to Kincaid, the nonmovant, we must determine
whether a genuine issue of material fact exists in regard to her Title VII and Title IX
claims. See id.
Title VII prohibits employers from retaliating against employees who have
opposed an “employment practice,” such as sex discrimination, made unlawful by that
Title. 42 U.S.C. § 2000e-3(a); see Hiatt, 858 F.3d at 1315. Title IX has similarly been
interpreted to prohibit retaliation against individuals for complaining of sex
discrimination. See Hiatt, 858 F.3d at 1315.
Because the parties agree that Kincaid presents only indirect evidence of
retaliation, both her Title VII and Title IX claims are analyzed under the McDonnell
Douglas burden-shifting framework. See id. at 1315–16 (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802–05 (1973)). Under McDonnell Douglas a plaintiff
must first establish a prima facie case that the employer took a materially adverse action
against her in retaliation for activity protected by the applicable statute. See Hiatt, 858
F.3d at 1316. “The burden then shifts to the employer to articulate a legitimate, . . .
nonretaliatory reason for the adverse action. If the employer satisfies this burden, then
7
Appellate Case: 23-3004 Document: 010111004602 Date Filed: 02/23/2024 Page: 8
summary judgment is warranted unless the plaintiff can show there is a genuine issue of
material fact as to whether the proffered reason is pretextual.” Id. (cleaned up).
B. Title IX Claim
The district court ruled that reporting a student-on-student sexual assault
constitutes protected activity under Title IX, a determination that the District does
not challenge on appeal. The court also ruled that all but seven of the alleged
employment actions taken by the District against Kincaid were not materially
adverse. 1 On appeal Kincaid does not challenge that ruling. 2 In addition, she has
abandoned her claim with respect to one of those seven actions. 3
That leaves six allegedly material adverse employment actions. But we need
address only three of them. The district court ruled that the District provided facially
nonretaliatory reasons for each of these actions, yet Kincaid did not adequately argue
in district court that the District’s explanations for three of the actions were
1
The district court used the descriptions of the adverse actions in Kincaid’s
summary-judgment briefing, even though, as will be apparent as we discuss the
adverse actions, the descriptions are often inaccurate.
2
In particular, Kincaid does not challenge on appeal the district court’s ruling
that five actions allegedly taken by Skretta did not constitute materially adverse
actions. Those actions were that he (1) “spoke down to [Kincaid] during 20
meetings,” (2) “stopped talking to her,” (3) “pretended [Kincaid] was not there,”
(4) “spoke angrily to [Kincaid] when she opposed the purportedly retaliatory
reprimand,” and (5) “required her to be punctual but let her colleague come and go as
she pleased.” Kincaid v. Unified Sch. Dist. No. 500, 645 F. Supp. 3d 1134, 1165 (D.
Kan. 2022) (original brackets and internal quotation marks omitted).
3
The claim that Kincaid does not pursue on appeal is that the District
retaliated against her by not hiring her for a lead principal position she applied for.
8
Appellate Case: 23-3004 Document: 010111004602 Date Filed: 02/23/2024 Page: 9
pretextual. 4 See Rademacher v. Colo. Ass’n of Soil Conservation Dists. Med. Benefit
Plan, 11 F.3d 1567, 1571 (10th Cir. 1993) (“Points raised but not argued below
ordinarily will not be considered on appeal.”). Accordingly, we consider only those
three employment actions determined by the district court to be materially adverse
and for which Kincaid adequately challenged the explanation as pretextual 5: two
emails Skretta sent to Kincaid asking that she keep him informed about 911 calls and
fire alarms at Central, an email Skretta sent to his supervisors asking that Kincaid be
transferred from the school, and the letter of concern. Unpersuaded by the challenges,
we affirm the dismissal of the Title IX claim.
4
In district court Kincaid failed to adequately challenge as pretextual the
District’s facially legitimate nonretaliatory justifications for the following three
adverse actions: that Skretta “gave [Kincaid’s] duties to other employees to avoid
her,” “deprived [Kincaid] of district information that undermined her ability to
instruct her subordinates and parents,” and gave her a blank performance evaluation.
