attitude of hostility that
ran through virtually all of the JTA's dealings with Dr. Byars;" "I
firmly believe that her gender and her sexual preference were significant
factors in JTA's animosity toward her;" at faculty meetings, "often, she
was disrespectfully attacked by JTA leaders;" "I believe that the
Jamestown Teachers Association drove Dr. Byars out of the High School
because the male leadership of the Union did not want to be under the
direction of a woman." Item 48, Ex. D, ¶¶ 10, 18, 39, 40, 68, 97.
While she supports her claims of anti-female bias on the part of male
faculty and administration at the High School with a personal account of
having resigned after being "passed over for a position . . . in favor of
a less-qualified male," id., ¶ 72, this incident does not provide
evidentiary support for the proposition that the JTA's actions toward
Dr. Byars were motivated by gender bias. She also refers to a telephone
conversation a student had overheard, where teacher and Union
representative Jeffrey Keppel was reported saying "We got her. We've
nailed her." Id., ¶ 37. The student believed that Keppel was talking
about Dr. Byars. Id., ¶ 38. This statement, however, is inadmissible
double hearsay, as well as ambiguous, since there is no evidence that
Mr. Keppel was in fact talking about Dr. Byars or about her losing her
position. In sum, Ms. Oram's affidavit provides no evidence in support of
Dr. Byars' claims, as it consists of generalizations, hearsay, and
recounting of anti-lesbian attitudes on the part of a number of teachers
who were in the JTA leadership.
ii. William Boerst's Affidavit
Mr. Boerst, a teacher in the Jamestown schools from 1967-2000, and a
teacher at the High School during Dr. Byars' tenure there, described the
longstanding friction between pro- and anti-JTA factions at the High
School, and between the school administration and the JTA. He believed
that the JTA's opposition to Dr. Byars was "intensified by the fact that
she is a woman and a lesbian;" that "[t]he generally expressed feeling
was that a man was needed to `come in a [sic] take care of this stuff;'"
"[t]he union leaders' and district administrators' common goal to remove
Dr. Byars from her position brought them together; I would characterize
their activities as collusive." Item 48, Ex. E, ¶¶ 16, 20, 36.
Like Ms. Oram, Mr. Boerst does not provide the kind of specific facts
that would support the generalizations he makes. Also, like Ms. Oram, he
provides a personal anecdote concerning an occasion where, as a member of
the Shared Decision Making Team at the High School, he criticized the
JTA's actions, particularly their treatment of Dr. Byars. As a
consequence of his speaking out, he asserts that the JTA forced him to
resign from the committee. Id., ¶¶ 40-47. Again, while this might be
indicative of the general climate at the High School and indicative of
the hostility exhibited by the Union against those who would criticize
it, and/or who were positively disposed to Dr. Byars, it does not lead to
the conclusion that the JTA's actions toward Dr. Byars were based on
iii. Cynthia Peterson's Affidavit
The affidavit of Cynthia Peterson, a teacher in the Jamestown schools
since 1972, and a teacher at JHS since 1988, also does not help Dr. Byars
in her effort to avoid summary judgment. Ms. Peterson notes that when she
spoke to the NEA assessor, she provided him with positive feedback
concerning Dr. Byars, and told him that she thought the problems in the
High School "resulted from hostility to Dr.
Byars on the part of many of
the male teachers." Item 48, Ex. F, ¶ 36. She added that she felt
betrayed because her comments were not taken into account in the NEA
Report. Id., ¶ 40. She also expressed her belief that "Dr. Byars'
gender, and, to a lesser extent her sexual preference", caused these
disaffected teachers, many of whom were in the JTA leadership, to be
threatened and uncomfortable. Id., ¶ 44. But then, she goes on to say,
Although I cannot recall hearing any overt criticisms
of Dr. Byars based on either her gender or her sexual
preference from any individual Union leader, I was
aware of a subtle undercurrent of hostility that ran
through virtually all of the JTA's dealings with Dr.
Byars, and I firmly believe that her gender and her
sexual preference were significant factors in JTA's
animosity toward her.
