     12-1006-cv
     Mark Maraschiello v. City of Buffalo Police Department

 1                      UNITED STATES COURT OF APPEALS
 2                          FOR THE SECOND CIRCUIT
 3
 4
 5                              August Term, 2012
 6
 7      (Argued: February 1, 2013           Decided: February 27, 2013)
 8
 9                            Docket No. 12-1006-cv
10
11
12                           MARK R. MARASCHIELLO,
13
14                                                    Plaintiff-Appellant,
15
16                                      -v.-
17
18      CITY OF BUFFALO POLICE DEPARTMENT, H. McCARTHY GIPSON,
19
20                                                   Defendants-Appellees,
21
22
23
24
25   Before:
26                WALKER, CABRANES, AND WESLEY, Circuit Judges
27
28
29
30        Plaintiff-Appellant Mark Maraschiello sued the City of
31   Buffalo Police Department and its police chief for racial
32   discrimination after the results of a civil service
33   examination were replaced by the results of an updated
34   version. The United States District Court for the Western
35   District of New York (Arcara, J.) granted defendants’ motion
36   for summary judgment, finding that Ricci v. DeStefano, 557
37   U.S. 557 (2009), did not indicate that defendants’ actions
38   were prohibited. We affirm.
39
40
41
42
43
44
 1            RICHARD J. PERRY, JR. (Lindy Korn, on the brief),
 2                 Law Office of Lindy Korn, Buffalo, NY, for
 3                 Appellant.
 4
 5            JOSHUA FEINSTEIN, Hodgson Russ LLP, Buffalo, NY,
 6                 for Appellee City of Buffalo Police
 7                 Department.
 8
 9            TERRENCE M. CONNORS (James W. Grable, Jr., on the
10                 brief), Connors & Vilardo, LLP, Buffalo, NY,
11                 for Appellee H. McCarthy Gipson.
12
13
14
15   WESLEY, Circuit Judge:

16       Mark Maraschiello, a white male employed as a captain

17   in the City of Buffalo Police Department (the “Department”),

18   sued the Department and its police chief, H. McCarthy Gipson

19   (collectively “defendants”), claiming that their failure to

20   promote him was impermissibly motivated by race.

21   Maraschiello’s scores on a 2006 civil service examination

22   rendered him eligible for promotion to the position of

23   inspector.   After Buffalo adopted the results of a new exam

24   two years later, however, another officer was promoted to an

25   open inspector position.    Maraschiello contends that this

26   amounted to racial discrimination in violation of Title VII

27   of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1);

28   42 U.S.C. § 1983; and the Equal Protection Clause of the

29   Fourteenth Amendment.    The United States District Court for



                                    2
 1   the Western District of New York (Arcara, J.) adopted

 2   Magistrate Judge Leslie G. Foschio’s report and

 3   recommendation granting summary judgment in favor of

 4   defendants.    See Maraschiello v. City of Buffalo Police

 5   Dep’t, No. 10-CV-00187A(F), 2011 WL 7395095 (Sept. 13,

 6   2011).    We affirm.

 7                                Facts

 8       Maraschiello, a white man, has at all relevant times

 9   been employed by the Department as a captain.     The

10   Department bases its promotional decisions for several

11   positions, including that of inspector, on the results of a

12   civil service exam.    In accordance with New York law, the

13   City of Buffalo (the “City”) may promote any one of the

14   three top scorers on a given exam.    See N.Y. Civ. Serv. Law

15   § 61[1] (“Appointment or promotion from an eligible list to

16   a position in the competitive class shall be made by the

17   selection of one of the three persons certified by the

18   appropriate civil service commission as standing highest on

19   such eligible list who are willing to accept such

20   appointment or promotion . . . .”).    Maraschiello took the

21   exam required for the inspector position on September 16,

22   2006.    He received the highest grade on the exam and ranked


                                    3
 1   first on a list of candidates that was certified on December

 2   13, 2006.   The parties do not dispute that the exam

 3   qualified Maraschiello and the other two top scorers for

 4   promotion to inspector at any time while the 2006 list

 5   remained in effect.   For most of this period, however, there

 6   were no open inspector positions.

