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Johnson v. City of Evansville

United States District Court, S.D. Indiana, Evansville Division

May 7, 2019

Ernest Johnson, Plaintiff,
v.
The City of Evansville, Defendant.

          ORDER

          Hon. Jane Magnus-Stinson, Chief Judge.

         Plaintiff Ernest Johnson, who is African American, worked for the City of Evansville's Parks Department on the mowing crew. From April 2016 to May 2016, he was not offered certain opportunities to work overtime, but his Caucasian co-worker was. Mr. Johnson initiated this litigation against the City of Evansville (the “City”), alleging race discrimination, hostile work environment, retaliation, and breach of contract. The City filed a Motion for Summary Judgment as to all of Mr. Johnson's claims, [Filing No. 43], and the motion is now ripe for the Court's decision.

         I. Standard of Review

         A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed. R. Civ. P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially in the grant of summary judgment. Fed. R. Civ. P. 56(e).

         In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable fact-finder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed. R. Cv. P. 56(c)(3), and the Seventh Circuit Court of Appeals has “repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them.” Johnson, 325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).

         II. Statement of Facts

         The following factual background is set forth pursuant to the standards detailed above. The facts stated are not necessarily objectively true, but as the summary judgment standard requires, the undisputed facts and the disputed evidence are presented in the light most favorable to “the party against whom the motion under consideration is made.” Premcor USA, Inc. v. American Home Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).

         A. Mr. Johnson's Position With the City of Evansville

         In 2016, Mr. Johnson worked as a laborer in the Department of Parks and Recreation (the “Parks Department”) for the City. [Filing No. 44-1 at 3.] Charles Mangold was the Parks Department's Maintenance Supervisor from 2014 until he retired in March 2017. [Filing No. 44-10 at 3.] In the spring of 2016, the Parks Department had three mowing crews comprised of two individuals each. [Filing No. 44-10 at 4.] Mr. Johnson was assigned to a two-person mowing crew, and his partner was Reggie Haskins, who is also African American. [Filing No. 44-1 at 16; Filing No. 44-9 at 1; Filing No. 44-10 at 5.]

         B. The Collective Bargaining Agreement and the Assignment of Overtime in the Parks Department

         Mr. Johnson and the other Parks Department mowers were members of the Chauffeurs, Teamsters and Helpers Local Union No. 215 (the “Union”). [Filing No. 1 at 2; Filing No. 44-4.] The Union and the City entered into a Collective Bargaining Agreement (the “CBA”) effective January 1, 2013 through December 31, 2015, [1] which provided in relevant part:

ARTICLE VII. Section 9. There shall be no discrimination in the assignment of overtime. When an employee is assigned a particular task during regular work hours or a shift is extended or work is required on a succeeding shift and there are employees working, qualified to do such work on the succeeding shift, then the employee assigned to the particular task or working on the extended shift or qualified to perform work required on the succeeding shift will be offered the overtime. Thereafter, overtime shall be allocated as equitably as practical among the employees qualified to perform the work in question except when the overtime requires a crew. This provision shall not apply to those departments within which there has been established a specific method of assigning overtime. In those cases, the in-place method of assigning overtime can be changed by agreement and such change will be in writing and approved by the Union and the Personnel Director of the City of Evansville before it is effective.

[Filing No. 44-4 at 7-8 (emphasis added).]

         Different City departments assign overtime in different ways. [Filing No. 44-1 at 18.] The Parks Department generally based overtime eligibility on seniority. [Filing No. 44-10 at 3-4 (Mr. Mangold testifying that overtime was assigned based on seniority); Filing No. 44-11 at 3 (Brian Holtz, Parks Department Executive Director, testifying that the Parks Department already had set a policy for assigning overtime before the Union and the City entered into the CBA, and that overtime was assigned by seniority); Filing No. 44-12 (Rick Norman, Parks Department mowing employee and current Union Steward, testifying: “Q: Okay. Now, when you were [working for a previous City department] how did Parks and Recreation assign overtime there? A: That started at the top. Q: Top? A: Highest seniority offered overtime first. Q: And is that the same way they did it when you moved over the Parks Maintenance? A: Yes”).] Mr. Mangold testified that on one occasion he “put it out there for anyone if they wanted to work overtime.” [Filing No. 44-10 at 6.] This was a day “that happened to be there was overtime available where the need was there.” [Filing No. 44-10 at 6.] Mr. Mangold did not testify regarding how he actually assigned overtime that day, after ascertaining who was interested.

         When Mr. Johnson first started working at the Parks Department, Mr. Mangold would ask who wanted to work overtime, people would raise their hands, and Mr. Mangold would record who had raised their hand. [Filing No. 44-1 at 17.] Mr. Johnson was never told, or made aware, of the Parks Department's practice of assigning overtime based on seniority. [Filing No. 44-1 at 4.]