Id., ¶ 45. She refers to meetings where Dr. Byars was attacked by JTA
leaders. Id., ¶ 46.
But here, too, Ms. Peterson's generalizations do not translate into
specific instances. While she has made reference to an anti-female
attitude on the part of some JTA teachers, her observations would not
lead a rational factfinder to infer that the JTA members either exhibited
anti-female bias or caused or attempted to cause the School Board to
discriminate against Dr. Byars.
Considering all the legally admissible material in these three
affidavits, even if it would be possible to find admissible incidents of
gender animus expressed by JTA members, plaintiff did not submit any
evidence that the Union played a meaningful role in the School Board's
decision not to give tenure to Dr. Byars. There is ample evidence that
numerous teachers who belonged to the JTA and who were officers of JTA
were critical of Dr. Byars. But there is flimsy evidence at best that
those critical attitudes were based on gender discrimination. "Title VII
does not insulate an individual from criticism that is not based on an
impermissible reason." Bickerstaff, 196 F.3d at 451.
The Second Circuit has guided district courts confronted with the kind
of amorphous atmosphere of hostility described herein when assessing
material submitted in support of a plaintiff's discrimination claims.
In Bickerstaff, the court noted, "[t]o satisfy Rule 56(e), affidavits
must be based upon concrete particulars, not conclusory allegations."
Bickerstaff, 196 F.3d at 451, citing Schwapp v. Town of Avon,
118 F.3d 106, 111 (2d Cir. 1997) (quotations and citations omitted).
The problem with all three affidavits is that they provide a dearth of
concrete particulars and admissible evidence. Other than Ms. Peterson's
report of Mr. Mazzone's comments, and references to problems Ms. Oram and
Mr. Boerst personally encountered which they attributed to their
criticism of the JTA and support for Dr. Byars — which is
irrelevant to Dr. Byars' claim — Dr. Byars has failed to offer a
single act, statement, or admission by any JTA decision maker that would
support Dr. Byars' allegation that the JTA either discriminated against
her on the basis of gender, or that she was denied tenure because of the
Union's role in causing or attempting to cause the Board to discriminate
against her. The Second Circuit reminds us that while the comments to
which Dr. Byars was subjected may have been rude, derogatory, and
hostile, Title VII is not a "general civility code. . . ." Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). While civility
apparently did not reign at JHS, the incidents Dr. Byars has recounted do
to a level where relief is warranted under Title VII.
Considered separately and cumulatively, these affidavits do not support
a reasonable inference that the JTA, through its officers and members,
harbored discriminatory bias. Plaintiff has also failed to provide
evidence establishing a causal link between the Unions' alleged
discriminatory bias and the School Board's decision not to grant tenure.
Consequently, the court finds plaintiff's claim that the Union
discriminated under Title VII insufficient to raise a question of
material fact, and grants defendant's motion for summary judgment on
plaintiff's Title VII and New York Executive Law gender discrimination
II. Conspiracy Pursuant to 42 U.S.C. § 1985(3)
A. The Legal Standard
42 U.S.C. § 1985(3) provides in relevant part:
If two or more persons . . . conspire . . . for the
purpose of depriving, either directly or indirectly,
any person or class of persons of the equal protection
of the laws, or of equal privileges and immunities
under the laws . . . in any case of conspiracy set
forth in this section, if one or more persons engaged
therein do, or cause to be done, any act in
furtherance of the object of such conspiracy, whereby
another is injured in his person or property, or
deprived of having and exercising any right or
privilege of a citizen of the United States, the party
so injured or deprived may have an action for the
recovery of damages, occasioned by such injury or
deprivation, against any one or more of the
To establish a prima facie case under 42 U.S.C. § 1985(3), a
plaintiff must demonstrate: (1) a conspiracy between defendants; (2) the
intent to deprive plaintiff of the equal protection of the laws or the
equal privileges and immunities under the laws; (3) an act in furtherance
of the conspiracy; and (4) a deprivation of plaintiff's rights. Thomas
v. Roach, 165 F.3d 137, 146 (2d Cir. 1999). The conspiracy must be
motivated by some class-based invidious discriminatory animus behind the
conspirators' action. Mian v. Donaldson, Lufkin & Jenrette Sec. Corp.,
7 F.3d 1085, 1087 (2d Cir. 1993). Sexual orientation discrimination will
not support a 42 U.S.C. § 1985(3) claim. Trigg v. New York City
Transit Authority, 2001 WL 868336 (E.D.N.Y. July 26, 2001).
