Opinion
ACTION NO. 4:14-CV-1016-Y
2021-09-30
David K. Watsky, Bob Gorsky, John Philip Snider, Lyon Gorsky Gilbert & Livingston LLP, Dallas, TX, for Delbert Johnson. Carolyn McFatridge, Kelly Christine Riba Albin, City of Fort Worth Office of the City Attorney, Fort Worth, TX, for City of Fort Worth. Carolyn McFatridge, Kelly Christine Riba Albin, City of Fort Worth Office of the City Attorney, Kenneth E. East, Law Office of Kenneth E. East, Fort Worth, TX, for Jeffrey Halstead.
David K. Watsky, Bob Gorsky, John Philip Snider, Lyon Gorsky Gilbert & Livingston LLP, Dallas, TX, for Delbert Johnson.
Carolyn McFatridge, Kelly Christine Riba Albin, City of Fort Worth Office of the City Attorney, Fort Worth, TX, for City of Fort Worth.
Carolyn McFatridge, Kelly Christine Riba Albin, City of Fort Worth Office of the City Attorney, Kenneth E. East, Law Office of Kenneth E. East, Fort Worth, TX, for Jeffrey Halstead.
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
TERRY R. MEANS, UNITED STATES DISTRICT JUDGE
Pending before the Court is the Motion for Summary Judgment on the Issue of Qualified Immunity (doc. 89) filed by defendant Jeffrey Halstead. After review of the motion, the related briefs, and the applicable law, the Court concludes that the motion should be denied. I. Factual Background
Unless otherwise noted, all facts related in this section are as alleged in Johnson's Second Amended Complaint (doc. 78).
Plaintiff Delbert Johnson began working for the Fort Worth Police Department ("the FWPD") in 1990. In 2000, he was promoted to sergeant and assigned to work patrol in the south division on the day shift. In 2005, Johnson was transferred to the day shift in the traffic division, which allowed him to have Saturdays and Sundays off work.
In 2010, fellow police officer James Dunn told Johnson about a picture that had been left on the office printer. The picture, which had been taken by Sergeant Mike Cagle, showed Sergeant Ann Gates holding a noose around a snowman's neck. Both Johnson and Dunn, who are African-American, "were offended by the connotations that picture brought up." (Second Am. Compl. (doc. 78) 2, ¶ 7.) Nevertheless, when Johnson met with Gates about the matter, he concluded that she "had made an innocent attempt to make fun of herself" and that "she had no intentions of the picture having any racial implications." (Halstead's App. (doc. 91) 124.) Nevertheless, other officers notified Assistant Chief Abdul Pridgen about it, and he referred the matter to the FWPD Internal Affairs Department ("IAD") for investigation. (Id. at 72.) After investigating the incident, IAD found that Gates and Cagle had violated FWPD policies and general orders and thus issued them a "commander's admonishment." (Id. at 73.)
As a result of this admonishment, Sergeant David Stamp told a select group of supervisors that they needed to watch out for and avoid Johnson, who, at the time, was the only African-American supervisor assigned to the traffic division. (Johnson's App. (doc. 99) 39.) Stamp told his fellow supervisors that Johnson was now "their enemy" and "couldn't be trusted." (Id. at 38-39.)
Johnson alleges that Stamp subsequently commenced a "blatant and unrelenting campaign to ruin" his career. (Johnson's Second Am. Compl. (doc. 78) at 3, ¶ 9.) Specifically, Johnson alleges that Stamp publicly criticized him to other supervisors and employees and conspired with others to boycott certain supervisory assignments overseen by Johnson, including a Selective Traffic Enforcement Program Grant ("the STEP Grant") that Johnson managed. (Johnson's App. (doc. 99) 38.) In the latter part of 2012, Stamp sent an anonymous letter to Halstead in which he accused Johnson of "various improprieties or mismanagement of the program." (Halstead's App. (doc. 91) 3.) As a result, Johnson was subjected to audits by three different investigative teams, all of which cleared him of any wrongdoing. One of the investigators told Johnson "that ‘Sgt. Stamp tried to take you down hard.’ " (Second Am. Compl. (doc. 78) 4, ¶11.) Stamp allegedly told Johnson's colleagues that "the only reason Sgt. Johnson was not arrested was because he was black." (Id. at ¶12.)
In January 2013, Johnson reported Stamp's actions to Lieutenant Glen Edney, who was also an African-American and a supervisor in the traffic division, and this report apparently was ultimately investigated by Sherri Thomson with IAD. (Halstead's App. (doc. 91) 232-36; Johnson's App. (doc. 99) 41.) On May 7, 2013, Johnson filed a complaint with the FWPD's Human Resources ("HR") Department that alleged a pattern and practice of pervasive race discrimination, harassment, hostile work environment, and retaliation for his prior complaints of discrimination and harassment. Johnson filed several follow-up complaints, including complaints with the mayor and city manager about the discriminatory and retaliatory treatment that he believed he was being subjected to by FWPD supervisory and senior-level officers. Halstead "finally agreed to meet with Sgt. Johnson on June 28, 2013, to discuss Sgt. Johnson's complaints and the harassment and discrimination that he was experiencing." (Second Am. Compl. (doc. 78) 4, § 12.)
