The Colorado Springs Gazette final

Lawsuit against sheriff can proceed

Ex-employees allege retaliation for expressing views

BY MICHAEL KARLIK michael.karlik@coloradopolitics.com

A lawsuit against El Paso County Sheriff Bill Elder will move forward after a federal appellate court in Denver ruled Tuesday there is “ample evidence” that he allowed allies in the Sheriff’s Office to speak freely about politics, while punishing an employee who supported his election rival. Former patrol sergeant Keith Duda and his daughter, security technician Caitlyn Duda, sued Elder after the sheriff fired Keith Duda in July 2018. The suit claims Keith Duda was fired over

support for Elder’s primary election opponent, Mike Angley, and for his interview with a local publication about discrimination and political retribution within the Sheriff’s Office.

After a lower court in November allowed the Dudas’ claims to proceed to trial, Elder turned to the U.S. Court of Appeals for the 10th Circuit. On Tuesday, a three-judge appellate panel found the allegations sufficiently demonstrated a constitutional violation, because Elder did not neutrally enforce the policy against on-duty political activity in Keith Duda’s case.

“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,” wrote Judge Scott M. Matheson Jr. in the Tuesday opinion.

In their federal complaint, the Dudas alleged that Keith Duda, who worked for the El Paso County Sheriff’s Office from 2006 through July 2018, reported Lt. Bill Huffor after hearing allegations that he sexually harassed a deputy. It was the first of several events that led the Dudas to conclude they were being retaliated against.

After Duda was passed over for a transfer position, he complained that it was related to Caitlyn Duda’s filing of an internal grievance against Huffor. Caitlyn Duda also claimed Huffor singled her out for discipline in return.

Then, after Elder launched his reelection campaign in 2017, Keith Duda publicly supported Angley and volunteered for his campaign. Elder allegedly learned Duda planned to back a billboard advertising the website “dirtyelder.com,” and hired an independent investigator to look into Duda’s political activities while on duty.

The allegations against Duda included that he talked to a sergeant on duty about the election and spoke negatively about the Sheriff ’s Office administration.

In summer 2018, Elder released a memo warning command staff that they “owe institutional loyalty,” and should leave their jobs “if your head is not behind me.”

“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,” Elder wrote.

Days before his termination, Duda gave an interview to the Colorado Springs Independent discussing the sexual harassment allegation against Huffor and being targeted for his political activity. Two days after the interview published, Elder terminated Duda for other job-related misconduct.

U.S. District Court Judge R. Brooke Jackson found there were a number of disputed factual issues in the lawsuit that hinged on the parties’ credibility. As such, he elected to send several of the Dudas’ claims to a jury.

Specifically, there was “ample evidence in the record,” the appellate court noted, that allies of Elder were not punished for on-duty political activity, despite the policy. One deputy attested that she “heard more political talk in my 10 years at (the agency) than I have in any other work environment.” A lieutenant reportedly heard Huffor and other employees express support for Elder at work without consequences.

“Whether you like it or not, the district court found that a reasonable jury could find that this policy was not even-handedly applied and was not neutral,” Judge

Jerome A. Holmes, a member of the appellate panel, told an attorney for Elder during oral argument.

In deciding whether government employers can restrict workers’ speech, courts weigh the disruptive nature of such speech to the organization. The 10th Circuit panel determined Elder’s termination of Duda was not reasonably related to fears of workplace disruption. The judges ruled that because other employees spoke about the sheriff’s race on the job, Duda’s firing was related to his views, and not his conduct.

There was “no evidence showing that Mr. Duda’s political speech ‘threatened any of the work’ ... or compromised morale,” Matheson explained.

Elder asserted he should receive qualified immunity for his actions. Qualified immunity is a judicial doctrine that shields government employees from liability unless they violate a clearly established legal right. Something becomes clearly established typically when a previous court decision has declared it so, in a case with similar circumstances.

In determining whether to apply qualified immunity, the panel rejected Elder’s reliance on a 1992 decision from the 10th Circuit, Woodward v. Worland. There, three police dispatchers complained about sexual harassment and filed suit, alleging they subsequently experienced retaliation. The court granted the officers and police supervisors qualified immunity, finding the dispatchers’ complaints were not a matter of public concern, and served to “redress personal grievances.”

The lower court and the 10th Circuit agreed the facts of the Dudas’ case were similar to a 1989 decision, Wulf v. Wichita, in which a police officer wrote to the Kansas attorney general about misconduct within the department.

Neither attorneys for the Dudas nor the Sheriff ’s Office responded to emails seeking comment.

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2021-07-28T07:00:00.0000000Z

2021-07-28T07:00:00.0000000Z

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The Gazette, Colorado Springs