09-3424-cv
         Munderville, et al. v. Highland Falls-Fort Montgomery Cent. Sch. Dist., et al.




                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 18 th day of March, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                GERARD E. LYNCH,
 9                         Circuit Judge,
10                JANE A. RESTANI, *
11                         Judge.
12
13       - - - - - - - - - - - - - - - - - - - -X
14       TABITHA MUNDERVILLE and DIANE
15       ZIMMERMANN,
16
17                    Plaintiffs-Appellants,
18
19                    -v.-                                         09-3424-cv
20
21       HIGHLAND FALLS-FORT MONTGOMERY CENTRAL
22       SCHOOL DISTRICT, PHILLIP ARBOLINO,
23       sued in his individual capacity, and
24       KEITH ABBEY, sued in his individual
25       capacity,
26                 Defendants-Appellees. **
27       - - - - - - - - - - - - - - - - - - - -X


                *
               The Honorable Jane A. Restani, Chief Judge of the
         United States Court of International Trade, sitting by
         designation.
                **
                The Clerk of Court is directed to amend the caption
         as set forth above.
 1   APPEARING FOR APPELLANTS:   Christopher D. Watkins, Sussman
 2                               & Watkins, Goshen, NY.
 3
 4   APPEARING FOR APPELLEES:    Daniel G. Ecker (Roseann
 5                               Schuyler, on the brief), Traub
 6                               Lieberman Straus & Shrewsberry
 7                               LLP, Hawthorne, NY.
 8
 9        Appeal from a judgment of the United States District
10   Court for the Southern District of New York (Seibel, J.).
11
12        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13   AND DECREED that the judgment of the district court be
14   AFFIRMED.
15
16        Plaintiffs-appellants Tabitha Munderville and Diane
17   Zimmermann appeal from a final judgment of the United States
18   District Court for the Southern District of New York
19   (Seibel, J.), following a jury verdict in favor of
20   defendants-appellees Highland Falls-Fort Montgomery Central
21   School District, Phillip Arbolino, and Keith Abbey. We
22   assume the parties’ familiarity with the underlying facts,
23   the procedural history, and the issues presented for review.
24
25        Appellants argue that appellees exercised their
26   peremptory challenges with discriminatory intent to exclude
27   three women as potential jurors, and the district court
28   clearly erred in denying two sex-based Batson challenges.***
29   In the context of a party’s exercise of peremptory
30   challenges, “[w]e do not overturn a trial court’s finding on
31   the issue of discriminatory intent unless it is clearly
32   erroneous.” United States v. Lee, 

, 94 (2d Cir.
33   2008). Having reviewed appellants’ contentions on appeal,
34   we affirm.

         ***
            In Batson v. Kentucky, 

, 89 (1986), the
     Supreme Court held that “the Equal Protection Clause forbids
     the prosecutor to challenge potential jurors solely on
     account of their race or on the assumption that black jurors
     as a group will be unable impartially to consider the
     State’s case against a black defendant.” The Supreme Court
     has extended this principle to sex. See J.E.B. v. Alabama
     ex rel. T.B., 

, 129 (1994) (“We hold that
     gender, like race, is an unconstitutional proxy for juror
     competence and impartiality.”).

                                  2
 1        Contrary to appellants’ arguments, the district court
 2   properly conducted the “three-part burden-shifting framework
 3   that trial courts are to employ when ascertaining whether a
 4   particular peremptory strike of a jury panelist is based on
 5   an impermissible discriminatory motive in violation of the
 6   Equal Protection Clause of the Fourteenth Amendment.”
 7   Messiah v. Duncan, 

, 194 (2d Cir. 2006). The
 8   lengthy colloquy on this issue nowhere suggests that the
 9   district court precluded appellants from arguing pretext.
10   Moreover, the district court explicitly considered whether
11   potential jurors 2 and 11 were struck because of their sex,
12   but rejected appellants’ two corresponding Batson
13   challenges, thereby “demonstrat[ing] with sufficient clarity
14   that [it] deem[ed appellants] to have failed to carry
15   [their] burden to show that [appellees’] proffered [sex]-
16   neutral explanation is pretextual.” 

17
18        Appellants further argue that the district court’s
19   factual findings are clearly erroneous. Appellees proffered
20   the jurors’ status as teachers (or their close connections
21   to teachers) as the sex-neutral reason motivating appellees’
22   use of peremptory challenges. Appellees did not strike
23   potential jurors 6 (a male retired teacher) and 14 (a male
24   current teacher). Appellees distinguished potential juror 6
25   from the struck potential jurors based on his retirement;
26   and appellants failed to argue that this distinction
27   revealed pretext. Appellees did not distinguish potential
28   juror 14; but the record reflects that both sides reasonably
29   expected him to be supernumerary, given their expectation
30   that there would be a jury of eight. The moving party
31   carries “the burden of proving that a strike was exercised
32   on an impermissible discriminatory ground.” 

We
33   find no clear error in the district court’s finding that
34   appellants failed to carry their burden.
35
36        Finding no merit in appellants’ remaining arguments, we
37   AFFIRM the judgment of the district court.
38
39
40                              FOR THE COURT:
41                              CATHERINE O’HAGAN WOLFE, CLERK
42




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