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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 23-2232
DON GORDON; TERRELL JONES,
Plaintiffs - Appellees,
v.
SERGEANT WILLIAM C. HEATH,
Defendant - Appellant,
and
MARYLAND STATE POLICE; CORPORAL JASON OROS,
Defendants.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
George L. Russell, III, Chief District Judge. (1:22-cv-01699-GLR)
Argued: March 17, 2026 Decided: June 24, 2026
Before KING, GREGORY, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Gregory wrote the opinion, in which Judge King
and Judge Thacker joined.
ARGUED: Sydney M. Patterson, MARCUSBONSIB, LLC, Greenbelt, Maryland, for
Appellant. Joseph Eugene Spicer, COHEN HARRIS, LLC, Towson, Maryland, for
Appellees. ON BRIEF: Bruce L. Marcus, MARCUSBONSIB, LLC, Greenbelt,
Maryland, for Appellant.
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GREGORY, Circuit Judge:
Don Gordon and Terrell Jones are two Black officers formerly assigned to a multiagency Maryland State Police (“MSP”) drug task force. From the outset of their tenure,
they allege they were treated as outsiders: they describe being excluded from informal
meetings and group communications where overtime work and more desirable job
opportunities were circulated to white Task Force members.
According to their Amended Complaint, the harassment peaked in early June 2020,
when a supervisor circulated a text message with a racially coded and sexually explicit
image of George Floyd to Task Force officers. This text was sent in the immediate wake of
Floyd’s killing and the nationwide controversy that followed. Gordon and Jones allege
Defendant Sergeant Heath, who co-led the unit, participated in the exclusionary practices
and failed to address the racially charged text message.
Gordon and Jones brought this action against MSP and their supervisors, including
Sergeant Heath, asserting, among other claims, hostile work environment under Title VII
and 42 U.S.C. § 1981 (the latter enforced through 42 U.S.C. § 1983 as to the individual
defendants). The district court granted the motions to dismiss in part and denied them in
part, dismissing the race discrimination claims but allowing the Title VII hostile work
environment claim to proceed against MSP and the § 1981 hostile work environment
claims to proceed against Sergeant Heath and Corporal Oros in their individual capacities,
and denying qualified immunity.
In this interlocutory appeal, Sergeant Heath challenges that denial of qualified
immunity. He contends that the Amended Complaint fails to plausibly allege his personal
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involvement in the racially hostile work environment described therein and, in any event,
that the law was not clearly established at the time of the alleged conduct. Accepting the
Amended Complaint’s well-pleaded allegations as true and drawing reasonable inferences
in Gordon’s and Jones’s favor as we must, we find that Plaintiffs have plausibly alleged
Sergeant Heath’s participation in and tacit authorization of a racially hostile work
environment, and that the right at issue was indeed clearly established at the time. We
therefore affirm.
I.
The following sets forth allegations of harassment and a hostile work environment
as are pled in Plaintiffs-Appellees Amended Complaint.
A.
1.
Plaintiffs Don Gordon and Terrell Jones are Black law enforcement officers who
joined Maryland State Police’s (“MSP”) multi-agency Organized Crime Drug Enforcement
Task Force, also known as “Baltimore Strike Force Group 7” (“the Task Force”), in 2019—
Jones in April of that year and Gordon in October. Their day-to-day supervisors on the Task
Force were Defendants Sergeant William C. Heath and Corporal Jason Oros. Those two
co-led the unit, though Heath was senior in rank as a sergeant to Corporal Oros. Oral Ar. at
18:50–19:10 (timestamp). Sergeant Heath and Corporal Oros oversaw Plaintiffs’ daily
activity and had authority to set schedules, control how they worked within the unit, and
remove them from the Task Force.
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According to the Amended Complaint, the disparate treatment began early on.
Within the first few months of their assignment to the Task Force, Gordon and Jones say
they noticed that white Task Force members were treated more favorably. The Amended
Complaint describes and sets forth the impact of the recurring disparate treatment:
Sergeant Heath and Corporal Oros “rarely communicated” with them, while routinely
holding informal meetings and sending group text messages that included white officers
but excluded Gordon and Jones. J.A. 11 ¶ 50. 1 Those meetings and text chains were where
the unit shared operational information and provided notice of new and ongoing
investigations that Plaintiffs describe as “desirable job assignment opportunities and
overtime work” that could result in additional compensation. Id. ¶ 51.
