Case: 21-2475 Document: 66 Filed: 04/07/2023 Pages: 134
`
`In the
`United States Court of Appeals
`For the Seventh Circuit
`____________________
`
`No. 21-2475
`JOHN M. KLUGE,
`
`BROWNSBURG COMMUNITY
`SCHOOL CORP.,
`
`Plaintiff-Appellant,
`
`v.
`
`Defendant-Appellee.
`
`____________________
`
`Appeal from the United States District Court for the
`Southern District of Indiana, Indianapolis Division.
`No. 1:19-CV-02462 — Jane Magnus-Stinson, Judge.
`____________________
`
`ARGUED JANUARY 20, 2022 — DECIDED APRIL 7, 2023
`____________________
`
`Before ROVNER, BRENNAN, and ST. EVE, Circuit Judges.
`ROVNER, Circuit Judge. John M. Kluge brought a Title VII
`religious discrimination and retaliation suit against Browns-
`burg Community School Corporation (“Brownsburg”) after
`he was terminated from his employment as a teacher for re-
`fusing to follow the school’s guidelines for addressing stu-
`dents. Brownsburg requires its high school teachers to call all
`students by the names registered in the school’s official
`
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`student database, and Kluge objected on religious grounds to
`using the first names of transgender students to the extent
`that he deemed those names not consistent with their sex rec-
`orded at birth. After Brownsburg initially accommodated
`Kluge’s request to call all students by their last names only,
`the school withdrew the accommodation when it became ap-
`parent that the practice was harming students and negatively
`impacting the learning environment for transgender stu-
`dents, other students both in Kluge’s classes and in the school
`generally, as well as the faculty. The district court granted
`summary judgment in favor of the school after concluding
`that the undisputed evidence showed that the school was un-
`able to accommodate Kluge’s religious beliefs and practices
`without imposing an undue hardship on the school’s conduct
`of its business of educating all students that entered its doors.
`The district court also granted summary judgment in favor of
`Brownsburg on Kluge’s retaliation claim. We agree that the
`undisputed evidence demonstrates that Kluge’s accommoda-
`tion harmed students and disrupted the learning environ-
`ment. Because no reasonable jury could conclude that harm
`to students and disruption to the learning environment are de
`minimis harms to a school’s conduct of its business, we affirm.
`Our dissenting colleague asserts that there are genuine issues
`of material fact regarding undue hardship but he mischarac-
`terizes the harms claimed by the school and focuses on fact
`questions that are not legally relevant to the outcome of the
`discrimination claim, in particular suggesting that a jury
`should reweigh the harms using information not known to
`the school at the time of the occurrences in issue, and not rel-
`evant to the ultimate question.
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`I.
`On summary judgment, we must construe the facts in fa-
`vor of the nonmovant, and may not make credibility determi-
`nations or weigh the evidence. Anderson v. Liberty Lobby, Inc.,
`477 U.S. 242, 255 (1986); McCottrell v. White, 933 F.3d 651, 655
`(7th Cir. 2019); Payne v. Pauley, 337 F.3d 767, 770 (7th Cir.
`2003). We therefore construe the facts in favor of Kluge.
`Brownsburg is a public school corporation in Brownsburg, In-
`diana. The Indiana Constitution requires the State’s General
`Assembly “to provide, by law, for a general and uniform sys-
`tem of Common Schools, wherein tuition shall be without
`charge, and equally open to all.” Ind. Const. art. VIII, § 1.
`School attendance is compulsory in the State by statute. Ind.
`Code § 20-33-2-4. Brownsburg is governed by an elected
`Board of Trustees. R. 120-1, at 2. At the relevant time, the cor-
`poration and school leadership included the Board President,
`Phil Utterback; the Superintendent, Dr. Jim Snapp; the Assis-
`tant Superintendent, Dr. Kathryn Jessup; the Human Re-
`sources Director, Jodi Gordon; and the principal, Dr. Bret
`Daghe. R. 120-1, at 2–3; R. 120-2, at 3; R. 113-3, at 5; R. 113-4,
`at 5. Brownsburg High School was the sole public high school
`in the district. R. 120-2, at 2.
