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January 23, 2002


The opinion of the court was delivered by: David G. Larimer, Chief United States District Judge.



The facts of this case are set forth in my prior decisions*fn1, entered March 15, 2001 (199 F.R.D. 506 (W.D.N.Y. 2001)) and December 12, 2000 (Dkt. #139), familiarity with which is assumed, and will not be repeated at length here. Briefly, Richard Seils ("Seils") and Lois Vreeland ("Vreeland") (collectively "plaintiffs"), who have been teachers in defendant Rochester City School District ("RCSD") and members of former defendant Rochester Teachers' Association ("RTA"), commenced this action against twenty-eight defendants. They allege, in fifteen separate causes of action, claims involving breach of contract, discrimination, and retaliation in violation of Title VII, 42 U.S.C. § 1983 ("§ 1983"), 42 U.S.C. § 1985 ("§ 1985"), and the N.Y. Human Rights Law ("HRL").

The amended complaint, containing 138 separate paragraphs covering 35 pages, alleges claims on behalf of a purported class for violations of Title VII, § 1983 and the HRL. In addition, both Seils and Vreeland set forth separate individual claims of a similar nature. The case has not been certified as a class action. Twenty-seven of the named defendants are directly related to RCSD ("the RCSD defendants"). They include past or present RCSD employees and past or present members of its board.

The tortured procedural history of this case conjures up the image of Jarndyce v. Jarndyce, so vividly portrayed by Charles Dickens in Bleak House.*fn2 Because a full recitation of the history of this case might task even devotees of Jarndyce v. Jarndyce, the Court will recount only that which is necessary for its present purpose: deciding the motions presently before it, namely, RCSD's separate motions to dismiss, or, in the alternative, for summary judgment with respect to each plaintiff, and plaintiffs' cross-motions to certify this action as a class action, to modify or amend this Court's prior decisions, orders, and judgments, for partial summary judgment, injunctive relief, to amend the complaint, and for various forms of discovery-related relief.

Plaintiffs have made the Court's review more difficult by the voluminous and often vague and repetitive papers submitted in response to defendants' motion or in support of plaintiffs' various cross-motions. The volume and prolixity is seemingly "designed to obscure rather than to illumine the events giving rise to this lawsuit." See Pross v. Katz, 784 F.2d 455, 456 (2d Cir. 1986). Indeed, on the instant motions alone, plaintiffs have made 34 separate filings that when stacked together creates a pile eight inches thick. Included among them, for example is a 149 paragraph affidavit of 46 pages (not including exhibits) (Dkt. #189), two 125 paragraph affirmations of 38 pages each (not including exhibits) (Dkt. #s 190, 199), two 61 paragraph reply affirmations of 27 pages each (not including exhibits) (Dkt. #s 182, 183), 19 additional affidavits and affirmations, memoranda of law with a combined total of 90 pages (Dkt. #s 178, 179, 187, 211), and two statements of material facts (which Local Rule 56 of the rules of this Court require to be "short and concise") that are 113 paragraphs each (not including exhibits) (Dkt. #s 188, 197).

In addition, plaintiffs' counsel frequently "incorporated by reference" virtually every document filed in this case and in several cases which she considers "related" of equally voluminous nature. (See Dkt. #s 186, 196). Together, all of these papers would be measured by feet rather than inches. Moreover, plaintiffs' failure to furnish specific citation and argument as to how these myriad papers demonstrate any issue of fact warranting trial:

assumes the district court has an affirmative obligation to plumb the record in order to find a genuine issue of material fact. It does not. A district court is not required to speculate on which portion of the record the nonmoving party relies, nor is it obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim. Once [defendant] met its burden of demonstrating a lack of genuine issues of material fact, [plaintiff] was required to designate specific facts creating a triable controversy.

