Smith v. Elder

Filing 45

ORDER granting 27 Defendants Motion for Summary Judgment Pursuant to Fed. R. Civ. P. 56(c). Plaintiffs case is hereby DISMISSED with prejudice to a refiling, by Magistrate Judge Kathleen M. Tafoya on 9/8/2020.(jgonz, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 18–cv–01976–KMT
PATRICK SMITH,
Plaintiff,
v.
BILL ELDER as Sheriff of El Paso County Sheriff’s Office,
Defendant.

ORDER

Before the court is “Defendant’s Motion for Summary Judgment Pursuant to Fed. R. Civ.
P. 56(c).” ([“Motion”], Doc. No. 27.) Plaintiff has responded in opposition to the Motion, and
Defendant has replied. ([“Response”], Doc. No. 32; [“Reply”], Doc. No. 38.) For the following
reasons, the Motion is GRANTED.
STATEMENT OF THE CASE
Plaintiff Patrick Smith, a former Deputy Sheriff with the El Paso County Sheriff’s Office
[“EPSO”], brings suit against the elected El Paso County Sheriff, Defendant Bill Elder [“Sheriff
Elder”], alleging violations of Title VII of the Civil Rights Act of 1964, as amended [“Title
VII”], 42 U.S.C. §§ 2000(e) et seq.. ([“Complaint”], Doc. No. 1 at ¶¶ 1, 7-8.) Smith, who is
African-American, began working for EPSO1 in 2003. (Id. at ¶¶ 11-12; Mot. 2 ¶¶ 4-5.) At all
1

EPSO is “a law enforcement organization, which operates under the authority of the Sheriff and
is responsible for conducting various law enforcement and detention functions within El Paso
County, Colorado.” (Compl. ¶ 9; Mot. 2 ¶ 3.)

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times relevant to this lawsuit, Smith was assigned to a position at the El Paso County Jail
[“ECJ”]. (Compl. ¶ 13; Mot. 2 ¶ 8.)
The first ten years of Smith’s employment appear to have been without incident. Then,
on June 11, 2013, Plaintiff was involved in a “use-of-force incident,” while on duty at ECJ,
where he was accused of using “an inappropriate amount of force” against an ECJ inmate.
(Resp. Ex. 6, Doc. 31-2; Resp. Ex. 13, Doc. No. 31-8, at 2.) The EPSO’s Internal Affairs Unit,
upon its investigation of the incident, determined that Plaintiff had violated its policies
concerning use-of-force, unbecoming conduct, and disobedience to orders. (Resp. Ex. 12, Doc.
No. 31-7; see Mot. Ex. A [“Requests for Admission”], Doc. No. 27-1, at 3-4, RFA No. 9.) Those
findings were ultimately sustained, and the termination of Plaintiff’s employment was
recommended. (Mot. Ex. B at 6-9 [“Breister Affidavit”], Doc. No. 27-2, at ¶ 12; Resp. Ex. 13,
Doc. No. 31-8.) In lieu of termination, however, Plaintiff was suspended without pay,
temporarily demoted, and placed on probation. (Breister Aff. ¶ 12; Resp. Ex. 29, Doc. No. 3210, at 3.)
In the interim, on July 19, 2013, Plaintiff and three other EPSO employees, while off
duty, were involved in a physical fight at a local bar. (Breister Aff. ¶ 15; Resp. Ex. 8, Doc. No.
31-3.) Following an internal investigation into that incident, Plaintiff, once again, received
sustained findings of unbecoming conduct and disobedience to orders. (Req. for Admis. 4 at
RFA No. 10; Resp. Ex. 9, Doc. No. 31-4; Resp. Ex. 11, Doc. No. 31-6.)

