08-3966-cv
Kalra v. HSBC
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 Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 12th day of January, two thousand ten.
PRESENT:
ROBERT D. SACK,
ROBERT A. KATZMANN,
Circuit Judges,
DENNY CHIN,*
District Judge.
__________________________________________
Jag M. Kalra,
Plaintiff-Appellant,
v. 08-3966-cv
HSBC Bank U.S.A., N.A., formerly known as
Republic National Bank of New York,
Defendant-Appellee.
__________________________________________
*
Hon. Denny Chin, of the United States District Court for
the Southern District of New York, sitting by designation.
FOR APPELLANT: Jag M. Kalra, pro se, Levittown, NY.
FOR APPELLEE: Meredith L. Friedman, HSBC Bank USA, National
Association, Office of the General Counsel,
New York, NY.
Appeal from a judgment of the United States District Court
for the Eastern District of New York (Bianco, J.).
UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court be AFFIRMED.
Appellant Jag M. Kalra, pro se, appeals from a judgment of
the district court granting the Defendant’s motion for summary
judgment, dismissing his claim that he was terminated from his
employment in violation of the Age Discrimination in Employment
Act of 1967 (“ADEA”), 29 U.S.C. §§ 621-634. We assume the
parties’ familiarity with the underlying facts, the procedural
history of the case, and the issues on appeal.
We review orders granting summary judgment de novo and focus
on whether the district court properly concluded that there was
no genuine issue as to any material fact and the moving party was
entitled to judgment as a matter of law. See, e.g., Miller v.
Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). In
determining whether there are genuine issues of material fact, we
are “required to resolve all ambiguities and draw all permissible
factual inferences in favor of the party against whom summary
judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d
Cir. 2003) (internal quotation marks omitted).
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Historically, this Court has applied the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), to ADEA claims. See, e.g., Terry, 336 F.3d at 138.
However, in Gross v. FBL Financial Services, Inc., 129 S. Ct.
2343 (2009), the Supreme Court concluded that under the plain
language of the ADEA, an employee bringing a disparate treatment
claim must prove by a preponderance of the evidence that age was
the “but-for” cause of the employer’s adverse decision, and not
merely one of the motivating factors. Id. at 2351. The Court
noted that it "has not definitively decided whether the
evidentiary framework of [McDonnell Douglas] . . . is appropriate
in the ADEA context." Id. at 2349 n.2.
We need not decide whether to continue to apply McDonnell
Douglas or to abandon it in light of Gross. The district court
concluded that Kalra failed to present evidence that would
support a finding that his termination was motivated by anything
other than what was perceived to be his inadequate work
performance. That conclusion was not clearly erroneous.
Accordingly, Kalra neither made out a prima facie case under
McDonnell Douglas by evincing evidence to support that he
suffered an adverse employment action because of his age, nor
carried the burden of proving by a preponderance of the evidence
that his age was the “but-for” reason for his termination, and
that HSBC’s stated reason -– Kalra’s poor work record -– was mere
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pretext. See Gross, 129 S. Ct. at 2351. We therefore affirm the
district court’s judgment for substantially the reasons stated by
that court in its memorandum and order.
We have considered Kalra’s remaining claims of error and
conclude that they are without merit.
For the foregoing reasons, the judgment of the district
court is hereby AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
By:__________________________
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