                   IN THE COURT OF APPEALS OF IOWA

                                  No. 19-1511
                              Filed June 3, 2020


CLIFFORD J. WATKINS, III,
     Plaintiff-Appellant,

vs.

CITY OF DES MOINES, PAT KOZITZA, JOHN DESIO, and TONY CHIODO,
      Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Samantha Gronewald,

Judge.



      A public works employee appeals the grant of summary judgment to the city

and its administrators on his claims of racial discrimination and hostile work

environment. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.



      Matthew R. Denning of Spaulding & Shaull, PLC, Des Moines, for appellant.

      John O. Haraldson, Assistant City Attorney, for appellee.



      Considered by Tabor, P.J., and Mullins and Schumacher, JJ.
                                         2


TABOR, Presiding Judge.

      Clifford Watkins sued the City of Des Moines and three of its

administrators.1 He raised claims of racial discrimination in promotions and hostile

work environment.     The district court granted the city’s motion for summary

judgment. Watkins asks us to reverse the summary judgment and remand for trial.

Because Watkins offered evidence that two of three members of the interview

panel made statements arguably showing racial animus, he generated a jury

question on the city’s motivation in turning him down for a promotion. We reverse

the summary judgment on that claim. Because Watkins did not create a genuine

issue of material fact that “discriminatory intimidation, ridicule and insult”

permeated his workplace, the city was entitled to judgment as a matter of law on

the hostile work environment claim. We thus affirm in part, reverse in part, and

remand for further proceedings.

      I.     Facts and Prior Proceedings

      Watkins, who is African American, started working for the city of Des Moines

in 1992. In 2005, the city promoted him from light equipment operator to medium

equipment operator. At the time of his lawsuit, he continued to work in the street

maintenance division of the city’s public works department.

      A.     The Promotion Process

      In spring 2014, Watkins sought another promotion. He applied to be a

public works section chief.       The civil service process required interested



1 Pat Kozitza was director of the Des Moines public works department in 2014 but
is now retired. John Desio was a public works section chief; he retired in 2014.
Anthony Chiodo was and remains a public works section chief.
                                        3


candidates, including Watkins, to take a written test. Watkins scored twenty-nine

out of fifty possible points on that test. Although his score was among the lowest

of the applicants, the city considered him qualified for the promotion because of

his education and experience. In that category, Watkins scored near the top of the

eligible applicants.

       Watkins was one of eight candidates who interviewed for the position. The

interview panel included Adam Smith, Sara Thies, and Tony Chiodo. Smith was

an operations manager. Chiodo was Watkins’s direct supervisor. Thies oversaw

the street maintenance division of the city’s public works department. She was in

charge of the promotion process and forwarding a recommendation to the public

works director.

       The three-member panel scored the applicants on their answers to twenty

questions developed by Thies. The panelists reached a “consensus” score of zero

to five points on the applicants’ responses to each question. Watkins received a

score of forty-two on his responses to the interview questions.       Ryan Rivas

received a score of seventy-two, the highest among the applicants. After the

interviews, Thies recommended Rivas to fill the section chief position.

       In the wake of being turned down for the promotion, Watkins recounted two

incidents that involved members of the interview panel.

       B.     The “Monkey” Comment

       Watkins testified in his deposition that Chiodo called him a “monkey” during

a February 2014 phone call. Here is the context. According to Watkins, when he

was acting as a temporary section chief, Sara Thies asked him to notify Chiodo

that a local television station wanted to record city workers filling potholes, a
                                           4


perennial end-of-winter phenomenon. The request required moving a city crew to

another location. Watkins was reluctant to make the call because Chiodo was his

boss. His reluctance was warranted. Watkins remembers Chiodo saying during

the call: “What are you like, a monkey?”

       Chiodo recalled the conversation differently.   He acknowledged saying

“monkey,” but said it was in the context of moving the work crew across town.

According to Chiodo, he told Watkins: “You can’t be running them all over, jumping

around like monkeys.” Arguing the word was innocuous, Chiodo claimed to call

his granddaughters “monkeys” when teasing them.         Chiodo believed Watkins

“misinterpreted” the call.

