Employees Seek Damages from Former El Paso County Sheriff

Maketa, Presley, and El Paso County Board of County Commissioners to be sued by Sheriff’s Office Employees

I was recently asked to provide some prospective on a lawsuit that was filed in federal district court alleging first amendment violations against the former Sheriff of El Paso County, Terry Maketa, former Undersheriff, Paula Presley, as well as, the El Paso County Board of County Commissioners. It brings up a lot of interesting legal issues regarding federal civil rights complaints that I think are important to discuss.

The Law the Action is Brought Under

The lawsuit is brought under 42 U.S.C. § 1983. Section 1983, or civil actions for deprivation of rights, is an amended version of the Civil Rights Act of 1871. The statute provides that:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law…”

Thus, the two main requirements for a § 1983 claim are (1) “state actors” and (2) “acting under the color of law.” “Color of law” has been defined by the United States Supreme Court as the “[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” U.S. v. Classic, 313 U.S. 299, 326 (1941).

So, if Maketa and Presley are the state actors, why the Board of County Commissioners? Well, in the Supreme Court case of Monell v. Dep’t of Social Services of the City of New York, the Court ruled that an individual can sue governing bodies directly under § 1983 if the alleged unconstitutional action is executed through a policy, ordinance, regulation, or decision officially adopted by that body’s officers. Monell v. Dep’t of Social Services of the City of New York, 436 U.S. 658, 690 (1978). A policy can be made by a “final decisionmaker” of a governing body without it being a legislated policy.

What is “final policymaking authority?” According to the 10th Circuit (Colorado’s federal circuit), one can determine if an individual is a final policymaker by:

(1) whether the official is meaningfully constrained “by policies not of that official’s own making;” (2) whether the official’s decision are final — i.e., are they subject to any meaningful review; and (3) whether the policy decision purportedly made by the official is within the realm of the official’s grant of authority.

Randle v. City of Aurora, 69 F.3d 441, 447-49 (10th Cir. 1995).

Protected Speech for Public Employees

The plaintiffs in this case are alleging retaliation by Maketa and Presley against them for exercising the right to free speech. What qualifies as protected speech? As you probably already know, the First Amendment to the Constitution provides for the right to free speech. This right is provided in the public arena, not the private arena, as the Bill of Rights only applies to governmental actions. Therefore, those who work in the federal, state or local governments are public employees, and have a right to exercise free speech. Thus, a government employer must follow the principles set forth in the First Amendment.

However, the United States Supreme Court has limited the type of speech which qualifies as protected. There is a balancing test between the employee’s free speech right and the employer’s efficiency interests. According to the article “Balancing Act: Public Employees and Free Speech” by David L. Hudson, Jr., “[b]ecause public employers must maintain efficient operation of the people’s business … it is acceptable for government employers to discipline employees for speech that undermines the integrity of the office or disrupts morale.”

The pivotal case concerning free speech and public employees is Pickering v. Board of Education.   In that case the Supreme Court ruled that a public school teacher’s statements regarding the school board were protected speech, and he had a right to exercise his free speech “on issues of public importance.” Thus, that speech could not be the reason for firing him.

Mr. Hudson’s article goes on to state that First Amendment claims tend to fall into one of the following general categories:

  1. A public employee is fired because of speech or expressive conduct that the employer claims is disruptive to the efficient operation of the workplace;
  2. A public employee contends that he or she has suffered an adverse employment action (dismissal, demotion, etc.) in retaliation for First Amendment-protected conduct; or
  3. A public employee is fired because of political patronage — that is, for not belonging to his or her boss’s political party.

Personal or Public Concern?

Accordingly, in a § 1983 case involving protected speech of a public employee, the court is concerned with whether or not the speech “touches a matter of public concern.” Therefore, the court must decide if the plaintiff is speaking as an employee or as a citizen. It is only protected if the speech is as a concerned citizen. See Buazard v. Meridith, 172 F.3d 546 (8th Cir. 1999). The court must then decide if the employee’s free-speech outweighs their employer’s efficiency interests.

A court looks at the following when conducting the balancing test of employee rights vs. employer efficiency:

  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.”

Dixon v. Kirkpatrick, 553 F.3d 1294, 1301–02 (10th Cir. 2009).

Relevant case law out of the 10th Circuit has stated that in order to be protected, the speech should pertain to a public agency “discharging its governmental responsibilities” and not speech concerning “internal personnel disputes and working conditions.” See David v. City and County of Denver, 101 F.3d 1344, 1355 (10th Cir. 1996). In David, the employee had filed an EEOC charge regarding sexual harassment, and the court stated that was not protected speech as it did not address a widespread practice. However, other circuits have disagreed with this logic as the only method as to whether a complaint is of public concern. Part of the Maketa lawsuit concerns protected speech regarding EEOC charges.

Another 10th Circuit case, Eisenhour v. Weber County, discussed whether media comments are protected speech. One of the plaintiffs in the Maketa case is alleging violations of her free speech through media comments. In this case, the court must consider the speaker’s motivation. The speech must have a broader purpose and not be only “calculated to redress personal grievances.” See Starrett v. Wadley, 876 F.2d 808, 816 (10th Cir. 1989). The speech can have both a broader purpose and personal, as long as there is a broader purpose.

Elements to Prove Retaliation Claim in a Section 1983 Action

The complaint against Maketa alleges retaliation for exercising First Amendment rights. For a retaliation claim, the plaintiff must prove that:

  1. Defendant failed to promote, terminated, or constructively discharged the plaintiff, and
  2. Plaintiffs protected activity was a motivating factor in defendant’s decision.

However, the plaintiff is not required to prove that the protected activity was the sole motivation, or even the primary motivation, for defendant’s decision. A court will never consider the retaliation portion if it is not decided that the speech is protected.


In the lawsuit against Maketa, Presley, and the County Board of Commissioners, the plaintiffs are asking for compensatory and punitive damages. Compensatory damages, or actual damages, consist of economic (objective) and non-economic (subjective) damages. Sometimes legislation puts caps on the amount of damages a person can receive. This can differentiate between federal and state courts. In this matter, there is no cap for compensatory damages in federal section 1983 claims. For reference, Colorado has a damage cap for non-economic compensatory damages. See C.R.S. § 13-21-102.5. In most cases the cap is set at $250,000.

Then there are also punitive damages, or damages to punish the other party. In a § 1983 action, a plaintiff can be awarded punitive damages only against an individual, not against the government. The defendant must either have an evil motive or intent, or reckless or callous indifference to the plaintiff’s federally protected rights. Smith v. Wade, 461 U.S. 30, 56 (1983).

Colorado allows for punitive damages in cases of fraud, malice, or where there is “willful and wanton conduct.” The damages cannot exceed the amount of actual damages. However, a court may increase any award for punitive damages in some cases, but that amount cannot exceed three times the amount of actual damages. See C.R.S. § 13-21-102.

Whatever the outcome of the lawsuit against Maketa, Presley, and the El Paso County Board of Commissioners, it is clear that constitutional issues are important aspects of the law, and are especially relevant today.

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