Mark Maraschiello v. City of Buffalo Police Department

12-1006-cv
Mark Maraschiello v. City of Buffalo Police Department
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
3
4
August Term, 2012 5
6
(Argued: February 1, 2013 Decided: February 27, 2013) 7
8
Docket No. 12-1006-cv 9
10
11
MARK R. MARASCHIELLO, 12
13
Plaintiff-Appellant, 14
15
-v.- 16
17
CITY OF BUFFALO POLICE DEPARTMENT, H. McCARTHY GIPSON, 18
19
Defendants-Appellees, 20
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22
23
24
Before: 25
W ALKER , C ABRANES , AND W ESLEY , Circuit Judges 26
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28
29
Plaintiff-Appellant Mark Maraschiello sued the City of 30
Buffalo Police Department and its police chief for racial 31
discrimination after the results of a civil service 32
examination were replaced by the results of an updated 33
version. The United States District Court for the Western 34
District of New York (Arcara, J.) granted defendants’ motion 35
for summary judgment, finding that Ricci v. DeStefano, 557 36
U.S. 557 (2009), did not indicate that defendants’ actions 37
were prohibited. We affirm. 38
39
40
41
42
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RICHARD J. PERRY, JR. (Lindy Korn, on the brief), 1
Law Office of Lindy Korn, Buffalo, NY, for 2
Appellant. 3
4
JOSHUA FEINSTEIN, Hodgson Russ LLP, Buffalo, NY, 5
for Appellee City of Buffalo Police 6
Department. 7
8
TERRENCE M. CONNORS (James W. Grable, Jr., on the 9
brief), Connors & Vilardo, LLP, Buffalo, NY, 10
for Appellee H. McCarthy Gipson. 11
12
13
14
W ESLEY , Circuit Judge: 15
Mark Maraschiello, a white male employed as a captain 16
in the City of Buffalo Police Department (the “Department”), 17
sued the Department and its police chief, H. McCarthy Gipson 18
(collectively “defendants”), claiming that their failure to 19
promote him was impermissibly motivated by race. 20
Maraschiello’s scores on a 2006 civil service examination 21
rendered him eligible for promotion to the position of 22
inspector. After Buffalo adopted the results of a new exam 23
two years later, however, another officer was promoted to an 24
open inspector position. Maraschiello contends that this 25
amounted to racial discrimination in violation of Title VII 26
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1); 27
42 U.S.C. § 1983; and the Equal Protection Clause of the 28
Fourteenth Amendment. The United States District Court for 29
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the Western District of New York (Arcara, J.) adopted 1
Magistrate Judge Leslie G. Foschio’s report and 2
recommendation granting summary judgment in favor of 3
defendants. See Maraschiello v. City of Buffalo Police 4
Dep’t, No. 10-CV-00187A(F), 2011 WL 7395095 (Sept. 13, 5
2011). We affirm. 6
Facts 7
Maraschiello, a white man, has at all relevant times 8
been employed by the Department as a captain. The 9
Department bases its promotional decisions for several 10
positions, including that of inspector, on the results of a 11
civil service exam. In accordance with New York law, the 12
City of Buffalo (the “City”) may promote any one of the 13
three top scorers on a given exam. See N.Y. Civ. Serv. Law 14
§ 61[1] (“Appointment or promotion from an eligible list to 15
a position in the competitive class shall be made by the 16
selection of one of the three persons certified by the 17
appropriate civil service commission as standing highest on 18
such eligible list who are willing to accept such 19
appointment or promotion . . . .”). Maraschiello took the 20
exam required for the inspector position on September 16, 21
2006. He received the highest grade on the exam and ranked 22
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first on a list of candidates that was certified on December 1
13, 2006. The parties do not dispute that the exam 2
qualified Maraschiello and the other two top scorers for 3
promotion to inspector at any time while the 2006 list 4
remained in effect. For most of this period, however, there 5
were no open inspector positions. 6
During this time, the City of Buffalo (“the City”) was 7
going through the process of adopting a new police promotion 8
exam. Defendants submitted evidence that, in October 2006, 9
the City engaged personnel psychologist Nancy Abrams to 10
review the civil service exams. Abrams submitted an 11
affidavit stating that “[i]n part prompted” by “several 12
federal civil rights actions . . . challenging the City’s 13
use of examinations prepared by the New York State 14
Department of Civil Service,” the City “requested that [she] 15
review the Police promotional exams prepared by NYS Civil 16
Service . . . to evaluate whether they were valid 17
examinations that selected the candidates best suited for 18
