KESHINOVER v. NEW YORK STATE OFFICE OF PARKS RECREATION AND HISTORIC PRESERVATION (2020)

SUMMARY ORDER

Yardley Keshinover appeals from a grant of summary judgment to the New York State Office of Parks, Recreation, and Historic Preservation (“NYS Parks”) on his claim alleging, under Title VII of the Civil Rights Act of 1964, that racial discrimination was the reason that NYS Parks did not hire him as a police officer. We assume the parties’ familiarity with the underlying facts, procedural history, and arguments on appeal, to which we refer only as necessary to explain our decision to affirm.

We review a district court's grant of summary judgment de novo, viewing all the evidence in the record in the light most favorable to Keshinover, the non-movant. McElwee v. Cty. of Orange, 700 F.3d 635, 640 (2d Cir. 2012). Title VII claims are analyzed in accordance with the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), under which: (1) the plaintiff must establish a prima facie case of discrimination; (2) if the plaintiff carries this burden, the employer must articulate a legitimate, nondiscriminatory reason for the challenged action; and (3) if the employer does so, then the plaintiff must prove that the employer's challenged action was “more likely than not based in whole or in part on discrimination.” Walsh v. New York City Hous. Auth., 828 F.3d 70, 74–75 (2d Cir. 2016).¹ A prima facie case requires, among other things, demonstration that a plaintiff “was subject to an adverse employment action.” Id. at 75.

We affirm the grant of summary judgment. Under the particular circumstances of this case, where Keshinover made the decision himself to withdraw his employment application, we conclude that no reasonable jury could find that he suffered an “adverse employment action.”

The undisputed record established that, as part of his police officer application, Keshinover was required to complete certain background check forms under penalty of perjury. In those forms, Keshinover failed to disclose, as one form required, that he had once been “questioned” by a “police agency” or “juvenile authority.” At the age of fourteen, Keshinover was questioned by police and a juvenile social worker over allegations that he and his friends struck a bystander in the eye while throwing snake berries.² The parties do not dispute that, witting or unwitting, Keshinover's failure to disclose this incident created a “discrepancy” in his background check form.

Upon discovery of the discrepancy, a NYS Parks officer e-mailed Keshinover for clarification, but Keshinover was evasive. When asked whether he had “ever had any contact with any police” as a juvenile “for any reason” even if the matter was sealed, Keshinover refused to answer. Jt. App. 401-02. Consequently, NYS Parks determined that agency guidelines required it to report the discrepancy. At a meeting, the officer accurately explained to Keshinover that if Keshinover remained in the application process, NYS Parks would have to produce the report, which would be available to other law enforcement agencies should Keshinover seek employment with them. But if Keshinover withdrew, no report would be produced. The officer further advised that generally applicants with a discrepancy had lower chances of being hired than similar applicants without such a discrepancy. After being allowed time to consider his choice and consult with his father, Keshinover executed a “declination” form and withdrew. He then brought suit.

For substantially the same reasons as are stated by the district court, we agree that under these circumstances Keshinover suffered no adverse employment action actionable under Title VII. See Keshinover v. New York State Office of Parks, Recreation & Historic Pres., No. 17-CV-4349, 2019 WL 5212235, at *8-*11 (S.D.N.Y. Oct. 15, 2019). NYS Parks gave Keshinover the option of whether to proceed in the application process by accurately laying out the likely consequences. Rather than subjecting Keshinover to any particular action, NYS Parks allowed Keshinover to consider what to do and then to inform NYS Parks of his decision. To the extent Keshinover argues that he had no choice but to withdraw because a racially discriminatory practice rendered his application futile, we agree with the district court that the summary judgment record fails as a matter of law to support this theory.

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For the foregoing reasons, the district court's judgment is AFFIRMED.

FOOTNOTES

1.   Unless otherwise noted, in quoting case law, this Order omits all internal quotation marks, alterations, emphases, footnotes, and citations.

2.   Although Keshinover recalled that he was questioned by police and a social worker when he completed the forms, he disputes having known about an appearance ticket issued to him for the snake berry incident. In any case, the parties agree that Keshinover's background check form contained the discrepancy.