Trial News

The Fifth Circuit has ruled that a Texas police officer may proceed with claims against a former chief of police for his role in creating a hostile work environment and retaliating against the officer for reporting race discrimination and harassment. The court rejected the defendant’s argument that he is entitled to qualified immunity. (Johnson v. Halstead, 2019 WL 625144 (5th Cir. Feb. 14, 2019).)

Delbert Johnson began working in the Fort Worth Police Department in 1990 and became the department’s only African-American traffic division supervisor in 2005. In 2010, another African-American officer showed Johnson an offensive photo that was found in the station. The photo showed a police officer holding a noose around a snowman’s neck. Another officer, not Johnson, reported the picture to Internal Affairs, and two officers involved in taking the photo later received formal admonishments.

Sergeant David Stamp, unhappy that his colleagues had been punished, began to criticize and professionally sabotage Johnson. Stamp, for example, sent an anonymous letter to then Chief of Police Jeffrey Halstead, claiming that Johnson had been stealing federal grant money. After three different investigative teams cleared Johnson of any wrongdoing, Stamp reportedly said that the only reason Johnson was not arrested “was because he was black.”

In 2013, after years of Stamp’s harassment, Johnson filed a complaint with the department alleging pervasive race discrimination and met with Halstead to discuss his grievances. Three months after this meeting, Halstead transferred Johnson from the weekday day shift, where Johnson had served for eight years, to a weekend night shift. In addition, Halstead allegedly blocked Johnson from being hired as a jail sergeant even though Johnson was qualified and no one else had applied for the position.

During this time, independent investigators hired by the city after allegations of racial bias within the police department released a report finding that the department had “tolerated and allowed a hostile work environment . . . that was based on race and retaliation for [Johnson’s] prior complaints of race discrimination and harassment.” The report concluded that Stamp’s “insulting, demeaning, and offensive behavior” continued for years “in part because the department leadership failed to take directed action as required by” department policies.

Johnson sued the city, Halstead in his individual capacity, and Halstead’s successor in her official capacity, asserting 42 U.S.C. §1981 and §1983 claims for race discrimination and hostile work environment. Halstead invoked qualified immunity and moved for judgment on the pleadings. The district court allowed three of Johnson’s claims against Halstead to proceed, including a §1983 claim for hostile work environment based on supervisory liability and a §1981 retaliation claim.

Halstead appealed, and the Fifth Circuit analyzed whether—by showing a constitutional violation of rights clearly established at the time of Halstead’s conduct—Johnson’s complaint overcame the qualified immunity defense. The court noted that the Fourteenth Amendment’s equal protection clause protects against racially hostile work environments and found that Johnson had met his burden by alleging “sustained harassment that undermined his ability to work,” including “concrete examples of how the racial intimidation” affected his work performance. “If these allegations are not plausible when they are corroborated by investigators the employer hired, it is tough to imagine when they will ever be,” the court wrote.

The Fifth Circuit found, as required for a §1983 claim based on supervisory liability, that Johnson had properly pleaded that Halstead was “deliberately indifferent” to the hostile work environment. There was no dispute over whether Halstead knew about the alleged harassment, and the outside investigators had identified that department leaders had failed to act appropriately to stop a pattern of offensive behavior. These allegations and others, the court ruled, supported the claim and entitled Johnson to move forward with discovery.

Turning to the §1981 claim, the court rejected Halstead’s argument that he was entitled to qualified immunity because Johnson had not established that his transfer to the night shift was an adverse employment action. The standard is not, the court clarified, whether an employment decision is tantamount to a demotion. Citing Burlington Northern & Santa Fe Railway Co. v. White (548 U.S. 53 (2006)), the court noted that—like claims brought under Title VII—plaintiffs bringing §1981 retaliation claims need only show a “materially adverse” employment decision that might have “dissuaded a reasonable worker from making or supporting a charge of discrimination.”

Although a shift change alone may not meet that standard, here Johnson had alleged “substantial burdens” that resulted from the change, including a significant financial loss caused by having to quit a part-time weekend job that he had held for 11 years. Johnson also successfully pleaded that—because the shift change came just three months after he met with Halstead about his discrimination complaint—it was “plausible that he was transferred because he complained about discrimination”

“It can be challenging to argue that a workplace change constitutes retaliation, and the Fifth Circuit’s discussion of evidence that can be persuasive on this point should be helpful to plaintiff attorneys,” said Washington, D.C., attorney Raymond Jones, who handles employment discrimination cases. “I would also highlight the harsh reality this case shows—that workers often put up with severe harassment in the workplace for years, not knowing that the law supports their right to be free of this type of discrimination.”