the job and otherwise complied with applicable legal and 19
professional standards for employment examinations.” Joint 20
App’x 88-89. Abrams concluded that the civil service agency 21
had not updated the job analysis in nearly thirty years and 22
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that it was out of date, in part because its reliance on 1
multiple-choice questions was not “optimal for police work 2
and other fields requiring qualities – such as effective 3
oral communication and the ability to assume command of 4
situations – that are difficult to evaluate through such 5
traditional methods.” Id. at 90-91. Abrams discussed these 6
conclusions with City officials, and “[a]fter receiving 7
[her] conclusions, the City published a request for 8
proposals [(“RFP”)] in April 2007 for an independent 9
consultant to develop new Civil Service examinations.” Id. 10
at 91. Abrams “assisted the City in designing the RFP and 11
evaluating the responses received to accomplish these goals 12
and provide Buffalo with a better exam.” Id. at 91-92. 13
The City issued the “Request for Proposals for 14
Development of Police Promotional Examinations” on April 27, 15
2007. The RFP began by reciting the “Regulations” governing 16
the bidding. Id. at 55-58. Of note is that the section 17
includes a provision entitled “Method of Tendering 18
Proposals.” Id. at 55. That provision contains three 19
subsections. The first establishes that “all bidders must 20
tender their proposal on the form furnished with these 21
specifications”; the second states that no entity shall 22
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submit more than one proposal; and the third states the 1
following: 2
All bidders must submit with their bid a statement 3
indicating that they will work toward a minority 4
workforce goal of 25%, and woman workforce goal of 5%. 5
In addition, a statement must be submitted indicating 6
that the bidder will work toward a business utilization 7
goal for minority business enterprise of 25% and woman 8
business enterprise of 5%. 9
10
Id. (emphasis omitted). 11
After the Regulations section, the RFP describes in 12
detail the sort of examinations it sought. It begins with 13
the following paragraph: 14
The City of Buffalo (the “City”) has traditionally used 15
examinations prepared by the New York State Department 16
of Civil Service for examining candidates for 17
promotional titles within the Buffalo Police and Fire 18
Departments. In 1973 and 1974, civil lawsuits were 19
brought against the City alleging discrimination in 20
entry-level hiring in the Police and Fire Departments. 21
In 1978, the Court found there was discrimination, and 22
the Court has been overseeing various remedies since 23
that time. The City remains under Court supervision 24
with respect to entry-level hiring in both departments. 25
Further, in 1998 and in 2002, civil lawsuits were 26
brought against the City in which the examination for 27
promotion to fire lieutenant was alleged to have a 28
discriminatory impact against African-American 29
candidates. Those lawsuits are still pending as of the 30
date of this Request for Proposals. Although the City 31
denies that the examinations previously used were 32
discriminatory, it has decided to cease using the 33
examinations prepared by the New York State Department 34
of Civil Service for Police Officer and Firefighter 35
promotional titles and therefore is issuing this 36
Request for Proposals for the development of its own 37
examinations. 38
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1
Id. at 60. The RFP contains further provisions detailing 2
the scope of the work – establishing, inter alia, that the 3
proposed tests must deal with job requirements and scoring 4
procedures. Id. at 60-70. It also states that “testing 5
instruments and procedures must conform to Title VII . . . ; 6
to this end, they must be free from non-job related factors 7
which might function as biases against any group on the 8
basis of race, color, religion, sex, age, national origin, 9
or any other classification protected by law.” Id. at 61. 10
In late 2007 and early 2008, the City selected 11
Industrial/Organization Solutions, Inc. from among various 12
bidders, and the two entities collaborated in developing a 13
promotional exam consisting of both a written test and an 14
oral assessment. After the development process was 15
complete, the City announced and administered the new exam 16
for the inspector position in two parts: the written 17
component in February 2008 and the oral component on March 18
31, 2008. Maraschiello elected not to take the 2008 test; 19
he does not allege that he was in any way prevented from 20
doing so. 21
