Alvin D. SCHWAPP, Jr., Plaintiff-Appellant,
v.
TOWN OF AVON; Philip K. Schenck; Thomas A. Transue;
Harold T. LeMay, Jr.; Paul A. Olson; Steven A. Howe;
James A. Martino, Jr.; Richard W. Hines; William Shea, II;
S. Edward Jeter; Joseph C. Woodford; Beatrice Murdock
France; and Modesto F. Brunoli, Defendants-Appellees.
No. 1629, Docket 96-9397.
United States Court of Appeals,
Second Circuit.
Argued May 2, 1997.
Decided July 2, 1997.
John C. Brittain, University of Connecticut School of Law, Hartford, CT (M. Hatcher Norris, Butler, Norris & Gold, Hartford, CT, Sherman R. McGrew, Robert Stone, Legal Interns, of counsel), for Plaintiff-Appellant.
Scott M. Karsten, Sack, Spector & Barrett, West Hartford, CT, for Defendants-Appellees.
Before: MINER and CALABRESI, Circuit Judges, and SHADUR, District Judge.*
MINER, Circuit Judge:
Plaintiff-appellant Alvin D. Schwapp, Jr. appeals from a summary judgment entered in the United States District Court for the District of Connecticut (Covello, J.) in favor of defendants, the court having determined that plaintiff failed to raise a triable issue on his claim of a violation, based on a hostile work environment, of the provisions of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., and that plaintiff also failed to raise a triable issue with respect to his claims of violations of 42 U.S.C. §§ 1981 and 1983. In making this determination, the court excluded from its consideration racially-hostile comments and conduct that did not occur in the plaintiff's presence, as well as affidavits of fellow officers that the court found vague and conclusory.
For the reasons that follow, we reverse the judgment of the district court and remand for further proceedings consistent with this opinion.
BACKGROUND
Schwapp was the first African-American employed as a police officer by defendant-appellee Town of Avon, and was the only African-American police officer at the Avon Police Department (the "APD") for the entire duration of his employment. Schwapp was hired in February of 1992 and, after several months of training, began work at the APD on June 26, 1992. He resigned on February 18, 1994, and asserted that his resignation was impelled by twelve incidents of racially derogatory comments and acts in the workplace. Schwapp alleges that these incidents demonstrated a hostile work environment, and thus that he has stated a claim for discrimination under Title VII.
The four central incidents all occurred in Schwapp's presence. First, in August of 1992, defendant-appellee Sergeant Steven Howe, who at that time was a patrolman with the APD, stated that he was dealing with a "nigger bitch from Hartford who was beating the shit out of her kids." (Compl. p 22(a).) Another officer who was present reported the incident to a superior, and was advised that the incident was reported to defendant-appellee Captain Paul A. Olson. Second, in the fall of 1992, Howe was in a break room watching a televised football game when a black player celebrated after a touchdown. Howe askеd, "why do they have to do that jungle dance every time they score a touchdown?" (Id. p 22(b).) Third, in March of 1993, defendant-appellee Sergeant Thomas Transue handed Schwapp a copy of a racially offensive joke involving a play on the word "nigger". Fourth, in May of 1993, Schwapp met with defendant-appellee Lieutenant Harold T. LeMay, Jr, the third-highest-ranking officer in the APD, to discuss the allеged racial hostility in the department, and the conduct of Howe and Transue in particular. LeMay advised Schwapp that he "should not expect his fellow workers to exhibit the same courtesy" as Schwapp did to them, and should not be "so sensitive." (Id. p 22(f).) LeMay explained that Schwapp "had to understand the history of an all white male department and that at one time all the crimes in Avоn were committed by blacks and that guys started to stereotype people." (Id.)
A second group of incidents involved racial comments that Schwapp did not experience first-hand, but that were relayed to him by fellow officers during his employment at the APD. First, fellow officers informed Schwapp that Transue stated at a roll call, "watch out for the nigger at 48," referring to a black man who had begun work at a gas station in Avon. (Id. p 22(q).) Second, fellow officers told Schwapp that Transue had instructed patrol officers to target black and hispanic people for traffic stops during the summer months on the "Barkhamsted Express," which refers to a route from Hartford, Connecticut to the Barkhamsted recreation area. Third, a fellow officer advised Schwapp that Sergeаnt Richard Kolb told a racial joke during roll call, and when the officer raised an objection to Howe, who was in attendance, Howe responded that Schwapp "was not present to be offended." (Id. p 22(p).) Fourth, Officer John Chevalier informed Schwapp in October of 1993 that LeMay had distributed to Chevalier and another officer a written joke that involved criminal behavior and usеd the names Johnny, Jose, Rufus, Jerome, Willie, Raoul and Hector. Defendants-appellees Police Chief James A. Martino, Jr. and Town Manager Philip K. Schenck conceded that the joke was racially derogatory. Last, officers told Schwapp that Transue told a dispatcher, who was working during the day shift instead of his usual night shift, "I see you are working white man's hours." (Id. p 22(l ).)
