Appellate Case: 24-3110 Document: 31 Date Filed: 06/27/2025 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS June 27, 2025 FOR THE TENTH CIRCUIT _________________________________ Christopher M. Wolpert Clerk of Court MERRIER A. JACKSON TARTT,
Plaintiff - Appellant,
v. No. 24-3110 (D.C. No. 2:23-CV-02146-EFM) UNIFIED SCHOOL DISTRICT (D. Kan.) NO. 475,
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HOLMES, Chief Judge, MORITZ, and ROSSMAN, Circuit Judges. _________________________________
Merrier A. Jackson Tartt is a Black woman with years of experience as
an educator. She served for a time as principal of Junction City High School,
which is part of the Unified School District No. 475 (the District) in the state
of Kansas. After the District refused to renew her contract, Ms. Tartt sued the
District for racial discrimination and retaliation under 42 U.S.C. § 1981 and
Title VII of the Civil Rights Act of 1964. The parties engaged in discovery, and
* This order and judgment is not binding precedent, except under the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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. Appellate Case: 24-3110 Document: 31 Date Filed: 06/27/2025 Page: 2
the District moved for summary judgment on all claims. Ms. Tartt opposed the
motion, submitting affidavits to support her position. The district court
granted summary judgment to the District.
Ms. Tartt now appeals, challenging both the district court’s decision to
disregard portions of the affidavits she submitted in opposing summary
judgment and the grant of summary judgment to the District. We agree with
Ms. Tartt only in part. Exercising jurisdiction under 28 U.S.C. § 1291, we
conclude the district court improperly disregarded a portion of an affidavit
submitted by Ms. Tartt in opposition to the District’s motion for summary
judgment. Under these circumstances, we must remand for further
consideration of her discrimination claim under Title VII. We otherwise affirm.
I1
A
Ms. Tartt spent much of her career working in struggling schools in
Alabama, where she performed admirably. Dr. Reginald Eggleston, the
superintendent for the District, knew Ms. Tartt from her work in Alabama. In
1 We take the facts from the statements of uncontroverted facts in the
parties’ summary-judgment briefs before the district court. No party disputes the facts on which we rely, except as we specifically note. We use these summary judgment briefs, rather than the factual contentions recited in the district court’s pretrial order, in light of some stated factual disputes and our duty to “review summary judgment de novo.” Marcantel v. Michael & Sonja Saltman Fam. Tr., 993 F.3d 1212, 1221 (10th Cir. 2021) (quoting Gutierrez v. Cobos, 841 F.3d 895, 900 (10th Cir. 2016)). 2 Appellate Case: 24-3110 Document: 31 Date Filed: 06/27/2025 Page: 3
the summer of 2020, Dr. Eggleston recommended Ms. Tartt apply for a position
within the District. After joining the District and changing positions several
times, she ultimately served as interim principal for Junction City High School
(JCHS) for the latter part of the 2020–21 school year. Ms. Tartt then was hired
as principal of JCHS for the 2021–22 school year. The District does not dispute
that, at that time, JCHS needed “[t]urning around.”2 RII.269, 452.
At the end of the 2020–21 school year, three of the four assistant
principals at JCHS—Jeff Tanner, Doug Salee, and Becky Hickert—left their
positions. Before Mr. Salee resigned, Ms. Tartt overheard him tell other staff
about Ms. Tartt “not being our kind” and that they should come to him with
problems. RI.44; RII.250. Ms. Tartt confronted Mr. Salee, who is White,
interpreting his comments as racially charged. She reported his comments to
human resources (HR), and Ms. Tartt was satisfied with HR’s response. Three
replacement assistant principals—Marci Fiorentino, Ruth Stephenson, and
James Neff—started the following school year.
Ms. Tartt felt uncomfortable about some members of the District’s Board
of Education (Board). In particular, she thought Ron Johnson, who is White
2 According to Ms. Tartt, the vacancy she filled came about because of
what she calls “The Hijab Incident.” RII.270. As she summarizes, “At the school board meeting on November 2, 2020, [former] JCHS principal Melissa Sharp was suspended indefinitely after an African American Muslim student complained on October 22, 2020 that she had been asked to remove her Islamic head scarf, known as a hijab, while walking in the school hallway.” RII.270. 3 Appellate Case: 24-3110 Document: 31 Date Filed: 06/27/2025 Page: 4
and had been a Board member since 2019, visited JCHS often to monitor her.
In November 2021, Ms. Tartt messaged Dr. Debra Gustafson, the District’s
associate superintendent, “I don’t know if there’s something I have done?”
RI.46; RII.254. Dr. Gustafson replied, “No, Ron Johnson is a racist and he’s
going after the only two black administrators we have in the district,
[including] you . . . .” RI.46; RII.254. That same month, Dr. Gustafson texted
her friend Margie Pinaire, “I was offended by Mary’s post though because she
indicated not liking how things are going in USD 475. Make no mistake,
Hudson and Hatcher (Johnson and Hayden) are after Dr. E and Ms. Jackson”—
and Ms. Pinaire responded, “racist.”3 RI.47.
