PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

MITCHELL LINCOLN; RODNEY 

GEHRETT; ROBERT KING; 

CHERYL PECK; ROBERT STONE, 

 Plaintiffs - Appellees, 

v. 

TERRY MAKETA, in his individual 

capacity and in his official capacity 

as Sheriff of El Paso County; 

PAULA PRESLEY, in her individual 

capacity and in her official capacity 

as Undersheriff of El Paso County, 

 Defendants - Appellants, 

and 

THE BOARD OF COUNTY 

COMMISSIONERS OF THE 

COUNTY OF EL PASO; EL PASO 

COUNTY SHERIFF’S OFFICE; 

BILL ELDER; JOE BREISTER, 

 Defendants. 

No. 16-1127 

_________________________________ 

Appeal from the United States District Court 

for the District of Colorado 

(D.C. No. 1:15-CV-00423-CMA-KMT)

_________________________________ 

Andrew D. Ringel (Matthew J. Hegarty, with him on the briefs), Hall & 

Evans, L.L.C., Denver, Colorado, for Defendant-Appellant Terry Maketa. 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 17, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

Eric M. Ziporin, Ashley M. Kelliher, Senter Goldfarb & Rice, LLC, 

Denver, Colorado, for Defendant-Appellant Paula Presley. 

Edward T. Farry, Jr., Farry & Stock, P.C., Colorado Springs, Colorado, for 

Plaintiffs-Appellees. 

_________________________________ 

Before HARTZ, HOLMES, and BACHARACH, Circuit Judges. 

_________________________________ 

BACHARACH, Circuit Judge. 

_________________________________ 

 This appeal grew out of the district court’s denial of qualified 

immunity to the former sheriff (Mr. Terry Maketa) and undersheriff (Ms. 

Paula Presley) of El Paso County. The claims were brought by three 

categories of subordinates: (1) Lieutenant Cheryl Peck; (2) Sergeant 

Robert Stone; and (3) Commanders Mitchell Lincoln, Rodney Gehrett, and 

Robert King. In this suit, Lt. Peck, Sgt. Stone, and the three Commanders 

allege retaliation for protected speech. 

The district court held that the subordinates’ allegations were 

sufficient to defeat qualified immunity at the motion-to-dismiss stage. We 

disagree because the law was not clearly established that (1) Lt. Peck’s 

speech fell outside of her duties as a public employee, (2) the 

investigations of Sgt. Stone and his children constituted adverse 

employment actions, and (3) the investigation of the Commanders, their 

placement on paid administrative leave, and their alleged humiliation 

constituted adverse employment actions. Therefore, Sheriff Maketa and 
3 

Undersheriff Presley were entitled to qualified immunity and dismissal of 

the complaint. 

I. The Plaintiffs’ Allegations 

 Lt. Peck and Sgt. Stone base their retaliation claims on a scheme by 

Sheriff Maketa and Undersheriff Presley to influence an upcoming election 

for sheriff by smearing one of the candidates; the Commanders base their 

claims on retaliation for their prior complaints about improper workplace 

practices. Because the ruling involves a motion to dismiss for failure to 

state a valid claim, we start with the plaintiffs’ allegations in the 

complaint. See Part III, below. 

A. Lt. Peck

 Lt. Peck’s claim arises out of her statements to the media. In 2013, 

Sheriff Maketa and Undersheriff Presley secretly took an Internal Affairs 

document, planning to use it against a political opponent. At the time, Lt. 

Peck was in charge of the Internal Affairs Unit of the Sheriff’s Office. Lt. 

Peck knew that the document was missing but did not know who had taken 

it. The mystery of the missing document generated public interest. 

 To address the matter, Sheriff Maketa ordered Lt. Peck to speak to 

the media and deliver a false narrative, saying that the Internal Affairs 

document had been stolen by supporters of the political opponent. Lt. Peck 

spoke to the media as requested, but she did not give the story crafted by 
4 

Sheriff Maketa; she instead “spoke truthfully.” Appellant’s App’x at 277. 