`Brownsburg hired Kluge in August 2014 to serve as the
`sole music and orchestra teacher at the high school. R. 113-2,
`at 2; R. 120-2, at 3. In that capacity, he taught beginning, inter-
`mediate, and advanced orchestra; beginning music theory;
`and advanced placement music theory. He also assisted the
`middle school orchestra teacher in teaching classes at the mid-
`dle school. R. 120-3, at 19–20. Kluge remained employed in
`
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`that capacity until the end of the 2017–2018 academic year.
`R. 120-2, at 3.
`Prior to the start of that school year, officials at Browns-
`burg became aware that several transgender students were
`enrolled as freshmen. R. 120-1, at 3. This awareness led to dis-
`cussions among the Brownsburg leadership to address the
`needs of these students. Gordon and Drs. Snapp, Jessup, and
`Daghe reached a “firm consensus” that transgender students
`“face significant challenges in the high school environment,
`including diminished self-esteem and heightened exposure to
`bullying.” R. 120-1, at 3. According to Dr. Jessup, the Browns-
`burg leaders concluded that “these challenges threaten
`transgender students’ classroom experience, academic perfor-
`mance, and overall well-being.” R. 120-1, at 3. The group be-
`gan to discuss and consider practices and policies that could
`address these challenges.1 R. 120-1, at 3–4.
`The staff of the school first became aware of these discus-
`sions in January 2017, when administrators invited Craig Lee,
`a Brownsburg teacher and faculty advisor for the high
`school’s Equality Alliance Club, to speak about transgender-
`ism at a faculty meeting.2 R. 15-3, at 2; R. 58-2, at 1–2. At
`
`1
`The policies and practices eventually adopted by Brownsburg to
`address concerns about transgender students were not formally ratified
`by the Board, but they did operate as directives that teachers were re-
`quired to follow. We refer to them as policies for convenience.
`
`2
`The Equality Alliance Club is a student club at the school that
`meets weekly to discuss social and emotional issues affecting all students,
`including LGBTQ students. R. 58-2, at 2; R. 112-5, at 9. Attendance varied
`from twelve to forty students at any given meeting, and often included
`(continued)
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`another faculty meeting in February 2017, Lee and guidance
`counselor Laurie Mehrtens gave a presentation on what it
`means to be transgender and how teachers can encourage and
`support transgender students. R. 15-3, at 2.
`After these faculty meetings, Kluge and three other teach-
`ers approached Dr. Daghe on May 15, 2017, to speak about
`issues related to transgender students. R. 15-3, at 2; R. 113-5,
`at 6; R. 120-3, at 11. The four teachers presented Dr. Daghe
`with a seven-page letter expressing religious objections to
`transgenderism, taking the position that the school should not
`treat gender dysphoria as a protected status, and urging the
`school not to require teachers to refer to transgender students
`by names or pronouns that the teachers deemed inconsistent
`with the students’ sex recorded at birth. R. 113-1, at 26–32.
`Kluge identifies as Christian and is a member of Clearnote
`Church. R. 113-1, at 4. Kluge believes that gender dysphoria
`“is a type/manifestation of effeminacy, which is sinful.”
`R. 113-1, at 5. Kluge describes “effeminacy” as “for a man to
`play the part of a woman or a woman to play the part of a
`man and so that would include acting like/dressing like the
`opposite sex.” R. 120-3, at 6. In addition to believing that gen-
`der dysphoria itself is sinful, Kluge believes that it is sinful to
`“promote gender dysphoria.” R. 120-3, at 7. Because the
`transgender students changed their first names in order to
`“present[] themselves as the opposite sex,” Kluge believes
`
`
`transgender students. R. 120-14, at 6. Dr. Daghe described it more broadly
`as a club trying to make the culture and climate of the school the best it
`could be. R. 112-5, at 9.
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`that calling those students by their preferred names would be
`“encouraging them in sin.” R. 120-3, at 10.
