IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-10223

DELBERT JOHNSON, 

 Plaintiff - Appellee

v.

JEFFREY HALSTEAD, individually, 

 Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

ON PETITION FOR REHEARING AND REHEARING EN BANC

Before HIGGINBOTHAM, DENNIS, and COSTA, Circuit Judges.

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 

United States Court of Appeals

Fifth Circuit

FILED

February 14, 2019

Lyle W. Cayce

Clerk

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2

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 AfricanAmerican 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 

 

1 The factual allegations in this case come from Johnson’s first amended complaint, 

and his Rule 7 reply. The order being appealed is a judgment on the pleadings, thus “all wellpleaded facts are accepted as true and viewed in the light most favorable to the plaintiff.” 

Bosarge v. Miss. Bureau of Narcotics, 796 F.3d 435, 439 (5th Cir. 2015). 

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3

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 

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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 racebased 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. Halstead also transferred Johnson back to the 

day shift in Traffic Division.

The Coleman report cites several examples of statements made by 

Halstead accepting responsibility for the discriminatory behavior. It also 

found that the discriminatory behavior was “demonstrated with the knowledge 

of supervisors, other employees in the Traffic Division, and the department’s 

Chain of Command.” That included “top management,” which “knew of the 

conflict between Complainant 1 [Johnson] and A-One [Stamp] but did not 

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intercede to successfully mitigate the disruptive and disparaging conflict.” The 

Report concluded that “[t]he insulting, demeaning and offensive behavior from 

A-One directed toward [Johnson] continued, in part because the department 

leadership failed to take directed action as required by” Department policies.

Johnson sued Halstead in his individual capacity, the City, and 

Halstead’s successor in her official capacity as Police Chief. He asserted civil 

rights claims under sections 1981 and 1983 for race discrimination, hostile 

work environment, and retaliation. Halstead invoked qualified immunity, and 

the court ordered Johnson to file a Rule 7 reply to address that defense. 

Halstead then filed a motion for judgment on the pleadings, which the court

granted in part and denied in part. It dismissed Johnson’s claims for racial 

discrimination “to the extent [they were] based on Halstead’s own alleged acts 

of harassment.” But the court allowed Johnson to move forward with his 

claims for: (1) hostile work environment based on a theory of supervisory 

liability; (2) retaliation under section 1981 in response to Johnson’s complaint 

about the discrimination; and (3) First Amendment retaliation. 

II.

We review the denial of a Rule 12(c) motion for judgment on the 

pleadings asserting qualified immunity de novo. Bosarge v. Miss. Bureau of 

Narcotics, 796 F.3d 435, 439 (5th Cir. 2015). A “plausibility” standard

determines whether the plaintiff has pled sufficient facts to defeat a motion to 

dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When the defendant 

asserts qualified immunity, the court can order the plaintiff to submit a reply, 

refuting the immunity claim “with factual detail and particularity.” DeLeon 

v. City of Dallas, 141 F. App’x 258, 261 (5th Cir. 2005); see also Schultea v. 

Wood, 47 F.3d 1427, 1433 (5th Cir. 1995) (en banc). This reply “must be 

tailored to the assertion of qualified immunity and fairly engage its 

allegations.” Schultea, 47 F.3d at 1433.

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To overcome qualified immunity, a plaintiff must show two things: 

(1) that the allegations make out a constitutional violation, and (2) that the 

violation of rights was clearly established at the time of the defendant’s 

conduct. Carroll v. Ellington, 800 F.3d 154, 169 (5th Cir. 2015).

III.

The district court denied Halstead qualified immunity on Johnson’s

hostile work environment claim but limited the claim to a theory of supervisory 

liability. 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.” Southard v. Tex.

Bd. of Criminal Justice, 114 F.3d 539, 551 (5th Cir. 1997).