In late 2021 and early 2022, the District’s upper management fielded
complaints about Ms. Tartt from a variety of JCHS employees. Around that
time, athletic director Matt Westerhaus and the three assistant principals who
started during the 2021–22 school year all announced they were leaving the
school, at least partly because of Ms. Tartt.4
3 “USD 475” is the District. “Dr. E” refers to Dr. Eggleston, the superintendent, who is Black. “Jackson” is Ms. Tartt’s maiden name. The four last names in a row were Board members and candidates. No party explains who Mary is or describes her post, but nothing in our analysis turns on those details. 4 While Ms. Tartt disputes that conditions at the school were as bad as
the District contends, she does not controvert some employees complained or said they would leave in part because of her. See RII.257–62, 445–48. 4 Appellate Case: 24-3110 Document: 31 Date Filed: 06/27/2025 Page: 5
B
In January 2022—the spring semester of Ms. Tartt’s year as JCHS
principal—Dr. Eggleston and Tim Winter of HR visited the school to conduct a
“listening tour.” RI.55; RII.262, 448. The purpose of the visit was “to solicit
feedback on how the school year was going.” RI.55; RII.262, 448. Soon after
that visit, and given the above-described complaints, Dr. Eggleston and
Ms. Tartt discussed how she could improve and identified future goals.5 The
discussions resulted in a formal administrative improvement plan for
Ms. Tartt.
Dr. Gustafson also formally evaluated Ms. Tartt. The evaluation had
41 components, and Ms. “Tartt was evaluated as Ineffective in 14; Developing
in 24; Effective in 3; and Highly Effective in 0.” RI.46; RII.250. Ms. Tartt
received a “Highly Effective” rating for her students’ performance, which was
a separate score. RI.46; RII.250. As both parties agree, Ms. Tartt was given
some formal evaluation, but she was not evaluated as often as Kansas law
requires.
At Dr. Eggleston’s direction, Dr. Gustafson had also been working on
plans for Ms. Tartt’s professional development. In late January 2022,
5 Ms. Tartt disputes exactly when this discussion occurred and whether
Dr. Eggleston himself introduced areas of improvement, but she does not dispute that it occurred soon after the listening tour and involved discussions about how she could address staff concerns. See RII.263. 5 Appellate Case: 24-3110 Document: 31 Date Filed: 06/27/2025 Page: 6
Dr. Gustafson and Ms. Tartt met to discuss those plans. Dr. Gustafson told Ms.
Tartt some employees felt uncomfortable with her because, when Ms. Tartt did
not like what others were saying, she would stare rather than lower her gaze
or turn her head. As the District summarized, Dr. Gustafson also mentioned,
because “they were masked at the time” due to the COVID-19 pandemic, “she
could only imagine [Ms. Tartt’s] facial expression.” RI.48; RII.255, 443.
On January 30, 2022, Ms. Tartt sent a memo to Dr. Gustafson, copying
Dr. Eggleston, calling Dr. Gustafson’s comments “microaggressive,” “racist[,]
and inappropriate.” RI.48; RII.255. Five days later, on February 4, 2022,
Dr. Eggleston submitted to the Board the names of administrators
recommended for early contract renewal, but Ms. Tartt was not on that list.6
Still, Dr. Gustafson was then hopeful Ms. Tartt’s employment could be
salvaged, and efforts continued.
On February 7, 2022, Ms. Tartt and Dr. Eggleston had a meeting, which
Ms. Tartt recorded. Ms. Tartt recounted Dr. Gustafson’s comments about her
facial expressions, then said, “I think it was inappropriate, and I think, I know
it had a racial connotation to it. Now whether or not [Dr. Gustafson] intended
6 While the District disputes the paragraph asserting the precise date of
Ms. Tartt’s nonrenewal, the dispute focuses on facts other than the date. See RII.453. We thus agree with the district court that the gap between Ms. Tartt’s complaint about Dr. Gustafson and her omission from this list was five days. See RII.512, 522–23. 6 Appellate Case: 24-3110 Document: 31 Date Filed: 06/27/2025 Page: 7
it to be that way, that’s why it’s called microaggression.” RI.49; RII.250. They
met again two days later, this time joined by Dr. Gustafson. Dr. Eggleston
listened to Ms. Tartt and encouraged her and Dr. Gustafson to work together.
That was the last time Ms. Tartt met with District administrators to discuss
concerns about how she had been treated—though she suggests that is only
because further complaints would have been futile.
C
In mid-February 2022, Ruth Godbout, a senior administrator at the
District, met with Ms. Tartt and others and assigned some tasks to assistant
principals. Ms. Tartt claims this “took 75% of [her] job away from [her].”
RII.258.
That same month, Dr. Eggleston recommended Ms. Tartt resign. He also
suggested she might move to another position within the District, but
Ms. Tartt was not interested. The District administrators concluded Ms. Tartt
was not meeting certain goals in her administrative improvement plan,
including addressing her body language and demeanor.7
Around this time, Dr. Gustafson continued to field complaints from staff
related to Ms. Tartt. Dr. Eggleston was similarly concerned about staff losses,
7 Ms. Tartt argues those conclusions play into an “angry Black woman”
stereotype she had been subjected to, but she does not controvert that the administrators thought she had not met stated goals. See RII.265. 7 Appellate Case: 24-3110 Document: 31 Date Filed: 06/27/2025 Page: 8
untimely work, and staff complaints, leading him to remove Ms. Tartt from
JCHS.8 She was placed on administrative leave that March—initially for just
one Monday, and then for the rest of that week—and ultimately reassigned to
district central offices.
Board members also heard complaints about Ms. Tartt, and how things
were going at JCHS, from staff and other stakeholders. They conveyed to
Dr. “Eggleston that they had lost confidence in Tartt’s ability to lead the
building, maintain order in the building, work with staff, communicate and
problem solve.”9 RI.59. On May 3, 2022, Board members voted unanimously
not to renew Ms. Tartt’s contract for the following school year. In sworn
affidavits submitted by the Board during the summary judgment proceedings,
six of the seven Board members reported they did not know of Ms. Tartt’s
January 30 memo complaining about Dr. Gustafson. Ms. Tartt advanced no
contrary evidence.
