In Cohen v. Arnot Health, Inc. et al, 2025 WL 1197854 (2d Cir. April 25, 2025), the U.S. Court of Appeals for the Second Circuit affirmed the lower court’s award of summary judgment on plaintiff’s age discrimination claim asserted under the Age Discrimination in Employment Act (ADEA) and the New York State Human Rights Law (NYSHRL).
From the decision:
Discrimination claims under the ADEA and NYSHRL are analyzed under the three-step burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Carr v. New York City Transit Auth., 76 F.4th 172, 177 (2d Cir. 2023) (ADEA); Walsh v. N.Y.C. Hous. Auth., 828 F.3d 70, 74–75 (2d Cir. 2016) (NYSHRL). Under the framework, a plaintiff must first establish a prima facie case of age discrimination by showing: “(1) that [he] was within the protected age group, (2) that [he] was qualified for the position, (3) that [he] experienced adverse employment action, and (4) that the action occurred under circumstances giving rise to an inference of discrimination.” Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 129 (2d Cir. 2012). “[O]nce a plaintiff has established a prima facie case of discrimination, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employer’s action against the employee. If the employer does so, then the burden shifts back to the employee to show that the employer’s articulated reason is pretext for discrimination.” Truitt v. Salisbury Bank & Tr. Co., 52 F.4th 80, 86–87 (2d Cir. 2022).
We agree with the district court that Cohen has failed to establish a prima facie case of age discrimination because he did not show he experienced an adverse employment action. Cohen argues that he suffered an adverse employment action despite voluntarily withdrawing his job application because Callanan’s remark about his age “tainted the employment process” and Arnot Health “was merely going through the motions” of the hiring process “in order to appear nondiscriminatory” following her remark. Appellant Br. at 9. He argues that, under those circumstances, “it was futile” to proceed with the interview process and he therefore withdrew his application. Id. This Circuit has recognized, in an analogous type of situation, that “a plaintiff’s failure to apply for a position is not a bar to relief when an employer’s discriminatory practices deter application or make application a futile endeavor.” Malarkey v. Texaco, Inc., 983 F.2d 1204, 1213 (2d Cir. 1993). Here, however, Cohen’s assertion of futility is contradicted by his own testimony. Cohen testified at his deposition that he believed it was “highly likely” he would have been hired had he proceeded with the offered interview; that statement directly contradicts his claim that the hiring process was a sham. App’x at 365. Cohen “cannot argue that he would have been hired but for his withdrawal, yet also argue that he withdrew because he was certain he would not be hired.” Keshinover v. New York State Off. of Parks, Recreation and Historic Preservation, 17-cv-4349, 2019 WL 5212235, at *10 (S.D.N.Y. Oct. 15, 2019).
Moreover, Cohen has offered no evidence that Arnot Health’s actions made the interview process a futile endeavor. Cohen argues that Callanan’s statement “tainted the employment process,” but it is undisputed that Callanan was removed from the team working on his application and had no further role in the hiring process related to him.
Cohen fails to show that there was any reason to believe that the individuals involved in his interview process shared Callanan’s alleged discriminatory intent; he has admitted that he has no knowledge or reason to believe they harbored any age-related discriminatory animus. The only remaining reason Cohen offers for why continuing with the hiring process would be futile is his perception that the interview itinerary that was proposed to him was less thorough than what he expected. This Court has recognized that “feelings and perceptions of being discriminated against are not evidence of discrimination.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 456 (2d Cir. 1999). That the interview itinerary did not meet his expectations, without anything more, is not evidence of discriminatory intent. Cohen points to other interview itineraries offered by Arnot Health to other candidates to confirm his intuition. But Arnot Health produced several itineraries that were similar to the one it offered to Cohen and that were prepared by the recruiter who was working with Cohen. Cohen does not contest that at least some candidates have been hired by Arnot Health after such an interview. Even viewing the competing evidence in the light most favorable to Cohen, he has not met his burden to demonstrate that the interview itinerary offered to him evinced discriminatory intent on behalf of Arnot Health.
Based on this, the court held that the district court properly found that plaintiff did not suffer an adverse employment action, and thus failed to establish a prima facie case of age discrimination.