Overtime Work Racial Discrimination Claim

August 1, 2019, Department, by James C. Kozlowski, J.D., Ph.D.

August 2019 Law Review Overtime Work Racial Discrimination Claim 410

In the case of Johnson v. City of Evansville, 2019 U.S. Dist. LEXIS 76513 (S.D. Ind. 5/7/2019), plaintiff Ernest Johnson worked on the mowing crew for the City of Evansville Parks Department. Unlike his Caucasian co-worker, Johnson claimed he was denied opportunities to work overtime because he is African American. Accordingly, Johnson sued the city of Evansville, alleging race discrimination and a hostile work environment in violation of Title VII of federal civil rights law.

Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against any individual with respect to his “compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin” (42 U.S.C. § 2000e-2(a)(1)).

In response, the city filed a motion for summary judgment with the federal district court to deny Johnson’s claims. To survive summary judgment on a Title VII discrimination claim, the court noted: “a plaintiff must present evidence that would permit a reasonable factfinder [i.e., judge or jury] to conclude that the plaintiff’s race, ethnicity, sex, religion, or other proscribed factor caused the discharge [or adverse employment action].”

Facts of the Case
In 2016, Johnson worked as a laborer in the Department of Parks and Recreation for the city. Charles Mangold was the parks department’s maintenance supervisor from 2014 until he retired in March 2017. In spring 2016, the parks department had three mowing crews comprised of two individuals each. Johnson was assigned to a two-person mowing crew, and his partner was Reggie Haskins, who is also African American.

Johnson and the other parks department mowers were members of the Chauffeurs, Teamsters and Helpers Local Union No. 215. The union and the city entered into a collective bargaining agreement (CBA). While the CBA established rules for assigning overtime, these overtime rules would not apply to departments, where “there has been established a specific method of assigning overtime.”

Brian Holtz, parks department executive director, testified that the parks department already had set a policy for assigning overtime and that overtime was assigned by seniority. Mangold also testified that overtime was assigned based on seniority. Similarly, Rick Norman, parks department mowing employee and current Union Steward, testified that overtime was offered based on seniority. This practice of offering overtime based on seniority was neither in writing, nor was there a list of employees by seniority. Mangold did not testify regarding how he actually assigned overtime after ascertaining who was interested. 

When Johnson first started working at the parks department, Mangold would ask who wanted to work overtime, people would raise their hands and Mangold would record who had raised their hand. Johnson was never told, or made aware, of the parks department’s practice of assigning overtime based on seniority. This practice was in place before Johnson became a parks department employee. Out of the six employees on the seniority list for the parks department mowing crew, Johnson was fourth and was behind Rick Norman.

The parks department would often get information throughout the day indicating something needed to be completed that would require overtime work, and Mangold would first offer the overtime to the most senior employee, Terry Bodell. Bodell would usually turn down overtime opportunities because he did not like to work overtime, so Mangold would then offer overtime opportunities to the next most senior employee, Rick Norman.

In April 2016, Mangold advised parks department employees that, as a result of significant grass growth that spring, there would be overtime opportunities available to all parks department mowers until he told them differently. Mangold offered overtime to everyone who was available so they could get caught up on mowing. Mangold permitted Johnson to work overtime on the first three days of the week of April 7, 2016. As the parks department got caught up on mowing, Mangold informed employees that the overtime arrangement had ended and no more overtime would be scheduled. Norman, however, who is white and who is senior to Johnson, worked overtime that day and the next.

On April 27, 2016, following a series of storms and tornadoes that had hit the area, Johnson was tasked with cutting grass. Although he followed these instructions, Mangold harshly questioned Johnson as to what he had been doing the previous day. Johnson replied that he had cut grass and picked up paper, trash and tree limbs. Mangold became angry and told Johnson that other employees had been assigned to pick up debris, and Johnson should not have done so. According to Johnson, Mangold belittled him in front of other employees for not doing enough work, and he was the only one reprimanded at that time.

On May 4, 5, 6, and 11, 2016, Norman was authorized to work overtime, but Johnson “was not extended the same opportunity for overtime.” Johnson testified that he did not know why Mangold offered overtime to Norman rather than to him.

EEOC Charge
On May 4, 2016, Johnson filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC). Johnson alleged discrimination based on race. He claimed Norman was allowed to work overtime, but he was not afforded the opportunity to do so, even though he was the next in line to work overtime in accordance with the collective bargaining agreement. Moreover, Johnson claimed Mangold had targeted him “for intimidation and verbal harassment, as though he is attempting to provoke me to respond to his hostile and threatening behavior and gestures.” As a result, Johnson claimed he had been “the victim of discrimination on the basis of my race African American.”

On May 11, 2016, Johnson submitted a request to finish his May 12 shift one hour early so he could attend a dentist appointment. Mangold offered Johnson overtime on May 12, 2016, and Johnson believed that Mangold did so knowing that he could not accept the opportunity.

Mangold offered Johnson and Haskins overtime on May 19, 2016, but both declined the opportunity. Mangold became aware that Johnson had filed a grievance with the Union and on May 20, 2016, Mangold announced, during a morning meeting with the mowing crews, that someone had complained about not getting overtime but, otherwise, did nothing about the grievance. Mangold did not learn that Johnson had filed an EEOC charge until sometime after May 20, 2016.

