A former high school administrator may pursue his claims of religious discrimination against the Douglas County School District, the federal appeals court based in Denver ruled on Tuesday.

Corey McNellis worked at Ponderosa High School for 14 years and was the athletic director and assistant principal at the time of his termination in October 2020. According to McNellis, the school district fired him because he stated that, as a Christian, he had concerns about an upcoming school play.

Last year, a trial judge dismissed the lawsuit after determining McNellis failed to show his First Amendment rights were violated, he was retaliated against or that the district discriminated against him as a Christian.

A three-judge panel of the U.S. Court of Appeals for the 10th Circuit disagreed in part, finding McNellis’ allegations suggested he had a viable discrimination claim after all.

“We are not persuaded Mr. McNellis has alleged any facts that, if true, would constitute direct evidence of discrimination. But we conclude Mr. McNellis has alleged facts that, from circumstantial evidence, ‘give rise to a reasonable inference of discrimination’ based on his religion,” wrote Judge Veronica S. Rossman in the Sept. 10 opinion.

According to McNellis’ lawsuit, on Oct. 2, 2020, Ponderosa’s theater director sent an email to school staff alerting them to an upcoming production of “The Laramie Project.” The play addressed the reaction to the 1998 murder of Matthew Shepard around Laramie, Wyo. The degree to which Shepard’s status as a gay man motivated the crime is disputed.

Multiple school employees responded to praise the choice of production. McNellis, in four separate emails, was more critical:

• “As a Dad of a student here and also as an employee in the school, what is my recourse if I disagree with the production?”

• “As a Christian I would love to collaborate …. Please let me know if the love that Jesus can provide will help your play.”

• “For the record, all of administration does not agree with me on this. I am totally solo.”

• “Forgive me for having a different viewpoint and the audacity to publicly share it.”

The district then investigated McNellis’ emails, placing him on leave. Later that month, the district terminated him.

A subsequent letter from Ponderosa’s principal at the time, Tim Ottman, alleged the contents of McNellis’ emails were the “catalyst for his firing,” although Ottman stated the termination “wasn’t my decision to make.”

McNellis then sued.

In evaluating the district’s motion to dismiss, U.S. District Court Senior Judge Raymond P. Moore agreed last year McNellis failed to state a claim that his free speech rights were violated. Because McNellis was a public employee speaking pursuant to his official duties, his speech was not protected. Similarly, Moore believed McNellis had not presented a plausible retaliation claim.

As for McNellis’ claim of religious-based discrimination, “he needed to plead that he was treated less favorably than non-Christians at Ponderosa or in the school district,” Moore wrote. Instead, “the allegations fall well short.”

The 10th Circuit panel largely sided with Moore. Although McNellis attempted to argue his emails about the play were sent “as a father and a Christian,” the panel agreed McNellis’ communication about school activities on a staff-only email chain — with a signature reading “Athletic Director/Assistant Principal” — showed his speech was not that of a private citizen.

However, wrote Rossman, McNellis did not need to allege non-Christians were treated differently in order to state a discrimination claim.

“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,” she wrote.

Consequently, the panel permitted his discrimination claim to proceed.

Judge Harris L Hartz wrote separately to reiterate a sentiment he has broadcast repeatedly during his time on the bench: The special legal framework for analyzing employment discrimination claims should be scrapped.

In the 1973 decision of McDonnell Douglas Corp. v. Green, the U.S. Supreme Court laid out a three-step test for reviewing civil rights lawsuits arising from the workplace.

The “McDonnell Douglas framework,” as it is known, directs courts to look at whether an employee plausibly stated discriminatory conduct. Then, the court will analyze an employer’s alleged non-discriminatory explanation for taking action against a plaintiff and, finally, the plaintiff’s attempt to show the employer’s explanation is not to be believed.

Hartz, however, saw no reason to apply a defined sequence to one type of legal claim.

“Instead, we could do what we do in all other cases and just review whether the complaint adequately alleges that the plaintiff was injured by the employer’s intentional discrimination against him,” he wrote. “The present complicated framework simply distracts the courts from what should be the focus of the inquiry — the sufficiency of the allegations, or the evidence, of discrimination.”

Hartz’s position is not new. In 2003, shortly after joining the 10th Circuit, Hartz railed against the McDonnell Douglas framework in a concurring opinion, calling it an “artificial” way of looking at discrimination claims. Four years later, Hartz repeated his position, this time joined by Judge Timothy M. Tymkovich, who has raised similar concerns elsewhere.

In his concurrence in McNellis’ case, Hartz went a step further. He suggested the test was “a wonderful tool to obtain dismissals” for employers being sued, and hoped the entire 10th Circuit membership might someday answer whether to deviate from the McDonnell Douglas framework, as the Atlanta-based 11th Circuit has done.

Employment discrimination attorney Felipe Bohnet-Gomez said most cases hinge on plaintiffs’ evidence that their employer’s non-discriminatory explanation is pretextual, and that would be true even if the three-step test went away.

“I think ultimately the McDonnell Douglas framework does not particularly help employment plaintiffs,” he said, echoing Hartz’s suspicions.

The case is McNellis v. Douglas County School District.