please the court my name is mark fancher and i represent sergeant johnnie strickland the opponent in this matter this afternoon i would like to discuss with you the fact that the record shows that racial hostility in the detroit police department is preserve that pervasive sergeant strickland personally and directly has experienced a variety of racially hostile acts of the kind experienced by numerous black police officers in that department and this pervasive collective racial experience is not only a subjective perception of sergeant strickland but it has also been chronicled in credible objective reports that establish that a hostile work environment exists because racism in that department is votes appear and pervasive in this district the standard is severe or pervasive which means that if we demonstrate that racism is pervasive in this department then we should be able to survive summary judgment case for retaliatory discipline it neglected to acknowledge his testimony that establishes that he did absolutely nothing wrong and that the findings of wrongdoing were pretextual finally the district court erred by excusing from liability an officer who ignored sergeant strickland's complaints about tight handcuffs that caused him physical injuries if we talk about hostile environment and the fact that it's pervasive  cool elements of evidence that are part of the record one of them is an environmental audit that was conducted of the th precinct in detroit now this happened during the pendency of this case but what it did is it chronicled cesspool of racism in that precinct i would some of the most horrific racial acts that one can imagine is significant for this case because the chair of the core committee john bennett filed an affidavit in this  matter where he made the observation that those things that are chronicled in the environmental audit are comparable to if not identical to what he saw through out the police department back in two thousand and sixteen which is the time period which is the subject of this case general lots of pretty doesn't pay a very good picture of the department in its attitudes about rice but the title seven hostile environment  has to focus on mr strickland in particular because it's not a claim on behalf of others it's a claim on his own behalf and some of this evidence it's not apparent to find that sergeant strickland had all of those experiences that are described as experiences of black officers throughout the department i can specify them certain strickland was the victim of shunning by officers garrison and steele who were the primary racial culprits in the sticks precinct throughout his career as a police officer he personally observed white supervisors disrespecting black officers and i can point to places on the record where he where he testified about that his deposition  deposition and in addition sergeants treatment and a white officer engaged in the same alleged conduct but it was only sergeant strickland who was disciplined for neglect of duty he was denied opportunit so the kinds of complaints that were the heart of the core committee's report and referred to what was happening to black officers throughout the department he was not immune he did not escape that he personally observed it and he testified very clearly in his deposition that he experienced all of these things personally and compound in his experience are the things that the district court did focus on the things that he did quite to as those explicit types of racial occurrences that happened with respect to social media postings varied in can ill considered and racially charged comments by police leadership all of these things combined and we are required to consider this case based on the totality of circumstances show a very hostile environment and there has been a focus on individual incidents in this case where they look at individual incidents in isolation and say well nobody uttered a racial epithet there nobody said anything that would suggest that it's racial but that's the whole purpose of the totality of the circumstances standard because if you look at the totality of it of his experience and you look at the totality of the experience as a black officers in the department you see a very definite consistent pattern it's the black officers who are always denied training it's the black officers who  are not given the proper work shifts it's the black officers who face all kinds of retaliation and you take all of that together and you see a distinct pattern why should sergeant strickland be excluded from that group when it so clear that there's this pattern that's happening and i think most disturbing of all is the harassment that he experienced in the gas station parking lot yes there was nobody on that in that incident who uttered a racial epithet but look at how did this man he at some point even if there is can there is can contest regarding when he had done to fight him so they knew he was a police officer and even after they knew he was a police officer they continued to  him they continue to name call they continued to belittle him and they kept him in those tight handcuffs now this is a man who's got a badge this is a man who has taken an oath to serve and protect the public who supposed to be part of their group and they treat him with that level of disrespect and the only reason only logical inference that can be drawn is given the pattern of conduct by white officers in this department that they felt that they had license to do this to this particular officer and in this instance it went beyond just what happens when you're not given a favor work shift or a opportunity to go to training it involved actual physical abuse excessive f so yes taken as a whole we see what's happening here and that's important in this case to look at the totality of the circumstances you know related to this is the retaliation that  the district court found that he did make out a crime a facia case for retaliation but said that there was a legitimate nondiscriminatory reason that was offered by the employer to justify it but if you look closely what he was charged with and the facts that he offered that he shows that the discipline was pretextual the st charge was refusal to obey an order by a police officer investigating a suspected hand grenade the facts are clear both from sergeant strickland and from the officers on the scene that there was a heavy fog that night there is no statement affirmative statement by the officers themselves that they identified themselves sergeant strickland states clearly that they never identified themselves he had no idea he was at a crime scene and officers never identified themselves so he's being accused of not complying with an order by a police officer he didn't even know that they were police officers so there was no basis in fact for this charge and he did nothing wrong here he was also charged with using authority or position for financial gain or for obtaining privileges or favor in that specifically referred to his going to the gas station to get surveillance footage  surveillance video but his testimony makes clear that he went in to ask for that immediately after he was released from handcuffs and when he was in civilian clothing and when he went in and he never mentioned the fact that he was a police officer he did the same thing you  would do if we were involved in any type of incident and we suspected that there might be some video footage available we would go and ask for it and when he asked where they said he could have it and that's before they even knew he was a police officer there was no basis for