A third group of incidents occurred during Schwapp's employment but involved hostile comments directed at other minority groups. In the first such incident, a fellow officer told Schwapp that Transue said during roll call: "We have a nest of camel jockeys over at 156 West Main," referring to persons of Middle-Eastern origin. (Id. p 22(m).) Second, fellow officers told Schwapp that in the summer of 1993, Howe stated during a training session on the use of caрsicum, a pepper spray, "you have capsicum if you stop a car ... and it is a car load of Puerto Ricans."1 (Id. p 22(j).)
The last incident relayed to Schwapp apparently occurred prior to Schwapp's employment by the APD.2 According to fellow officers, an officer who is of Italian ancestry and has dark skin was referred to as the "big nigger" by APD officers. (Boyko Aff. p 17.)
Schwaрp apparently sought and received counselling during October of 1993 from the Town of Avon Employee Assistance Program. According to the counsellor's report to Schwapp's attorney, Schwapp stated that he was "the object of racial stress and harassment, and that the prejudicial attitude was rampant in the department not only against him, but also against civilians." (J.A. 134.)
Schwapp filed a discrimination claim with the Equal Employment Opportunity Commission ("EEOC") on October 29, 1993. Schwapp asserts that he finally resigned on February 18, 1994, because he no longer could endure the racially hostile work environment. He received a right to sue letter from the EEOC on August 6, 1994, and filed a complaint in the district court on September 8, 1994.
Schwapp's complaint pleaded a number of federal and state claims, including violations of his federal rights under 42 U.S.C. § 1981, 42 U.S.C. § 1983, and Title VII. Schwapp named as defendants the Town of Avon, six present or former members of the Avon Town Council, and Schenck, Martino, Olson, LeMay, Howe, and Transue.
On September 25, 1995, all defendants moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). Materials outside the pleadings were submitted with a request for the district court to treat the motion as a motion for summary judgment pursuant to Fed.R.Civ.P. 56. Accordingly, the district court converted defendants' motion into one for summary judgment. Having reviewed the materials submitted by the parties, the district court determined that two of the affidavits submitted by Schwapp failed to satisfy the requirements of Fed.R.Civ.P. 56(e) and therefore excluded them from its consideration. The court also determined that, out of the twelve incidents alleged, it would consider only the four that had occurred in plaintiff's presence. Having made these initial determinations, the court found that Schwapp failed to establish a triable issue of fact in respect of his federal claims. The court granted summary judgment in favor of defendants on the federal claims and declined jurisdiction over the state law claims that remained. On September 23, 1996, judgmеnt was entered in favor of defendants. This appeal followed.
DISCUSSION
I. Hostile Work Environment Claim
Schwapp argues that the district court erred in granting summary judgment in favor of defendants, the court having found that the facts, as alleged by Schwapp, failed to establish a triable issue of fact as to the existence of a hostile work environment. In particular, Schwapp alleges that the district court erred in refusing to cоnsider as evidence in support of his complaint two affidavits by former APD police officers, and eight additional racially hostile incidents at the APD. We agree.
In reviewing a grant of summary judgment, we apply the same standard as the district court and determine de novo whether summary judgment is appropriate. See Taggart v. Time Inc.,
We are particularly cautious about granting summary judgment to an employer in a discrimination case when the employer's intent is in question. See Gallo v. Prudential Residential Servs., Ltd. Partnership,
"Title VII affords employees the right to wоrk in an environment free from discriminatory intimidation, ridicule, and insult." Meritor Savings Bank, FSB v. Vinson,
"[W]hether an environment is 'hostile' or 'abusive' can be determined only by looking at all the circumstances." Harris,
In ruling that Schwapp failed to establish a triable issue of material fact on his claim of a pervasive and continuous atmosphere of racial discrimination, the district court considered only the first four of the twelve incidents and excluded the affidavits of two former APD officers, Jonathan M. Boyko and Richard Hauzinger. The district court apрears to have reasoned that because only the first four incidents occurred "in the plaintiff's presence," only those four are relevant to this action. Schwapp v. Town of Avon, No. 3:94CV01532, at 14 (D.Conn. Sept. 20, 1996). The district court's failure to consider the totality of the circumstances in this case, see Harris,
The district court rejected the Boyko and Hauzinger affidavits because it found the affidavits virtually devoid of any specific instances of racially discriminatory conduct based upon personal knowledge, but replete with conclusory allegations of racism and a racially hostile working environment. To satisfy Rule 56(e), affidavits must be based upon "concrete рarticulars," not conclusory allegations. Meiri,
However, to the extеnt the district court excluded evidence of two particular incidents adduced in the affidavits, the court erred. As the district court noted, Hauzinger alleged that he was present and heard Howe's statement that he "just dealt with some nigger bitch out of Hartford." (Hauzinger Aff. p 10.) Hauzinger's recounting of this event is based on personal knowledge and is sufficiently particular to satisfy Rule 56(e). Similarly, both Boyko and Hauzinger recounted the "Barkhamsted Express" incident. The district court excluded this evidence because it concluded that it was not relevant to a claim of employment discrimination. That determination was erroneous. As discussed below, Schwapp's awareness that a supervisor in the APD told officers to target minorities for traffic stops could very well be relevant to Schwapp's reаsonable perception of a hostile work environment.