       Watkins casts doubt on Chiodo’s version by recounting a second incident

that same day. According to Watkins, section chief Desio followed up on Chiodo’s

“monkey” comment by throwing a banana peel on the floor near Watkins’s desk.

Watkins recalled Chiodo laughing. But in his deposition, Chiodo denied seeing it

happen and said he told Watkins he needed to talk directly to Desio about it.

       C.     The “Stepin Fetchit” Comment

       Chiodo was not the only interviewer who made a racially charged comment.

Three years after the interviews, Thies received an oral reprimand for using a

discriminatory phrase.       Bobby Palimore, an African-American employee,

complained in 2017 that he overheard Thies refer to a member of a city street crew

as “dumb” before saying, “I know this may be derogatory, but I call that Step and

Fetch It Syndrome.”

       In her deposition, Thies admitted using the phrase “step and fetch it” in

reference to an ineffective employee. She claimed she was talking about a white
                                            5


“senior maintenance carpenter” who was called to “fetch” tools for work crews.

Thies insisted she did not know the phrase was considered derogatory. She

testified she “looked it up on Wikipedia” and then realized “that phrase could be

misinterpreted.” As Thies learned in her on-line research, African-American actor

Lincoln Theodore Perry adopted the name “Stepin Fetchit” in the 1930s for his

caricatured portrayal of black people.2 Thies acknowledged Palimore was “visibly

and audibly upset” after overhearing her comment. Thies testified she “felt bad

what [she] said was taken as an insult.”

       D.     Other Incidents in the Public Works Department

       As part of his hostile work environment claim, Watkins reached back to 2006

when he complained that a rag doll had been hung by its neck in a city supply

shed. After an investigation, the city’s equal opportunity administrator found: “The

rag doll, whether intended to be a leprechaun, a voodoo doll, or a racially-based

statement about hanging a slave, is totally inappropriate in the workplace.” The

administrator recommended diversity awareness training.

       In the same year as the doll-lynching incident, a coworker asked Watkins

how he could operate a concrete truck by himself. Before Watkins could reply, he

remembers then-public works director Kozitza, who is Caucasian, saying: “If he

doesn’t run it, we’re going to hang him.”



2 In 1968, CBS broadcast a series entitled “Black History: Lost, Stolen, or Strayed,”
in which actor Bill Cosby delivered the following narration: “The tradition of the lazy,
stupid, crap-shooting, chicken-stealing idiot was popularized by an actor named
Lincoln Theodore Monroe Andrew Perry. The cat made two million dollars in five
years in the middle thirties. And everyone who ever saw a movie laughed at—
Stepin Fetchit.” Perry unsuccessfully sued the company for defamation. Perry v.
Columbia Broad. Sys. Inc., 499 F.2d 797, 799 (7th Cir. 1974).
                                         6


       In 2007, Watkins recalls a coworker using a racial slur at a work function.

The coworker called a cigarette butt a “n----- lipper.”      Watkins reported the

statement to a supervisor who was at the party.

       Two years later, Watkins asked for a step to make his truck more

accessible. He recalls being turned down, though the city approved a similar

request from a white worker. Watkins also asserted the city consistently rejected

his requests to attend out-of-town trainings and an African-American colleague

faced the same rejections.      Watkins supplied another example of unequal

treatment that allegedly occurred in 2013 when he was taking prescribed

medication following back surgery. He contends Thies required him to twice

undergo drug testing, when no other public works employee had to do so when on

light duty.

       In late 2013, the public works department posted a notice for “temporary

upgrades” for employees interested in a section chief position. Watkins was

eligible for that set up but asserts he was not provided the same on-the-job training

as the other candidates. When Desio retired in April 2014, the city recruited

candidates to fill the section chief position on a permanent basis.

       E.     Underrepresentation of African-American Supervisors

       On top of these specific incidents, Watkins provided history showing the

underrepresentation of African-American employees in the administrative ranks of

the city’s public works department. Watkins offered deposition testimony from

deputy public works director Bruce Braun. Braun could not recall any African-

American section chiefs in the street maintenance division during his three-decade

tenure. Only four African-American employees had served as section chief for any
                                           7


division in the public works department, according to Braun. And the city promoted

no African-American employees to the positions of street maintenance administer,

assistant public works director, or public works director during Braun’s tenure.

