Maraschiello v. City of Buffalo Police Dept., No. 12-1006 (2d Cir. 2013)
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Plaintiff, a white male employed as captain of the City of Buffalo Police Department, sued the Department and its police chief claiming that their failure to promote him was impermissibly motivated by race. Plaintiff claimed racial discrimination after the results of a civil service examination were replaced by the results of an updated version. The court declined to address the 42 U.S.C. 1983, defamation, and equal protection claims because they were insufficiently argued; the court agreed with the district court that Ricci v. DeStefano did not indicate that defendants' actions were prohibited; plaintiff provided no other evidence of unlawful discrimination and his Title VII claim failed; and plaintiff's remaining claims were without merit. Accordingly, the court affirmed the judgment.
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12-1006-cv Mark Maraschiello v. City of Buffalo Police Department 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012 (Argued: February 1, 2013 Decided: February 27, 2013) Docket No. 12-1006-cv MARK R. MARASCHIELLO, Plaintiff-Appellant, -v.CITY OF BUFFALO POLICE DEPARTMENT, H. McCARTHY GIPSON, Defendants-Appellees, Before: WALKER, CABRANES, AND WESLEY, Circuit Judges Plaintiff-Appellant Mark Maraschiello sued the City of Buffalo Police Department and its police chief for racial discrimination after the results of a civil service examination were replaced by the results of an updated version. The United States District Court for the Western District of New York (Arcara, J.) granted defendants motion for summary judgment, finding that Ricci v. DeStefano, 557 U.S. 557 (2009), did not indicate that defendants actions were prohibited. We affirm. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 RICHARD J. PERRY, JR. (Lindy Korn, on the brief), Law Office of Lindy Korn, Buffalo, NY, for Appellant. JOSHUA FEINSTEIN, Hodgson Russ LLP, Buffalo, NY, for Appellee City of Buffalo Police Department. TERRENCE M. CONNORS (James W. Grable, Jr., on the brief), Connors & Vilardo, LLP, Buffalo, NY, for Appellee H. McCarthy Gipson. WESLEY, Circuit Judge: 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. 24 two years later, however, another officer was promoted to an 25 open inspector position. 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. After Buffalo adopted the results of a new exam Maraschiello contends that this 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. 5 Dep t, No. 10-CV-00187A(F), 2011 WL 7395095 (Sept. 13, 6 2011). See Maraschiello v. City of Buffalo Police 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. 13 City of Buffalo (the City ) may promote any one of the 14 three top scorers on a given exam. 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 . . . . ). 21 exam required for the inspector position on September 16, 22 2006. In accordance with New York law, the See N.Y. Civ. Serv. Law Maraschiello took the 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. 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. 6 were no open inspector positions. 7 The parties do not dispute that the exam For most of this period, however, there 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. 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. 21 App x 88-89. 22 had not updated the job analysis in nearly thirty years and Abrams submitted an Joint Abrams concluded that the civil service agency 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. 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 Id. at 90-91. Abrams discussed these 10 consultant to develop new Civil Service examinations. 11 at 91. 12 evaluating the responses received to accomplish these goals 13 and provide Buffalo with a better exam. 14 Id. Abrams assisted the City in designing the RFP and Id. at 91-92. The City issued the Request for Proposals for 15 Development of Police Promotional Examinations on April 27, 16 2007. 17 the bidding. 18 includes a provision entitled Method of Tendering 19 Proposals. 20 subsections. 21 tender their proposal on the form furnished with these 22 specifications ; the second states that no entity shall The RFP began by reciting the Regulations governing Id. at 55-58. Id. at 55. Of note is that the section That provision contains three The first establishes that all bidders must 5 1 submit more than one proposal; and the third states the 2 following: 3 4 5 6 7 8 9 10 11 12 All bidders must submit with their bid a statement indicating that they will work toward a minority workforce goal of 25%, and woman workforce goal of 5%. In addition, a statement must be submitted indicating that the bidder will work toward a business utilization goal for minority business enterprise of 25% and woman business enterprise of 5%. Id. (emphasis omitted). After the Regulations section, the RFP describes in 13 detail the sort of examinations it sought. 14 the following paragraph: 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 It begins with The City of Buffalo (the City ) has traditionally used examinations prepared by the New York State Department of Civil Service for examining candidates for promotional titles within the Buffalo Police and Fire Departments. In 1973 and 1974, civil lawsuits were brought against the City alleging discrimination in entry-level hiring in the Police and Fire Departments. In 1978, the Court found there was discrimination, and the Court has been overseeing various remedies since that time. The City remains under Court supervision with respect to entry-level hiring in both departments. Further, in 1998 and in 2002, civil lawsuits were brought against the City in which the examination for promotion to fire lieutenant was alleged to have a discriminatory impact against African-American candidates. Those lawsuits are still pending as of the date of this Request for Proposals. Although the City denies that the examinations previously used were discriminatory, it has decided to cease using the examinations prepared by the New York State Department of Civil Service for Police Officer and Firefighter promotional titles and therefore is issuing this Request for Proposals for the development of its own examinations. 6 1 2 Id. at 60. 3 the scope of the work establishing, inter alia, that the 4 proposed tests must deal with job requirements and scoring 5 procedures. 