Dr. Byars alleges that the "Union[,] by its members, officers,
representatives and agents[,] conspired with officers, agents,
representatives, and employees of defendant District to deprive [her] of
the equal protection of the laws and of the equal privileges and
immunities under the laws." Item 9, ¶ 119. The alleged conspiratorial
acts against plaintiff were motivated because of her gender and sexual
orientation. Id., ¶ 121. Plaintiff complains that the Union and district
"collud[ed] with respect to the mechanics of the process of the NEA
assessment; selectively targeting teachers supportive of plaintiff for
intimidation tactics and unfairly according teachers adversarial to
plaintiff certain preferences and immunities, often at the expense of
student welfare; blackballing plaintiff with the illegal and unethical
dissemination of the NEA report; subverting the usual arms-length
negotiations and procedures between the Union and the District; and
programmatically harassing plaintiff in the performance of her job
duties." Id., ¶ 122. Conclusory allegations of the defendant's alleged
participation in a conspiracy are inadequate to make out a claim under
§ 1985(3). X-Men Security, Inc. v. Pataki, 196 F.3d 56, 71 (2d Cir.
2000). The plaintiff must allege sufficient facts to give rise to an
inference that each of the four requisite elements is met. Id.
This claim is problematic for a number of reasons. Case law provides
that Title VII employment discrimination claims are not properly pursued
under 42 U.S.C. § 1985(3). See Great American Fed. Sav. & Loan Ass'n
v. Novotny, 442 U.S. 366, 378 (1979) ("[W]e conclude that § 1985(3)
may not be invoked to redress violations of Title VII."); Trigg, 2001 WL
868336 at *12; True v. New York State Dept. of Correctional Services,
613 F. Supp. 27, 32 (W.D.N.Y. 1984).
In addition, with respect to the first element, "in order to prevail at
trial the plaintiff must prove a mutual understanding or meeting of the
minds to violate her civil rights." Salgado v. City of New York, 2001 WL
290051 (S.D.N.Y. Mar. 26, 2001) (citation omitted). Because a section
1985(3) claim requires even more evidence than that necessary to
successfully plead a Title VII violation, and given that Dr. Byars was
unable to support her Title VII claim that the Union caused or attempted
to cause the district to discriminate, she would not be able to show
conspiracy under section 1985(3). See Novotny, 442 U.S. at 378 ("It is
true that a § 1985(3) remedy would not be coextensive with Title
VII, since a plaintiff in an action under § 1985(3) must prove both a
conspiracy and a group animus that Title VII does not require.") Also
given the discussion, supra, on the Title VII claim and the finding that
plaintiff did not provide enough legally sufficient evidence that would
lead a reasonable trier of fact to conclude that the Union, through its
officers and members, discriminated or caused the district to
discriminate, the section 1985(3) claim would also fail on the grounds
that plaintiff is unable to satisfy the second element of her prima facie
case. Thus, the court grants defendant's motion for summary judgment
dismissing plaintiff's cause of action under 42 U.S.C. § 1985(3).
III. State Law Claims
Dr. Byars has asserted New York State common law claims against the
Union for tortious interference with contract, tortious interference with
prospective economic advantage, and intentional infliction of emotional
distress. Item 9, pp. 26-29.
As a result of the dismissal of plaintiff's federal claims against the
JTA, this court will decline to exercise supplemental jurisdiction over
her pendent state law claims. 28 U.S.C. § 1367 (c)(3); Tops Markets
Inc. v. Quality Markets, Inc., 142 F.3d 90, 102-03 (2d Cir. 1998).
For the reasons set forth above, the court grants defendant's motion
for summary judgment. Item 44. This case is dismissed, and judgment shall
enter for defendant Jamestown Teachers Association.