The district court also erred in failing to consider the eight additional incidents that did not occur in Schwapp's presence. The eight incidents include one racially-hostile comment made prior to Schwapp's employment, five racially-hostile comments made while Schwapp was with the APD, and two comments made during Schwapp's employment that were hostile toward minority groups of which Schwapp is not a member. Each of these eight incidents occurred outside of Schwapp's presence and allegedly was relayed to Schwapp by other APD officers.
The Supreme Court has cautioned us to consider the totality of circumstances in cases such as this. See Harris,
Likewise, the incidents relating to other minorities and those occurring before Schwapp's tenure may be of limited probative value, but cannot be ignored on summary judgment. Whether Schwapp was aware of them during his employment, and, more significantly, whether in light of these incidents, the incidents Schwapp experienced more directly "would reasonably be perceived, and [were] perceived, as hostile or abusive," Harris,
In sum, Schwapp has recounted ten racially-hostile incidents of which he allegedly was aware during his 20-month tenure at the APD. He also has recounted two оther incidents which reflect bigotry at the APD toward other minority groups. Most importantly, LeMay, Schwapp's supervisor, advised Schwapp that he "had to understand that ... at one time all the crimes in Avon were committed by blacks," and that, while LeMay was aware of the racially-hostile situation, Schwapp had to accept the fact that he was working with racists and not be "so sensitive." (Compl.p 22(f).) This incident weighs heavily against a grant of summary judgment. Resolving ambiguities and drawing inferences in Schwapp's favor, see Cifarelli,
II. Abandonment of Other Claims
Defendants contend that Schwapp has abandoned all of his claims, except for the hostile work environment claim, by failing to argue against the dismissal of those claims on appeal. Schwapp argues that all of his claims "rise[ ] or fall[ ]" on our determination of the facts underlying his hostile work environment. (Appellant's Br. at 1.) To the extent that Schwapp's other claims do not rely upon proof of a hostile work environment, those claims have been abandonеd.
Pursuant to Fed. R.App. P. 28(a)(6), an appellant's brief "must contain the contentions of the appellant on the issues presented, and the reasons therefor." We consider abandoned any claims not adequately presented in an appellant's brief. See United States v. Restrepo,
Schwapp's only treatment of his other federal claims is set forth in the jurisdictional statement of his briеf on appeal, as follows:
Plaintiff-appellant appeals the ruling of the district court that granted the judgment on the pleadings for the defendants-appellees on the following claims:
a. Title VII--Hostile Work Environment
b. 42 U.S.C. § 1983--Equal Protection and Due Process
c. 42 U.S.C. § 1981--Right to Contract
d. State Law.
The factual basis for all of these claims rises or falls on the determination of the hostile work environment facts. The hostile work environment facts support the Title VII, equal protection (race discrimination), due process (constructive discharge), right to contract (race discrimination) and state law tort claims.
(Appellant's Br. at 1-2.)
Mere referencing of other claims does not constitute an argument on appeal. See Fed. R.App. P. 28(a)(6); Restrepo,
CONCLUSION
Reversed and remanded.
Notes
The Honorable Milton I. Shadur of the United States District Court for the Northern District of Illinois, sitting by designation
Schwapp alleges in the complaint that his wife is оf Puerto Rican ancestry
While it is unclear, the wording of the complaint and affidavits suggest that this incident occurred prior to Schwapp's arrival. (See Compl. p 22(n); Boyko Aff. p 17; Schwapp Aff. p 21.)
We note that the district court, having concluded that the evidence was insufficient to raise a triable issue as to the first requirement for establishing a claim, never considered the Town of Avon's liability for the defendants' conduct