According to Plaintiffs the consequences were predictable: because they were left
out of the channels where opportunities were circulated, they often learned about more
desirable assignments and overtime work only after the fact by hearing other Task Force
members talk about them when the opportunities were no longer available. They allege
that this exclusion cost them overtime work opportunities that white Task Force members
received, resulting in Plaintiffs’ loss of income.
The Amended Complaint states that Sergeant Heath and Corporal Oros knew Plaintiffs
were being left out, and Plaintiffs “discovered” that Sergeant Heath and Corporal Oros
participated in the very text message threads that excluded them. J.A. 12 ¶ 61. In Plaintiffs’
telling, the exclusion was not a one-off miscommunication but rather the ongoing way the
1
Citations to the “J.A.” refer to the joint appendix filed by the parties in this appeal.
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unit operated—one that, by design and effect, advantaged white Task Force members and
left Gordon and Jones on the outside.
2.
The Amended Complaint then describes a flashpoint that, in Plaintiffs’ telling, put
the racial subtext of their experience into sharp relief.
On May 25, 2020, George Floyd was killed in Minneapolis after a police officer
knelt on his neck for about nine minutes as he pleaded that he could not breathe. Key
Events in the Month Since George Floyd’s Death, Reuters (June 25, 2020, 2:30 PM UTC),
https://www.reuters.com/news/picture/idUSRTS3FNJP/; https://perma.cc/SP97-QBDT
(last visited June 24, 2026). In the days that followed, the video showing Floyd’s death
and his last words were everywhere, on television, social media, and in everyday
conversation, and they catalyzed a nationwide controversy over race and policing. Id.
Against that backdrop, just over a week later, on June 2, 2020, Corporal Oros
allegedly sent a “text message depict[ing] a superimposed nude African-American male
with exposed and enlarged genitals sitting on George Floyd’s head and neck area on the
street near the rear bumper of a Minneapolis police car.” J.A. 13 ¶ 67. Gordon and Jones
allege they were “upset and offended” by the image. Id. ¶ 73.
What matters for Plaintiffs’ claim against Sergeant Heath is what Plaintiffs say should
have followed the offensive text but never did: Sergeant Heath failed to “properly supervise
and discipline” Corporal Oros, failed to report the incident through MSP supervisory
channels, and failed to start an investigation of the matter. Id. ¶ 69. Plaintiffs further allege
that the nonresponse fit a broader pattern they had been living with—exclusion from the
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unit’s informal meetings and text threads, and the resulting denial of overtime work
assignments, desirable job opportunities, and the attendant compensation received by white
Task Force members.
Moreover, Plaintiffs allege that the combination of Corporal Oros’s message and
Sergeant Heath’s nonresponse eroded the unit’s day-to-day atmosphere, “result[ing] in more
racial division within the Task Force,” creating mistrust along racial lines, and leaving Plaintiffs
feeling isolated from other members. Id. ¶¶ 68, 75–76. This tension went beyond mere
discomfort because Plaintiffs alleged they did not believe other Task Force officers would
protect them during dangerous street work they routinely performed, such as investigating
crime, executing search and seizure warrants, and arresting suspects. J.A. 14 ¶ 77.
Jones left the Task Force in July 2020, shortly after the June 2020 incident. Gordon
alleges he remained on the Task Force and continued to experience racial discrimination
and a hostile work environment until the beginning of January 2022.
B.
Gordon and Jones first took their claims to the U.S. Equal Employment Opportunity
Commission (“EEOC”). On November 30, 2020, they filed charges of discrimination, and
on April 13, 2022, they received right-to-sue letters. They filed this action in the District
of Maryland on July 8, 2022.
After the initial complaint was met with motions to dismiss, Plaintiffs filed an
Amended Complaint on February 7, 2023, which reset the pleadings and became the
operative complaint. In it, they asserted five claims: Title VII race discrimination (Count
One), Equal Protection race discrimination under § 1983 (Count Two), Title VII hostile
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work environment (Count Three), § 1981 race discrimination (Count Four), and § 1981
hostile work environment (Count Five). Because Sergeant Heath and Corporal Oros are
state actors, the § 1981 claims proceeded against them through § 1983. Sergeant Heath
moved to dismiss and asserted qualified immunity as to the individual capacity claim
against him.
On September 21, 2023, the district court granted the defense motions in part and
denied them in part. The court dismissed Plaintiffs’ race discrimination claims but allowed
the hostile work environment claims to proceed against MSP under Title VII and against
Sergeant Heath and Corporal Oros in their individual capacities under § 1981 through
§ 1983, while denying qualified immunity at the pleading stage. The district court
explained that Plaintiffs had “narrowly charted” plausibility, relying primarily on the June
2, 2020, text message and related allegations of exclusion. Gordon v. Maryland State
Police, No. CV GLR-22-1699, 2023 WL 6161089, at *9 (D. Md. Sept. 21, 2023).