On March 18, 2008, Gipson issued Special Order No. 22
2008-48, which stated: “Inspector Philip Ramunno, assigned 23
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to the B District, has been granted a service pension in the 1
New York State Retirement System effective March 18, 2008.” 2
Id. at 75. 3
On April 16, 2008, after the new test was scored, the 4
City adopted a new inspector list, and the 2006 eligibility 5
list automatically expired. Patrick Reichmuth, who is a 6
white male (as was every candidate on both the 2006 and 2008 7
lists), placed first on the 2008 list. Reichmuth had been 8
second on the 2006 list. Maraschiello did not appear on the 9
2008 list, which is not surprising given his failure to take 10
the test. On June 16, 2008, Reichmuth was appointed to fill 11
the vacancy created by Ramunno’s retirement. 12
District Court Proceedings 13
After exhausting his administrative remedies, 14
Maraschiello filed a four-count complaint in district court 15
on March 5, 2010. He asserted claims of unlawful 16
discrimination under Title VII, § 1983, and the Equal 17
Protection Clause of the Fourteenth Amendment. He also 18
asserted a state-law claim for defamation based on an 19
alleged statement by Gipson, in the context of promotion 20
discussions, that Maraschiello “was a racist.” Joint App’x 21
14. 22
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Defendants filed a motion to dismiss the complaint 1
pursuant to Rule 12(b)(6), asserting that Maraschiello’s 2
claim did not involve the sort of impermissibly race-based 3
action described in Ricci v. DeStefano, 557 U.S. 557 (2009). 4
The district court denied the motion, noting that 5
Maraschiello had alleged that after the adoption of the 2006 6
exam results, the city solicited bids for new exams with the 7
purpose of “increas[ing] minority representation on the 8
force.” Joint App’x 30. The court then noted: 9
Defendants have failed to distinguish Ricci from the 10
facts of this case. Based upon plaintiff’s 11
allegations, it would appear that Ricci applies to 12
plaintiff’s discrimination claims. Plaintiff asserts 13
that the city discarded the 2006 exam results because 14
it wanted to increase minority representation on the 15
police force. Defendants do not dispute this point, 16
and, in fact, expressly acknowledge that the City had 17
endured “numerous legal challenges to the validity of 18
the civil service examinations” over the past few 19
decades and that the new exams were created “to avoid 20
further litigation with respect to those exams.” In 21
light of Ricci and plaintiff’s allegations that the 22
2006 exam results were discarded for the purpose of 23
avoiding further claims of racial discrimination, 24
defendant’s motion to dismiss plaintiff’s 25
discrimination claims is denied. 26
27
Id. at 31-32 (internal citation omitted). 28
In January 2011, after some discovery, Maraschiello 29
moved for partial summary judgment on the issue of 30
liability. Gipson cross-moved for summary judgment 31
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dismissing the Title VII claims against him in his 1
individual capacity. Magistrate Judge Foschio recommended 2
that the district court deny Maraschiello’s motion, grant 3
summary judgment sua sponte for all defendants on the 4
federal claims, and decline to exercise supplemental 5
jurisdiction over the defamation claim. 6
Judge Foschio first found that defendants could not be 7
held liable under Title VII based on Ricci because the case 8
was factually distinguishable. Maraschiello, 2011 WL 9
7395095, at *7-8. Judge Foschio found further that the 10
other evidentiary bases for Maraschiello’s claim were 11
insufficient: Maraschiello’s contentions that the RFP 12
statement regarding a 25% minority workforce referred to the 13
police workforce rather than a bidding contractor’s 14
workforce were unavailing; Maraschiello never sat for the 15
2008 exam; and the person who was eventually promoted was, 16
like Maraschiello, a white man. Id. at *8-10. 17
Judge Foschio went on to determine that Maraschiello 18
could not maintain a claim under § 1983 because he had no 19
cognizable property right to the inspector position and that 20
Maraschiello’s equal protection claim was moot in the 21
absence of a viable discrimination claim under the other two 22
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statutes. Id. at *11-12. Finally, Judge Foschio 1
recommended that the district court decline to exercise 2
supplemental jurisdiction over the defamation claim because 3
the case was at a relatively early stage and a state-court 4
action would not be barred by the statute of limitations. 5
Id. at *14. 6
After Judge Foschio issued the recommendation and 7