Barge v. Anheuser-Busch Bush, Inc., 87 F.3d 256, 260 (8th Cir. 1996) (citations and internal quotation marks omitted); see also Freidel v. City of Madison, 832 F.2d 965, 969 (7th Cir. 1987) (stating that it was not the court's "duty on appeal to wade through the record and make arguments for either party" and that the nonmoving parties were "fatally remiss in citing to the district court portions of the record that they claimed supported their assertions"). This is not the first time that I have admonished plaintiffs' counsel in this case for her failure to specify the relevance of materials on which she has sought to rely. See Court's letter to plaintiffs' counsel, dated February 15, 2000. While, as a general proposition, it is important to submit the necessary evidence, in this case, much of what has been submitted is either redundant, irrelevant, speculative, conclusory, or all of the above.


A. Richard Seils

Seils, a fifty-nine year-old Caucasian male, had been employed by RCSD as a teacher since 1968; he retired in 1998. In large part, Seils' complaint stems from an incident in December 1995 where Seils was accused of striking a student while employed as a technology teacher at Frederick Douglass Middle School ("Douglass"). Seils was disciplined for that action. He alleges in this complaint that "defendants"*fn3 punished him and other RCSD employees "based on race and/or age and/or sex and/or national origin and/or disability," and that older*fn4 Caucasian employees were more severely punished than other employees (Complaint, ¶ 52).

B. Lois Vreeland

Vreeland has been a special education teacher at Franklin High School ("Franklin") since 1988. In January 1996, Vreeland obtained an order of protection from the Rochester City Court, pursuant to section 530.13 of the New York Criminal Procedure Law, against Elizabeth Pardner, a parent of one of Vreeland's students. Pardner had previously threatened Vreeland. The order prohibited Pardner from having any contact with Vreeland. Nevertheless, in violation of the order, Pardner gained entry into Franklin, and an encounter between the two women ensued.

In February 1996, Vreeland filed a grievance alleging that RCSD violated section 25 of the RTA-RCSD collective bargaining agreement because the building administrator "allowed subject of court order of protection into [the school] building. . . ." The parties subsequently agreed that Franklin's building administrator would be advised to be more attentive to any orders of protection involving Vreeland. Based upon a number of factors, including (a) RCSD's assurance that orders of protection would be more closely monitored in the future, (b) the order of protection involving Vreeland was to expire by its own terms on July 26, 1996, and (c) the student whose parent was involved would no longer be attending Franklin after June 1996, the Grievance Committee decided, after consultation with Vreeland, to close the grievance.

Vreeland also alleges a laundry list of claims she considers "harassment" by students and parents or guardians of students that she experienced while at Franklin. Although it is unclear, Vreeland appears to claim that she was harassed by students and their parents because she is Caucasian, or female, or older, or disabled, or married to an African-American male, or the mother of mixed-race children.


RCSD now moves for summary judgment*fn5 against both Seils and Vreeland on all causes of action on several grounds. For the reasons that follow, the motions are granted and the amended complaint is dismissed.*fn6

A. Summary Judgment — General Standards In Discrimination Cases

The standard for deciding summary judgment motions is well established. Rule 56(c) provides that a motion for summary judgment shall be granted if the pleadings and supplemental evidentiary materials "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). Under the rule, the burden is on the moving party to inform the Court of the basis for its motion and to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the moving party has carried its burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "[T]he non-moving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Id. at 587 (quoting FED. R. CIV. P. 56(e)).

"Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Id. at 587. When perusing the record to determine whether a rational fact-finder could find for the non-moving party, however, all reasonable inferences must be drawn in favor of the non-moving party. See Murray v. National Broadcasting Co., 844 F.2d 988, 992 (2d Cir.), cert. denied, 488 U.S. 955 (1988).

The general principles underlying a motion for summary judgment fully apply to discrimination actions. Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000). Although courts should be cautious about granting summary judgment in cases where motive, intent or state of mind are at issue, Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988); Montana v. First Federal Savings and Loan Association of Rochester, 869 F.2d 100, 103 (2d Cir. 1989), "the salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829 (1985) (summary judgment rule would be rendered sterile if mere incantation of intent or state of mind would act as a talisman to defeat an otherwise valid motion). Consequently, once the moving party has met its burden, the non-moving party in a discrimination action must come forward with evidence upon which a rational fact-finder could return a verdict in his favor. For a plaintiff in a discrimination case to survive a motion for summary judgment, he or she must do more than present "conclusory allegations of discrimination," Meiri v. Dacon, 759 F.2d 989 (2d Cir.), cert. denied, 474 U.S. 829 (1985); he or she must offer "concrete particulars" to substantiate the claim. Id. (cited in Duprey v. Prudential Ins. Co., 910 F. Supp. 879 (N.D.N.Y. 1996)).