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 11 The RFP contains further provisions detailing Id. at 60-70. It also states that testing or any other classification protected by law. Id. at 61. 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. 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. 20 he does not allege that he was in any way prevented from 21 doing so. 22 23 After the development process was Maraschiello elected not to take the 2008 test; On March 18, 2008, Gipson issued Special Order No. 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. 7 white male (as was every candidate on both the 2006 and 2008 8 lists), placed first on the 2008 list. 9 second on the 2006 list. Patrick Reichmuth, who is a Reichmuth had been Maraschiello did not appear on the 10 2008 list, which is not surprising given his failure to take 11 the test. 12 the vacancy created by Ramunno s retirement. On June 16, 2008, Reichmuth was appointed to fill 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. 17 discrimination under Title VII, § 1983, and the Equal 18 Protection Clause of the Fourteenth Amendment. 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. 22 14. He asserted claims of unlawful 8 He also Joint App x 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. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Joint App x 30. The court then noted: Defendants have failed to distinguish Ricci from the facts of this case. Based upon plaintiff s allegations, it would appear that Ricci applies to plaintiff s discrimination claims. Plaintiff asserts that the city discarded the 2006 exam results because it wanted to increase minority representation on the police force. Defendants do not dispute this point, and, in fact, expressly acknowledge that the City had endured numerous legal challenges to the validity of the civil service examinations over the past few decades and that the new exams were created to avoid further litigation with respect to those exams. In light of Ricci and plaintiff s allegations that the 2006 exam results were discarded for the purpose of avoiding further claims of racial discrimination, defendant s motion to dismiss plaintiff s discrimination claims is denied. Id. at 31-32 (internal citation omitted). 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. 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. Magistrate Judge Foschio recommended 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. 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. Judge Foschio found further that the 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. 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 Id. at *11-12. Finally, Judge Foschio 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. 16 second hearing to afford the parties a further opportunity 17 to present their respective positions. 18 16, 2012, the district court issued a decision adopting 19 Judge Foschio s proposed findings and dismissing the case. 20 21 22 On January 24, 2012, the district court held a Finally, on February Discussion Maraschiello s brief on appeal contains no discussion of the § 1983 or defamation claims and only three sentences 11 1 of unsupported argument regarding his equal protection 2 claim. 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. 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). See Appellant s Br. at 16. Merely mentioning or Niagara 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. 15 & Cas. Co., 702 F.3d 118, 120-21 (2d Cir. 2012). 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 Ment Bros. Iron Works Co., Inc. v. Interstate Fire 1 [W]e 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). 9 the first stage of McDonnell Douglas, a plaintiff bears the At 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. 15 the burden then must shift to the employer to articulate 16 some legitimate, nondiscriminatory reason for the adverse 17 employment action. 18 93 (2d Cir. 2011) (quoting McDonnell Douglas, 411 U.S. at 19 802). 20 Id. Once the prima facie case has been shown, United States v. Brennan, 650 F.3d 65, 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. 4 Bethlehem Steel Corp., 958 F.2d 1176, 1181 (2d Cir. 1992) 5 (citation omitted). 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 Tyler v. If the employee does so, he is 10 impermissible factor. 11 citations omitted). Id. (internal quotation marks and 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. 17 did not. 18 . . . summary-judgment burden-shifting framework, but 19 instead constitutes . . . a straightforward application of 20 the first two steps of McDonnell Douglas. 21 F.3d at 93-94. It As we have explained, Ricci does not impose a new Brennan, 650 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. 5 at 562. 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. 557 U.S. When the examination results showed that white 10 Id. 11 racial disparity reflected in the results. 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. 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. 19 New Haven threw out the examinations based on the Id. The New Id. at 563. 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. 5 quotation marks omitted). 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 (internal citation and Whatever [New Haven s] ultimate 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. 16 Id. at 584. 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. 22 93. Brennan, 650 F.3d at 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. 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. Ricci, 557 U.S. at 580. Id. It rejected the 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. 17 at 581-82. Id. 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. 17 Id. at 583. 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. 6 584. 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 Id. at The Court held that the scoring disparity on the New 10 existed an equally valid, less-discriminatory alternative 11 that served [New Haven s] needs but that [New Haven] refused 12 to adopt. 13 justify an employer s reliance on race to the detriment of 14 individuals who passed the examinations and qualified for 15 promotions. 16 Id. at 587. Fear of litigation alone cannot Id. at 592. 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. 