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Following these events, in early 2017, Smith’s coworker, Deputy Jane Roe [“Deputy
Roe”], made two respective complaints of sexual harassment and retaliation against EPSO.2
(Mot. Ex. B at 1-3 [“Matter Affidavit”], Doc. No. 27-2, at ¶¶ 5, 8.) Both complaints were
investigated by El Paso County Human Resources [“HR”] representative, Harmony Matter [“Ms.
Matter”]. (Id. at ¶¶ 6, 9.) On March 23, 2017, Ms. Matter informed Smith that she “needed to
interview him” regarding Deputy Roe’s retaliation allegations, specifically. (Id. at ¶ 12.) Smith
was advised that “his cooperation was expected per EPSO Policy.” (Id.) That same day,
Plaintiff provided a statement to Ms. Matter, which “include[ed] his observations of how Deputy
Roe had been treated.” (Compl. ¶ 18; see Matter Aff. ¶ 13.) Six weeks later, on May 3, 2017,
Ms. Matter completed her investigation into Deputy Roe’s retaliation complaint. (Matter Aff. ¶¶
16-17.) At no time did Ms. Matter disclose Plaintiff’s involvement in the investigation to EPSO.
(Id. at ¶¶ 11, 14-15.)
On May 12, 2017, shortly after 1:00 a.m., Plaintiff was involved in another use-of-force
incident with an ECJ inmate. (Compl. ¶ 24; Mot. 3 ¶ 13; Resp. Ex. 23, Doc. No. 31-13.) Eight
and a half hours later, at approximately 9:30 a.m., the EPSO Undersheriff, Joseph Breister
[“Undersheriff Breister”], reviewed video footage of the incident, and concluded that Smith’s
actions “appeared” to involve “the application of unlawful excessive use of force against [the
ECJ inmate].” (Breister Aff. ¶¶ 10-11.) Undersheriff Breister referred the matter to the

2

Roe’s complaints concerned the actions of another ESPO employee, who is not a party to this
lawsuit. (Resp. Ex. 15, Doc. No. 32-7, at 195:15-18, 245:6-7.)
3

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Professional Standards Unit [“PSU”] 3 for further investigation. (Id. at ¶¶ 16-17; see Resp. Ex.
23, Doc. No. 31-13.) Plaintiff was then placed on “immediate paid administrative leave,”
pending the completion of the PSU investigation. (Breister Aff. ¶ 16; Compl. ¶ 26; Mot. 3 ¶ 14.)
Shortly thereafter, on May 15, 2017, Deputy Roe sent an email to El Paso County HR,
stating her belief that Plaintiff “was being retaliated against for his involvement in the
investigation of her sexual harassment and retaliation complaints,” and that he was “being
discriminated against because of his race.” (Compl. ¶¶ 44-45, 48; [“Answer”], Doc. No. 15, at 67; see Matter Aff. ¶ 20.) That same day, Plaintiff also sent an email to Ms. Matter, in which he
stated that he “felt that he was being treated unfairly by the [EPSO] chain of command[.]”
(Compl. ¶¶ 48-49; Answer 7; Matter Aff. ¶ 22.)
On June 5, 2017, PSU completed its investigation into the use-of-force allegations against
Plaintiff. (Compl. ¶ 28; Mot. 3 ¶ 17.) The investigative findings were submitted to Undersheriff
Breister, who then referred the results to the Disciplinary Action Board [“DAB”], pursuant to
EPSO policy. (Breister Aff. ¶ 18; Resp. Ex. 23, Doc. No. 31-13.)
Two days later, on June 7, 2017, Plaintiff, by email, lodged a formal complaint of race
discrimination and retaliation against his employer with El Paso County HR. (Compl. ¶¶ 59-60;
Answer 7-8; Matter Aff. ¶ 23.) In the email, Plaintiff referenced a recent use-of-force incident
involving two white EPSO deputies, as “evidence that he was being subjected to race
discrimination.” (Compl. ¶ 62; Answer 8.)

