MITCHELL LINCOLN; RODNEY GEHRETT; ROBERT KING; CHERYL PECK; ROBERT STONE, Plaintiffs - Appellees,
TERRY MAKETA, in his individual capacity and in his official capacity as Sheriff of El Paso County; PAULA PRESLEY, in her individual capacity and in her official capacity as Undersheriff of El Paso County, Defendants - Appellants, and THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EL PASO; EL PASO COUNTY SHERIFF'S OFFICE; BILL ELDER; JOE BREISTER, Defendants.
from the United States District Court for the District of
Colorado (D.C. No. 1:15-CV-00423-CMA-KMT)
D. Ringel (Matthew J. Hegarty, with him on the briefs), Hall
& Evans, L.L.C., Denver, Colorado, for
Defendant-Appellant Terry Maketa.
M. Ziporin, Ashley M. Kelliher, Senter Goldfarb & Rice,
LLC, Denver, Colorado, for Defendant-Appellant Paula Presley.
T. Farry, Jr., Farry & Stock, P.C., Colorado Springs,
Colorado, for Plaintiffs-Appellees.
HARTZ, HOLMES, and BACHARACH, Circuit Judges.
BACHARACH, CIRCUIT JUDGE.
appeal grew out of the district court's denial of
qualified immunity to the former sheriff (Mr. Terry Maketa)
and undersheriff (Ms. Paula Presley) of El Paso County. The
claims were brought by three categories of subordinates: (1)
Lieutenant Cheryl Peck; (2) Sergeant Robert Stone; and (3)
Commanders Mitchell Lincoln, Rodney Gehrett, and Robert King.
In this suit, Lt. Peck, Sgt. Stone, and the three Commanders
allege retaliation for protected speech.
district court held that the subordinates' allegations
were sufficient to defeat qualified immunity at the
motion-to-dismiss stage. We disagree because the law was not
clearly established that (1) Lt. Peck's speech fell
outside of her duties as a public employee, (2) the
investigations of Sgt. Stone and his children constituted
adverse employment actions, and (3) the investigation of the
Commanders, their placement on paid administrative leave, and
their alleged humiliation constituted adverse employment
actions. Therefore, Sheriff Maketa and Undersheriff Presley
were entitled to qualified immunity and dismissal of the
The Plaintiffs' Allegations
Peck and Sgt. Stone base their retaliation claims on a scheme
by Sheriff Maketa and Undersheriff Presley to influence an
upcoming election for sheriff by smearing one of the
candidates; the Commanders base their claims on retaliation
for their prior complaints about improper workplace
practices. Because the ruling involves a motion to dismiss
for failure to state a valid claim, we start with the
plaintiffs' allegations in the complaint. See
Part III, below.
Peck's claim arises out of her statements to the media.
In 2013, Sheriff Maketa and Undersheriff Presley secretly
took an Internal Affairs document, planning to use it against
a political opponent. At the time, Lt. Peck was in charge of
the Internal Affairs Unit of the Sheriff's Office. Lt.
Peck knew that the document was missing but did not know who
had taken it. The mystery of the missing document generated
address the matter, Sheriff Maketa ordered Lt. Peck to speak
to the media and deliver a false narrative, saying that the
Internal Affairs document had been stolen by supporters of
the political opponent. Lt. Peck spoke to the media as
requested, but she did not give the story crafted by Sheriff
Maketa; she instead "spoke truthfully."
Appellant's App'x at 277. In response, Sheriff Maketa
transferred Lt. Peck to the midnight shift.
Stone's claim arises out of his political support for the
candidate opposed by Sheriff Maketa and Undersheriff Presley.
Upon learning of Sgt. Stone's support, Sheriff Maketa
• subjecting Sgt. Stone to a "criminal
investigation" into the missing Internal Affairs
document, including interrogations, two lie-detector tests,
and accusations that Sgt. Stone had stolen the document and
• ordering a criminal investigation into Sgt.
Stone's two children, both of whom were employees of the
Commanders' claims arise out of their filing of
complaints about Sheriff Maketa and Undersheriff Presley.
These complaints were filed with the Equal Employment
Opportunity Commission and the El Paso County Board of County
Commissioners. In the complaints, the Commanders alleged that
Sheriff Maketa and Undersheriff Presley had engaged in
Commanders informed Undersheriff Presley of the complaints.
Three hours later, Sheriff Maketa and Undersheriff Presley
• put the Commanders on paid administrative leave,
• confiscated their telephones, tablets, weapons,
badges, and vehicles, and
• had the Commanders escorted out of the building.
Commanders allege humiliation from the second and third
actions. And in the aftermath of the complaints, Sheriff
Maketa and Undersheriff Presley filed Internal Affairs
complaints against two of the Commanders, subjecting them to
Peck, Sgt. Stone, and the Commanders sued under 42 U.S.C.
§ 1983, alleging that Sheriff Maketa and Undersheriff
Presley had retaliated based on the exercise of protected
speech. Sheriff Maketa and Undersheriff Presley moved to
dismiss based on qualified immunity. The district court
denied the motion, and Sheriff Maketa and Undersheriff
Standard of Review
engage in de novo review of the district court's rulings
on a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), and we "accept the facts alleged in the
complaint as true and view them in the light most favorable
to the plaintiff[s]." Mayfield v. Bethards, 826
F.3d 1252, 1255 (10th Cir. 2016).
doctrine of qualified immunity protects officials from civil
liability as long as they do not "'violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.'" Mullenix
v. Luna, ___ U.S. ___, 136 S.Ct. 305, 308 (2015)
(quoting Pearson v. Callahan,555 U.S. 223, ...