Sergeant Heath noticed this interlocutory appeal on October 19, 2023, challenging
only the denial of qualified immunity on the § 1981 hostile work environment claim against
him.
II.
Jurisdiction over an interlocutory appeal from the denial of qualified immunity is
limited. Under 28 U.S.C. § 1291 and the collateral order doctrine, we may review the
denial of qualified immunity to the extent the appeal “turns on an issue of law.” Mitchell
v. Forsyth, 472 U.S. 511, 526–27 (1985); Iko v. Shreve, 535 F.3d 225, 234 (4th Cir. 2008).
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Winfield v. Bass explains the boundary: accepting the facts as the district court viewed
them, we may decide whether the alleged conduct violated clearly established law, but we
may not entertain arguments that the plaintiff “has not presented enough evidence” that the
plaintiff’s version occurred. 106 F.3d 525, 529–30 (4th Cir. 1997) (en banc). In short, no
reweighing of facts is permitted on this interlocutory review.
The district court denied qualified immunity at the motion to dismiss stage, so our
review is de novo. Feminist Majority Found. v. Hurley, 911 F.3d 674, 685 (4th Cir. 2018).
We accept the Amended Complaint’s factual allegations as true and draw reasonable
inferences in Plaintiffs’ favor, but we do not credit legal conclusions, unwarranted
inferences, or “naked assertions” without factual enhancement. Wikimedia Found. v. Nat’l
Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017).
III.
Qualified immunity generally shields officials from liability unless their conduct
violates clearly established law. Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Courts apply a familiar two-step inquiry
that asks (1) whether the facts alleged make out a violation of a constitutional right, and
(2) whether the right was clearly established at the time of the alleged misconduct.
Pearson, 555 U.S. at 232; see also Ashcroft v. al–Kidd, 563 U.S. 731, 735 (2011). Although
courts may address either prong first, Pearson, 555 U.S. at 236, this case is best approached
by beginning with the merits because doing so frames the right at the appropriate level of
generality for the “clearly established” analysis that follows.
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The merits inquiry is shaped by the procedural posture of the case. At the motion
to dismiss stage, the question is not whether Plaintiffs can ultimately prove their
allegations, but whether they have plausibly alleged a constitutional violation and whether
the asserted right was clearly established on the assumed facts. To state a § 1981 claim,
Plaintiffs must plausibly allege that, but for race, they would not have suffered the loss of
a legally protected right. Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 589 U.S.
327, 339 (2020). And because § 1981 requires intentional race discrimination, Plaintiffs
must plead facts supporting a reasonable inference of discriminatory purpose that may be
drawn from direct or circumstantial evidence. Guessous v. Fairview Prop. Inv., LLC, 828
F.3d 208, 216 (4th Cir. 2016).
With that posture in mind, we turn to whether the Amended Complaint plausibly
alleges a racially hostile work environment attributable to Sergeant Heath under the
governing elements.
A.
Section 1981 guarantees that “[a]ll persons . . . shall have the same right . . . to make
and enforce contracts . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). The Supreme
Court has construed § 1981 to prohibit intentional racial discrimination in contracting,
including in the employment relationship. Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604,
609 (1987); Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 459–60 (1975). Where, as
here, the defendant is a state actor, Ҥ 1983 constitutes the exclusive federal remedy for
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violation of the rights guaranteed in § 1981.” Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701,
731–33 (1989); Dennis v. Cnty. of Fairfax, 55 F.3d 151, 156 (4th Cir. 1995).2
In this Circuit, hostile work environment claims under § 1981 are “governed by the
same principles” as hostile work environment claims under Title VII. Spriggs v. Diamond
Auto Glass, 242 F.3d 179, 184 (4th Cir. 2001). For hostile work environment claims,
Strothers v. City of Laurel supplies the element-by-element framework and the contextual
lens for evaluating each element. 895 F.3d 317, 328–29 (4th Cir. 2018). Under that
framework, the plaintiff must plausibly allege that the harassment was (1) unwelcome, (2)
based on race, and (3) sufficiently severe or pervasive to alter the conditions of employment
and create an abusive atmosphere. Id.; see also Spriggs, 242 F.3d at 184; Causey v. Balog,
162 F.3d 795, 801 (4th Cir. 1998).
One adjustment is required in this § 1983 individual capacity posture. 3 Title VII’s
separate “imputable to the employer” element is not the inquiry for personal liability under
2
42 U.S.C. § 1983 provides: “Every person who, under color of any statute,
ordinance, regulation, custom, or usage . . . subjects, or causes to be subjected, any citizen
of the United States or other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the
party injured . . . .” Section 1983 thus supplies the procedural vehicle through which
§ 1981 rights are enforced against state actors, making § 1983 the exclusive federal remedy
for violations of § 1981 by state actors and requiring plaintiffs to proceed under § 1983
rather than directly under § 1981. See Jett, 491 U.S. at 731–33.