In response, Sheriff Maketa transferred Lt. Peck to the midnight shift. 

B. Sgt. Stone 

Sgt. Stone’s claim arises out of his political support for the candidate 

opposed by Sheriff Maketa and Undersheriff Presley. Upon learning of Sgt. 

Stone’s support, Sheriff Maketa retaliated by 

 subjecting Sgt. Stone to a “criminal investigation” into the 

missing Internal Affairs document, including interrogations, 

two lie-detector tests, and accusations that Sgt. Stone had 

stolen the document and 

 ordering a criminal investigation into Sgt. Stone’s two 

children, both of whom were employees of the Sheriff’s Office. 

C. The Commanders

 The Commanders’ claims arise out of their filing of complaints about 

Sheriff Maketa and Undersheriff Presley. These complaints were filed with 

the Equal Employment Opportunity Commission and the El Paso County 

Board of County Commissioners. In the complaints, the Commanders 

alleged that Sheriff Maketa and Undersheriff Presley had engaged in 

improper practices. 

The Commanders informed Undersheriff Presley of the complaints. 

Three hours later, Sheriff Maketa and Undersheriff Presley 

 put the Commanders on paid administrative leave, 

 confiscated their telephones, tablets, weapons, badges, and 

vehicles, and 
5 

 had the Commanders escorted out of the building. 

The Commanders allege humiliation from the second and third 

actions. And in the aftermath of the complaints, Sheriff Maketa and 

Undersheriff Presley filed Internal Affairs complaints against two of the 

Commanders, subjecting them to internal investigations. 

II. Procedural History

Lt. Peck, Sgt. Stone, and the Commanders sued under 42 U.S.C. 

§ 1983, alleging that Sheriff Maketa and Undersheriff Presley had 

retaliated based on the exercise of protected speech. Sheriff Maketa and 

Undersheriff Presley moved to dismiss based on qualified immunity. The 

district court denied the motion, and Sheriff Maketa and Undersheriff 

Presley appeal. 

III. Standard of Review 

 We engage in de novo review of the district court’s rulings on a 

motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), and we 

“accept the facts alleged in the complaint as true and view them in the 

light most favorable to the plaintiff[s].” Mayfield v. Bethards, 826 F.3d 

1252, 1255 (10th Cir. 2016).1

 

1

 Though Sheriff Maketa and Undersheriff Presley urged qualified 

immunity through a motion filed under Rule 12(b)(6), the district court 

cited twice to materials outside of the complaint. Generally, a district court 

can consider outside materials only by converting the motion to dismiss to 

a motion for summary judgment. Utah Gospel Mission v. Salt Lake City 

Corp., 425 F.3d 1249, 1253 (10th Cir. 2005). But conversion is 
6 

IV. Qualified Immunity

 The doctrine of qualified immunity protects officials from civil 

liability as long as they do not “‘violate clearly established statutory or 

constitutional rights of which a reasonable person would have known.’” 

Mullenix v. Luna, _ U.S. _, 136 S. Ct. 305, 308 (2015) (quoting Pearson v. 

Callahan, 555 U.S. 223, 231 (2009)). To defeat this immunity, we require 

the plaintiff to show that 

 the defendant violated a constitutional or statutory right and 

 the violated right was “‘clearly established at the time of the 

alleged unlawful activity.’” 

Estate of Reat v. Rodriguez, 824 F.3d 960, 964 (10th Cir. 2016) (quoting 

Swanson v. Town of Mountain View, 577 F.3d 1196, 1199 (10th Cir. 

2009)). Once a defendant raises qualified immunity, the plaintiff bears the 

burden to show that the defendant is not entitled to immunity. Douglas v. 

Dobbs, 419 F.3d 1097, 1100 (10th Cir. 2005). 