3

PSU, also known as “Internal Affairs,” is an EPSO division that conducts internal investigations
into employees and their actions. (Compl. ¶ 27; Mot. 3 ¶ 17.) The record is unclear as to whether,
or to what extent, PSU is related to the Internal Affairs Unit.
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Two days later, on June 9, 2017, the DAB held a hearing to review the PSU’s findings as
to Plaintiff’s use-of-force. (Mot. Ex. B, Doc. No. 27-2, at 10 ¶ 4, 12 ¶ 3, 14 ¶ 3, 16 ¶ 3, 18 ¶ 3;
Resp. Ex. 28, Doc. No. 31-18.) All four DAB members, including Smith’s chosen
representative, recommended the termination of Smith’s employment, “based on the May 2017
incident and based on [] Smith’s prior sustained Use of Force history.” (Mot. Ex. B, Doc. No.
27-2, at 10 ¶ 7, 12 ¶¶ 5-6, 14 ¶¶ 5-6, 16 ¶¶ 5-6, 18 ¶¶ 5, 7-8; Resp. Ex. 28, Doc. No. 31-18.)
In accordance with EPSO policy, the DAB’s termination recommendation was then
forward to Sheriff Elder, who scheduled to meet with Smith on June 12, 2017. (Breister Aff. ¶ 9;
Mot. Ex. C, Doc. No. 27-3, at 6-7; Mot. Ex. D, Doc. No. 27-4, at 1.) Smith, however, did not
meet with Sheriff Elder. (Breister Aff. ¶ 20.) Rather, by email dated June 12, 2017, Plaintiff
resigned from his position with EPSO. (Compl. ¶ 68; Mot. 4 ¶ 25; Mot. Ex. D, Doc. No. 27-4, at
2.) Plaintiff now alleges that he was “forced to resign his employment under threat of
termination,” due to his race, as well as “his opposition to discrimination and participation in an
investigation of a complaint of discrimination.” (Compl. ¶¶ 1, 86.)
Based on these events, Plaintiff filed a timely charge of discrimination with the Equal
Employment Opportunity Commission [“EEOC”]. (Id. at ¶ 4; Answer 1.) On August 3, 2018,
after receiving notice of his right to sue from the EEOC, Plaintiff filed this action, asserting Title
VII claims for race discrimination and retaliation. (Compl. ¶¶ 5-6, 88-103.) At the close of
discovery, on September 12, 2019, Defendant moved for summary judgment on both of
Plaintiff’s claims. (Mot. 1.)

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STANDARD OF REVIEW
Summary judgment is appropriate if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial
burden of showing an absence of evidence to support the nonmoving party’s case. Celotex, 477
U.S. at 325. “Once the moving party meets this burden, the burden shifts to the nonmoving party
to demonstrate a genuine issue for trial on a material matter.” Concrete Works, Inc. v. City &
County of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (citing Celotex, 477 U.S. at 325). The
nonmoving party may not rest solely on the allegations in the pleadings, but instead, must
designate “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at
324; see also Fed. R. Civ. P. 56(c).
“A ‘judge’s function’ at summary judgment is not ‘to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for trial.’” Tolan v.
Cotton, 572 U.S. 650, 656 (2014) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 249
(1986)). Whether there is a genuine dispute as to a material fact depends upon “whether the
evidence presents a sufficient disagreement to require submission to a jury,” or conversely,
whether the evidence “is so one-sided that one party must prevail as a matter of law. Carey v.
U.S. Postal Service, 812 F.2d 621, 623 (quoting Anderson, 477 U.S. at 251-52). A disputed fact
is “material” if “under the substantive law it is essential to the proper disposition of the claim.”
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Anderson, 477 U.S. at
248). A dispute is “genuine” if the evidence is such that it might lead a reasonable jury to return
a verdict for the nonmoving party. Thomas v. Metropolitan Life Ins. Co., 631 F.3d 1153, 1160

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(10th Cir. 2011) (citing Anderson, 477 U.S. at 248). “Where the record taken as a whole could
not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for
trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First
Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
In evaluating a motion for summary judgment, a court may consider admissible evidence
only. See Johnson v. Weld Cty., 594 F.3d 1202, 1209–10 (10th Cir. 2010). The factual record
and reasonable inferences therefrom are viewed in the light most favorable to the party opposing
summary judgment. Concrete Works, 36 F.3d at 1517. However, this standard does not require
the court to make unreasonable inferences in favor of the non-moving party. Carney v. City &
Cty. of Denver, 534 F.3d 1269, 1276 (10th Cir. 2008). The nonmovant must establish, at a
minimum, an inference of the presence of each element essential to the case. Hulsey v. Kmart,
Inc., 43 F.3d 555, 557 (10th Cir. 1994).
ANALYSIS
A. The Legal Standard for Title VII Discrimination and Retaliation Claims
Under Title VII, it is unlawful for an employer to discriminate against an employee
because of his “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000(e)-2(a). In
addition, pursuant to 42 U.S.C. § 2000e-3(a), it is unlawful “for an employer to discriminate
against any of his employees . . . because he has opposed any practice made an unlawful
employment practice by [Title VII].”
Claims of employment discrimination or retaliation can be established through either
direct or circumstantial evidence. DePaula v. Easter Seals El Mirador, 859 F.3d 957, 969 (10th
Cir. 2017) (discrimination); Fye v. Okla. Corp. Comm’n, 516 F.3d 1217, 1226 (10th Cir. 2008)