Kincaid, 645 F. Supp. 3d at 1169–70 (original brackets and internal quotation marks
omitted). In the section of her district-court brief addressing pretext, Kincaid asserted
that the District did not provide a legitimate nonretaliatory reason for these three
actions. (She does not press that assertion on appeal.) She did not, however, present
an argument that the District’s justifications for those specific actions were
pretextual.
5
We decline to consider Kincaid’s argument on appeal that the District’s
justifications for Skretta’s alleged “verbal harassment” were pretextual. Aplt. Br. at
21. That argument is based on evidence that Skretta “talked down” to Kincaid 20 to
25 times, Aplt. App., Vol. 3 at 504–05, behavior that the district court ruled, without
challenge on appeal by Kincaid, did not constitute a materially adverse action. See
footnote 2, supra. Thus, whether or not the reasons given for engaging in that
behavior were pretextual, the conduct did not violate Title IX.
9
Appellate Case: 23-3004 Document: 010111004602 Date Filed: 02/23/2024 Page: 10
1. The fire-alarm and 911-call emails 6
The district court held that two emails Skretta sent to Kincaid in February
2020—almost a year after Kincaid reported the sexual assault—could constitute
materially adverse actions. Skretta sent Kincaid the first email after he learned about
a fire alarm that had gone off at the school without his being notified. He asked that
he be informed as soon as possible of any future fire alarms in the building. The
second email, which was sent to both Kincaid and the other assistant principal,
concerned an incident where 911 was called but Skretta was not informed; Skretta
again asked to be told as soon as possible if someone at the school called 911. The
district court dismissed Kincaid’s claim with respect to this action on the ground that
the reasons contained in the emails themselves—that Skretta wanted to be informed
about fire alarms and 911 calls at the school—were facially nonretaliatory reasons for
which Kincaid failed to provide sufficient evidence of pretext.
Without questioning the district court’s ground for dismissal, we think it more
important to declare that the court was too generous in saying that the emails could
constitute material adverse actions. An action is “materially adverse” in the context
of a retaliation claim if the action “well might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry.
6
The district court described these adverse actions as follows: “Skretta blamed
[Kincaid] for conduct that was not her fault, chronically found fault in her work.”
Kincaid, 645 F. Supp. 3d at 1168 (original brackets and internal quotation marks
omitted). The court found that this claim was based on the 911-call and fire-alarm
emails, a determination Kincaid does not challenge on appeal.
10
Appellate Case: 23-3004 Document: 010111004602 Date Filed: 02/23/2024 Page: 11
Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks omitted). That
definition was not satisfied here. The emails did not punish Kincaid; they simply asked
Kincaid to communicate certain information in the future. This is standard fare in any
bureaucracy. And the emails were sent almost a year after Kincaid reported the sexual
assault. The prospect of receiving such emails many months in the future would not deter
a reasonable person from reporting discrimination. We therefore affirm the dismissal of
Kincaid’s claim with respect to this action on that ground. See Richison v. Ernest Grp.,
Inc., 634 F.3d 1123, 1130 (10th Cir. 2011) (“We have long said that we may affirm on
any basis supported by the record, even if it requires ruling on arguments not reached by
the district court or even presented to us on appeal.”). We note that the District’s motion
for summary judgment in district court disputed that these emails constituted material
adverse actions, so Kincaid has had a fair opportunity to address the issue.
2. Skretta’s request that Kincaid be transferred 7
A little less than a year after Kincaid’s report of the sexual assault, Skretta
requested to his supervisors that Kincaid be removed from his school because he did
not trust her and felt she could not communicate with him, citing the fire-alarm
incident and the sexual-assault report. Kincaid was never in fact transferred. The
7
The district court described this adverse action as follows: “Principal Skretta
repeatedly requested that [Kincaid] be moved from his building, saying she could not
be trusted and otherwise maligned her during the investigative process with irrelevant
rumors.” Kincaid, 645 F. Supp 3d at 1170 (ellipses and internal quotation marks
omitted). Skretta’s communications to his supervisors requesting Kincaid’s transfer
were also the basis of Kincaid’s claim that he “maligned” her, so we need not address
that issue separately from the request for her transfer itself. See id.