A right is “clearly established” when every “‘reasonable official 

would [understand] that what he is doing violates that right.’” Ashcroft v. 

al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483 

U.S. 635, 640 (1987)). But the right cannot be defined at a high level of 

 

unnecessary when the documents are referenced in the complaint and their 

authenticity is unchallenged. Id. at 1253-54. These circumstances exist 

here: The district court cited the Commanders’ filings with the Equal 

Employment Opportunity Commission and the El Paso County Board, the 

documents are discussed in the complaint, and their authenticity is 

undisputed. 
7 

generality; instead, the key is whether the specific conduct has been 

clearly established as a constitutional violation. Mullenix, 136 S. Ct. at 

308. Accordingly, we usually require an applicable Supreme Court or 

Tenth Circuit opinion or the clear weight of authority from other courts 

treating the conduct as unconstitutional. Sause v. Bauer, 859 F.3d 1270, 

1275 (10th Cir. 2017). But the opinion need not be on point if the conduct 

is “‘obviously unlawful’” in light of existing precedent. Id. at 1275 

(quoting Browder v. City of Albuquerque, 787 F.3d 1076, 1082 (10th Cir. 

2015)). 

 We have discretion to resolve an issue of qualified immunity on 

either of the two prongs, and we need not decide whether a violation 

occurred if we conclude that the right was not “clearly established.” 

Pearson v. Callahan, 555 U.S. 223, 236 (2009); Estate of Reat v. 

Rodriguez, 824 F.3d 960, 964 (10th Cir. 2016). Here, we choose to address 

the second prong, concluding that none of the underlying rights were 

clearly established at the time of the alleged retaliation. 

V. The Retaliation Claims

 The plaintiffs assert retaliation under the First Amendment. We 

evaluate these claims under the framework derived from Garcetti v. 

Ceballos, 547 U.S. 410 (2006), and Pickering v. Board of Education, 391 

U.S. 563 (1968). The Garcetti/Pickering test contains five elements that 

plaintiffs must satisfy: 
8 

1. The protected speech was not made pursuant to an employee’s 

official duties. 

2. The protected speech addressed a matter of public concern. 

3. The government’s interests as an employer did not outweigh the 

employee’s free-speech interests. 

4. The protected speech was a motivating factor in the adverse 

employment action. 

5. The defendant would not have made the same employment 

decision in the absence of the protected speech. 

Dixon v. Kirkpatrick, 553 F.3d 1294, 1302 (10th Cir. 2009). The complaint 

does not allege facts reflecting the violation of a clearly established right, 

for Lt. Peck arguably failed to meet the first element and Sgt. Stone and 

the Commanders arguably failed to meet the fourth element. 

A. Lt. Peck’s Retaliation Claim

Lt. Peck invokes the First Amendment, alleging punishment by 

Sheriff Maketa for truthfully speaking to the media. On this allegation, the 

first element is murky. It required Lt. Peck to show that she was speaking 

outside of her official duties. See id. And with the gloss of qualified 

immunity, Lt. Peck also had to demonstrate that it was clearly established 

that she was speaking outside of her official duties. See Part IV, above. 

She failed to satisfy that burden. 

“[W]hen public employees make statements pursuant to their official 

duties, the employees are not speaking as citizens for First Amendment 

purposes, and the Constitution does not insulate their communications from 
9 

employer discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). 

Therefore, Lt. Peck must demonstrate that she was speaking as a private 

citizen rather than as a public employee. See Dixon, 553 F.3d at 1302. 

No bright-line rule governs when employees are speaking as part of 

their official duties. Thus, we conduct a practical inquiry on a case-by-case 

basis, asking whether the speech “‘stemmed from and [was of] the type . . . 

that [the employee] was paid to do.” Rohrbough v. Univ. of Colo. Hosp. 

