KEITH DUDA and CAITLYN DUDA v. Bill Elder, individually

1
PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
KEITH DUDA and CAITLYN DUDA,
Plaintiffs - Appellees,
v.
BILL ELDER, individually and in his
official capacity as Sheriff of the El Paso
County Sheriff’s Office,
Defendant - Appellant.
No. 20-1416
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:18-CV-02890-RBJ)
_________________________________
Bryan Schmid, (Nathan Whitney with him on the briefs), Office of El Paso County,
Colorado, for Defendant – Appellant.
Bradley J. Sherman, (Ian D. Kalmanowitz with him on the brief), Cornish & Dell’Olio,
P.C., Colorado Springs, Colorado for the Plaintiffs - Appellees
_________________________________
Before HOLMES, BALDOCK, and MATHESON, Circuit Judges.
_________________________________
MATHESON, Circuit Judge.
_________________________________
Bill Elder, the elected Sheriff of El Paso County, Colorado, and head of the El
Paso County Sheriff’s Office (“EPSO”), fired Keith Duda, a patrol sergeant. Mr. Duda
contends he was fired for supporting candidate Mike Angley, who challenged Sheriff
FILED
United States Court of Appeals
Tenth Circuit
July 27, 2021
Christopher M. Wolpert
Clerk of Court
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Elder’s reelection bid, and for giving an interview to a local newspaper about sexual
harassment and other misconduct at EPSO. Mr. Duda brought First Amendment
retaliation claims under 42 U.S.C. § 1983. At summary judgment, the district court
denied qualified immunity to Sheriff Elder. Exercising jurisdiction over this
interlocutory appeal under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
A. Factual History
The following relevant facts are drawn heavily from the district court’s order
because “[t]he district court’s factual findings and reasonable assumptions comprise the
universe of facts upon which we base our legal review of whether defendants are entitled
to qualified immunity.” See Cox v. Glanz, 800 F.3d 1231, 1242 (10th Cir. 2015)
(quotations omitted). Further, on review of a summary judgment order, we “view the
facts in the light most favorable to [Mr. Duda] and resolve all factual disputes and
reasonable inferences in [his] favor.” Henderson v. Glanz, 813 F.3d 938, 952 (10th Cir.
2015).
Relevant Persons
Keith Duda and Caitlyn Duda are a father and daughter. Both worked at EPSO.
Mr. Duda was a patrol sergeant from May 2006 until July 2018, when he was terminated.
Ms. Duda was a security technician and a detention specialist.
Sheriff Elder became the Sheriff of El Paso County in January 2015. Under
Colorado law, he controls hiring and firing decisions at EPSO. On taking office, he
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promoted Bill Huffor to sergeant, and he appointed Mr. Huffor’s wife, Janet, to chief of
staff. Sheriff Elder later promoted Mr. Huffor to lieutenant.
November 2016 Brunch and Aftermath
In November 2016, Mr. Duda and Ms. Duda attended a brunch with EPSO
employees. A female deputy suggested to them that Lt. Huffor had sexually harassed her
at work.
Mr. Duda reported the allegations to Lt. Shane Mitchell and Lt. Scott Deno. An
investigation concluded that Lt. Huffor had engaged in conduct “unbecoming” of an
EPSO employee, and he received a disciplinary letter. 1
Mr. Duda’s Failed Transfer
In May 2017, Mr. Duda and another sergeant applied for a new position in the
Metro Vice, Narcotics, and Intelligence Unit (“VNI”). On June 9, Mr. Duda learned he
would be interviewed several days later. Also on June 9, Ms. Duda filed an internal Title
VII complaint against Lt. Huffor and a sergeant, alleging she was frequently disciplined
for behavior for which others were not. An investigation found no discrimination or
retaliation.
Commander Richard Hatch, who ran the hiring process, informed Lt. Mitchell that
Mr. Duda’s application would not be progressing. After his interview was cancelled, Mr.
Duda filed a complaint with the county attorney alleging he was not selected because he
1 Mr. Duda does not allege that he was retaliated against in violation of the First
Amendment based on this internal complaint about sexual harassment.
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had urged Ms. Duda to file the Title VII complaint. An investigation found there had
been no retaliation.
Reelection Campaign
In fall 2017, Sheriff Elder launched his campaign for reelection. Mike Angley
entered the race to oppose Sheriff Elder.
a. Mr. Duda’s off-duty support for Mike Angley
Mr. Duda actively supported Mr. Angley, who posted Mr. Duda’s endorsement on
his campaign website. It stated that Mr. Duda had joined “Angley’s Posse.” Mr. Duda
volunteered for the campaign by distributing signs, handing out flyers door-to-door,
speaking to voters on Mr. Angley’s behalf, and attending campaign meetings.
Sheriff Elder learned that Mr. Duda planned to post a billboard advertising a
website called dirtyelder.com, which called Sheriff Elder “corrupt.” App., Vol. III
at 551. The billboard mock-up stated it was “[p]aid for by Deputies currently working
for Bill Elder.” Id.
b. Mark Flynn investigations and Mr. Duda’s on-duty political activity
In November 2017, the El Paso County Attorney hired Mark Flynn, an
independent investigator, to investigate allegations that Mr. Duda engaged in political
activities while on duty, including a sergeant’s allegation that Mr. Duda made
disparaging remarks about EPSO leadership that could be construed as political. Mr.
Flynn did not find proof of these allegations by a preponderance of the evidence.
In spring and summer 2018, Mr. Flynn conducted another investigation. A
sergeant, Jennifer Vanderpool, had alleged that Mr. Duda made negative statements about
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EPSO administration while on duty and asked her whom she and her husband were
supporting in the election for sheriff. She alleged Mr. Duda offered to arrange for her
and her husband to meet with Mr. Angley. Mr. Flynn found these allegations were
proven by a preponderance of the evidence. He also substantiated allegations that Mr.