report on September 13, 2011, Maraschiello filed objections. 8
On December 19, 2011, the district court held oral argument 9
on whether the recommendation and report should be adopted. 10
In order to provide additional notice to Maraschiello before 11
acting on the recommendation to grant summary judgment to 12
all defendants sua sponte, the district court permitted 13
supplemental briefing, which the parties filed in due 14
course. On January 24, 2012, the district court held a 15
second hearing to afford the parties a further opportunity 16
to present their respective positions. Finally, on February 17
16, 2012, the district court issued a decision adopting 18
Judge Foschio’s proposed findings and dismissing the case. 19
Discussion 20
Maraschiello’s brief on appeal contains no discussion 21
of the § 1983 or defamation claims and only three sentences 22
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of unsupported argument regarding his equal protection 1
claim. See Appellant’s Br. at 16. “Merely mentioning or 2
simply stating an issue in an appellate brief is 3
insufficient to preserve it for our review: an appellant 4
must advance an argument, and we generally will decline to 5
consider issues that are not sufficiently argued.” Niagara 6
Mohawk Power Corp. v. Hudson River-Black River Regulating 7
Dist., 673 F.3d 84, 107 (2d Cir. 2012) (internal quotation 8
marks and brackets omitted). Thus, it is only necessary for 9
us to consider Maraschiello’s arguments regarding Title 10
VII. 1
11
“We review an order granting summary judgment de novo, 12
drawing all factual inferences in favor of the non-moving 13
party.” Ment Bros. Iron Works Co., Inc. v. Interstate Fire 14
& Cas. Co., 702 F.3d 118, 120-21 (2d Cir. 2012). “[W]e 15
affirm only where we are able to conclude, after construing 16
the evidence in the light most favorable to the non-moving 17
party and drawing all reasonable inferences in its favor, 18
that ‘there is no genuine dispute as to any material fact 19
1 Because we conclude that Maraschiello’s Title VII
claim fails, and “[t]he elements of [a Title VII claim] are
generally the same as the elements of [an equal protection
claim] and the two must stand or fall together,” Feingold v.
New York, 366 F.3d 138, 159 (2d Cir. 2004), his equal
protection claim would fail in any event.
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and the movant is entitled to judgment as a matter of law.’” 1
Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir. 2
2011) (quoting Fed. R. Civ. P. 56(a)). 3
I. 4
Title VII claims are generally “analyzed under the 5
familiar burden-shifting framework of McDonnell Douglas 6
Corp. v. Green, 411 U.S. 792 . . . (1973), and its progeny.” 7
Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008). At 8
the first stage of McDonnell Douglas, a plaintiff “bears the 9
burden of establishing a prima facie case of 10
discrimination,” which includes demonstrating that “he 11
suffered an adverse employment action . . . under 12
circumstances giving rise to an inference of discriminatory 13
intent.” Id. “Once the prima facie case has been shown, 14
‘the burden then must shift to the employer to articulate 15
some legitimate, nondiscriminatory reason’ for the adverse 16
employment action.” United States v. Brennan, 650 F.3d 65, 17
93 (2d Cir. 2011) (quoting McDonnell Douglas, 411 U.S. at 18
802). 19
A plaintiff may also attempt more directly to “convince 20
the trier of fact that an impermissible criterion in fact 21
entered into the employment decision” by “focus[ing] his 22
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proof directly at the question of discrimination and 1
prov[ing] that an illegitimate factor had a ‘motivating’ or 2
‘substantial’ role in the employment decision.” Tyler v. 3
Bethlehem Steel Corp., 958 F.2d 1176, 1181 (2d Cir. 1992) 4
(citation omitted). If the employee does so, he is 5
“entitled to succeed subject only to the employer’s 6
opportunity to prove its affirmative defense, that is, that 7
it would have reached the same decision as to [the 8
employee’s employment] even in the absence of the 9
impermissible factor.” Id. (internal quotation marks and 10
citations omitted). 11
Maraschiello’s central contention is that Ricci 12
establishes that defendants’ actions violated Title VII. 13
Repeated references in his brief to a “Ricci theory” or 14
“Ricci analysis” suggest that he is arguing that the case 15
established a new framework for Title VII litigation. It 16
did not. As we have explained, “Ricci does not impose a new 17
. . . summary-judgment burden-shifting framework, but 18
instead constitutes . . . a straightforward application of 19
the first two steps of McDonnell Douglas.” Brennan, 650 20
F.3d at 93-94. Because Ricci involved a factual scenario 21
