Keshinover v. New York State Office of Parks, Recreation, and Historic

19-3544
Keshinover v. New York State Office of Parks, Recreation, and Historic Pres.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 20th day of October, two thousand twenty.
PRESENT:
JON O. NEWMAN,
GUIDO CALABRESI,
SUSAN L. CARNEY,
Circuit Judges.
_________________________________________
YARDLEY KESHINOVER,
Plaintiff-Appellant,
v. No. 19-3544
NEW YORK STATE OFFICE OF PARKS, RECREATION,
AND HISTORIC PRESERVATION,
Defendant-Appellee.
_________________________________________
FOR APPELLANT: MICHAEL O’NEILL, ESQ., New York, NY.
FOR APPELLEE: AMIT R. VORA (Barbara D. Underwood,
Steven C. Wu, on the brief), for Letitia James,
Attorney General of the State of New
York, New York, NY.
Appeal from a judgment of the United States District Court for the Southern District
of New York (Seibel, J.).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment entered on October 15, 2019, is
AFFIRMED.
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
(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,
1Unless otherwise noted, in quoting case law, this Order omits all internal quotation marks, alterations,
emphases, footnotes, and citations.
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.
2Although 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.
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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.
* * *
For the foregoing reasons, the district court’s judgment is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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