       F.     The Lawsuit

       In March 2018, Watkins sued, alleging the city violated the Iowa Civil Rights

Act (ICRA) by failing to promote him and by subjecting him to a hostile work

environment.3 About one year later, after the parties engaged in discovery, the

city moved for summary judgment. Watkins resisted. To support their positions,

both sides submitted appendices containing affidavits, depositions, and other

relevant documents. In June 2019, the district court granted the city’s motion for

summary judgment. Watkins filed a motion to reconsider, enlarge, or amend under

Iowa Rule of Civil Procedure 1.904(2). The district court amended an error in its

original order on Watkins’s qualifications for the promotion but confirmed the grant

of summary judgment. Watkins now appeals.

       II.    Scope and Standard of Review

       We review the grant of a motion for summary judgment for correction of

legal error. Otterberg v. Farm Bureau Mut. Ins. Co., 696 N.W.2d 24, 27 (Iowa

2005). The district court should grant a summary-judgment motion only if, viewing

the evidence in the light most favorable to the nonmoving party, “the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and


3 Watkins also  included a claim for disability discrimination. He asserted a disability
based on his right leg being amputated below the knee. But Watkins did not resist
the city’s motion for summary judgment on his claim of disability discrimination. So
that claim is not part of this appeal.
                                          8


that the moving party is entitled to a judgment as a matter of law.” Iowa R. Civ.

P. 1.981(3). In deciding whether there is a genuine issue of material fact, the

district court must afford the nonmoving party, here Watkins, every legitimate

inference the record will bear. See Smidt v. Porter, 695 N.W.2d 9, 14 (Iowa 2005).

       When viewing a summary-judgment record, our role is to act as judges, not

jurors. See Clinkscales v. Nelson Sec., Inc., 697 N.W.2d 836, 841 (Iowa 2005)

(“[A] court deciding a motion for summary judgment must not weigh the evidence,

but rather simply inquire whether a reasonable jury faced with the evidence

presented could return a verdict for the nonmoving party.”). We cannot usurp the

jury function by making inferences adverse to Watkins, the nonmoving party.

“Mere skepticism of a plaintiff’s claim is not a sufficient reason to prevent a jury

from hearing the merits of a case.” Id.

       III.   Analysis

       A.     Racial Discrimination in Promotion Decision

       Watkins contends the city discriminated on the basis of race when it passed

him over for a promotion in 2014.4 He brings his claim under the ICRA. See Iowa

Code § 216.6 (2014) (defining unfair employment practices). We construe that act

“broadly to effectuate its purposes.” Iowa Code § 216.18(1). We look to federal

statutes for guidance in evaluating our state law. See Hedlund v. State, 930

N.W.2d 707, 719 (Iowa 2019) (noting ICRA is modeled after Title VII of the U.S.



4 Although Watkins relies in part on Wilson-Sinclair Co. v. Griggs, 211 N.W.2d 133,
140 (Iowa 1973), a disparate impact case, he is claiming disparate treatment. See
generally Pippen v. State, 854 N.W.2d 1, 9 (Iowa 2014) (explaining civil rights laws
targeting employment discrimination protect against both disparate treatment and
disparate impact).
                                         9

Civil Rights Act). But we also recognize differences under the ICRA. See Hawkins

v. Grinnell Reg’l Med. Ctr., 929 N.W.2d 261, 269 (Iowa 2019).

       Against that backdrop, both parties and the district court analyzed the

question under the McDonnell Douglas burden-shifting framework used in Title VII

employment discrimination cases.5 See McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802 (1973). Our supreme court has directed Iowa trial courts to apply

the “motivating factor” standard rather than the McDonnell Douglas analysis when

instructing juries in ICRA discrimination cases. See Hawkins, 929 N.W.2d at 272.

But whether McDonnell Douglas still governs summary-judgment motions on

mixed-motive claims remains an open question. Hedlund, 930 N.W.2d at 720

(Iowa 2019) (analyzing summary judgment under both standards).

