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SEILS v. ROCHESTER CITY SCHOOL DISTRICT
January 23, 2002
RICHARD W. SEILS, INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED, LOIS VREELAND, INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED, PLAINTIFFS,
ROCHESTER CITY SCHOOL DISTRICT, ET AL., DEFENDANTS.
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
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
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
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
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.
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
B. Plaintiffs' Reverse Race Discrimination Claims
In this case, both plaintiffs claim that they are the victims of race
(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
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 ...