Auth., 596 F.3d 741, 746 (10th Cir. 2010) (alterations and omission in 

original) (quoting Green v. Bd. of Cty. Comm’rs, 472 F.3d 794, 801 (10th 

Cir. 2007)). Speech was made pursuant to an employee’s official duties if 

it was “‘commissioned’” by the employer. Thomas v. City of Blanchard, 

548 F.3d 1317, 1323 (10th Cir. 2008) (quoting Garcetti, 547 U.S. at 422). 

The law was not clearly established on whether Lt. Peck’s duties 

included her discussion with the media. As head of Internal Affairs, Lt. 

Peck spoke to the media about an Internal Affairs matter at the explicit 

direction of her supervisor. The speech therefore seems to have been 

“‘commissioned’” by her employer. See Foley v. Town of Randolph, 598 

F.3d 1, 7 (1st Cir. 2010) (stating that a Fire Department Chief spoke in an 

official capacity to the media because he was on duty and in uniform, so he 

“would naturally be regarded as the public face of the Department when 

speaking about matters involving the Department”); Nixon v. City of 

Houston, 511 F.3d 494, 498 (5th Cir. 2007) (holding that an officer spoke 
10 

in an official capacity to the media because he was on duty, in uniform, 

and speaking about police matters). 

Lt. Peck contends that her speech was not made in the course of her 

official duties because 

 her job duties did not require her to speak to the media and 

 she disobeyed Sheriff Maketa’s instructions on what to say. 

We reject both contentions. 

First, Lt. Peck notes that speaking to the media was not part of her 

job duties. But an employee’s formal job duties are not dispositive; speech 

can be considered “official” even when it “concerns an unusual aspect of 

an employee’s job that is not part of his everyday functions.” BrammerHoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1203 (10th Cir. 

2007). 

Second, Lt. Peck spoke to the media because of a directive, but she 

disobeyed the order to lie. In some circuits, Lt. Peck’s disobedience might 

affect whether she was speaking as part of her official duties. See Dahlia v. 

Rodriguez, 735 F.3d 1060, 1075 (9th Cir. 2013) (“[W]hen a public 

employee speaks in direct contravention to his supervisor’s orders, that 

speech may often fall outside of the speaker’s professional duties.”); 

Jackler v. Byrne, 658 F.3d 225, 241-42 (2d Cir. 2011) (holding that an 

employee spoke as a citizen when he disobeyed his superiors’ orders to 

retract a truthful report and substitute a false one). But this approach is not 
11 

universal. See Nixon v. City of Houston, 511 F.3d 494, 498-99 (5th Cir. 

2007) (holding that a uniformed officer’s media statement constituted 

official speech regardless of whether it was “in contravention of the wishes 

of his superiors”). The Tenth Circuit has not spoken on this issue. In the 

absence of applicable precedent, Sheriff Maketa lacked clear guidance on 

whether Lt. Peck was speaking as part of her official duties. See Mocek v. 

City of Albuquerque, 813 F.3d 912, 929 n.9 (10th Cir. 2015) (“A circuit 

split will not satisfy the clearly established prong of qualified immunity.”). 

As a result, the alleged retaliation would not have violated a clearly 

established constitutional right. See Part IV, above.2

B. Sgt. Stone’s Retaliation Claim

 According to Sgt. Stone, Sheriff Maketa conducted pretextual 

criminal investigations into Sgt. Stone and his children for theft of the 

Internal Affairs document. But with the gloss of qualified immunity, Sgt. 

Stone cannot satisfy the fourth element of the Garcetti/Pickering test 

because the alleged investigations did not clearly constitute adverse 

employment actions. See pp. 6-8, above. 

 

2

 Lt. Peck also alleges that she was subject to a “criminal 

investigation” into the missing Internal Affairs document. The alleged 

investigation does not clearly qualify as an “adverse employment action” 

under the fourth element of the Garcetti/Pickering test. See Part V(B), 

below. In addition, the complaint does not tie the investigation to Lt. 