`The American Psychiatric Association has a very different
`view of gender dysphoria for adolescents and adults, which
`it defines as a “marked incongruence between one’s experi-
`enced/expressed gender and assigned gender, of at least six
`months duration,” and manifested by at least two of the six
`listed criteria. Diagnostic and Statistical Manual of Mental
`Disorders, Fifth Edition, 2013 (“DSM-5”), at 452. “The condi-
`tion is associated with clinically significant distress or impair-
`ment in social, occupational, or other important areas of func-
`tioning.” DSM-5, at 453. See also Campbell v. Kallas, 936 F.3d
`536, 538 (7th Cir. 2019) (describing gender dysphoria as “an
`acute form of mental distress stemming from strong feelings
`of incongruity between one’s anatomy and one’s gender iden-
`tity”). Kluge does not agree with the DSM-5 definition of gen-
`der dysphoria. R. 120-3, at 5–6.
`At the May 15, 2017 meeting, Dr. Daghe discussed what
`he considered to be an accommodation to these teachers,
`namely, a policy that all teachers would use the names and
`pronouns recorded in the school’s official student database,
`“PowerSchool.” R. 112-5, at 5–6. The PowerSchool database
`contained names, gender markers, preferred pronouns and
`other data for all students at the school. R. 113-3, at 6; R. 113-5,
`at 4. According to Kluge, Dr. Daghe indicated that he had re-
`sisted the pressure to change the students’ names in Power-
`School but would make this change if it would resolve the
`teachers’ concerns regarding how to address transgender stu-
`dents. R. 120-3, at 12.
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`The three teachers who had signed onto Kluge’s letter ac-
`cepted Dr. Daghe’s suggested practice that they would use
`the PowerSchool names and pronouns, and indicated to Dr.
`Daghe that they would comply with it going forward.
`R. 120-3, at 12. Kluge was shocked that the three other teach-
`ers “did an about-face” but he said nothing at that time.
`R. 120-3, at 12. According to Kluge, after the meeting with all
`four teachers concluded, he went back into Dr. Daghe’s office
`and told him to “keep up the good work” of resisting the pres-
`sure of changing the names in PowerSchool. R. 120-3, at 12.
`Dr. Daghe left these meetings believing that all four teachers
`had agreed to this practice. R. 112-5, at 5–6. Kluge, however,
`believed that he and Dr. Daghe were “on the same page,” that
`he could continue to use the students’ “legal names,” and that
`“we would not be promoting transgenderism in our school.”
`R. 120-3, at 12.
`The Brownsburg leadership settled on the practice of re-
`quiring teachers to use the PowerSchool names and pronouns
`(“Name Policy”) as part of the larger plan to address the
`needs of transgender students. R. 120-1, at 3–4; R. 112-5, at 5.
`In addition to the Name Policy, transgender students were
`permitted to use the restrooms of their choice and dress ac-
`cording to the gender with which they identified, wearing
`school-related uniforms consistent with that gender. R. 112-5,
`at 5. Transgender students wishing to change their names,
`gender markers or pronouns in PowerSchool were permitted
`to do so only if they first presented two letters, one from a
`parent and one from a healthcare professional regarding the
`need for the changes. R. 120-1, at 4. Dr. Jessup explained that
`the Name Policy furthered two primary goals:
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`First, the practice provided the high school fac-
`ulty a straightforward rule when addressing
`students; that is, the faculty need and should
`only call students by the name listed in Pow-
`erSchool. Second,
`it afforded dignity and
`showed empathy toward transgender students
`who were considering or in the process of gen-
`der transition. Stated differently, the admin-
`istration
`considered
`it
`important
`for
`transgender students to receive, like any other
`student, respect and affirmation of their pre-
`ferred identi[t]y, provided they go through the
`required and reasonable channels of receiving
`and providing proof of parental permission and
`a healthcare professional’s approval.
`R. 120-1, at 4.
`A little more than a week before the start of the 2017–2018
`school year, Mehrtens (the guidance counselor) sent emails to
`several teachers, including Kluge, informing them that they
`would have a transgender student in their classrooms in the
`upcoming year. R. 120-3, at 13; R. 15-3, at 3. According to one
`email that Kluge received, the student was transitioning from
`female to male, and had changed his name and pronouns in
`the PowerSchool database. Mehrtens said:
`Parents are supportive and aware—Feel free to
`use “he” and “[student’s preferred name]”
`when communicating.
`R. 120-11, at 2 (student’s name redacted in the record). Kluge
`received two such emails, one for each of the transgender
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`students he would have in his classes that year. R. 120-3, at 13.