3
In his opening brief, Sergeant Heath mistakenly includes an additional element of
a hostile work environment claim—namely, that the discriminatory conduct must be
“imputable to the employer.” Op. Br. 9–10. That requirement applies to Title VII claims
against an employing entity, but it is inapplicable here because Plaintiffs assert claims
under 42 U.S.C. §§ 1981 and 1983 against individual defendants in their personal
capacities. Under those statutes, liability is personal rather than vicarious. See Ashcroft v.
(Continued)
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§ 1983. Liability is personal, and Plaintiffs must plausibly allege that each defendant,
through his own conduct, participated in or caused the deprivation. See Wilcox v. Brown,
877 F.3d 161, 170 (4th Cir. 2017) (“[L]iability will only lie where it is affirmatively shown
that the official charged acted personally in the deprivation of the plaintiffs’ rights.”).
At this stage of litigation, the Court therefore asks whether, accepting the Amended
Complaint’s well-pleaded allegations as true and drawing reasonable inferences in
Plaintiffs’ favor, the alleged conduct plausibly states a racially hostile work environment
under the Title VII/§ 1981 standard the Fourth Circuit applies. See Strothers, 895 F.3d at
328–31; Spriggs, 242 F.3d at 184.
1.
Sergeant Heath reads the “unwelcome conduct” element to require that a plaintiff
directly confront the harasser or formally complain. But Strothers rejects that cramped
view. The first element “is not a high hurdle,” and this Court recognized two ways to show
conduct was unwelcome—by voicing objection to the harasser or employer, or by the
character of the conduct itself because “the nature of the conduct may indicate whether or
not the conduct is unwelcome.” Strothers v. City of Laurel, 895 F.3d 317, 328–29 (4th Cir.
2018); see also EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 314 (4th Cir. 2008) (treating
certain derisive conduct as inherently unwelcome when it is “difficult to see how any
employee would welcome” it).
Iqbal, 556 U.S. at 677 (“Absent vicarious liability, each Government official . . . is only
liable for his or her own misconduct.”); Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir.
2004) (no respondeat superior liability under § 1983). Accordingly, the “imputable to the
employer” standard has no application to the individual capacity claims asserted here.
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That second, more contextual approach matters because workplace dynamics do not
always make immediate objection realistic. Particularly where, for example, the alleged
harasser is a supervisor or where a supervisor is alleged to tolerate misconduct by a favored
colleague, employees may reasonably fear retaliation or other consequences from speaking
up—and, in a law enforcement setting, Plaintiffs plausibly allege that workplace mistrust
can carry real safety implications in the field. J.A. 14 ¶ 77. Strothers does not make the
viability of a hostile work environment claim turn on whether a plaintiff confronted their
harasser; it only asks whether the conduct was unwanted and regarded as undesirable, which
may be inferred from the allegations and circumstances. Strothers, 895 F.3d at 328–29.
At the pleadings stage, Plaintiffs’ allegations satisfy that low bar. They allege
exclusion from core communications and opportunities, and they allege receiving a text
that contained an extremely offensive image of George Floyd. Against the widely
understood context of George Floyd’s killing by law enforcement, it is “difficult to see how
any employee would welcome derisive behavior” invoking that event, especially two Black
officers working within a law enforcement task force. Sunbelt Rentals, 521 F.3d at 314.
Plaintiffs also allege in their Amended Complaint that they were “upset and offended” by
Corporal Oros’s text and Sergeant Heath’s inaction. J.A. 13 ¶ 73. Taking those allegations
as true and drawing reasonable inferences in Plaintiffs’ favor, the Amended Complaint
plausibly alleges that the conduct was offensive and unwelcome.
2.
When determining whether the allegedly hostile conduct occurred because of race,
Strothers also supplies the framework.
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Title VII (and the § 1981 hostile work environment framework that mirrors it) is not
a “general civility code,” and it targets only conduct that occurs “because of” race,
evaluated with “appropriate sensitivity to social context.” Strothers, 895 F.3d at 329–31.