       1.     McDonnell Douglas

       Under the McDonnell-Douglas rubric, Watkins had the burden to make out

a prima facie case in support of his claim by producing evidence showing (1) he

belonged to a protected class; (2) he was qualified for the section chief position;

(3) the city rejected him for the position; and (4) the city promoted someone outside

the protected class.6 See Cox v. First Nat’l Bank, 792 F.3d 936, 938–39 (8th Cir.



5 Despite the racially derogatory statements credited to Thies and Chiodo, Watkins
does not contend he has “direct evidence” of discrimination that would allow him
to bypass the three-part McDonnell Douglas test. See Griffith v. City of Des
Moines, 387 F.3d 733, 736 (8th Cir. 2004) (clarifying that in this context “direct
evidence” is not the converse of “circumstantial evidence” but rather means proof
of “a specific link between the alleged discriminatory animus and the challenged
decision” sufficient for a reasonable fact finder to believe illegitimate criteria
motivated the adverse employment action).
6 The city notes the successful candidate, Rivas, is Hispanic. But the city does not

argue that by promoting a member of a different minority group, it has rebutted this
fourth element of Watkins’s claim.
                                        10

2015); see also Whitfield v. Int’l Truck & Engine Corp., 755 F.3d 438, 444 (7th Cir.

2014) (describing fourth element as hiring someone not in the protected class with

“similar or lesser qualifications”). The record shows Watkins satisfied these four

elements.

      So then, under McDonnell Douglas, the burden shifts to the city “to articulate

a legitimate, nondiscriminatory reason” for not promoting Watkins. Hedlund, 930

N.W.2d at 720 (quoting McDonnell Douglas, 411 U.S. at 802).                   As its

nondiscriminatory reason, the city asserted Rivas was more qualified for the

promotion because he scored higher than Watkins on the civil service written exam

and was the highest scorer in the consensus of the three-member interview panel.

As the city rightly points out, an employer may compare the performance of the

applicants during their interviews. See Torgerson v. City of Rochester, 643 F.3d

1031, 1049 (8th Cir. 2011).

      After the city articulates its nondiscriminatory reason, the burden shifts back

to Watkins to submit evidence that the city’s stated reason is a pretext for its

discriminatory intent. To meet that burden, Watkins targets the subjectivity of the

panel’s interviews.   We closely scrutinize “subjective promotion procedures”

because of their susceptibility to discriminatory abuse. See Hedlund, 930 N.W.2d

at 723. Watkins contends the panel’s questions were “entirely subjective” and the

grading of the candidates’ responses “relied solely upon the panel’s own note

taking for each response.” He believes the “subjective grading” of the interview

performances posed “obvious risks” to the impartial scoring of the candidates. To

highlight those risks, he points to deposition testimony by panelists Smith and

Thies acknowledging discrepancies in the scoring system.
                                             11


       In response, the city argues “where the employer does not rely exclusively

on subjective criteria, but also on objective criteria, the use of subjective

considerations does not give rise to an inference of discrimination.” See Wingate

v. Gage Cmty. Sch. Dist., No. 34, 528 F.3d 1074, 1080 (8th Cir. 2008). For proof

of objective criteria, the city points to its use of the written civil service test to screen

eligible candidates.

       Granted, Rivas scored considerably higher than Watkins on the written civil

service test. (Out of a possible fifty points, Watkins received twenty-nine while

Rivas received forty-four.)       But the other objective measure that determined

eligibility for the promotion was the candidates’ education and experience. On that

measure, Watkins outscored Rivas—forty-eight to forty-two. Watkins had been

with the city since 1992, while Rivas started in 2010.7 Watkins earned a degree in

automotive and diesel mechanics, while Rivas had a high school diploma only.

Watkins notes by the time Rivas graduated from high school and started working

construction, Watkins had accumulated two decades of experience operating

construction and maintenance equipment. Looking objectively at their experience

and education, Watkins asserts he was the more qualified candidate. See Cox,

792 F.3d at 939 (requiring applicant to show employer hired less qualified applicant

to support finding of pretext).