`At first he was shocked that the school was moving in this
`direction, but because the email contained the language “feel
`free to use,” he read the emails as “permissive, not manda-
`tory,” and planned to use the students’ “legal names.”3
`R. 120-3, at 13–14; R. 15-3, at 3.
`On July 27, 2017, the first day of classes at Brownsburg,
`Kluge met briefly with Dr. Daghe and informed him that he
`would not call the transgender students by their PowerSchool
`names and pronouns. He reiterated that he had a religious ob-
`jection to this practice. Dr. Daghe directed him to stay in his
`office and consulted the Superintendent, Dr. Jim Snapp.
`R. 120-3, at 14; R. 15-3, at 3. Later that morning, Drs. Daghe
`and Snapp met with Kluge to discuss the issue. Dr. Snapp told
`Kluge that he was required to use the names recorded in the
`PowerSchool database. Kluge explained again that it was
`against his sincerely held religious beliefs to use anything
`other than the names recorded on the students’ original birth
`certificates. Dr. Snapp then presented him with three options:
`
`
`3
`As was the case with the district court, we find Kluge’s use of the
`terms “transgender names” and “legal names” imprecise. Many transgen-
`der people change their legal names and both of the transgender students
`in Kluge’s classes did so, albeit after the school year in question. There is
`no evidence in the record regarding what name Kluge planned to use if
`transgender students changed their legal names, although much of his tes-
`timony suggests that his religious objections would remain. Although a
`person may be transgender, a name may not be, and so we will refer to the
`students’ new names as their “preferred names” or “PowerSchool names.”
`This is not to imply that this was a casual preference of the students alone;
`as we noted, the students’ parents and healthcare providers signed off on
`any changes to the names in PowerSchool.
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`comply with the Name Policy; resign; or be suspended pend-
`ing termination. When Kluge refused to comply or resign, Dr.
`Snapp suspended him pending termination and told him to
`go home. R. 120-3, at 14–16; R. 15-3, at 3.
`In the course of that July 27 meeting, Kluge told Dr. Snapp
`the name of his pastor, Dave Abu-Sara. R. 120-3, at 15–16.
`Kluge did not know who initiated the contact, but soon after
`the July 27 meeting, Kluge believed that Dr. Snapp and Abu-
`Sara spoke on the phone. According to Kluge, Abu-Sara told
`Kluge that he had asked Dr. Snapp to give Kluge the weekend
`to think about his options, and Dr. Snapp had agreed.
`R. 120-3, at 15–16. On Monday, July 31, Kluge returned to the
`school and met with Dr. Snapp and Human Resources Direc-
`tor Jodi Gordon. Dr. Snapp and Gordon reiterated that Kluge
`had to choose between complying with the Name Policy or
`termination. R. 120-3, at 17. They presented him with a memo
`and draft agreement from Dr. Daghe stating:
`You are directed to recognize and treat students
`in a manner using the identity indicated in Pow-
`erSchool. This directive is based on the status of
`a current court decision applicable to Indiana.
`You are also directed to not attempt to counsel
`or advise students on his/her lifestyle choices.
`Please indicate below if you will comply with
`this directive. This document must be returned
`to me by noon on Monday, July 31, 2017.
`_____ Yes, I will comply with this directive.
`_____ No, I will not comply with this directive.