Peck’s protected speech. Therefore, this allegation would not satisfy the 

fourth element (that the protected speech was a motivating factor for the 

retaliation). 
12 

 The fourth element of the Garcetti/Pickering test requires that “the 

protected speech [be] a motivating factor in the adverse employment 

action.” Dixon v. Kirkpatrick, 553 F.3d 1294, 1302 (10th Cir. 2009). This 

element implicitly requires that the employer “‘take[] some adverse 

employment action against the employee.’” Couch v. Bd. of Trs. of Mem’l 

Hosp. of Carbon Cty., 587 F.3d 1223, 1235-36 (10th Cir. 2009) (quoting 

Belcher v. City of McAlester, 324 F.3d 1203, 1207 n.4 (10th Cir. 2003)). 

Thus, Sgt. Stone must establish an adverse employment action. Id. at 1236. 

And with the gloss of qualified immunity, Sgt. Stone bears the burden of 

showing that the criminal investigations would clearly have constituted 

adverse employment actions. See pp. 6-8, above. Sgt. Stone failed to 

satisfy this burden. 

 For a retaliation claim under Title VII, an adverse employment action 

is something that would have “dissuaded a reasonable worker from making 

or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. v. 

White, 548 U.S. 53, 68 (2006) (internal quotation marks omitted). This 

standard is analogous to the standard used in First Amendment retaliation 

cases like this one. See Couch, 587 F.3d at 1238 (stating that an adverse 

employment action is one that would “‘deter a reasonable person from 

exercising his or her First Amendment rights’” (quoting Brammer-Hoelter 

v. Twin Peaks Charter Acad., 492 F.3d 1192, 1208 (10th Cir. 2007))). Sgt. 
13 

Stone characterizes the criminal investigations as adverse employment 

actions, but the law does not clearly support this characterization. 

1. The Criminal Investigation into Sgt. Stone

 The first alleged action is an investigation into Sgt. Stone regarding 

the missing Internal Affairs document. A workplace investigation generally 

does not constitute an adverse employment action. Couch, 587 F.3d at 

1243. But Sgt. Stone suggests that this investigation was different because 

it was a criminal investigation. Sgt. Stone’s distinction lacks definitive 

support in our precedents. 

The Supreme Court has declined to consider whether a retaliatory 

criminal investigation entails a constitutional violation. Hartman v. Moore, 

547 U.S. 250, 262 n.9 (2006). Other circuits disagree with one another on 

the issue. Compare Rehberg v. Paulk, 611 F.3d 828, 850-51 & n.24 (11th 

Cir. 2010) (declining to treat a retaliatory criminal investigation as a First 

Amendment violation), with Coszalter v. City of Salem, 320 F.3d 968, 976 

(9th Cir. 2003) (noting that a criminal investigation could violate the First 

Amendment). 

Our court has not settled the question. We did address a particular 

form of criminal investigation in Berry v. Stevinson Chevrolet, 74 F.3d 980 

(10th Cir. 1996). There the plaintiff’s former employer retaliated by 

maliciously encouraging the filing of criminal charges, culminating in a 

trial. Berry, 74 F.3d at 984, 986. We held that this filing of criminal 
14 

charges at the employer’s behest constituted an adverse employment 

action. Id. at 986. But for two reasons, Berry does not clearly support Sgt. 

Stone’s characterization of the investigation as an adverse employment 

action. 

First, Sgt. Stone alleges only a “criminal investigation,” and an 

investigation is a far cry from formally filing charges and bringing 

someone to trial. Cf. Belcher v. City of McAlester, 324 F.3d 1203, 1207 n.4 

(10th Cir. 2003) (“If the action taken by the employer . . . has only 

speculative consequences, there can be no basis for a First Amendment 

claim.”). And the fact that the investigation had a “criminal” aspect does 

not necessarily create an adverse employment action. See Dick v. Phone 

Directories Co., 397 F.3d 1256, 1269 (10th Cir. 2005) (holding that an 

employer’s instruction to the plaintiff’s coworkers to file a police report 

against the plaintiff did not constitute an adverse employment action). 

