Bert Whittington, a Black, Harris County, Texas, deputy constable, alleged that supervisors subjected him to race and color discrimination, retaliation, and a hostile work environment. Whittington claimed that during his tenure, he was subject to repeated racist remarks, denials of support in the field, and disparate discipline that culminated in his termination. The district court granted summary judgment to the County and dismissed all of Whittington’s claims.
The Fifth Circuit affirmed in part and reversed in part. It affirmed dismissal of Whittington’s § 1983 claim against the County because he failed to tie the alleged violations to an official county policy or policymaker as required for a claim against a municipality under Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). The Court also affirmed summary judgment on Whittington’s Title VII claim based on color discrimination, holding that Whittington failed to exhaust the claim through his EEOC charge because his charge form only checked “race,” not “color,” and the narrative did not adequately raise a color-based theory.
The Court reversed the grant of summary judgment as to Whittington’s Title VII race discrimination claim, finding that Whittington raised a genuine issue of material fact as to whether his termination was racially motivated. The County argued that its actions were legitimately motivated by Whittington’s mishandling of evidence, violation of the County’s body-worn camera policy, and issues with Whittington’s work as a canine handler that resulted in multiple dog bites. However, the Court found that Whittington produced sufficient evidence from which a jury could infer that the County’s stated reasons for his termination were pretextual, including unequal discipline of other officers for comparable rule breaches, denial of resources routinely given to others, assignment to menial tasks not imposed on white officers, and being singled out for broader investigation even when an incident involved multiple other officers. The panel held that these disputed issues of motive and credibility could not be resolved on summary judgment, and that the claim could proceed to trial.
The Court likewise revived Whittington’s retaliation claim, pointing to record evidence that his treatment worsened after he complained about racial bias, that he was publicly singled out for doing so, and that his termination followed soon after his report of a col[1]league’s misconduct. The Court found that a jury could further infer retaliation from evidence that, while white officers received mere reprimands for body-worn camera violations, Whittington was subjected to a full-scale investigation overseen by a supervisor alleged to have otherwise participated in the discriminatory treatment.
Finally, the Court reversed the dismissal of Whittington’s hostile work environment claim. Whittington presented evidence that he was subjected to “repeated instances of unequivocal racial epithets and racist remarks,” that “exceed[ed] mere teasing or offhand comments.” The Court concluded that this evidence, along with evidence that he was “routinely placed in unnecessarily dangerous work situations because of his race,” could establish harassment sufficiently severe or pervasive to alter the terms and conditions of employment.
Judge Oldham dissented. Although he agreed with the majority that Whittington’s evidence was sufficient to revive the race discrimination and retaliation claims, he disagreed with the majority’s reasoning concerning the hostile work environment claim. Judge Oldham emphasized that Fifth Circuit precedent sets a “high bar” for hostile work environment claims, citing a 2022 decision rejecting one such claim despite allegations that black officers were referred to by racial epithets and were “systematically received worse positions, uniforms, equipment, and punishment.” Judge Oldham criticized the majority for failing to confront that precedent or explain why Whittington’s allegations cleared that “high bar.”
Whittington v. Harris County, 2025 WL 1864956 (5th Cir. 2025).