Duda had engaged in on-duty conversations about an upcoming El Paso County
Republican Assembly.
Despite Mr. Flynn’s second investigation, the district court found a dispute of fact
as to whether Mr. Duda actually engaged in on-duty political speech in support of Mr.
Angley. Construing the facts in the light most favorable to Mr. Duda on appeal, as we
must, see Henderson, 813 F.3d at 952, we thus assume that Mr. Duda did not engage in
on-duty political speech. But we also recognize that Sheriff Elder, in reviewing Mr.
Flynn’s report, could reasonably have concluded that Mr. Duda did.
c. EPSO employees’ on-duty support for Sheriff Elder
Deputy Jennifer Arndt submitted an affidavit stating that she “heard more political
talk in [her] ten years at EPSO [from 2007 to October 2017] than [she had] heard in any
other work environment.” App., Vol. III at 570. Indeed, EPSO employees actively
supported Sheriff Elder while on duty. EPSO employees loyal to Sheriff Elder, including
Lt. Huffor, Ms. Huffor, and another employee, Jackie Kirby, regularly reported to
Undersheriff Joe Breister about campaign matters and about statements by employees
like Mr. Duda who were either critical of the EPSO administration or showed support for
Mr. Angley. Lt. Huffor also made statements supporting Sheriff Elder’s reelection and
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criticized EPSO employees for supporting other candidates. For example, he chastised
Lt. Mitchell for not attending Sheriff Elder’s campaign events.2
Mr. Duda’s On-Duty Misconduct
As part of his investigations, Mr. Flynn found that Mr. Duda had failed to respond
adequately as a patrol sergeant to critical incidents. He found Mr. Duda did not respond
properly to an active shooter and had taken too long to act when a felon was reported as
having escaped. He also found that Mr. Duda, while off duty, had called the police
dispatcher to obtain names of police officers whom he believed had committed a crime
by removing Angley campaign signs from public display.
Expectations Memo
In the summer of 2018, Sheriff Elder circulated an “Expectations Memo” to EPSO
command staff:
I expect you to be respectful and insist that other are as well.
YOU represent ME not just the Sheriff’s Office. Everything
you do and say reflects on ME, not just the Sheriff’s Office.
You are not free to start rumors, engage in side bar or closed
door discussions, or become outwardly critical of me or ANY
member of staff. I expect you to be part of the team - act like
a team - support the team - help and support your teammates.
You are a member of my staff? You owe institutional loyalty.
If you can’t handle that expectation, if your heart is not in the
requirements of this job, if your head is not behind me, it is
time for you to step down or maybe even step out. Leave with
your integrity intact. If you would rather complain behind
closed doors or thru an anonymous website, point fingers,
2 Lt. Huffor also made political statements directed at EPSO employees while off-
duty. For example, at the El Paso County Republican Party County Assembly in March
2018, he yelled at a sergeant for not being a “true supporter” of Sheriff Elder. App., Vol.
III at 553. The sergeant did not cast his ballot.
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place blame or you do not stop those who do, you are part of
the problem. People inside and outside of this organization
see it and talk about it. I hear it, see it and watch it and I am
tired of it. If you can’t or won’t recognize character issues,
morality issues, ethical issues, then check out now because
you will not survive. I will take the stripes, bars and/or stars
back.
Id. at 554 (emphasis in original).
Mr. Duda’s Termination
On July 3, 2018, Mr. Duda complained to the El Paso County Attorney that EPSO
employees, including Lt. Huffor, engaged in political activity while on duty. Shortly
after, Mr. Duda gave an interview to a Colorado Springs newspaper, The Independent,
about alleged misconduct at EPSO.
On July 11, The Independent published an article about misconduct at EPSO based
on the interview with Mr. Duda. The article detailed the sexual harassment allegations
against Lt. Huffor, Mr. Duda’s internal complaint regarding the sexual harassment, the
VNI position for which he was not selected, the retaliation complaints filed by him and
Ms. Duda, and his claims that he was falsely accused of on-duty political activity while
other EPSO employees engaged in on-duty political activity without consequence.
The following day, Sheriff Elder signed a “Notice of Intent to Terminate Mr.
Duda,” but did not deliver it. Undersheriff Breister told Mr. Duda he was under
investigation for a possible violation of confidentiality in disclosing details of internal
EPSO management to The Independent. Mr. Flynn interviewed Mr. Duda on July 13
about the article. After the interview, Mr. Duda was served an official “Notice of
Termination.”
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Sheriff Elder listed four reasons for terminating Mr. Duda: (1) Mr. Duda’s failure
to respond appropriately to three on-duty critical incidents; (2) Mr. Flynn’s investigation,
which revealed Mr. Duda had engaged in on-duty political activity; (3) Mr. Duda’s abuse
of his position to obtain information from the police dispatcher while off duty; and
(4) Mr. Duda’s work on a private painting business while on duty. Mr. Duda’s
employment ended on July 13.
B. Procedural History
Complaint
In the operative complaint, Mr. Duda brought two First Amendment claims
against Sheriff Elder. First, Mr. Duda alleged retaliation for protected speech (1) in
support of Mr. Angley (the “Angley speech”) and (2) about unlawful discrimination,
retaliation, and political retribution within EPSO, made during The Independent interview
(the “reporting speech”). Second, Mr. Duda alleged retaliation for his political affiliation
with Mr. Angley. 3
Motions for Summary Judgment
The parties both moved for summary judgment. Sheriff Elder argued he was
entitled to qualified immunity. Mr. Duda argued he was entitled to judgment on his First
Amendment claims. The district court denied both motions.
3 Mr. Duda and Ms. Duda also brought Title VII retaliation claims. Those claims
are pending in the district court and are not at issue in this appeal.