Nevertheless, Johnson alleges that in September 2013, Halstead transferred him out of the traffic division to the second shift on patrol in the West Division, which Johnson alleges to be one of the worst shifts in the entire police department. Johnson alleges that the transfer was involuntary and retaliatory and that it negatively impacted his work schedule. Specifically, he alleges that the transfer changed his work schedule from the day-shift hours, Monday through Friday from 6:00 a.m. to 2:00 p.m., to the night shift hours, Friday through Monday from 4:00 p.m. to 2:00 a.m. (Johnson App. (doc. 99) 59.) Johnson also alleges that the change in work schedule negatively impacted his ability to work overtime in the FWPD and forced him to decrease the hours he worked at a part-time secondary job. (Id. at 62-63.) Johnson claims that the transfer resulted in him losing $50,000.00.
Johnson also alleges that the transfer occurred despite the fact that several weeks earlier, he had "put in for the transfer to an open position of Jail Sergeant." (Second Am. Compl. (doc. 78) 5, § 14.) Johnson claims that despite his having been the only applicant for the position and despite the hiring official's desire to hire him, Halstead refused to permit Johnson to transfer to the jail position and removed the job posting.
After receiving Johnson's complaints and similar complaints from Lt. Edney and leaders of the Fort Worth Black Police Officers Association, the City of Fort Worth retained Coleman & Associates Consultants to perform an independent investigation of these grievances. Johnson alleges that the results of the investigation were unfavorable to the FWPD and led to Halstead's publicly apologizing on a YouTube video. On the video, Halstead allegedly admitted that Johnson and Edney "were ‘disrespected and retaliated against simply because of their skin color.’ " (Id. at 6, ¶16.) In April 2015, Johnson was transferred back to the traffic division.
As a result, Johnson brought this action under Title 42, United States Code, sections 1981 and 1983 claiming that Halstead and the City of Fort Worth discriminated against him because of his race, subjected him to a racially hostile work environment, and unlawfully retaliated against him. Johnson also claims that Halstead knew of and ignored Johnson's complaints about his colleagues’ discriminatory harassment and that he unlawfully tolerated the hostile work environment. Johnson seeks to recover damages against Halstead in his individual capacity.
The Court previously partially granted judgment on the pleadings against Johnson as to certain of his claims against Halstead, and that decision was upheld on appeal. The Court also dismissed Johnson's claims against the City of Fort Worth. As a result, the only remaining claims in this case are Johnson's claims that Halstead retaliated against him by transferring him out of the traffic division in 2013 and that, in his supervisory capacity, Halstead subjected him to a hostile work environment. Halstead now seeks summary judgment on those claims, contending that he is entitled to qualified immunity.
The United States Court of Appeals for the Fifth Circuit reversed this Court's denial of judgment on Johnson's First Amendment retaliation claim brought under 42 U.S.C. § 1983 against Halstead, thus leaving only his § 1983 "hostile[-]work[-]environment and section 1981 (retaliation) claims." Johnson v. Halstead , 916 F.3d 410, 423 (5th Cir. 2019).
II. Standard of Review
A. Summary Judgment
When the record establishes "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law," summary judgment is appropriate. Fed. R. Civ. P. 56(a). "[A dispute] is ‘genuine’ if it is real and substantial, as opposed to merely formal, pretended, or a sham." Bazan v. Hidalgo Cnty. , 246 F.3d 481, 489 (5th Cir. 2001) (citation omitted). A fact is "material" if it "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
To demonstrate that a particular fact cannot be genuinely in dispute, a defendant movant must (a) cite to particular parts of materials in the record (e.g., affidavits, depositions, etc.), or (b) show either that (1) the plaintiff cannot produce admissible evidence to support that particular fact, or (2) if the plaintiff has cited any materials in response, show that those materials do not establish the presence of a genuine dispute as to that fact. Fed. R. Civ. P. 56(c)(1). Although the Court is required to consider only the cited materials, it may consider other materials in the record. See Fed. R. Civ. P. 56(c)(3). Nevertheless, Rule 56 "does not impose on the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment." Skotak v. Tenneco Resins, Inc. , 953 F.2d 909, 915-16 & n.7 (5th Cir.), cert. denied , 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 59 (1992). Instead, parties should "identify specific evidence in the record, and ... articulate the ‘precise manner’ in which that evidence support[s] their claim." Forsyth v. Barr , 19 F.3d 1527, 1537 (5th Cir. 1994).
In evaluating whether summary judgment is appropriate, the Court "views the evidence in the light most favorable to the nonmovant, drawing all reasonable inferences in the nonmovant's favor." Sanders-Burns v. City of Plano , 594 F.3d 366, 380 (5th Cir. 2010) (citation omitted) (internal quotation marks omitted). "After the non-movant has been given the opportunity to raise a genuine factual [dispute], if no reasonable juror could find for the non-movant, summary judgment will be granted." Byers v. Dallas Morning News, Inc. , 209 F.3d 419, 424 (5th Cir. 2000) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ).