       Plus, it was not those preliminary objective criteria that mattered in the final

promotion decision. In her affidavit, Thies stated the interview scores were “quite

important” in selecting the section chief. In fact, she said the “sole basis” for the


7Rivas did have relevant experience in residential construction before coming to
work for the city.
                                        12


panel’s recommendation of Rivas over the other candidates, including Watkins,

was his top performance in the interviews. But contrary to the city’s assertion, the

numerical character of the interview “score” does not diminish the subjective nature

of the scoring—each interviewer based their score on their subjective impressions

of the interviewee’s answers. Given that record, we find the city relied exclusively

on the subjective interview process to reach its promotion decision. Because

subjective considerations are “easily fabricated,” the interview process here may

give rise to an inference of discrimination. See Wingate, 528 F.3d at 1080.

       To support that inference, Watkins points to statements by two members of

the three-person interview panel that bear on the city’s discriminatory motive. “In

a claim of disparate treatment in employment, proof of the employer’s motive is

critical.” Hamer v. Iowa Civil Rights Comm’n, 472 N.W.2d 259, 263 (Iowa 1991).

Because an employer will rarely announce its discriminatory motive, “evidence

concerning the employer’s state of mind is relevant in determining what motivated

the acts in question.” Id. That relevancy exists even when the timing of the

statements does not coincide with the adverse employment action.            See id.

(discussing relevance of prior acts by supervisors).

       The first discriminatory statement, as recounted above, was Chiodo’s

admitted use of the term “monkey” to express his displeasure with a proposal by

Watkins in February 2014. To be sure, the two men differ in describing the context.

Watkins recalled Chiodo calling him a “monkey.” If true, the epithet was “appalling”

and “reasonably understood to have no other purpose than to express racial

animus.” See Canady v. John Morrell & Co., 247 F. Supp. 2d 1107, 1119 (N.D.

Iowa 2003). Chiodo offered a more innocent telling, insisting he said the work crew
                                         13


should not be “jumping around like monkeys.” But ours is not to pick which version

is more believable. See Frontier Leasing Corp. v. Links Eng’g, LLC, 781 N.W.2d

772, 776 (Iowa 2010) (noting credibility assessments are not part of summary

judgment process).     Viewed in the light most favorable to Watkins, Chiodo’s

“monkey” statement made just a few months before the interviews, gives rise to an

inference of racial discrimination.

       Adding to that inference was the banana-peel incident reported by Watkins

on the same day as the “monkey” comment. According to Watkins, section chief

Desio threw a banana peel near his feet as he got up from his desk, prompting

Chiodo to “snicker” like “a little kid.” See Carter v. Duncan-Huggins, Ltd., 727 F.2d

1225, 1236 (D.C. Cir. 1984) (finding fact supervisor laughed at racist joke could be

evidence of discriminatory motive). Chiodo acknowledged Watkins reporting the

incident but denied witnessing it.

       The second discriminatory statement carries even more weight because it

came from Thies, the key decision-maker on the interview panel. Thies invoked

the racist term “Stepin Fetchit,” an insidious stereotype of African-American men

as lazy and self-demeaning, when criticizing an ineffectual worker. Thies later

claimed she did not know the term’s negative connotations. But the African-

American employee who leveled the complaint recalled that she prefaced her own

statement with a disclaimer showing her understanding of the derogatory nature.

We understand Thies made the comment more than two years after the interviews.

But that timing does not erase its potency. See Hamer, 472 N.W.2d at 263.

       Giving no ground, the city characterizes the statement from Thies as a

“stray remark” insufficient to establish discriminatory animus. See Hedlund, 930
                                         14


N.W.2d at 722. It is true that derogatory statements by someone who is not

involved in making the employment decision at issue are not evidence that the

decision was discriminatory. See Rozskowiak v. Vill. of Arlington Heights, 415

F.3d 608, 612 (7th Cir. 2005). But here, Watkins established a link between the

alleged bigotry and the adverse employment action. See Christie v. Crawford Cty.

Mem’l Hosp., No. 17-0906, 2018 WL 3471835, at *3 (Iowa Ct. App. July 18, 2018)

(holding derogatory comments by decision maker were evidence of a possible

discriminatory motive).