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II. DISCUSSION
Sheriff Elder challenges the denial of qualified immunity on the Angley speech
and reporting speech claims.4
A. Legal Background
We provide background on (1) qualified immunity, including our interlocutory
jurisdiction and our standard of review; and (2) First Amendment protections for public
employees.
Qualified Immunity
a. Qualified immunity standard
Persons sued under § 1983 in their individual capacity may invoke the defense of
qualified immunity. See Vette v. Sanders, 989 F.3d 1154, 1169 (10th Cir. 2021). We
must grant the defendant qualified immunity unless the plaintiff can show “(1) a
reasonable jury could find facts supporting a violation of a constitutional right, which
(2) was clearly established at the time of the defendant’s conduct.” Henderson, 813 F.3d
at 952.
4 We refer to Mr. Duda’s assertion that he was fired for speech in support of Mr.
Angley and his assertion that he was fired for speech reporting on misconduct within
EPSO as “claims” even though both derive from allegations contained in Count III of the
amended complaint. The district court and the parties treat them separately because Mr.
Duda can prevail at trial if he shows that he was fired either because of the Angley
speech or the reporting speech.
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b. Interlocutory appellate jurisdiction
This court has appellate jurisdiction to review “all final decisions of the district
courts of the United States.” 28 U.S.C. § 1291. “Orders denying summary judgment are
ordinarily not appealable final [decisions] for purposes of . . . § 1291.” Roosevelt-Hennix
v. Prickett, 717 F.3d 751, 753 (10th Cir. 2013). But “[t]he collateral order doctrine
expands the category of final (and therefore appealable) decisions to include decisions
that are conclusive on the question decided, resolve important questions separate from the
merits, and are effectively unreviewable if not addressed through an interlocutory
appeal.” Sawyers v. Norton, 962 F.3d 1270, 1281 n.9 (10th Cir. 2020) (quotations and
brackets omitted). Under this doctrine, we may review an interlocutory appeal from
“[t]he denial of qualified immunity to a public official . . . to the extent it involves
abstract issues of law.” Fancher v. Barrientos, 723 F.3d 1191, 1198 (10th Cir. 2013); see
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
“When reviewing the denial of a summary judgment motion asserting qualified
immunity, we lack jurisdiction to review the district court’s conclusions as to what facts
the plaintiffs may be able to prove at trial.” Sawyers, 962 F.3d at 1275 (quotations and
brackets omitted). We also lack jurisdiction to review whether the “plaintiff’s evidence is
sufficient to support a particular factual inference.” Fancher, 723 F.3d at 1199
(quotations omitted). “[I]f a district court concludes that a reasonable jury could find
certain specified facts in favor of the plaintiff, the Supreme Court has indicated we
usually must take them as true—and do so even if our own de novo review of the record
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might suggest otherwise as a matter of law.” Est. of Booker v. Gomez, 745 F.3d 405,
409-10 (10th Cir. 2014) (quotations omitted).
Thus, even when a defendant “attempts to characterize the issue on appeal as [the
plaintiff’s] failure to assert a violation of a constitutional right under clearly established
law,” we will decline to consider the argument if it is “limited to a discussion of [the
defendant’s] version of the facts and the inferences that can be drawn therefrom.”
Castillo v. Day, 790 F.3d 1013, 1018 (10th Cir. 2015). But we do have jurisdiction to
review whether “the district court commits legal error en route to a factual
determination.” Pahls v. Thomas, 718 F.3d 1210, 1232 (10th Cir. 2013).5
c. Summary judgment and standard of review
“The court shall grant summary judgment 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.” Fed. R. Civ. P. 56(a). We apply the “same legal standard as the district court,”
and thus “view the evidence and the reasonable inferences to be drawn from the evidence
in the light most favorable to the nonmoving party.” Schaffer v. Salt Lake City Corp.,
814 F.3d 1151, 1155 (10th Cir. 2016) (quotations omitted).
“Within this court’s limited jurisdiction, we review the district court’s denial of a
summary judgment motion asserting qualified immunity de novo.” Sawyers, 962 F.3d at
5 We also have jurisdiction to review the factual record de novo if (1) “the district
court at summary judgment fails to identify the particular charged conduct that it deemed
adequately supported by the record,” Lewis v. Tripp, 604 F.3d 1221, 1225 (10th Cir.
2010); or (2) “the version of events the district court holds a reasonable jury could credit
is blatantly contradicted by the record,” id. at 1225-26.
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1282 (quotations omitted). We may consider “the purely legal questions of (1) whether
the facts that the district court ruled a reasonable jury could find would suffice to show a
legal violation and (2) whether that law was clearly established at the time of the alleged
violation.” Id. (quotations and brackets omitted).
First Amendment Protections for Public Employees
The First Amendment provides that “Congress shall make no law . . . abridging
the freedom of speech.” U.S. Const. amend. I. As applied to the states by the Fourteenth
Amendment, the First Amendment prevents state and local governments from
“condition[ing] public employment on a basis that infringes the employee’s
constitutionally protected interest in freedom of expression.” Connick v. Myers, 461 U.S.
138, 142 (1983).
a. Garcetti and Pickering
In Garcetti v. Ceballos, 547 U.S. 410 (2006), and Pickering v. Board of
Education, 391 U.S. 563 (1968), the Supreme Court provided a framework to evaluate
First Amendment retaliation claims brought by public employees against their employers.
Courts apply the familiar five-part Garcetti/Pickering test:
(1) whether the speech was made pursuant to an employee’s
official duties; (2) whether the speech was on a matter of
public concern; (3) whether the government’s interests, as
employer, in promoting the efficiency of the public service
are sufficient to outweigh the plaintiff’s free speech interests;
(4) whether the protected speech was a motivating factor in
the adverse employment action; and (5) whether the
defendant would have reached the same employment decision
in the absence of the protected conduct.