8 Ms. Tartt disputes this fact, but she does not give any reason to controvert that Dr. Eggleston harbored these concerns, instead simply describing an email she had sent him before this decision. See RII.266, 450. 9 Ms. Tartt controverts these Board complaints, but she only asserts the
reasons the Board members gave were pretextual—a legal argument. See RII.266–67. She concludes the Board members’ eventual decision to terminate her “simply didn’t make sense by any matrix.” RII.266. But she advances no contrary factual allegations, so we accept the allegations that Board members received these complaints about Ms. Tartt and that they reported losing confidence in her. 8 Appellate Case: 24-3110 Document: 31 Date Filed: 06/27/2025 Page: 9
The District has consistently maintained the Board members had
exclusive authority to decide whether to renew Ms. Tartt’s contract. See RI.61
(the District framing the nonrenewal decision as belonging to the Board, then
stating “Tartt’s contract was nonrenewed on May 3, 2022 by a unanimous
decision of the [Board]” (emphasis added)); RI.66 (the District explaining “[t]he
[Board] had sole authority to nonrenew Tartt’s contract”); RI.68 (the District
calling the Board “[t]he final decision makers” on “nonrenewal”).10 And
Ms. Tartt has never disagreed. See RII.268 (Ms. Tartt acknowledging in her
summary judgment opposition that, “[a]ccording to the Associate
Superintendent, the termination was a board driven decision”); RII.247–85
(Ms. Tartt, in her summary judgment opposition, identifying no one besides
Board members with authority over the decision not to renew her contract).
D
In March 2021, Ms. Tartt sued the District in federal court alleging
“racial discrimination and retaliation arising out of [her] illegal firing” under
42 U.S.C. § 1981 and Title VII. RI.8. Following discovery, the District moved
for summary judgment on both claims. Ms. Tartt opposed the motion. Each
party included a number of exhibits with its summary judgment filings. Most
10At oral argument, in response to the panel asking, “Who was the ultimate decisionmaker for her termination?”, the District reiterated, “The Board of Education.” Oral Arg. at 28:40–43. 9 Appellate Case: 24-3110 Document: 31 Date Filed: 06/27/2025 Page: 10
relevant to this appeal are three affidavits submitted by Ms. Tartt in opposing
summary judgment: one from Ms. Tartt; one from Dawn Toomey, who served
as the District’s HR Director from 2019 (before Ms. Tartt was hired into the
District) until the end of the 2020–21 school year; and one from Jonathan
Jacobson, an academic coach at the District who worked with Ms. Tartt.
The District soon filed what it styled a “motion to strike” much of those
three affidavits. RII.423 (capitalization omitted). In the motion, the District
argued that some paragraphs in the affidavits were not based on personal
knowledge or otherwise violated Federal Rule of Civil Procedure 56 and asked
the court to “disregard or strike” them. RII.423 (citing Fed. R. Civ. P. 56(c)(4)).
In response, Ms. Tartt insisted there is no support in the Federal Rules for
striking affidavits, as the primary basis for a motion to strike is Rule 12(f),
which covers only pleadings. She then argued the challenged paragraphs had
a proper evidentiary basis.11
The district court ruled on this motion in July 2024. The court overlooked
the alleged procedural defect of filing a motion to strike and granted the motion
in part, disregarding some of the identified affidavit paragraphs on a variety
of bases.
11 The District also challenged Mr. Jacobson’s affidavit in full because it
was not notarized. Ms. Tartt moved to correct that oversight, and the district court granted that motion. No party challenges that decision on appeal. 10 Appellate Case: 24-3110 Document: 31 Date Filed: 06/27/2025 Page: 11
The district court ruled on the summary judgment motion that same
month. As to both the discrimination and retaliation claims, the court applied
the three-step burden-shifting framework in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). The court concluded Ms. Tartt had established a
prima facie case on both claims, and the District had shouldered its burden to
show a legitimate, nondiscriminatory reason for Ms. Tartt’s nonrenewal. But
the district court concluded Ms. Tartt failed to show the legitimate reasons
were pretextual. On the discrimination claim, the court analyzed the summary
judgment record—after disregarding some challenged parts of the affidavits
submitted by Ms. Tartt to oppose the motion—and determined the evidence
did not “rise to the level of pretext.” RII.521. On the retaliation claim, the court
found “Plaintiff fail[ed] to make a single pretext[] argument rebutting
Defendant’s legitimate reasons for termination. Thus, Plaintiff wholly fail[ed]
to provide any evidence or argument to show pretext.” RII.524. Having rejected
both claims, the court granted summary judgment for the District in full.
This timely appeal followed, challenging the district court’s rulings on
both the motion to strike and the motion for summary judgment.12
12 The order on summary judgment is the final dispositive order on appeal. But the earlier order on the motion to strike is also properly before us. No party suggests otherwise—and for good reason. The Federal Rules of Appellate Procedure confirm we can review “all orders that, for purposes of appeal, merge into the designated judgment or appealable order. It is not necessary to designate those orders in the notice of appeal.” Fed. R. App. 11 Appellate Case: 24-3110 Document: 31 Date Filed: 06/27/2025 Page: 12
II
We begin with Ms. Tartt’s claims under § 1981. Recall, Ms. Tartt
advanced the discrimination and retaliation claims under both § 1981 and
Title VII. See RI.8. She does not meaningfully distinguish between those two
causes of action in any of her allegations or filings. See, e.g., RI.8–19 (operative
complaint). The district court likewise analyzed the two causes of action
together and resolved them both for the District on summary judgment. See
RII.515, 521–22 (district court order). But we now clarify that no cause of
action under § 1981 is available to Ms. Tartt in this case.