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(retaliation). If a plaintiff relies on circumstantial evidence, as Smith does here, his claim is
analyzed under the McDonnell Douglas burden-shifting framework. Singh v. Cordle, 936 F.3d
1022, 1037, 1042 (10th Cir. 2019). Under this framework, the plaintiff has the initial burden of
making a prima facie case. Id. at 1037 (citing DePaula, 859 F.3d at 969-70). If he does so, the
burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for the
adverse employment action. Id. (quoting Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 627
(10th Cir. 2012)). Once such a showing has been made, the burden shifts back to the plaintiff to
prove that the employer’s proffered reason is a pretext. Id. (quoting Daniels, 701 F.3d at 627).
B. The Race Discrimination Claim
To establish a prima facie case of race discrimination under Title VII, a plaintiff must
show: (1) membership in a protected class; (2) qualifications for the position at issue; (3) an
adverse employment action; and (4) the adverse employment action “occurred under
circumstances which give rise to an inference of unlawful discrimination.” Singh, 936 F.3d at
1037 (quoting Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1229 (10th Cir. 2000)).
Here, Defendant does not dispute, for purposes of the summary judgment analysis, that
Plaintiff has met the first two elements of his prima facie case. (Mot. 5.) Instead, Sheriff Elder
contends that Smith cannot satisfy the third and fourth element of his claim. (Id.) Specifically,
as to the third element, Defendant argues that “[s]ince Plaintiff voluntarily resigned, he cannot
claim he was subject to adverse employment action.” (Id. at 6.) Sheriff Elder likewise argues
that Smith cannot prove the fourth element of his claim, because there is no evidence “that he
was treated less favorably that similarly situated individuals.” (Id.)

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Adverse Employment Action
“[T]he substantive discrimination provisions of Title VII are limited ‘to adverse actions
that affect employment or alter the conditions of the workplace.’” Piercy v. Maketa, 480 F.3d
1192, 1203 (10th Cir. 2007) (quoting Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 62
(2006)) (alteration omitted). In the Tenth Circuit, the phrase “adverse employment action” is
“liberally” defined, in that “[s]uch actions are not simply limited to monetary losses in the form
of wages or benefits.” Stinnett v. Safeway, Inc., 337 F.3d 1213, 1217 (10th Cir. 2003) (quoting
Sanchez v. Denver Pub. Schs., 164 F.3d 527, 532 (10th Cir. 1998)). In determining whether an
employee has suffered an adverse employment action, the court must “take a case-by-case
approach, examining the unique factors relevant to the situation at hand.” Id. At minimum, a
plaintiff must show an “objective demotion,” or some other “significant change in employment
status," such as termination, a decrease in pay, a reassignment with markedly different
responsibilities, or “a decision causing a significant change in benefits.” Daniels v. United
Parcel Serv., Inc., 701 F.3d 620, 635 (10th Cir. 2012) (quoting Piercy v. Maketa, 480 F.3d 1192,
1203 (10th Cir. 2007)); accord Hiatt v. Colo. Seminary, 858 F.3d 1307, 1316 (10th Cir. 2017).
“Proof of either actual or constructive discharge satisfies this requirement.” Fischer v.
Forestwood Co., Inc., 525 F.3d 972, 979 (10th Cir. 2008) (citation omitted). But a “mere
inconvenience or an alteration of job responsibilities” will not suffice. Hiatt, 858 F.3d at 1316
(quoting Piercy, 480 F.3d at 1203); see Robinson v. Cavalry Portfolio Servs., LLC, 365 F. App’x
104, 114 (10th Cir. 2010) (“While adverse employment actions extend beyond readily
quantifiable losses, not everything that makes an employee unhappy is an actionable adverse

