By Robert J. Romano, JD, LLM, St. John’s University, Senior Writer
Corey McNellis, a longtime educator within the state of Colorado school system, served as Ponderosa High School in the Douglas County School District (“DCSD”) Athletic Director and Assistant Principal from 2018 up until his termination in 2022. The reason McNellis’s tenure ended was predicated on his objections to the High School’s planned staging of “The Laramie Project,” a play about the murder of gay college student Matthew Shepard and anti‑LGBTQ+ hatred, as an extracurricular activity.
By way of background, Kayla Diaz, the theater teacher at Ponderosa, in an announcement forwarded to all the faculty and staff before the play’s run, stated that the production “covered heavier topics” and was not intended “to push any kind of agenda”.[2] McNellis responded to Ms. Diaz’s announcement by sending several emails to school faculty and staff which expressed his concerns about the production, objecting that it was divisive, while also offering to add a “Christian perspective” to the play. Following Mr. McNellis’s series of emails, the school district received multiple complaints from Ponderosa employees who perceived McNellis’s emails as “bullying”, “threatening”, “discriminatory toward the LGBTQ community”, while also “demonstrating bigotry toward a marginalized group”.[3] Shortly thereafter, McNellis was placed on paid administrative leave as the school district proceeded with an investigation into the matter.
Upon completion of the investigation, the district determined that McNellis’s emails “were unprofessional and displayed discriminatory bias against staff and students who represent and/or support the LGBTQ community” and, in addition, that McNellis “had made sexist and racist comments in the past, had attempted to change student grades, failed to follow mandatory district safety practices with regard to COVID-19 and promoted . . . an educational environment that favored some students and staff over others.”[4] As a result of the findings, McNellis was terminated from his various roles within the high school.
In July of 2022, McNellis, not happy with being fired, filed a lawsuit against the Douglas County School District in the U.S. District Court for the District of Colorado claiming that his termination was in violation of his First Amendment rights under 42 U.S.C. Section 1983, while also constituted religious discrimination under Title VII of the Civil Rights Act of 1964, and the Colorado Anti-Discrimination Act (CADA), and was retaliation under Title VII and CADA.[5]
As routine, the Douglas County School District moved to dismiss McNellis’s complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on all presented theories. The district court granted the motion and dismissed all claims. McNellis, not happy with the lower court’s decision, appealed and on appeal, the U.S. Court of Appeals for the Tenth Circuit reversed in part and affirmed in part: it affirmed the dismissal of the First Amendment and retaliation claims but reversed the dismissal of the religious discrimination claims under Title VII and CADA, finding McNellis had plausibly alleged discrimination and remanded for further proceedings.
In analyzing McNellis’s claims, he first argued that the school district retaliated against him for exercising his free speech when it terminated his employment after he voiced objections to the school play. McNellis’s First Amendment claim turns on whether his emails constituted protected speech as a private citizen on a matter of public concern or speech made pursuant to his official duties as a public employee.
A public employee asserting First Amendment retaliation must show his speech was on a matter of public concern, made as a private citizen, and that the speech was a substantial or motivating factor in adverse employment action. The Tenth Circuit agreed with the district court that McNellis’s speech was made pursuant to his official duties and not as a private citizen. The court considered that McNellis’s comments occurred in workplace channels, addressed colleagues, and touched on how the school should structure an official school production, matters within the scope of his job duties rather than an external citizen’s commentary. Therefore, because McNellis was communicating with colleagues about a school activity in his capacity as an administrator, the court held his emails were not protected speech.
McNellis also claimed that the school district retaliated against him for complaining about the investigation and defending his religious expression, invoking Title VII and CADA’s anti‑retaliation provisions. To state a retaliation claim, he had to plausibly allege that he engaged in protected activity, suffered a materially adverse action, and that a causal connection linked the two. While the adverse action was clear, that being termination, the Tenth Circuit agreed with the district court that the complaint did not plausibly allege causation between any protected opposition activity and the adverse actions. The appellate court noted the lack of nonconclusory factual allegations showing timing or statements tying his complaints about the process to the decision‑makers’ choices, as opposed to their response to the underlying emails themselves.
The most consequential part of the Tenth Circuit’s decision, however, addressed whether McNellis plausibly alleged religious discrimination under Title VII and CADA. The district court rejected his argument that he had “direct evidence” of discrimination but concluded that he adequately pled circumstantial evidence supporting a prima facie case. On the alleged direct evidence, McNellis relied heavily on a later letter by the principal, who opined that firing McNellis had “gone too far” and that he had been “railroaded” based on his political and religious views. The Tenth Circuit held this letter was not direct evidence because it still required the inference that decision‑makers were motivated by religious bias, especially given the principal’s view that some discipline would have been appropriate. Direct evidence requires a statement that clearly ties an adverse action to religion without inferential steps, which the letter did not do.
Nonetheless, the court found an adequate inference of discrimination at the pleading stage. It emphasized these allegations: McNellis is a Christian, was qualified and consistently well‑reviewed, expressed disagreement with the play in a staff email and suggested Christianity could “help” the play, was repeatedly told the investigation and leave were because of his “religious comments,” and was ultimately terminated for the emails concerning “The Laramie Project”. The district’s repeated invocation of “religious comments” as the justification for investigation, leave, and termination plausibly linked his faith‑based expression to the adverse actions, satisfying the low prima facie bar. The Tenth Circuit therefore reversed dismissal of his Title VII and CADA religious discrimination claims and remanded for discovery and further proceedings.
On remand though, the Douglas County School District again moved for judgment and this time prevailed. The district court concluded that the undisputed evidence showed the school disciplined McNellis because his emails created an appearance that he was intolerant of the LGBTQ community, impairing his ability to serve as an administrator, not because of animus toward Christianity. As a result, the court found no genuine dispute that the school district honestly believed his conduct, not his religious status, drove the decision, and that there was no evidence the school district would have ignored similar complaints if his emails had omitted religious references. Without evidence of pretext, such as inconsistent explanations, differential treatment of similarly situated non‑Christian employees, or overt anti‑Christian remarks, the discrimination claim could not go to a jury.
Legally, the case illustrates that public‑school administrators’ internal emails about school programming are highly likely to be viewed as speech pursuant to official duties, limiting First Amendment retaliation protections, even when the content is religious. In other words, you cannot use religion as a shield when you are discriminating against a certain segment of the population.
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