The Supreme Court has made clear 42 U.S.C. § 1983 “provides the
exclusive federal damages remedy for the violation of the rights guaranteed by
§ 1981 when the claim is pressed against a state actor.” Jett v. Dal. Indep. Sch.
Dist., 491 U.S. 701, 735 (1989); see also Bolden v. City of Topeka, Kan., 441 F.3d
1129, 1134–1137 (10th Cir. 2006) (confirming subsequent legislative
amendments did not override that rule from Jett). That rule is decisive here.
P. 3(c)(4). Here, Ms. Tartt’s notice of appeal happened to identify both orders. See RII.526. But we could review the order on the motion to strike even if it did not. See Siloam Springs Hotel, L.L.C. v. Century Sur. Co., 906 F.3d 926, 931 (10th Cir. 2018) (“A notice of appeal that names the final judgment is sufficient to support review of all earlier orders that merge in the final judgment under the general rule that appeal from a final judgment supports review of all earlier interlocutory orders.” (quoting Cole v. Ruidoso Mun. Schs., 43 F.3d 1373, 1383 n.7 (10th Cir. 1994))). 12 Appellate Case: 24-3110 Document: 31 Date Filed: 06/27/2025 Page: 13
Ms. Tartt sued only one defendant, the District. The district court found as a
stipulated fact—and no party contests—the District is a “governmental
subdivision of the State of Kansas.” RI.27. And Ms. Tartt’s complaint seeks
only damages. We therefore find, under Jett, she cannot proceed under § 1981,
so we consider both the discrimination and retaliation claims under only
Title VII.
We now turn to Ms. Tartt’s challenges to the rulings on the District’s
motion to strike or disregard portions of the three affidavits. As we will explain,
we agree with Ms. Tartt’s arguments in part. But, as we will explain, our
holding affects only the discrimination claim. We first lay out our standard of
review and the applicable law before explaining our disposition.
“We review the district court’s exclusion of evidence for abuse of
discretion. We will not reverse the district court’s evidentiary ruling ‘absent a
distinct showing it was based on a clearly erroneous finding of fact or an
erroneous conclusion of law or manifests a clear error of judgment.’” Eller v.
Trans Union, LLC, 739 F.3d 467, 474 (10th Cir. 2013) (citing and quoting
Whittington v. Nordam Grp. Inc., 429 F.3d 986, 1000 (10th Cir. 2005)). “A
district court would necessarily abuse its discretion if it based its ruling on an
erroneous view of the law or on a clearly erroneous assessment of the evidence.”
13 Appellate Case: 24-3110 Document: 31 Date Filed: 06/27/2025 Page: 14
Lyons v. Jefferson Bank & Tr., 994 F.2d 716, 727 (10th Cir. 1993) (quoting
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990)). “Even if the trial
judge ‘abused his or her discretion in making a decision to exclude evidence,
we will overlook the error as harmless unless a party’s substantial right was
affected.’” Eller, 739 F.3d at 474 (quoting Perkins v. Silver Mountain Sports
Club & Spa, LLC, 557 F.3d 1141, 1146–47 (10th Cir. 2009)).
Several subsections of Federal Rule of Civil Procedure 56 bear on
Ms. Tartt’s evidentiary arguments. Rule 56(c)(2) provides, “A party may object
that the material cited to support or dispute a fact cannot be presented in a
form that would be admissible in evidence.” Rule 56(c)(4) provides, “An
affidavit or declaration used to support or oppose a motion must be made on
personal knowledge, set out facts that would be admissible in evidence, and
show that the affiant or declarant is competent to testify on the matters
stated.” And Rule 56(e) provides,
If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials—including the facts considered undisputed— show that the movant is entitled to it; or
(4) issue any other appropriate order. 14 Appellate Case: 24-3110 Document: 31 Date Filed: 06/27/2025 Page: 15
On appeal, Ms. Tartt challenges the district court’s decision to disregard
portions of the three above-described affidavits (her own affidavit and those
from Ms. Toomey and Mr. Jacobson). Affidavits can provide important evidence
in many cases. They are “sworn to by the declarant before an officer authorized
to administer oaths,” which makes affidavits so “solemn” that they can serve
reliably as testimony for certain purposes. Melendez-Diaz v. Massachusetts,
557 U.S. 305, 310 (2009) (first quoting Affidavit, Black’s Law Dictionary 62
(8th ed. 2004); and then quoting Crawford v. Washington, 541 U.S. 36, 51
(2004)).
As a preliminary matter, Ms. Tartt reprises the argument advanced in
the district court that all of the District’s challenges to the affidavits must fail
because it is procedurally improper to move to strike an affidavit. This
argument is unavailing. The parts of Rule 56 discussed above leave no doubt
parties may challenge, and courts may disregard, inadmissible or otherwise
improper affidavits at summary judgment. And, while the District styled its
motion as a “Motion to Strike,” its contents actually called for the district court
“to disregard or strike specific paragraphs.” RII.423 (emphasis added). As
Ms. Tartt herself acknowledges, courts often “simply disregard those portions
that are not shown to be based on personal knowledge or otherwise comply
with Rule 56(e).” Op. Br. at 17 (emphasis added); see also, e.g., Milne v. USA
15 Appellate Case: 24-3110 Document: 31 Date Filed: 06/27/2025 Page: 16
Cycling Inc., 575 F.3d 1120, 1133–34 (10th Cir. 2009) (finding the district court
did not abuse its discretion in excluding an affidavit at summary judgment for
want of a proper evidentiary foundation). What is more, even if the District
had filed a motion (only) to strike the affidavits, this court has—in unpublished
but persuasive decisions—routinely overlooked that procedural irregularity.