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action. Otherwise, minor and even trivial employment actions . . . would form the basis of a
discrimination suit.”).
Turning to its analysis, the court considers, first, whether the evidence establishes
Plaintiff’s actual discharge. “An actual discharge . . . occurs when the employer uses language
or engages in conduct that would logically lead a prudent person to believe his tenure has been
terminated.” Fischer, 525 F.3d at 979-80 (quoting Chertkova v. Conn. Gen. Life Ins. Co., 92
F.3d 81, 88 (2d Cir. 1996)). “An actual discharge does not occur, however, when the employee
chooses to resign rather than work under undesirable conditions.” Id. at 980 (citation omitted).
Here, the record unequivocally shows that Smith resigned from his position with EPSO.
(See Compl. ¶ 68; Answer 8; Mot. Ex. D, Doc. No. 27-4, at 2.) Indeed, in his June 12, 2017
email, Smith explicitly states: “This Letter serves to confirm that I am resigning my position
from the El Paso County Sheriff’s Office effective immediately.” (Mot. Ex. D, Doc. No. 27-4, at
2.) Therefore, because Smith resigned, he cannot rely on a theory of actual discharge to prove
his prima facie case. See Fischer, 525 F.3d at 980.
“Even if an employee resigns, the plaintiff may still satisfy the adverse employment
action requirement by demonstrating that he was constructively discharged.” Fischer, 525 F.3d
at 980. However, the burden to establish constructive discharge “is substantial.” Id. (citing
EEOC v. PVNF, LLC, 487 F.3d 790, 805 (10th Cir. 2007)). “A constructive discharge occurs
only ‘when an employer, through unlawful acts, makes working conditions so intolerable that a
reasonable person in the employee’s position would feel compelled to resign.’” Id. (quoting
Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1135 (10th Cir. 2004)). “The question is not
whether the employee’s resignation resulted from the employer’s actions, but whether the

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employee had any other reasonable choice but to resign in light of those actions.” Potts v. Davis
Cty., 551 F.3d 1188, 1194 (10th Cir. 2009) (quoting Tran v. Trs. of State of Colls. of Colo., 355
F.3d 1263, 1270 (10th Cir. 2004)). In other words, the employee must show that he had “no
other choice but to quit.” Id. (quoting Yearous v. Niobrara Cty. Mem. Hosp., 128 F.3d 1351,
1356 (10th Cir. 1997)) (emphasis in original). Whether an employee’s resignation is voluntary is
evaluated objectively, based on the totality of the circumstances. Fischer, 525 F.3d at 980
(citing Exum, 389 F.3d at 1136).
Here, Smith argues that he was “coerced” into resigning, even though he “was given the
option of resigning in lieu of termination,” because he was informed beforehand that Sheriff
Elder “would not overturn the DAB’s termination recommendation.” (Resp. 14.) As evidence
of his constructive discharge, Smith points to his own deposition testimony, in which he
described the circumstances of his resignation, as follows:
A. After talking to Lisa Kirkland, she stated that Sheriff Elder wouldn’t . . .
overturn the termination - - the sustained termination, so at that point, I figured it
was . . . necessary to - - she said it would be easier to resign than to have a
termination on my . . . background, so I thought that was the best thing to do.
Q. So, you chose not to meet with Sheriff Elder to make a plea for - A. Correct. After Ms. Kirkman informed me of . . . her expert opinion, I didn’t
want to take the risk of having a termination . . . on my record.
(Resp. Ex. 15, Doc. No. 32-7, at 183:3-18.) Plaintiff also points to his former employer’s EEOC
Position Statement, in which EPSO “admits Mr. Smith chose to resign on June 12, 2017 rather
than being terminated.” (Resp. Ex. 29, Doc. No. 32-10, at 31-30.) Smith argues that this
statement is “an admission” that he “would have been terminated if he had not resigned.” (Resp.
14.)

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This evidence falls short of creating a material fact issue as to whether Plaintiff’s
resignation was objectively involuntary. First, the uncontroverted record shows that, prior to his
resignation, Smith had the opportunity to meet with Sheriff Elder to appeal the DAB’s
termination recommendation. (Mot. Ex. C, Doc. No. 27-3, at 6-7; Mot. Ex. D, Doc. No. 27-4, at
1.) Instead of meeting with Sheriff Elder, however, Plaintiff chose to resign. (See Mot. Ex. D at
2.) Thus, at the time of his resignation, Plaintiff had at least one alternative to quitting that was
still available to him. See Exum, 389 F.3d at 1136 (finding an employee’s resignation to be
voluntary, where the evidence showed that, “[i]nstead of resigning, [he] could have chosen to
comply with his superior’s order or, alternatively, refused to comply and faced the possible
consequences of that choice”); see also Potts, 551 F.3d at 1194 (stating relevant factors to
include “whether [the employee] was given some alternative to resignation”).
Importantly, Plaintiff 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. See Fischer, 525 F.3d at
982. Plaintiff does allege that EPSO exhibited a “culture of discrimination,” and that black
employees, including himself, “experienced race discrimination at EPSO.” (Resp. 2.) As
evidence, Plaintiff has submitted deposition testimony from his former coworker, Detective
Tremaine White. (Resp. Ex. 3 [“White Deposition”], Doc. No. 32-3.) Detective White, who is
black, testified that, on two separate occasions, he overheard white EPSO employees use racial
slurs to refer to black individuals. (Id. at 186:16-189:2.) White further testified that his
supervisor once required him to get a haircut, which he deemed to be a “discriminatory” and
“race specific” request. (Id. at 23:6-17, 194:15-195:6.) But evidence of discriminatory remarks