         The practice of offering overtime based on seniority was in place before Mr. Johnson became a Parks Department employee. [Filing No. 44-10 at 3; Filing No. 44-11 at 3.] Out of the six employees on the seniority list for the Parks Department mowing crew, Mr. Johnson was fourth and was behind Rick Norman. [Filing No. 44-1 at 4 (Mr. Johnson testifying that Mr. Norman was more senior than he was).] The employees that were more senior to him were all Caucasian, and Mr. Haskins - Mr. Johnson's partner on his two-man mowing crew - was junior to him and is African American. [Filing No. 44-10 at 4-5.] The practice of offering overtime based on seniority was not in writing, nor was there a list of employees by seniority. [Filing No. 44-1 at 4; Filing No. 44-11 at 3.]

         The Parks Department would often get information throughout the day indicating that something needed to be completed which would require overtime work, and Mr. Mangold would first offer the overtime to the most senior employee, Terry Bodell. [Filing No. 44-10 at 5.] Mr. Bodell would usually turn down overtime opportunities because he did not like to work overtime, so Mr. Mangold would then offer overtime opportunities to the next most senior employee, Rick Norman. [Filing No. 44-10 at 5.]

         C. The Assignment of Overtime in April and May 2016

         In April 2016, Mr. 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. [Filing No. 44-10 at 4.] Mr. Mangold offered overtime to everyone who was available, so that they could get caught up on mowing. [Filing No. 44-1 at 3.] Mr. Mangold permitted Mr. Johnson to work overtime on the first three days of the week of April 7, 2016. [Filing No. 44-1 at 14.]

         As the Parks Department got caught up on mowing, Mr. Mangold informed employees that the overtime arrangement had ended and no more overtime would be scheduled. [Filing No. 44-5 at 1; Filing No. 44-10 at 4.] Mr. Norman, who is white and who is senior to Mr. Johnson, worked overtime that day and the next, however. [Filing No. 44-1 at 3; Filing No. 44-10 at 4.]

         On April 27, 2016, Mr. Johnson was tasked with cutting grass following a series of storms and tornadoes that had hit the area. [Filing No. 1 at 3.] Although he followed these instructions, Mr. Mangold harshly questioned Mr. Johnson as to what he had been doing the previous day. [Filing No. 1 at 3.] Mr. Johnson replied that he had cut grass, and picked up paper, trash, and tree limbs. [Filing No. 1 at 3.] Mr. Mangold became angry and told Mr. Johnson that other employees had been assigned to pick up debris, and Mr. Johnson should not have done so. [Filing No. 1 at 3.] Mr. Mangold belittled Mr. Johnson in front of other employees for not doing enough work, and he was the only one reprimanded at that time. [Filing No. 1 at 3-4.]

         Mr. Norman was authorized to work overtime on May 4, 5, 6, and 11, 2016, but Mr. Johnson “was not extended the same opportunity for overtime.” [Filing No. 1 at 4.] Mr. Johnson testified that he does not know why Mr. Mangold offered overtime to Mr. Norman rather than to him, but that doing so was in violation of the CBA and that “if I'm doing the job, me and another black man doing the job and they refuse to give us the opportunity to honor the contract, that's a violation, to me.” [Filing No. 44-1 at 6.]

         D. Mr. Johnson's EEOC Charge

         On May 4, 2016, Mr. Johnson filed a Charge of Discrimination with the Equal Employment Opportunity Commission (the “EEOC”). [Filing No. 44-2.] He alleged discrimination based on race, and stated:

On April 4, 2016 the Maintenance Super, Charlie Mangold, white male, asked me and another employee, Reggie Haskins, black male, if we wanted to work overtime and we agreed and worked approximately 2 hours over. The next day we were allowed to work over again; on the third day, April 6, 2016, Mr. Mangold asked a third time, but only I accepted the 2 ½ hours of overtime. On that day he announced that no more overtime would be granted and that this was the last day for overtime. But on that day the entire crew noticed that he allow[ed] a white co-worker, Rick Norman to work overtime. On April 7th and 8th Rick Norman was again allowed to work overtime but I was not afforded the opportunity to do so even though I was the next in line to work overtime in accordance with the collective bargaining agreement. Mr. Mangold has targeted me for intimidation and verbal harassment, as though he is attempting to provoke me to respon[d] to his hostile and threat[en]ing behavior and gestures. Another example of the harsh treatment I am receiving from Mr. Mangold occurred on April 26-28. As a result of a severe storm and tornado in the area, we were told to survey the parks for damage and to report any electrical damage. Afterwards I was the only one reprimanded and belittled in front of the other crew members for “not doing enough work[”] even though I am doing everything requested of me. Mr. Mangold even told me not to pick up trash in the park because he had others doing that assignment.
I feel that I have been the victim of discrimination on the basis of my race African American….

[Filing No. 44-2.]

         E. ...


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