Ricci doesn't live here

A white male aced the civil service examination in the City of Buffalo for the position of police department captain. He ranked first on the civil service list for the position. That was in late 2006. Then the City began using a new test because the prior one was deemed invalid because it used an outdated job analysis. That new test, adopted after the City decided against using an examination that discriminated on the basis of gender, race and national origin, resulted in the appointment of someone else in 2008. Although plaintiff did not take that test, he sues the City under Title VII.

The case is Maraschiello v. City of Buffalo, decided on February 27. Plaintiff argues that the Supreme Court's decision in Ricci v. DeStefano, 557 U.S. 557 (2009), supports his claim that he was denied the position because the City threw out one test in favor of another that was intended to favor non-while male candidates. Not so, says the Court of Appeals (Wesley, Cabranes and Walker). Ricci is distinguishable, and this case is dismissed.

In Ricci, the Supreme Court said that a municipality needs a "strong basis in evidence" to believe that a civil service test will create disparate impact liability under Title VII. If that happens, the city can abandon the test results and use another examination without fear of disparate treatment liability. Ricci raised a firestorm when the Second Circuit rejected the New Haven firefighters' claim, only to have the Supreme Court reverse at a time when Sonia Sotomayor (who sat on the Ricci panel) was nominated for the Court.

This case differs from Ricci because the City did not reject plaintiff's promotion on the ground that the 2006 test had a racially disparate impact. Rather, the City replaced the 2006 list with the 2008 list "after spending more than a year preparing to revise its assessment methods. Its problem was with the test itself, rather than with a particular set of results." In other words, the generalized overhaul of of departmental promotional requirements is not the kind of race-based decisionmaking that violates Title VII, as interpreted in Ricci.