Second, this case does not implicate the concerns that drove our 

decision in Berry. In Berry, we emphasized that the employment action was 

adverse because “[a] criminal trial . . . is necessarily public and therefore 

carries a significant risk of humiliation, damage to reputation, and a 

concomitant harm to future employment prospects.” Berry, 74 F.3d at 986; 

see Annett v. Univ. of Kan., 371 F.3d 1233, 1239 (10th Cir. 2004). But Sgt. 

Stone does not allege that his criminal investigation was made public or 
15 

that it resulted in humiliation, damage to reputation, or harm to his future 

employment prospects. 

In short, Berry is distinguishable and was driven by concerns that are 

inapplicable here. See Estate of Reat v. Rodriguez, 824 F.3d 960, 967 (10th 

Cir. 2016) (holding that the defendant was entitled to qualified immunity 

because the plaintiff’s cited cases were too factually distinct to apply 

clearly to the specific circumstances there). Thus, Berry does not suggest 

the violation of a clearly established constitutional right. 

Sgt. Stone and the district court relied only on general standards, 

noting that an adverse employment action is one that would deter 

reasonable persons from exercising their First Amendment rights. But the 

analysis of qualified immunity is based on specific facts, not abstract 

principles. White v. Pauly, _ U.S. _, 137 S. Ct. 548, 552 (2017) (per 

curiam). Sgt. Stone does not direct us to any on-point cases from this 

court, the Supreme Court, or other courts; and he has not demonstrated that 

the criminal investigation would “obviously” constitute an adverse 

employment action. See Sause v. Bauer, 859 F.3d 1270, 1275 (10th Cir. 

2017). Thus, Sheriff Maketa is entitled to qualified immunity on this 

claim. 

2. The Criminal Investigation into Sgt. Stone’s Children

The second set of alleged actions involves a criminal investigation 

into Sgt. Stone’s children. It is true that taking an adverse employment 
16 

action against an employee’s child would likely constitute an adverse 

employment action against the employee himself. See Thompson v. N. Am. 

Stainless, LP, 562 U.S. 170, 174-75 (2011) (holding that an employer took 

an adverse employment action against an employee by firing the 

employee’s fiancé). But as discussed above, the law did not clearly 

characterize the “criminal investigation” as an adverse employment action. 

See Part V(B)(1), above. Therefore, qualified immunity is not defeated by 

the alleged criminal investigation into Sgt. Stone’s children.3

C. The Commanders’ Retaliation Claims

 The Commanders allege that Sheriff Maketa and Undersheriff Presley 

retaliated in three ways: 

1. placing the Commanders on paid administrative leave, 

2. humiliating them by having them escorted out of the building 

and taking their work equipment, and 

3. conducting investigations through Internal Affairs. 

The Commanders’ allegations do not clearly show the existence of an 

adverse employment action. 

 

3

 Sgt. Stone also argues that a death threat constituted an adverse 

employment action. This argument is not plausibly supported by the 

complaint. There Sgt. Stone alleged that Undersheriff Presley had said that 

she was “going to kill” Sgt. Stone. Appellant’s App’x at 275. But the 

complaint does not plausibly allege a threat or even that Undersheriff 

Presley had communicated the statement to Sgt. Stone. 
17 

1. Paid Administrative Leave

 There was no clearly established authority treating the paid 

administrative leave as an adverse employment action. 

In determining whether paid administrative leave constitutes an 

adverse employment action, courts must closely scrutinize the facts and 

draw lines that are not always self-evident. To date, our own court has not 

issued a precedential opinion on whether paid administrative leave 

constitutes an adverse employment action. In one non-precedential opinion, 

we upheld the district court’s conclusion that placement on paid 

administrative leave for eighteen days, pending the outcome of an 

investigation, was not an adverse employment action. See Juarez v. Utah, 

263 F. App’x 726, 737 (10th Cir. 2008) (unpublished). Other circuits have 

also addressed this question, reaching various conclusions. See Dahlia v. 