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and innuendo, which were directed at another employee, cannot form the basis of a viable
constructive discharge claim. See Fischer, 525 F.3d at 982 (“Evidence that Forestwood engaged
in discriminatory acts against other employees or potential employees, however, is not enough to
prove constructive discharge.”); Daemi v. Church’s Fried Chicken, Inc., 931 F.2d 1379, 1384,
1386 (10th Cir. 1991) (finding that an Iranian plaintiff failed to establish that his workplace
conditions were sufficiently intolerable to prove constructive discharge, despite evidence that his
employer made disparaging remarks about his ethnicity, ordered him to take a polygraph
examination due to his national origin, belittled and mistreated him at company seminars, and
ordered him to fire other Iranian employees); see also Anderson v. Clovis Mun. Schs., 265 F.
App’x 699, 707 (10th Cir. 2008) (“Anderson may have felt ‘ganged up on’ and ‘alone
oftentimes,’ but ‘given the objective standard, an employee’s subjective feelings or beliefs are
not relevant in a constructive discharge claim.”). For those reasons, Plaintiff has failed to show
that he was constructively discharged.
In his Complaint, Plaintiff also alleges the following employment actions to have been
unlawfully motivated by his race and protected activity: (1) his placement on paid administrative
leave,4 pending completion of the PSU investigation; (2) the referral of the PSU’s investigatory
findings to the DAB; and (3) the DAB’s recommendation to terminate his employment. (Compl.
¶¶ 55, 69, 86.) However, none of these actions rises to the level of an “adverse employment
action” under Title VII. First, placement on investigatory paid administrative leave is not

4

Plaintiff alleges that he was placed on unpaid administrative leave. (Compl. ¶ 43.) However,
the uncontroverted summary judgment evidence shows that he was, in fact, placed on paid
administrative leave. (Mot. Ex. B, Doc. No. 27-2, at 8 ¶ 16.) As such, there is no real dispute on
that issue.
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independently actionable as discrimination, where it causes no change to an employee’s pay or
benefits. See Juarez v. Utah, 263 F. App’x 726, 737 (10th Cir. 2008) (affirming that paid
administrative leave is a not a materially adverse action); Talbott v. Pub. Serv. Co. of N.M., No.
18-1102 SCY/LF, 2020 WL 2043481, at *13, 15 (D.N.M. Apr. 28, 2020) (“[B]eing placed on
paid administrative leave pending an investigation does not constitute an adverse action[.]”); see
also Lincoln v. Maketa, 880 F.3d 533, 542 (10th Cir. 2018) (holding that, for purposes of
qualified immunity, “placement on paid administrative leave” is not “a clearly established
adverse employment action”). And, there is no evidence that either the PSU’s investigation,
itself, or the referral of the PSU’s findings to the DAB, tangibly altered the terms or conditions
of Smith’s employment. See Carrero v. Robinson, No. 05-cv-02414-MSK-CBS, 2007 WL
1655350, at *10 (D. Colo. June 5, 2007) (holding that a workplace investigation, by itself, did
not constitute an adverse employment action, where the investigation “did not result in any
change to the terms or conditions of the Plaintiff’s employment”). Nor does the record show that
Plaintiff suffered any discernable loss in compensation, duties, or benefits from the DAB’s nonbinding termination recommendation. See Martinez v. City & Cty. of Denver, No. 08-cv-01503RBJ-MJW, 2012 WL 3842616, at *22 (D. Colo. Sept. 5, 2012) (finding that reports
recommending suspension were not “adverse employment actions” under Title VII, because the
reports “were not final and had no effect on Detective Rojas”); see also Wells v. Colo. Dep’t of
Transp., 325 F.3d 1205, 1214 (10th Cir. 2003) (holding that a supervisor’s “threat” to transfer an
employee was not actionable under Title VII, because it “did not in itself adversely affect” that
individual’s employment, given that the supervisor “had no authority to transfer” the employee).