22
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somewhat similar to Maraschiello’s, however, it is worth 1
discussing that case in some detail. 2
In Ricci, a group of New Haven firefighters had taken 3
examinations necessary to qualify for promotions. 557 U.S. 4
at 562. “When the examination results showed that white 5
candidates had outperformed minority candidates,” New Haven 6
agreed with other firefighters who “argued [that] the tests 7
should be discarded [prior to certification of the results] 8
because the results showed the tests to be discriminatory.” 9
Id. New Haven “threw out the examinations” based on the 10
racial disparity reflected in the results. Id. The 11
plaintiff firefighters alleged that discarding the results 12
discriminated against them based on their race, in violation 13
of Title VII’s prohibition of disparate treatment. New 14
Haven countered that “if they had certified the results, 15
they could have faced liability under Title VII for adopting 16
a practice that had a disparate impact on the minority 17
firefighters.” Id. at 563. 18
The Supreme Court’s analysis began with the premise 19
that, absent a valid defense, New Haven’s actions would 20
violate the disparate-treatment prohibition because “[a]ll 21
the evidence demonstrate[d] that [New Haven] chose not to 22
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certify the examination results because of the statistical 1
disparity based on race – i.e., . . . because too many 2
whites and not enough minorities would be promoted were the 3
lists to be certified.” Id. at 579 (internal citation and 4
quotation marks omitted). “Whatever [New Haven’s] ultimate 5
aim – however well intentioned or benevolent it might have 6
seemed – [New Haven] made its employment decision because of 7
race [and] rejected the test results solely because the 8
higher scoring candidates were white.” Id. at 579-80. 9
“[T]he original, foundational prohibition of Title VII bars 10
employers from taking adverse action ‘because of . . . 11
race.’” Id. at 581 (quoting 42 U.S.C. § 2000e-2(a)(1)). 12
This prohibition was violated when “the firefighters saw 13
their efforts invalidated by [New Haven] in sole reliance 14
upon race-based statistics.” Id. at 584. 15
“In other words, because [New Haven’s] decision to 16
reject the test results was explicitly based on a 17
statistical racial disparity, it was beyond dispute that the 18
plaintiffs had made out a prima facie case, so the burden 19
shifted to the defendants to give a legitimate justification 20
for the adverse employment action.” Brennan, 650 F.3d at 21
93. The Court thus turned to the question of “whether the 22
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purpose to avoid disparate-impact liability excuses what 1
otherwise would be prohibited disparate-treatment 2
discrimination.” Ricci, 557 U.S. at 580. It rejected the 3
plaintiffs’ contention that an employer could never take 4
race-based adverse employment actions in order to avoid 5
disparate-impact liability, finding that so “broad and 6
inflexible [a] formulation” would impermissibly nullify 7
Congressional intent to stamp out racially disparate impact 8
along with disparate treatment. Id. On the other hand, the 9
Court also rejected New Haven’s argument that city officials 10
could “violate the disparate-treatment prohibition based on 11
a mere good-faith fear of disparate-impact liability” 12
because that “would encourage race-based action at the 13
slightest hint of disparate impact,” and “Title VII is 14
express in disclaiming any interpretation of its 15
requirements as calling for outright racial balancing.” Id. 16
at 581-82. 17
The Court concluded that it was appropriate to 18
“constrain[] employers’ discretion in making race-based 19
decisions . . . to cases in which there is a strong basis in 20
evidence of disparate-impact liability,” although this does 21
not require a “provable, actual violation.” Id. at 583. 22
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Thus, an employer may not discard a test “to achieve a more 1
desirable racial distribution of promotion-eligible 2
candidates – absent a strong basis in evidence that the test 3
was deficient and that discarding the results is necessary 4
to avoid violating the disparate-impact provision.” Id. at 5
584. The Court held that the scoring disparity on the New 6
Haven test results could not provide that basis absent 7
evidence either that “the examinations were not job related 8
and consistent with business necessity” or that “there 9
existed an equally valid, less-discriminatory alternative 10
that served [New Haven’s] needs but that [New Haven] refused 11
to adopt.” Id. at 587. “Fear of litigation alone cannot 12