`
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`___________________ ________________
`John Kluge, teacher Date
`cc: Personnel file
`R. 15-1.4
`Kluge then presented Dr. Snapp and Gordon with two re-
`quested accommodations: first, that he be allowed to refer to
`all students by their last names only, “like a gym coach;” and
`second, that he not be responsible for handing out gender-
`specific orchestra uniforms to students. He would treat the
`class like an “orchestra team,” he proposed. He agreed that, if
`
`4
`Kluge has never objected to the directive that he “not attempt to
`counsel or advise students on his/her lifestyle choices.” Neither party ad-
`dressed this term of the agreement in the briefing, but Dr. Snapp testified
`that Kluge requested “the ability to talk directly to students about their
`eternal destination,” which Dr. Snapp told him was not allowed. R. 112-6,
`at 6. This directive is consistent with that conversation. See also R. 120-5, at
`8 (Dr. Daghe testifying that he included that statement because Kluge’s
`“job was to teach the students, not to make sure he was letting them know
`his opinion one way or the other,” and because he “did not want one of
`my teachers counseling or advising students on their choices.”). The “cur-
`rent court decision applicable to Indiana” was likely our decision in Whit-
`aker ex rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d
`1034 (7th Cir. 2017), abrogated on other grounds by Illinois Republican
`Party v. Pritzker, 973 F.3d 760 (7th Cir. 2020), which had been issued two
`months prior to this meeting. We held there that a transgender student
`had a reasonable likelihood of succeeding on the merits of a Title IX sex
`discrimination claim based on a theory of sex-stereotyping. 858 F.3d at
`1048–50. Although the dissent asserts that nothing in the record indicates
`that Whitaker was the decision to which the school referred, Kluge never
`contested the point and instead simply argued that any suit brought by a
`student on these facts under Whitaker would be frivolous. Because we de-
`cline to address the Title IX issue, we need not address this matter further.
`
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` a
`
` student asked him why he was using last names only, he
`would not mention his religious objections to using transgen-
`der students’ first names and would explain, “I’m using last
`names only because we’re a team, we’re an orchestra team,
`just like a sports coach says, hey, Smith, hey, Jones. We are
`one orchestra team working towards a common goal.”
`R. 120-3, at 17. Dr. Snapp and Gordon agreed that this was an
`acceptable arrangement. They also agreed to assign the task
`of handing out orchestra uniforms to another person so that
`Kluge would not be required to hand students clothing that
`he believed was inconsistent with their sex recorded at birth.
`R. 120-3, at 17. To memorialize this new understanding, Gor-
`don altered the document presented to Kluge: after the first
`paragraph, she wrote, “We agree that John may use last name
`only to address students.” At the bottom of the page, she
`wrote, “In addition, Angie Boyer will be responsible for dis-
`tributing uniforms to students.” She initialed both changes.
`Kluge checked the “I will comply” line, and signed and dated
`the form. R. 15-1.
`Kluge then began to teach his regularly assigned classes
`which included two transgender students, Aidyn Sucec and
`Sam Willis.5 R. 120-3, at 20. Within a month, Dr. Daghe began
`to hear complaints about Kluge from Lee, the faculty advisor
`of the Equality Alliance Club. R. 120-2, at 4; R. 58-2, at 2–3;
`R. 120-14, at 7–8. Lee was also a member of the school’s three-
`
`
`5
`As we note below, Sam Willis did not change his name and gen-
`der marker in PowerSchool until the end of September 2017. R. 120-3, at
`20.
`
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`teacher Faculty Advisory Committee. R. 120-2, at 4. In an Au-
`gust 29, 2017 email to Dr. Daghe, Lee reported:
`I wanted to follow up regarding the pow-
`erschool/students changed name discussion at
`the Faulty Advisory as some issue[s] have
`arisen in the last few days that need to be ad-
`dressed. … There is a student who has had their
`name changed in powerschool. They are a fresh-
`man who this teacher knew from 8th grade. The
`teacher refuses to call the student by their new
`name. I see this is a serious issue and the stu-
`dent/parents are not exactly happy about it. …
`As the student said, “what more are we sup-
`posed to do?”
`R. 120-15, at 2. See also R. 120-12 (September 1, 2017 letter to
`the school from parent of student noting child’s transgender
`status and reporting problems with a teacher who uses incor-
`rect gendered language against the wishes of the parents and
`medical providers of the child, leading to confusion for other
`students on how to address the child); R. 120-13 (August 30
`through September 21, 2017 email chain between parent and
`school counselor regarding student’s transgender status, up-
`dates to PowerSchool database, and repeated problems with
`Kluge using incorrect gendered language that the parent
`characterizes as “very disrespectful and hurtful,” and which
`causes the child “a lot of distress.”). Lee also described the sit-
`uation of a student in the process of a PowerSchool name
`change, whose supportive parent asked the teacher to start
`using the new name, and the teacher refused, citing the Name
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`Policy. R. 120-15, at 2. Lee closed his email by turning the
`problem over to Dr. Daghe:
`I know that this is something that must be hard
`to deal with from your perspective. You are try-
`ing to do the right thing for your employees and
`students alike. I absolutely do not envy your po-
`sition and thus far you have been incredibly
`supportive and it means a lot. However, there is
`confusion amongst some teachers and students
`that I think needs clarification and perhaps a
`teacher or two that needs to know that it is not
`ok to disobey the powerschool rule.
