A federal judge last week allowed multiple claims to proceed against El Paso County Sheriff Bill Elder for allegedly retaliating against two employees while forbidding office staff from being “outwardly critical of me.”

Keith Duda worked at the sheriff’s office from 2006 to 2018 and his daughter, Caitlyn Duda, started as a security technician in 2014. In late 2016, the two heard comments from a female deputy accusing Lt. Bill Huffor of sexual harassment. Keith Duda subsequently reported those allegations to the department, and all parties to the lawsuit agreed that Huffor engaged in “unbecoming” conduct that resulted in a disciplinary letter.

The following year, both Dudas began perceiving retaliatory behavior against them. The office placed Caitlyn Duda on a 120-day probation for reportedly using profanity toward an inmate, even though she believed the sheriff had never disciplined other employees for such conduct. Her supervisor told her Huffor initiated the investigation.

Meanwhile, Keith Duda and another sergeant applied in mid-2017 for an open vice and narcotics unit position, but a commander later informed Duda the interviews were cancelled and the other applicant would receive the job.

When Elder ran for reelection in 2018, Keith Duda endorsed and campaigned for his opponent in the Republican primary election. “Informants” in the sheriff’s office, including Huffor, reported about the activity of Duda and others to Elder.

The county attorney’s office hired Employment Matters, LLC, a workplace investigation firm, to look into whether Keith Duda engaged in political activity while on duty. The investigator determined there was insufficient evidence to prove some allegations, while deeming it probable that Duda did offer to arrange a meeting between Elder’s opponent and another sergeant while on duty.

In the middle of 2018, the office placed Keith Duda on administrative leave following several allegations about his professional conduct and one other related to the sheriff’s race. Around this time, Elder sent an “Expectations Memo” informing employees: ”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.” (Emphasis in original.)

Elder elaborated that he viewed employees as “my staff,” who “owe institutional loyalty.”

“[I]f your head is not behind me, it is time for you to step down or maybe even step out. Leave with your integrity intact,” he wrote.

Elder fired Keith Duda in June 2018, citing instances of failing to respond appropriately to law enforcement calls and also Duda’s political activity. Both Dudas filed a federal complaint against Elder in late 2018, alleging retaliation for the initial report of sexual harassment and for Keith Duda’s subsequent political speech.

“The facts of this case establish that Keith harbored extreme hostility towards Elder and acted in ways designed to elicit discipline so that he could sue Elder for ‘retaliation,'” the county wrote in its court filing.

Retaliation claims must demonstrate an employer took an adverse action because of an employee’s protected activity. The retaliation has to tangibly affect a person’s job status, ranging from failing to promote, reassignment or even firing.

U.S. District Judge R. Brooke Jackson determined Caitlyn Duda had stated a plausible case that her letter of reprimand for the profanity incident was related to her report of misconduct allegations against Huffor.

“Overall, I find that the facts demonstrate a genuine dispute as to whether there is a causal connection between the May 2017 LOR and Caitlyn’s involvement in Lt. Huffor investigation,” Jackson wrote in an Oct. 27 opinion. “As I view the evidence, Caitlyn’s case is weak. Nonetheless I believe a reasonable jury could find that, but-for Caitlyn’s participation in the investigation, she would not have received the LOR and 120 days of probation.”

As to her father, Jackson similarly found it was possible, but not yet proven, that the office’s refusal to interview Keith Duda for the vice and narcotics position was an adverse action that had a connection to the Huffor investigation. Because Keith Duda’s removal from consideration and his daughter’s complaint to human resources about retaliation happened in relatively close proximity, Jackson allowed Keith Duda’s claim about the job opening to proceed.

About Keith Duda’s claims of retaliation related to his political speech, Jackson observed multiple other individuals provided statements about political discussions and confrontations at the sheriff’s office that did not appear to have resulted in investigations. Jackson labeled Elder’s memo as a “my way or the highway” message that could have had a chilling effect on his opposition.

“A reasonable jury could find that Keith did not violate EPSO’s policy” that prohibits political speech, Jackson wrote.

Several members of the sheriff’s office reported feeling uncomfortable or offended at alleged political comments from Keith Duda, creating a dispute about whether his statements disrupted the operation of the office. Senior assistant county attorney Nathan J. Whitney argued that they did, as it was a “personal goal” of Keith Duda’s to sue Elder.

“Keith’s speech disrupted EPSO’s efficient operations and the harmony amongst EPSO employees as proven by the statements of Keith’s coworkers,” Whitney wrote.

Because this question and others hinged on the credibility of such witnesses as Keith Duda and Elder, Jackson elected to let the free speech claims in the lawsuit proceed to trial.

“Keith Duda’s statements appear to fall within the ambit of matters of public concern. They relate not just to a personal employment grievance but to concerns about the application of EPSO policies across employees, alleged suppression of certain political views, and potential tolerance of officer misconduct,” Jackson wrote. However, a “reasonable jury could find an ulterior motive behind Keith’s decision to exercise his First Amendment rights. This question turns on credibility, a classic jury issue.”

Jackson did not believe Keith Duda established a sufficient connection between his report against Huffor and the dismissal, but did find a jury might reasonably see a link between Keith Duda’s firing and his campaign activity.

A spokesperson for Elder said the sheriff’s office does not comment on pending litigation. Attorneys for the Dudas did not respond to a request for comment. In court filings, Keith Duda denied any political speech or activity on his part while at work.

The case is Duda et al. v. Elder.