McCray v. Collins: Firm Waiver, Discrete-Act Exhaustion, and Decisionmaker-Knowledge as Gatekeepers for Title VII Disparate-Treatment and Retaliation Claims

A. Precedents Cited (and How They Drove the Outcome)

1. Preservation, briefing, and waiver

• Morales-Fernandez v. I.N.S. and Duffield v. Jackson: These cases supplied the “firm waiver rule”—failure to timely object to a magistrate judge’s determinations waives appellate review. The panel used them to reject McCray’s attempt to resurrect a “retaliatory harassment” theory after she did not object to the pretrial order’s ruling that no such claim was raised.
• Johnson v. Reyna: The opinion emphasized the narrowness of exceptions to the firm waiver rule (lack of notice for pro se litigants; or “interests of justice”), neither of which McCray invoked.
• Bronson v. Swensen and Gross v. Burggraf Const. Co.: These cases grounded the court’s refusal to consider the hostile work environment dismissal because McCray did not present a developed, record-cited, reasoned appellate argument as required by Fed. R. App. P. 28(a)(8)(A).

2. Federal-sector administrative exhaustion and the discrete-act rule

• Hickey v. Brennan: The panel reiterated that federal employees must follow specific administrative procedures; importantly, the 45-day EEO counseling deadline is a mandatory claims-processing rule (not jurisdictional) that must be enforced when properly raised.
• 29 C.F.R. § 1614.105(a)(1): Applied to narrow McCray’s actionable events to those within 45 days before she contacted an EEOC counselor (here, after December 17, 2019).
• Lincoln v. BNSF Ry. Co. and Eisenhour v. Weber Cnty.: The court treated each alleged discriminatory or retaliatory act as its own “unlawful employment practice” requiring separate exhaustion, limiting McCray’s case to specific timely, discrete incidents.
• Martinez v. Potter: Earlier incidents could be used only as “background evidence,” not as independently actionable, unexhausted claims.
• Payan v. United Parcel Serv. and United States v. Brooks: McCray’s attempt to invoke a continuing violation theory for disparate treatment was rejected because Tenth Circuit panels treat disparate treatment as discrete-act based; absent en banc action or Supreme Court intervention, that rule controls.
• Daniels v. United Parcel Serv., Inc. (noting it was “abrogated on other grounds by Muldrow v. City of St. Louis): The panel used Daniels for the proposition that denial/failure to train is a discrete act (thus time-bounded for exhaustion purposes).

3. Summary judgment standards and the need for record-cited evidence

• Fernandez v. Clean House, LLC: Framed de novo review of dismissal and the plausibility standard (though the key merits resolved at summary judgment).
• Est. of Beauford v. Mesa Cnty., Est. of Booker v. Gomez, and Est. of Hurtado ex rel. Hurtado v. Smith: Supplied the controlling summary judgment framework and the caution that unsubstantiated allegations have no probative weight; a nonmovant must designate specific facts on each essential element.
• Annett v. Univ. of Kan.: Reinforced that unsupported conclusory allegations do not create a genuine issue of fact.

4. Disparate treatment: inference of discrimination requires “objective evidence”

• McDonnell Douglas Corp. v. Green, as applied through Bekkem v. Wilkie: The court placed McCray’s discrimination claim into the familiar indirect-evidence, burden-shifting framework.
• McNellis v. Douglas Cnty. Sch. Dist.: The prima facie formulation highlighted the critical third element—circumstances giving rise to an inference of discrimination.
• Ford v. Jackson Nat'l Life Ins. Co. and Aramburu v. Boeing Co.: Together, these cases supplied the panel’s decisive evidentiary demand: subjective belief is insufficient; the record must contain objective evidence of disparate treatment.
• Sorbo v. United Parcel Serv.: Because McCray chose comparator proof as her route to an inference, Sorbo required her to identify similarly situated non-African-American employees; her own deposition undercut that element by indicating no such comparators existed.
• Stewart v. Adolph Coors Co. and Heno v. Sprint/United Mgmt. Co.: The court rejected a late “anecdotal” theory (Duda’s alleged later demotion related to a racial slur matter) because it was not tied to the challenged employment actions in McCray’s case and thus lacked probative relevance to intent.
• Branson v. Price River Coal. Co.: Cited as additional support for affirming where the evidentiary record does not support discriminatory intent.
• Adamson v. Multi Cmty. Diversified Servs., Inc. and Tabor v. Hilti, Inc.: These cases helped the court exclude the possibility of “direct evidence” of discrimination based on ambiguous or non-explicit statements.