B. Qualified Immunity
When a plaintiff seeks monetary damages directly from a defendant in his individual capacity for actions taken under the color of law, the defendant may invoke his right to qualified immunity. See Hafer v. Melo , 502 U.S. 21, 26, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) ; Doe v. Covington Cnty. Sch. Dist. , 649 F.3d 335, 341 n.10 (5th Cir. 2011) (only natural persons sued in their individual capacities are entitled to qualified immunity). The doctrine of qualified immunity protects public officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). "Qualified immunity balances two important interests--the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson , 555 U.S. at 231, 129 S.Ct. 808. This immunity "ensure[s] that before they are subjected to suit, officers are on notice that their conduct is unlawful." Hope v. Pelzer , 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (quoting Saucier v. Katz , 533 U.S. 194, 206, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ).
Claims of qualified immunity are evaluated using a two-prong analysis, which requires the plaintiff to show (1) that the official's conduct violated plaintiff's constitutional rights and (2) that those constitutional rights were clearly established at the time of the violation. Id. at 232, 129 S.Ct. 808. Courts may address these prongs in either order. Id. at 242, 129 S.Ct. 808.
" ‘Clearly established’ means that, at the time of the officer's conduct, the law was ‘sufficiently clear’ that every ‘reasonable official would understand that what he is doing’ is unlawful." D.C. v. Wesby , ––– U.S. ––––, 138 S. Ct. 577, 589, 199 L.Ed.2d 453 (2018) (quoting Ashcroft v. al-Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ). This standard "requires a high ‘degree of specificity.’ " Id. at 590 (quoting Mullenix v. Luna , 577 U.S. 7, 136 S. Ct. 305, 309, 193 L.Ed.2d 255 (2015) ). As a result, "[t]his demanding standard protects ‘all but the plainly incompetent or those who knowingly violate the law.’ " Id. at 589 (quoting Malley v. Briggs , 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) ).
"A qualified immunity defense alters the usual summary judgment burden of proof." Brown v. Callahan , 623 F.3d 249, 253 (5th Cir. 2010) (citing Michalik v. Hermann , 422 F.3d 252, 262 (5th Cir. 2005) ). When a defendant raises the affirmative defense of qualified immunity at the summary-judgment stage, the burden shifts to the plaintiff to negate the defense. Brumfield v. Hollins , 551 F.3d 322, 326 (5th Cir. 2008). "Conclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation" will not suffice. Oliver v. Scott , 276 F.3d 736, 744 (5th Cir. 2002).
III. Analysis
A. Objection to Evidence
In his reply brief, Halstead objects to certain of Johnson's evidence. Specifically, Halstead contends that the Coleman report, the transcript of Halstead's YouTube video, and certain exhibits to Halstead's deposition are not properly before the Court because they were submitted in the appendix to the City of Fort Worth's summary-judgment motion. That motion recently was denied as moot after the City's motion to dismiss was granted. Halstead cites no authority in support of this argument, however, and these documents are in the Court's record in this case. See FED. R. CIV. P. 56(c)(1)(A) (noting that a party asserting that a fact is genuinely disputed must cite "to particular parts of materials in the record"). Consequently, the Court discerns no basis why Johnson should not be allowed to refer to them in support of his response to Halstead's motion.
Halstead further objects to Johnson's reliance on the Coleman Report on the grounds that the report is hearsay and contains hearsay within hearsay. Johnson has wholly failed to respond to Halstead's evidentiary objections, and thus has not met his burden of demonstrating that either the report or any of the statements referred to therein are admissible or are capable of being made admissible at trial. See FED. R. CIV. P. 56(c)(2) advisory comm.’s note to 2010 amend. ("The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated."); see also Lee v. Offshore Logistical and Transport, L.L.C. , 859 F.3d 353, 354-55 (5th Cir. 2017) (noting change in Rule 56 ’s requirements and quoting advisory committee note putting burden on nonmovant to demonstrate admissible form that is anticipated); Whiting v. Lambert , No. 2:16-CV-261-Z-BR, 2020 WL 760409, at *3 (N.D. Tex. Jan. 23, 2020) (Reno, M.J.) (noting that "[t]he failure to show that the evidence in question is admissible as presented or in another form permits the Court to disregard the evidence in deciding the motion for summary judgment."). Because Johnson has not demonstrated the admissibility of the Coleman report or any portions thereof in response to Halstead's objection, the Court has not considered the report in determining whether summary judgment is proper.
