United States District Court, S.D. Indiana, Evansville Division
Jane Magnus-Stinson, Chief Judge.
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
Standard of Review
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).
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).
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
Statement of Facts
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).
Mr. Johnson's Position With the City of
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.]
The Collective Bargaining Agreement and the Assignment of
Overtime in the Parks Department
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,  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
[Filing No. 44-4 at 7-8 (emphasis added).]
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.
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.]
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.]
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.]
The Assignment of Overtime in April and May 2016
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
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.]
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.]
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.]
Mr. Johnson's EEOC Charge
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
I feel that I have been the victim of discrimination on the
basis of my race African American….
[Filing No. 44-2.]