No. 08-3832-cv.United States Court of Appeals, Second Circuit.
January 12, 2010.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]
[*] The Clerk of the Court is directed to amend the official caption to read as shown above.

Appeal from the United States District Court for the Eastern District of New York (Cogan, J.).

UPON DUE CONSIDERATION, it is hereby ORDERED,ADJUDGED, AND DECREED that the judgment of said District Court be and hereby is AFFIRMED.

Eugene Kennedy, Fresh Meadows, NY, pro se.

Baimusa Kamara, Office of the General Counsel, New York City Transit Authority, Brooklyn, NY, for Defendant-Appellee.

PRESENT: ROBERT D. SACK, ROBERT A. KATZMANN, Circuit Judges and DENNY CHIN,[**] District Judge.

[**] Hon. Denny Chin, of the United States District Court for the Southern District of New York, sitting by designation.

Appellant Eugene Kennedy appeals from a judgment of the district court granting summary judgment to the Manhattan and Bronx Surface Transit Operating Authority (“MBSTOA”) in his action for employment discrimination. We assume the parties’ familiarity with the facts, proceedings below, and specification of appellate issues.

This Court reviews discovery rulings made by the district court for abuse of discretion. See Ind. Order of Foresters v. Donald, Lufkin Jenrette, 157 F.3d 933, 937 (2d Cir. 1998). We will reverse a discovery ruling only if “the action taken was improvident and affected the substantial rights of the parties.” Goetz v. Crosson, 41 F.3d 800, 805
(2d Cir. 1994) (internal quotation marks omitted). Here, there is no indication that MBSTOA failed to sufficiently respond to Kennedy’s discovery requests. See Fed.R.Civ.P. 26(b)(1); Fed.R.Civ.P. 26(b)(2)(C)(iii). The magistrate judge thus did not abuse her discretion in refusing to order the defendants to disclose the information requested by Kennedy.

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Moreover, there is no indication that the magistrate judge’s rulings affected Kennedy’s substantial rights. See Goetz, 41 F.3d at 805.

We review de novo a district court’s grant of summary judgment, viewing the evidence in the light most favorable to the non-moving party. See Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003). We will uphold a summary judgment award only if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law See Fed.R.Civ.P. 56(c); Miller v. Wolpoff Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003).

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, i 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 apply McDonnell Douglas
in this case or to abandon it in light of Gross. The district court concluded that Kennedy 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, Kennedy 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 the defendant’s stated reason 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 Kennedy’s other arguments on appeal and have found them to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.