The Court initially questioned whether the Coleman Report might be excluded from the hearsay rule under Federal Rule of Evidence 803(8)(A)(iii). This rule excludes from hearsay "a record or statement of a public office if: (A) it sets out: ... (iii) in a civil case .... factual findings from a legally authorized investigation." Fed. R. Evid. 803(8)(A)(iii). "Under this rule, a proponent of a document must show that the document (1) was ‘prepared by a public office;’ and (2) ‘set[ ] out information as specified in the Rule.’ " Cooper v. Meritor , 363 F. Supp. 3d 695, 698 (N.D. Miss. 2019) (quoting advisory comm. notes to 2014 amend.). The Coleman Report was not, however, prepared by a public office; instead it was prepared for a public office--the City of Fort Worth--by a non-governmental entity. (Johnson's App. (doc. 99) 8.) The Fifth Circuit has twice affirmed the admission of reports by non-governmental entities under Rule 803(8). See Cooper , 363 F. Supp. 3d at 698 (reviewing cases). From these cases, it appears that a report by a non-governmental entity constitutes a report made by a public office "when the person preparing the report (1) personally observed the matters set forth in the report; and (2) had a duty to report the matters to a public official. While this test is useful, it does not cover the vast majority of investigative reports, which ... ‘embody the result of investigation and accordingly are often not the product of the declarant's firsthand knowledge, required under most hearsay exceptions.’ " Id. at 699 (quoting 2 McCormick on Evid. § 296 n.16 and accompanying text (7th ed.)); but see Jones v. Sandusky Cnty., Ohio , 652 F. App'x 348, 356 (6th Cir. 2016) (concluding that "the personal-knowledge requirement does not apply to reports admissible under the public-records exception found in Fed. R. Evid. 803(8)"). Because "the hearsay exception for public records is grounded on the ‘assumption that a public official will perform his duty properly and the unlikelihood that he will remember details independently of the record’ .... a non-governmental report should be admissible under Rule 803(8) only when it has been prepared by ‘the equivalent of government investigators.’ " Id. at 699-700 (quoting advisory comm. notes to 1972 proposed rules and U.S. v. Blackburn , 992 F.2d 666, 672 (7th Cir. 1993) ). "[T]his standard may be met when a public agency closely manages the relevant investigation." Id. Although there is some evidence that city officials, including Halstead, submitted proposed edits to the drafts of the Coleman Report, there is no indication that the City of Fort Worth managed any portion of Coleman & Associates Consultants’ investigation.
Furthermore, the Fifth Circuit has noted that "[t]he public-records exception ‘is designed to permit the admission into evidence of public records prepared for purposes independent of specific litigation.’ " United States v. Noria , 945 F.3d 847, 852 (5th Cir. 2019) (quoting United States v. Quezada , 754 F.2d 1190, 1194 (5th Cir. 1985) ). "It is based on the assumption that public documents ‘recording routine, objective observations’ are free of ‘the factors likely to cloud the perception of an official engaged in ... observation and investigation of crime.’ " Id. "Instead, ‘due to the lack of any motivation on the part of the recording official to do other than mechanically register an unambiguous factual matter ... such records are [considered] inherently reliable.’ " Id. Coleman & Associates Consultants were hired to investigate possible discrimination and retaliation, not to "mechanically register unambiguous factual matter." Consequently, the Coleman report does not appear to be admissible as a public record under Rule 803(8).
Finally, while the Coleman report might not have been hearsay if admitted against the City of Fort Worth under Rule 801(d)(2), Johnson has wholly failed to demonstrate that any of the requirements for admitting the report under that rule apply to Halstead in his individual capacity. Halstead certainly does not appear to have adopted the report or believed it to be entirely accurate, as is required by Rule 801(d)(2)(B). (Johnson's App. (doc. 99) 22-23.)
B. Hostile Work Environment
In its prior decision, the Fifth Circuit concluded that the law on which Johnson bases his hostile-work-environment claim was clearly established at the time of the events involved herein. See Johnson v. Halstead , 916 F.3d 410, 417 (5th Cir. 2019). The Court concluded that under that law, it is clear that a hostile work environment based on race violates a public employee's rights under the Equal Protection Clause. Id. Consequently, this Court now need only decide whether Johnson has presented evidence sufficient to create a genuine dispute of fact regarding whether Halstead subjected him to such an environment.
"To survive summary judgment on a hostile[-]work[-]environment claim based on race ... discrimination, a plaintiff must show that (1) she is a member of a protected class; (2) she suffered unwelcome harassment; (3) the harassment was based on her membership in a protected class; (4) the harassment ‘affected a term, condition, or privilege of employment’; and (5) ‘the employer knew or should have known’ about the harassment and ‘failed to take prompt remedial action.’ " West v. City of Houston, Tex. , 960 F.3d 736, 741 (5th Cir. 2020). As recently noted by the Fifth Circuit, "[a] supervisor can be liable for the hostile work environment created by his subordinates ‘if that official, by action or inaction, demonstrates a deliberate indifference to a plaintiff's constitutional rights.’ " Johnson , 916 F.3d at 416-17 (quoting Southard v. Tex. Bd. of Crim. Just. , 114 F.3d 539, 551 (5th Cir. 1997) ).
