Carter v. TD Bank, N.A.

• Court: Court of Appeals for the Second Circuit
• Decided: June 4, 2024
• Docket: 23-950
• Status: Unpublished

Opinion

23-950 Carter v. TD 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 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 4th day of June, two thousand twenty-four.

PRESENT:

DENNIS JACOBS, ROBERT D. SACK, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________

STEVEN CARTER,

Plaintiff-Appellant,

v. No. 23-950

TD BANK, N.A.,

Defendant-Appellee. _____________________________________ For Plaintiff-Appellant: JAMES V. SABATINI, Sabatini and Associates, LLC, Newington, CT.

For Defendant-Appellee: MICHAEL C. SCHMIDT, Cozen O’Connor, New York, NY.

Appeal from a judgment of the United States District Court for the District

of Connecticut (Sarala V. Nagala, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the June 9, 2023 judgment of the district court

is AFFIRMED.

Steven Carter appeals from the district court’s grant of summary judgment

in favor of his former employer, TD Bank, N.A., on Carter’s claims that he was

fired from his position as a store manager due to his gender, disability, and request

for paternity leave, in violation of Title VII, the Americans with Disabilities Act

(“ADA”), and the Family Medical Leave Act (“FMLA”), respectively. Among

other things, the district court concluded that Carter failed to raise a genuine

dispute as to whether TD Bank’s stated reason for firing him – that he opened

customer accounts without authorization and possibly by forgery, as

substantiated by an internal investigation – was a pretext for discrimination. We

assume the parties’ familiarity with the facts, procedural history, and issues on

appeal.

2 We review a district court’s grant of summary judgment de novo, viewing

the evidence in the light most favorable to the non-moving party. See James v.

N.Y. Racing Ass’n, 233 F.3d 149, 152 (2d Cir. 2000). Summary judgment is

appropriate only “where there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Zann Kwan v. Andalex Grp.

LLC, 737 F.3d 834, 843 (2d Cir. 2013) (internal quotation marks omitted). A

dispute is “genuine” when the evidence on the issue “would permit a reasonable

juror to find for the party opposing the motion.” Figueroa v. Mazza, 825 F.3d 89,

98 (2d Cir. 2016).

I. Title VII Gender Discrimination

When a Title VII discrimination claim is based on circumstantial evidence,

we apply the familiar McDonnell Douglas burden-shifting framework to determine

whether the plaintiff has shown evidence sufficient to survive a defendant’s

summary judgment motion. See Bart v. Golub Corp., 96 F.4th 566, 569 (2d Cir. 2024)

(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973)). To start, the

plaintiff must “establish a prima facie case of discrimination by showing that

(1) [he] is a member of a protected class; (2) [he] is qualified for [his] position;

(3) [he] suffered an adverse employment action; and (4) the circumstances give rise

3 to an inference of discrimination.” Id. at 570 (internal quotation marks omitted).

If the plaintiff has established his prima facie case, “the burden shifts to the

employer to articulate some legitimate, nondiscriminatory reason for its adverse

action.” Id. (internal quotation marks omitted). If the employer articulates such

a reason, then the burden shifts back to the plaintiff to show at the third step either

that “the employer’s stated justification for its adverse action was nothing but a

pretext for discrimination,” or that, “even if the employer had mixed motives, the

plaintiff’s membership in a protected class was at least one motivating factor in

the employer’s adverse action.” Id. at 578. Here, the district court granted the

motion based upon Carter’s failure to meet his burden at the third step, concluding

that he had not presented evidence from which a reasonable jury could find either

that TD Bank’s stated reason for firing him was false and a pretext for gender

discrimination, or that TD Bank’s decision to fire him was attributable in part to

gender discrimination. We agree.

TD Bank’s investigation into Carter was triggered when Carter’s brother

visited a TD Bank branch in Florida and notified the staff there that several

accounts had been opened in his name without his knowledge or authorization.