Strothers makes explicit that harassment need not come with a contemporaneous racial
statement of animus every time: “the connection between animus and conduct may be
inferred from the totality of the circumstances.” Id. at 331; Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 82 (1998) (instructing courts in harassment cases to apply
“[c]ommon sense” and “appropriate sensitivity to social context” to the “constellation of
surrounding circumstances, expectations, and relationships which are not fully captured by
a simple recitation of the words used or the physical acts performed”). At this stage of
litigation, even with § 1981’s but-for requirement, see Comcast Corp., 589 U.S. at 341, a
plaintiff need not plead that every discrete act was overtly racial. The question is whether
the allegations support a plausible inference that race explains the pattern.
Here, Gordon and Jones allege that, throughout their tenure, Sergeant Heath and
Corporal Oros “rarely communicated with” them, J.A. 11 ¶ 50, and maintained informal
meetings and text chains that circulated overtime work and desirable job opportunities to
white members while excluding Gordon and Jones. They further allege that on June 2,
2020, Corporal Oros circulated a George Floyd image depicting “a superimposed nude
African-American male with exposed and enlarged genitals sitting on George Floyd’s head
and neck area on the street near the rear bumper of a Minneapolis police car.” J.A. 13 ¶ 67.
Viewed in its social context, that alleged image is not merely offensive; it is
circumstantial evidence of racial animus. And under Strothers, allegations of racial animus
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need not accompany each challenged act to support an inference that a broader pattern of
facially neutral conduct occurred because of race. See 895 F.3d at 330–31. Thus, the
alleged George Floyd image provides the kind of contextual showing that can “inject[]”
race into the explanation for the exclusionary practices Plaintiffs describe and support an
inference that those practices were not race-neutral at all. Id.; see also id. at 329, 334–36
(explaining that although much of the alleged mistreatment was not overtly race-specific,
allegations that the supervisor wanted an employee “of a different race,” together with the
pattern of singling-out plaintiff, supported a reasonable inference that the harassment was
“race-based”).
3.
The third element asks whether the alleged harassment was “sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive working
environment.” Strothers, 895 F.3d at 331 (internal citations omitted). Courts examine the
“totality of the circumstances,” including “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with an employee’s work performance.” Harris v.
Forklift Sys., Inc., 510 U.S. 17, 23 (1993); Strothers, 895 F.3d at 331. What “interferes
with work performance” or becomes “threatening” can look different depending on the job
and setting, which is why context always matters. Strothers, 895 F.3d at 331. And while
“[s]imple teasing, offhand comments, and off-color jokes” do not suffice, EEOC v.
Fairbrook Med. Clinic, P.A., 609 F.3d 320, 328 (4th Cir. 2010), even a single incident can
meet the standard if “extremely serious.” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d
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264, 281, 285–86 (4th Cir. 2015) (en banc) (finding it reasonable for plaintiff to claim a
hostile work environment when she was called a racial slur only twice, because “an isolated
incident of harassment, if extremely serious, can create a hostile environment”).
Viewed in the light most favorable to Plaintiffs, the Amended Complaint plausibly
alleges much more than a stray slight. Plaintiffs describe ongoing exclusion from the informal
meetings and group text chains where desirable assignments and overtime opportunities were
discussed and distributed—exclusions they say caused them to miss potentially lucrative job
and overtime work opportunities. They also allege the derisive incident in which Corporal Oros
sent the racially and sexually offensive image of George Floyd, which even counsel for
Sergeant Heath concedes is sufficiently severe because of its level of insensitivity and
offensiveness. Oral Ar. at 10:50 (timestamp). Sergeant Heath took no corrective action—
no reprimand, no report, no investigation—and continued excluding Gordon and Jones
from informal meetings and text group chats. Plaintiffs allege that the combined conduct
resulted in more racial division, created mistrust along racial lines, and left them isolated
from other Task Force members.
Because of this mistrust, Plaintiffs alleged that their ability to do their job safely and
effectively became compromised. They state in their Amended Complaint that because of
the racially divisive and hostile atmosphere created within the Task Force, they did not
believe Sergeant Heath, Corporal Oros, and other Task Force members would protect them
in their dangerous street work that involved drug investigations and executing search and
seizure warrants. At the pleading stage, these allegations go directly to Harris’s “physically
threatening” and “interference with work performance” factors because a reasonable
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officer could perceive as abusive an environment in which racial division and mistrust
plausibly undermine the expectation of backup in the field. Harris, 510 U.S. at 23;
Strothers, 895 F.3d at 331. Taking all these allegations together—repeated exclusion
affecting opportunities and pay, a humiliating racially offensive text message, continued
nonresponse by leadership, and alleged safety-threatening mistrust—Plaintiffs plausibly
allege conduct sufficiently severe or pervasive to alter their conditions of employment.
