Hon. Denny Chin, of the United States District Court for *

the Southern District of New York, sitting by designation.

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 12 day of January, two thousand ten. th

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.

__________________________________________
2

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
4

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:__________________________