11
Appellate Case: 23-3004 Document: 010111004602 Date Filed: 02/23/2024 Page: 12
district court found that Skretta’s stated reasons for requesting her transfer were
facially nonretaliatory.
Kincaid’s only pretext argument that touches on this adverse action contends
that the district court failed to draw all reasonable inferences in her favor as required
at summary judgment. She argues that the district court should have inferred that part
of the reason Skretta asked that she be transferred was that Kincaid reported the
sexual assault. But Kincaid does not provide any evidence supporting that conclusion
beyond her insistence in her appellate brief that the facially nondiscriminatory
reasons for requesting her transfer were pretextual. That will not suffice. “Mere
conjecture that the employer’s explanation is pretext is insufficient basis to defeat
summary judgment.” Jencks v. Mod. Woodmen of Am., 479 F.3d 1261, 1267 (10th
Cir. 2007) (internal quotation marks omitted).
3. Skretta’s letter of concern
Kincaid focuses most of her pretext-related arguments on Skretta’s letter of
concern, which the district court held constituted a materially adverse action. The District
provided facially legitimate nonretaliatory reasons for the letter. Skretta said he thought
that Kincaid had mishandled the February incident with the male student by not
instituting more behavioral support and by telling his guardian that no discipline would
be imposed unless the behavior reoccurred. And she had not reported the sexual assault to
Skretta before taking it to Student Services, despite Skretta’s having told Kincaid that he
was taking over special education because it was “very high stakes and as the head
principal, I really need to be running it.” Aplt. App., Vol. 3 at 359 ¶ 70. The district court
12
Appellate Case: 23-3004 Document: 010111004602 Date Filed: 02/23/2024 Page: 13
held that these were facially nonretaliatory reasons for issuing a letter of concern to
“clarify” Skretta’s expectations going forward. Id., Vol. 1 at 131.
Kincaid does not challenge the district court’s ruling that the explanation was
facially nonretaliatory. But she claims it was pretextual. Her arguments, however, are
insufficient to defeat summary judgment.
i. The District’s treatment of similarly situated
employees
First, Kincaid argues that the District treated other similarly situated employees
differently than it treated her and that this difference in treatment establishes that the
reasons given for issuing the letter of concern were pretextual. True, “a plaintiff may . . .
show pretext . . . by providing evidence that [s]he was treated differently from other
similarly-situated, nonprotected employees who violated work rules of comparable
seriousness.” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1232 (10th Cir.
2000). But Kincaid has identified no other employees who mishandled student
misconduct by telling the student’s guardian that no discipline would be recorded when a
more serious response was warranted or who failed to report a sexual assault (or, indeed,
any other serious incident) to the head principal before reporting the incident beyond the
school. Because she cannot point to another similarly situated employee “who violated
work rules of comparable seriousness,” id., this argument for pretext fails.
ii. The District’s investigation
Kincaid next argues that the District failed to conduct a fair investigation into the
conduct that led to the letter of concern. She claims that the District’s investigation was
13
Appellate Case: 23-3004 Document: 010111004602 Date Filed: 02/23/2024 Page: 14
improper because there was no investigation until November 2020, some 20 months after
she first complained that the letter of concern was retaliatory. This court has at times
found that an inadequate investigation into alleged misconduct by an employee can
support an inference of pretext. See Ibrahim v. All. for Sustainable Energy, LLC, 994
F.3d 1193, 1199 (10th Cir. 2021); Smothers v. Solvay Chems., Inc., 740 F.3d 530, 542
(10th Cir. 2014). For example, if an employer claims that discipline of the employee was
appropriate because an investigation showed the employee’s misconduct or dereliction of
duty, the employee can point to defects in the investigation as indicating that the
employer had no interest in finding out whether the employee was actually guilty as
charged. See Ibrahim, 994 F.3d at 1199–1200. But Skretta’s letter of concern was not the
result of the District’s investigation, which took place long after she received the letter.
