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Media Alerts - Mark Maraschiello v. City of Buffalo Police Department - Second Circuit
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February 27, 2013
  Mark Maraschiello v. City of Buffalo Police Department - Second Circuit
Headline: Second Circuit Affirms Dismissal of Discrimination Lawsuit by Buffalo Police Officer, Finding No Violation of the Supreme Court's Ricci Decision

Area of Law: Employment Discrimination

Issue(s) Presented:
Whether the Buffalo Police Department violated Title VII by replacing the results of a 2006 civil service examination with the results of a 2008 examination that had been adopted, at least in part, to achieve more racially balanced results.

Brief Summary: Mark Maraschiello, a white male captain with the City of Buffalo Police Department, took a civil service exam required for promotion to inspector in 2006. He received the highest score on the exam, but no positions were available. Buffalo subsequently adopted a new police promotion exam, largely because the prior exam was outdated but also apparently in part in the hope of obtaining more racially balanced results. Maraschiello declined to take the new exam when it was offered in 2008. Once the 2008 exam was scored, the results of the 2006 exam expired. When an inspector position opened up, a different police officer - another white male, who had received the highest score on the 2008 exam - received the promotion. Maraschiello filed suit under Title VII of the Civil Rights Act, arguing that the Department had violated the Supreme Court's recent decision in Ricci v. DeStefano, 557 U.S. 557 (2009). The U.S. District Court for the Western District of New York dismissed his case on summary judgment, and the Second Circuit affirmed. "Even if it were determined that the City's choice to adopt a new test was motivated in part by its desire to achieve more racially balanced results - and there is evidence in the record that at least suggests this - Maraschiello cannot demonstrate that the generalized overhaul of departmental promotional requirements amounted to the sort of race-based adverse action discussed in Ricci," the court explained. To read the full opinion, please go to: http://www.ca2.uscourts.gov/de...744313ce89d/2/hilite/

Extended Summary: Mark Maraschiello, a white male employed as a captain in the Buffalo Police Department, placed first on a civil service exam administered in 2006 which was to be to select the individual to promote to inspector in the event that a position became available. Under New York law, the Department may promote any one of the three top scorers of the exam; however, no inspector position was available at the time. During the same period, the City of Buffalo was examining its promotion procedures, including its exam, in an effort to update its job analysis process after failing to do so in thirty years. Its request for proposals for new exams noted that Buffalo had previously been sued for using examinations with discriminatory impacts on African-American candidates.

The City ultimately developed a new promotional exam and offered it in early 2008. Maraschiello, however, decided not to take the new exam. An inspector position subsequently opened up and was given to the highest scorer - a white male - on the 2008 exam.

Maraschiello filed suit in the United States District Court for the Western District of New York, alleging that the Department had violated Title VII of the Civil Rights Act by not promoting him instead. His argument rested heavily on the Supreme Court's ruling in Ricci v. DeStefano, 557 U.S. 557 (2009). There, the New Haven Fire Department threw out the results from a promotion exam based on the statistical racial disparity of the results. Although New Haven argued that if they had certified such results, they could have faced liability under Title VII for adopting a practice with a disparate impact on minority firefighters, the Supreme Court held that in order to justify its explicitly race-based action, New Haven had to demonstrate a strong basis in evidence that the test was deficient and that discarding the results was necessary to avoid Title VII liability.

The district court dismissed Maraschiello's claim, however, and the Second Circuit affirmed. The court emphasized the differences between Ricci and this case. It explained that unlike in Ricci, where the results were discarded solely based on the racially disparate results, here Plaintiff's 2006 results remained certified and he in fact remained eligible for a promotion for over a year. It was only when the new exam was implemented - after more than a year of preparation and revisions - that the old exam results were replaced. The court also found that the reasons for the new exam "had much more to do with an advanced understanding of job qualifications than with racial statistics." The Court further reasoned that Maraschiello made his own choice not to take the updated exam.

To read the full opinion, please go to: http://www.ca2.uscourts.gov/de...744313ce89d/2/hilite/

Panel: Judges Walker, Cabranes, and Wesley.

Argument: 02/01/2013

Date of Issued Opinion: 02/27/2013

Docket Number: 12-1006-cv

Decided: Affirmed

Case Alert Author: Jesse Glickstein

Counsel: 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.

Author of Opinion: Judge Wesley

Supervisor: Professor Emily Gold Waldman

    Posted By: Emily Waldman @ 02/27/2013 03:30 PM     2nd Circuit  

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