 7       During this time, the City of Buffalo (“the City”) was

 8   going through the process of adopting a new police promotion

 9   exam.   Defendants submitted evidence that, in October 2006,

10   the City engaged personnel psychologist Nancy Abrams to

11   review the civil service exams.     Abrams submitted an

12   affidavit stating that “[i]n part prompted” by “several

13   federal civil rights actions . . . challenging the City’s

14   use of examinations prepared by the New York State

15   Department of Civil Service,” the City “requested that [she]

16   review the Police promotional exams prepared by NYS Civil

17   Service . . . to evaluate whether they were valid

18   examinations that selected the candidates best suited for

19   the job and otherwise complied with applicable legal and

20   professional standards for employment examinations.”      Joint

21   App’x 88-89.   Abrams concluded that the civil service agency

22   had not updated the job analysis in nearly thirty years and


                                   4
 1   that it was out of date, in part because its reliance on

 2   multiple-choice questions was not “optimal for police work

 3   and other fields requiring qualities – such as effective

 4   oral communication and the ability to assume command of

 5   situations – that are difficult to evaluate through such

 6   traditional methods.”       Id. at 90-91.   Abrams discussed these

 7   conclusions with City officials, and “[a]fter receiving

 8   [her] conclusions, the City published a request for

 9   proposals [(“RFP”)] in April 2007 for an independent

10   consultant to develop new Civil Service examinations.”          Id.

11   at 91.    Abrams “assisted the City in designing the RFP and

12   evaluating the responses received to accomplish these goals

13   and provide Buffalo with a better exam.”        Id. at 91-92.

14       The City issued the “Request for Proposals for

15   Development of Police Promotional Examinations” on April 27,

16   2007.    The RFP began by reciting the “Regulations” governing

17   the bidding.    Id. at 55-58.     Of note is that the section

18   includes a provision entitled “Method of Tendering

19   Proposals.”    Id. at 55.    That provision contains three

20   subsections.    The first establishes that “all bidders must

21   tender their proposal on the form furnished with these

22   specifications”; the second states that no entity shall


                                       5
 1   submit more than one proposal; and the third states the

 2   following:

 3       All bidders must submit with their bid a statement
 4       indicating that they will work toward a minority
 5       workforce goal of 25%, and woman workforce goal of 5%.
 6       In addition, a statement must be submitted indicating
 7       that the bidder will work toward a business utilization
 8       goal for minority business enterprise of 25% and woman
 9       business enterprise of 5%.
10
11   Id. (emphasis omitted).

12       After the Regulations section, the RFP describes in

13   detail the sort of examinations it sought.   It begins with

14   the following paragraph:

15       The City of Buffalo (the “City”) has traditionally used
16       examinations prepared by the New York State Department
17       of Civil Service for examining candidates for
18       promotional titles within the Buffalo Police and Fire
19       Departments. In 1973 and 1974, civil lawsuits were
20       brought against the City alleging discrimination in
21       entry-level hiring in the Police and Fire Departments.
22       In 1978, the Court found there was discrimination, and
23       the Court has been overseeing various remedies since
24       that time. The City remains under Court supervision
25       with respect to entry-level hiring in both departments.
26       Further, in 1998 and in 2002, civil lawsuits were
27       brought against the City in which the examination for
28       promotion to fire lieutenant was alleged to have a
29       discriminatory impact against African-American
30       candidates. Those lawsuits are still pending as of the
31       date of this Request for Proposals. Although the City
32       denies that the examinations previously used were
33       discriminatory, it has decided to cease using the
34       examinations prepared by the New York State Department
35       of Civil Service for Police Officer and Firefighter
36       promotional titles and therefore is issuing this
37       Request for Proposals for the development of its own
38       examinations.

                                  6
 1
 2   Id. at 60.     The RFP contains further provisions detailing

 3   the scope of the work – establishing, inter alia, that the

 4   proposed tests must deal with job requirements and scoring

 5   procedures.     Id. at 60-70.   It also states that “testing

 6   instruments and procedures must conform to Title VII . . . ;

 7   to this end, they must be free from non-job related factors

 8   which might function as biases against any group on the

 9   basis of race, color, religion, sex, age, national origin,

10   or any other classification protected by law.”      Id. at 61.