Johnson claims that Mangold’s hostile attitude toward him began on this day. The same day, Mangold called Johnson into his office and informed Johnson that he would be splitting up Johnson’s two-person work crew because they were “behind in their duties.” Johnson denied that his two-person crew was behind, but claims that another two-person crew “was the one that was behind.”

On May 20, 2016, Mangold followed Johnson to two different locations where Johnson mowed, including C.K. Newsome and Akin. Mangold followed Johnson from Akin to a nearby Kentucky Fried Chicken restaurant where Johnson and his mowing crew partner were going to eat lunch.

After lunch, while Johnson was working at Akin and sitting on a lawn mower, Johnson claimed he looked at Mangold and Mangold made the shape of a gun with his fingers and pointed it at Johnson. Johnson alleged Mangold had an “evil” look on his face. Johnson said he felt fear and “it has never ever left me, because I had seen him several times since I’ve been working, and I don’t know what day it is going to be that he is going to kill me.” Johnson did not report this incident to Parks Director Holtz or to human resources because he did not think he would be believed.

On June 6, 2016, Johnson bid on a position in Meter Maintenance with the city’s Water Department, which would have resulted in a pay raise for him and would have involved working for a supervisor other than Mangold. The city awarded Johnson the job in June or July 2016, but Johnson turned it down because he did not want to be “pushed out” of the mowing crew.

On July 28, 2016, Johnson had filed an Amended Charge of Discrimination with the EEOC, stating the discrimination took place starting in April 2016 and was “ongoing.” Mangold retired in March 2017, and Johnson had never been terminated, suspended or given a written warning by Mangold.

(Once Johnson received an adverse administrative decision on his discrimination claim from the EEOC, having exhausted available administrative remedies as required by law, Johnson could then proceed to file a Title VII discrimination lawsuit for adjudication by a federal district court.)

Title VII Race Discrimination
On July 24, 2017, Johnson filed a complaint against the city in federal district court, asserting claims of race discrimination and a hostile work environment in violation of Title VII. In response, the city denied allegations of racial discrimination and filed a motion for summary judgment to have the federal court effectively dismiss Johnson’s Title VII claims.

Summary judgment resolves a civil claim without a trial when the undisputed facts of the case would dictate the applicable law entitles one of the parties to a judgment in their favor. In this instance, based on the pretrial record, the city claimed the facts provided no legal basis to support Johnson’s claims of race discrimination under Title VII.

In support of its motion for summary judgment, the city argued that Johnson’s race discrimination claim failed because he did not suffer an adverse employment action. In response, Johnson argued that he had suffered an adverse employment action because the amount he would have made, had he been permitted to work overtime when Norman did, was $698.88, or “approximately 90 percent of his regular weekly pay.”

In addition, the city also contended that Johnson could not identify a similarly situated individual, outside of his protected class based on race, who was treated more favorably than he was. In so doing, the city noted Norman was more senior than Johnson so was not similarly situated. Further, the city claimed Mangold’s questioning of Johnson regarding what work he had completed, reassigning him and observing him working do not raise a reasonable inference of discrimination.

Finally, the city argued that there was no evidence showing that the parks department took an adverse employment action against Johnson based on his race, because overtime was assigned based on a longstanding departmental practice based on seniority. Johnson, however, contended overtime was not assigned by seniority, and the alleged practice of assigning overtime based on seniority was a mere pretext for discrimination.

Evidence of Racial Discrimination?
In considering Johnson’s Title VII claim, the federal district court had to determine “whether the evidence would permit a reasonable factfinder [i.e., judge or jury] to conclude that Johnson’s race caused him to be treated unfairly.” As characterized by the federal district court, Johnson’s claim of racial discrimination was based on “his assertion that overtime was not really assigned by seniority or that, if it was, that was a pretext for discrimination.” Based on the pretrial record, in particular testimony by Mangold, Holtz and Norman, the federal district court, however, cited facts indicating “overtime was assigned by seniority.”

Although, Johnson testified that when he first started working at the Parks Department Mangold would ask everyone who wanted to work overtime, and people would raise their hands, this does not conflict with the notion that overtime was, actually, then assigned based on seniority.

Further, in the opinion of the court, it was “irrelevant” that “the practice of assigning overtime based on seniority was not in writing and may have been in contravention of the CBA, and that there was not a list of employees by seniority.” Assuming “the overtime assignment policy should have been in writing and/or violated the CBA,” the court found “this — by itself — would not provide evidence of race discrimination.” On the contrary, what was relevant under Title VII was “whether the evidence permits an inference of race discrimination.” According to the court, “discrimination may be inferred when an employer treats an employee in a protected class less favorably than it treats a similarly situated employee outside that class.”

