While serving as the Commissioner of Human Resources for the City of Buffalo, Leonard A. Matarese, Director of Research & Project Development for ICMA's Center for Public Safety Management, initiated  a process after consultation with legal counsel and an outside expert in psychometrics, to let an existing promotional list in the police department expire and administer a new test prepared by an outside vendor.  The City had serious concerns about the quality of the test and those concerns were validated by an outside testing expert.  That decision lead to multiple legal challenges, including one relying on the United States Supreme Court’s Ricci v. DeStefano decision (the New Haven firefighter case).  The City, represented by the firm of Hodgson Russ LLP, (www.hodgsonruss.com) defended the case and recently the U.S. Court of Appeals Second Circuit supported the City's decision, differentiating between the City of Buffalo's situation and that of New Haven.  The attorneys for the City, Adam W. Perry and Joshua Feinstein have previously conducted an ICMA University Audio Conference on the Ricci case.  Mr. Perry and Mr. Feinstein have prepared this explanation of the case for the benefit of ICMA members.

On February 27, the U.S. Court of Appeals for the Second Circuit affirmed dismissal of the plaintiff’s claims in Maraschiello v. City of Buffalo Police Department et al., Docket No. 12-1006-cv, 2013 U.S. App. LEXIS 4057 (2d Cir., Feb. 27, 2013).  This decision is highly significant for public employers as it shows that they retain substantial discretion to revise employment selection procedures for purposes of minimizing litigation risks and enhancing diversity despite the U.S. Supreme Court’s decision in Ricci v. DeStefano, 557 U.S. 557, 129 S. Ct. 2658 (2009), which found that the City of New Haven acted illegally by discarding the results of a civil service examinations because it favored White candidates over Blacks.

In Maraschiello, the plaintiff was number one on a civil service list based on a New York State Civil Service test for police inspector.   The City was concerned about the quality of the test from which the list was generated and even consulted a testing expert about the test.  The City decided to let the existing list lapse and administered a new test created by an outside vendor.  The plaintiff decided not to take the new test, apparently as a protest to the City’s action.  The number two person on the old list (also a White male), did take the new test, scored number one, and was promoted.  Thereafter, the plaintiff sued claiming reverse race discrimination and claimed that the City took the actions that caused him not to be promoted because the police commissioner thought he was a racist. 

In forcefully rejecting the plaintiff’s contention that the City acted for race-based reasons in abandoning civil service exam results, the Second Circuit emphasized that Buffalo’s “problem was the test itself, rather than with a particular set of results,” Maraschiello at *21, and “Maraschiello cannot demonstrate that the generalized overhaul of departmental promotional requirements amounted to the sort of race-based adverse action discussed in Ricci.”  Id. at 23.

The Second Circuit’s decision has broad significance for public employers nationally as it makes clear that they retain substantial discretion even after Ricci to design and implement new employment procedures for purposes of complying with Title VII and other anti-discrimination laws, despite claims by majority plaintiffs that such compliance efforts constitute reverse discrimination.  While an employer may generally not “reject[] a set of results out of hand because of their racial makeup,” the Second Circuit emphasized that “Ricci specifically permits an employer to ‘consider[], before administering a test or practice, how to design that test or practice in order to provide a fair opportunity to all individuals, regardless of race.” Id. at 23 (quoting Ricci, 557 U.S. at 585).

The case points strongly to a best practice of consulting an organization like the ICMA before making such personnel procedure changes in order to have independent backup of initial concerns over the veracity of existing personnel procedures before making changes likely to motivate suits like the one filed in this case.