11       In late 2007 and early 2008, the City selected

12   Industrial/Organization Solutions, Inc. from among various

13   bidders, and the two entities collaborated in developing a

14   promotional exam consisting of both a written test and an

15   oral assessment.     After the development process was

16   complete, the City announced and administered the new exam

17   for the inspector position in two parts: the written

18   component in February 2008 and the oral component on March

19   31, 2008.     Maraschiello elected not to take the 2008 test;

20   he does not allege that he was in any way prevented from

21   doing so.

22       On March 18, 2008, Gipson issued Special Order No.

23   2008-48, which stated: “Inspector Philip Ramunno, assigned

                                      7
 1   to the B District, has been granted a service pension in the

 2   New York State Retirement System effective March 18, 2008.”

 3   Id. at 75.

 4         On April 16, 2008, after the new test was scored, the

 5   City adopted a new inspector list, and the 2006 eligibility

 6   list automatically expired.    Patrick Reichmuth, who is a

 7   white male (as was every candidate on both the 2006 and 2008

 8   lists), placed first on the 2008 list.    Reichmuth had been

 9   second on the 2006 list.    Maraschiello did not appear on the

10   2008 list, which is not surprising given his failure to take

11   the test.    On June 16, 2008, Reichmuth was appointed to fill

12   the vacancy created by Ramunno’s retirement.

13                       District Court Proceedings

14         After exhausting his administrative remedies,

15   Maraschiello filed a four-count complaint in district court

16   on March 5, 2010.    He asserted claims of unlawful

17   discrimination under Title VII, § 1983, and the Equal

18   Protection Clause of the Fourteenth Amendment.    He also

19   asserted a state-law claim for defamation based on an

20   alleged statement by Gipson, in the context of promotion

21   discussions, that Maraschiello “was a racist.”    Joint App’x

22   14.


                                     8
 1       Defendants filed a motion to dismiss the complaint

 2   pursuant to Rule 12(b)(6), asserting that Maraschiello’s

 3   claim did not involve the sort of impermissibly race-based

 4   action described in Ricci v. DeStefano, 557 U.S. 557 (2009).

 5   The district court denied the motion, noting that

 6   Maraschiello had alleged that after the adoption of the 2006

 7   exam results, the city solicited bids for new exams with the

 8   purpose of “increas[ing] minority representation on the

 9   force.”   Joint App’x 30.   The court then noted:

10       Defendants have failed to distinguish Ricci from the
11       facts of this case. Based upon plaintiff’s
12       allegations, it would appear that Ricci applies to
13       plaintiff’s discrimination claims. Plaintiff asserts
14       that the city discarded the 2006 exam results because
15       it wanted to increase minority representation on the
16       police force. Defendants do not dispute this point,
17       and, in fact, expressly acknowledge that the City had
18       endured “numerous legal challenges to the validity of
19       the civil service examinations” over the past few
20       decades and that the new exams were created “to avoid
21       further litigation with respect to those exams.” In
22       light of Ricci and plaintiff’s allegations that the
23       2006 exam results were discarded for the purpose of
24       avoiding further claims of racial discrimination,
25       defendant’s motion to dismiss plaintiff’s
26       discrimination claims is denied.
27
28   Id. at 31-32 (internal citation omitted).

29       In January 2011, after some discovery, Maraschiello

30   moved for partial summary judgment on the issue of

31   liability.   Gipson cross-moved for summary judgment



                                    9
 1   dismissing the Title VII claims against him in his

 2   individual capacity.   Magistrate Judge Foschio recommended

 3   that the district court deny Maraschiello’s motion, grant

 4   summary judgment sua sponte for all defendants on the

 5   federal claims, and decline to exercise supplemental

 6   jurisdiction over the defamation claim.

 7       Judge Foschio first found that defendants could not be

 8   held liable under Title VII based on Ricci because the case

 9   was factually distinguishable.     Maraschiello, 2011 WL

10   7395095, at *7-8.   Judge Foschio found further that the

11   other evidentiary bases for Maraschiello’s claim were

12   insufficient: Maraschiello’s contentions that the RFP

13   statement regarding a 25% minority workforce referred to the

14   police workforce rather than a bidding contractor’s

15   workforce were unavailing; Maraschiello never sat for the

16   2008 exam; and the person who was eventually promoted was,

17   like Maraschiello, a white man.     Id. at *8-10.

