The federal appeals court based in Colorado agreed last month that a former Denver Public Schools employee failed to show how her termination was connected to her act of speaking out against racial discrimination.

Barbara Lindsay worked at Emily Griffith Technical College and participated in the 2019 hiring process for a new school director. She took issue with statements a member of the hiring panel made about one of the applicants, a Black woman. After Lindsay alerted the applicant, Tisha Lee, about the discriminatory commentary, Lee filed a report with the federal government alleging discrimination.

Shortly afterward, Lindsay was fired from her job.

Although Lindsay attempted to argue the close proximity of her firing with her disclosure to Lee illustrated retaliatory conduct, the U.S. Court of Appeals for the 10th Circuit concluded Lindsay had not established an essential component of her legal claim.

“To begin with, she has utterly failed to show that anyone at DPS knew that she had assisted Lee in bringing her discrimination charges,” wrote Judge Harris L Hartz in the three-member appellate panel’s Dec. 22 opinion. “All her arguments to support knowledge are based on bare speculation.”

Case: Lindsay v. Denver Public Schools

Decided: December 22, 2023

Jurisdiction: U.S. District Court for Colorado

Ruling: 3-0

Judges: Harris L Hartz (author)

Nancy L. Moritz

Veronica S. Rossman

Background: Judge sides with Denver Public Schools on lawsuit alleging retaliation

Darold Killmer, an attorney for Lindsay, said it was unfortunate a jury would not ultimately decide if her firing was unlawful.

“Ms. Lindsay showed significant courage and integrity by reporting racism within Denver Public Schools, and she was fired for it,” Killmer said. “This allows a culture of inequality and oppression to continue in Colorado’s largest school district.”

Lee, a longtime employee of Emily Griffth, was one of four finalists for the executive director position in 2019. The other three candidates were White women.

One of them, Stephanie Donner, had comparatively little higher education experience, but political connections to now-U.S. Sen. John Hickenlooper, Gov. Jared Polis and former speaker of the Colorado House of Representatives Mark Ferrandino.

After a second-round interview with the candidates, one panel member allegedly mentioned Lee’s grammar was a concern and that “being a person of color, she should be held to a higher standard.”

Lindsay, also on the panel, spoke up to defend Lee.

Despite the panel’s preference for Lee, the hiring manager did not advance her to the final stage. Donnner eventually got the job. 

Lindsay soon informed Lee about the racial comments and Lee filed a report alleging discrimination to the U.S. Equal Employment Opportunity Commission in April 2019. She filed a second report in July. Neither submission identified Lindsay as the source of any information.

Weeks later, Donner terminated Lindsay as the director of workforce development at Emily Griffith after a human resources investigation found Lindsay exhibited multiple acts of unprofessionalism.

Both Lee and Lindsay filed lawsuits asserting unlawful retaliation and, in Lee’s case, race-based discrimination. Lee settled her case last year.

In late 2022, U.S. District Court Senior Judge Christine M. Arguello sided with the school district and Donner in Lindsay’s case. At the time of her termination, both Donner and the person who investigated Lindsay stated they were unaware she had reported any discriminatory comments to Lee.

“Because Plaintiff provided no evidence that Donner was aware of Plaintiff’s alleged protected activity, she has not shown that Donner retaliated against her because of her protected activity,” Arguello wrote.

On appeal, Lindsay argued the human resources investigation that purportedly resulted in her firing was flawed. Specifically, the evidence in the lawsuit called into question one of the findings of misconduct. Further, Donner treated Lindsay “so badly” after she became the school’s director, suggesting Donner knew about Lindsay’s role in reporting discrimination.

During oral arguments, however, the lawyer for Donner and the school district offered a straightforward explanation for Donner’s treatment of Lindsay: She was a jerk to everybody.

“The record is replete with evidence that she was not particularly nice to anyone,” said Holly Ortiz.

Lindsay’s remaining argument for retaliation – that Donner actually knew of her disclosure to Lee – similarly withered under scrutiny.

Donner “very specifically says she did not know that Lindsay had provided information to Lee,” said Judge Nancy L. Moritz. “That’s really what you’ve got to show us.”

Ultimately, the panel decided Lindsay had not shown her act of standing up against discrimination was a factor in her firing.

“Lindsay was therefore required to marshal evidence that those who acted against her – Donner and those on whom Donner relied – knew of either Lindsay’s statements at the second-panel debrief in defense of Lee or Lindsay’s role in Lee’s charges,” Hartz wrote. “This she has failed to do.”

The case is Lindsay v. Denver Public Schools et al.