Shaikh v. National Bank of Pakistan

S
     20-2341-cv
     Shaikh v. National Bank of Pakistan

                               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.

 1         At a stated term of the United States Court of Appeals for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
 3   City of New York, on the 3rd day of March, two thousand twenty-one.
 4
 5          PRESENT: BARRINGTON D. PARKER,
 6                           RAYMOND J. LOHIER, JR.,
 7                           STEVEN J. MENASHI,
 8                                   Circuit Judges.
 9          ------------------------------------------------------------------
10          ZUBAIR SHAIKH,
11
12                  Plaintiff-Appellant,
13
14                    v.                                                         No. 20-2341-cv
15
16          NATIONAL BANK OF PAKISTAN,
17
18                  Defendant-Appellee.
19          ------------------------------------------------------------------
 1
 2         FOR PLAINTIFF-APPELLANT:                        ZUBAIR SHAIKH, pro se, Yonkers,
 3                                                         NY
 4
 5         FOR DEFENDANT-APPELLEE:                         HARRIS MICHAEL MUFSON,
 6                                                         (Melissa A. Overbeck, on the
 7                                                         brief), Proskauer Rose LLP,
 8                                                         New York, NY

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

10   Southern District of New York (Edgardo Ramos, Judge).

11         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

12   AND DECREED that the judgment of the District Court is AFFIRMED.

13         Zubair Shaikh, proceeding pro se, appeals from the June 24, 2020 judgment

14   of the United States District Court for the Southern District of New York (Ramos,

15   J.) granting summary judgment in favor of his former employer, the National

16   Bank of Pakistan (NBP). Shaikh claimed that NBP retaliated against him in

17   violation of the whistleblower provision of the Bank Secrecy Act (BSA), 31 U.S.C.

18   § 5328(a). 1 We assume the parties’ familiarity with the underlying facts and


     1 On January 1, 2021, Congress enacted the Anti-Money Laundering Act of 2020 (the
     “Act”) which, among other things, amended the BSA’s whistleblower provision to
     repeal Section 5328(a), making the new relevant section 31 U.S.C. § 5323(g), and to
     broaden the scope of protected activity to include a whistleblower’s complaints to his or


                                                 2
 1   prior proceedings, to which we refer only as necessary to explain our decision to

 2   affirm.

 3         We review the District Court’s grant of summary judgment de novo,

 4   construing the evidence presented by each side in the light most favorable to

5    Shaikh, the non-moving party, and drawing all reasonable inferences in his

 6   favor. See Sotomayor v. City of New York, 

713 F.3d 163

, 164 (2d Cir. 2013).

 7   Summary judgment is appropriate if “there is no genuine dispute as to any

 8   material fact” and the moving party “is entitled to judgment as a matter of law.”

 9

Id. (quoting Fed. R.

Civ. P. 56(a)). “Where, as here, the burden of persuasion at

10   trial would be on the non-moving party . . . the party moving for summary

11   judgment may satisfy his burden of production under Rule 56 in either of two

12   ways: (1) by submitting evidence that negates an essential element of the non-

13   moving party’s claim, or (2) by demonstrating that the non-moving party’s

14   evidence is insufficient to establish an essential element of the non-moving




     her employer. See Pub. L. No. 116-283, §§ 6001–6511. We assume without deciding
     that the Act is not retroactively applicable to Shaikh’s claim — Shaikh does not argue
     that it is — and, for ease of reference, refer to the whistleblower provision as Section
     5328(a), which governed when Shaikh filed suit.

                                                 3
 1   party’s claim.” Nick’s Garage, Inc. v. Progressive Cas. Ins. Co., 

875 F.3d 107

, 114

2    (2d Cir. 2017) (citation omitted). Summary judgment may be granted where the

3    non-movant fails to rebut the movant’s showing that it is entitled to judgment as

4    a matter of law.

 5         With respect to the substantive law at issue in this case, we have not

6    resolved the scope of the BSA’s whistleblower provision. But the plain text of

7    Section 5328(a), with which we must begin, compels us to affirm the District

 8   Court’s decision. See Conn. Nat’l Bank v. Germain, 

503 U.S. 249

, 254 (1992);

 9   United States v. Gayle, 

342 F.3d 89

, 92 (2d Cir. 2003). Section 5328(a) provided:

10         No financial institution . . . may discharge or otherwise discriminate
11         against any employee with respect to compensation, terms,
12         conditions, or privileges of employment because the
13         employee . . . provided information to the Secretary of the Treasury,
14         the Attorney General, or any Federal supervisory agency regarding a
15         possible violation of any provision of this subchapter . . . or any
16         regulation under any such provision, by the financial institution . . .
17         or any director, officer, or employee of the financial institution[.]
18
19   31 U.S.C. § 5328(a). To prevail on a whistleblower claim under Section 5328(a),

20   Shaikh was required to show that (1) he was an employee of a financial

21   institution; (2) he provided information regarding a possible violation of

22   specified laws and regulations by the financial institution, its directors, officers,

                                                4
 1   or employees to the Treasury Secretary, Attorney General, or “any Federal

 2   supervisory agency”; (3) the financial institution discharged him or otherwise

 3   discriminated against him in a manner described by the statute; and (4) his

 4   report caused the financial institution to discharge him or otherwise discriminate

 5   against him. See

id. 6

        We need not decide precisely what framework applies to analyzing claims

 7   of retaliation under the BSA at the summary judgment stage. Any claim of

 8   retaliation would require that Shaikh at a minimum establish, through non-

 9   speculative, admissible evidence, that NBP knew of his protected activity before

10   terminating him or that there was some causal link between the activity and his

11   termination. 2

12         With that in mind, for substantially the reasons stated by the District Court

13   in its June 22, 2020 opinion and order granting summary judgment, we conclude

14   that Shaikh failed to proffer admissible evidence from which a rational jury

15   could determine that NBP terminated Shaikh in retaliation for engaging in




     2 Shaikh does not allege that NBP took any retaliatory actions against him for his
     protected activity aside from terminating him.

                                                5
 1   protected activity under the BSA. The unrebutted evidence shows that NBP

 2   was unaware of Shaikh’s communication with the Office of Foreign Assets

 3   Control (OFAC) at the time NBP terminated him. In response, Shaikh

 4   speculates, without evidence, that an employee at NBP was monitoring his

 5   emails. But even a pro se litigant’s submissions must consist of admissible

 6   evidence, not “unsubstantiated speculation.” Fujitsu Ltd. v. Fed. Express Corp.,

 7   

247 F.3d 423

, 428 (2d Cir. 2001). Moreover, NBP proffered unrebutted evidence

 8   that it had other, non-retaliatory reasons for terminating Shaikh.

 9         We have considered Shaikh’s remaining arguments and conclude that they

10   are without merit. For the foregoing reasons, the judgment of the District Court

11   is AFFIRMED.

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




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