We first address Halstead’s contention that there is a clear legal obstacle 

to this section 1983 claim. He argues that although a hostile work 

environment based on sex violates the Equal Protection Clause, it is not clearly 

established that one based on race does. This ignores multiple cases in which 

we have considered race-based hostile work environment claims asserted 

under section 1983. See Duru v. City of Houston, 1994 WL 399211, at *2 (5th 

Cir. Jul. 22, 1994) (denying qualified immunity for creating a racially hostile 

work environment which violates a clearly established section 1983 right)2; 

Caldwell v. Lozano, 689 F. App’x 315, 322 (5th Cir. 2017) (evaluating a racebased hostile work environment claim under section 1983 but finding 

insufficient severity or pervasiveness); Mendoza v. Helicopter, 548 F. App’x 

127, 129 (5th Cir. 2013) (applying Title VII sexual harassment cases to a claim 

of a racially hostile work environment under section 1983). And the reason we 

have given for allowing constitutional claims of sex-based harassment—that 

 

2 “Unpublished opinions issued before January 1, 1996, are precedent.” 5TH CIR. R. 

47.5.3.

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“Section 1983 and [T]itle VII are ‘parallel causes of action,’” Lauderdale v. Tex.

Dep’t of Criminal Justice, Institutional Div., 512 F.3d 157, 166 (5th Cir. 2007) 

(quoting Cervantez v. Bexar Cty. Civil Serv., 99 F.3d 730, 734 (5th Cir. 1996))—

applies equally to race-based claims. Faragher v. City of Boca Raton, 524 U.S. 

775, 787 n.1 (1998) (“Although racial and sexual harassment will often take 

different forms, and standards may not be entirely interchangeable, we think 

there is good sense in seeking generally to harmonize the standards of what 

amounts to actionable harassment.”). Indeed, the first case recognizing Title 

VII liability for a hostile environment was one from our court involving

discrimination against a Hispanic worker. Rogers v. EEOC, 454 F.2d 234 (5th 

Cir. 1971); see also Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986) 

(noting that courts applied the Rogers holding to harassment based on race, 

religion, and national origin before the EEOC issued a Guideline in 1980 

recognizing a claim for sex-based harassment). Even 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. After all, 

the latter category of discrimination is subject to even more exacting 

constitutional scrutiny than the former. Clark v. Jeter, 486 U.S. 456, 461 

(1988). 

Given that the Equal Protection Clause protects against a racially hostile 

work environment, the question becomes whether Johnson has sufficiently

alleged that was what he faced. A hostile work environment exists when the 

workplace is “permeated with discriminatory intimidation, ridicule, and insult

that is sufficiently severe or pervasive to alter the conditions of the victim’s 

employment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quotation 

omitted). This last requirement, whether the harassment impacts the “’terms’

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or ‘conditions’ of employment,” is key as it comes from the words of Title VII. 

Id. at 25 (Ginsburg, J., concurring) (citing 42 U.S.C. § 2000e-2(a)(1)).

Johnson sufficiently alleges sustained harassment that undermined his 

ability to work. Relying on the Coleman Report, Johnson contends that he was

“repeatedly subjected to behavior that was hostile, intimidating, and[]

bullying, and it was done publicly over a period of more than three years.” 

More specifically, he endured “false accusations of wrong doing, name calling, 

campaigning to turn others against [him], encouraging [his] peers and direct 

reports not to work with [him], or for [him] thereby marginalizing and 

undermining his supervisory effectiveness.” The Coleman Report recounts 

that there were occasions when the tension between Johnson and Stamp was 

“so intense that the potential for physical aggression and altercation appeared 

imminent.” It concluded that “race was at the core of the differences” in this 

conflict. And Halstead publicly admitted not only that harassment occurred, 

but also that it resulted from Johnson’s “skin color.”

These allegations go well beyond “simple teasing, offhand comments, and 

isolated incidents.” Faragher, 524 U.S. at 788 (cleaned up). They allege a

lengthier period of harassment than other verbal abuse that we have found 

was pervasive enough to create a hostile work environment. See E.E.O.C. v. 

