Majersky v. Denver Public Schools

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 16, 2026
• Docket: 25-1102
• Status: Unpublished

Opinion

Appellate Case: 25-1102 Document: 28-1 Date Filed: 01/16/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 16, 2026 _________________________________ Christopher M. Wolpert Clerk of Court GREGORY MICHAEL MAJERSKY,

Plaintiff - Appellant,

v. No. 25-1102 (D.C. No. 1:23-CV-02956-SKC-KAS) DENVER PUBLIC SCHOOLS, (D. Colo.)

Defendant - Appellee. _________________________________

ORDER AND JUDGMENT * _________________________________

Before HARTZ, Circuit Judge, LUCERO, Senior Circuit Judge, and PHILLIPS, Circuit Judge. _________________________________

Gregory Majersky, proceeding pro se, appeals the district court’s dismissal of

his employment action. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

Background & Procedural History

Majersky filed his operative complaint in this case in December 2023, 1 making

the following factual allegations and raising the following. He worked as a security

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 1 Majersky filed several documents amending his initial complaint. Appellate Case: 25-1102 Document: 28-1 Date Filed: 01/16/2026 Page: 2

administrator in Denver Public School’s (“DPS”) technology services department.

His former romantic partner, a woman named Rebecca Sposato, worked as a nurse at

a DPS charter school. In 2018, Majersky accused Sposato of abusing their child,

E.M., but no criminal charges were filed against Sposato. Majersky informed DPS

and the charter school of Sposato’s abuse and continuously complained about her

ongoing employment with DPS.

E.M. was involved in a bullying incident in 2023, after which Majersky

complained to the school principal about the incident and Sposato’s abuse. Majersky

filed a complaint in February 2023 about Sposato’s continued employment with the

school because DPS did not act on the child abuse allegations. Through his position

as a security administrator, Majersky then accessed the school principal’s email

address to see if the principal was attempting to retaliate against him after the

bullying incident. Majersky then complained to the U.S. Secret Service about

cybersecurity and other technological issues at DPS. 2 He shared his security

concerns with other DPS employees, including the network administrator. In March

2023, DPS suspended Majersky’s employment pending an investigation into

allegations that he improperly accessed personnel email accounts, including those of

his supervisor and the school principal. DPS terminated Majersky’s employment

after the investigation.

Majersky made similar complaints about cybersecurity and data breaches in 2

2021 and 2022. 2 Appellate Case: 25-1102 Document: 28-1 Date Filed: 01/16/2026 Page: 3

Based on these facts, Majersky raised the following claims in his operative

complaint against his former employer, DPS: (1) Title VII gender discrimination;

(2) Title VII retaliation; and (3) retaliation under the No FEAR Act. 3 Following a

motion to dismiss from DPS, a magistrate judge recommended that Majersky’s

operative complaint be dismissed for failure to state a claim. First, it determined that

Majersky failed to state a Title VII gender discrimination claim because he did not

allege that DPS’s general staffing practices were discriminatory; Sposato was not

similarly situated to him because they had different positions, engaged in different

conduct, and reported to different supervisors. Further, Majersky’s complaint alleged

that he was suspended and terminated because of his actions in accessing personnel

emails, not for discriminatory reasons. Second, the magistrate judge determined that

Majersky failed to sufficiently plead a Title VII retaliation claim because Majersky

did not allege that DPS was aware that his complaints were in opposition to gender

discrimination. Third, the magistrate judge determined that Majersky could not state

a No FEAR Act claim because the statute did not create a private right of action and

only applied to federal employees.

Majersky filed modified objections to the magistrate judge’s

recommendation. 4 He argued that he and Sposato were similarly situated because

3 Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002, 5 U.S.C. § 2301, Pub. L. No. 107-174, 116 Stat. 566. 4 Majersky filed his initial objections without reading the magistrate judge’s recommendation. Accordingly, the district court considered only the modified objections when reviewing the recommendation and Majersky’s objections. We do the same. 3 Appellate Case: 25-1102 Document: 28-1 Date Filed: 01/16/2026 Page: 4

they both worked for DPS and were subject to the same ethics codes and rules of

conduct. He argued that “the only discernable and significant difference between

[them] is their gender.” R. at 457. Majersky also stated that DPS had a history of

discriminatory action, which was evidenced by previous lawsuits against it. As to the

No FEAR Act claim, Majersky stated that the statute enabled a cause of action “in

the spirit of that law and that his duties were under the color of functions alongside

and complimentary to federal law enforcement and national security agencies.” Id.