Kincaid has not explained how evidence regarding the quality of the District’s
investigation can support an inference that Skretta’s reasons for issuing the letter of
concern were pretextual.
iii. Inconsistencies in the District’s justification for the
letter of concern
“Pretext can be shown by such weaknesses, implausibilities, inconsistencies,
incoherence, or contradictions in the employer’s proffered legitimate reasons for its
action that a reasonable fact finder could rationally find them unworthy of credence
and hence infer that the employer did not act for the asserted [nonretaliatory]
reasons.” Jencks, 479 F.3d at 1267 (internal quotation marks omitted). Kincaid
claims that Skretta’s reasons for issuing the letter of concern possess “weaknesses
14
Appellate Case: 23-3004 Document: 010111004602 Date Filed: 02/23/2024 Page: 15
and implausibilities that tend to show pretext.” Aplt. Br. at 16. But she misstates the
evidence in making her argument. While she claims that “Skretta did not announce
any change in protocol” before issuing the letter of concern, id., it is undisputed that
he in fact did announce, before the sexual assault, that he would be taking over the
“overall supervision and evaluation” of the special-education department because he
needed to be the “direct leader,” Aplt. App., Vol. 3 at 358. It is not inconsistent or
implausible that the principal of the school and head of the special-education
department would want to be consulted before special-education student disciplinary
actions were reported outside the school, especially when he was told by his
superiors that the district was concerned about the over-disciplining of special-
education students. It is also not inconsistent for a leader to issue a letter of concern
“clarify[ing]” his reasonable and foreseeable expectations without explicitly stating
them beforehand. Id., Vol. 1 at 131 (letter of concern). Even if it would have been
better to have previously announced more explicit policy expectations, when we
consider an allegation of retaliatory harassment under Title IX, we do not “ask
whether the employer’s reasons were wise, fair or correct.” Riggs v. AirTran
Airways, Inc., 497 F.3d 1108, 1118 (10th Cir. 2007).
Kincaid also argues that Skretta’s letter of concern accused her of “fail[ing] to
document” the February incident even though she claims that she did document the
incident in a separate reporting system, and that this inconsistency creates an
inference of pretext. Aplt. Br. at 17. But the letter of concern does not accuse Kincaid
of failing to document the February incident; what it does mention is that Kincaid
15
Appellate Case: 23-3004 Document: 010111004602 Date Filed: 02/23/2024 Page: 16
should have provided the student with more intensive support, and that it was
improper to tell the student’s guardian that she “would not enter any discipline record
unless a second incident occurred,” Aplt. App., Vol. 1 at 131 (letter of concern),
conduct she has never challenged. And though Kincaid claims the District “gave
different, conflicting reasons” for the letter of concern, Aplt. Br. at 17–18, she does
not state what those reasons were, so we cannot ourselves evaluate whether they were
in fact conflicting. Instead, she merely supports her argument with a lengthy string
citation to the record. But even when considering the briefs of pro se litigants, whose
pleadings we view liberally, “the court cannot take on the responsibility of serving as
the litigant’s attorney in constructing arguments and searching the record.” Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Much less will
we take on that responsibility for a represented party. See Sawyers v. Norton, 962
F.3d 1270, 1286 (10th Cir. 2020) (“arguments that are inadequately presented in an
opening brief” are waived (internal quotation marks omitted)). Kincaid has failed to
demonstrate any implausibilities or inconsistencies in the District’s facially
nonretaliatory explanations for the letter of concern that would support an inference
of pretext.
iv. Disturbing procedural irregularities and failure to
follow District policy
Kincaid’s next two arguments are that “disturbing procedural irregularities”
and “failure to follow [District] policy” in the issuance of the letter of concern should
create an inference of pretext. Aplt. Br. at 18–19 (internal quotation marks omitted).
16
Appellate Case: 23-3004 Document: 010111004602 Date Filed: 02/23/2024 Page: 17
See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1217 (10th Cir. 2002)
(“Evidence of pretext may include . . . disturbing procedural irregularities (e.g.,
falsifying or manipulating criteria).” (original ellipses and internal quotation marks
omitted)); Kendrick, 220 F.3d at 1230 (stating that a plaintiff may make a showing of
pretext “with evidence that the defendant acted contrary to an unwritten policy or
contrary to company practice when making the adverse employment decision
affecting the plaintiff”).
