Kalra v. Hsbc Bank Usa, N.A.

• Decision Date: 25 July 2008
• Docket Number: No. 06-CV-5890 (JFB) (ETB).,06-CV-5890 (JFB) (ETB).
• Citation: 567 F.Supp.2d 385
• Parties: Jag M. KALRA, Plaintiff, v. HSBC BANK USA, N.A., Defendant.
• Court: U.S. District Court — Eastern District of New York

567 F.Supp.2d 385

Jag M. KALRA, Plaintiff, v. HSBC BANK USA, N.A., Defendant.

No. 06-CV-5890 (JFB) (ETB).

United States District Court, E.D. New York.

July 25, 2008.

COPYRIGHT MATERIAL OMITTED

Plaintiff is proceeding pro se.

Meredith Leigh Friedman, Esq., HSBC Bank USA, New York, NY, for defendant.

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

Pro se plaintiff Jag Kalra ("Kalra" or "plaintiff') brings this action alleging employment discrimination in violation of the Federal Age. Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA") against defendant HSBC Bank USA, National Association ("HSBC" or "defendant" or "Bank"). Specifically, plaintiff alleges that defendant discriminated against plaintiff by terminating him because of his age.

On February 12, 2008, defendant moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, defendant's motion for summary judgment is granted in its entirety. The undisputed evidence demonstrates that HSBC hired plaintiff at the age of 65 as a Consumer Banker at the new Rockville Centre Branch and that, after over three months on the job and extensive training, there were numerous complaints regarding his inability to perfonm his job. For example, HSBC has submitted affidavits from three different HSBC managers, all of whom worked with plaintiff at different times at separate locations during his brief employment, which describe in detail incidents regarding plaintiffs inability to perform the functions of the job in a satisfactory manner, including significant errors in interactions with customers, and the managers' unsuccessful efforts to provide plaintiff with additional training and coaching to avoid such errors. In his lengthy opposition to the motion, although plaintiff tries to dispute or explain some of these deficiencies in his performance, he does not dispute that the complaints were made or that certain incidents occurred. Moreover, he offers absolutely no evidence from which a rational trier of fact could conclude that the proffered reason for the termination — namely, his inability to perform the job — was a pretext for age discrimination. Therefore, his ADEA claim cannot survive summary judgment.

I. Background

A. Facts

The following facts are taken from the parties' depositions, declarations, exhibits and respective Local 56.1 statements of facts. Upon consideration of a motion for summary judgment, the Court construes the facts in the light most favorable to the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir.2005). Thus, the Court shall construe the facts in favor of the plaintiff.

1. Plaintiff's Hiring & Training

Plaintiff was hired by HSBC on September 10, 2005 and began working for HSBC on September 26, 2005. (Def.'s 56.1 ¶ 2.)¹ Plaintiff was 65 years old at the time of his hiring. (Pl.'s Opp., at 1.) He was hired for the position of Consumer Banker at a new branch in Rockville Centre. (Def.'s 56.1 ¶ 3.) A Consumer Banker is a platform banker who sits on the floor of the bank and who is not licensed by FINRA (previously NASD) to sell non-depository products. (Lavelanet Aff. ¶ 5.)

Plaintiff attended a new hire orientation on September 26, 2005. From September 27, 2005 through October 3, 2005, plaintiff received on-the-job training at the Lynbrook Branch.² (Def.'s 56.1 ¶ 6.) From October 4, 2005 through October 14, 2005, plaintiff attended Platform Orientation training at the Melville Branch's training center.³ (Def.'s 56.1 ¶ 8.) Plaintiffs Platform Orientation training course was taught by Mark Branca ("Branca"), and was conducted at HSBC's Melville, New York training center in a classroom. (Def.'s 56.1 ¶¶ 9, 11.) There were twelve individuals in plaintiff's Platform Orientation class. (Def.'s 56.1 ¶ 12.) Finally, plaintiff received on-the-job training on October 17, 2005 at the Hewlett Branch, from October 18, 2005 to October 19, 2005 at the Manhasset Branch, and from October 20, 2005 to October 27, 2005 at the Lynbrook Branch. (Def.'s 56.1 ¶¶ 13-15.)

On October 28, 2005, plaintiff reported to the Rockville Centre Branch. (Def.'s 56.1 ¶ 16.) The Rockville Centre Branch officially opened to the public on October 31, 2005. (Def.'s 56.1 ¶ 17.) Lavelanet became the Branch Manager and Beatrice Deevy ("Deevy") became the Assistant Branch Manager.