WC&M Enters., Inc., 496 F.3d 393, 400 (5th Cir. 2007) (finding genuine issue 

of material fact as to existence of hostile work environment when plaintiff was 

“subjected to verbal harassment on a regular basis for a period of 

approximately one year”); see also Walker v. Thompson, 214 F.3d 615, 626–27 

(5th Cir. 2000) (also finding a fact issue when African-American employees 

were subjected to a variety of racial slurs over three-year period), abrogated on 

other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). 

Most of all, Johnson provides concrete examples of how the racial intimidation 

“interfere[d] with [his] work performance.” See Harris, 510 U.S. at 23. The 

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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 has alleged a 

plausible claim of hostile work environment, and one that is apparent from

clearly established law. If those allegations are not plausible when they are 

corroborated by investigators the employer hired, it is tough to imagine when 

they will ever be. 

But for Halstead to be liable, it is not enough that Johnson was subject 

to a hostile work environment. Halstead must have been deliberately

indifferent to this racially hostile work environment. Southard, 114 F.3d at

551 (citing Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 454 (5th Cir. 1994) (en 

banc)). This is a “stringent standard of fault, requiring proof that a municipal 

actor disregarded a known or obvious consequence of his action.” Id. (quoting 

Bd. of the Cty. Comm’rs of Bryan Cty., Okla. v. Brown, 520 U.S. 397, 410 

(1997)). Johnson thus must allege that “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.” Vann v. City of 

New York, 72 F.3d 1040, 1049 (2d Cir. 1995). 

He has done so. There is no dispute that Halstead knew about the 

alleged harassment. Johnson says he met with Halstead soon after he filed 

the complaint with HR. The subsequent transfer of Johnson and Halstead’s 

later apology corroborate this. So does the Coleman Report, as it found that a 

“high ranking officer” confirmed Johnson’s account of his interactions with the 

Police Chief. The investigators also concluded that there was “widespread 

knowledge” of Johnson’s situation, and that the “Chain of Command” knew 

about the “hostile, intimidating, and bullying” behavior. 

Johnson’s allegations that Halstead did nothing to try and stop the 

harassment even though he knew about it—again corroborated by the outside 

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investigation—also satisfy the second requirement for deliberate indifference. 

Among its sharp criticisms of management’s response to the harassment 

complaints, the Coleman Report concludes that “upper management was 

aware of the ongoing nature of the matter, but did not step forward to stop the 

conflict—allowing the continuation of behavior contributing to a ‘hostile work 

environment.’” Addressing Stamp’s harassment of Johnson, it found that “the 

insulting, demeaning and offensive behavior . . . continued, in part because the 

department leadership failed to take directed action” as required by 

Department policy. Although these findings refer to “top” or “upper” 

management rather than Halstead specifically, it is easy to piece together that 

the very top of management is included among the group that made no attempt 

to stop the harassment. As discussed, Johnson told Halstead about the 

harassment. Halstead admitted to Johnson that he had “failed him” and 

promised to “make it right.” More than a year later, Halstead publicly 

admitted that he had not made it right and had instead continued in his failure 

to prevent the hostile conduct he had learned about. The 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. Of course, they are 

just allegations at this point, and the evidence may end up showing the 

opposite. But the allegations are plausible enough to allow Johnson to engage 

in the full discovery process and find out if there is evidence to back them up. 

IV.

We next consider the section 1981 claim asserting that Halstead 

retaliated after Johnson complained about discrimination by transferring him

to the night shift in a different division. Halstead argues he is entitled to 

qualified immunity because it is not established that the transfer was an 

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adverse employment action and Johnson has not sufficiently pleaded

causation.3

The district court seems to have concluded that the transfer amounted 

to an adverse action under the “ultimate employment decision” standard that 

governs discrimination claims. 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.” See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 

53, 67 (2006) (cleaned up). 