To support these propositions Kincaid points to testimony by Kristen Scott,
one of Skretta’s supervisors, that it was District policy that any formal discipline
needed to state which policies the employee violated, yet Skretta’s letter of concern
failed to reference an explicit policy that had been in place at the time Kincaid
contacted Student Services about the sexual assault. Kincaid also notes that Scott
stated that she would not have issued the letter. Scott later clarified, however, that
“that’s me personally how my leadership is and just following just sound practice.”
Aplt. App., Vol. 3 at 475. Scott also said that general District policies recognizing
that a school’s principal is in charge of supervising and administering discipline
could support Skretta’s issuing the letter of concern. And Elizabeth Faircloth, the
District official who investigated Kincaid’s complaint about Skretta, testified that the
letter did “not necessarily need” to state what policy Kincaid violated. Id. at 482.
Kincaid argues that Scott’s testimony demonstrates that the letter of concern
needed to indicate what policy Kincaid violated and, indeed, that it should never have
17
Appellate Case: 23-3004 Document: 010111004602 Date Filed: 02/23/2024 Page: 18
been issued at all. 8 She then argues that these procedural violations are sufficient to
support an inference of pretext.
Kincaid is correct that procedural irregularities by an employer can suggest
that the employer’s stated reasons for taking adverse action against an employee are
pretextual. Say, the employer contends that an employee’s termination was based on
an evaluation of the employee’s performance. It is merely commonsense to infer that
the explanation is pretextual if the evaluation of the employee bypassed standard
procedures that protect an employee from unfair and biased decision-making. See,
e.g., Doe v. Univ. of Denver, 1 F.4th 822, 832 (10th Cir. 2021) (in investigation of
sexual-assault accusation against plaintiff, investigators interviewed all 11 witnesses
provided by accuser but none of 5 witnesses provided by plaintiff); Whittington v.
Nordam Grp. Inc., 429 F.3d 986, 994 (10th Cir. 2005) (all other employees were
selected for a reduction in force by management team according to stated discipline
8
Kincaid also points to the meeting she had with Skretta and Dr. Tucker-
Nevels where Skretta “in a hostile manner” insisted that the letter of concern go in
Kincaid’s personnel file when his supervisor indicated it would not. Aplt. Br. at 18–
19. But such common minor breaches of decorum cannot serve as procedural
violations showing pretext. This court has repeatedly held that the antidiscrimination
statutes “do[] not establish ‘a general civility code,’ Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 81 (1998), for the workplace.” Morris v. City of Colo.
Springs, 666 F.3d 654, 663–64 (10th Cir. 2012) (Title VII claim); see Anderson v.
Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir. 1999) (in Americans with
Disabilities Act (ADA) retaliation case, “recognizing that the ADA, like Title VII, is
neither a general civility code nor a statute making actionable the ordinary
tribulations of the workplace.” (internal quotation marks omitted)); Chisholm v. St.
Marys City Sch. Dist. Bd. of Educ., 947 F.3d 342, 350 (6th Cir. 2020) (“Title IX, like
Title VII, is not a ‘general civility code.’” (quoting Oncale, 523 U.S. at 81)). We will
not impose such a civility code in the guise of requiring procedural regularity.
18
Appellate Case: 23-3004 Document: 010111004602 Date Filed: 02/23/2024 Page: 19
and performance criteria under which plaintiff would not have been included, but
plaintiff alone was selected for inclusion on the sole judgment of his supervisor);
Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1174 (10th Cir. 1998) (in age-
discrimination case, employer adopted policy that it would not consider future
potential of employees in deciding whether to terminate them in connection with a
reduction in force but it then did consider future potential of younger staff).
But an inference of pretext does not follow from every departure from standard
procedure. See Fassbender v. Correct Care Sols., LLC, 890 F.3d 875, 889 (10th Cir.