Strothers, 895 F.3d at 331; Boyer-Liberto, 786 F.3d at 285–86.
4.
Finally, we address personal liability and causation. This case proceeds against
Sergeant Heath in his individual capacity, so § 1983’s “no respondeat superior” rule means
he is liable only for his own conduct, not Corporal Oros’s. Ashcroft v. Iqbal, 556 U.S. 662,
676–77 (2009); Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004). Plaintiffs therefore
must plausibly allege Sergeant Heath’s personal involvement in the hostile environment
through his participation in the challenged conduct, or through his acts or omissions that
causally contributed to it. Wilcox v. Brown, 877 F.3d 161, 170 (4th Cir. 2017). They must
also plausibly allege discriminatory intent. Id. And since Plaintiffs proceed under § 1981
principles, they additionally must satisfy causation requirements. Comcast Corp., 589 U.S.
at 339, 341 (“a § 1981 plaintiff first must show that he was deprived of the protected right
and then establish causation—and that these two steps are analytically distinct,” and to
prove causation, plaintiff must “initially plead and ultimately prove that, but for race, they
would not have suffered the loss of a legally protected right.”).
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So, Sergeant Heath is correct that a § 1981 claim requires a showing of intentional
race discrimination, and Iqbal does caution that “knowledge and acquiescence” alone does
not establish a defendant’s discriminatory state of mind. 556 U.S. at 677, 683. But Iqbal
does not foreclose a circumstantial showing of intent as Sergeant Heath suggests. That
case expressly acknowledges that condoning discrete wrongs “could be the basis for some
inference of wrongful intent,” so long as the complaint plausibly connects the conduct to
the defendant’s discriminatory state of mind. Id. at 683.
That principle is reflected in this Court’s supervisory-liability cases, which
recognize that a supervisor’s “indifference or tacit authorization” of a subordinate’s
misconduct can be a causal factor in the constitutional injury. See Slakan v. Porter, 737
F.2d 368, 372–73 (4th Cir. 1984); Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)
(supervisor liability where supervisor knew of a pervasive risk, responded with deliberate
indifference/tacit authorization, and that response had an affirmative causal link to the
injury). See also Wilkins v. Montgomery, 751 F.3d 214, 226–27 (4th Cir. 2014) (reaffirming
Shaw’s “affirmative causal link” requirement); Baynard v. Malone, 268 F.3d 228, 235 (4th
Cir. 2001) (quoting Slakan that supervisory indifference/tacit authorization may be a causal
factor). Put differently, the tacit authorization of explicitly racial harassment may
circumstantially provide a link between facially neutral conduct and an intent to violate a
constitutional right.
Against that backdrop, Gordon and Jones plead two routes to Sergeant Heath’s
personal involvement. First, they allege participation: Sergeant Heath and Corporal Oros
jointly supervised the Task Force and maintained informal meetings and group text threads
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that excluded Plaintiffs while white members received work-related information and
opportunities through those channels. Second, they allege purposeful nonresponse and
tacit authorization: after Corporal Oros circulated the George Floyd image to the group,
Sergeant Heath allegedly did not discipline Corporal Oros, report the incident through
internal MSP channels, or initiate an investigation, and Plaintiffs allege Sergeant Heath
continued to exclude them from informal meetings and text chains afterward.
To be sure, if Plaintiffs had alleged only that Sergeant Heath learned of Corporal Oros’s
conduct and failed to act, that would raise an Iqbal concern. 556 U.S. at 677, 683. But
Plaintiffs allege more: they link Sergeant Heath’s nonresponse in his ongoing supervisory
role to his alleged participation in the exclusionary structure that Plaintiffs allege was racebased when viewed in context. On those combined allegations, Sergeant Heath’s failure to
report or respond is plausibly race-based, not because inaction automatically equals intent,
but because it supports a reasonable inference of purposeful inaction that helped perpetuate
the race-salient hostile work environment. Slakan, 737 F.2d at 372–73; Shaw, 13 F.3d at
799. In other words, Plaintiffs allege that Sergeant Heath’s inaction in response to
Corporal Oros’s offensive text serves as circumstantial evidence that Sergeant Heath’s
exclusionary conduct before and after the text was sent was racially motivated. This
circumstantial showing is sufficient at the pleadings stage. Iqbal, 556 U.S. at 683.
