PUBLISH UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

__________________ _______________ MITCHELL LINCOLN; RODNEY GEHRETT; ROBERT KING; CHERYL PECK; ROBERT STONE, Pl aintiffs - 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,
De fendants - 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 (Matth ew J. Hegarty, with hi m on the briefs), Hall & Evans, L.L.C., Denver, Colorado, for Defendant-A ppellant Terry Maketa. FILED United States Court of Appeals Tenth Circuit 

### January 17, 2018
Elisabeth A. Shumaker Clerk of Court2 Eric M. Ziporin, Ashley M. Kelli her, Senter Goldfarb & Rice, LLC, Denver, Colorado, fo r Defendant-Appellant Paula Presley. Edward T. Farry, Jr., Farry & Stock, P.C., Colorado Spring s, Colorado, for Plaintiffs-Appellees.

__________________ _______________ Before HARTZ , HOLMES , and BACHARACH , Circuit Judges.

__________________ _______________ BACHARACH , Circuit Judge.

__________________ _______________ This appeal grew ou t 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 Mitc hell Lincoln, Rodney Gehrett, and Robert King. In this su it, Lt. Peck, Sgt. Stone, and the three Commanders allege retaliation fo r protected speech. The district court held that the subordinate s’ allegations were sufficient to defeat qual ified immunity at the moti on-to-dismiss stage. We disagree because the law was not clearl y established that (1) Lt. Peck’s speech fell outside of her dutie s as a public employee, (2) the investigations of Sgt. Stone and his children constituted adverse employment actions, and (3) the inve stigation of the Commanders, their placement on paid admi nistrative leave, and their alleged humiliation constituted adverse employment acti ons. Therefore, Sheriff Maketa and3 Undersheriff Presley were entitled to qualified immu nity and dismissal of the complaint. I. The Plaintiffs’ Allegations Lt. Peck and Sgt. Stone base thei r retaliation claims on a scheme by Sheriff Maketa and Undersheriff Presle y to influence an upcoming election for sheriff by smearing one of the cand idates; the Comman ders base their claims on retaliation for their prior co mplaints about im proper workplace practices. Because the ruli ng 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 Unders heriff Presley secretly t ook an Internal Affairs document, planning to use it against a politic al opponent. At the time, Lt. Peck was in charge of th e Internal Affairs Unit of the Sheriff’s Office. Lt. Peck knew that th e document was mi ssing but did not know who had taken it. The mystery of the missing docu ment 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 oppon ent. Lt. Peck spoke to the media as requ ested, but she did not gi ve the story crafted by4 Sheriff Maketa; she instead “spoke truthfully.” Appellant’s App’x at 277. In response, Sheriff Make ta transferred Lt. Peck to the midnig ht shift. B. Sgt. Stone Sgt. Stone’s claim arises out of hi s political support for the candidate opposed by Sheriff Ma keta and Undersheri ff Presley. Upon le arning of Sgt. Stone’s support, Sheriff Maketa retaliated by

 subjecting Sgt. Stone to a “criminal investigation” into the missing Internal Affa irs document, includ ing interrogations, two lie-detector tests, and a ccusations that Sgt. Stone had stolen the document and

 ordering a criminal investig ation 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 Oppo rtunity Commission and the El Paso County Board of County Commi ssioners. In the complaints, the Commanders alleged that Sheriff Maketa and Un dersheriff Presley had engaged in improper practices. The Commanders informed Undershe riff Presley of the complaints. Three hours later, Sheriff Make ta and Undersheriff Presley

 put the Commanders on paid administrative leave,

 confiscated their telephones, ta blets, weapons, badges, and vehicles, and5  had the Commanders escorted out of the building. The Commanders allege humiliati on from the second and third actions. And in the aftermath of th e complaints, Sheriff Maketa and Undersheriff Presley filed Internal A ffairs complaints ag ainst two of the Commanders, subjecting them to internal investigations. II. Procedur al History Lt. Peck, Sgt. Stone, and the Co mmanders sued und er 42 U.S.C. § 1983, alleging that Sheriff Make ta and Undersheriff Presley had retaliated based on the exercise of pr otected speech. Sheriff Maketa and Undersheriff Presley moved to dismis s 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 Make ta and Undersheriff Pr esley urged qualified immunity through a motion filed under Ru le 12(b)(6), the district court cited twice to materials ou tside of the complaint. Ge nerally, a district court can consider outside materi als only by converting th e motion to dismiss to a motion for summa ry judgment. Utah Gospel Mission v. Salt Lake City Corp. , 425 F.3d 1249, 1253 (10th Cir. 2005). But conversion is6 IV. Qualified Immunity The doctrine of qualified immunity protects offici als from civil liability as long as they do not “‘violate clearly es tablished st atutory or constitutional rights of which a r easonable person wo uld 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 constit utional or stat utory right and

