Jag M. KALRA, Plaintiff-Appellant, v. HSBC BANK U.S.A., N.A., formerly known as Republic National Bank of New York, Defendant-Appellee, 360 F. App'x 214

SUMMARY ORDER 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). Historically, this Court has applied the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to ADEA claims. See, e.g., Terry, 336 F.3d at 138. However, in Gross v.

FBL Financial Services, Inc., — U.S.-, 129 S.Ct. 2343, 174 L.Ed.2d 119 (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 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.