11-580-cv Cardo v. Arlington Cent. School Dist. 

### 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 1 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, 2 on the 28 thday of March, two thousand twelve. 3 4 PRESENT: 5 JOHN M. WALKER, Jr., 6 GERARD E. LYNCH, 7 CHRISTOPHER F. DRONEY, 8 Circuit Judges

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__________________________________________ 10 11 Michael Cardo, 12 13 Plaintiff-Appellant, 14 15 v. 11-580-cv 16 17 Arlington Central School District, et al. , 18 19 Defendants-Appellees

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__________________________________________ 21 22 FOR APPELLANT: Michael Cardo, pro se , Yorktown Heights, New York 23 24 FOR APPELLEES: Lewis R. Silverman, Rutherford & Christie, LLP, New York, N.Y. 25 26 Appeal from a judgment of the United States District Court for the Southern District of 27 New York (Jed S. Rakoff, J.). 28 292 UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND 1 DECREED that the judgment of the district court is AFFIRMED

. 2 Appellant Michael Cardo, proceeding pro se , appeals from the district court’s grant of 3 summary judgment for defendants in his action alleging discrimination on the basis of age and 4 disability, and defamation under state law. We assume the parties’ familiarity with the 5 underlying facts, the procedural history of the case, and the issues on appeal. 6 We review a district court’s grant of summary judgment de novo , construing the evidence 7 in the light most favorable to the non-moving party. See Tenenbaum v. Williams , 193 F.3d 581, 8 593 (2d Cir. 1999). Summary judgment is appropriate where “there is no genuine dispute as to 9 any material fact and the movant is entitled to judgment as a matter of law,” Fed. R. Civ. P. 10 56(a), i.e. , “[w]here the record taken as a whole could not lead a rational trier of fact to find for 11 the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 12 (1986). Although the evidence is viewed in favor of the non-moving party, the “‘mere existence 13 of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be 14 evidence on which the jury could reasonably find for the plaintiff.’” Jeffreys v. City of New 15 York, 426 F.3d 549, 553-54 (2d Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 16 242, 252 (1986)). Having conducted an independent and de novo review of the record in light of 17 these principles, we affirm the district court’s judgment. 18 In order to establish a claim under the Age Discrimination in Employment Act 19 (“ADEA”), a plaintiff must prove by a preponderance of the evidence that age was the “but-for” 20 cause of the challenged adverse employment action. Gross v. FBL Fin. Servs., Inc. , 129 S. Ct. 21 2343, 2352 (2009). ADEA claims are analyzed under the burden-shifting framework set forth in 223 McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). See Gorzynski v. Jetblue Airways 1 Corp. , 596 F.3d 93, 106 (2d Cir. 2010). Assuming that Cardo established aprima facie case of 2 discrimination under the ADEA, the defendants stated a legitimate, non-discriminatory reason 3 for his failure to be appointed head coach and/or his termination, namely, that he could not work 4 effectively with other coaches. The burden therefore shifted back to Cardo to establish by a 5 preponderance of the evidence that the asserted reasons were pretextual and that his age was the 6 “but-for cause” of his termination. See Gross , 129 S. Ct. at 2352. 7 With respect to the failure of the Arlington County School District (“District”) to appoint 8 him head coach, Cardo presents no evidence that the District’s stated reasons for declining to 9 appoint him were pretextual. While Cardo disputesthe specifics of some of the incidents cited 10 by defendants, he does not deny that these incidents occurred, and offers no evidence that the 11 District did not in good faith conclude thathe had difficulties getting along with others. 12 Moreover, in suggesting that he was denied appointment because of his age, he ignores the fact 13 that he was over 70 years old when he was first hired as a paid coach by the same officials he 14 alleges held his age against him a few years later. 15 With respect to his termination, even taking Cardo’s assertion that he was terminated for 16 the reasons stated in Baker’s letter as true, there is still insufficient evidence to conclude that his 17 age was the “but-for cause” of his termination. While Baker’s letter referred to Cardo’s alleged 18 fragility and inability to move quickly, the bulk of the letter emphasized Cardo’s lack of 19 “professionalism” as an assistant coach. Additionally, the letter stated that Cardo had 20 undermined Baker’s authority as head coach. While the letter did suggest that Cardo was not 21 physically able to perform the duties of an a ssistant wrestling coach, the letter asserted inability 22 to perform based on specific cited incidents, and did not reference Cardo’s age or infer 234 incapacity from age. Moreover, Cardo admitted that District officials had never made any 1 comments or criticisms with respect to his age prior to his termination. Accordingly, Cardo did 2 not adduce sufficient evidence to show by a preponderance of the evidence that the reasons 3 given for his firing were pretextual or that hi s age was the “but-for cause” of his termination. 4
See Jeffreys , 426 F.3d at 554 (noting that the “mere existence of a scintilla of evidence in support 5 of the plaintiff’s position will be insufficient” to survive summary judgment (internal quotation 6 marks omitted)). 7 With regard to Cardo’s Americans with Disabilities Act (“ADA”) claim based on a 8 perceived disability, the district court properly granted summary judgment in favor of the 9 defendants for the reasons stated in its order. As the district court noted, nothing in Baker’s 10 letter identified a condition that, as a matter of law, constituted a substantial limitation of a major 11 life activity under the ADA. Baker’s suggestion that Cardo lacked the physical strength and 12 agility necessary to safely demonstrate wrestling techniques was insufficient to establish that 13 Cardo was considered substantially limited in the major life activity of “working.” At most, 14 Baker’s letter suggests that Cardo was regarded as incapable of performing his particular, 15 physically demanding job. See Murphy v. United Parcel Serv., Inc. , 527 U.S. 516, 525 (1999) 16 (“[T]he undisputed record evidence demonstrates that petitioner is, at most, regarded as unable 17 to perform only a particular job. This is insufficient, as a matter of law, to prove that petitioner 18 is regarded as substantially limited in the major life activity of working.”). Accordingly, even 19 assuming that Cardo’s termination was based on the statements contained in Baker’s letter, the 20 district court correctly concluded that Cardo did not adduce sufficient evidence by which the 21 court could infer that the District regarded Cardo as having a qualifying disability under the 22
ADA. 235 Finally, we affirm the district court’s grant of summary judgment for the defendants on 1 Cardo’s state law defamation claim. As the di strict court noted, New York law required Cardo 2 to file a timely notice of claim with the District in order to pursue this claim. See N.Y. Educ. 3 Law § 3813(2). Cardo argues on appeal that he was not required to give the District notice of his 4 claim because Baker was not acting within the scope of his employment when he made the 5 allegedly defamatory statements. This argument is without merit because Baker’s letter was 6 written in his capacity as the head wrestling coach regarding his concerns about the performance 7 of one of his subordinates. 8 We have considered all of Cardo’s arguments and found them to be without merit. 9 Accordingly, the judgment of the district court is hereby AFFIRMED

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11 FOR THE COURT: 12 Catherine O’Hagan Wolfe, Clerk 13