       Drawing all inferences in Watkins’s favor, we find there is a genuine issue

of material fact whether the city’s nondiscriminatory reason for denying his

promotion was pretextual and that racial discrimination was the real reason he was

not elevated to section chief. Accordingly, the city is not entitled to judgment as a

matter of law on this promotion claim.

       We do not reach this determination lightly. We understand our court is not

equipped to be a “super personnel department that second-guesses employers’

business judgments.” See Riley v. Elkhart Cmty. Sch., 829 F.3d 886, 895 (7th Cir.

2016). But here two of three members of the interview panel uttered statements

at work that revealed an implicit, if not explicit, bias toward their African-American

employees.8 The scoring of the interviews was subjective—left in the hands of

those decision makers. So by presenting evidence of those statements, Watkins



8 The city emphasizes that Watkins considered the third interviewer, Smith, to be
a respected coworker who never engaged in racial discrimination. Because of the
subjectivity involved in the interview scoring process, and the testimony the
decision was ultimately made by Thies, we don’t believe Smith’s consensus with
the other two interviewers defeats Watkins’s claim.
                                        15


created a question for the jury whether the city’s legitimate reason was pretext for

discrimination. “Without expressing any view on the merits of the issue, we must

agree that this was essentially a factual dispute.” See Brown v. Parker-Hannifin

Corp., 746 F.2d 1407, 1413 (10th Cir. 1984); see also Rodriguez v. Bd. of Ed. of

Eastchester Union Free Sch. Dist., 620 F.2d 362, 367 (2d Cir. 1980) (by submitting

affidavits rebutting employer’s professed innocent motives, employee presented

triable issue of fact that should not have been resolved by summary judgment).

       2      Motivating Factor

       We reach the same result when we analyze the summary-judgment

question under the motivating-factor test. If Watkins’s race was a motivating factor

in the city’s decision not to promote him, the city engaged in unlawful

discrimination. See Nelson v. James H. Knight DDS, P.C., 834 N.W.2d 64, 67

(Iowa 2013). Watkins contends—given his credentials—he would have been

promoted to the position of sections chief if he were not African-American. We find

a triable issue of material fact whether impermissible bias based on Watkins’s

race—as expressed by Chiodo and Thies—was a substantial factor in the city

passing him over for a promotion.

       B.     Hostile Work Environment

       Watkins next alleges discrimination based on a hostile work environment.

To establish a hostile work environment, Watkins must show: (1) he belongs to a

protected group; (2) he faced unwelcome harassment; (3) the harassment was

based on a protected characteristic; and (4) the harassment affected a term,

condition, or privilege of employment. See Farmland Foods, Inc. v. Dubuque
                                         16

Human Rights Comm’n, 672 N.W.2d 733, 744 (Iowa 2003). Watkins presented

enough evidence to create a jury question on the first three elements.

       But he falls short on the fourth element. To prove the harassment affected

a condition of his employment, Watkins must show it was so severe that his

workplace was permeated with “discriminatory intimidation, ridicule, and insult.”

See Simon Seeding & Sod, Inc. v. Dubuque Human Rights Comm’n, 895 N.W.2d

446, 468 (Iowa 2017). To decide whether a worker can meet that test, we ask four

questions. (1) How frequent was the conduct? (2) What was the level of severity?

(3) Did coworkers use physical threats or humiliation or was their conduct “merely

offensive”?   And (4) did the harassment interfere with the employee’s job

performance? See Farmland Foods, 672 N.W.2d at 745.

       No question, Watkins chronicled offensive conduct by coworkers. The doll-

lynching fit that bill. And it could be considered borderline-threatening when

coupled with Kozitza’s statement in the same time frame that if Watkins could not

operate a truck by himself, “we’re going to hang him.” But those incidents occurred

twelve years before Watkins sued. The smattering of other conduct that Watkins

considered harassing did not happen with enough frequency to create a hostile

work environment, as that term has been defined. See id. at 744 (explaining these

“claims by their nature involve ongoing and repeated conduct, not isolated

events”). Even when viewed in the light most favorable to Watkins’s claim, we find

no triable issue of fact on his allegation of a hostile work environment. The district

court properly granted the city summary judgment on that issue.

       AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
