09-3338-cv (L)
Filozof v. Monroe Community College, 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.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 25th day of February, two thousand eleven.

PRESENT:

          JOSÉ A. CABRANES,
          ROSEMARY S. POOLER,
          REENA RAGGI,
                 Circuit Judges.

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MICHAEL FILOZOF,

                               Plaintiff-Appellant,

          v.                                                                               No. 09-3338-cv(L)

MONROE COMMUNITY COLLEGE, R. THOMAS FLYNN,
JANET J. GLOCKER, CHET ROGALSKI, and SUSAN BELAIR,

                               Defendants-Appellees,

THE COUNTY OF MONROE, SUSAN SALVADORE, DAVID
DAY, DIANA RAYNER, MONROE COMMUNITY COLLEGE
BOARD OF TRUSTEES,

                               Defendants.*

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          *
              The Clerk of Court is directed to amend the caption to read as shown above.

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FOR APPELLANT:                          J. NELSON THOMAS (Annette M. Gifford, of counsel), Thomas
                                        & Solomon LLP, Rochester, NY.

FOR APPELLEES:                          JAMES L. GELORMINI, Senior Deputy County Attorney
                                        (William K. Taylor, County Attorney, of counsel, and Howard
                                        A. Stark, Senior Deputy County Attorney, on the brief),
                                        Monroe County, Rochester, NY.

       Appeal from a November 6, 2009 judgment entered in the United States District Court for
the Western District of New York (David G. Larimer, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be AFFIRMED.

         On November 1, 2004, plaintiff-appellant Michael Filozof filed suit against Monroe
Community College (“MCC”), its Board of Trustees and several of its officers and employees, and
the County of Monroe. Filozof alleged that he was denied tenure at MCC on the basis of his
Caucasian race, male gender, and conservative political beliefs, in violation of the First Amendment,
42 U.S.C. § 1983, 42 U.S.C. § 1985, Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§ 2000e et seq., and the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. Only
Filozof’s claims under the First Amendment and § 1983 survived summary judgment, and those
claims, in turn, were dismissed following a jury trial. Filozof now brings this appeal against MCC, R.
Thomas Flynn, Janet J. Glocker, Chet Rogalski, and Susan Belair (jointly “defendants”). Filozof
asserts that the District Court erred in (1) denying his Batson challenge to the defendants’ peremptory
strike of the only African-American individual in the venire, and (2) granting defendants’ motion for
summary judgment on his claims of racial discrimination. We assume the parties’ familiarity with the
underlying facts and the procedural history of the case.

        (1) Batson challenge

         In its landmark decision of Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court held
that the use of racially-motivated peremptory challenges during jury selection is prohibited by the
United States Constitution. See also Edmonson v. Leesville Concrete Co., 500 U.S. 614, 630 (1991)
(applying Batson analysis to civil cases). Batson adopted a three-pronged approach for determining
whether peremptory challenges have been used in a racially discriminatory manner: in “Step 1,” the
moving party must establish a prima facie case of discrimination; in “Step 2,” the opposing party must
then provide a race-neutral justification for the exercise of the challenge; and in “Step 3,” the district
court then evaluates whether the moving party has satisfied his ultimate burden of establishing that
the peremptory challenge was the result of “purposeful discrimination.” Batson, 476 U.S. at 93-98;
see also United States v. Stavroulakis, 952 F.2d 686, 695 (2d Cir. 1992). “Despite Batson’s three part
framework, ‘the ultimate burden of persuasion regarding improper motivation rests with, and never

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shifts from, the opponent of the strike.’” United States v. Martinez, 621 F.3d 101, 109 (2d Cir. 2010)
(quoting Rice v. Collins, 546 U.S. 333, 338 (2006)).

