A reminder from the Fifth Circuit: a shift transfer can be a materially adverse action for retaliation purposes. “[A] retaliatory shift change that places a substantial burden on the plaintiff, such as significant interference with outside responsibilities or drastically and objectively less desirable hours, can dissuade an employee from reporting discrimination.”
Johnson v. Halstead, No. 17-10223 (5th Cir. Dec. 19, 2018): Sergeant Johnson of the Fort Worth Police Department “allege[d] that over a three-year period he was subjected to a campaign of isolation, harassment, and ridicule because he is African-American.” He alleged claims of Section 1981 hostile work environment and retaliation, plus First Amendment retaliation. The district court held at the pleading stage that defendant Chief of Police Halstead was not qualifiedly immune for his role in these alleged events, and Halstead took an interlocutory appeal.
Johnson alleged that he spoke out for a colleague who complained about a racist incident (a picture of a noose), which led to his isolation by superior officers. Among other things, one officer accused him of theft, leading to three separate investigations (all of which cleared him) which interfered with a grant program that Johnson ran.
The retaliation occurred shortly after Johnson made another official complaint of race harassment to human resources:
“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.”
The Department retained a private firm to investigate the complaints of Johnson and others, and “[a]fter ten months of investigation, [it] 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.'”
On appeal, the panel mostly affirms. On the harassment claim, the defendant advanced an improbable argument that a racially hostile work environment was not a “clearly established” Equal Protection violation, which the panel dispels with several Fifth Circuit cases holding otherwise. And “without all this caselaw, it would necessarily follow that if the Constitution makes it unlawful to create a hostile workplace in response to a public employee’s sex, then it is also unlawful to engage in that hostility in response to a worker’s race.”
The panel holds that Johnson plausibly alleged a hostile work environment, citing the independent investigation. “The racial hostility led to officers’ boycotting meetings with Johnson and ignoring his assignments; colleagues’ refusing to assist with the grant program Johnson oversaw; and Johnson’s being investigated for fraud.”
Johnson also plausibly alleged Halstead’s deliberate indifference, the key to personal liability, i.e., he “did nothing to try and stop the harassment even though he knew about it – again corroborated by the outside investigation.” As the panel summarizes “T[t]e corroborated allegations of Halstead’s inaction after learning about the unconstitutional work environment is the definition of deliberate indifference and thus would amount, if proven, to a violation of clearly established law.”
Regarding the Section 1981 retaliation – the shift change – the defendant argued that Johnson did not plausibly allege that the transfer was sufficiently “adverse,” tantamount to a demotion. “But retaliation claims are governed by a less stringent standard. Title VII retaliation plaintiffs need only be subject to an employment decision that was ‘materially adverse,’ which means that it ‘well might have dissuaded a reasonable worker from making or supporting a charge of discrimination'” (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006)).
Thus, even a lateral transfer may be actionable:
“[A] retaliatory shift change that places a substantial burden on the plaintiff, such as significant interference with outside responsibilities or drastically and objectively less desirable hours, can dissuade an employee from reporting discrimination ….
Given the cost to the plaintiff in overtime, prestige, and increased pressure, “the widely acknowledged inferiority of the new shift would have been apparent to any reasonable person making the decision.” The transfer occured some three months after Johnson’s harassment complaint, and was revoked immediately in response to the independent investigation report, which plausibly alleges causation.
Finally, on the First Amendment claim, the panel holds that the allegations failed the standard of Garcetti v. Ceballos, 547 U.S. 410 (2006), because Johnson did not plausibly allege that his complaints of harassment were made as a citizen, as opposed to “pursuant to [his] official duties.” “It thus is not clearly established that an internal complaint of discrimination made only to supervisors, primarily to vindicate one’s own rights, qualifies as speech made as a ‘citizen’ rather than as an ’employee.'”