B. Plaintiffs' Reverse Race Discrimination Claims

In this case, both plaintiffs claim that they are the victims of race discrimination (Seils — 6th cause of action; Vreeland — 12th cause of action). Generally, such a claim is analyzed pursuant to the traditional burden-shifting paradigm articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973), and later refined in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-253 (1981), and St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-511 (1993). In general, to establish a prima facie case of race discrimination, a plaintiff must show that: (1) he is a member of a racial minority; (2) he was performing satisfactorily; (3) he suffered some adverse employment action; and (4) such action occurred under circumstances giving rise to an inference of discrimination. See Duclair v. Runyon, 166 F.3d 1200, n. 2 (2d Cir. 1998) (unpublished opinion) (citing McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997)).

This is not the typical race discrimination case, however, since both plaintiffs here are Caucasian and, therefore, not members of any minority group. Plaintiffs claim reverse discrimination against Caucasians by defendants (many of whom are also Caucasian). Of course, discrimination based on race, whether it is African-American or Caucasian, is prohibited by Title VII and the Supreme Court so held many years ago in McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 (1976).

The Supreme Court ruled that Title VII "prohibits all racial discrimination in employment, without exception for any group of particular employees . . . ." It further held that the dictates of Title VII "are not limited to discrimination against members of any particular race [and Title VII] proscribe[s] racial discrimination in private employment against whites on the same terms as racial discrimination against nonwhites." Id. at 278-79, 280, 96 S.Ct. 2574.

Courts have struggled in attempting to apply the McDonnell Douglas burden-shifting framework to Title VII suits by Caucasian plaintiffs, and no universally accepted statement of the appropriate standard has emerged. The confusion arises from the wording of the first prong of the test. Obviously, a Caucasian plaintiff cannot establish membership in a minority group in the same way an African-American plaintiff can. In an effort to force*fn7 reverse discrimination cases to fit into the McDonnell Douglas framework, some courts require Caucasian plaintiffs to establish "background circumstances" supporting the suspicion that the defendant is that unusual employer who discriminates against the majority. See, e.g., Parker v. Baltimore & O.R.R. Co., 652 F.2d 1012, 1017 (D.C.Cir. 1981)*fn8, instead of showing minority group status. In Parker, the court also insisted that the "background circumstances" test "is not an additional hurdle for white plaintiffs," and asserted that it was merely "a faithful transposition of the McDonnell Douglas /Burdine test" into the context of reverse discrimination. Id. at 154.

Some courts have concluded, however, that substituting "background circumstances" for the first prong of McDonnell Douglas does, in fact, raise the bar, and those courts have rejected the Parker analysis for that reason. For example, in Eastridge, the court concluded that the Parker test "require[s] a reverse discrimination plaintiff to show that the specific employer has displayed a pattern of discrimination against the majority in the past [and therefore] imposes a more onerous burden on such a plaintiff as compared to any plaintiff from any protected group." 996 F. Supp. at 161. See also Ulrich v. Exxon Co., 824 F. Supp. 677, 683-4 (S.D.Tex. 1993) (describing the "background circumstances" test as imposing a "heightened burden" and citing cases that have criticized it). In Cully v. Milliman & Robertson, Inc., 20 F. Supp.2d 636, 641 (S.D.N.Y., 1998), the court described Parker as requiring a "higher prima facie burden for reverse discrimination plaintiffs." In Collins v. School District of Kansas City, 727 F. Supp. 1318, 1320 (W.D.Mo., 1990), the court concluded that the "background circumstances" test required a "special showing" of Caucasian plaintiffs, and rejected the test for that reason. The court also concluded that the "unusual employer" prong of Parker established an "arbitrary barrier which serves only to frustrate those who have legitimate Title VII claims."