Halstead suggests it is not clear whether this “materially adverse”

standard applies to retaliation claims brought under section 1981. We do not 

view that as an open question. For starters, we have repeatedly explained that 

“[r]etalation claims under § 1981 and Title VII . . . are parallel causes of action,” 

which means they “require[] proof of the same elements in order to establish 

liability.” Foley v. Univ. of Hous. Sys., 355 F.3d 333, 340 n.8 (5th Cir. 2003); 

see also Raggs v. Mississippi Power & Light Co., 278 F.3d 463, 468 (5th Cir. 

2002) (“This Court considers claims of intentional discrimination, which 

include racial discrimination and retaliation claims based on Title VII and 42 

U.S.C. § 1981, under the same rubric of analysis.”). Applying that principle, 

 

3 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. See Jones v. City of Houston, No. 18-20223, 2018 WL 

6131132, at *5 n.6 (5th Cir. Nov. 20, 2018) (not deciding “whether § 1981 claims are 

cognizable against government officials in their individual capacities” in light of “tension” in 

our caselaw on the question (citing Foley v. Univ. of Hous Sys., 355 F.3d 333, 338 (5th Cir. 

2003)); see also Oden v. Oktibbeha Cty., Miss, 246 F.3d 458, 464 & n.5 (5th Cir. 2001). 

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. Halstead’s failure to raise the “individual defendant” 

question also means that this opinion is not precedent on that issue. See Webster v. Fall, 266 

U.S. 507, 511 (1925) (“Questions which merely lurk in the record, neither brought to the 

attention of the court nor ruled upon, are not to be considered as having been so decided.”). 

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we readily concluded that Burlington Northern’s “materially adverse” standard 

governs a section 1981 retaliation claim. See Mendoza, 548 F. App’x at 129–

30. Granted, Mendoza is not published and was decided a few months after 

Johnson’s transfer. But in viewing application of Burlington Northern to 

section 1981 as so straightforward—it just took reciting the principle that “the 

law regarding his § 1981 retaliation claims tracks the Title VII 

jurisprudence”—Mendoza shows that the adverse action standard is an 

obvious consequence of our repeated command to analyze Title VII and section 

1981 retaliation claims in sync. Cf. Hanks v. Rogers, 853 F.3d 738, 747 (5th 

Cir. 2017) (recognizing that there is no immunity defense when a 

constitutional violation is “obvious”). If that is not enough, a robust consensus 

of persuasive authority existed on this question at the time of Johnson’s 

transfer, as six circuits by then had applied the “materially adverse” standard 

to section 1981. See Douglass v. Rochester City Sch. Dist., 522 F. App’x 5, 8 (2d 

Cir. 2013); Estate of Oliva ex rel. McHugh v. New Jersey, 604 F.3d 788, 798 (3d 

Cir. 2010); Pantoja v. Am. NTN Bearing Mfg. Corp., 495 F.3d 840, 848–49 (7th 

Cir. 2007); Wright v. St. Vincent Health Sys., 730 F.3d 732, 737 (8th Cir. 2013); 

Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 998 (10th Cir. 2011); Jackson 

v. Hall Cty. Gov’t, 518 F. App’x 771, 773 (11th Cir. 2013). 

We thus need not decide if the transfer was tantamount to a demotion, 

which is often needed to treat a transfer as an “ultimate employment decision.” 

To be actionable when it is a product of retaliation, an employment decision 

need only “dissuade[] a reasonable worker from making or supporting a charge 

of discrimination.” Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68. Under 

this less demanding standard, “a lateral reassignment to a position with equal 

pay could amount to a materially adverse action in some circumstances.” See 

Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 485 (5th Cir. 2008). A shift 

change in and of itself is probably not sufficient. See Lushute v. Louisiana, 

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Dep’t of Soc. Servs., 479 F. App’x 553, 555 (5th Cir. 2012) (shift change was not 

an adverse employment action when plaintiff was changed from a four-day 

week to a five-day week with no change in total hours or compensation). But 

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. See Ginger v. District of Columbia, 527 F.3d 1340, 1344 (D.C. 