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Helget v. City of Hays, 844 F.3d 1216, 1221 (10th Cir. 2017) (quotations omitted). The
test balances “the interests of the [employee], as a citizen, in commenting upon matters of
public concern and the interest of the State, as an employer, in promoting the efficiency
of the public services it performs through its employees.” Pickering, 391 U.S. at 568. To
prevail, a plaintiff must show all five elements. See Helget, 844 F.3d at 1225. The first
three elements concern whether the speech is protected and are “issues of law for the
court to decide.” See Trant v. Oklahoma, 754 F.3d 1158, 1165 (10th Cir. 2014). The last
two concern whether an adverse action was taken because of the protected speech and are
“factual issues typically decided by the jury.” See id.
b. Heffernan
In Heffernan v. City of Paterson, 136 S. Ct. 1412 (2016), the Supreme Court
recognized a narrow affirmative defense to a First Amendment retaliation claim when
public employees’ political activities are restricted in a neutral and constitutional
manner.6 Although the Court found the plaintiff police officer had established a First
Amendment retaliation claim, it remanded the case based on “some evidence in the
6 For this principle, the Heffernan Court cited U.S. Civil Service Commission v.
National Association of Letter Carriers, AFL-CIO, 413 U.S. 548 (1973). In Letter
Carriers, the Supreme Court upheld the Hatch Act, which generally prevents civil service
employees of the federal government from engaging in certain forms of political activity,
against a First Amendment challenge. The Court noted that the Hatch Act rested on a
judgment by Congress and the Executive Branch that “partisan political activities by
federal employees must be limited if the Government is to operate effectively and fairly.”
Id. at 564. The restrictions on federal employees’ partisan activities were “not aimed at
particular parties, groups, or points of view, but appl[ied] equally to all partisan activities
of the type described.” Id.
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record” that indicated the employer “may have dismissed [the employee] pursuant to a
. . . neutral policy prohibiting police officers from overt involvement in any political
campaign.” Id. at 1419. Specifically, the Court instructed the Third Circuit to determine
(1) “[w]hether that policy existed,” (2) “whether [the employee’s] supervisors were
indeed following it,” and (3) “whether it complies with constitutional standards.” Id.7
In sum, even if a plaintiff shows an adverse action taken because of protected
political speech—that is, the plaintiff satisfied the five Garcetti/Pickering elements—the
employer may prevail by satisfying Heffernan. When Heffernan is satisfied, “[e]ven
something as close to the core of the First Amendment as participation in political
campaigns may be prohibited to government employees.” See Waters v. Churchill, 511
U.S. 661, 672 (1994) (plurality opinion).
B. Angley Speech Claim
On Mr. Duda’s claim that Sheriff Elder terminated him for speaking in support of
Mr. Angley, the district court found a constitutional violation under the
Garcetti/Pickering test, and it found Sheriff Elder could not establish a Heffernan
defense. Finally, it concluded that terminating Mr. Duda for the Angley speech violated
clearly established law.
Sheriff Elder argues the district court erred on both qualified immunity prongs.
First, he contends (1) Mr. Duda cannot satisfy the third Garcetti/Pickering element; and
7 The Court did not explain what makes a policy comply with constitutional
standards. That part of the Heffernan defense is not relevant to this case.
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(2) he fired Mr. Duda for violating a neutral policy prohibiting on-duty political activity,
precluding a constitutional violation under Heffernan. Second, he argues the law was not
clearly established.
We find that Mr. Duda established a constitutional violation because (1) he
satisfied the third Garcetti/Pickering element as a matter of law; and (2) Sheriff Elder
cannot mount a Heffernan defense. On clearly established law, (3) we lack jurisdiction to
consider Sheriff Elder’s argument. 8
Third Garcetti/Pickering Element
On the first prong of qualified immunity, the district court found a constitutional
violation under the Garcetti/Pickering test. On the first element, it determined, and the
parties agreed, that Mr. Duda’s speech was not made pursuant to his official duties.
Though the second and third elements present questions of law, the court concluded that
factual disputes existed on the second through the fifth elements.9 On appeal, Sheriff
Elder challenges the district court’s handling of the third element only. He has therefore
8 Elrod v. Burns, 427 U.S. 347 (1976) (plurality opinion), and Branti v. Finkel,
445 U.S. 507 (1980), govern political affiliation (or association) claims. Applying the
Elrod/Branti test, the district court denied summary judgment to Sheriff Elder on Mr.
Duda’s political affiliation claim. On appeal, Sheriff Elder does not challenge the district
court’s application of the Elrod/Branti test. He has therefore waived review of whether
Mr. Duda established a constitutional violation for his political affiliation claim. See
Singh v. Cordle, 936 F.3d 1022, 1043 (10th Cir. 2019) (stating the appellant waived an
argument by failing to make it in the opening brief).
9 As explained below, the district court erred by failing to resolve the second and
third elements as a matter of law.
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waived review of the other elements. See Singh v. Cordle, 936 F.3d 1022, 1043 (10th
Cir. 2019).
a. Additional legal background
The third element of the Garcetti/Pickering test concerns “whether the
government’s interests, as employer, in promoting the efficiency of the public service are
sufficient to outweigh the plaintiff’s free speech interests.” Dixon v. Kirkpatrick, 553
F.3d 1294, 1302 (10th Cir. 2009). We have said the “only public employer interest that
outweighs the employee’s free speech interest is avoiding direct disruption, by the speech
itself, of the public employer’s internal operations and employment relationships.” Trant,
754 F.3d at 1166 (quotations omitted). This interest “is particularly acute in the context
of law enforcement, where there is a heightened interest in maintaining discipline and
harmony among employees.” Moore v. City of Wynnewood, 57 F.3d 924, 934 (10th Cir.
