from the United States District Court for the Northern
District of Texas
HIGGINBOTHAM, DENNIS, and COSTA, Circuit Judges.
PETITION FOR REHEARING AND REHEARING EN BANC
COSTA, Circuit Judge:
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
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.
has been a police officer in Fort Worth since
1990. 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.
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
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."
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."
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.
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.
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
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. ...