Cir. 2008) (finding potential Title VII retaliation when police officers were 

switched from a permanent shift to a rotating shift because the change 

“severely affected [the officers’] sleep schedules and made it more difficult for 

them to work overtime and part-time day jobs”); Washington v. Ill. Dep’t of 

Revenue, 420 F.3d 658, 662 (7th Cir. 2005) (finding lateral transfer requiring

normal 9-to-5 schedule could be materially adverse when prior flex-time hours 

were necessary for plaintiff to care for her son with Down syndrome).

Johnson alleges that substantial burdens flowed from the shift change.

He went from a daytime shift during the week to a night shift on the weekend. 

Just in terms of that timing, either hours or days, the shift change could

dissuade an officer from making a discrimination complaint. But Johnson also

describes his new assignment as “one of the worst shifts in the entire police 

department,” and it is not surprising that weekend evenings might be among 

the more demanding assignments for a police officer. He also cites a significant 

financial loss of $50,000 because he had to quit a part-time job he had held for 

11 years and no longer got the opportunity to work overtime hours. The district 

court found these allegations sufficient to show an ultimate employment 

decision. We have no trouble finding that they could support the lesser 

threshold of a “materially adverse” action, and that the widely acknowledged 

inferiority of the new shift would have been apparent to any reasonable person 

making the decision.

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Johnson must also show it is plausible that he was transferred because 

he complained about discrimination. He has done so. Shortly after alleging a 

pattern and practice of race discrimination to human resources, Johnson 

personally met with Halstead to discuss his concerns. Three months later, 

Halstead transferred Johnson from the position he had held for eight years. 

This relatively short time gap between his complaint and the transfer support 

an allegation that the two events were related. 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 postdiscovery summary judgment stage (quoting Weeks v. NationsBank, N.A., 2000 

WL 341257, at *3 (N.D. Tex. 2000))). So does Halstead’s decision to return 

Johnson to his old shift immediately after the release of the Coleman Report.

And the report recognized that Johnson’s transfer out of the Traffic Division 

was part of “the department’s response to [his] complaint of harassment.”4

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. The district court properly 

denied Halstead’s motion to dismiss this claim.

 

4 Halstead’s petition for rehearing en banc argues that this discussion of causation for 

the section 1981 retaliation claim fails to apply the “clearly established” qualified immunity 

standard. But that standard asks whether a “right was ‘clearly established’ at the time of 

the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (emphasis added). It 

does not require that causation be clearly established. Indeed, Halstead cites no case 

requiring a heightened showing of causation in qualified immunity cases. 

What is more, in challenging causation Halstead relies on cases addressing the 

McDonnell Douglas prima facie showing used at summary judgment when a plaintiff tries to 

prove retaliation with circumstantial evidence. At the pleading stage, the question is 

whether the allegation is plausible. See Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) 

(explaining that the McDonnell Douglas framework used for evaluating circumstantial 

evidence at summary judgment does not apply at the pleading stage). 

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V.

Johnson alleges a second retaliation claim, this one under the First 

Amendment. It is also based on Halstead’s alleged response to Johnson’s 

complaint about the racially hostile work environment, which Johnson 

characterizes as protected speech. Unlike the claim alleging retaliation for 

reporting discrimination, a claim of retaliation for exercising First Amendment 

rights exists only if Johnson was making the statement as a citizen on a matter 

of public concern.5 Garcetti v. Ceballos, 547 U.S. 410, 421 (2006); Gibson v. 

Kilpatrick, 838 F.3d 476, 481 (5th Cir. 2016).

The district court correctly determined that Johnson’s apprehensions

about racial hostility within the police department are a matter of public 

concern. See Markos v. City of Atlanta, Tex., 364 F.3d 567, 574 (5th Cir. 2004) 

(finding that “a public employee speaking out about alleged corruption in the 

police department” is “a subject undoubtedly of public concern”); Branton v. 