`I hope this makes sense mate. Maybe me, you
`and Kat need to sit down and talk about this. I
`am not totally sure and of course I am very bi-
`ased. However, I have always admired your
`leadership and now look to you for the next
`step.
`R. 120-15, at 2–3.
`Lee also began to report to Dr. Daghe on comments he was
`hearing from students who attended the Equality Alliance
`meetings, where Kluge’s behavior became a frequent topic of
`conversation. R. 58-2, at 2–4; R. 120-14, at 7–14; R. 120-2, at 4.
`According to Lee, both Aidyn and Sam discussed during
`those meetings how Kluge was referring to them by their last
`names only, a practice they found insulting and disrespectful.
`R. 58-2, at 2; R. 120-14, at 7. Lee confirmed that Aidyn and Sam
`attributed Kluge’s last names practice to their presence in the
`classroom, and this made them feel isolated and targeted.
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`R. 58-2, at 2–3; R. 120-14, at 7–8. “It was clearly visible the
`emotional distress and the harm that was being caused to-
`wards them. It was very, very clear, and, so, that was clear for
`everyone to see but that is also what they described as well,”
`Lee testified. R. 120-14, at 7–8. When asked if it was his inter-
`pretation that Sam and Aidyn “felt as if they were being dis-
`criminated against by Mr. Kluge,” Lee replied, “I wouldn’t
`describe it so much as an interpretation. It was just very, very
`clear at the meetings to see how much emotional harm was
`being caused towards Sam and Aidyn. It was clear for every-
`one at the meetings just to see how much of an impact it was
`having on them. … [I]t was so clearly visible that I don’t feel
`like there was anything necessarily to interpret.” R. 120-14, at
`8. Lee passed these concerns onto Dr. Jessup as well.
`R. 120-14, at 8. Although Kluge asserted that he was perfectly
`compliant in the use of last names only, Lee also reported that
`students complained that Kluge would occasionally slip up
`and use first names or gendered honorifics rather than last
`names only.6 R. 58-2, at 3; R. 120-14, at 8–9.
`
`6
`In his deposition, Kluge testified, “From Day 1 I was consistent in
`using last names only and using it for all students. I didn’t target stu-
`dents.” R. 120-3, at 36. Because we must construe the record in favor of
`Kluge on summary judgment, we credit his testimony that he was per-
`fectly compliant with the Name Policy and never slipped up. However, in
`a letter to the Equal Employment Opportunity Commission, Kluge’s law-
`yer stated, “Kluge made a good faith effort to address all students by last
`names and to never ‘misgender’ students. He admits that he may have
`made occasional mistakes in referring to students he formerly called by
`their first names.” R. 120-19, at 7. In any case, we may also credit Lee’s
`statement that he conveyed to administrators that students complained
`that Kluge did slip up, not for the truth of the matter but to show the state
`(continued)
`
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`In addition to the complaints of the transgender students,
`Lee reported that he had been approached by a student who
`was not in the Equality Alliance but was in Kluge’s orchestra
`class. R. 58-2, at 3; R. 120-14, at 9. That student, who did not
`identify as LGBTQ, told Lee that Kluge’s use of last names
`made him feel incredibly uncomfortable. The student de-
`scribed Kluge’s practice as very awkward because the student
`was fairly certain that all the students knew why Kluge had
`switched to using last names, and that it made the
`transgender students in the orchestra class stand out. The stu-
`dent felt bad for the transgender students, and shared with
`Lee that other students felt this way as well. R. 58-2, at 3;
`R. 120-14, at 9. Some students believed that Kluge avoided ac-
`knowledging transgender students who raised their hands in
`class. R. 58-2, at 3; R. 120-14, at 8–9. Kluge denied doing so,
`but the evidence is undisputed that these sorts of complaints
`were reported to school administrators.
