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



### UNITE D STATES COURT OFAPPEALS FOR T HE SE COND CIRCU IT



## SUM MARY ORDE R

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY ORDER FILED
ON OR AFTER J

ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL R ULE OF APPELLATE PROCEDURE 32 .1 AND THIS COURT ’ S LOCAL R ULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT , A PART Y 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 day of March, two thousand ten. th 5 PRESENT: DENNIS JACOBS, 6 7 Chief Judge, 8 GERARD E. LYNCH, 9 Circuit Judge , 10 JANE A. RESTANI, * 11 Judge. 12 13 - - - - - - - - - - - - - - - - - - - -X TABITHA MUNDERVILLE and DIANE 14 ZIMMERMANN, 15 16 Plaintiffs-Appellants, 17 18

-v.- 09-3424-cv 19 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 - - - - - - - - - - - - - - - - - - - -XIn Batson v. Kentucky, 476 U.S. 79, 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., 511 U.S. 127, 129 (1994) (“We hold that gender, like race, is an unconstitutional proxy for juror competence and impartiality.”).

2 APPEARING FOR APPELLANTS: Christopher D. Watkins, Sussman 1 & Watkins, Goshen, NY. 2 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 Sou the rn Dis tri ct of NewYo rk 19 (Se ibe l, J.) , f oll owi ng a j uryve rdi ct in fav or of 20 def end ant s-a ppe lle es Hig hla nd Fal ls- For t M ont gomeryCe ntr al 21 Sch ool Di str ict , P hil lipAr bol ino , a nd Kei th Abb ey. We 22 assume the parties’ familiarity with the underlying facts, 23 the procedural history, and the issues presented for review. 24 25 App ell ant s a rgu e t hatap pel lee s e xer cis ed the ir 26 per emp tor y c hal len ges wi th dis cri min ato ry int enttoex clu de 27 thr ee women as pot ent ial ju ror s, andth e d ist ric t c our t 28 cle arl y e rre d i n d eny ingtw o s ex- bas ed Bat sonch all eng es. *** 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, 549 F.3d 84, 94 (2d Cir. 33 2008). Having reviewed appellants’ contentions on appeal, 34 we affirm.3 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, 435 F.3d 186, 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.” Id. at 198. 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.” Id. at 195. 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