City of Dallas, 272 F.3d 730, 740 (5th Cir. 2001) (“Exposure of official 

misconduct, especially within the police department, is generally of great 

consequence to the public.”).

But the district court did not consider the second question Garcetti asks:

whether Johnson was speaking as a citizen. A public employee’s speech is not 

protected when he speaks “pursuant to [his] official duties.” Anderson v. 

Valdez, 845 F.3d 580, 592 (5th Cir. 2016). The reason is that when the 

 

5 We note that First Amendment retaliation claims also may differ from section 1981 

retaliation over the definition of an “adverse employment action.” It is not clearly established 

whether Burlington’s “materially adverse” standard applies to retaliation for protected 

speech. See Gibson v. Kilpatrick, 734 F.3d 395, 401 n.4 (5th Cir. 2013) (“[T]his court has not 

yet decided whether the Burlington standard for adverse employment actions also applies to 

First Amendment retaliation cases.”), vacated and remanded on other grounds, 134 S. Ct. 

2874 (2014); DePree v. Saunders, 588 F.3d 282, 288 (5th Cir. 2009) (finding that the 

application of Burlington to First Amendment retaliation is not “clearly established”). 

Because our decision is based on whether Johnson spoke as a citizen, we need not address 

whether his transfer would meet the stricter “ultimate employment action” test. 

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employee’s speech merely relates to the employment relationship as might 

occur in a private workplace, the public employer should not face constitutional 

scrutiny for its responses. Garcetti, 547 U.S. at 418, 423 In determining 

whether an employee was speaking as part of his duties or had stepped outside 

that role to speak as a citizen and thus receive First Amendment protection, 

we consider “factors such as job descriptions, whether the employee 

communicated with coworkers or with supervisors, whether the speech 

resulted from special knowledge gained as an employee, and whether the 

speech was directed internally or externally.” Rogers v. City of Yoakum, 660 

F. App’x 279, 283 (5th Cir. 2016) (citing Davis v. McKinney, 518 F.3d 304, 313 

(5th Cir. 2008)). 

One way to determine the role of the speaker is to look to the identity of 

the listener. Complaints made publicly or to individuals outside the speaker’s 

organization suggest the employee is acting as a citizen. See Anderson, 845 

F.3d at 600 (“By at least 2014, it was clearly established that an employee’s 

speech made externally concerning an event that was not within his or her job 

requirements was entitled to First Amendment protection.” (cleaned up));

Charles v. Grief, 522 F.3d 508, 514 (5th Cir. 2008) (stating that an AfricanAmerican who raised concerns about racial discrimination against himself and 

other minority employees of the Texas Lottery Commission engaged in 

protected speech because his complaints were made to Texas legislators rather 

than his supervisors). But complaints made up the chain of command about 

conditions in a workplace are often held be found unprotected. Gibson v. 

Kilpatrick, 773 F.3d 661, 670 (5th Cir. 2014) (recognizing that “whether the 

employee’s complaint [is] made within the chain of command or to an outside 

actor” is an important, but not dispositive, factor); Davis, 518 F.3d at 313

(“Cases from other circuits are consistent in holding that when a public 

employee raises complaints or concerns up the chain of command at his 

 Case: 17-10223 Document: 00514836033 Page: 16 Date Filed: 02/14/2019
No. 17-10223

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workplace about his job duties, that speech is undertaken in the course of 

performing his job.”). 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.” See Cutler v. Stephen F. Austin State Univ., 767 F.3d 462, 471–73

(5th Cir. 2014) (discussing the Fifth Circuit’s development of First Amendment 

retaliation law for public employees after Garcetti). Halstead is therefore 

entitled to qualified immunity on the First Amendment retaliation claim.

* * *

The district court’s denial of qualified immunity is AFFIRMED on the 

hostile work environment and section 1981 claims, but REVERSED on the 

section 1983 First Amendment retaliation claim. The case is REMANDED for 

further proceedings. 

 Case: 17-10223 Document: 00514836033 Page: 17 Date Filed: 02/14/2019