See, e.g., Chevez-Acosta v. Sw. Cheese Co., LLC, 610 F. App’x 722, 727–28
(10th Cir. 2015) (unpublished) (“Even if . . . granting a motion to strike was an
uncommon vehicle through which to disregard these statements [in an
affidavit], . . . [t]his alleged ‘error’ in no way prejudiced [the plaintiff] and does
not amount to an abuse of discretion.”); Pack v. Hickey, 776 F. App’x 549, 556
(10th Cir. 2019) (unpublished) (similarly finding “striking portions of [an]
affidavit” at summary judgment was not an abuse of discretion).13
Ms. Tartt also challenges the merits of the district court’s decision to
disregard portions of the affidavits. Her appellate briefing leaves the precise
contours of her evidentiary challenges somewhat unclear. But, having
reviewed all paragraphs the district court disregarded, we discern no abuse of
discretion, with two exceptions.
13 We cite unpublished decisions only for their persuasive value, recognizing that they do not constitute binding precedent. See United States v. Ellis, 23 F.4th 1228, 1238 n.6 (10th Cir. 2022); see also 10th Cir. R. 32.1(A). 16 Appellate Case: 24-3110 Document: 31 Date Filed: 06/27/2025 Page: 17
Recall, “An affidavit or declaration used to support or oppose a motion
must be made on personal knowledge . . . .” Fed. R. Civ. P. 56(c)(4). As the
district court correctly summarized, “Under the personal knowledge standard,
an affidavit is inadmissible if the witness could not have actually perceived or
observed that which he testifies to.” RII.498 (quoting Argo v. Blue Cross & Blue
Shield of Kan., Inc., 452 F.3d 1193, 1200 (10th Cir. 2006)).
The district court disregarded several parts of Ms. Toomey’s affidavit on
that basis. Specifically, it singled out paragraph 11, sentences 6 through 8; all
of paragraph 12; paragraph 13, sentences 1 and 2; and all of paragraph 17. We
find no abuse of discretion as to those parts of paragraph 13 and 17.14 But we
find the district court erred as to those parts of paragraphs 11 and 12.
14 Paragraph 13, sentences 1 and 2 read, “I am told that the District now
claims that ‘listening sessions’ served as an evaluation tool of Ms. Tartt. This is simply an after-the-fact attempt to cover for the lack of the statutory evaluation.” RII.339. And paragraph 17 reads,
I strongly believe there was racial animus involved in the decision not to offer Mrs. Tartt a contract after her second year at JCHS. The statement that Merrier had a target on her back as one of two black administrators in the District has merit from my view as former-Executive Director of Personnel Services for Geary County USD 475.
RII.340–41. These passages are entirely about events that happened when Ms. Toomey, at her own admission, no longer worked in the District. She had left the District before any “listening sessions,” RII.339, and before “the decision not to offer Ms. Tartt a contract,” RII.340; see RII.337 (noting Ms. Toomey’s tenure with the District ended before the 2021–22 school year, when these events occurred). 17 Appellate Case: 24-3110 Document: 31 Date Filed: 06/27/2025 Page: 18
In paragraph 11, sentences 6 through 8, Ms. Toomey avers, “It is my
understanding that Dr. Eggleston and Dr. Gustafson are stating that the[y]
were not aware of the requirement of evaluations. I also understand they are
now trying to say that no school administrators were being evaluated. This is
not accurate.” RII.339. In this passage, Ms. Toomey ultimately concludes two
claims are inaccurate: first, Drs. Eggleston and Gustafson lacked awareness of
the evaluation requirements, and second, no administrators were evaluated.
Contrary to the district court’s ruling, these two conclusions are based on
Ms. Toomey’s personal knowledge.
In the same paragraph, Ms. Toomey gives a basis for concluding that
Drs. Eggleston and Gustafson were aware of the evaluation requirements:
“During my time at the school district, Lacee Seel, former Associate
Superintendent[,] and Dr. Gustafson would evaluate elementary
administrators and Dr. Eggleston was responsible for the secondary
administrators.” RII.338. True, Ms. Toomey could have explained how she
acquired the knowledge that Drs. Eggleston and Gustafson disclaimed
awareness of the evaluation requirements. But the bottom line is Ms. Toomey
has averred—based on specific things she knew about the evaluation process
“[d]uring [her] time at the school district”—those administrators must have
known of the evaluation requirements. RII.338. That satisfied the personal
knowledge requirements of Federal Rule of Civil Procedure 56(c)(4).
18 Appellate Case: 24-3110 Document: 31 Date Filed: 06/27/2025 Page: 19
Ms. Toomey similarly relied on her personal knowledge to dispute the
claim that “no school administrators were being evaluated.” RII.339. In the
following sentences, she lists several people who she knew “got one,” meaning
a formal evaluation. RII.339.15 Again, while more specifics about how she came
to “understand” that Drs. Eggleston and Gustafson were claiming no one
received evaluations, RII.339, would have made her affidavit clearer, we still
find her rebuttal of that claim was the important point, and that rebuttal was
clearly based on personal knowledge. For these reasons, we must conclude that
disregarding these three sentences in paragraph 11 was an abuse of discretion.