Halstead initially urges that Johnson cannot prove that his alleged harassment was racially motivated. "Harassment is based on race if ‘the complained-of conduct had a racial character or purpose.’ " King v. Enter. Leasing Co. of DFW , No. 3:05-CV-0026-D, 2007 WL 2005541, at *10 (N.D. Tex. July 11, 2007) (Fitzwater, J.) (quoting Harris-Childs v. Medco Health Solutions, Inc. , 2005 WL 562720, at *6 (N.D. Tex. Mar. 10, 2005) (Means, J.)). The Court might have been inclined to agree with Halstead had he not admitted in his YouTube video that the harassment was racially motivated. In the transcript of his YouTube video, Halstead begins by noting that the city manager released that same day the final version of the Coleman Report and then admits that "a little over a year and a half ago[,] two of our employees within the [t]raffic [d]ivision were disrespected and retaliated against simply because of their skin color." (Fort Worth's App. (doc. 93) 261); see Johnson , 916 F.3d at 418 (noting that "Halstead publicly admitted not only that harassment occurred, but also that it resulted from Johnson's ‘skin color’ "). He further admitted that he "made some very poor judgment decisions [and had] apologized to any and every one that I have hurt." (Fort Worth's App. (doc. 93) 262.) He also apologized "on behalf of the entire Police Department." (Id.) And in his deposition, Halstead admits that Johnson was "Complainant One" in the Coleman Report. (Johnson's App. (doc. 99) 28.) Halstead's admission that Johnson's mistreatment was motivated by his race is sufficient to show that the harassment was racially motivated.
Johnson admits that he never personally heard Stamp use racial slurs, nor had he heard rumors that Stamp had used racial slurs. (Halstead's App. (doc. 91) 109.) Indeed, the only basis for Johnson's allegation that Stamp's abuse towards him was racially motivated appears to be Johnson's feelings. Johnson admits in his deposition that "I truly feel that he just didn't like me because I'm a black man." (Johnson's App. (doc. 99) 39.) But a plaintiff's subjective belief that a harasser was motivated by race is insufficient to survive summary judgment. See Cavalier v. Clearlake Rehab. Hosp., Inc. , 306 F. App'x. 104, 107 (5th Cir. 2009) (per curiam) ("Though Cavalier may believe that all twelve incidents were motivated by racial animus, subjective belief of racial motivation, without more, is not sufficient to show a hostile work environment."); Gibson v. Verizon Servs. Org., Inc. , 498 F. App'x 391, 394 (5th Cir. 2012) (affirming summary judgment where the plaintiff "fail[ed] to produce any summary judgment evidence, beyond her own subjective belief, that any of [her alleged harasser's] conduct was based on sex or race"). Indeed, Johnson repeatedly admits that "the snowman incident is what kind of got Stamp upset with me, but Stamp blamed all that on me when I didn't do anything." (Halstead's App. (doc. 91) 72, 75.)
In fact, the only time Johnson points to Stamp's having allegedly mentioned Johnson's race was in a conversation that Mike Cagle related that he had with Stamp. Cagle reported to Johnson that, after the audit of Johnson's oversight of the STEP grant did not find any irregularities, Stamp told Cagle "and Ann Gates that the only reason that [Johnson's] black you-know-what wasn't in jail and wasn't arrested is because [he is] black." (Johnson's App. (doc. 99) 38.) But Johnson's testimony about what Cagle relayed to him about what Stamp said is hearsay. See Washington v. Util. Trailer Mfg. Co. , No. 1:13-CV-610-WKW, 2017 WL 924469, *9-10 (M.D. Ala. Mar. 8, 2017) (excluding testimony where the plaintiff "did not hear the alleged racially abusive statements[, but] wants to rely on what others told him that they heard"); see also Macuba v. Deboer , 193 F.3d 1316, 1324, n.18 (11th Cir. 1999) (noting that a district court properly "refus[ed] to consider hearsay where the offering party did not provide [an] affidavit from the declarant") (citing Marshall v. Planz , 13 F. Supp. 2d 1246, 1255-56 (M.D. Ala. 1998) ). Furthermore, the Court questions whether this one comment is sufficient evidence, alone, to prove that Stamp's alleged harassment was racially motivated. See Hiner v. McHugh , 546 F. App'x 401, 408 (5th Cir. 2013) (noting that a single comment by a co-worker that the supervisor did not like the plaintiff's "black ass" was insufficient to demonstrate "an abusive working environment"); Butler v. Exxon Mobil Corp. , 838 F. Supp. 2d 473, 491-91 (M.D. La. 2012) (noting that a single alleged comment where supervisor told the plaintiff to "get your black ass out of my office" did not suffice to show "that any other actions were motivated by race").