1995) (quotations and alteration omitted). Relevant considerations include “whether the
statement impairs discipline by superiors or harmony among co-workers, has a
detrimental impact on close working relationships for which personal loyalty and
confidence are necessary, or impedes the performance of the speaker’s duties or
interferes with the regular operation of the enterprise.” Brammer-Hoelter v. Twin Peaks
Charter Acad., 492 F.3d 1192, 1207 (10th Cir. 2007) (quoting Rankin v. McPherson, 483
U.S. 378, 388 (1987)). Although the third element must weigh in favor of the plaintiff
for the plaintiff to prevail on the First Amendment claim, the employer bears the burden
on the third element. See id.
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In analyzing the employer’s interest in avoiding disruption, different standards
apply depending on whether the adverse employment action occurred “long after” or
“soon after” the employee’s protected speech.
First, we require the employer to prove “actual disruption” when the adverse
employment action took place “long after” the employee spoke on a matter of public
concern. Bailey v. Indep. Sch. Dist. No. 69, 896 F.3d 1176, 1183 (10th Cir. 2018)
(quotations omitted).
Second, when the adverse action occurred “soon after” the employee’s protected
speech, we do not require a showing of actual disruption. See Kent v. Martin, 252 F.3d
1141, 1146 (10th Cir. 2001). Instead, when the employer’s intent in taking an adverse
action is “to avoid actual disruption,” id., we will “generally defer to a public employer’s
reasonable predictions of disruption, as long as the predictions are supported by specific
evidence,” Deschenie v. Bd. of Educ. of Cent. Consol. Sch. Dist. No. 22, 473 F.3d 1271,
1279 (10th Cir. 2007) (quotations omitted). This potential-disruption standard reflects
that “neither . . . the government, [n]or a police department in particular, have to wait for
speech actually to disrupt core operations before taking action.” Moore, 57 F.3d at 934;
see also Rock v. Levinski, 791 F.3d 1215, 1220 (10th Cir. 2015).10
10 We have not fixed precise temporal boundaries, but we have found six months
falls on the “long after” side of the line. “If there has been no actual disruption justifying
termination during the six months following an employee’s protected speech, it is
nonsensical to rely ex post facto on a ‘prediction’ of disruption to tip the balance in favor
of an employer’s interest in an efficient workplace.” Kent, 252 F.3d at 1146.
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b. Analysis
The district court found that disputes of fact precluded resolution of the third
Garcetti/Pickering element. It thus construed the disputed facts against Sheriff Elder at
summary judgment. But the court’s analysis was incomplete because this element should
“be resolved by the district court” as a matter of law. See Rohrbough v. Univ. of Colo.
Hosp. Auth., 596 F.3d 741, 745 (10th Cir. 2010) (quotations omitted). There may, of
course, be “disputed facts relevant” to this element. Id. When there are, the court should
view them “in the light most favorable to the non-moving party at the summary judgment
stage.” Id. After doing so, the district court must decide whether the government’s
interests outweigh the employee’s free speech interest to determine whether the speech is
protected as a matter of law.11
We need not remand, however, for the district court to make this legal
determination. “Our job in this appeal is to consider the legal question whether the facts
that a reasonable jury could find suffice to show a constitutional violation.” Pahls, 718
F.3d at 1232. Though the district court found genuine disputes of fact on the third
Garcetti/Pickering element, we affirm on the alternative ground that this element
supports a constitutional violation as a matter of law. See Feinberg v. Commissioner, 916
F.3d 1330, 1334 (10th Cir. 2019) (discussing our “discretion to affirm on any ground
adequately supported by the record” (quotations omitted)).
11 It was also error for the district court to find that genuine disputes of fact
established the second Garcetti/Pickering element, rather than decide that question as a
matter of law. Mr. Duda does not challenge that element on appeal.
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Taking the facts as the district court found them in the light most favorable to Mr.
Duda, we conclude that Sheriff Elder’s interests in the internal operations of EPSO did
not outweigh Mr. Duda’s free speech interests. Although we must accept, based on the
district court’s findings, that Mr. Duda did not engage in on-duty political activity, we
accept for purposes of our review that Sheriff Elder could have formed a reasonable
belief that Mr. Duda had done so based on his review of Mr. Flynn’s report. See
Heffernan, 136 S. Ct. at 1418 (“[T]he government’s reason for [taking an adverse action]
is what counts here.” (emphasis added)); Waters, 511 U.S. at 676 (noting employers are
entitled to “rely on hearsay, on past similar conduct, on their personal knowledge of
people’s credibility, and on other factors that the judicial process ignores”). Even so,
Sheriff Elder’s decision to terminate Mr. Duda was not based on a reasonable prediction
of disruption due to the Angley speech. See Deschenie, 473 F.3d at 1279.12
First, the tacit permission given to Sheriff Elder’s employees to voice political
support for him while on duty severely undermines his purported interest in firing Mr.
Duda to avoid disruption at EPSO based on his political speech. The record shows that
EPSO employees, particularly Lt. Huffor, spoke with impunity in support of Sheriff
Elder’s reelection bid while on duty. The prevalence of political speech in favor of
12 Sheriff Elder incorrectly argues the district court erred by applying an “actual
disruption” standard. Aplt. Br. at 26. The district court applied both an actual disruption
and potential disruption standard. See App., Vol. III at 579 (“I find there is a genuine
dispute as to whether [Mr.] Duda’s political speech and activity—if it even occurred—
disrupted or could potentially disrupt EPSO operations.” (emphasis added)). We need
not decide which of the two standards applies. Assuming the potential disruption
standard applies, Sheriff Elder still cannot prevail.
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Sheriff Elder shows that firing Mr. Duda for on-duty political speech was not based on a
reasonable prediction that the speech would “interfere[] with the regular operation” of
EPSO. See Rankin, 483 U.S. at 388. Rather, the record shows Mr. Duda’s termination
was based on “[v]iewpoint discrimination,” an “egregious form of content
discrimination” that occurs “when the specific motivating ideology or the opinion or
perspective of the speaker is the rationale for the restriction.” See Rosenberger v. Rector
& Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995).