18       Judge Foschio went on to determine that Maraschiello

19   could not maintain a claim under § 1983 because he had no

20   cognizable property right to the inspector position and that

21   Maraschiello’s equal protection claim was moot in the

22   absence of a viable discrimination claim under the other two



                                   10
 1   statutes.     Id. at *11-12.    Finally, Judge Foschio

 2   recommended that the district court decline to exercise

 3   supplemental jurisdiction over the defamation claim because

 4   the case was at a relatively early stage and a state-court

 5   action would not be barred by the statute of limitations.

 6   Id. at *14.

 7       After Judge Foschio issued the recommendation and

 8   report on September 13, 2011, Maraschiello filed objections.

 9   On December 19, 2011, the district court held oral argument

10   on whether the recommendation and report should be adopted.

11   In order to provide additional notice to Maraschiello before

12   acting on the recommendation to grant summary judgment to

13   all defendants sua sponte, the district court permitted

14   supplemental briefing, which the parties filed in due

15   course.     On January 24, 2012, the district court held a

16   second hearing to afford the parties a further opportunity

17   to present their respective positions.       Finally, on February

18   16, 2012, the district court issued a decision adopting

19   Judge Foschio’s proposed findings and dismissing the case.

20                                  Discussion

21       Maraschiello’s brief on appeal contains no discussion

22   of the § 1983 or defamation claims and only three sentences


                                        11
 1   of unsupported argument regarding his equal protection

 2   claim.      See Appellant’s Br. at 16.   “Merely mentioning or

 3   simply stating an issue in an appellate brief is

 4   insufficient to preserve it for our review: an appellant

 5   must advance an argument, and we generally will decline to

 6   consider issues that are not sufficiently argued.”       Niagara

 7   Mohawk Power Corp. v. Hudson River-Black River Regulating

 8   Dist., 673 F.3d 84, 107 (2d Cir. 2012) (internal quotation

 9   marks and brackets omitted).      Thus, it is only necessary for

10   us to consider Maraschiello’s arguments regarding Title

11   VII.1

12           “We review an order granting summary judgment de novo,

13   drawing all factual inferences in favor of the non-moving

14   party.”      Ment Bros. Iron Works Co., Inc. v. Interstate Fire

15   & Cas. Co., 702 F.3d 118, 120-21 (2d Cir. 2012).       “[W]e

16   affirm only where we are able to conclude, after construing

17   the evidence in the light most favorable to the non-moving

18   party and drawing all reasonable inferences in its favor,

19   that ‘there is no genuine dispute as to any material fact

             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.

                                      12
 1   and the movant is entitled to judgment as a matter of law.’”

 2   Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir.

 3   2011) (quoting Fed. R. Civ. P. 56(a)).

 4                                  I.

 5       Title VII claims are generally “analyzed under the

 6   familiar burden-shifting framework of McDonnell Douglas

 7   Corp. v. Green, 411 U.S. 792 . . . (1973), and its progeny.”

 8   Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008).      At

 9   the first stage of McDonnell Douglas, a plaintiff “bears the

10   burden of establishing a prima facie case of

11   discrimination,” which includes demonstrating that “he

12   suffered an adverse employment action . . . under

13   circumstances giving rise to an inference of discriminatory

14   intent.”   Id.   “Once the prima facie case has been shown,

15   ‘the burden then must shift to the employer to articulate

16   some legitimate, nondiscriminatory reason’ for the adverse

17   employment action.”    United States v. Brennan, 650 F.3d 65,

18   93 (2d Cir. 2011) (quoting McDonnell Douglas, 411 U.S. at

19   802).

20       A plaintiff may also attempt more directly to “convince

21   the trier of fact that an impermissible criterion in fact

22   entered into the employment decision” by “focus[ing] his


                                    13
 1   proof directly at the question of discrimination and

 2   prov[ing] that an illegitimate factor had a ‘motivating’ or

 3   ‘substantial’ role in the employment decision.”     Tyler v.