The employees at the Florida branch informed Carter’s brother that the accounts

4 had been opened and funded in Connecticut just five days earlier. Carter’s

brother was adamant that the new accounts must be fraudulent because he had

been in Delaware, not Connecticut, at the time they were opened. Accordingly,

the Florida bank employees closed the new accounts and reported the suspected

fraud to TD Bank’s Northeast Regional Operations Officer, who then reported it

to Carter’s supervisor. The supervisor in turn informed TD Bank’s Human

Resources team.

An investigation followed, after which the investigator determined that “the

case is substantiated for [f]orgery for Steven Carter.” J. App’x at 206. The

investigator summarized her findings:

I did not find Steven to be credible during the interview. His statement that his brother “forgot” about the accounts that had just been opened is not plausible. . . . [H]is attempt to have his brother speak with the store employees in Florida in an attempt to gain information [about the investigation] all violates the bank’s policies. The signatures on the account opening documents appear different than the signatures on the original account documents and the new signature collected. . . . It is plausible based on [his brother]’s own statements to the store employees on 11/11 and confirming that he was not in CT that Steven forged his brother’s signature on the new account documents.

Id. at 210–11; see also Sp. App’x at 8–9. Based on these findings, the Human

Resources team “recommend[ed] termination of employment for Steven for

[f]orgery.” J. App’x at 211; see Sp. App’x at 9. Carter’s supervisor agreed, and

5 Carter’s employment was terminated on December 3, 2019, approximately three

weeks after his brother’s complaint.

On appeal, Carter takes issue with the sufficiency of TD Bank’s

investigation, arguing that the investigator failed to interview a key witness – his

brother – and was not engaged in a “fact-finding inquiry.” Carter Br. at 33. But

we are “decidedly not interested” in the adequacy of TD Bank’s investigation,

except insofar as it sheds light on “what motivated” the bank. McPherson v. N.Y.C.

Dep’t of Educ., 457 F.3d 211, 216 (2d Cir. 2006) (internal quotation marks omitted).

Carter has not presented any evidence of “bizarre or duplicitous processes” that

might suggest that the investigation was pretextual. Id. at 216 n.7. On the

contrary, the Human Resources investigator’s decision to not interview Carter’s

brother was entirely unremarkable. The investigator already had an account of

Carter’s brother’s contemporaneous statements to TD Bank employees in Florida,

in which he made clear that he had no knowledge of the accounts that were opened

in his name. Any after-the-fact statements from Carter’s brother would have

been both unnecessary and unreliable since, upon realizing that Carter was likely

responsible for the newly opened accounts, Carter’s brother indicated that he did

not want to get Carter in trouble. See J. App’x at 210.

6 Equally unavailing is Carter’s vague argument that two unidentified female

employees were treated more leniently after committing unrelated acts of

misconduct. While it is true that “[a] showing that similarly situated employees”

outside the protected group “received more favorable treatment” can be evidence

that the employer’s proffered reason is pretextual, Graham v. Long Island R.R., 230

F.3d 34, 43 (2d Cir. 2000), the plaintiff must as a threshold matter present evidence

from which a reasonable factfinder could conclude that the comparator employees

were indeed similarly situated, i.e., that they “were subject to the same workplace

standards” as the plaintiff and that “the conduct for which the employer imposed

discipline was of comparable seriousness.” Id. at 40.

Even crediting Carter’s unsupported testimony about these two

unidentified women, his argument fails because no reasonable factfinder could

conclude on this record that the two women were similarly situated to Carter.

One, according to Carter’s account, was merely negligent in failing to detect

fraudulent paperwork submitted by a customer – conduct that is categorically

different from Carter’s suspected forgery, which the investigator found to be not

only “plausible” but “substantiated.” J. App’x at 206, 210. The other woman, a

bank teller, was apparently found to have committed an act of dishonesty that,

7 according to Carter, normally results in automatic termination. But beyond these

vague assertions, Carter has pointed to no evidence from which a reasonable

factfinder could conclude that this unidentified bank teller was subject to the same

workplace standards and responsibilities as Carter, who was a store manager.