Second, the record indicates that “being politically loyal to the Sheriff” was not
necessary for Mr. Duda to perform his job as a patrol sergeant. See Jantzen v. Hawkins,
188 F.3d 1247, 1253 (10th Cir. 1999). Speech restrictions on “a high-ranking deputy”
are more justifiable than on an employee who “serves no confidential, policymaking or
public contact role.” See Rock, 791 F.3d at 1221 (quotations omitted). As a rank-and-file
patrol sergeant, Mr. Duda’s “employment relationship” with EPSO leadership was not
“the kind of close working relationship[] for which it can persuasively be claimed that
personal loyalty and confidence are necessary to [its] proper functioning.” See Pickering,
391 U.S. at 570.
Third, the district court found that, at most, a couple of “employees fe[lt]
uncomfortable or offended based on [Mr. Duda’s] purported statements” in support of
Mr. Angley. App., Vol. III at 579. But there is no evidence showing that Mr. Duda’s
political speech “threatened any of the work” of EPSO or compromised morale. See
Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1333 (10th Cir. 2007). Sheriff
Elder’s contention that he fired Mr. Duda for his “purposefully disruptive behavior,”
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Aplt. Br. at 26, including his on-duty political activity, concerns the fourth and fifth
elements of the Garcetti/Pickering test. 13
In sum, Sheriff Elder has not carried his burden on the third Garcetti/Pickering
element to show that his interest in maintaining an efficient workplace, judged according
to his reasonable prediction of disruption, outweighed Mr. Duda’s free speech interest in
voicing political support for a candidate for public office.
Heffernan Defense
On appeal, as in the district court, Sheriff Elder argues he fired Mr. Duda for
violating a neutral EPSO policy prohibiting on-duty political activity, as permitted by
Heffernan. Even accepting that EPSO had a neutral policy purporting to prohibit on-duty
political activity that complied with constitutional standards, Sheriff Elder did not
“follow[] it” because he did not apply it neutrally. See Heffernan, 136 S. Ct. at 1419.
The district court found ample evidence in the record that Lt. Huffor and other
political supporters of Sheriff Elder were not punished for on-duty political activity:
 Deputy Arndt told Mr. Flynn that she “heard more political talk in my ten
years at EPSO than I have heard in any other work environment.” App., Vol.
III at 570.
13 Sheriff Elder argues the district court erred by “impos[ing] its own judgment
upon the circumstances rather than affording [Sheriff] Elder the deference to which he is
entitled as head of a law enforcement agency.” Aplt. Br. at 26. He is correct that we
defer to reasonable predictions about disruption, particularly in the law enforcement
context. But that deference derives from an employer’s ability to “articulate[] specific
concerns” rooted in proper functioning of a department. See Moore, 57 F.3d at 934-35.
Sheriff Elder’s concerns appear to be rooted in political favoritism rather than a genuine
belief about the proper functioning of EPSO.
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 Lt. Mitchell reported hearing two employees—Ms. Huffor and Ms. Kirby—
stating their support for Sheriff Elder’s reelection while on duty. Id.
 Lt. Mitchell reported hearing Lt. Huffor frequently engage in political talk at
work, including expressing support for Sheriff Elder’s campaign and chastising
employees for supporting other candidates. Id.
 Lt. Huffor chastised Lt. Mitchell at work for not attending political events held
for Sheriff Elder. Id.
 Lt. Huffor yelled at Sgt. Mike Pitt at work and accused him of not being a “true
supporter” of Sheriff Elder. Id.
The record shows Sheriff Elder allowed his supporters to engage in political
speech on his behalf while on duty, but he punished Mr. Duda for supporting a political
rival. Rather than apply a speech-restriction policy neutrally, Sheriff Elder engaged in
viewpoint discrimination, which violates the core of the First Amendment. See Reed v.
Town of Gilbert, 576 U.S. 155, 163 (2015). Because Sheriff Elder did not apply the
no-political-speech policy neutrally (assuming it existed), he cannot prevail under
Heffernan.
Fighting this straightforward conclusion, Sheriff Elder argues “the Policy is
unquestionably neutral because it applies equally to all employees, regardless of their
political leanings or affiliations.” Aplt. Br. at 23. His counsel insisted at oral argument
that Heffernan requires only that a policy is neutral on its face and that it need not be
neutrally applied to all. See Oral Arg. at 2:38-4:22.
Heffernan refutes Sheriff Elder’s argument. The Supreme Court remanded in
Heffernan for the Third Circuit to consider whether a neutral policy prohibiting overt
involvement in a political campaign “existed” and “whether Heffernan’s supervisors
were indeed following it.” Heffernan, 136 S. Ct. at 1419 (emphasis added). Sheriff
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Elder’s argument ignores the requirement that supervisors actually follow the neutral
policy by applying it equally to all.
The district court applied Heffernan properly.
No Jurisdiction to Review Clearly Established Law
On the clearly established law prong of qualified immunity, Sheriff Elder argues
that not “every reasonable official would have known that terminating a sheriff’s deputy
for multiple policy violations, including violation of a neutral and constitutional policy
prohibiting on-duty political activity, confirmed by an independent investigation, would
contravene the First Amendment.” Aplt. Br. at 18 (quoting App., Vol. II at 428). We
lack jurisdiction to consider Sheriff Elder’s argument because he effectively “dispute[s]
the facts alleged by the plaintiff” rather than raising a “legal challenge[] to the denial of
qualified immunity based on those facts.” Henderson, 813 F.3d at 948 (quotations
omitted).
The district court denied qualified immunity to Sheriff Elder because it found that
Jantzen v. Hawkins, 188 F.3d 1247 (10th Cir. 1999), provided clearly established
applicable law. In that case, three plaintiffs worked in a sheriff’s office and actively
campaigned for the incumbent sheriff’s opponent. Id. at 1250. They were fired after the
sheriff won reelection. Id. We denied qualified immunity to the sheriff because he
“should have known that it would be unconstitutional to terminate [the plaintiffs] for
affiliating with and/or believing in a particular candidate.” Id. at 1259.
