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.

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 day of March, two thousand ten. th

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
 In 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

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, 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