 the violated right wa s “‘clearly establishe d 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 defend ant raises qualified immuni ty, the plain tiff bears the burden to show that the defend ant is not entitle d 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 vi olates 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 canno t be defined at a high level of unnecessary when the docum ents 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 Coun ty Board, the documents are disc ussed in the complaint, and their authenticity is undisputed.7 generality; instead, the key is whether the spec ific conduct has been clearly established as a constitutional violation. Mullenix , 136 S. Ct. at 308. Accordingly, we usually requir e an applicable Supreme Court or Tenth Circuit opinion or the clear weig ht of authority from other courts treating the conduct as unconstitutional. Sause v. Bauer , 859 F.3d 1270, 1275 (10th Cir. 2017). But the opinion n eed not be on poin t 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 ne ed not decide whether a violation occurred if we conclude that the ri ght was not “clearly established.” Pearson v. Callahan , 555 U.S. 223, 236 (2009); Estate of Reat v. Rodriguez , 824 F.3d 960, 964 (10t h Cir. 2016). Here, we choose to address the second prong, concl uding that none of the underlying rights were clearly established at the tim e 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. Boar d 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 intere sts as an employer did not outweigh the employee’s free-speech interests. 4. The protected speech was a moti vating 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 viol ation of a clearly established right, for Lt. Peck arguab ly 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 Amen dment, alleging punishment by Sheriff Maketa for truthfully speaking to the media. On th is allegation, the first element is murky. It required Lt. Peck to s how that she was speaking outside of her o fficial duties. See id . And with the gloss of qualified immunity, Lt. Peck also had to demons trate that it was clearly established that she was speaking outsid e of her official duties. See Part IV, above. She failed to satisfy that burden. “[W]hen public empl oyees make statements purs uant to their official duties, the employees are not speaki ng as citizens fo r First Amendment purposes, and the Constitu tion does not insulate th eir communications from9 employer discipline.” Garcetti v. Ceballos , 547 U.S. 410 , 421 (2006). Therefore, Lt. Peck must demonstrat e 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 gover ns when employees are speaking as part of their official duties. Th us, we conduct a practical inquiry on a case-by-case basis, asking whethe r 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 an d 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 employ ee’s official duties if it was “‘commissioned’” by the employer. Thomas v. City of Blanchard , 548 F.3d 1317, 1323 (10t h Cir. 2008) (quoting Garcetti , 547 U.S. at 422). The law was not clearly establishe d 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 Affair s matter at the explicit direction of her supervisor. The sp eech therefore seem s 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 rega rded as the public face of the Department when speaking about ma tters involving the Department”); Nixon v. City of
Houston , 511 F.3d 494, 498 (5th Cir. 2007) (holding th at an officer spoke10 in an official capacity to the medi a 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 he r to speak to the media and