Our interlocutory jurisdiction would permit consideration of the clearly
established law question of whether “the facts that the district court ruled a reasonable
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jury could find,” taken in the light most favorable to the plaintiff, show a violation of
clearly established law under Jantzen. See Sawyers, 962 F.3d at 1282. Usually,
“[w]hether a constitutional right was clearly established at the time an alleged violation
occurred is a quintessential example of a purely legal determination fit for interlocutory
review.” Fancher, 723 F.3d at 1200 (quotations omitted). But that jurisdiction is
premised on our accepting “the facts we must assume to be true at this stage of the
proceedings.” See id.
On appeal, Sheriff Elder argues that Jantzen is distinguishable from his version of
the facts. He contends Jantzen “did not involve the application of a policy prohibiting
on-duty political activity or an independent investigation confirming such a policy
violation and other instances of misconduct.” Aplt. Br. at 21. As discussed above, the
district court found that Sheriff Elder did not neutrally apply a policy prohibiting on-duty
political activity. Further, the court found a genuine dispute of fact on the fourth element
of Garcetti/Pickering as to “whether the policy was neutral or uniformly applied,” and on
the fifth element it found “a jury could also reasonably conclude that [Mr. Duda’s]
protected speech did motivate [Sheriff Elder] to fire him.” App., Vol. III at 581, 583.
Rather than accept these facts, Sheriff Elder’s clearly-established-law argument implicitly
disputes them.
Sheriff Elder does not present an argument based on “the facts we must assume to
be true at this stage of the proceedings.” See Fancher, 723 F.3d at 1200. We thus lack
jurisdiction to consider Sheriff Elder’s clearly-established-law argument, which is “an
intertwining of disputed issues of fact and cherry-picked inferences, on the one hand,
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with principles of law, on the other hand.” McKenney v. Mangino, 873 F.3d 75, 84 (1st
Cir. 2017) (declining to exercise jurisdiction over a fact-bound clearly-established-law
argument). He has otherwise waived any jurisdictionally appropriate challenge to the
district court’s clearly-established-law holding because he has not made one. See
Sawyers, 962 F.3d at 1286.14
In sum, we lack jurisdiction where, as here, the defendant-appellant’s argument “is
limited to a discussion of [his] version of the facts and the inferences that can be drawn
therefrom.” Castillo, 790 F.3d at 1018.
* * * *
We affirm the district court’s denial of qualified immunity to Sheriff Elder on Mr.
Duda’s Angley speech claim. The district court did not err in finding a constitutional
violation. We lack jurisdiction to consider Sheriff Elder’s fact-bound challenge to the
district court’s clearly-established-law holding.
C. Reporting Speech Claim
Applying the Garcetti/Pickering test, the district court found a constitutional
violation on the reporting speech claim. It further determined the applicable law was
clearly established.
On appeal, Sheriff Elder does not contest there was a constitutional violation.
Instead, he argues no law clearly established it was unconstitutional to terminate Mr.
14 We thus need not determine whether the facts, as the district court found them
and construed in the light most favorable to Mr. Duda, show a violation of clearly
established law under Jantzen, or any other case.
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Duda for the reporting speech. He contends the district court incorrectly relied on Wulf v.
City of Wichita, 883 F.2d 842 (10th Cir. 1989), in which we found for the plaintiff, rather
than Woodward v. City of Worland, 977 F.2d 1392 (10th Cir. 1992), and Lytle v. City of
Haysville, 138 F.3d 857 (10th Cir. 1998), in which we found for the defendants.
Legal Background
We provide background on (a) Wulf, (b) Woodward, and (c) Lytle.
a. Wulf
Mr. Wulf was a Wichita police officer. Wulf, 883 F.2d at 846. He was active in
the Fraternal Order of Police (“FOP”). Id. at 847. After the relationship between the
police chief and the FOP became strained, Mr. Wulf sent a letter to the Attorney General
of Kansas requesting an investigation into alleged misconduct at the Wichita Police
Department. Id. at 847-50. The letter alleged that police employees were pressured to
quit their FOP memberships; the police chief withheld prosecution for violations of liquor
and gambling laws while taking drastic measures to address an FOP bachelor party
involving similar conduct; the chief violated department policies concerning the use of
municipal funds; and there had been “[g]ross misconduct on the part of a staff member in
the sexual harassment of a subordinate employee.” Id. at 849-50. The letter provided
“specific instances of misconduct” to support these allegations. Id. at 850. The chief saw
a copy of the letter, as did the Attorney General. Id. at 850-51. After no investigation
commenced, Mr. Wulf shared a copy of the letter with a local newspaper, which
published a story on the allegations. Id. at 851-52. Mr. Wulf was terminated. Id. at 853.
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We affirmed the judgment on Mr. Wulf’s First Amendment retaliation claim. We
said he had carried his burden to establish the speech was on a matter of public concern
because the letter “alleged interference with the right of supervisory police officers to
join the FOP; unfair treatment of the FOP private club vis-à-vis other private clubs;
misappropriation and misuse of public funds; and sexual harassment of one officer by a
supervisor.” Id. at 857. We noted that “[a]llegations of sexual harassment have been
found to involve matters of public concern.” Id. at 860.
b. Woodward
In Woodward, the plaintiffs were three female law enforcement employees who
complained to their departmental supervisors that officers had sexually harassed them.
977 F.2d at 1394. In their lawsuit, they alleged they were retaliated against for their
complaints. Id.