Majersky provided no legal argument or citations in his objections.

Majersky then filed several motions. These included several motions

requesting permission to amend his complaint to add additional claims against DPS, a

motion for default judgment, and a motion for summary judgment.

The district court adopted the recommendation over Majersky’s objections and

dismissed the Title VII claims without prejudice and the No FEAR Act claim with

prejudice in March 2025. It noted that Majersky’s only specific objections were to

the recommendation on his gender discrimination claim and that his objection to the

No FEAR Act claim amounted “to little more than a disagreement with the

correctness” of the magistrate judge’s analysis. Id. at 740. The court found that

Sposato was not an appropriate comparator to establish a gender discrimination claim

because she worked as a school nurse, under a different supervisor, and was not

alleged to have engaged in the same type of conduct as Majersky. It then determined

that, though Majersky was not permitted to add new amendments to his complaint

through his objections, amendment would be futile because his proposed amendments

4 Appellate Case: 25-1102 Document: 28-1 Date Filed: 01/16/2026 Page: 5

provided no details regarding the alleged discrimination and thus would not save his

claim. The court dismissed all of Majersky’s pending motions as moot.

Standard of Review

“We review the district court’s grant of a Rule 12(b)(6) motion to dismiss

de novo.” Gaddy v. Corp. of the President of the Church of Jesus Christ of Latter-

Day Saints, 148 F.4th 1202, 1209 (10th Cir. 2025). “At the Rule 12(b)(6) stage, we

must accept all the well-pleaded allegations of the complaint as true and must

construe them in the light most favorable to the plaintiff.” Id. at 1209–10 (internal

quotation marks omitted).

We construe Majersky’s pleadings liberally but do not serve as his advocate.

Luo v. Wang, 71 F.4th 1289, 1291 n.1 (10th Cir. 2023). And we have “repeatedly

insisted that pro se parties follow the same rules of procedure that govern other

litigants.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.

2005) (internal quotation marks omitted).

Waiver

This court has “adopted a firm waiver rule that provides that the failure to

make timely objections to the magistrate [judge’s] findings or recommendations

waives appellate review of both factual and legal questions.” United States v. One

Parcel of Real Prop., 73 F.3d 1057, 1059 (10th Cir. 1996) (internal quotation marks

omitted). We do not apply the rule “when (1) a pro se litigant has not been informed

of the time period for objecting and the consequences of failing to object, or when

(2) the interests of justice require review.” Morales-Fernandez v. I.N.S., 418 F.3d

5 Appellate Case: 25-1102 Document: 28-1 Date Filed: 01/16/2026 Page: 6

1116, 1119 (10th Cir. 2005) (internal quotation marks omitted). Neither exception

applies here. Majersky was properly informed of the time for objecting and the

consequences of failing to object, and this case does not present any extenuating

circumstances that could potentially implicate the interests of justice.

While Majersky did object to the recommendation, his filed objections were

general and insufficient to avoid application of the firm waiver rule. See One Parcel

of Real Property, 73 F.3d at 1060. We therefore apply the firm waiver rule to

Majersky’s appellate challenges to the district court’s decision regarding his Title VII

retaliation claim and his No FEAR Act claim because he did not properly raise them

before the district court in his objections. Majersky attempted to bring his No FEAR

Act challenge in his objections to the recommendation. However, the district court

found, and we agree, that this objection lacked specificity and amounted to a general

disagreement with the magistrate judge. In any event, he has provided no authority

that the No FEAR Act creates a private right of action. See United States v. Garcia,

946 F.3d 1191, 1210 n.11 (10th Cir. 2020) (noting a “party who fails to develop or

provide any authority in support of [an] argument [has] waived it” (internal quotation

marks omitted)).