 4   Bethlehem Steel Corp., 958 F.2d 1176, 1181 (2d Cir. 1992)

 5   (citation omitted).   If the employee does so, he is

 6   “entitled to succeed subject only to the employer’s

 7   opportunity to prove its affirmative defense, that is, that

 8   it would have reached the same decision as to [the

 9   employee’s employment] even in the absence of the

10   impermissible factor.”   Id.   (internal quotation marks and

11   citations omitted).

12       Maraschiello’s central contention is that Ricci

13   establishes that defendants’ actions violated Title VII.

14   Repeated references in his brief to a “Ricci theory” or

15   “Ricci analysis” suggest that he is arguing that the case

16   established a new framework for Title VII litigation.    It

17   did not.   As we have explained, “Ricci does not impose a new

18   . . . summary-judgment burden-shifting framework, but

19   instead constitutes . . . a straightforward application of

20   the first two steps of McDonnell Douglas.”    Brennan, 650

21   F.3d at 93-94.   Because Ricci involved a factual scenario

22



                                    14
 1   somewhat similar to Maraschiello’s, however, it is worth

 2   discussing that case in some detail.

 3         In Ricci, a group of New Haven firefighters had taken

 4   examinations necessary to qualify for promotions.    557 U.S.

 5   at 562.   “When the examination results showed that white

 6   candidates had outperformed minority candidates,” New Haven

 7   agreed with other firefighters who “argued [that] the tests

 8   should be discarded [prior to certification of the results]

 9   because the results showed the tests to be discriminatory.”

10   Id.   New Haven “threw out the examinations” based on the

11   racial disparity reflected in the results.   Id.    The

12   plaintiff firefighters alleged that discarding the results

13   discriminated against them based on their race, in violation

14   of Title VII’s prohibition of disparate treatment.    New

15   Haven countered that “if they had certified the results,

16   they could have faced liability under Title VII for adopting

17   a practice that had a disparate impact on the minority

18   firefighters.”   Id. at 563.

19         The Supreme Court’s analysis began with the premise

20   that, absent a valid defense, New Haven’s actions would

21   violate the disparate-treatment prohibition because “[a]ll

22   the evidence demonstrate[d] that [New Haven] chose not to



                                    15
 1   certify the examination results because of the statistical

 2   disparity based on race – i.e., . . . because too many

 3   whites and not enough minorities would be promoted were the

 4   lists to be certified.”     Id. at 579 (internal citation and

 5   quotation marks omitted).    “Whatever [New Haven’s] ultimate

 6   aim – however well intentioned or benevolent it might have

 7   seemed – [New Haven] made its employment decision because of

 8   race [and] rejected the test results solely because the

 9   higher scoring candidates were white.”     Id. at 579-80.

10   “[T]he original, foundational prohibition of Title VII bars

11   employers from taking adverse action ‘because of . . .

12   race.’” Id. at 581 (quoting 42 U.S.C. § 2000e-2(a)(1)).

13   This prohibition was violated when “the firefighters saw

14   their efforts invalidated by [New Haven] in sole reliance

15   upon race-based statistics.”     Id. at 584.

16         “In other words, because [New Haven’s] decision to

17   reject the test results was explicitly based on a

18   statistical racial disparity, it was beyond dispute that the

19   plaintiffs had made out a prima facie case, so the burden

20   shifted to the defendants to give a legitimate justification

21   for the adverse employment action.”     Brennan, 650 F.3d at

22   93.   The Court thus turned to the question of “whether the


                                     16
 1   purpose to avoid disparate-impact liability excuses what

 2   otherwise would be prohibited disparate-treatment

 3   discrimination.”   Ricci, 557 U.S. at 580.    It rejected the

 4   plaintiffs’ contention that an employer could never take

 5   race-based adverse employment actions in order to avoid

 6   disparate-impact liability, finding that so “broad and

 7   inflexible [a] formulation” would impermissibly nullify

 8   Congressional intent to stamp out racially disparate impact

 9   along with disparate treatment.    Id.   On the other hand, the

10   Court also rejected New Haven’s argument that city officials

11   could “violate the disparate-treatment prohibition based on

12   a mere good-faith fear of disparate-impact liability”

13   because that “would encourage race-based action at the

14   slightest hint of disparate impact,” and “Title VII is

15   express in disclaiming any interpretation of its

16   requirements as calling for outright racial balancing.”       Id.