We granted qualified immunity to the defendants on the plaintiffs’ First
Amendment retaliation claim. We first found the plaintiffs’ speech was not on a matter
of public concern because “the thrust of the . . . speech was that they personally were
being subjected to sexual harassment and they wanted it to stop.” Id. at 1403-04. Neither
“the purpose [n]or substance of the complaints [was] to assert that the sexual harassment
prevented the [department] from properly discharging its official responsibilities.” Id.
at 1404. We found the “speech was calculated to redress personal grievances” rather than
to further “a broader public purpose.” Id. at 1403.
Though the Supreme Court’s decision in Connick v. Myers, 461 U.S. 138 (1983),
recognized that some speech “on internal employment conditions” could be “regarded as
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pertaining to a matter of public concern if it addresses important constitutional rights
which society at large has an interest in protecting,” we found “no case holding that
speech similar to that made by Plaintiffs pertained to a matter of public concern.”
Woodward, 977 F.2d at 1404.
c. Lytle
Mr. Lytle was a police officer in Haysville, Kansas. Lytle, 138 F.3d at 860. He
became convinced that his fellow “officers committed second-degree murder by failing to
render emergency aid to the victim of a police shooting.” Id. He gave a statement under
oath to the attorney of the victim’s widow. Id. at 861. Mr. Lytle did not report his
misgivings to the police chief. Id. at 861-62. He did testify before a grand jury, and
spoke to a local newspaper reporter. Id. at 862. After the article was published,
department morale “decreased significantly,” other officers “distrusted Mr. Lytle and
refused to speak with him,” and the charges “undermined public trust in the Department,
making law enforcement more difficult.” Id. After reading Mr. Lytle’s account in the
paper, the chief investigated his allegations. Id. Finding them unsupported, the chief
terminated Mr. Lytle, citing breach of the department’s confidentiality rules. Id.
We affirmed the grant of summary judgment to the defendants on the First
Amendment retaliation claim. We noted the import of Mr. Lytle’s whistleblower status
was “substantially diminished by [his] failure to pursue his allegations within the
Department and by the unreasonableness of his beliefs about government wrongdoing.”
Id. at 868. We found “Mr. Lytle’s limited interests [we]re far outweighed by the
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Department’s interest in maintaining confidentiality and avoiding workplace disruption.”
Id.
Analysis
The district court denied qualified immunity to Sheriff Elder on the reporting
speech claim, finding Wulf clearly established the law. We affirm because Wulf is
substantially similar to the facts of this case. Under Wulf, it was “sufficiently clear that
every reasonable official [in Sheriff Elder’s position] would have understood” that firing
Mr. Duda based on his speech reporting misconduct at EPSO to The Independent was
unconstitutional. See Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam) (quotations
omitted). The following reasons support this conclusion.
First, as the district court found, Mr. Duda “was not himself harassed but instead
spoke out about alleged sexual harassment to comply with policy and out of concern for
EPSO culture and practices.” App., Vol. III at 589. After reporting Lt. Huffor’s alleged
sexual harassment internally, Mr. Duda reported Lt. Huffor’s sexual harassment of the
female EPSO deputy to The Independent. Thus, in both Wulf and this case, the
allegations of sexual harassment concerned a “broader public purpose” about misconduct
within the department rather than “personal grievances.” See Woodward, 977 F.2d
at 1403.
Second, in both Wulf and this case, the protected speech that allegedly gave rise to
the termination was made to a local reporter.
Third, as in Wulf, Mr. Duda’s speech to The Independent concerned a wide range
of alleged misconduct at EPSO, including sexual harassment. He also reported on
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political favoritism at EPSO for Sheriff Elder’s political supporters and the singling out
of Mr. Duda.
Because in both Wulf and this case the plaintiffs were terminated after reporting to
a local newspaper about misconduct within a law enforcement agency, including sexual
harassment directed at someone other than the plaintiff, there is “substantial
correspondence between the conduct in question” and Wulf, defeating qualified immunity
for Sheriff Elder. See Cummings v. Dean, 913 F.3d 1227, 1240 (10th Cir. 2019)
(quotations omitted). Sheriff Elder’s arguments to the contrary are without merit.
First, Sheriff Elder argues this case resembles Woodward more than Wulf because
Mr. Duda’s report of alleged sexual harassment was made for purposes of an internal
investigation. But although Mr. Duda originally reported Lt. Huffor’s alleged sexual
harassment internally, his speech to The Independent led to his termination.
Second, Sheriff Elder contends that Lytle parallels the facts of this case because,
“[c]ontrary to the district court’s finding, the undisputed fact established that [Mr. Duda],
through his attorney, sent a letter to the El Paso County Attorney asking that other
deputies be investigated for alleged on-duty political activity less than forty-eight hours
before he was interviewed for the Independent news article.” Aplt. Br. at 28.
Sheriff Elder’s invocation of Lytle is misplaced. He focuses on the fact that only
48 hours elapsed between Mr. Duda’s letter to the El Paso County Attorney asking for
EPSO employees to be investigated for alleged on-duty political activity and his
interview with The Independent. But The Independent article included not just details
about Sheriff Elder’s alleged unequal application of the EPSO policy prohibiting on-duty
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political speech, but also reports about sexual harassment and other malfeasance at
EPSO. “It is clear that only a portion of a communication need address a matter of public
concern.” Wulf, 883 F.2d at 860 (quoting Brawner v. City of Richardson, 855 F.2d 187,
192 (5th Cir. 1988)). Here, Lt. Huffor’s alleged sexual harassment was on a matter of
public concern, and more than a year elapsed between Mr. Duda’s internal report about it
and The Independent interview.
Here, Wulf placed the “constitutional question beyond debate.” See Ashcroft v.
al-Kidd, 563 U.S. 731, 741 (2011). It put Sheriff Elder 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. Thus, Wulf—and not Lytle or Woodward—
governs this case. We affirm the denial of qualified immunity to Sheriff Elder on the
reporting speech claim.
III. CONCLUSION
We affirm the district court’s denial of qualified immunity to Sheriff Elder.15
15 We grant Sheriff Elder’s motion to supplement the appendix.
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