         Defendants used a peremptory challenge on the only black member of the venire (consisting
of 16 individuals following the dismissals for cause), and Filozof made a timely Batson challenge. In
justifying this challenge, Filozof’s counsel noted that the challenged juror was the only black
member of the venire and explained that “[m]y concern is there’s no basis on which to excuse her
other than race.” The District Court expressly questioned whether Filozof had met his burden of
establishing a prima facie case of discrimination, but nonetheless invited defense counsel to explain his
reasons for striking the juror in question. Counsel could only say that he “felt uncomfortable with
her.” The District Court then denied Filozof’s Batson challenge from the bench:

        Well, I’ll deny the Batson charge—or Batson challenge. I think just because there’s one
        African-American in the box I don’t think necessarily requires a Batson inquiry.

        The reasons given for [the juror’s] dismissal are not very strong, but on the other hand, I
        don’t think counsel has to have reasons, good reasons; they just can’t be based on race.

        And I think just the fact that she happens to be African-American in this particular case,
        where there are no other African-Americans, I’ll deny the Batson challenge.

        The District Court expounded on its earlier Batson ruling during the course of its denial of
Filozof’s subsequent motion for a new trial. The District Court made several noteworthy comments
during this proceeding:

        As I said at the time of trial, I wasn’t sure plaintiff had established [a prima facie case]. All the
        plaintiff had established at that point is there was one juror, she was black, and she was
        struck. At the time I was inclined to simply base my ruling on that fact alone, that you
        haven’t made out a prima facie case, period. But I didn’t do that.

        But I’m not convinced that that still is not part of the analysis at this point. The Court did
        require [counsel for defendants] to make some explanation, if you will, of the reason for the
        strike and the reason was as we’ve described here at some length; the only reason was
        that—the reason was the lawyer was, quote, uncomfortable with the juror.
                                                  ****
        There were no comments of counsel during voir dire, which sometimes exists. In this case
        because counsel made no comments at all during voir dire and did not participate, there was
        no comments of that ilk, and there was really very little motivation to strike this particular
        juror.


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        But I had a chance to review the process when it occurred, I had a chance to review the
        demeanor of the lawyer making the challenge, and I guess I’m not convinced that the use of
        the word or phrase that “I’m uncomfortable with the juror” is, in the context of this case,
        another way of saying that I struck the juror because she happened to be African-American.
                                                    ****
        Based on all the factors that I have discussed here, based on my observation of the selection
        process, based on my observation of [defense counsel] and his reasons for doing what he
        did, I find that the plaintiff has failed to establish that there was purposeful discrimination in
        the decision to strike [the juror] from this jury.

         Doctrinally, the Batson analysis in this case—both for us and for the District Court—is
confused somewhat by the odd fact that defense counsel’s “race-neutral” explanation for his
peremptory challenge actually represents one of Filozof’s main arguments that a Batson violation has
indeed occurred. In making his initial Batson challenge, Filozof’s counsel merely identified that the
challenged juror was the only African-American in the venire and that he could think of no reason
other than race to explain why she had been dismissed. As the District Court correctly stated, these
facts alone do not necessarily establish a prima facie showing that the challenge was racially motivated.
We held in Cousin v. Bennett, 511 F.3d 334, 339 (2d Cir. 2008), that “although there are no doubt
circumstances in which a prosecutor’s challenge of the only prospective juror of a particular race
could give rise to a sufficiently strong inference of racial motivation to make a prima facie showing,
the present facts do not give sufficient support to such an inference.” See also United States v.
Bergodere, 40 F.3d 512, 516 (1st Cir. 1994) (“[T]he mere fact that the prosecutor challenges the only
juror of a particular race, without more, does not automatically give rise to an inescapable inference
of discriminatory intent.”); United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994) (“[T]he
fact that the juror was the one Black member of the venire does not, in itself, raise an inference of
discrimination.”). We further explained that “[a] trial court evaluating whether a prima facie
showing has been made must consider ‘all relevant circumstances.’” Cousin, 511 F.3d at 338 (quoting
Batson, 476 U.S. at 96-97).