All that remains is the fact that the person hired to replace Carter was a

woman. But while that may be enough to satisfy a plaintiff’s initial burden to

establish a prima facie case of gender discrimination, see Cook v. Arrowsmith

Shelburne, Inc., 69 F.3d 1235, 1239 (2d Cir. 1995), it is clearly insufficient to

overcome an employer’s legitimate, nondiscriminatory reason for its adverse

action. Considering all of the evidence, we conclude that no reasonable factfinder

could find on this record that Carter’s termination for forgery was a pretext for

gender discrimination, or that gender discrimination was otherwise a motivating

factor in his termination. The district court therefore did not err in granting

summary judgment on Carter’s Title VII discrimination claim.

II. Title VII Retaliation After Human Resources Conversation

“Title VII prohibits employers from retaliating against any employee

because that individual has opposed any practice made unlawful by Title VII.”

Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 70 (2d Cir. 2015) (alterations and

8 internal quotation marks omitted). Like Title VII discrimination claims, Title VII

retaliation claims are analyzed under the McDonnell Douglas burden-shifting

framework, albeit with somewhat different steps. At the first step, the plaintiff

bears the “burden to establish a prima facie case of retaliation by offering evidence

that [he] participated in a protected activity, suffered an adverse employment

action, and that there was a causal connection between [his] engaging in the

protected activity and the adverse employment action.” Id. (internal quotation

marks omitted). The burden then shifts at step two to the employer to

“articulat[e] a legitimate, non-retaliatory reason for the adverse employment

action.” Id. (internal quotation marks omitted). At the third step, “the

presumption of retaliation dissipates, and the plaintiff must prove that the desire

to retaliate was [a] but-for cause of the challenged employment action.” Id.

(citation and internal quotation marks omitted); see Univ. of Tex. Sw. Med. Ctr. v.

Nassar, 570 U.S. 338, 362 (2013) (holding that plaintiff making Title VII retaliation

claim “must establish that his or her protected activity was a but-for cause of the

alleged adverse action by the employer”). “‘[B]ut-for’ causation does not require

proof that retaliation was the only cause of the employer’s action”; it requires

9 simply “that the adverse action would not have occurred in the absence of the

retaliatory motive.” Zann Kwan, 737 F.3d at 846.

Carter’s briefing does not make clear what “practice made unlawful by Title

VII” he opposed. Ya-Chen Chen, 805 F.3d at 70. The district court concluded that

it was harassment, since Carter asserted that he had complained to a Human

Resources employee about his supervisor in October 2019 – roughly three weeks

before his brother alerted TD Bank to the unauthorized accounts, and six weeks

before Carter was fired. On appeal, Carter argues that, given the short six-week

period between his conversation with Human Resources and his termination, the

district court erred in concluding that there was no genuine dispute as to whether

retaliation was a but-for cause of his termination.

Again, we are unpersuaded. Given the forgery investigation, which

Carter’s supervisor did not initiate or conduct and which resulted in TD Bank’s

Human Resources team unequivocally recommending Carter’s termination, no

reasonable factfinder could find that Carter’s termination somehow would not

have happened but for his prior complaint to Human Resources. Simply put, the

evidence Carter has adduced through discovery would not allow a reasonable

factfinder to find the required but-for causal connection between his complaint

10 and his termination, despite the modest temporal proximity between the two. See

Zann Kwan, 737 F.3d at 847 (“Temporal proximity alone is insufficient to defeat

summary judgment at the pretext stage.”).

III. ADA Discrimination Based on Anxiety

The ADA prohibits employers from discriminating against qualified

individuals on the basis of disability, see 42 U.S.C. § 12112(a), and such claims are

subject to a comparable variation on the McDonnell Douglas burden-shifting

framework, see Fox v. Costco Wholesale Corp., 918 F.3d 65, 71 (2d Cir. 2019). To

satisfy the first step and make a prima facie case of discrimination under the ADA,

a plaintiff must show that: “(1) his employer is subject to the ADA; (2) he was

disabled within the meaning of the ADA; (3) he was otherwise qualified to

perform the essential functions of his job, with or without reasonable

accommodation; and (4) he suffered adverse employment action because of his

disability.” Id. (internal quotation marks omitted). The “burden to establish an

initial prima facie case is, by design, minimal and de minimis.” Kelleher v. Fred A.