We conclude similarly as to paragraph 12. That paragraph reads,
If Mrs. Tartt was not evaluated it was a conscious decision on the part of the administration. [A state system] maintains a record of all evaluations performed. They are set on a “cycle”. The system sends reminders and I did as well. I would send out email reminders to the administrators (including Dr. Eggleston and Dr. Gustafson) advising them of their evaluations due out.
15 The affidavit states, in relevant part,
It is my understanding that Dr. Eggleston and Dr. Gustafson are stating that the[y] were not aware of the requirement of evaluations. I also understand they are now trying to say that no school administrators were being evaluated. This is not accurate. Alicia Scofield definitely got one. She was in her 2nd year as principal of Ware and is now the Director of Student Support Services. Veronica Wait got one as Vice Principal at Seitz. So did Jodi Testa. Kim Dressman got one. Melanie Laster would have had one prior to her retirement.
RII.339. 19 Appellate Case: 24-3110 Document: 31 Date Filed: 06/27/2025 Page: 20
RII.339. Had Ms. Toomey averred that “Ms. Tartt was not evaluated” during
her second year, we would agree that was not based on personal knowledge,
because Ms. Toomey had left the District before Ms. Tartt’s second year.
RII.337. But that is not what Ms. Toomey wrote. Instead, she suggested “[i]f”
that were true, that must have been a conscious decision. RII.339. And that
assertion is based on her personal knowledge from her time as HR Director
about how frequently email reminders went out, including to the
administrators who evaluated Ms. Tartt. We therefore find excluding this
paragraph based on a lack of personal knowledge also was an abuse of
discretion.16
The District advances no argument that these evidentiary errors are
harmless. See Eller, 739 F.3d at 474 (“[W]e will overlook the error as harmless
unless a party’s substantial right was affected.” (quoting Perkins, 557 F.3d at
1146–47)). And we see no basis for finding harmlessness sua sponte. We
16 This case is usefully contrasted with Argo v. Blue Cross and Blue
Shield of Kansas, Inc., 452 F.3d 1193 (10th Cir. 2006). In Argo, an affiant claimed no females had been terminated from a certain position “for failing to make monthly or yearly goals”—a claim he could not have made without “knowledge about the performance and discipline of every female” in that position. Id. at 1199–1200. Whereas the affiant in Argo “simply was not in a position to acquire such comprehensive knowledge,” id. at 1200, the same is not true of Ms. Toomey. She alleged a specific basis to conclude any failures to evaluate must have been a conscious decision on the part of particular administrators, based on what she knew from her personal experience about reminders being routinely sent to those administrators. RII.339. 20 Appellate Case: 24-3110 Document: 31 Date Filed: 06/27/2025 Page: 21
therefore remand to the district court to reassess the discrimination claim
without disregarding any of paragraphs 11 and 12 of Ms. Toomey’s affidavit.
See United States v. Hasan, 609 F.3d 1121, 1129 (10th Cir. 2010) (“When the
court of appeals notices a legal error, it is not ordinarily entitled to weigh the
facts itself and reach a new conclusion; instead, it must remand to the district
court for it to make a new determination under the correct law.”). Given our
conclusion, we need not reach the parties’ remaining arguments on the
discrimination claim.17
This evidentiary issue, however, cannot rescue Ms. Tartt’s retaliation
claim, which fails for an independent reason. To show why, we outline our
standard of review, describe the applicable law, and explain why we affirm the
district court’s grant of summary judgment to the District on that claim.
17 We note that, as to the Board members, Ms. Tartt’s briefing to this
court focuses only on alleged racism by Mr. Johnson. But, recall, the summary judgment record shows Dr. Gustafson had messaged Ms. Pinaire, “I was offended by Mary’s post though because she indicated not liking how things are going in USD 475. Make no mistake, Hudson and Hatcher (Johnson and Hayden) are after Dr. E and Ms. Jackson”—and Ms. Pinaire had responded, “racist.” RI.47. The four last names in a row refer to Board members or candidates at the time. When reassessing the discrimination claim, the district court should also consider specific allegations of racism by Board members other than Mr. Johnson, if any are made. 21 Appellate Case: 24-3110 Document: 31 Date Filed: 06/27/2025 Page: 22
“We review summary judgment de novo, applying the same legal
standard as the district court.” Marcantel v. Michael & Sonja Saltman Fam.
Tr., 993 F.3d 1212, 1221 (10th Cir. 2021) (quoting Gutierrez v. Cobos, 841 F.3d
895, 900 (10th Cir. 2016)). Specifically, “[s]ummary judgment is warranted ‘if
the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.’” Id. (quoting Fed. R.
Civ. P. 56(a)). “When applying this standard, we review the evidence and draw
reasonable inferences therefrom in the light most favorable to the nonmoving
party.” Id. (quoting Gutierrez, 841 F.3d at 900).
“Under Title VII, an employer may not retaliate against an employee
because the employee ‘has opposed any practice made an unlawful employment
practice by [Title VII].’” Iweha v. Kansas, 121 F.4th 1208, 1233 (10th Cir.