In this instance, however, the federal district court found the pretrial record did not permit an inference of race discrimination:

Johnson has not put forth evidence indicating that was the case. His comparator, Norman, was undisputedly senior to him, and perhaps was assigned overtime because he had more experience or had worked at certain sites more than others. So, even if overtime was not assigned based on seniority per se, Norman had more experience than Johnson so it is not a viable comparator. Moreover, Johnson has not pointed to any employees who were junior to him; yet, were assigned overtime instead of him.

Pretext for Discrimination?
Under Title VII, the federal district court acknowledged: “an inference of discrimination may follow when the employer’s purported nondiscriminatory reason for taking an adverse action against the employee was pre-textual, meaning it was a lie or a phony reason.” To show pretext, however, the court would require Johnson to “identify such weaknesses, implausibilities, inconsistencies, or contradictions” in the city’s reasons for not assigning him overtime “that a reasonable person could find it unworthy of credence.”

In this instance, the court found Johnson had “not presented evidence showing that Mangold somehow made up the policy as a cover-up for discriminating against Johnson based on his race.” Moreover, the court found Johnson had “not presented any evidence indicating pretext, such as shifting or inconsistent explanations for how overtime was assigned.”

Whether or not the policy of assigning overtime based on seniority, actually existed, Johnson has not set forth any evidence contradicting Mangold’s testimony that is how he assigned overtime. And in any event, even if the City assigned overtime based on some criteria other than seniority, Johnson has not presented evidence that that criteria was race.

Johnson must do more than merely repeat that he believes he was treated differently from co-workers because of his race because personal beliefs are insufficient to give rise to a genuine factual dispute. And simply being a member of a protected class, without something more to link that status to the action in question is not sufficient. That ‘something more’ is just not present here.

Johnson had also alleged race discrimination when Mangold offered him overtime on a day when Mangold knew Johnson would not be able to work overtime due to his scheduled dentist appointment. The court rejected Johnson’s claim.

In the opinion of the court, “offering Johnson overtime on a day when Mangold knew (or should have known) that Johnson would not be able to work, while perhaps petty and mean, if done intentionally, also does not show that the action was taken due to his race.” Further, the court noted: “A supervisor observing a subordinate’s work does not constitute evidence of race discrimination under the circumstances presented here.”

Having found Johnson had “not presented evidence showing that overtime opportunities were withheld from him due to his race,” the court granted the city’s motion for summary judgment on Johnson’s Title VII race discrimination claim.

Hostile Work Environment
The federal district court also considered Johnson’s Title VII claim based on a “hostile work environment.” As cited by the court, an “actionable hostile work environment claim” under Title VII would require a plaintiff to prove the following:

(1) that the work environment was both subjectively and objectively offensive; (2) that the harassment was based on membership in a protected class; (3) that the conduct was severe or pervasive; and (4) that there is a basis for employer liability.

Further, the court noted: “Conduct cannot aid in creating an actionable hostile work environment unless it is related to the protected characteristic [in this case, race].”

In determining “whether a work environment is hostile,” the federal district court would consider the following factors:

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.

In making a hostile work environment determination, the court acknowledged: “The key issue is whether the conduct at issue qualifies as sufficiently severe or pervasive to alter the conditions of the work environment.”

In his Title VII claim of racial discrimination, Johnson alleged Mangold had created a threatening hostile work environment when “Mangold pointed at Johnson with his hands shaped like a gun, observed his work while Johnson was at two different sites on May 20, 2016.” In so doing, Johnson argued “a reasonable person could find that Mangold’s prolonged observation of Johnson, combined with Mangold’s threatening ‘gun gesture’ are sufficient to create an objectively hostile work environment.”

In response, the city argued: “observing Johnson’s work was just part of Mangold’s job in supervising him, and that Mangold pointing at Johnson with his fingers shaped like a gun does not support an inference that the gesture was related to his race.” Moreover, the city noted: “Johnson never reported any incidents, and that he had the chance to work for a different department where Mangold would not have been his supervisor, but he turned down the opportunity.” Further, assuming “Mangold yelled at Johnson in front of others or informed him that he and his crew member were falling behind,” the city contended “those actions are not subjectively or objectively offensive” and “were neither severe nor pervasive.”

According to the federal district court, “a very limited number of incidents can support a hostile work environment claim, but there still must be a link to a racial motivation.” In this particular instance, however, the court found “evidence of a racial character or purpose is lacking.” Specifically, the court found “Mangold pointing at Johnson on a single occasion with his fingers shaped like a gun” would “not support a hostile work environment claim.”

Title VII is not a general civility code, and while such a gesture may have been rude and even intimidating, it does not create liability for a hostile work environment. While racially charged conduct by a supervisor is treated as much more serious than a co-worker’s conduct, there is no evidence that the gun gesture was motivated by Johnson’s race. The gesture must have had ‘a racial character or purpose’ in order to create a hostile work environment.

As a result, the federal district court concluded: “a reasonable jury could not conclude that Mangold observing Johnson’s work and pointing at him with his fingers in the shape of a gun on May 20 was severe or pervasive enough to create a hostile work environment.”

The federal district court, therefore, granted the city’s motion for summary judgment on Johnson’s Title VII race discrimination and hostile work environment claims.

James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Recreation, Health and Tourism at George Mason UniversityLaw review articles archive (1982 to present).