Halstead also contends that Johnson failed to present evidence demonstrating that he was deliberately indifferent to Johnson's right to be free from racially-based harassment. Deliberate indifference "is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his [in]action." Bd. of the Cnty. Comm'rs of Bryan Cnty., Okla. v. Brown , 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). It is " ‘more blameworthy than negligence,’ " but less than " ‘acts or omissions for the very purpose of causing harm or with knowledge that harm will result.’ " Southard , 114 F.3d at 551 (quoting Farmer v. Brennan , 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) ). Thus, "[t]he ‘deliberate[-]indifference’ standard permits courts to separate omissions that ‘amount to an intentional choice’ from those that are merely ‘unintentionally negligent oversight[s].’ " Id. (quoting Gonzalez v. Ysleta Indep. Sch. Dist. , 996 F.2d 745, 756 (5th Cir. 1993) ). Johnson must present evidence creating a genuine dispute regarding whether " ‘repeated complaints of civil rights violations’ were followed by ‘no meaningful attempt on the part of the municipality to investigate or to forestall further incidents.’ " Johnson , 916 F.3d at 418 (quoting Vann v. City of New York , 72 F.3d 1040, 1049 (2d Cir. 1995) ). In support of his argument, Halstead points out that Johnson did not make any complaints during the three-year period he allegedly was harassed by Stamp and only made his first complaint in January 2013. (Halstead's Br. (doc. 90) 32.) As a result, Halstead contends he did not know about Johnson's alleged racial harassment "until he started filing written complaints in early 2013." (Halstead's App. (doc. 91) 2.) But Halstead admits that he knew about the anonymous letter Stamp sent in June 2012 suggesting that Johnson was engaging in improprieties regarding the STEP grant, which allegations were deemed unfounded, and sometime later learned that Stamp had sent it. (Id. at 3.) And Johnson testified that the problems in the traffic division, specifically his problems with Stamp, had become almost legendary "all over the department," in that "everyone throughout the City [was] hearing about what's going on in traffic, ... civilians, other police officers, throughout the whole department." (Johnson's App. (doc. 99) 44.) People from "other sectors" of the FWPD were asking him about the problem, and people he knew in the traffic division "may have friends assigned somewhere else, and they would be talking about it." (Id. ) Johnson also testified that he believed Halstead knew what was going on because Stamp, Gates, and Cagle "would go meet with the chief pretty much whenever they desired, and they made it a point to kind of let everybody know they [were] going to have a meeting with the chief." (Id. ) And when Johnson asked his commander in traffic, Gene Jones, why he did not do something about what was going on, Jones "said that Halstead told him to stay out of it." (Id. at 54.)
Halstead further contends that because Johnson's January 2013 "complaint was immediately and appropriately addressed" by FWPD's IAD, Johnson cannot demonstrate that Halstead was deliberately indifferent. (Halstead's Br. (doc. 90) 32.) Johnson has, however, painted a different picture. Johnson testified that nothing was resolved as a result of IAD's investigation into his January 2013 complaint. He testified that "nobody was communicating with [him] about how it was being conducted or how it was going." (Johnson's App. (doc. 99) 60.) Instead, the IAD investigator, Sherri Thomson, told him that "Stamp was a grown man and he could say anything he wants and that [Johnson's] complaint didn't meet policy to be a hostile work environment [such that he] didn't know if she took it any further." (Id. at 41, 43.)
Halstead disputes this, contending that IAD conducted a full investigation of Johnson's January 2013 complaint and found in a report delivered to Assistant Chief Pridgen on April 2 that "[t]here is no evidence to support the allegation of misconduct." (Halstead App. (doc. 91) 37.) And thereafter the IAD report was reviewed by "North Command," who concluded that no racial harassment had occurred and that both Stamp and Johnson were problems and should be transferred. (Id. at 3-4.)
Halstead has not objected to Johnson's testimony about this or any other statements that were made by Halstead's subordinate investigators or supervisors. The Court presumes that is because the statements either are not offered for the truth of the matter asserted or otherwise are not hearsay under Federal Rule of Evidence 801(d)(2)(D).
As a result, on May 7, 2013, Johnson submitted a complaint to Karen Marshall in HR alleging inappropriate conduct in the workplace and detailing his grievance against Stamp. This complaint indicated that Johnson "ha[d] not receive[d] any answers from [his] Chain of Command including Chief Halstead as to what actions would be taken against Sergeant Stamp." (Id. at 15.) Marshall told Johnson that she was going to "try to make an arrangement for [Johnson and herself] to meet with [Halstead] before this goes any further." (Id. at 43.) A meeting with all three, however, apparently never occurred. (Id. at 44.)
Marshall forwarded a copy of Johnson's May 7 complaint to Assistant City Manager Charles Daniels. Daniels then spoke with Halstead about the complaint, and he told Daniels "that he was aware of the ... incidents named in the memo, and that he was going to conduct an investigation and get to the bottom of it." (Johnson's App. (doc. 99) 2-3.) Daniel advised Halstead that "this was serious and [Halstead] needed to address it as soon as possible." (Id. at 3.)
Nevertheless, on May 28, when Johnson had not heard anything more about his May 7 complaint, he submitted a complaint directly to Halstead, indicating therein that "[s]ince 2010, [he] ha[d] been the victim of a hostile work environment in the traffic Division" (Id. at 45; Fort Worth's App. (doc. 93) 151-57.) In this complaint, Johnson indicates that he had
been advised by my chain of command up to the Deputy Chief's level that they know that Sgt. Stamp is the problem in the [t]raffic [d]ivision. In addition, they advised me that their hands have been tied by the chief. They said that they have no authority to take any action to move Sgt. Stamp.