Rodriguez, 735 F.3d 1060, 1079 (9th Cir. 2013) (placement on paid 

administrative leave, along with forfeiture of on-call and holiday pay and 

loss of employment opportunities, was an adverse employment action); 

Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 332 (5th Cir. 2009) 

(placement on paid administrative leave for three weeks, without other 

adverse consequences, was not an adverse employment action); Nichols v. 

S. Ill. Univ.-Edwardsville, 510 F.3d 772, 787 (7th Cir. 2007) (placement on 

paid administrative leave for three months was not an adverse employment 

action); Michael v. Caterpillar Fin. Servs., 496 F.3d 584, 596 (6th Cir. 
18 

2007) (placement on paid administrative leave for four days, coupled with 

placement on a 90-day performance plan, was an adverse employment 

action). 

These context-driven opinions do not establish any clear demarcation 

of when paid administrative leave is or is not an adverse employment 

action. Indeed, some of these opinions may even be in tension with each 

other. Compare Nichols, 510 F.3d at 787 (three months of paid 

administrative leave was not an adverse employment action), with Michael, 

496 F.3d at 596 (four days of paid administrative leave and a 90-day 

performance plan was an adverse employment action). And further 

uncertainty arises from the complaint’s failure to allege the duration of the 

Commanders’ paid administrative leave. 

In short, neither we nor other circuits have established any clear 

guidance on where to draw the line between adverse and non-adverse paid 

administrative leave.4

 Without any guidance, we do not regard placement 

on paid administrative leave as a clearly established adverse employment 

action. See Lowe v. Raemisch, 864 F.3d 1205, 1209 (10th Cir. 2017) 

(holding that qualified immunity was appropriate when a “case-by-case 

examination of the totality of circumstances” was required). Thus, Sheriff 

Maketa and Undersheriff Presley were entitled to dismissal of this claim. 

 

4

 At oral argument, the Commanders admitted that they were unaware 

of an opinion in any circuit that treated paid administrative leave as an 

adverse employment action. 
19 

2. Humiliation 

 The Commanders add that they were escorted out of the building and 

stripped of their work equipment. Again, neither the Commanders nor the 

district court identified any precedents characterizing these actions as 

adverse employment actions. Cf. McCoy v. City of Shreveport, 492 F.3d 

551, 561 (5th Cir. 2007) (declining to decide the “close question” of 

whether putting a police officer on paid administrative leave and taking her 

gun and badge constituted an adverse employment action). 

 Rather than focusing on these actions, the Commanders treat the 

humiliation itself as the adverse employment action. For this proposition, 

the Commanders rely on a passage from Annett v. University of Kansas, 

371 F.3d 1233 (10th Cir. 2004). Annett stated that when we define an 

adverse employment action, “we consider acts that carry ‘a significant risk 

of humiliation, damage to reputation, and a concomitant harm to future 

employment prospects.’” Annett, 371 F.3d at 1239 (quoting Berry v. 

Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996)). But Annett does 

not supply the Commanders with clearly established law for three reasons. 

 First, the complaint does not allege that the Commanders suffered 

“damage to reputation” or “harm to future employment prospects.” 

 Second, nothing in Annett requires us to consider any humiliating 

action as an adverse employment action. Our opinion simply noted that 

humiliation, along with damage to reputation and harm to future 
20 

employment prospects, bears on whether an action was adverse. See id.

(“Therefore, an action that significantly harms a plaintiff’s future 

employment prospects may be considered an adverse action.” (emphasis 

added)); see also Hillig v. Rumsfeld, 381 F.3d 1028, 1031 (10th Cir. 2004) 

(noting that harm to future employment prospects is “[o]ne factor” 

indicating that an action is adverse). Thus, an allegation of humiliation 

alone is not enough to clearly establish an adverse employment action. 

 Third, general principles are insufficient for a clearly established 

right. Instead, the Commanders must point to precedent establishing that 

the particular conduct at issue here is unlawful. See Part IV, above. And as 

noted, the Commanders do not identify any such precedents, relying only 

on Annett’s general standard. Thus, the Commanders have not 

demonstrated that their alleged humiliation would clearly constitute an 

adverse employment action. 