In addition to the concerns expressed by the aforementioned district courts, the Sixth Circuit has questioned its earlier adoption of the test. In Murray, the Sixth Circuit stated: "[w]e agree with the district court that a prima facie case of `reverse discrimination' is established upon a showing that `background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority.'" 770 F.2d at 67 (citing Parker). However, nine years later in Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796 (6th Cir. 1994), the same court noted that the "background circumstances" test had been criticized for imposing a "heightened standard," on Caucasian plaintiffs, and observed: "[w]e have serious misgivings about the soundness of a test which imposes a more onerous standard for plaintiffs who are white or male than for their non-white or female counterparts." Pierce, 40 F.3d at 801, n. 7. Ultimately, the Pierce court did not have to resolve the obvious tension between that pronouncement and Murray's adoption of that test, because the plaintiff in Pierce could not meet the second prong of the McDonnell Douglas test.

Most recently, the Third Circuit rejected the "background circumstances" analysis set forth in Parker and its progeny, in favor of a standard under which a plaintiff who brings a reverse discrimination suit under Title VII should be able to establish a prima facie case in the absence of direct evidence of discrimination by presenting sufficient evidence to allow a reasonable fact finder to conclude (given the totality of the circumstances) that the defendant treated plaintiff less favorably than others because of his race, color, religion, sex, or national origin. Iadimarco v. Runyon, 190 F.3d 151, 157-163 (3d Cir. 1999) (internal quotation marks omitted).

The Second Circuit has not taken a position on this issue, and the district courts in this circuit have split on it. Compare, e.g., Olenick v. New York Telephone, 881 F. Supp. 113, 114 (S.D.N Y 1995) (adopting "background circumstances" test); Umansky v. Masterpiece Int'l Ltd., 1998 WL 433779 (S.D.N.Y. 1998) (following Olenick) with Cunliffe v. Sikorsky Aircraft Corp., 9 F. Supp.2d 125 (D.Conn. 1998) (rejecting Olenick); Ticali v. Roman Catholic Diocese of Brooklyn, 41 F. Supp.2d 249, 260-262 (E.D.N.Y. 1999) (rejecting "background circumstances" test, and instead assessing whether or not an inference can be drawn from the established facts that the employer treated Caucasian plaintiff less favorably because of his race); and Cully v. Milliman & Robertson, Inc., 20 F. Supp.2d 636, 641 (S.D.N.Y. 1998).

While I find the Third Circuit's thorough analysis in Iadimarco persuasive, I need not decide this issue today because, regardless of the test used, plaintiffs have failed to establish a prima facie case of reverse race discrimination, since they have failed to meet the most important requirement of a prima facie case, namely that the actions on which they base their claims occurred under circumstances giving rise to an inference of discrimination.

Although not conclusive on the issue, it is certainly noteworthy to point out that the teachers and administrators in this school district were largely white. The statistics, submitted in connection with plaintiff's filings, demonstrate that whites outnumber blacks in the district as a whole and in the two schools involved, Franklin High School and Douglas Middle School.*fn9 Although it is certainly not impossible for discrimination to occur in this circumstance, it still seems that RCSD would indeed be the "unusual employer," see, e.g., Parker v. Baltimore & O.R.R. Co., 652 F.2d at 1017, who chose to discriminate not against the minority but against the substantial majority of its employees.

Neither Seils nor Vreeland has presented any evidence to suggest that the RCSD defendants treated Caucasians less favorably than non-Caucasians. Plaintiffs must do more than rest on the allegations in the complaint or on their subjective feelings as to the cause of their troubles. Moreover, careful analysis of the facts relating to both Seils and Vreeland demonstrates that there is neither direct evidence nor background circumstances which would permit an inference to be drawn that RCSD treated plaintiffs less favorably because of their race, age or gender. See Ticali v. Roman Catholic Diocese of Brooklyn, 41 F. Supp.2d 249, 260-262 (E.D.N.Y. 1999); see also Weeks v. Union Camp Corp., 215 F.3d 1323, 2000 WL 727771, *6 (4th Cir. 2000) (unpublished opinion).

Other than plaintiffs' own conjecture and speculation, there is no evidence that the actions of the RCSD defendants were motivated by race. Plaintiffs' counsel recites a lengthy list of events that have allegedly occurred over the years in the Rochester city schools. Those ...

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