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Johnson v. Halstead

United States Court of Appeals, Fifth Circuit

February 14, 2019

DELBERT JOHNSON, Plaintiff-Appellee
v.
JEFFREY HALSTEAD, individually, Defendant-Appellant

          Appeal from the United States District Court for the Northern District of Texas

          Before HIGGINBOTHAM, DENNIS, and COSTA, Circuit Judges.

         ON PETITION FOR REHEARING AND REHEARING EN BANC

          GREGG COSTA, Circuit Judge:

         The petition for rehearing is DENIED and no member of this panel nor judge in active service having requested that the court be polled on rehearing en banc, the petition for rehearing en banc is also DENIED. The following is substituted in place of our opinion.

         Delbert Johnson is a sergeant with the Fort Worth Police Department. He alleges that over a three-year period he was subjected to a campaign of isolation, harassment, and ridicule because he is African-American. Investigators hired by the City to look into Johnson's complaint (and those of two other officers) agree with the sergeant. Their report found that Johnson was "repeatedly subjected to behavior that was hostile, intimidating, and[] bullying, and it was done publicly over a period of more than three years." It also concluded that although Johnson reported the harassment to upper management, including Chief of Police Jeffrey Halstead, the Department "did not step forward to stop the conflict-allowing the continuation of behavior contributing to 'hostile work environment' conditions." Instead, Halsted transferred Johnson to one of the worst shifts in the department. We decide whether Johnson has alleged enough at the pleading stage to overcome Chief Halstead's qualified immunity defense to claims of hostile work environment and retaliation.

         I.

         Johnson has been a police officer in Fort Worth since 1990.[1] He served in multiple roles until being promoted to sergeant and assigned to Traffic Division in 2005. Several years later, Johnson-Traffic Division's only African-American supervisor-was approached by an African-American officer about an offensive picture found in the office. The picture, taken by Sergeant Mike Cagle, depicted Sergeant Ann Gates holding a noose around a snowman's neck. An unspecified officer, not Johnson, reported the picture to Internal Affairs. IA determined that Gates and Cagle had violated Department policies and punished them with a Commander's Admonishment.

         Unhappy over the admonishment of his colleagues, Sergeant David Stamp began to take actions to isolate and undermine Johnson. Stamp allegedly gathered a group of supervisors within the Traffic Division and told them that they should "watch out for and avoid [Sergeant] Johnson . . . who was now their enemy and could not be trusted." Stamp also publicly criticized Johnson to other supervisors, officers, and civilian employees; conspired with others to boycott certain meetings and assignments overseen by Johnson; and attempted to sabotage one of Johnson's assignments by trying to convince other officers not to work on a federal grant Johnson managed.

         Two years after this conduct began, Stamp sent an anonymous letter to Chief Halstead accusing Johnson of stealing money from that same grant program. As a result of Stamp's letter, three different investigative teams audited the federal grant, all of them failing to find any evidence of wrongdoing. One of the investigators told Johnson, "S[ergeant] Stamp tried to take you down hard." Once Johnson was cleared of any wrongdoing, Stamp reportedly said that "the only reason that S[ergeant] Johnson was not arrested was because he was black."

         But Stamp is not a party to this lawsuit; it is against Halstead. Johnson's claims hinge on Halstead's alleged retaliation and his response to the discriminatory environment. Johnson first met with Halstead after filing a complaint with human resources in which he alleged "pervasive race discrimination." Johnson filed several follow up complaints, and after 37 days, he met with Halstead to discuss the alleged discrimination. Halstead told Johnson that he had "failed him" and would "make it right."

         Three months after they met, Halstead transferred Johnson from the day shift in Traffic Division, where Johnson had been for eight years, to Second Shift West Division, which Johnson describes as "one of the worst shifts in the entire police department." Johnson's work hours changed from 6:00 am to 2:00 pm, Monday through Friday, to 4:00 p.m. to 2:00 a.m., Friday through Monday. Johnson contends that this change to the evening shift had a negative effect on his social relationships and cost him $50, 000 in lost income because it diminished opportunities for overtime and forced him to leave a part-time job that he had held for 11 years.

         Several weeks before being transferred, Johnson had applied for an open position as Jail Sergeant. The hiring official allegedly wanted to hire Johnson, and no one else applied for the position. But Halstead and upper-level officials blocked Johnson from the position and removed the job posting even though no one had filled it.

         During this time, Lieutenant Glenn Edney and the Fort Worth Black Police Officers Association filed complaints with the Department alleging race-based discrimination and retaliatory treatment by supervisory and senior-level officials. Once informed of the complaints, the City of Fort Worth responded by hiring Coleman & Associates to perform an independent investigation of the three complaints, including Johnson's. After ten months of investigation, Coleman released a report finding that the Department "tolerated and allowed a hostile work environment over a three year time period that was based on race and retaliation for [Johnson's] prior complaints of race discrimination and harassment."

         Following the release of the report, Halstead posted a video to the Department's YouTube channel in which he recognized that Johnson and another officer had been discriminated against on the basis of race and apologized for that treatment. ...


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