3. Internal Investigations 

 The third set of alleged actions involved internal investigations. We 

generally do not consider standard workplace investigations to be adverse 

employment actions. See Couch v. Bd. of Trs. of Mem’l Hosp. of Carbon 

Cty., 587 F.3d 1223, 1243 (10th Cir. 2009); see also Part V(B)(1), above. 

Accordingly, the alleged investigations did not clearly constitute adverse 

employment actions. 
21 

4. Actions in Combination

Even if each action did not individually constitute an adverse 

employment action, the combination of actions may have been adverse. The 

district court considered the actions in combination and concluded that the 

Commanders had suffered an adverse employment action. But the 

Commanders have not cited any similar opinions treating the combination 

of these actions as adverse. 

The district court instead relied on general principles. For example, 

the court discussed Baca v. Sklar, 398 F.3d 1210 (10th Cir. 2005), where 

we treated a “campaign of retaliation” as an adverse employment action. 

Baca, 398 F.3d at 1213. The district court conceded that the Commanders 

had not lost their jobs like the employee in Baca. And the district court did 

not determine that this case resembles Baca, where the adverse 

employment action consisted of removing supervisory responsibilities from 

the employee, reprimanding him, filing a charge against him, and 

demanding his resignation. Id. at 1221. Nevertheless, the court concluded 

that the retaliation here was “more adverse and humiliating than the 

actions taken in Baca.” Lincoln v. Maketa, 176 F. Supp. 3d 1179, 1194 (D. 

Colo. 2016) (internal quotation marks omitted). Based on this conclusion 

and general principles about the impermissibility of restricting protected 

speech, the court held that the Commanders had properly alleged an 

adverse employment action. But these principles are too general to create 
22 

clear guidance that the alleged combination of actions constituted an 

adverse employment action. See Part IV, above. 

The Commanders also fail to support their characterization of the 

alleged actions as clearly adverse. The Commanders rely on Annett and 

Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990). But Annett did 

not sweep as broadly as the Commanders suggest and is too general to 

clearly establish characterization of the conduct here as an adverse 

employment action. The Commanders point to a footnote in Rutan, where 

the Supreme Court stated broadly that the First Amendment protects 

employees from “even an act of retaliation as trivial as failing to hold a 

birthday party for a public employee.” Rutan, 497 U.S. at 75 n.8 (internal 

quotation marks omitted). But this statement constitutes dicta and is not 

controlling. See Lybrook v. Members of Farmington Mun. Sch. Bd. of 

Educ., 232 F.3d 1334, 1340 n.2 (10th Cir. 2000) (collecting cases). 

Therefore, Rutan does not clearly establish an adverse employment action. 

* * * 

Sheriff Maketa and Undersheriff Presley lacked clear guidance on 

whether the alleged conduct created an adverse employment action. Thus, 

Sheriff Maketa and Undersheriff Presley are entitled to qualified immunity 

on the Commanders’ claims.5

 

5

 Two of the Commanders (Commander King and Commander Lincoln) 

also allege a “criminal investigation” into the missing Internal Affairs 
23 

VI. Conclusion 

The assertion of qualified immunity imposes a heavy burden on the 

plaintiffs, requiring them to point to existing precedent or the clear weight 

of authority establishing the existence of a constitutional violation. None 

of the plaintiffs has met that burden. Lt. Peck has not demonstrated that 

her statement to the media was clearly made as a private citizen rather than 

as a public employee. Nor has Sgt. Stone or the Commanders shown that 

the defendants’ alleged conduct would clearly constitute adverse 

employment actions. Accordingly, Sheriff Maketa and Undersheriff Presley 

were entitled to qualified immunity on all of the claims. 

Reversed. 

 

document. Appellant’s App’x at 274. We reject this allegation because 

characterization of the investigation as an “adverse employment action” 

would not have been clearly established. See Part V(B)(1), above.