22 (internal quotations omitted). Brennan, 650 F.3d at 93 18 If he does so, the burden 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 9 Maraschiello s argument regarding the adverse 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 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Joint App x 279-81. 29 center on the 30-day period between Inspector Ramunno s 30 retirement (on March 18, 2008) and the adoption of the 2008 When the vacancy came into existence, they chose not to select him. They chose to use the new test which is designed for a racial reason, and unless they can show the necessary justifications then that s a facially racial decision. . . . The Supreme Court starts with that premise that if you determine to change your test for fear of race disparate impact, racial disparate impact, if you make that decision it s a race-conscious decision. And if you then harm someone by it that s the discrimination. . . . They picked the race test versus the test that could have promoted him. If they had picked the 2006 test he would not have a Ricci claim at all. He absolutely wouldn t. Maraschiello s claim thus appears to 19 1 eligibility list (on April 16, 2008). 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. 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 11 Construed most Thus, according to Ricci. 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. 15 this case, Maraschiello s results were certified, and he was 16 eligible for a promotion for over a year. 17 however, is the manner in which Maraschiello s eligibility 18 expired. 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 More important, Unlike in Ricci, where the results of a specific 20 In 1 preparing to revise its assessment methods.2 2 was with the test itself, rather than with a particular set 3 of results. 4 2008 test in February, which was before the inspector 5 position Maraschiello desired became vacant. 6 chose not to take this test even before he knew that a 7 position would be open. 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 Its problem The City administered the first phase of the Maraschiello In short, the City was already in 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. 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 Rather, the case 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). 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 In other words, it 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. 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. 21 22 22 Indeed, Ricci 557 U.S. at 585. 1 Although Abrams statements regarding the reasons for 2 this replacement are unnecessary for our conclusion, they 3 lend it strong support. 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. 12 specifically permitted by statute, does not create[ ] a 13 materially significant disadvantage with respect to the 14 terms of . . . employment. 15 Corp., 368 F.3d 123, 128 (2d Cir. 2004) (internal quotation 16 marks omitted). The statements indicate that the Updating an examination, a process See Williams v. R.H. Donnelley 17 Maraschiello s only other suggestion that the exam 18 update was discriminatory comes from the 25% language in the 19 RFP. 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 This language does not support his claim. 23 The City 1 code whenever the City solicits bids for work. 2 79. 3 code, § 96-13F, which states: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Joint App x The affidavit included the relevant section of the The advertisement inviting bids for the doing of a work or improvement or for the furnishings of materials, supplies, or equipment shall among other things state that the bidder must submit prior to the awarding of a contract, a statement indicating that the bidder will work toward a minority workforce goal of 25%, and women workforce goal of 5%. In addition, a statement must be submitted prior to the awarding of a contract indicating that the bidder will work toward a business utilization goal for minority business enterprise of 25% and women business enterprise of 5%. These goals shall be utilized for all purchasing, professional services and construction contracts. In addition, all departments and City of Buffalo agencies must include in all bid specifications the minority workforce and business utilization goals as stated in this section. 20 Joint App x 83. 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. 28 language be included in all bid advertisements not just 29 those, like the promotion-examination advertisement, that Although portions of this language The requirement that this 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. 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. 15 15. 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. 21 521 F.3d 130, 139 (2d Cir. 2008) (noting that Title VII will 22 support a claim by an employee [who] suffers discrimination This Appellant s Br. at As defendants point out, the person eventually See Holcomb v. Iona College, 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. 14 Neither of these claims can succeed. 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. 17 Ltd. v. Nat l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 18 1992). 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. 22 decision on the motion to dismiss depended on Maraschiello s Virgin Atl. Airways, And in any event, the doctrine would not preclude a See id. 26 The district court s 1 allegation that the city discarded the 2006 exam results 2 because it wanted to increase minority representation on the 3 police force. 4 the situation was a good deal more complicated. 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. 10 11 Joint App x 31. The evidence reflects that It was not See Brown v. City of Syracuse, 673 F.3d 141, 148 (2d Cir. 2012). 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. 15 Appellant s Br. at 12-15. 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. 20 protection. 21 granting of summary judgment sua sponte); Priestley v. 22 Headminder, Inc., 647 F.3d 497, 504 (2d Cir. 2011). See He does not dispute that after This constituted adequate procedural See Fed. R. Civ. P. 56(f)(3) (governing the 27 The 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. 7 reasons, the judgment of the district court granting summary 8 judgment for defendants is AFFIRMED. 28 For the foregoing
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