Accordingly, the Amended Complaint plausibly alleges that Sergeant Heath violated
Gordon’s and Jones’s § 1981 rights (enforced through § 1983) by participating in and
tacitly authorizing a racially hostile work environment. On Plaintiffs’ account, the
harassment was severe or pervasive enough to alter the conditions of their employment,
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affecting not only compensation and opportunities, but also their ability to perform safely
and effectively in the field. As alleged, Sergeant Heath’s own conduct contributed to that
environment both through his participation in the exclusionary practices and his failure to
intervene in the face of overtly racial harassment.
B.
We now address whether the right Sergeant Heath is alleged to have violated was
clearly established at the time. We conclude that it was, so qualified immunity is not
available for Sergeant Heath at this stage.
A right is clearly established when existing precedent has placed the question
“beyond debate,” such that a reasonable official would understand the conduct to be
unlawful. al–Kidd, 563 U.S. at 741 (2011); Ridpath v. Bd. of Governors Marshall Univ.,
447 F.3d 292, 313 (4th Cir. 2006). The inquiry does not demand a case “directly on point.”
al–Kidd, 563 U.S. at 741. Instead, it asks whether, in the circumstances at hand, the law
gave a fair warning.
As has been discussed in depth, Plaintiffs identify as two Black officers, and they
allege that from early on in their tenure on the Task Force, they were excluded from the
informal meetings and group text chains where more desirable assignments and overtime
opportunities were circulated to white officers. They also allege that in the immediate wake
of George Floyd’s killing and the national controversy that followed, Corporal Oros
circulated to the group a demeaning image of George Floyd—and that Sergeant Heath, a
co-leader with authority to act, did nothing and continued the same exclusionary practices
toward Plaintiffs. On those assumed facts, the relevant question is whether a reasonable
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supervisor in law enforcement would have understood that participating in and
perpetuating such a racially hostile work environment by tacit authorization violates clearly
established law. For the reasons below, we find that a reasonable supervisor would have.
This Court has recognized—notably in a policing context—that discriminatory
mistreatment in a police unit can present through exclusion from the informal channels that
structure day-to-day work. In Campbell v. Galloway, the plaintiff was one of only a few
female officers on her unit and offered evidence suggesting she was treated differently by
her team, including that the team “regularly had breakfast together” after night shift but
she was “never invited,” and that when a restaurant donated food to the department, her
team members “ate it all without telling” her. 483 F.3d 258, 263 (4th Cir. 2007). When
she later complained that there was “one set of rules for her and another for everyone else”
and that her sergeant “did not back her up during calls as he did the male officers,” her
lieutenant understood her to be complaining about sexual harassment and elevated the
matter to the Chief. Id.
Reaffirming that public employees’ Equal Protection discrimination claims “mirror”
Title VII and may be brought under § 1983, id. at 272 n.5., Campbell puts public
supervisors on notice that discrimination in law enforcement settings can manifest through
exclusion from informal team channels through which information and support flow, and
differential treatment tied to operational backup can be evidence of discriminatory
mistreatment, not merely social friction. This is plainly analogous to Plaintiffs’ allegations
of exclusion from the informal meetings and group texts where desirable assignments and
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opportunities were distributed, and their allegation that the resulting mistrust affected their
ability to work safely in the field.
This Court’s hostile work environment cases also gave clear notice that supervisory
authority may itself aggravate discriminatory harassment when those with authority ratify,
reinforce, or fail to correct the misconduct. In Boyer-Liberto v. Fontainebleau Corp., our
en banc Court treated a supervisor’s use of a dehumanizing “monkey” epithet as
paradigmatically severe and “extremely serious,” even though it occurred just twice within
a short period. 786 F.3d at 280, 285–86 (4th Cir. 2015) (en banc) (“We reject, however,
any notion that our prior decisions . . . were meant to require more than a single incident
of harassment in every viable hostile work environment case.”). The Court also
emphasized that supervisory authority can amplify the severity of workplace harassment,
particularly when those with authority reinforce or tolerate the discriminatory conduct: the
harasser in Boyer-Liberto obstructed the plaintiff’s attempt to report the misconduct, and
when plaintiff later attempted to report the harassment to a general manager, the general
manager validated the harasser’s authority by identifying him as the plaintiff’s “boss.” Id.
at 280 (“Properly considering that evidence, we must accept that [plaintiff] believed—and
reasonably so—that [her harasser] could [take adverse action against plaintiff] that would
be rubber-stamped by” managing authority).