justify an employer’s reliance on race to the detriment of 13
individuals who passed the examinations and qualified for 14
promotions.” Id. at 592. 15
To subject the defendants to Title VII liability, 16
Maraschiello must either provide direct evidence of 17
discrimination or establish, as part of a prima facie case 18
under McDonnell Douglas, that he experienced an adverse 19
employment action “under circumstances giving rise to an 20
inference of discrimination.” Brennan, 650 F.3d at 93 21
(internal quotations omitted). If he does so, the burden 22
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shifts to the City to justify its conduct, perhaps by 1
establishing a strong basis in evidence that it would 2
otherwise have been subject to a disparate-impact claim. 3
Because we find that Maraschiello has failed to provide 4
evidence from which a reasonable jury could conclude that he 5
suffered a discriminatory action under either framework, we 6
need not consider the justification issue. 7
Maraschiello’s argument regarding the adverse 8
employment action he suffered was stated most clearly by his 9
counsel at oral argument before the district court after 10
Judge Foschio issued the Report and Recommendation: 11
When the vacancy came into existence, they chose not to 12
select him. They chose to use the new test which is 13
designed for a racial reason, and unless they can show 14
the necessary justifications then that’s a facially 15
racial decision. . . . 16
17
The Supreme Court starts with that premise that if you 18
determine to change your test for fear of race – 19
disparate impact, racial disparate impact, if you make 20
that decision it’s a race-conscious decision. And if 21
you then harm someone by it that’s the discrimination. 22
. . . They picked the race test versus the test that 23
could have promoted him. If they had picked the 2006 24
test he would not have a Ricci claim at all. He 25
absolutely wouldn’t. 26
27
Joint App’x 279-81. Maraschiello’s claim thus appears to 28
center on the 30-day period between Inspector Ramunno’s 29
retirement (on March 18, 2008) and the adoption of the 2008 30
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eligibility list (on April 16, 2008). Construed most 1
generously, his argument is that, immediately upon Ramunno’s 2
retirement, the City should have made its promotion decision 3
from the 2006 list that included Maraschiello but that the 4
City instead chose to delay the appointment decision for a 5
month in order to use the results of the new test, which was 6
adopted “for a racial reason.” Thus, according to 7
Maraschiello, he was denied his shot at the promotion in the 8
same way and for the same reasons as the firefighters in 9
Ricci. 10
This argument cannot succeed. In Ricci, the defendants 11
threw out the results of a test based on the racial 12
disparity reflected in those particular results, denying the 13
firefighters who had taken it any chance of a promotion. In 14
this case, Maraschiello’s results were certified, and he was 15
eligible for a promotion for over a year. More important, 16
however, is the manner in which Maraschiello’s eligibility 17
expired. Unlike in Ricci, where the results of a specific 18
test were simply discarded based on the racial statistics 19
reflected in the results, here the City replaced the 2006 20
list with the 2008 list after spending more than a year 21
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preparing to revise its assessment methods. 2 Its problem 1
was with the test itself, rather than with a particular set 2
of results. The City administered the first phase of the 3
2008 test in February, which was before the inspector 4
position Maraschiello desired became vacant. Maraschiello 5
chose not to take this test even before he knew that a 6
position would be open. In short, the City was already in 7
the process of preparing to replace the eligibility list – a 8
process in which Maraschiello chose not to participate. 9
This process, even though it eventually resulted in the 10
automatic invalidation of the 2006 list, was not a rejection 11
of that list for its own sake. 12
We do not read Ricci as confined to situations 13
involving the discarding of civil service test results based 14
on the disparity those results reflect. Rather, the case 15
establishes more generally that “before an employer can 16
engage in intentional discrimination for the asserted 17
purpose of avoiding or remedying an unintentional disparate 18
impact, the employer must have a strong basis in evidence to 19
2 The City’s replacement of the 2006 list complied with
the requirements of New York law that certified test
fresults remain in place for at least one year. N.Y. Civ.