2024) (alteration in original) (quoting 42 U.S.C. § 2000e-3(a)). “[A] plaintiff
may establish a retaliation claim using . . . direct evidence . . . or [by] ‘rely[ing]
on the familiar three-part McDonnell Douglas framework to prove that the
employer’s proffered reason for its decision is a pretext for retaliation.’” Id. (last
alteration in original) (quoting Fye v. Okla. Corp. Comm’n, 516 F.3d 1217, 1225
(10th Cir. 2008)). Ms. Tartt does not argue she has marshaled direct evidence
of retaliation, and no party challenges the district court’s decision to analyze
22 Appellate Case: 24-3110 Document: 31 Date Filed: 06/27/2025 Page: 23
this claim under the McDonnell Douglas framework. We therefore proceed
under that framework.
At the first step of McDonnell Douglas, the plaintiff must “ma[k]e a
prima facie showing of retaliation.” Id. To do so, “a plaintiff must prove ‘(1) she
engaged in protected activity; (2) she suffered an adverse employment action;
and (3) there was a causal connection between the protected activity and the
adverse action.’” Id. (quoting Vaughn v. Epworth Villa, 537 F.3d 1147, 1150
(10th Cir. 2008)). At step two, “the defendant must ‘provide a legitimate and
facially non-retaliatory reason for its’” adverse action. Id. (quoting Vaughn, 537
F.3d at 1153). “If the defendant provides such a reason,” then, at step three,
“the plaintiff ‘bears the ultimate burden of demonstrating that [the
defendant’s] proffered reason is pretextual.’” Id. (alteration in original)
(quoting Vaughn, 537 F.3d at 1150).
The district court concluded Ms. Tartt had met her burden to establish a
prima facie case at step one, and the District had met its burden at step two to
show a legitimate, nonretaliatory reason for her contract nonrenewal. But as
to step three, the district court determined Ms. Tartt failed to show the
District’s proffered reason for her nonrenewal was pretextual. On that basis,
the district court granted summary judgment for the District on the retaliation
claim.
23 Appellate Case: 24-3110 Document: 31 Date Filed: 06/27/2025 Page: 24
On appeal, Ms. Tartt urges reversal, contending the district court
erroneously overlooked evidence of pretext that she had presented. Op. Br.
at 35–48. According to the District, the district court was correct to find
Ms. Tartt had not established pretext, and it also maintains she did not meet
her burden to establish a prima facie case; either reason, the District suggests,
is sufficient to affirm. Resp. Br. at 28–33. We agree with the District’s
arguments on the prima facie case, so we affirm on that alternative basis and
need not reach the other two McDonnell Douglas steps. See Elkins v. Comfort,
392 F.3d 1159, 1162 (10th Cir. 2004) (“We have discretion to affirm on any
ground adequately supported by the record.”).18
On the prima facie case issue, the District accepts the district court’s
conclusions that (1) Ms. Tartt’s January 30, 2022 memo describing her
complaint about Dr. Gustafson was protected activity, and (2) her nonrenewal
18 This court considers three factors in deciding whether to exercise its
discretion to affirm on an alternative ground—here, that Ms. Tartt failed to make out a prima facie case of retaliation. See Elkins v. Comfort, 392 F.3d 1159, 1162 (10th Cir. 2004). , all three factors support our holding. First, this alternative ground “was fully briefed and argued here and below.” Id.; see RI.71–74 (the District arguing this ground to the district court); RII.281–84 (Ms. Tartt responding); Resp. Br. at 28–29 (the District raising this ground on appeal); Reply Br. at 6–8 (Ms. Tartt responding). Second, no one disputes the extensive proceedings before the district court constituted “a ‘fair opportunity to develop the [factual] record.’” Elkins, 392 F.3d at 1162 (alteration in original) (quoting Seibert v. Oklahoma ex rel. Univ. of Okla. Health Sci. Ctr., 867 F.2d 591, 597 (10th Cir. 1989)). Third, “in light of factual findings to which we defer or uncontested facts,” our analysis “involve[s] only questions of law.” Id. 24 Appellate Case: 24-3110 Document: 31 Date Filed: 06/27/2025 Page: 25
constituted adverse employment action. Resp. Br. at 28. Thus, like the parties,
we just focus on the causation element.
The district court concluded Ms. Tartt had carried her burden to show a
causal connection between the protected activity and the adverse action
because “less than a week [had] passed from the date of the protected conduct
to the date [she] was informed that she would not be submitted for early
contract renewal.” RII.523. That “close temporal proximity,” the court found,
allowed “a reasonable fact finder [to] reasonably infer that a causal connection
existed.” RII.523.
The District insists the temporal proximity alone does not demonstrate
causation on this record. As the District points out, “six out of seven [Board]
members” claimed they “had no knowledge of Tartt making a complaint about
Dr. Gustafson regarding microaggressions or racial comments,” and Ms. Tartt
offered no contrary evidence. Resp. Br. at 29. The Board members were the
ultimate decisionmakers on whether to renew Ms. Tartt’s contract, the District
reasons, so her nonrenewal could not have been retaliatory when all but one of
those decisionmakers did not know of the protected activity in the first place.
Ms. Tartt replies that the District needed to “fil[e] a cross-appeal” to raise
this argument. Reply Br. at 6. And, on the merits, she suggests the Board
members’ claimed ignorance is insufficient to rule for the District on this issue.
Rather, Ms. Tartt contends facts should be resolved in her favor in this posture,
25 Appellate Case: 24-3110 Document: 31 Date Filed: 06/27/2025 Page: 26
and the Board members may have lied when they claimed not knowing about
her complaint about Dr. Gustafson.
The District has the winning argument. The McDonnell Douglas burden-
shifting framework confirms the evidentiary burden was with Ms. Tartt at this
stage. See Iweha, 121 F.4th at 1233 (noting “the plaintiff must prove” a prima
facie case (emphasis added)). That means Ms. Tartt “ha[d] the burden of
proving that those who acted against her had knowledge of her protected
activity.” Lindsay v. Denver Pub. Schs., 88 F.4th 1323, 1328–29 (10th Cir.
