Duda v. Elder
| Decision Date | 27 October 2020 |
| Docket Number | Civil Action No 18-cv-02890-RBJ |
| Parties | KEITH DUDA and CAITLYN DUDA, Plaintiffs, v. BILL ELDER, individually and in his official capacity as Sheriff of the El Paso County Sheriff's Office, Defendant. |
| Court | U.S. District Court — District of Colorado |
This matter is before the Court on plaintiffs' partial motion for summary judgment and defendant's motion for summary judgment. ECF Nos. 39, 42. For the reasons below, both motions are GRANTED in part and DENIED in part.
The parties do not dispute the following facts. Plaintiffs Keith Duda and Caitlyn Duda are a father and daughter. ECF No. 36 at ¶27. Keith Duda worked at the El Paso County Sheriff's Office ("EPSO") from May 8, 2006 until July 12, 2018. Id. at ¶¶26, 99. He worked as a patrol sergeant until his employment ended. ECF No. 15 at ¶7. Caitlyn Duda was hired as a Security Technician at EPSO in July 2014. ECF No. 40-2 at 1. She applied for and received a position as a Detention Specialist in July 2016 and then transferred back to a Security Technician position in June 2017. Id. at 2. Defendant William "Bill" Elder is the elected Sheriff of El Paso County. Id. at ¶¶8-11. EPSO operates under Sheriff's Elder's authority. Id. Under Colorado law defendant has exclusive control over the hiring and firing of EPSO employees. Id.
Upon taking office as sheriff on January 1, 2015, defendant promoted Bill Huffor to sergeant and appointed Janet Huffor as his Chief of Staff. Id. at ¶34. Bill Huffor is a Lieutenant at EPSO and a close friend of defendant. ECF No. 36 at ¶32. Janet Huffor is his wife. She managed defendant's first campaign for Sheriff. Id. at 33. Defendant then promoted Bill Huffor to Lieutenant in June 2016. Id. at ¶35.
On November 13, 2016 plaintiffs attended a brunch with other EPSO employees. ECF No. 36 at ¶29. A female EPSO deputy also attending that brunch made comments about Lieutenant Bill Huffor. Id. at ¶30. Those comments suggested to Keith Duda and Caitlyn Duda that Lt. Huffor had engaged in unwelcome sexual harassment towards the female employee while at work. Id. at 30, ¶¶47-48; ECF No. 15 at ¶¶30, 47-48. Keith Duda reported these allegations about Lt. Huffor to Lt. Mitchell and Lt. Deno. ECF No. 36 at ¶¶43-44. EPSO investigated the allegations against Lt. Huffor. Sgt. Bill Otto of the Professional Standards Unit (PSU) of EPSO interviewed Caitlyn Duda in November 2016 as part of the investigation. ECF No. 36 at ¶¶47-48. The investigation concluded that Lt. Huffor had engaged in conduct "unbecoming" of an EPSO employee. Id. at ¶51. On January 20, 2017 Lt. Huffor received a letter of counseling as discipline for this conduct. Id. at ¶53.
In May 2017 Caitlyn Duda was investigated for three incidents involving an inmate that occurred in late April. ECF No. 36 at ¶57. One complaint alleged that Caitlyn Duda cussed at the inmate, and another alleged that she put her hands on him. ECF No. 40-2 at 5. Based on these incidents she received a Letter of Reprimand ("LOR") on June 8, 2017 and was placed onprobation for 120 days. Id.; ECF No. 36 at ¶57. The letter was prepared by Cmdr. Rob King. ECF No. 40-8. Caitlyn Duda perceived the result as unduly harsh because, to her knowledge, EPSO had never disciplined other employees for using profanity at inmates. ECF No. 15 at ¶¶58-59. She asked her supervisor Lt. Sarkisian about her discipline. ECF No. 36 at ¶60.
At the end of May 2017, several new promotions and changes in assignments were announced at EPSO. ECF No. 40-9 at ¶8. As a result, a Sergeant position in the Metro Vice, Narcotics, and Intelligence ("VNI") Unit opened. Id. That unit is a "multi-jurisdictional task force operation." Id. The May 30, 2017 vacancy announcement included the language "[t]he selection for this position will be made from the submitted documents and after meeting with the Investigations Division/VNI chain of command." ECF No. 40-11. Two candidates—Sgt. Manzanilla and plaintiff Keith Duda—applied for the position. ECF No. 40-11 at 26:17-21. Keith Duda also discussed the role with VNI leadership and shadowed a VNI Sergeant. ECF No 36 at ¶69; ECF No. 15 at ¶¶70-71. Bureau Chief Brad Shannon, who oversaw hiring for the open position, reached out to Sgt. Manzanilla to discuss it because Sgt. Manzanilla had prior experience in the VNI unit as a detective. ECF No. 40-9 at 1-2.