this charge he was charged with withholding information bearing on crimes basically the recording that he obtained but the appropriate person to have that recording was the union steward he was the union steward he was the one that was supposed to head a bit there's no basis for that charge and finally when he's charged with neglect of duty for failing to complete an activity log you didn't complete it we admit that but at the same time during the same incident officer stephen murdoch who was a white officer also did not complete a report which suggests that this was an arbitrary decision so we look at it look at the excessive force claim where all of the elements are satisfied there it's clear from both that both detroit detroit officers and from sergeant stric that he complained about having pain about the handcuffs being too tight it's clear that officer shimmy who was in charge of watching him did not release those handcuffs or give him any release and it's clear that he suffered an injury court the district court said well because another officer loosen the handcuffs that he has no basis for complaint but this is an individualized analysis that we're doing of particular officers and this particular officer whose responsibility was to look after him and to make sure that he was not suffering excessive force testified that she has no idea whether he was whether the handcuffs were loosened because after she was told to let go of them she just wandered off and walked around some place and alone black officer on the scene is the only one who came and listened those handcuffs for him so in the end we say that there's a racially hostile environment because of a consistent pattern that's been demonstrated in objectively corroborated by reports that were prepared by the police department itself elements of excessive force have been satisfied and those disciplinary charges were purely pretextual and retaliatory for the fact that sergeant strickland filed an e o complaint specifying race is the basis for his and so the th prong a court must st the side as judge given state it which conduct was based on his race this played up which was african american and which conduct affected his workplace excluded evidence that plaintiffs lack any firsthand knowledge about he didn't know when he heard of it where you heard of the information and that goes into the bin affidavit or report which they and also the training that all seem perhaps specific to him so what about that evidence so so the shining and if you look at the record the shining that he's arguing deposition oh i don't recall what promotions i went out for i don't recall and it was later learned that the collective bargaining agreement for his union determines how promotions i've done which is by seniority which in fact this the element doesn't negate the fact that he still must prove it he admits in his briefs in his deposition that officers who engaged in that conduct were disappointed there was an environmental audit when it was brought so the chief contact with that priest that never involved anything in his deposition testimony he said have you seen discrimination or been discriminated against no he hasn't and so i asked to hear it so therefore the dis facie case ok however utilizing the good o make down of douglas berger shift and analysis the district court relying on mickey prince's owner found that the detroit police department have a legitimate not discriminatory actions this plane this officer who should know better was very combative that the thing him if you don't know who i am who i am your you don't know who you're talking to this was his attitude at the scene this isn't his let me ask you about his read his death his depo testimony that he asked her or said that they were thai nothing happened and it was only after he made another request to the other officer that they was and that he was and the handcuffs and so in that case he never did anything and i don't know why she would get the benefit of his other and when she did it she responded she let him go she stopped holding the handcuffs he admitted when he said that she let the heck go then he complained that the handcuffs were too tight when the complaint was made that the evidence showed that they were there together standing that's a gather and that was she ringback let go of the handcuffs she walked off she walked to the other side of the vehicle where her partner was when he shows i guess i'm a little confused because i think his deposition is not clear on that i don't i mean i understand depos are sometimes you know an even or whatever but i i guess you're pointing to what is the other doc taking his statement is true he let go after he complained she let go of the handcuffs and judge nobody had that same transcript is that what did she say anything after that no just researched it that sometimes you have to go beyond just those the facts and you have to look to see a reasonable officer in this particular situation and picking up on the handcuffing issue i would respectfully suggest to the court that rather than look at what johnnie strickland had to say about what happened out there look at the person who's accused of the excessive force look at what she had to say about it in her deposition and what she said at the time that the handcuffs reduce and she was nowhere around she did not even know that it was officer blackboard blackburn who listened them he asked the other officer he did it is that how it happened i'm not really clear on that myself the only thing i am clear on is is that he made those requests it's not clear who he directed them to but he was complaining about the the nd officer is loosening the cuffs wouldn't let's say it doesn't completely absolve shim ak i would have minimal when it would be relevant to what his injury or his damages are in other words he's damaged only between the time that she should have loosened the cobs and the time that he actually loosened because it's like that's the amount of injury conceivably but it we're addressing liability and asked liability that has to be very individualized and so we that's the st step is as far as we are concerned i would just close by noting and reminding the court  that you know the references to the fact that there needs to be something explicitly racial is something that jackson versus quantity addresses clearly you know look at the totality of the circumstances we see racial patterns here you know w at the fact that he's going to vigilantly suffered a great deal of discrimination he has progressed to his credit his promotions have been earned but there have been instances when he's been discriminated against he's asked for good shifts and has not been given them because they were given to white people he's asked for training and that's not been given doesn't mean that he hasn't ever received training or good ships but there have been those incidents and generally speaking we look at what happens with respect to the other things that have been referenced that are explicitly racial consider that if in a workplace there is racist graffiti that's prominently displayed in the workplace if the worker does not is not able to identify the person that did it doesn't know when it happened it makes it no less harmful to that person who has to experience that and for the sum total of his entire tenure with the detroit police department he's experienced racial hostility he's seen it he's observed it he's heard about it in various forms and it's all been objective lee corroborate by reports that the detroit police department itself has commissioned and has in some cases ignored