17   at 581-82.

18       The Court concluded that it was appropriate to

19   “constrain[] employers’ discretion in making race-based

20   decisions . . . to cases in which there is a strong basis in

21   evidence of disparate-impact liability,” although this does

22   not require a “provable, actual violation.”     Id. at 583.


                                   17
 1   Thus, an employer may not discard a test “to achieve a more

 2   desirable racial distribution of promotion-eligible

 3   candidates – absent a strong basis in evidence that the test

 4   was deficient and that discarding the results is necessary

 5   to avoid violating the disparate-impact provision.”          Id. at

 6   584.    The Court held that the scoring disparity on the New

 7   Haven test results could not provide that basis absent

 8   evidence either that “the examinations were not job related

 9   and consistent with business necessity” or that “there

10   existed an equally valid, less-discriminatory alternative

11   that served [New Haven’s] needs but that [New Haven] refused

12   to adopt.”     Id. at 587.     “Fear of litigation alone cannot

13   justify an employer’s reliance on race to the detriment of

14   individuals who passed the examinations and qualified for

15   promotions.”     Id. at 592.

16          To subject the defendants to Title VII liability,

17   Maraschiello must either provide direct evidence of

18   discrimination or establish, as part of a prima facie case

19   under McDonnell Douglas, that he experienced an adverse

20   employment action “under circumstances giving rise to an

21   inference of discrimination.”        Brennan, 650 F.3d at 93

22   (internal quotations omitted).          If he does so, the burden


                                        18
 1   shifts to the City to justify its conduct, perhaps by

 2   establishing a strong basis in evidence that it would

 3   otherwise have been subject to a disparate-impact claim.

 4   Because we find that Maraschiello has failed to provide

 5   evidence from which a reasonable jury could conclude that he

 6   suffered a discriminatory action under either framework, we

 7   need not consider the justification issue.

 8       Maraschiello’s argument regarding the adverse

 9   employment action he suffered was stated most clearly by his

10   counsel at oral argument before the district court after

11   Judge Foschio issued the Report and Recommendation:

12       When the vacancy came into existence, they chose not to
13       select him. They chose to use the new test which is
14       designed for a racial reason, and unless they can show
15       the necessary justifications then that’s a facially
16       racial decision. . . .
17
18       The Supreme Court starts with that premise that if you
19       determine to change your test for fear of race –
20       disparate impact, racial disparate impact, if you make
21       that decision it’s a race-conscious decision. And if
22       you then harm someone by it that’s the discrimination.
23       . . . They picked the race test versus the test that
24       could have promoted him. If they had picked the 2006
25       test he would not have a Ricci claim at all. He
26       absolutely wouldn’t.
27
28   Joint App’x 279-81.   Maraschiello’s claim thus appears to

29   center on the 30-day period between Inspector Ramunno’s

30   retirement (on March 18, 2008) and the adoption of the 2008



                                   19
 1   eligibility list (on April 16, 2008).     Construed most

 2   generously, his argument is that, immediately upon Ramunno’s

 3   retirement, the City should have made its promotion decision

 4   from the 2006 list that included Maraschiello but that the

 5   City instead chose to delay the appointment decision for a

 6   month in order to use the results of the new test, which was

 7   adopted “for a racial reason.”     Thus, according to

 8   Maraschiello, he was denied his shot at the promotion in the

 9   same way and for the same reasons as the firefighters in

10   Ricci.

11       This argument cannot succeed.     In Ricci, the defendants

12   threw out the results of a test based on the racial

13   disparity reflected in those particular results, denying the

14   firefighters who had taken it any chance of a promotion.        In

15   this case, Maraschiello’s results were certified, and he was

16   eligible for a promotion for over a year.     More important,

17   however, is the manner in which Maraschiello’s eligibility

18   expired.   Unlike in Ricci, where the results of a specific

19   test were simply discarded based on the racial statistics

20   reflected in the results, here the City replaced the 2006

21   list with the 2008 list after spending more than a year




                                   20
 1   preparing to revise its assessment methods.2   Its problem

 2   was with the test itself, rather than with a particular set

 3   of results.   The City administered the first phase of the

 4   2008 test in February, which was before the inspector

 5   position Maraschiello desired became vacant.   Maraschiello

 6   chose not to take this test even before he knew that a

 7   position would be open.   In short, the City was already in

 8   the process of preparing to replace the eligibility list – a

 9   process in which Maraschiello chose not to participate.