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`of mind of the school administrators receiving these reports. In addition
`to Lee’s testimony, as we discuss below, two transgender students in
`Kluge’s classes averred that Kluge sometimes used gendered honorifics or
`first names for non-transgender students. Because Kluge denies this, we
`assume Kluge’s perfect compliance for the purpose of the summary judg-
`ment motion. Kluge does not, however, contest that the students con-
`veyed such complaints to teachers and administrators, and this is relevant
`to the administrators’ state of mind. See Khunger v. Access Cmty. Health Net-
`work, 985 F.3d 565, 575 (7th Cir. 2021) (out-of-court complaints about an
`employee are admissible when offered not for their truth but to show the
`employer’s state of mind when making a termination recommendation).
`Moreover, Kluge submitted no evidence that the teachers and administra-
`tors did not honestly believe the reports that Kluge was not fully compli-
`ant.
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`The record also contains sworn statements from Sam Wil-
`lis and Aidyn Sucec memorializing their experiences in
`Kluge’s class. R. 58-1 (Willis Affidavit); R. 22-3 (Sucec Affida-
`vit). Sam averred that he knew Kluge from his participation
`in music programs in middle school. After deciding to pub-
`licly transition at the start of his sophomore year (2017–2018),
`Sam emailed the school counselor that he would be using the
`name “Samuel” and masculine pronouns going forward. His
`mother emailed Kluge directly about the change because
`Kluge had known Sam by a different name in middle school.
`Kluge did not respond to the email and Sam reported that
`Kluge referred to him as “Miss Willis” on several occasions.7
`This led to other students questioning Sam’s sex, which was
`upsetting to him. In early fall, Sam’s mother requested that he
`be allowed to wear a tuxedo for a fall concert. At that point,
`the school informed Sam’s mother about the new Pow-
`erSchool Name Policy. Sam’s parents then submitted the re-
`quired letters from themselves and Sam’s healthcare pro-
`vider, and his name and gender markers were amended in
`PowerSchool in time to get the tuxedo. According to Sam,
`Kluge then stopped calling him “Miss Willis,” but sometimes
`used gendered honorifics such as “Miss” or “Mr.” and gen-
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`7
`Although Sam did not change his name and gender markers in
`PowerSchool until late September 2017, Kluge’s use of the term “Miss Wil-
`lis” would have violated the Name Policy because of the use of the gen-
`dered honorific “Miss.” Kluge understood that his accommodation re-
`quired him to use last names only and refrain from using gendered hon-
`orifics in all of his classes, whether or not there were transgender students
`in the class. R. 120-3, at 18. Nevertheless, Kluge denies ever slipping up,
`and we credit that testimony as we discuss above.
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`dered pronouns when referring to students who were not
`transgender. Sam reported that Kluge’s last names practice
`was awkward because most students knew why Kluge had
`made the switch, contributing to Sam’s sense that he was be-
`ing targeted because of his transgender identity. Sam ex-
`plained that he felt hurt by Kluge’s treatment, and that his
`family was hurt and angry that Kluge thought he knew better
`than they did. He averred that Kluge’s actions exposed him
`to widespread public scrutiny in high school. R. 58-1.
`Aidyn Sucec, who began high school the same year that
`the Name Policy went into effect, averred that, after years of
`struggling with depression and anxiety, he was diagnosed
`with gender dysphoria in the spring of 2017. While receiving
`treatment from medical providers for that condition, Aidyn
`began to take steps to socially transition, including changing
`his name and asking others to use male pronouns to refer to
`him. He explained, “Being addressed and recognized as Ai-
`dyn was critical to helping alleviate my gender dysphoria. My
`emotional and mental health significantly improved once my
`family and friends began to recognize me as who I am.”
`R. 22-3, at 3. Prior to beginning high school, Aidyn’s mother
`spoke to a guidance counselor to discuss steps the school
`could take to ensure his safety and well-being as a
`transgender student. Aidyn’s mother and therapist subse-
`quently submitted letters to the school requesting changes to
`Aidyn’s name and gender marker in PowerSchool, and the
`change was in place at the beginning of the academic year. All
`of Aidyn’s teachers except Kluge complied with the Name
`Policy. On the first day of class, Aidyn received a folder from
`the substitute teacher covering for Kluge with his former first
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