Lincoln v. Maketa
880 F.3d 533
10th Cir.2018Background
- Plaintiffs: Lt. Cheryl Peck, Sgt. Robert Stone, and Commanders Mitchell Lincoln, Rodney Gehrett, and Robert King sued Sheriff Terry Maketa and Undersheriff Paula Presley under 42 U.S.C. § 1983 for alleged First Amendment retaliation.
- Core facts: an Internal Affairs document went missing; Maketa/Presley allegedly took it to smear a political opponent and directed employees about public statements and investigations.
- Peck: ordered to lie to media about the missing document, instead told the truth and was transferred to the midnight shift.
- Stone: supported Maketa’s political opponent; was subjected to a criminal-style investigation (including polygraphs) and his two children (also employees) were investigated.
- Commanders: filed EEOC/County complaints about Maketa/Presley; three hours later they were put on paid administrative leave, escorted out, had equipment/confiscated, and were investigated internally; they claim humiliation and retaliation.
- Procedural posture: District court denied qualified immunity; the Tenth Circuit reviews de novo and reverses, holding qualified immunity applies to all claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Peck’s media statements were made as a private citizen (Garcetti duty question) | Peck: spoke truthfully to media at supervisor’s direction but disobeyed order to lie, so speech was protected | Maketa: Peck’s statements were commissioned by her as IA head and thus within official duties | Held: Not clearly established that Peck spoke outside official duties; qualified immunity applies |
| Whether a criminal investigation of Stone was an adverse employment action | Stone: a retaliatory criminal investigation deterred protected speech and was adverse | Maketa: investigations (even criminal) are not necessarily adverse; no clear precedent treating such investigations as adverse | Held: Investigation did not clearly constitute an adverse employment action; qualified immunity applies |
| Whether investigating Stone’s children is an adverse employment action against Stone | Stone: targeting his children was retaliation that counts as an adverse action (akin to third-party adverse actions) | Maketa: because criminal investigations are not clearly adverse, investigations of family members likewise are not clearly adverse | Held: Not clearly established that investigating children was an adverse action; qualified immunity applies |
| Whether placing Commanders on paid administrative leave, escorting them out/taking equipment, and internal investigations were adverse employment actions (individually or in combination) | Commanders: the combination (leave, humiliation, loss of equipment, investigations) amounted to an adverse employment action that would deter protected speech | Maketa: paid leave, taking equipment, and investigations are not clearly adverse absent case-specific harms; no clear precedent treating these facts as adverse | Held: No clearly established law that these acts (alone or combined) constituted adverse employment actions; qualified immunity applies |
Key Cases Cited
- Mullenix v. Luna, 136 S. Ct. 305 (2015) (qualified immunity requires violation of clearly established right)
- Pearson v. Callahan, 555 U.S. 223 (2009) (framework allowing courts to address qualified immunity prong first)
- Garcetti v. Ceballos, 547 U.S. 410 (2006) (public employee speech made pursuant to official duties is not protected)
- Pickering v. Board of Education, 391 U.S. 563 (1968) (balancing public-employee speech against government employer interests)
- Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53 (2006) (adverse action standard for Title VII as deterrence test)
- Hartman v. Moore, 547 U.S. 250 (2006) (Supreme Court declined to decide whether retaliatory criminal investigations violate the First Amendment)
- Berry v. Stevinson Chevrolet, 74 F.3d 980 (10th Cir. 1996) (employer-instigated filing of criminal charges culminating in trial can be adverse due to public humiliation; factually distinguishable)