August 2019 - Parks & Recreation - 30

LAW REVIEW

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
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The key issue is whether the
conduct at issue qualifies as
sufficiently severe or pervasive
to alter the conditions of the
work environment.
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 inVXI¿FLHQWWR give rise to a genuine
factual dispute. And simply being a
member of a protected class, without something more to link that sta28

Parks & Recreation

tus to the action in question is not
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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

| AU G U ST 2 0 1 9 | W W W. PA R K S A N D R E C R E AT I O N . O R G

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 quali¿HV DV VXI¿FLHQWO\ VHYHUH RU SHUYDsive 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
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observation of Johnson, combined
with Mangold's threatening 'gun
JHVWXUH¶DUHVXI¿FLHQWWRFUHDWHDQREjectively 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
KLV¿QJHUVVKDSHGOLNHDJXQGRHVQRW
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
August 2019 - Parks & Recreation

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