Maraschiello v. City of Buffalo Police Department et al

Filing 9

DECISION AND ORDER denying 3 Motion to Dismiss. Signed by Hon. Richard J. Arcara on 8/19/2010. (JMB)

Maraschiello v. City of Buffalo Police Department et al

Doc. 9

UNITED STATES DISTRICT COURT W ESTERN DISTRICT OF NEW YORK

MARK R. MARASCHIELLO, Plaintiff, DECISION AND ORDER 10-CV-187A

v. CITY OF BUFFALO, POLICE DEPARTMENT and H. McCARTHY GIPSON,

Defendants.

IN T R O D U C T IO N P la in tiff, a captain with the Buffalo Police Department, commenced this a c tio n alleging that the City of Buffalo's failure to promote him to the position of In s p e c to r constituted race discrimination in violation of Title VII, 42 U.S.C. § 2000e-2(a)(1) (first claim), 42 U.S.C. § 1983 (second claim), and the Fourteenth A m e n d m e n t (third claim). Plaintiff also alleges defamation based upon a lle g a tio n s that the defendants called him a racist (fourth claim). Defendants City of Buffalo Police Department and former Police C o m m is s io n e r H. McCarthy Gipson, filed a motion to dismiss all of plaintiff's c la im s . Plaintiff filed a response and oral argument was held on August 16, 2010. For the reasons stated, the motion to dismiss is denied.

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DISCUSSION U p o n a motion to dismiss, this Court accepts all factual allegations in the c o m p la in t as true and draws all reasonable inferences in favor of the plaintiff. C h a m b e rs v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). To survive a m o tio n to dismiss, the complaint must plead sufficient facts to make out a p la u s ib le claim to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); H a rris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). Taken as true, plaintiff alleges in 2006 he took the police promotional exam fo r the position of police Inspector, and scored highest on the list. That list was a d o p te d December 13, 2006. In 2007, after the list was adopted, the City s o lic ite d bids for the purpose of creating new police promotional examinations. Plaintiff asserts that the purpose of developing new police examinations was to in c re a s e minority representation on the force. New tests were created and new e xa m s were given in February and March 2008. Plaintiff did not take the 2008 e xa m . In April 2008, a new "eligible list" was adopted for the position of In s p e c to r. Because plaintiff had not taken the 2008 exam, he was not on the 2 0 0 8 "eligible list." On June 16, 2008, Capt. Patrick Reichmuth, a white male whose test s c o re s ranked first on the 2008 eligible list, but second on the 2006 list, was

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promoted to fill the inspector vacancy that had recently been created.1 C itin g the Supreme Court's recent decision in Ricci v. DeStefano, __ U.S. _ _ _ , 129 S. Ct. 2658 (2009), plaintiff asserts that the failure to promote him based u p o n the 2006 eligible list resulted in discrimination in violation of his civil rights. In Ricci, the Supreme Court held that it was impermissible for the City of New H a ve n , Connecticut, to discard test results of a firefighters' promotional e xa m in a tio n for fear that certifying the results might subject it (the City) to a claim o f disparate impact. The Court stated that an employer "may not take the greater s te p of discarding [a] test altogether to achieve a more desirable racial d is trib u tio n of promotion­eligible candidates­absent a strong basis in evidence th a t the test was deficient and that discarding the results is necessary to avoid vio la tin g the disparate-impact provision." Absent a strong basis in evidence that it w o u ld be subject to disparate impact liability, the City's action constituted d is p a ra te treatment in violation of Title VII. 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 d is c rim in a tio n claims. Plaintiff asserts that the city discarded the 2006 exam re s u lts because it wanted to increase minority representation on the police force. Defendants do not dispute this point, and, in fact, expressly acknowledge that the

It is not clear exactly when the position became vacant. This appears to be a point of factual dispute between the parties.

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City had endured "numerous legal challenges to the validity of the civil service e xa m in a tio n s " over the past few decades and that the new exams were created "to avoid further litigation with respect to those exams." See Dkt. 3, at ¶ 18. In light of Ricci and plaintiff's allegations that the 2006 exam results were d is c a rd e d for the purpose of avoiding further claims of racial discrimination, d e fe n d a n t's motion to dismiss plaintiff's discrimination claims is denied. Plaintiff h a s adequately stated a claim for discrimination. Defendants' motion to dismiss p la in tiff's defamation claim is also denied because the allegations in plaintiffs c o m p la in t are adequate to permit that claim to go forward at this juncture.

CONCLUSION F o r the reasons stated, defendants' motion to dismiss is denied. SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE DATED: August 19, 2010

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