5. Retaliation: decisionmaker knowledge is a prerequisite to causation

• Ward v. Jewell and Bekkem v. Wilkie: Provided the McDonnell Douglas prima facie structure for retaliation.
• Culp v. Remington of Montrose Golf Club, LLC (post-Muldrow v. City of St. Louis): The court applied the “materially adverse” action requirement for retaliation claims.
• Lindsay v. Denver Pub. Schs.: This was the centerpiece: to show the causal element, the plaintiff must first produce evidence that the decisionmaker knew of the protected activity. The panel used Lindsay to reject McCray’s reliance on speculation (attacking a witness’s credibility, timing alone, and a stray phrase).
• Tufaro v. Okla. ex rel. Bd. of Regents of Univ. of Okla.: The opinion invoked this to emphasize that credibility determinations are inappropriate at summary judgment.
• Singh v. Cordle: The panel distinguished temporal proximity as evidence of retaliatory motive (sometimes), not as proof of the antecedent fact of knowledge.
• Iweha v. Kansas and Hinds v. Sprint/United Mgmt. Co.: These cases were used to confine “protected activity” to opposition to Title VII-illegal discrimination; general management complaints are not protected.
• Fye v. Okla. Corp. Comm'n: Supported the court’s conclusion that the record lacked direct evidence of retaliation.
• Cruz v. Farmers Ins. Exch.: Cited for the standard of drawing reasonable inferences in favor of the nonmovant, while still finding McCray’s showing insufficient.
• Ford v. Jackson Nat'l Life Ins. Co.: Also used to reinforce sequencing: protected activity must precede the alleged adverse action for a retaliation claim.

B. Legal Reasoning (What the Court Actually Did)

1. The court narrowed the appeal before reaching the merits

The panel first restricted the case to properly preserved issues: (a) the “retaliatory harassment” theory was barred by waiver due to failure to object to the pretrial order, and (b) the hostile work environment dismissal was unreviewable because the opening brief lacked developed argument and record citations. This sequencing reflects a strict appellate discipline: even potentially substantial Title VII theories are lost without procedural compliance.

2. Exhaustion analysis functioned as claim-triage

Before addressing discrimination and retaliation, the court identified which incidents could be used as actionable bases at all. Applying the 45-day counseling requirement and the discrete-act exhaustion rule, it excluded older, non-discrete, or un-tethered events (though it allowed earlier incidents as background).

3. Disparate treatment failed at the “inference” step due to evidentiary thinness

Under McDonnell Douglas, the court did not need to resolve the entire framework; it affirmed at the prima facie stage. The decisive point was the absence of objective, record-cited evidence that race explained any challenged action. Because McCray pursued comparator proof but identified no similarly situated non-African-American employees, she could not generate an inference of discrimination. The panel treated unsupported assertions, mis-citations, and references outside the record as incapable of creating a genuine dispute at summary judgment.

4. Retaliation failed because knowledge was not shown

Even assuming McCray engaged in protected activity during the January 24 meeting, the court held she did not produce evidence from which a jury could find Duda knew that McCray engaged in Title VII-protected opposition. The court rejected three proposed routes to knowledge: impeaching Cummings (impermissible credibility weighing), relying on temporal proximity (not evidence of knowledge), and inferring knowledge from Duda’s “get out of the weeds” phrase (at most it suggested awareness of management criticism, which is not protected activity).

C. Impact (Why This Opinion Matters)

Although designated nonprecedential, the decision is a clear, practice-shaping signal in three ways:

• Preservation is outcome-determinative: The opinion underscores that theories omitted from objections to magistrate determinations (including pretrial-order claim definitions) can be lost entirely on appeal under Morales-Fernandez v. I.N.S..
• Exhaustion will be enforced with precision in federal-sector cases: The 45-day counseling requirement and discrete-act exhaustion doctrine are applied as hard filters, limiting litigation to timely, specifically exhausted acts and leaving other allegations as mere “background.”
• Retaliation claims require proof of knowledge, not just timing: The court’s reliance on Lindsay v. Denver Pub. Schs. highlights a common failure point—plaintiffs must produce evidence that the decisionmaker knew of Title VII-protected opposition, and temporal proximity alone will not substitute for that foundational fact.