10   This process, even though it eventually resulted in the

11   automatic invalidation of the 2006 list, was not a rejection

12   of that list for its own sake.

13       We do not read Ricci as confined to situations

14   involving the discarding of civil service test results based

15   on the disparity those results reflect.   Rather, the case

16   establishes more generally that “before an employer can

17   engage in intentional discrimination for the asserted

18   purpose of avoiding or remedying an unintentional disparate

19   impact, the employer must have a strong basis in evidence to

         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
 1   believe it will be subject to disparate-impact liability if

 2   it fails to take the race-conscious, discriminatory action.”

 3   Ricci, 557 U.S. at 585; see Briscoe v. City of New Haven,

 4   654 F.3d 200, 206-07 (2d Cir. 2011).    In other words, it

 5   articulates the contours of a specific affirmative defense

 6   to claims of unlawful disparate treatment based on race – it

 7   does not expressly limit what may constitute disparate

 8   treatment.

 9       Nonetheless, Maraschiello’s arguments are unavailing.

10   Even if it were determined that the City’s choice to adopt a

11   new test was motivated in part by its desire to achieve more

12   racially balanced results – and there is evidence in the

13   record that at least suggests this – Maraschiello cannot

14   demonstrate that the generalized overhaul of departmental

15   promotional requirements amounted to the sort of race-based

16   adverse action discussed in Ricci.     Indeed, Ricci

17   specifically permits an employer to “consider[], before

18   administering a test or practice, how to design that test or

19   practice in order to provide a fair opportunity for all

20   individuals, regardless of race.”    557 U.S. at 585.

21

22



                                  22
 1          Although Abrams’ statements regarding the reasons for

 2   this replacement are unnecessary for our conclusion, they

 3   lend it strong support.    The statements indicate that the

 4   City chose to update its testing requirements, and

 5   subsequently its eligibility list, for reasons that had much

 6   more to do with an advanced understanding of job

 7   qualifications than with racial statistics.    Maraschiello

 8   has not attempted to dispute this evidence.    Completing the

 9   last phase of a long-planned adoption of a new standard is a

10   far cry from rejecting a set of results out of hand because

11   of their racial makeup.    Updating an examination, a process

12   specifically permitted by statute, does not “create[ ] a

13   materially significant disadvantage with respect to the

14   terms of . . . employment.”    See Williams v. R.H. Donnelley

15   Corp., 368 F.3d 123, 128 (2d Cir. 2004) (internal quotation

16   marks omitted).

17          Maraschiello’s only other suggestion that the exam

18   update was discriminatory comes from the 25% language in the

19   RFP.    This language does not support his claim.   The City

20   submitted evidence, in the form of an affidavit by the

21   Director of Civil Services in the City’s Human Resources

22   department, that the 25% language is mandated by the city


                                    23
 1   code whenever the City solicits bids for work.    Joint App’x

 2   79.   The affidavit included the relevant section of the

 3   code, § 96-13F, which states:

 4         The advertisement inviting bids for the doing of a work
 5         or improvement or for the furnishings of materials,
 6         supplies, or equipment shall among other things state
 7         that the bidder must submit prior to the awarding of a
 8         contract, a statement indicating that the bidder will
 9         work toward a minority workforce goal of 25%, and women
10         workforce goal of 5%. In addition, a statement must be
11         submitted prior to the awarding of a contract
12         indicating that the bidder will work toward a business
13         utilization goal for minority business enterprise of
14         25% and women business enterprise of 5%. These goals
15         shall be utilized for all purchasing, professional
16         services and construction contracts. In addition, all
17         departments and City of Buffalo agencies must include
18         in all bid specifications the minority workforce and
19         business utilization goals as stated in this section.

20   Joint App’x 83.   Although portions of this language

21   considered in isolation might theoretically allow for

22   multiple interpretations regarding which workforce a bidder

23   must work to affect, the context makes crystal clear that it

24   refers to the bidder’s workforce rather than the City’s.