(Fort Worth's App. (doc. 93) 157). On June 21, Johnson submitted a second complaint to Marshall in HR and also forwarded complaints to Fort Worth City Manager Tom Higgins and Mayor Betsy Price alleging racial harassment and discrimination in the workplace. (Johnson's App. (doc. 99) 45; Fort Worth's App. (doc. 93) 127-143.) And on June 25, Johnson submitted another complaint to Halstead regarding Stamp's behavior. (Fort Worth's App. (doc. 93) 144-50.)
According to Johnson, it was the complaints to the city manager and mayor that finally got Halstead's personal attention, as a meeting between Johnson, Halstead, and Deputy Chief Kamper ensued on June 28. At that meeting, Johnson testified that Halstead indicated that Johnson's "filing the complaint with the city manager and the mayor's office was me filing the complaint on him." (Johnson's App. (doc. 99) 44.) He also asked Johnson why he did not "let us do our job before you went filing a complaint with the city manager and the mayor's office?" (Id. at 58.) Halstead "was very angry when he said that to [Johnson] ... his face was flushed, it was red." (Id. ) Thus, from January until the end of June, Halstead knew of the alleged harassment Johnson was experiencing from Stamp but did not intervene. And although IAD was supposed to be investigating Johnson's original complaint, it appeared, based on what Thomson told Johnson, that the investigation was not being taking seriously.
There appears to be some confusion as to whether this meeting occurred "37 days" after the May 7 complaint, (Johnson's App. (doc. 99) 43-44), or on June 28, 2013, (id. at 45). It appears that Johnson's meeting with Halstead actually occurred on June 28, however, and that Johnson's reference to "37 days" was instead the time it took Halstead to meet with Johnson after "Marshall met with [Halstead] on some unrelated issues." (Fort Worth's App. (doc. 93) 150.)
Indeed, rather than remedying Johnson's complaints of racial harassment, later that year Johnson was transferred to what he considered to be a much worse position effective September 7, 2013. It was not until over a year later that Halstead admitted on the YouTube video that Johnson had been disrespected on account of his race, apologized, and transferred Johnson back to the Traffic Division. The Court concludes that Johnson has sufficiently demonstrated that a question of fact exists as to whether Halstead was deliberately indifferent to the racial harassment Johnson allegedly suffered.
C. Retaliation
For similar reasons, the Court concludes that fact issues preclude summary judgment on Johnson's section 1981 retaliation claim. Claims brought under section 1981 are analyzed similarly to those brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"). See Johnson , 916 F.3d at 420 ; Jones v. Robinson Prop. Grp., L.P. , 427 F.3d 987, 992 (5th Cir. 2005). Thus, where there is no direct evidence of retaliation, a court employs the traditional burden-shifting procedure of McDonnell Douglas Corporation v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See McCoy v. City of Shreveport , 492 F.3d 551, 556 (5th Cir. 2007). "To present a prima facie case of retaliation under either Title VII of § 1981, a plaintiff must how that: (1) he engaged in an activity protected by Title VII; (2) he was subjected to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse employment action." Davis v. Dallas Area Rapid Transit , 383 F.3d 309, 319 (5th Cir. 2004). Once the plaintiff satisfies this burden, the burden of production shifts to the employer "to proffer a legitimate rationale for the underlying employment action." Id. If the employer makes this showing, "the burden shifts back to the plaintiff to demonstrate that the employer's articulated reason for the employment action was a pretext for retaliation." Id.
Johnson contends that the Coleman Report and the transcript of Halstead's Youtube video provide direct evidence of retaliation. As previously mentioned, however, the Coleman Report is not admissible and, in any event, the Court questions whether an after-the-fact investigative report by a third-party consultant constitutes direct evidence of discrimination or retaliation regarding the prior employment decision under investigation. See Brown v. E. Miss. Elec. Power Ass'n , 989 F.2d 858, 861 (5th Cir. 1993) ("Direct evidence is evidence which, if believed, proves the fact without inference or presumption."); see also Herster v. Bd. of Supervisors of La. State Univ. , 887 F.3d 177, 185 (5th Cir. 2018) (" ‘[D]irect evidence includes any statement or written document showing a discriminatory motive on its face.’ ") (quoting Portis v. First Nat'l Bank , 34 F.3d 325, 328 (5th Cir. 1994) ). The transcript of Halstead's YouTube video is a closer call, however, because in it he admits that two complainants, one of whom was Johnson, were "retaliated against simply because of their skin color" and that, as a result, he had "waived a transfer for them so they could go back to their assignment." (Fort Worth's App. (doc. 93) 261-62.) Because Halstead does not admit in the transcript of the video that he was responsible for the retaliatory transfers, however, the Court will proceed to analyze Johnson's claim under the burden-shifting paradigm regarding circumstantial evidence.