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On this record, then, Plaintiff has failed to raise a genuine issue of material fact on
whether he suffered an adverse employment action. Without evidence of an adverse
employment action, Plaintiff cannot establish a prima facie case of discrimination under Title
VII. As a result, summary judgment is warranted as to this claim. As such, there is no need to
address Defendant’s other arguments for dismissal.
C. The Retaliation Claim
Smith alleges that he was unlawfully retaliated against for “participating in the
investigation of Deputy Roe’s sexual harassment and retaliation complaints,” as well as for his
“very vocal” support of Deputy Roe, his “opposition to discrimination and harassment in the
workplace,” and “his own complaint of race discrimination to [HR] on June 7, 2017.” (Compl.
¶¶ 1, 20; Resp. 24.) Sheriff Elder now moves to dismiss the retaliation claim, on the basis that
Smith cannot establish that he was subject to any materially adverse action. (Mot. 10.)
Defendant also argues that Plaintiff cannot show a causal connection between a protected
activity and retaliatory conduct. (Id. at 11.)
To establish a prima facie retaliation claim under Title VII, a plaintiff must show: (1)
engagement in activity protected under Title VII; (2) a “materially adverse” employment action;
and (3) a causal connection between the protected activity and the materially adverse
employment action. Singh v. Cordle, 936 F.3d 1022, 1042 (10th Cir. 2019) (citing Argo v. Blue
Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1202 (10th Cir. 2006)). “Title VII retaliation
claims must be proved according to traditional principles of but-for causation.” Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013). In other words, it must be proven “that the

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unlawful retaliation would not have occurred in the absence of the alleged wrongful action or
actions of the employer.” Id.
Here, even assuming Smith could prove that a materially adverse action was taken
against him, he has failed to identify competent summary judgment evidence to establish a “butfor” causal connection under Title VII. To establish the requisite causal connection, Smith must
show “that the decisionmakers took action against him out of a desire to retaliate for his formal
discrimination complaints.” Singh, 936 F.3d at 1043 (citing Hinds v. Sprint/United Mgmt. Co.,
523 F.3d 1187, 1203 (10th Cir. 2008)). “As a prerequisite to this showing, [Smith] must first
come forward with evidence from which a reasonable factfinder could conclude that those who
decided to [take adverse action against] him had knowledge of his protected activity.” Id.
In support of his motion for summary judgment, Sherriff Elder has submitted evidence to
show that no decisionmaker with respect to any of the claimed adverse actions—to investigate
the May 2017 use-of-force incident, to refer the matter to PSU, to make excessive force findings
against Plaintiff, to sustain those findings, or to recommend the termination of Plaintiff’s
employment—knew that Plaintiff had been involved in the investigation into Deputy Roe’s
complaints. (See Mot. 11.) Specifically, Sheriff Elder has produced affidavits from all four
DAB members, each of whom affirmed that, at the time of their decision, they had “no
knowledge whether or not Mr. Smith supported, participated, or complained of any harassment
relating to former Deputy Jane Roe or relating to himself.” (Mot. Ex. B, Doc. No. 27-2, at 10 ¶
8, 12 ¶ 8, 14 ¶ 8, 16 ¶ 8, 18-19 ¶ 10.) Defendant has likewise submitted evidence to show that
Undersheriff Breister “was unaware of any of [Smith’s] involvement in either Roe complaint”
when he made decisions to place Smith on paid administrative leave, and to refer the use-of-

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force incident to PSU. (Breister Aff. ¶¶ 22-23.) In addition, Defendant has submitted an
affidavit from Ms. Matter, in which she swears that no person within EPSO was ever made
aware of Smith’s participation in the HR investigation into Deputy Roe’s complaints. (Matter
Aff. ¶¶ 11, 14-15, 25.)
Smith, in response, argues that the El Paso County Attorney, Lisa Kirkman, was “present
throughout the investigation of Dep. Roe’s sexual harassment and retaliation complaints and was
advising the Sheriff and keeping him and [the Undersheriff] informed of the investigation.”
(Resp. 25.) As evidence, Plaintiff has submitted deposition testimony from Deputy Roe, in
which she averred that Lisa Kirkman was, in fact, “there throughout the process” of the HR
investigation into her complaints. (Resp. Ex. 16 [“Roe Deposition”], Doc. No. 31-9, at 17:1618:5.) When asked whether Lisa Kirkman informed Sheriff Elder of Smith’s participation in the
investigation, Deputy Roe responded: “I know what they told me in that room; that Lisa was
only there because she is advising the Sheriff and keeping him informed of my entire
investigation. My entire investigation includes everybody that came on record.” (Id. at 173:1521.) Plaintiff also references evidence showing that Undersheriff Breister “would occasionally
get an update from either the County Attorney or [County HR]” regarding the status of the Roe
investigation. (Resp. Ex. 7 [“Breister Deposition”], Doc. No. 32-5, at 96:4-24.)
This evidence, even construed most favorably to Plaintiff, fails to raise a triable issue of
fact as to whether an individual, who knew of Plaintiff’s protected activity, took materially
adverse action against him. Although it appears that Sheriff Elder and Undersheriff Breister did
come to learn of Smith’s involvement in the Roe investigation, there is no evidence that either
individual made a materially adverse decision as to his employment, specifically while in

