By Brandi O. Brown, J.D.
A police chief named individually in a lawsuit by an African-American sergeant who alleged that the chief tolerated a campaign of racial harassment against him and retaliated against him after he complained, remained unable to extract himself from the suit on appeal. The Fifth Circuit agreed with the district court that the chief was not entitled to qualified immunity on the Section 1981 race and retaliation claims, which were sufficiently pleaded. However, the chief was entitled to qualified immunity on the employee’s First Amendment claim. The district court’s decision was affirmed in part (Johnson v. Halstead, December 19, 2018, Costa, G.).
Assumed responsible for discrimination complaint. The plaintiff, a longtime Fort Worth police officer, was promoted to sergeant, becoming the only African-American supervisor in the Traffic Division. Several years later, another officer complained about a picture in the office that depicted a sergeant holding a noose around a snowman’s neck. It was reported and the sergeants involved (the one in the picture and the one taking it) received a Commander’s Admonishment. Angered by the punishment of his colleagues, another sergeant targeted the plaintiff, whom he identified to others as “now their enemy” and not to be trusted. He publicly criticized, intimidated, undermined, and ostracized the plaintiff. He went so far as to accuse him of stealing money from a grant program, accusations that were repeatedly investigated and rejected.
Chief in the know. According to the plaintiff, the chief of police was fully aware of what was happening. The plaintiff filed multiple complaints with HR and met with the chief about it on multiple occasions. He alleged that the chief told him at one point that he had “failed him” and that he would “make it right.” He didn’t. Instead, three months after that promise, he transferred the plaintiff from the day shift in the Traffic Division, where he had been for nearly a decade, to one of the department’s worst shifts. The change, which forced him to work evenings from Friday through Monday, resulted not only in adverse effects on his social relationships, but it cost him income from a part-time job he had held for 11 years. His opportunity for overtime work was also diminished.
Independent investigators find HWE. Nothing was done, in fact, until complaints were made by others, including the Fort Worth Black Police Officers Association. The department hired independent investigators, who released a report finding the department had tolerated and allowed a hostile work environment to exist for three years that was based on race and retaliation against the plaintiff for his prior complaints. The chief then made a public statement in which he recognized that the plaintiff had been discriminated against. The plaintiff was returned to his day shift in the Traffic Division.
Lawsuit. The sergeant sued the chief in his individual capacity, as well as the city and the successor chief. The district court dismissed the sergeant’s claims against the chief to the extent they were based on his own harassment of the sergeant, but it allowed the sergeant to proceed with race-based claims against the chief based on supervisory liability and retaliation, as well as a First Amendment retaliation claim. The chief appealed.
No immunity on race-based HWE. First, the appeals court put to rest the chief’s misguided argument that it was unclear whether a race-based hostile work environment violated the Equal Protection Clause. The court found no shortage of long-standing caselaw standing for the proposition that it did. Moreover, the sergeant sufficiently alleged that he faced a racially hostile work environment. The sustained harassment undermined his ability to work. He was bullied, intimidated, falsely accused, called names, undermined, and marginalized. In fact, the tension between the employee and his tormentor was described by others as “so intense that the potential for physical aggression and altercation appeared imminent.” This environment existed for three years and the chief publicly admitted not only that it occurred but that it was based on the sergeant’s race.
Deliberate indifference. Finally, the sergeant sufficiently alleged that the chief was deliberately indifferent to the racially hostile work environment. There was no dispute he knew about it. In fact, his later apology corroborated it and the chief met with the sergeant soon after he complained to HR about it. Indeed, the investigators also concluded that there was “widespread knowledge” of the sergeant’s situation and that the “Chain of Command” knew about it. The sergeant sufficiently alleged that in spite of this knowledge, the chief did nothing to try and stop it. In fact, he alleged that the chief admitted to having “failed him” and promised to “make it right.”
Not immune from Section 1981 retaliation. Likewise, the chief was not entitled to qualified immunity on the retaliation claim. Contrary to his assertion, it was established that the “materially adverse” standard applied to retaliation claims under Section 1981, and the sergeant sufficiently alleged the transfer was materially adverse. While a shift change might not, alone, be sufficient, one that places a substantial burden on an employee could dissuade that employee from reporting discrimination.
Here, the sergeant alleged that the change put him on one of the worst shifts in the department and resulted in a substantial financial loss for him ($50,000). He also showed that it was plausible the transfer was because of his complaint—he was transferred shortly after complaining from a position he had held for eight years and then he was returned to his previous shift immediately after the investigator’s report was released.
Immune from First Amendment claim. However, the appeals court reversed the district court decision to the extent that it found that the chief was not entitled to qualified immunity on the First Amendment retaliation claim. The lower court had correctly determined that the sergeant’s concerns about racial hostility in the police department was a matter of public concern, but it failed to consider whether the employee was speaking as a citizen. He was not—instead he was making a complaint up the chain of command about workplace conditions. Such complaints are often held to be unprotected.
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