A federal court dismissed the claim of a former El Paso County Sheriff’s employee who alleged that his race and his cooperation with an internal sexual harassment investigation were the reasons for his discipline.
Patrick Smith worked for the sheriff’s office for 10 years prior to his first incident involving inappropriate use of force in June 2013. The office’s internal affairs unit determined Smith violated policies while on duty at the El Paso County Jail. Although the recommendation was for Smith to lose his job, the ultimate punishment was suspension without pay and a demotion.
Smith’s disciplinary record included another reprimand for his off-duty involvement in a bar fight, and placement on administrative leave following another use-of-force investigation at the jail in 2017, court documents outlined.
Around that same time, the county’s human resources department interviewed Smith as part of a female deputy’s complaint about sexual harassment and retaliation at the office. After Smith’s placement on leave, the female deputy emailed human resources alleging that Smith “was being retaliated against for his involvement in the investigation” of her complaints and was “being discriminated against because of his race.”
Smith, who is Black, also sent an email to that effect.
At the conclusion of the investigation into the use-of-force incident, the sheriff’s disciplinary action board met and recommended he be fired, based on both the 2017 violation and Smith’s previous history. Smith instead chose to resign, according to the narrative from the parties.
Smith filed a complaint in U.S. District Court claiming a violation of the Civil Rights Act's prohibition on race-based discrimination. The defendant, Sheriff Bill Elder, contended that Smith was not subject to adverse employment action because he resigned, and that there was a lack of evidence “he was treated less favorably [than] similarly situated individuals.”
Magistrate Judge Kathleen M. Tafoya found it clear that Smith did not suffer an “actual discharge” due to his choice to resign. Smith argued instead he was a victim of “constructive discharge,” in which an employer subjects an individual to actions so adverse that they are coerced into quitting.
Tafoya rejected that contention, writing Smith “has failed to show that his working conditions were ‘so intolerable’ that he was forced to quit. For instance, there is no evidence that any supervisor encouraged Smith to quit, or actively undermined his ability to perform his job.” Putting the burden of proof into perspective, Tafoya pointed to a case in which an Iranian man’s employer disparaged his ethnicity, belittled and mistreated him, only to have the court deny his claim of constructive discharge.
Because Smith’s administrative leave did not change his pay or benefits, it was not a basis to allege discrimination, she added. Addressing Smith’s claim that his participation in the sexual harassment investigation prompted disciplinary retaliation, Elder produced affidavits from all four disciplinary board members stating they had no knowledge at the time of Smith’s involvement.
“Although it appears that Sheriff Elder and Undersheriff [Joseph] Breister did come to learn of Smith’s involvement in the...investigation, there is no evidence that either individual made a materially adverse decision as to his employment, specifically while in possession of that knowledge,” concluded Tafoya.
The case is Smith v. Elder.