                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 13 2009

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


GERALDINE MCFADDEN,                              No. 07-16971

             Plaintiff - Appellant,              D.C. No. CV-04-00741-ECR

  v.
                                                 MEMORANDUM *
GREGORY KRAUSE; NANCY PEARL;
CAROLYN ROBINSON; REGIONAL
TRANSPORTATION COMMISSION,

             Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Nevada
                    Edward C. Reed, District Judge, Presiding

                      Argued and Submitted October 9, 2009
                            San Francisco, California

Before: SCHROEDER and BERZON, Circuit Judges, and SHADUR, ** District
Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Milton I. Shadur, Senior United States District Judge
for the Northern District of Illinois, sitting by designation.

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      Geraldine McFadden appeals from the district court’s entry of summary

judgment against her and in favor of Regional Transportation Commission

(“RTC”) and individual defendants in an action that challenged her dismissal as a

violation of several federal statutes. We affirm the district court.

      The district court did not err in granting summary judgment on McFadden’s

Americans with Disabilities Act (“ADA”) claim because McFadden did not

establish that she was disabled within the meaning of the Act. See 42 U.S.C.

§ 12102(1); 29 CFR § 1630.2(g)-(l). She did not argue in the district court that an

inability to drive a car constituted a disability under the ADA, so any such

contention has been waived on appeal. See Raich v. Gonzales, 500 F.3d 850, 868

(9th Cir. 2007). In order to prevail on her claim that she was terminated on

account of her employer’s perception of her disability, she must establish that such

a perception motivated her termination. See Deppe v. United Airlines, 217 F.3d

1262, 1265 (9th Cir. 2000). She has failed to establish the existence of any

material issue of fact regarding RTC’s motivation. The record established she was

terminated on account of poor performance.

      For similar reasons, McFadden has failed to establish a violation of the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623. Moreover, the

Supreme Court has recently held that to establish a violation of the ADEA, the


                                           2
plaintiff must show that age was the “but-for” cause of the employer’s adverse

action. Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2351 (2009). The

Supreme Court held that Title VII’s burden-shifting framework does not apply in

ADEA cases, because Title VII recognizes mixed motive cases and the ADEA

does not. Id. at 2348-52. There is, accordingly, also no basis for recognizing a

combined age/sex discrimination claim, as a different analytical framework applies

to each statute.

      Because the record shows McFadden’s termination was motivated by

performance concerns, McFadden has failed to establish a basis for claiming

discrimination on account of religion. She is no longer asserting hostile work

environment or failure to accommodate in connection with a claim of religious

discrimination.

      McFadden does argue unlawful retaliation in connection with the protected

activity of filing a discrimination charge. However, RTC established the negative

job reference was not based on any discriminatory animus. The delay in sending

her personnel file to the Sheriff’s Department and notice that it would provide only

neutral information did not amount to a negative job reference in any event.

      Finally, there was no violation of McFadden’s substantive due process rights

or any violation of procedural due process. McFadden was a probationary


                                         3
employee as a result of a promotion that has not been shown to have any indication

of being a sham. Nor did RTC’s actions with regard to taking McFadden to see a

counselor meet the high standard for establishing a violation of substantive due

process. See Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998).

      AFFIRMED.




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