That principle readily maps to the allegations here, where Plaintiffs say Corporal Oros,
one of their supervisors, circulated racially dehumanizing imagery and Sergeant Heath, the
other supervisor with authority to intervene, allegedly did nothing and continued the
practices Plaintiffs say excluded them from opportunities.
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A reasonable supervisor would likewise have been on notice that discriminatory
harassment need not take the form of an explicit racial slur to be obviously unlawful when
viewed in context. In Beardsley v. Webb, a male supervisor repeatedly directed sexually
charged comments and advances at a female subordinate, culminating in his statement that
it was his “turn” to “make out” with her and “have his way,” even after she had protested
the supervisor’s behavior. 30 F.3d 524, 528–29 (4th Cir. 1994). Although Beardsley
involved a different type of harassment, the principle does not depend on the protected trait
at issue—it rests on notice. This Court held that the unlawfulness was apparent: “No male
officer could reasonably have thought in 1992 that it was not sexual harassment to announce
that it was his turn to make out with a woman who was subject to his command . . .” Id. at
531. Beardsley thus provides a qualified immunity principle that carries over to this case—
when a supervisor’s conduct (or tolerance of a subordinate’s conduct) 4 is so plainly
discriminatory in context that a reasonable officer would understand it to be unlawful
harassment, qualified immunity is unavailable.
That same notice logic applies here, where Plaintiffs allege Sergeant Heath
maintained an exclusionary structure disadvantaging the two Black officers and then, in the
immediate wake of George Floyd’s killing, tolerated the circulation of an unmistakably
racially offensive image of Floyd without corrective action.
4
Sergeant Heath argues that he had no “supervisory authority over” Corporal Oros.
Op. Br. 11. That contention is incorrect as a matter of rank: consistent with the point made
during oral argument, a sergeant is senior to a corporal within the Maryland State Police
chain of command. Oral Arg. at 18:50–19:10 (timestamp).
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Finally, a reasonable supervisor would have been on notice that discriminatory
intent may be inferred from the cumulative context of workplace conduct, even when
individual acts appear facially neutral in isolation. For instance, Strothers v. City of Laurel
held that the “because of” inquiry must be assessed with sensitivity to “social context,” and
that “harassment need not be accompanied by a contemporaneous statement of animus”—
the connection between animus and conduct “may be inferred from the totality of the
circumstances.” 895 F.3d at 329–31, 331. The facts of Strothers illustrate why that
approach matters. The plaintiff there, a Black woman, alleged that from “day one” she was
singled out for constant surveillance, badgering, and scrutiny by her supervisor—conduct
that could be described as race-neutral in isolation. Id. at 324. But when she complained,
the department director disclosed that the supervisor “wanted someone of a different race,”
which, the Court explained, “injected” race into the explanation for the mistreatment and
gave the plaintiff reason to think race was relevant. Id. at 323, 330.
This Court in Strothers also emphasized additional contextual facts supporting that
inference: Strothers was the only Black subordinate employee; the supervisor’s only two
Black subordinates were the only employees she had ever disciplined or reported; and
former Black employees warned of a history of similar treatment. Id. at 323–26. And
importantly for the clearly established analysis, this Court rejected the district court’s
choice to adopt “the most charitable interpretation” for the employer and treating race as
“coincidental,” explaining that at the relevant stage the factfinder could infer
discrimination from the full context rather than isolated acts. Id. at 330.
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That is the same lens Plaintiffs invoke here. Even if exclusion from meetings and
group texts could be described as facially neutral in isolation, Strothers makes clear that a
reasonable supervisor would understand that once race-salient facts enter the picture, the
law does not assess whether the pattern is “because of” race by looking to whether every
discrete act contains an explicit slur, but rather by looking to the context and the totality of
the circumstances surrounding the pattern.
Taken together, these authorities leave “no legitimate question” that a reasonable
MSP supervisor would have understood that continuing to exclude the only two Black
officers from career-advancing communications and opportunities, while failing to respond
to an overtly race-coded text message in the wake of a nationally consequential event,
violates clearly established law. Korb v. Lehman, 919 F.2d 243, 247 (4th Cir. 1990).
IV.
Accepting the well-pleaded allegations as true and drawing reasonable inferences in
Plaintiffs’ favor, the Amended Complaint plausibly alleges that Sergeant Heath participated
in and tacitly authorized a racially hostile work environment in violation of § 1981
(enforced through § 1983), and that the right at issue was clearly established at the time.
Accordingly, the district court’s denial of qualified immunity is
AFFIRMED.
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