Serv. Law § 56[1] (“The duration of an eligible list shall
be fixed at not less than one nor more than four years . . .
.”).
21

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believe it will be subject to disparate-impact liability if 1
it fails to take the race-conscious, discriminatory action.” 2
Ricci, 557 U.S. at 585; see Briscoe v. City of New Haven, 3
654 F.3d 200, 206-07 (2d Cir. 2011). In other words, it 4
articulates the contours of a specific affirmative defense 5
to claims of unlawful disparate treatment based on race – it 6
does not expressly limit what may constitute disparate 7
treatment. 8
Nonetheless, Maraschiello’s arguments are unavailing. 9
Even if it were determined that the City’s choice to adopt a 10
new test was motivated in part by its desire to achieve more 11
racially balanced results – and there is evidence in the 12
record that at least suggests this – Maraschiello cannot 13
demonstrate that the generalized overhaul of departmental 14
promotional requirements amounted to the sort of race-based 15
adverse action discussed in Ricci. Indeed, Ricci 16
specifically permits an employer to “consider[], before 17
administering a test or practice, how to design that test or 18
practice in order to provide a fair opportunity for all 19
individuals, regardless of race.” 557 U.S. at 585. 20
21
22
22

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Although Abrams’ statements regarding the reasons for 1
this replacement are unnecessary for our conclusion, they 2
lend it strong support. The statements indicate that the 3
City chose to update its testing requirements, and 4
subsequently its eligibility list, for reasons that had much 5
more to do with an advanced understanding of job 6
qualifications than with racial statistics. Maraschiello 7
has not attempted to dispute this evidence. Completing the 8
last phase of a long-planned adoption of a new standard is a 9
far cry from rejecting a set of results out of hand because 10
of their racial makeup. Updating an examination, a process 11
specifically permitted by statute, does not “create[ ] a 12
materially significant disadvantage with respect to the 13
terms of . . . employment.” See Williams v. R.H. Donnelley 14
Corp., 368 F.3d 123, 128 (2d Cir. 2004) (internal quotation 15
marks omitted). 16
Maraschiello’s only other suggestion that the exam 17
update was discriminatory comes from the 25% language in the 18
RFP. This language does not support his claim. The City 19
submitted evidence, in the form of an affidavit by the 20
Director of Civil Services in the City’s Human Resources 21
department, that the 25% language is mandated by the city 22
23

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code whenever the City solicits bids for work. Joint App’x 1
79. The affidavit included the relevant section of the 2
code, § 96-13F, which states: 3
The advertisement inviting bids for the doing of a work 4
or improvement or for the furnishings of materials, 5
supplies, or equipment shall among other things state 6
that the bidder must submit prior to the awarding of a 7
contract, a statement indicating that the bidder will 8
work toward a minority workforce goal of 25%, and women 9
workforce goal of 5%. In addition, a statement must be 10
submitted prior to the awarding of a contract 11
indicating that the bidder will work toward a business 12
utilization goal for minority business enterprise of 13
25% and women business enterprise of 5%. These goals 14
shall be utilized for all purchasing, professional 15
services and construction contracts. In addition, all 16
departments and City of Buffalo agencies must include 17
in all bid specifications the minority workforce and 18
business utilization goals as stated in this section. 19
Joint App’x 83. Although portions of this language 20
considered in isolation might theoretically allow for 21
multiple interpretations regarding which workforce a bidder 22
must work to affect, the context makes crystal clear that it 23
refers to the bidder’s workforce rather than the City’s. 24
The language refers to all bids, including those to furnish 25
materials or improve physical facilities – jobs which have 26
no effect on city employment. The requirement that this 27
language be included in all bid advertisements – not just 28
those, like the promotion-examination advertisement, that 29