2. Plaintiff's Job Performance

The articulated basis for plaintiffs termination was his alleged poor job performance over the course of his time at HSBC. The following evidence is contained in the record concerning the plaintiffs performance.

a. The Initial Incidents

Branca spent a week at the Rockville Centre Branch assisting the employees, spending time with each employee, and observing their work performance. (Branca Aff. ¶¶ 12-13.) According to Branca, plaintiff struggled more than the others (all of whom were new hires with the exception of the Assistant Branch Manager) and was unable to work without supervision and coaching. (Id. ¶¶ 14-15.)

Throughout his first month there, many supervisors observed plaintiff struggle in several ways. First, defendant provided evidence that plaintiff had repeated difficulty logging on to the system and remembering his passwords throughout his entire period with HSBC. (Lavelanet Aff. ¶ 15; Branca Aff. ¶ 14; Deevy Aff. ¶¶ 5-7.) Plaintiff does not dispute that he had password problems, but instead argues that he was not given a password between September 27 to October 27, 2007, and that his password situation was fixed by a security officer, Carmella Butt, on October 28, 2005. (Pl.'s Opp., at 2.) Plaintiff also argues that "[p]laintiff's name might have been black listed as a computer hacker who was trying to break into the HSBC Bank's computers and various other programs. It was for the security reasons that [he] `had to reset his passwords all the time[.]'" (Pl.'s Resp. to Deevy Aff., at 2.)

Defendant also provided evidence that plaintiff was unable to perform basic banking functions on his own, including having difficulty opening the Bank vault. (Lavelanet Aff. ¶¶ 7-19; Deevy Aff. ¶ 4.) Plaintiff disputes that he was unable to open the vault. (Pl.'s Opp. to Deevy Aff., at 2.) Plaintiff does not dispute that he had difficulties on the job, but explains that, because of his password problems, he "did not get a chance to do hands-on training and practice to do various transaction with experienced bankers therefore Plaintiff was learning and practicing Banking transactions with the help from the notes (short cut) prepared during the training (reference cards)." (Pl.'s Resp. to Def.'s Rule 56.1, at 4.)

Moreover, defendant provided evidence that plaintiffs behavior was unprofessional. (Lavelanet Aff. ¶¶ 21-28.) For instance, Lavelanet recalls one instance during a staff meeting where plaintiff interrupted Lavelanet three times and announced to the group that it was illegal to make sales calls to customers on Veteran's Day as Lavelanet had directed. (Lavelanet Aff. ¶ 24.) Lavelanet also states that plaintiff refused to leave voicemail messages on his customers' answering machines after being instructed to do so by Lavelanet. (Lavelanet Aff. ¶ 26.) Plaintiff does not dispute that these disagreements occurred, but instead argues that his intentions were different than those represented by the defendant. For instance, plaintiff contends that "[a]ny such interruptions should have been an instructional issue rather than taking them personally as an act of insubordination and instructional for the reasons of being counterproductive." (Pl.'s Resp. to Def.'s 56.1, at 3.)

b. The LTD

On November 22, 2005, Lavelanet prepared an Employee Interim Job Discussion ("IJD") and delivered the IJD to plaintiff. (Lavelanet Aff. ¶ 30.) The IJD summarized plaintiffs shortfalls and advised plaintiff of the specific areas where plaintiffs performance and behavior required improvement. (Id. ¶ 30 & Exh. B.) On November 28, 2005, plaintiff provided Lavelanet with a written response to the IJD. (Lavelanet Aff. ¶ 32 & Exh. C.) The response conceded some of plaintiffs shortfalls, including his difficulty using the computers, opening the vault, and behavioral issues. (Id. at Exh. C.) Plaintiff stated,

Before I give you any explanations to the warning letter that I received from you, I did not work on the Banking before as a banking officer and need lot of support and guidance.

I have tried to give my best shot to do my job but as you kindly pointed out that I failed to the standards. If I get some directions from you, I will make every effort to improve my performance to your expected standards and I will take it as a challenge myself.

(Pl.'s Resp. to IJD, at 1; Defs.' Exh. C.) The following is a list of explanations plaintiff gave in his response. First, with respect to defendant's accusations of computer problems, plaintiff stated:

[I]t was a poor call from the Management to assign me a job on the computer unless I had due training to handle the computers and the programs.

It will be needless to mention that the Computer[ ] training is on hand practice and comes with practice over and over again. Some people are fast learners and other are slow learners. I am perhaps, a slow learner and need more on hand practice.... I must confess here that I still need on hand training with the Computers and in the beginning or 19 days of working it is difficult to learn all.

(Id. at 2-3) (emphasis added). Second, in response to defendant's contentions that plaintiff was sitting on the client's chair, plaintiff responded:

I sat on the Client's chair once for 2/3 minutes when no one was in the branch ... My manager told me not to sit there, I never sat there anymore and moreover there were [no] such directives given in this regards before.

(Id. at 4.) Plaintiff also described the above-listed incident regarding calling the contact list on a federal holiday:

On the morning on Nov. 11, 2005 (a...