Gokhberg v. PNC Bank, N.A. ( 2022 )

21-222-cv
Gokhberg v. PNC Bank, N.A.
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 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 1st day of February, two thousand twenty-two.
PRESENT: JOSÉ A. CABRANES,
GERARD E. LYNCH,
WILLIAM J. NARDINI,
Circuit Judges.
YURY GOKHBERG,
Plaintiff-Appellant, 21-222-cv
v.
PNC BANK, N.A.,
Defendant-Appellee.
FOR PLAINTIFF-APPELLANT: Yevgeny Tsyngauz, Tsyngauz &
Associates, P.C., New York, NY.
FOR DEFENDANT-APPELLEE: Robert S. Whitman, Maria Papasevastos,
Seyfarth Shaw LLP, New York, NY.
Appeal from an order and judgment of the United States District Court for the Eastern
District of New York (Dora L. Irizarry, Judge).
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UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the January 8, 2021, judgment of the District Court be and
hereby is AFFIRMED.
Yury Gokhberg alleges PNC Bank, N.A. fired him in retaliation for his complaint of
discriminatory lending practices based on marital status, and thereby violated the New York State
Human Rights Law (“NYSHRL”), N.Y. Exec. Law §§ 296(1)(e), 296-a(1)(a), and the New York City
Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-107(5)(d) & (7). Gokhberg appeals the
District Court’s entry of summary judgment for PNC. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
“We review de novo . . . a district court’s grant of summary judgment.” Centro de la
Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F.3d 104, 109 (2d Cir. 2017) (citation
omitted). “Summary judgment is proper only where ‘the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Id.(quoting Fed. R. Civ. P. 56(a)). Accordingly, we “construe the evidence in the light most favorable
to the non-moving party and draw all reasonable inferences in [his] favor.” Id. (alterations adopted)
(citation omitted).
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) (noting that the standard is the same under Title VII and
NYSHRL). 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.” Id. (citation and internal quotation marks
omitted). If it does, Gokhberg “bears the ultimate burden to show that the employer’s proffered
reason was merely a pretext for an unlawful motive.” Id. at 88–89 (citation and internal quotation
marks omitted).
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
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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. See Roge, 257 F.3d at 170 (affirming summary judgment where the
plaintiff did not offer evidence that the defendant’s justifications, “even if pretextual, served as
pretext for [unlawful] discrimination” (citation omitted)).
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.” El Sayed v.
Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010).
We evaluate Gokhberg’s NYCHRL claim “separately and independently.” Mihalik v. Credit
Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013). “NYCHRL’s retaliation provision
is broader than [NYSHRL’s]—protecting plaintiffs who oppose any practice forbidden under the
law from conduct reasonably likely to deter a person engaging in such action.” Ya-Chen Chen v. City
Univ. of N.Y., 805 F.3d 59, 76 (2d Cir. 2015) (alteration adopted) (citation and internal quotation
marks omitted). Because no reasonable jury could find that PNC fired Gokhberg in retaliation for
his complaint, “there is simply no evidence that [PNC] engaged in any conduct ‘reasonably likely to
deter a person’ from complaining about NYCHRL violations.” Id. at 76–77; see N.Y.C. Admin.
Code § 8-107(7).
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CONCLUSION
We have reviewed all of the arguments raised by Gokhberg on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the January 8, 2021, judgment of the District
Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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