2023). “After all,” we have explained, “an employer cannot engage in unlawful
retaliation if it does not know that the employee has opposed or is opposing a
violation of [the antidiscrimination statute].” Id. at 1237 (alteration in original)
(quoting Petersen v. Utah Dep’t of Corr., 301 F.3d 1182, 1188 (10th Cir. 2002)).
Ms. Tartt proffered no evidence from which a factfinder could reasonably
infer that, when the Board unanimously decided not to renew her contract,
more than one Board member knew of the January 30 memo.19 Ms. Tartt does
not suggest otherwise. Her contention that the six Board members may be
lying is no substitute for some evidence, which our caselaw requires her to
present at this stage.
19 The only Board member who apparently knew of Ms. Tartt’s complaint
against Dr. Gustafson was Dr. Sarah Elizabeth Hudson. See RI.61, 183. 26 Appellate Case: 24-3110 Document: 31 Date Filed: 06/27/2025 Page: 27
The district court’s temporal-proximity analysis does not change our
conclusion. To be sure, the district court correctly determined that a five-day
gap between protected activity and an adverse employment action is ordinarily
enough to infer causation. See Conroy v. Vilsack, 707 F.3d 1163, 1181 (10th Cir.
2013) (“It appears clear that, if the adverse action occurs in a brief period up
to one and a half months after the protected activity, temporal proximity alone
will be sufficient to establish the requisite causal inference . . . .”). But we agree
with the District that, in this case, timing is not dispositive.
The district court identified only “the non-renewal of Plaintiff’s contract”
as “an adverse employment action” for purposes of the retaliation claim.20
RII.522. At best, the five-day gap establishes that Dr. Eggleston—who was
included on Ms. Tartt’s memo, and who then omitted Ms. Tartt from the list of
people recommended for early contract renewals—may have had a retaliatory
motive in that omission. It says nothing about the six of seven decisionmakers
who, months later, voted unanimously not to renew her contract, and who
disclaimed knowing about the memo at the time.21 So no matter what motives
20 Perhaps Ms. Tartt could have argued the district court erred by ignoring other potential adverse employment actions. But she did not. See also RI.8 (the complaint summarizing, “This is a racial discrimination and retaliation action arising out of the illegal firing of Merrier A. Jackson Tartt by the USD 475 in Junction City, Kansas.” (emphasis added)). 21 Ms. Tartt advanced no basis to impute anyone else’s alleged retaliatory
motives to any Board members. 27 Appellate Case: 24-3110 Document: 31 Date Filed: 06/27/2025 Page: 28
others may have had, if there is no evidence from which to infer the memo
caused retaliation by the Board—the decisionmakers for the only identified
adverse employment action—Ms. Tartt’s claim must fail.
Ms. Tartt’s contrary arguments are unpersuasive. First, despite her
suggestion, the District did not need to cross-appeal to raise this argument, as
we review the entire retaliation claim de novo. See Marcantel, 993 F.3d at 1221;
see also Elkins, 392 F.3d at 1162 (“We have discretion to affirm on any ground
adequately supported by the record.”).
Second, Ms. Tartt’s citation to an unpublished district court case, mainly
for its internal citation to our opinion in Lindsay, does not move the needle.
See Reply Br. at 7 (citing McCray v. McDonough, No. 22-2154, 2024 WL
3950764, at *25 (D. Kan. Aug. 27, 2024) (unpublished), which in turn cites
Lindsay, 88 F.4th at 1328–29). The relevant part of Lindsay is, “[S]worn
testimony denying knowledge (no matter how saintly the witness) is not
dispositive at the summary-judgment stage.” 88 F.4th at 1328. Lindsay’s very
next sentence, however, states, “But [the plaintiff] has the burden of proving
that those who acted against her had knowledge of her protected activity . . . .”
Id. at 1328–29. That latter principle, which Ms. Tartt does not meaningfully
address, is dispositive here.
Third, Ms. Tartt urges this court to heed our pronouncement in Lounds
v. Lincare, Inc. that, “in the context of employment discrimination, ‘[i]t is not
28 Appellate Case: 24-3110 Document: 31 Date Filed: 06/27/2025 Page: 29
the purpose of a motion for summary judgment to force the judge to conduct a
“mini trial” to determine the defendant’s true state of mind.’” 812 F.3d 1208,
1220–21 (10th Cir. 2015) (quoting Randle v. City of Aurora, 69 F.3d 441, 453
(10th Cir. 1995)). Our disposition does not depart from this principle.22 We can
affirm on the retaliation claim requiring nothing approaching “a ‘mini trial.’”
Id. Again, Ms. Tartt has brought forth no evidence that six of seven Board
members knew about the protected activity. We have no trouble concluding
that is insufficient even at the summary judgment stage.
We therefore affirm the grant of summary judgment to the District on
the retaliation claim.
III
We REVERSE (i) the district court’s decision to strike paragraph 11,
sentences 6 through 8, and all of paragraph 12 of Ms. Toomey’s affidavit, and
(ii) its grant of summary judgment to the District on the discrimination claim
brought under Title VII. As to those rulings, we REMAND for further
proceedings consistent with this order. We otherwise AFFIRM.
Entered for the Court
Veronica S. Rossman Circuit Judge
22 We note the claim for which Ms. Tartt marshals this quote alleges
retaliation, not discrimination. 29