Retaliatory Termination Claim Dismissal Affirmed; Termination Was Based on Misconduct, Not Marital Status Lending Practices Discrimination

In Gokhberg v. PNC Bank, N.A., 21-222-cv (2d Cir. Feb. 1, 2022) (Summary Order), the U.S. Court of Appeals for the Second Circuit affirmed the lower court’s dismissal, on summary judgment, of plaintiff’s allegations the defendant terminated him in retaliation for his complaint of discriminatory lending practices based on marital status in violation of the New York State Human Rights Law (N.Y. Exec. Law §§ 296(1)(e), 296-a(1)(a)) and the New York City Human Rights Law (N.Y.C. Admin. Code § 8-107(5)(d) & (7)).

The court summarized the well-established law governing plaintiff’s retaliation claim under the state law:

We evaluate Gokhberg’s NYSHRL retaliation claim under the familiar burden-shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Summa v. Hofstra Univ., 708 F.3d 115, 125 (2d Cir. 2013). Under this framework, Gokhberg must establish a prima facie case of retaliation. See Bentley v. AutoZoners, LLC, 935 F.3d 76, 88 (2d Cir. 2019). If he does, PNC must articulate some legitimate, nondiscriminatory reason for its action. If it does, Gokhberg bears the ultimate burden to show that the employer’s proffered reason was merely a pretext for an unlawful motive. [Cleaned up.]

Applying the law, the court explained that, in sum, defendant fired plaintiff not because of his complaints of discrimination, but rather accusations of misconduct.

The court elaborated:

PNC does not challenge the District Court’s holding that Gokhberg established a prima facie case of retaliation. Instead, it claims that it fired Gokhberg due to two instances of misconduct. First, Gokhberg submitted loan applications on behalf of his married clients for two separate primary residence loans, knowing that they planned to combine the two properties, but omitting that information from their applications. PNC proffered evidence that combining properties would raise concerns regarding the value of the collateral securing the loans, and, accordingly, that Gokhberg’s omission violated its Code of Business Conduct and Ethics (“COBE”), which bars misleading entries or reports. Second, Gokhberg forwarded internal emails discussing client information and PNC’s decision-making to his clients’ attorney. PNC proffered evidence that this violated the COBE requirement to safeguard confidential information. PNC further proffered evidence that Gokhberg’s action was inconsistent with the request of his supervisor, though Gokhberg maintains that he did not see this request prior to forwarding the emails. These reasons meet PNC’s burden of  production. See Roge v. NYP Holdings, Inc., 257 F.3d 164, 169 (2d Cir. 2001) (holding that an employer may legally fire “an employee who the employer in good faith believes recently engaged in fraud relating to the employment”).

Gokhberg has not adduced evidence from which a reasonable jury could conclude that these reasons were pretext, and that Gokhberg was fired because of his complaint about discriminatory lending practices. The affidavits attesting to the propriety of offering primary residence financing to both of his clients, notwithstanding their marriage, do not dispute the impropriety of Gokhberg withholding from PNC his clients’ plans to combine the properties. And while the affidavits attest to the propriety of loan officers obtaining transaction documents—such as the contract or title search— from borrowers’ lawyers, they do not dispute the impropriety of Gokhberg forwarding emails to persons outside the bank containing PNC’s client information and internal deliberations. Furthermore, Gokhberg has not adduced evidence that PNC’s nondiscriminatory reasons are inconsistent. Cf. Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013) (noting that inconsistencies in the employer’s rationale can support an inference of pretext). Although a reasonable jury could conclude from the PNC investigator’s handwritten notes and internal messages that he preliminarily thought that the forwarded emails did not contain proprietary information, and that Gokhberg’s acts did not merit termination, it is undisputed that the investigator ultimately concluded the opposite on both counts. And there is no evidence from which a reasonable jury could conclude that the investigator reached this conclusion because of an unlawful intent to retaliate.

Nor does any other evidence support a finding of pretext. The facts that the investigators collaborated and discussed their conclusion and celebrated Gokhberg’s firing do not support an inference of pretext or retaliation. And, without more, the timing of PNC’s investigation “is insufficient to satisfy [Gokhberg’s] burden to bring forward some evidence of pretext.”

[Cleaned up.]

The court reached the same conclusion as to plaintiff’s claim under the New York City Human Rights Law – which it evaluated, as it must, “separately and independently” – reasoning that since “no reasonable jury could find that defendant fired plaintiff in retaliation for his complaint”, there was “no evidence that defendant engaged in any conduct reasonably likely to deter a person from complaining about NYCHRL violations.” [Cleaned up.]

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