30
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might end up having an effect on the City’s workforce – 1
belies Maraschiello’s contentions. 2
Maraschiello has provided neither direct evidence of 3
discrimination nor evidence from which a reasonable jury 4
could infer that discrimination occurred during the City’s 5
process of updating and administering its promotion exam. 6
His Title VII claim thus cannot succeed to the extent that 7
it concerns this process. 8
Maraschiello’s only remaining evidence is Gipson’s 9
supposed comment that Maraschiello was a “racist.” This 10
alleged remark similarly cannot support a claim that the 11
failure to promote him was on the basis of his race, despite 12
Maraschiello’s conclusory and unsupported argument that it 13
“constitutes a clearly race-based bias.” Appellant’s Br. at 14
15. As defendants point out, the person eventually 15
appointed instead of Maraschiello was also a white man. 16
Even if this was not the case, a statement that someone is a 17
“racist,” while potentially indicating unfair dislike, does 18
not indicate that the object of the statement is being 19
rejected because of his race. See Holcomb v. Iona College, 20
521 F.3d 130, 139 (2d Cir. 2008) (noting that Title VII will 21
support a claim by an “employee [who] suffers discrimination 22
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because of the employee’s own race” (emphasis in original)). 1
“Racism” is not a race, and discrimination on the basis of 2
alleged racism is not the same as discrimination on the 3
basis of race. 4
Maraschiello provides no other evidence of unlawful 5
discrimination, and his Title VII claim therefore fails in 6
its entirety. 7
II. 8
Finally, Maraschiello argues that the district court’s 9
denial of defendants’ motion to dismiss created binding law 10
of the case regarding the viability of his Title VII claim 11
and that the district court inappropriately granted summary 12
judgment sua sponte. Neither of these claims can succeed. 13
The doctrine of law of the case is “discretionary and 14
does not limit a court’s power to reconsider its own 15
decisions prior to final judgment.” Virgin Atl. Airways, 16
Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 17
1992). And in any event, the doctrine would not preclude a 18
district court from granting summary judgment based on 19
evidence after denying a motion to dismiss based only on the 20
plaintiff’s allegations. See id. The district court’s 21
decision on the motion to dismiss depended on Maraschiello’s 22
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allegation that “the city discarded the 2006 exam results 1
because it wanted to increase minority representation on the 2
police force.” Joint App’x 31. The evidence reflects that 3
the situation was a good deal more complicated. It was not 4
error for the court to revisit a conclusion based on factual 5
allegations taken as true at the motion to dismiss stage, 6
and determine, based on undisputed evidence at the summary 7
judgment stage, that no reasonable jury could find that the 8
type of action discussed in Ricci occurred. See Brown v. 9
City of Syracuse, 673 F.3d 141, 148 (2d Cir. 2012). 10
As explained in his brief, Maraschiello’s second 11
argument amounts to a contention that the district court 12
failed to view the evidence in his favor, rather than a 13
claim that he was denied procedural protections. See 14
Appellant’s Br. at 12-15. He does not dispute that after 15
Judge Foschio recommended sua sponte summary judgment, he 16
was afforded the opportunity to file objections, engage in 17
oral argument, file additional briefing, and engage in 18
additional argument. This constituted adequate procedural 19
protection. See Fed. R. Civ. P. 56(f)(3) (governing the 20
granting of summary judgment sua sponte); Priestley v. 21
Headminder, Inc., 647 F.3d 497, 504 (2d Cir. 2011). The 22
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District Court fully complied with the mandates of Rule 1
56(f) and did not err in granting summary judgment sua 2
sponte. 3
Conclusion 4
We have examined all of Maraschiello’s arguments on 5
appeal and find them to be without merit. For the foregoing 6
reasons, the judgment of the district court granting summary 7
judgment for defendants is AFFIRMED. 8
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