Cook, Inc., 939 F.3d 465, 468 (2d Cir. 2019) (internal quotation marks omitted). If

the plaintiff makes a prima facie case, the employer must “articulate some

legitimate, nondiscriminatory reason for the employer’s conduct.” Fox, 918 F.3d

11 at 71 (internal quotation marks omitted). If the employer does so, the burden

shifts back to the plaintiff to “demonstrate that the employer’s assigned reason

was a pretext or discriminatory in its application.” Id. (alterations and internal

quotation marks omitted). The plaintiff need not prove that discrimination was

the employer’s sole motivation, but discrimination must be a “but-for cause” of

the adverse employment action. Natofsky v. City of New York, 921 F.3d 337, 348

(2d Cir. 2019).

Carter claims that TD Bank fired him not because of the forgery

investigation but because he suffered from an anxiety disorder. As with Carter’s

Title VII retaliation claim, this claim likewise fails. Once again, the record

demonstrates that no reasonable factfinder could conclude that – notwithstanding

TD Bank’s “substantiated” concerns that Carter committed forgery and its HR

Department’s unequivocal recommendation that he be terminated – Carter would

not have been fired but for the anxiety disorder that he revealed to his employer.

Carter has not provided evidence that TD Bank was in any way motivated to

terminate him because of his disability. The district court therefore did not err in

granting summary judgment to TD Bank on Carter’s disability discrimination

claim.

12 IV. FMLA Retaliation After Paternity Leave Scheduled

FMLA retaliation claims are also subject to the McDonnell Douglas burden

shifting framework. See Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 429 (2d

Cir. 2016). At step one, a plaintiff must establish that: (1) “he exercised rights

protected under the FMLA”; (2) “he was qualified for his position”; (3) “he

suffered an adverse employment action”; and (4) “the adverse employment action

occurred under circumstances giving rise to an inference of retaliatory intent.” Id.

(quoting Donnelly v. Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134, 147 (2d Cir.

2012)). If the plaintiff makes such a prima facie case, then the burden shifts to the

employer to “demonstrate a legitimate, non-discriminatory reason for its actions.”

Id. The burden then shifts back to the plaintiff to “show that [the employer]’s

proffered explanation is pretextual.” Id. Like Title VII discrimination claims –

and unlike ADA discrimination and Title VII retaliation claims – FMLA retaliation

claims are subject to the more lenient “motivating factor” causation standard.

Woods v. START Treatment & Recovery Ctrs., Inc., 864 F.3d 158, 166 (2d Cir. 2017).

Under that standard, a plaintiff need only demonstrate that his exercise of his

FMLA rights “was a motivating factor in the defendant’s adverse employment

action.” Natofsky, 921 F.3d at 347.

13 Notwithstanding this lower standard, Carter has failed to adduce evidence

from which a reasonable factfinder could conclude that his planned (and

approved) three-week paternity leave was a motivating factor for his termination.

Approximately five months before the forgery investigation, Carter informed his

supervisor that his wife was pregnant, and his supervisor responded by saying

“ok, that’s great.” Sp. App’x at 33. While Carter testified that his supervisor’s

tone and demeanor changed “dramatically” after he informed the supervisor of

the pregnancy, id., he also testified that nobody at TD Bank said anything negative

about him taking paternity leave. He further admitted that other male employees

who reported to his supervisor were similarly granted parental leave without

incident. Given these statements and the intervening forgery investigation, we

conclude that no reasonable factfinder could find that Carter’s termination was

motivated, even in part, by a desire to retaliate against him for scheduling

company-sanctioned paternity leave. The district court therefore did not err in

granting summary judgment on Carter’s FMLA retaliation claim.

* * *

14 We have considered Carter’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court