25   The language refers to all bids, including those to furnish

26   materials or improve physical facilities – jobs which have

27   no effect on city employment.    The requirement that this

28   language be included in all bid advertisements – not just

29   those, like the promotion-examination advertisement, that

30


                                     24
 1   might end up having an effect on the City’s workforce –

 2   belies Maraschiello’s contentions.

 3         Maraschiello has provided neither direct evidence of

 4   discrimination nor evidence from which a reasonable jury

 5   could infer that discrimination occurred during the City’s

 6   process of updating and administering its promotion exam.

 7   His Title VII claim thus cannot succeed to the extent that

 8   it concerns this process.

 9         Maraschiello’s only remaining evidence is Gipson’s

10   supposed comment that Maraschiello was a “racist.”     This

11   alleged remark similarly cannot support a claim that the

12   failure to promote him was on the basis of his race, despite

13   Maraschiello’s conclusory and unsupported argument that it

14   “constitutes a clearly race-based bias.”   Appellant’s Br. at

15   15.   As defendants point out, the person eventually

16   appointed instead of Maraschiello was also a white man.

17   Even if this was not the case, a statement that someone is a

18   “racist,” while potentially indicating unfair dislike, does

19   not indicate that the object of the statement is being

20   rejected because of his race.    See Holcomb v. Iona College,

21   521 F.3d 130, 139 (2d Cir. 2008) (noting that Title VII will

22   support a claim by an “employee [who] suffers discrimination



                                     25
 1   because of the employee’s own race” (emphasis in original)).

 2   “Racism” is not a race, and discrimination on the basis of

 3   alleged racism is not the same as discrimination on the

 4   basis of race.

 5       Maraschiello provides no other evidence of unlawful

 6   discrimination, and his Title VII claim therefore fails in

 7   its entirety.

 8                               II.

 9       Finally, Maraschiello argues that the district court’s

10   denial of defendants’ motion to dismiss created binding law

11   of the case regarding the viability of his Title VII claim

12   and that the district court inappropriately granted summary

13   judgment sua sponte.   Neither of these claims can succeed.

14       The doctrine of law of the case is “discretionary and

15   does not limit a court’s power to reconsider its own

16   decisions prior to final judgment.”     Virgin Atl. Airways,

17   Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.

18   1992).   And in any event, the doctrine would not preclude a

19   district court from granting summary judgment based on

20   evidence after denying a motion to dismiss based only on the

21   plaintiff’s allegations.   See id.    The district court’s

22   decision on the motion to dismiss depended on Maraschiello’s


                                   26
 1   allegation that “the city discarded the 2006 exam results

 2   because it wanted to increase minority representation on the

 3   police force.”   Joint App’x 31.   The evidence reflects that

 4   the situation was a good deal more complicated.    It was not

 5   error for the court to revisit a conclusion based on factual

 6   allegations taken as true at the motion to dismiss stage,

 7   and determine, based on undisputed evidence at the summary

 8   judgment stage, that no reasonable jury could find that the

 9   type of action discussed in Ricci occurred.    See Brown v.

10   City of Syracuse, 673 F.3d 141, 148 (2d Cir. 2012).

11       As explained in his brief, Maraschiello’s second

12   argument amounts to a contention that the district court

13   failed to view the evidence in his favor, rather than a

14   claim that he was denied procedural protections.    See

15   Appellant’s Br. at 12-15.   He does not dispute that after

16   Judge Foschio recommended sua sponte summary judgment, he

17   was afforded the opportunity to file objections, engage in

18   oral argument, file additional briefing, and engage in

19   additional argument.   This constituted adequate procedural

20   protection.   See Fed. R. Civ. P. 56(f)(3) (governing the

21   granting of summary judgment sua sponte); Priestley v.

22   Headminder, Inc., 647 F.3d 497, 504 (2d Cir. 2011).       The


                                   27
1   District Court fully complied with the mandates of Rule

2   56(f) and did not err in granting summary judgment sua

3   sponte.

4                            Conclusion

5       We have examined all of Maraschiello’s arguments on

6   appeal and find them to be without merit.   For the foregoing

7   reasons, the judgment of the district court granting summary

8   judgment for defendants is AFFIRMED.




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