We also apply the firm waiver rule to two arguments Majersky presents on

appeal but did not raise below regarding his Title VII gender discrimination claim:

(1) the recommendation improperly analyzed Majersky’s Title VII gender

discrimination claim under Title IX’s legal framework; and (2) Majersky should not

6 Appellate Case: 25-1102 Document: 28-1 Date Filed: 01/16/2026 Page: 7

have been terminated because he had a property interest in his employment. We now

turn to the one claim that is not precluded by the firm waiver rule.

Title VII Gender Discrimination

Majersky properly preserved the challenge to his Title VII gender

discrimination claim, and we will address that claim on its merits. 5 “Title VII forbids

actions taken on the basis of sex that ‘discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment.’”

Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001) (quoting 42 U.S.C.

§ 2000e–2(a)(1)). To assert a prima facie case of gender discrimination in the

workplace, a plaintiff must ordinarily show that “(1) the victim belongs to a protected

class; (2) the victim suffered an adverse employment action; and (3) the challenged

action took place under circumstances giving rise to an inference of discrimination.”

E.E.O.C. v. PVNF, L.L.C., 487 F.3d 790, 800 (10th Cir. 2007).

Reviewing de novo, we agree with the district court that Majersky failed to

plead facts showing that he was terminated based on his gender. Critically, Majersky

himself admitted that he engaged in the behavior he was terminated for: he

improperly accessed the emails of his supervisor and a school principal, was then

5 The district court’s decision included a reverse-discrimination analysis that has been rendered invalid by the Supreme Court’s decision in Ames v. Ohio Dep’t of Youth Servs., 605 U.S. 303, 313 (2025). However, because Majersky still failed to plead facts to show that he was fired for reasons amounting to an inference of discrimination, we affirm. See Amro v. Boeing Co., 232 F.3d 790, 796 (10th Cir. 2000) (stating that we “may affirm the district court for any reason supported by the record”). 7 Appellate Case: 25-1102 Document: 28-1 Date Filed: 01/16/2026 Page: 8

suspended because of this, and was ultimately terminated because the email hacking

amounted to a violation of DPS policy. Majersky has acknowledged that his own

actions were the basis for his termination. He offers no evidence that the

circumstances under which he was terminated give rise to an inference of

discrimination. See id.

The district court’s denial of Majersky’s motions as moot

Majersky’s final argument on appeal is that the district court’s denial of his

pending motions for leave to amend, for default judgment, and for summary

judgment as moot amounted to a violation of his due process rights. We review these

denials for an abuse of discretion. Mengert v. United States, 120 F.4th 696, 717

(10th Cir. 2024) (denial of leave to amend); Ashby v. McKenna, 331 F.3d 1148, 1149

(10th Cir. 2003) (denial of motion for default judgment).

The district court did not abuse its discretion here. Majersky’s complaint was

subject to dismissal, he had already been permitted several opportunities to amend

his complaint, and his motions to amend did not conform to the district court’s local

rules. See D. Colo. LCivR. 15.1(a) (“A party other than an unrepresented prisoner

who files an amended pleading under Fed. R. Civ. P. 15(a)(1) or with the consent of

the opposing party shall . . . attach as an exhibit a copy of the amended

pleading . . . .”); Foman v. Davis, 371 U.S. 178, 182 (1962) (“[T]he grant or denial of

an opportunity to amend is within the discretion of the [d]istrict [c]ourt.”). Further,

default judgment was not applicable here, as DPS appeared before the district court.

See Fed. R. Civ. P. 55(a) (“When a party against whom a judgment for affirmative

8 Appellate Case: 25-1102 Document: 28-1 Date Filed: 01/16/2026 Page: 9

relief is sought has failed to plead or otherwise defend, and that failure is shown by

affidavit or otherwise, the clerk must enter the party’s default.”). The denial of

Majersky’s summary judgment motion was also appropriate because the motion was

not ripe for adjudication. Additionally, Majersky has since filed a new district court

action asserting constitutional claims and the claims he sought to add to this case.

See Majersky v. Denv. Pub. Schools, Case No. 25-cv-00703-SKC-KAS. He cannot

demonstrate that the district court abused its discretion, nor can he demonstrate that

he was harmed by these denials. We reject this argument.

Conclusion

We affirm the district court’s decision. We grant Majersky’s motion to

proceed without prepayment of costs or fees.

Entered for the Court

Gregory A. Phillips Circuit Judge