Schwapp v. Town of Avon, No. 1629

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: MINER
• Citation: 118 F.3d 106
• Parties: 74 Fair Empl.Prac.Cas. (BNA) 955, 71 Empl. Prac. Dec. P 44,852 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. ocket 96-9397.
• Docket Number: D,No. 1629
• Decision Date: 02 July 1997

Page 106

118 F.3d 106 74 Fair Empl.Prac.Cas. (BNA) 955,
71 Empl. Prac. Dec. P 44,852 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.

Page 107

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. ^*

Page 108

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 asked, "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 alleged 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 Avon 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 Sergeant 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 used the names Johnny, Jose, Rufus, Jerome, Willie, Raoul and Hector. Defendants-appellees

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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 capsicum, 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.)

Schwapp 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...