2018) (The “mere fact that an employer failed to follow its own internal procedures
does not necessarily suggest that the employer was motivated by illegal [retaliatory]
intent or that the substantive reasons given by the employer for its employment
decision were pretextual.” (internal quotation marks omitted)). That is certainly the
case here. The procedural irregularity alleged by Kincaid is the failure to include in
the letter of concern a reference to an official District policy violated by Kincaid.
According to Kincaid, this was not just a procedural lapse—a neglect to point to the
official policy that Skretta was relying on. She contends that there was no such
official policy.
Kincaid appears to be saying that the explanation for the letter of concern that
is provided in the letter itself must be pretextual because it is an improper ground for
such a letter (the letter needed to be based on violation of a formal policy, and there
was no such formal policy). What is missing from Kincaid’s argument, however, is
any explanation of why this failure to cite an official policy implies that Skretta’s
19
Appellate Case: 23-3004 Document: 010111004602 Date Filed: 02/23/2024 Page: 20
explanation for issuing the letter may have been pretextual. The fact that the stated
ground may have violated District policy does not show that the stated ground was
insincere. Indeed, all the relevant evidence indicates that Skretta’s reason for issuing
the letter, even if improper, was sincere. Any procedural irregularity in the issuance
of the letter fails to support an inference of pretext.
v. The district court’s refusal to draw inferences in
Kincaid’s favor
Kincaid claims that the district court erred by not applying the proper standard of
review on summary judgment in that it did not draw all reasonable inferences in her
favor. She argues that the court should have interpreted the letter of concern as
disciplining her simply for reporting the sexual assault. But such a reading of the letter is
plainly unreasonable. As it relates to the sexual assault, the letter reprimands her solely
for failing to consult with Skretta before reporting the incident beyond the walls of the
school. Although the court “must draw all factual inferences in favor of the nonmovant,
those inferences must be reasonable.” Deherrera v. Decker Truck Line, Inc., 820 F.3d
1147, 1159 (10th Cir. 2016) (internal quotation marks omitted). Kincaid’s request that the
court draw an unreasonable inference is insufficient to defeat summary judgment on the
pretext issue.
4. Totality of the evidence
Finally, Kincaid argues that the totality of the evidence supports a finding of
pretext. See Orr v. City of Albuquerque, 531 F.3d 1210, 1215 (10th Cir. 2008)
(Gorsuch, J.) (explaining that courts are not to “look at each piece of evidence in
20
Appellate Case: 23-3004 Document: 010111004602 Date Filed: 02/23/2024 Page: 21
isolation; rather, in assessing whether plaintiffs have shown pretext, we are obliged
to consider their evidence in its totality”). But as we have explained, none of the
evidence she has adduced creates a genuine dispute of material fact about pretext,
and considering it all together does nothing to alter that conclusion. See Bekkem v.
Wilkie, 915 F.3d 1258, 1270–71 (10th Cir. 2019) (“[W]hile we here address
Plaintiff’s arguments sequentially for ease of analysis, we have considered her
evidence in its totality and find all of her evidence, taken as a whole, insufficient to
permit an inference of pretext.”).
C. Title VII Claim
The district court ruled that Kincaid’s reporting of the sexual assault was not
activity protected from retaliation by Title VII because Kincaid was not challenging an
employment practice of the District. Kincaid does not challenge this ruling on appeal.
Rather, she contends that the district court abused its discretion by failing either to
interpret the pretrial order broadly to encompass other instances of allegedly protected
activity or to allow her to amend the pretrial order to include that additional protected
activity. We seriously doubt that the district court abused its discretion in making these
rulings, but we need not resolve the issue. Even if Kincaid did engage in activity
protected by Title VII, she relies on the same allegations of retaliation as she does for her
Title IX claim. Therefore, for the same reasons that we affirm the district court’s grant of
summary judgment on Kincaid’s Title IX claim—namely, that the District provided
nonretaliatory reasons for its materially adverse actions against Kincaid, and Kincaid
21
Appellate Case: 23-3004 Document: 010111004602 Date Filed: 02/23/2024 Page: 22
failed to produce evidence that the reasons were pretextual—we also affirm the district
court’s grant of summary judgment on her Title VII claim.
III. CONCLUSION
We AFFIRM the judgment of the district court.
22