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Duda v. Elder.

No. 20-1416.  D.Colo. Judge Matheson. First Amendment Retaliation—42 USC § 1983—Summary Judgment—Qualified Immunity.

July 26, 2021

Plaintiff worked as a patrol sergeant with the El Paso County Sheriff’s Office (EPSO). In 2017, defendant Sheriff Elder launched his reelection campaign, and plaintiff actively supported another candidate, Angley. Plaintiff also gave an interview to a local newspaper about sexual harassment and other misconduct at EPSO. Plaintiff was terminated in July 2018.

Plaintiff brought two First Amendment retaliation claims under 42 USC § 1983, alleging retaliation for protected speech in support of Angley and for communicating about malfeasance at EPSO to the local newspaper. The parties moved for summary judgment, with defendant arguing that he was entitled to qualified immunity. The district court denied both motions.

On appeal, defendant argued that the district court erred in denying his summary judgment motion. A qualified immunity defense must be granted unless plaintiff can show (1) a reasonable jury could find facts supporting a violation of a constitutional right that (2) was clearly established at the time of the defendant’s conduct. The First Amendment prevents state and local governments from conditioning public employment on a basis that infringes an employee’s constitutional right of freedom of expression. The US Supreme Court established a five-part test to evaluate First Amendment retaliation claims brought by public employees against their employers. A plaintiff must show all five elements. Even if a plaintiff satisfies these elements, the employer may prevail by proving the affirmative defense that public employees’ political activities are restricted in a neutral and constitutional manner.

Defendant challenged the district court’s handling of only the third element of the five-part test—whether the government’s interests as an employer in promoting the efficiency of the public service are sufficient to outweigh the plaintiff’s free speech interests. Here, defendant’s interests in the internal operations of EPSO did not outweigh plaintiff’s free speech interests because (1) defendant gave tacit permission to his employees to voice political support for him while on duty, which severely undermined his purported interest in firing plaintiff to avoid disruption at EPSO based on his political speech; (2) being politically loyal to defendant was not necessary for plaintiff to perform his job; and (3) there is no evidence that plaintiff’s political speech threatened EPSO work or compromised morale. Accordingly, defendant failed to satisfy the third element.

As to the affirmative defense, defendant argued that he fired plaintiff for violating a neutral EPSO policy prohibiting on-duty political activity. However, even assuming that EPSO had a neutral policy that complied with constitutional standards, defendant did not follow it because he did not apply it neutrally by allowing other employees to engage in political speech on his behalf while on-duty.

On the second prong of the qualified immunity defense regarding the on-duty political activity policy, defendant argued that not every official would have known that terminating a deputy for policy violations, including those for violating a neutral and constitutional policy prohibiting on-duty political activity, would contravene the First Amendment. The Tenth Circuit lacked jurisdiction to consider this argument because it disputed plaintiff’s alleged facts rather than raised a legal challenge based on those facts. As to the reporting speech claim, clearly established law in the Tenth Circuit put defendant on notice that firing an employee for reporting to a local newspaper about sexual harassment and other misconduct at a law enforcement department is unconstitutional.

The denial of qualified immunity was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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