 she disobeyed Sheriff Maketa’s in structions 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 employ ee’s formal job duties ar e not dispositive; speech can be considered “officia l” even when it “concerns an unusual aspect of an employee’s job that is not part of his everyday functions.” BrammerHoelter v. Twin Pe aks 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 contraventio n to his supervisor’s orders, that speech may often fall outside of th e speaker’s professional duties.”); Jackler v. Byrne , 658 F.3d 225, 241-42 (2d Cir. 2011) (h olding that an employee spoke as a citiz en when he disobeyed hi s superiors’ orders to retract a truthful report and substitute a false one). But this approach is not11 universal. See Nixon v. City of Houston , 511 F.3d 494, 498 -99 (5th Cir. 2007) (holding that a un iformed officer’s media statement constituted official speech regardless of whether it was “in contravention of the wishes of his superiors”). The Te nth Circuit has not spoken on this issue. In the absence of applicable pr ecedent, Sheriff Maketa la cked 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 establ ished prong of qua lified immunity.”). As a result, the alleged retaliation would not have violated a clearly established constit utional right. See Part IV, above. 2 B. Sgt. Stone’s Retaliation Claim According to Sgt. Stone, Sheriff Maketa conducted pretextual criminal investigations into Sgt. St one 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 Inte rnal Affairs document. The alleged investigation does not cl early qualify as an “adv erse employment action” under the fourth element of the Garcetti / Pickering test. See Part V(B), below. In addition, the complaint do es 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 mo tivating fact or for the retaliation).12 The fourth el ement 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 th e employer “‘take[] some adverse employment action agai nst the employee.’” Couch v. Bd. of Trs. of Mem’l Hosp. of Carbon Cty. , 587 F.3d 1223, 1235-36 (1 0th 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 immun ity, Sgt. Stone bear s the burd en of showing that the criminal investigat ions would clearly have constituted adverse employment actions. See pp. 6-8, above. Sg t. Stone failed to satisfy this burden. For a retaliation claim under Title VII, an adverse employment action is something that would have “dissuad ed a reasonable wo rker 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 Fi rst Amendment retaliation cases like this one. See Couch , 587 F.3d at 1238 (sta ting that an adverse employment action is one that would “‘deter a reasonab le 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 cr iminal investigations as adverse employment actions, but the law does not clearly support th is characterization. 1. The Criminal Investigation into Sgt. Stone The first alleged action is an inve stigation into Sgt. Stone regarding the missing Internal Affairs document . A workplace investigation generally does not constitute an ad verse employment action. Couch , 587 F.3d at 1243. But Sgt. Stone suggest s that this investigatio n was different because it was a criminal investigation. Sgt. Stone’s distinction lacks definitive support in our precedents. The Supreme Court has d eclined to consider whether a retaliatory criminal investigation entails a constitutional violation. Hartman v. Moore , 547 U.S. 250, 262 n.9 (2006) . Other circuits disagr ee with one another on the issue. Compare Rehberg v. Paulk , 611 F.3d 828, 850- 51 & n.24 (11th Cir. 2010) (declining to trea t 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 investigati on 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 th e filing of criminal ch arges, culminating in a trial. Berry , 74 F.3d at 984, 986 . We held that this filing of criminal14 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 take n by the employer . . . has only speculative consequences , there can be no basis for a First Amendment claim.”). And the fact th at 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 advers e employment action). Second, this case does not implicate the conc erns that drove our decision in Berry . In Berry , we emphasized that the employment action was adverse because “[a] criminal trial . . . is n ecessarily public and therefore carries a significant risk of humilia tion, 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 (10t h Cir. 2004). But Sgt. Stone does not allege that his criminal investiga tion was made public or15 that it resulted in humiliati on, damage to reputation, or harm to his future employment prospects. In short, Berry is distinguishable and was dr iven by concer ns that are inapplicable here. See Estate of Reat v. Rodriguez , 824 F.3d 960 , 967 (10th Cir. 2016) (holding that the defendant was entitle d to qualified immunity because the plaintiff’s c ited cases were too factua lly distinct to apply clearly to the specific ci rcumstances there). Thus, Berry does not suggest the violation of a clearly esta blished constitutional right. Sgt. Stone and the district court relied only on ge neral standards, noting that an advers e employment action is one that would deter reasonable persons from exercising their First Amendment rights. But the analysis of qualified immunity is ba sed 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 cour ts; 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 Make ta is entitled to qualifi ed immunity on this claim. 2. The Criminal Investigation into Sgt. Stone’s Children The second set of alle ged actions involves a criminal investigation into Sgt. Stone’s children . It is true that taking an adverse employment16 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 agai nst an employee by firing the employee’s fiancé). But as discusse d above, the law did not clearly characterize the “criminal investigation” as an adverse employment action.
See Part V(B)(1), above. Th erefore, qualified immuni ty is not defeated by the alleged criminal investigati on into Sgt. St one’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 wo rk equipment, and 3. conducting investigations th rough Internal Affairs. The Commanders’ allegations do not clearly show the existence of an adverse employment action.