Johnson has certainly presented sufficient evidence to carry his prima-facie burden. He made numerous complaints about the racial harassment he believed he was suffering but was transferred to a materially adverse position just a few months after meeting directly with Halstead regarding his reports of harassment, a meeting in which it was very clear to Johnson that Halstead was unhappy with him. Indeed, Halstead's summary-judgment motion does not dispute that Johnson has satisfied his prima-facie burden, instead noting that "[o]nce a prima facie case is made, the employer must then ‘articulate a legitimate, nondiscriminatory reason for its employment decision." (Halstead's Br. (doc. 90) 36.)
Instead, Halstead posits as his non-retaliatory reason that Johnson was transferred out of the traffic division after a thorough IAD review plus a second review conducted by an independent chain of command who concluded that both Johnson and Stamp should be transferred. He thus contends that his subordinates, rather than himself, made the decision to transfer Johnson and Stamp out of the traffic division. He also contends that only two alternative positions were then available, and Johnson was transferred to the less desirable one because Stamp had more seniority and thus had the right to select his preference. Halstead denies that there was an available position in the jail at the time of Johnson's transfer.
As previously mentioned, however, Johnson's testimony raises suspicions about the efficacy of Thomson's IAD review. Johnson also testified that the hiring official for the jail, Donny Hanlon, had posted the jail position as available, had twice previously posted the position as available but no supervisor had applied for the position, and told Johnson that he "could have [the position] because nobody else wanted it." (Johnson's App. (doc. 99) 52-53, 56-57.) Nevertheless, once Johnson expressed interest in the position, the hiring official was told by his chain of command that Johnson "couldn't have the position and to take the posting for the opening down." (Id. at 53, 56.) This on the heels of Johnson also having been told by his chain of command that they knew Stamp "was the problem in [t]raffic, ... [but] their hands have been tied by the chief." (Fort Worth's App. (doc. 93) 157).
As a result, Johnson was forced to accept a transfer to the less desirable second patrol shift in the West Division. And this transfer occurred only three months after he met with Halstead to complain about racial harassment, at which meeting Johnson testified that Halstead was obviously upset with him. See Evans v. City of Houston , 246 F.3d 344, 354 (5th Cir. 2001) (noting that a time lapse of up to four months may be sufficient to establish a causal connection even at the post-discovery summary-judgment stage). Coupled with this is the fact that Halstead later admitted in his Youtube video that Johnson and the other complainants had been mistreated on the basis of their race and that, as a result, he had "waived a transfer for them so they could go back to their assignment, or go to an assignment of their choosing, because they were wronged." (Fort Worth's App. (doc. 93) 261-62.) The Court concludes that Johnson has sufficiently demonstrated a question of fact as to whether Halstead retaliated against Johnson when he was transferred.
Halstead also urges in his motion that Johnson "cannot show Halstead violated his clearly established rights." (Halstead's Br. (doc. 90) 38.) Halstead fails in his motion to specifically address the law regarding this issue, however, instead simply rehashing his version of the facts. And the Court decided this question in its prior order partially granting Halstead's motion for judgment on the pleadings. In that order, the Court noted that "[a]t the time the actions giving rise to this lawsuit occurred, an employee's right to be free from retaliation for complaining about race discrimination in employment was clearly established." (Order Gr. in Part and Denying in Part Mot. for J. on the Pleadings (doc. 45) 9 (citing Foley v. University of Houston System , 355 F.3d 333, 339-40 (5th Cir. 2003) ).) Halstead has not demonstrated that this decision was erroneous, nor was it reversed by the Fifth Circuit during the prior appeal. Instead, Halstead argues that because Johnson has failed to prove up some of the allegations originally made in his complaint, he has failed to demonstrate that Halstead violated his clearly established rights. The Court disagrees. Johnson has presented evidence tending to demonstrate that Halstead was upset that Johnson had taken his complaints to the mayor and city manager, thereafter allowed him to be transferred to a materially adverse position, and caused him to be denied a previously open and unwanted position in the jail. And Johnson's transfer occurred soon after he complained directly to Halstead about Stamp's racial harassment. Johnson has sufficiently demonstrated a material dispute of fact as to whether Halstead violated Johnson's clearly established constitutional right under section 1981 to be free from retaliation as a result of his complaints about racial harassment in his employment.
In the Fifth Circuit's opinion on rehearing regarding the prior appeal in this case, the court noted that "Halstead argues for the first time at the rehearing stage that it is not clearly established that a section 1981 retaliation claim can be brought against a municipal official as opposed to the municipality itself.... Because Halstead did not raise this issue in the district court or before the panel, we will not consider it in a petition for rehearing." Johnson , 916 F.3d at 419 n.3 (5th Cir. 2019). Johnson's pending summary-judgment motion similarly does not specifically raise or address this issue, so neither has this Court.
Indeed, in that appeal, the Fifth Circuit concluded that "Johnson's allegations supporting unlawful retaliation, if he later proves them to be true, establish a violation of his constitutional rights, one that a reasonable official would know was unlawful." Johnson , 916 F.3d at 423.
IV. Conclusion
For the foregoing reasons, the Court concludes that Halstead's Motion for Summary Judgment (doc. 89) must be, and it is hereby, DENIED.