The Denver-based federal appeals court agreed on Friday that a judge properly resolved a former Cherry Creek School District administrator’s claims of discrimination in the district’s favor based on employees’ “loss of confidence” in her leadership.

Linda Maccagnan was a longtime district employee who brought several claims alleging due process violations, disparate treatment, unequal pay, sex stereotyping and more. A trial judge narrowed Maccagnan’s claims and jurors heard her evidence. At the close of Maccagnan’s case, the judge found that no reasonable jury could agree that Maccagnan’s sex or gender was a factor in the district’s decision to demote her.

In a July 17 opinion, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit upheld that decision.

“Drawing all reasonable inferences in Ms. Maccagnan’s favor, the evidence demonstrated that a similarly-situated female … was treated the same as her and that two male principals who were not similarly situated were treated the same (or worse) than her,” wrote Judge Scott M. Matheson Jr. “The same or worse treatment does not show intentional discrimination.”

Maccagnan began as a teacher in the district in 1996. She moved on to various administrative positions. In 2018, Maccagnan became the principal of High Plains Elementary School.

In late 2019, the teacher’s union conducted a “listening tour,” in which representatives met with High Plains staff. They heard concerns about management of the school. The district and Maccagnan received a summary of the feedback.

In early 2020, the director of elementary education, Diana Roybal, met with staff members and largely received critical comments about Maccagnan.

Near the end of the school year, district leadership informed Maccagnan that she would be demoted to an assistant principal for the next school year due to “loss of confidence of staff.” She was reassigned to a different school, and her salary remained the same. Maccagnan went on leave, then she took an early retirement offer in 2021.

In the ensuing litigation, then-U.S. District Court Senior Judge Christine M. Arguello narrowed Maccagnan’s claims against the district and its leaders before trial. She determined Maccagnan was not entitled to employment at High Plains beyond the 2019-2020 school year, so there was no due process violation from the nonrenewal of her contract. Further, Maccagnan’s unequal pay claim failed because there was no evidence that the district set her salary in a discriminatory fashion relative to other administrators.

The parties proceeded to a jury trial on Maccagnan’s claims of disparate treatment and unlawful stereotyping. After hearing the plaintiff’s evidence, Arguello granted the defense’s motion to resolve the case in their favor and she dismissed the jury.

Arguello noted that Maccagnan had agreed to instruct the jury that her “subjective belief that she was discriminated against” would not be proof of discrimination.

Yet, Maccagnan’s case was “all based on her subjective belief,” said Arguello. “No reasonable jury could conclude, based on this evidence and considering the evidence as a whole, that sex or gender was a motivating factor in the demotion of Ms. Maccagnan.”

On appeal, the 10th Circuit largely upheld Arguello’s ruling at trial, her evidentiary decisions and her narrowing of Maccagnan’s claims before trial.

Matheson, in the panel’s opinion, acknowledged that Arguello incorrectly imposed a higher burden on Maccagnan to show pay discrimination. However, the mistake did not warrant reversal because “no rational jury could disagree that Cherry Creek based Ms. Maccagnan’s salary on a factor — relevant experience — other than sex,” Matheson wrote.

The panel concluded Arguello reasonably excluded evidence of a male elementary school principal who similarly received negative comments during a union-led listening tour but received coaching rather than immediate demotion. If Maccagnan and the male principal were similarly situated, wrote Matheson, the evidence would be relevant.

“But they were not,” he continued. The two “had different supervisors making the decisions.”

The panel also noted that the district similarly demoted a female principal for loss-of-confidence reasons and demoted — then nonrenewed — two male principals for the same reason plus misconduct.

Finally, the appellate judges determined Maccagnan’s evidence of sex stereotyping was “minimal at best.” Although Maccagnan interpreted the feedback from the union’s listening tour to contain sexist critiques, Matheson wrote that the listening tour did not appear to be the primary basis for the superintendent and his deputy’s decision to demote Maccagnan.

“Even though they considered the Listening Tour summary, the vast majority of its comments lacked any (indicators) of sex stereotypes, and neither of them relied on the few comments that could arguably be considered gendered,” Matheson wrote. “Instead, they explained loss of confidence occurs when the staff lacks trust and will not follow the principal.”

“We are pleased with this outcome. We have maintained from the beginning that the claims were lacking in merit,” said the school district in a statement.

Patricia S. Bangert, the lawyer for Maccagnan, referenced recent investigations into district misconduct and said that, while there are “appealable issues” in the 10th Circuit’s opinion, her client may not pursue that route.

“She has spent a massive amount of time and resources attempting to reveal the toxic environment at Cherry Creek and is exhausted,” said Bangert. “However, because at least one finding is especially detrimental to the public as a whole, she is keeping the appeal door open as of now.”  

The case is Maccagnan v. Cherry Creek School District No. 5 et al.