3 Sgt. Stone also argu es that a death threat constituted an adverse employment action. This argument is not plau sibly supporte d by the complaint. There Sgt. Stone alleged th at Undersheriff Presley had said that she was “going to kill” Sgt. Stone. Appellant’ s App’x at 275. But the complaint does not plausi bly allege a threat or even that Undersheriff Presley had communicated the statement to Sgt. Stone.17 1. Paid Administrative Leave There was no clearly establis hed authority treating the paid administrative leave as an ad verse employment action. In determining whether paid admi nistrative leave constitutes an adverse employment action, courts mu st closely scruti nize the facts and draw lines that are not always self-e vident. To date, our own court has not issued a precedential opi nion on whether paid administrative leave constitutes an adverse employment ac tion. In one non-pre cedential opinion, we upheld the district court’s conclusion that placement on paid administrative leave for eighteen da ys, 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) (p lacement on paid administrative leave, along with forfeiture of on -call and holi day pay and loss of employment opportunities, wa s an adverse employment action); Stewart v. Miss. Transp. Comm’n , 586 F.3d 321, 332 (5th Cir. 2009) (placement on paid administrative leave for th ree 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 ad ministrative leave for fo ur 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 administra tive leave is or is no t an adverse employment action. Indeed, some of these opinions may even be in tension with each other. Compare Nichols , 510 F.3d at 787 (thr ee months of paid administrative leave was not an adverse employment action), with Michael , 496 F.3d at 596 (four days of paid administrati ve leave and a 90-day performance plan was an adverse employment action). And further uncertainty arises from the complaint’s failure to a llege the duration of the Commanders’ paid admi nistrative leave. In short, neither we nor other ci rcuits have established any clear guidance on where to draw the line be tween adverse and non-adverse paid administrative leave. 4 Without any guid ance, we do not regard placement on paid administrative leave as a cl early established adverse employment action. See Lowe v. Raemisch , 864 F.3d 1205, 1209 (10th Cir. 2017) (holding that qualified immunity wa s appropriate when a “case-by-case examination of the totalit y of circumstances” was required). Thus, Sheriff Maketa and Undersheriff Pr esley were entitled to dism issal of this claim.

4 At oral argument, th e Commanders admitted th at they were unaware of an opinion in any circuit that tr eated paid administrative leave as an adverse employment action.19 2. Humiliation The Commanders add that they were escorted ou t of the building and stripped of their work equipment. Ag ain, 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) (d eclining to decide th e “close question” of whether putting a polic e officer on paid administrative leave and taking her gun and badge constituted an adverse employment action). Rather than focusing on thes e actions, the Commanders treat the humiliation itself as the adverse empl oyment 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 (10t h Cir. 1996)). But Annett does not supply the Comma nders with clearly establis hed law for three reasons. First, the complaint does not allege that the Commanders suffered “damage to reputation” or “harm to future em ployment prospects.” Second, nothing in Annett requires us to c onsider any humiliating action as an adverse employment acti on. Our opinion simply noted that humiliation, along with damage to reputation and harm to future20 employment prospects, bears on whether an action was adverse. See id. (“Therefore, an action that signif icantly 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 actio n is adverse). Thus, an allegation of humiliation alone is not enough to clearly establish an ad verse employment action. Third, general principles are in sufficient for a clearly established right. Instead, the Commanders must poin t to precedent es tablishing that the particular conduct at issue here is unlawful. See Part IV, above. And as noted, the Commander s 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 i nvolved internal investigations. We generally do not consider standard workplace inves tigations 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 investigatio ns 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 employme nt action. But the Commanders have not cited any simila r 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 (10t h 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, repr imanding 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 quot ation marks omitted). Based on this conclusion and general principles a bout 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 create22 clear guidance that the alleged combination of actions constituted an adverse employment action. See Part IV, above. The Commanders also fail to suppo rt their character ization of the alleged actions as clearly adve rse. The Command ers 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 charact erization of the conduct here as an adverse employment action. The Command ers point to a footnote in Rutan , where the Supreme Court stated broadly that the First Amendment protects employees from “even an act of retalia tion 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). Bu t this statement const itutes dicta and is not controlling. See Lybrook v. Members of Fa rmington Mun. Sch. Bd. of Educ. , 232 F.3d 1334, 1340 n.2 (10th Ci r. 2000) (collecting cases). Therefore, Rutan does not clearly establish an adverse employment action.
* * * Sheriff Maketa and Undersheriff Presley lacked clear guidance on whether the allege d conduct created an adverse employment action. Thus, Sheriff Maketa and Undersheriff Presle y are entitled to qu alified immunity on the Commanders’ claims. 5

5 Two of the Commanders (Command er King and Co mmander Lincoln) also allege a “criminal investigation” into the missing Internal Affairs23 VI. Conclusion The assertion of qualified immunity imposes a hea vy burden on the plaintiffs, requiring them to point to existing precede nt or the clear weight of authority establishing the existenc e 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 priv ate citizen ra ther than as a public employee. No r has Sgt. Stone or th e Commanders shown that the defendants’ allege d conduct would clearly constitute adverse employment actions. Accordingly, Sheriff Maketa and Undersheriff Presley were entitled to qualified immuni ty 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.