On the morning of June 9, 2017 Lt. Mitchell informed Sgt. Duda and Sgt. Manzanilla that interviews for the position would be held on June 15, 2017. ECF No. 40-12 at ¶13. Sometime later Cmdr. Hatch told Lt. Mitchell to inform the candidates that the interviews were on "standby" because Keith Duda may not be moving forward. When Lt. Mitchell asked why, Cmdr. Hatch stated he was not at liberty to discuss the subject. Id. at ¶¶14-15. Lt. Mitchell called both candidates to inform them the interviews were on standby. Id. at ¶17. When speaking to Keith Duda Lt. Mitchell asked "if there was anything going on that he should beaware of," and plaintiff responded "[n]othing that I'm aware of." ECF No. 36 at ¶¶80-81. A few days later Cmdr. Hatch informed Lt. Mitchell that Keith Duda would not be moving forward in the process, that Sgt. Manzanilla would be transferred to the open VNI Sergeant position, and that the interviews should be cancelled. ECF No. 40-12 at ¶18. Cmdr. Hatch and Lt. Mitchell informed the two candidates of this decision. Id. at ¶¶19-20.
Also on June 9, 2017, Caitlyn Duda lodged a Title VII retaliation complaint against Sgt. Kinner and Sgt. Huffor. ECF No. 40-5 at ¶4. Casey Campbell, an Employment Investigation Specialist and Paralegal at the El Paso County Attorney's office, spoke with Caitlyn Duda that same afternoon. Id. at ¶5. Caitlyn Duda alleged that her former supervisor Sgt. Kinner would discipline Caitlyn regularly for behavior that other employees also engaged in. She also stated she was told that her discipline for the cussing incident was harsh because Lt. Huffor initiated the investigation. Id. at ¶¶6, 9. Campbell interviewed Caitlyn and reviewed the chain-of-command investigation regarding plaintiff's conduct. Id. at ¶12-13. On July 21, 2017 Campbell concluded there had been no discrimination or retaliation against Caitlyn Duda. Id. at ¶15.
Keith Duda also filed a retaliation complaint with the County Attorney's office. Id. at ¶¶19-20. He alleged that he did not get selected for the VNI Sergeant position because Caitlyn filed a complaint against Lt. Huffor at Keith's direction. Id. Campbell spoke with Lt. Mitchell and Cmdr. Hatch, conducted a formal interview with Keith Duda, and reviewed documents related to the VNI position. Id. at ¶¶21-24. On July 26, 2017 Campbell concluded that there had been no retaliation against Keith Duda. Id. at ¶25.
Caitlyn Duda submitted a Colorado Open Records Act ("CORA") request to the County Attorney's office in early September 2017. ECF No. 36 at ¶93. That request was denied onSeptember 11, 2018. Id. at ¶94.
In fall 2017 defendant ran for re-election as Sheriff. Id. at ¶95. In August, Colorado Springs resident Mike Angley entered the race for sheriff in opposition to defendant. ECF No. 40-34 at 8:13-18. Certain EPSO employees such as Lt. Huffor, his wife Janet Huffor, and Jackie Kirby actively supported defendant Elder. ECF No. 39-6 at 57:11-61:2. By contrast Keith Duda supported Mike Angley's candidacy. ECF No. 36 at ¶96. On October 10, 2017 Mike Angley's campaign posted an endorsement by Keith Duda on its website. The announcement stated that Keith had joined "Angley's Posse." ECF No. 36 at ¶¶98-99. Keith Duda also volunteered for Angley's campaign. He distributed campaign signs, handed out flyers door-to-door, spoke to residents on Angley's behalf, and attended campaign meetings. ECF No. 15 at ¶¶100-04.
According to Undersheriff Joe Breister, several EPSO employees with allegiance to defendant Elder would report to him about the campaign and other matters. ECF No. 39-2 at 21:1-20. These "informants" would relay statements made during briefings or over dispatch and report whether someone like Keith Duda was talking about the administration or was campaigning for Mike Angley. Id. at 21:12-22:8. Undersheriff Breister mentioned Lt. Huffor, Janet Huffor, and Jackie Kirby as among these individuals. ECF No. 39-6 at 60:4-61:2.
Sometime that fall defendant learned that Keith Duda planned to post a billboard to advertise for a website criticizing the Sheriff and his administration. ECF No. 39-7 at 141:9-145:8. The website was called "dirtyelder.com." ECF No. 39-8. It made negative allegations about defendant such as "Sheriff Bill Elder is corrupt." The billboard mockup also stated it was "[p]aid for by Deputies currently working for Bill Elder." Id.
In October 2017 Caitlyn Duda brought a purse that contained her powered-down cellphone into the EPSO jail. ECF No. 36 at ¶¶104-06; ECF No. 49-2 at 5. Though there is no EPSO policy prohibiting cell phones at work, under Standard Operating Procedure 2.03 employees working in secured jail areas must place personal cell phones in lockers or their cars. ECF No. 36 at ¶108. In response to this and other incidents, in December 2017 Caitlyn Duda received a Letter of Counseling, a Letter of Reprimand, a two-day suspension, and six months of probation. ECF No. 40-2 at 1. The letters and probation also addressed an incident in which Caitlyn Duda purportedly disparaged Sgt. Tammi Murphy Kinner. Id. at 3.
In November 2017 Mark Flynn of Employment Matters, LLC was hired by the County Attorney to investigate allegations that Keith Duda was engaging in political activity while on duty. ECF No. 40-15. For example, Sgt. Brown alleged that Keith Duda made disparaging remarks about EPSO leadership at a meeting that could be construed as political. Id. at 3. Flynn did not find these allegations proven by a preponderance of evidence. Id. at 4. Also in November 2017, the Equal Employment...
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