        Despite its stated doubts about whether Filozof had met his burden at Step 1, the District
Court proceeded to Step 2 by questioning defense counsel on his rationale for striking the juror in
question. Defendants’ counsel volunteered only that he felt “uncomfortable” with the juror in
question. Filozof argues on appeal both that (1) we must construe defense counsel’s lack of
“comfort” with the juror as an admission that the juror was struck on account of her race, and (2)
defense counsel’s inability to provide even a modestly compelling, race-neutral explanation for his
challenge at Step 2 necessarily requires Filozof to prevail on his Batson challenge.

        Addressing the first point, counsel plainly could have been “uncomfortable” with the juror
in question for many reasons having nothing to do with race. While counsel’s explanation may not
have been illuminating, it can hardly be taken as an admission that his peremptory strike was
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motivated by racial considerations. Filozof’s second argument is foreclosed by the Supreme Court’s
opinion in Johnson v. California, 545 U.S. 162 (2005). There the Court explained:

        Th[e] burden of persuasion rests with, and never shifts from, the opponent of the strike.
        Thus, even if the [nonmoving party] produces only a frivolous or utterly nonsensical
        justification for its strike, the case does not end—it merely proceeds to step three. The first
        two Batson steps govern the production of evidence that allows the trial court to determine
        the persuasiveness of the defendant’s constitutional claim. It is not until the third step that
        the persuasiveness of the justification becomes relevant—the step in which the trial court
        determines whether the opponent of the strike has carried his burden of proving purposeful
        discrimination.

Id. at 171 (quotations and citations omitted).

        The critical inquiry, then, is the one that takes place at Step 3, where the district court
evaluates whether the moving party has satisfied his ultimate burden of establishing that the
peremptory challenge was the result of “purposeful discrimination.” After reviewing all of the
relevant factors—including the strength of Filozof’s initial Batson challenge as well as opposing
counsel’s purportedly race-neutral explanation for the challenge—the District Court concluded that
Filozof failed to establish that any purposeful discrimination had occurred during jury selection.

         “[T]he ultimate question of discriminatory intent represents a finding of fact that will be set
aside only if clearly erroneous.” United States v. Taylor, 92 F.3d 1313, 1326 (1996). We find nothing
clearly erroneous about the determination of the District Court.

        (2) Racial discrimination claims

        Fliozof also argues that the District Court erred in granting summary judgment for the
defendants on his claims of racial discrimination under Title VII. “We review a district court’s grant
of summary judgment de novo, drawing all inferences in favor of the nonmoving party.” Ruiz v.
County of Rockland, 609 F.3d 486, 491 (2d Cir. 2010).

        In order to establish a prima facie case of discrimination, Filozof has the burden of
demonstrating: (1) membership in a protected class; (2) satisfactory job performance; and (3) an
adverse employment action, occurring under (4) circumstances giving rise to an inference of
discrimination. See, e.g., Collins v. N.Y.C. Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002).

         In this case, the District Court held that Filozof failed to demonstrate circumstances giving
rise to the inference that he was not renewed for his tenure-track position on account of his race (as
opposed to his political beliefs). We agree. The difficulties Filozof encountered with his superiors
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only arose after Filozof made his political views known within his department; indeed, a compelling
component of Filozof’s First Amendment claims (claims that ultimately failed) was the positive
feedback he initially received from his superiors—feedback that previously enabled him to be
reappointed as a tenure-track Instructor. Furthermore, “when the person who made the decision to
fire was the same person who made the decision to hire, it is difficult to impute to her an invidious
motivation that would be inconsistent with the decision to hire.” Grady v. Affiliated Cent., Inc., 130
F.3d 553, 560 (2d Cir. 1997).

        Based on the record before it, the District Court correctly dismissed Filozof’s claims of racial
discrimination.

                                        CONCLUSION

       We have considered all of plaintiffs’ arguments and find them to be without merit.
Accordingly, the judgment of the District Court is AFFIRMED.



                                                FOR THE COURT,
                                                Catherine O’Hagan Wolfe, Clerk of Court




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