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possession of that knowledge. Indeed, the uncontroverted evidence shows that Undersheriff
Breister did not know about Plaintiff’s protected activity, at all, when he decided to place him on
administrative leave and to refer the matter to PSU. (See Breister Aff. ¶¶ 22-23, 25.) And, to the
extent Sheriff Elder was ever made aware of Smith’s protected activity, no evidence shows that
he took any materially adverse action against him.5 See Davis v. Unified Sch. Dist. 500, 750
F.3d 1168, 1172-73 (10th Cir. 2014) (affirming summary judgment dismissal of a Title VII
retaliation claim, where there was “no evidence of any [decisionmaker]’s knowledge of [the
plaintiff’s] protected activity,” and “no reason to impute the HR Department’s knowledge to any
of them”); Byorick v. Cas, Inc., No. 14-cv-2200-WJM-KMT, 2016 WL 8469748, at *6 (D. Colo.
July 18, 2016) (“[T]he individual who took the materially adverse action was unaware of
Plaintiff’s protected opposition, while the individuals who were aware of it took only neutral
actions. On this record there is not a sufficient causal link[.]”).
Plaintiff also argues, in the alternative, that he has established causation based on the
close temporal proximity between the protected activity and the adverse employment actions.
(Resp. 24-25.) A “retaliatory motive may be inferred when an adverse action closely follows
protected activity.” Zisumbo v. Ogden Reg. Med. Ctr., 801 F.3d 1185, 1200 (10th Cir. 2015)
(quoting Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999)). Nevertheless,
“a plaintiff who seeks to show causation in this manner still must present evidence that the
decisionmakers knew of the protected conduct.” Singh, 936 F.3d at 1043 (emphasis in original);

5

In support of his retaliation claim, Plaintiff argues that he “was subjected to a materially adverse
employment action when his employment was terminated.” (Resp. 24.) However, as already
discussed supra, the summary judgment record unequivocally shows that Smith voluntarily
resigned from his position. As such, no materially adverse action occurred at that time.
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see also Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1171-72 (10th Cir. 2006)
(finding evidence that supervisor “knew” of the protected activity, at most, six weeks prior to
termination allowed for an inference of causation). Here, there is no evidence of such
decisionmaker knowledge. Plaintiff’s argument as to temporal proximity is, thus, without merit.
On this record, then, the evidence does not raise a genuine issue of material fact
regarding whether any decisionmaker knew of Plaintiff’s protected conduct. As such, Plaintiff
cannot establish the requisite causal connection to prove his prima facie case of retaliation. See
Singh, 936 F.3d at 1043. Therefore, summary judgment is warranted on this claim, as well.
C. Legitimate, Non-Discriminatory Reason
As a final matter, even assuming, in an abundance of caution, that Smith had established
a prima facie case under Title VII, he has failed to rebut Sheriff Elder’s legitimate, nondiscriminatory reason for his actions during the use-of-force investigation. Defendant has
presented evidence showing that all employment actions taken against Plaintiff were based on
his “prior sustained Use of Force history.” (Mot. Ex. B, Doc. No. 27-2, at 10 ¶ 6, 12 ¶ 5, 14 ¶ 5,
16 ¶ 5, 18 ¶ 7; Breister Aff. ¶¶ 16, 25.) Plaintiff has presented no evidence that raises a genuine
issue on whether Defendant’s proffered reason is pretextual.
Accordingly, it is

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ORDERED that “Defendant’s Motion for Summary Judgment Pursuant to Fed. R. Civ.
P. 56(c)” (Doc. No. 27) is GRANTED. Plaintiff’s case is hereby DISMISSED with prejudice
to a refiling.
Dated this 8th day of September, 2020.

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