     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.

 1           At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
 3   on the 28th day of March, two thousand twelve.
 4
 5   PRESENT:
 6               JOHN M. WALKER, Jr.,
 7               GERARD E. LYNCH,
 8               CHRISTOPHER F. DRONEY,
 9                           Circuit Judges.
10   __________________________________________
11
12   Michael Cardo,
13
14                      Plaintiff-Appellant,
15
16                                v.                                           11-580-cv
17
18   Arlington Central School District, et al.,
19
20               Defendants-Appellees.
21   __________________________________________
22
23   FOR APPELLANT:                          Michael Cardo, pro se, Yorktown Heights, New York
24
25   FOR APPELLEES:                          Lewis R. Silverman, Rutherford & Christie, LLP, New York, N.Y.
26
27            Appeal from a judgment of the United States District Court for the Southern District of

28   New York (Jed S. Rakoff, J.).

29
 1          UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

 2   DECREED that the judgment of the district court is AFFIRMED.

 3          Appellant Michael Cardo, proceeding pro se, appeals from the district court’s grant of

 4   summary judgment for defendants in his action alleging discrimination on the basis of age and

 5   disability, and defamation under state law. We assume the parties’ familiarity with the

 6   underlying facts, the procedural history of the case, and the issues on appeal.

 7          We review a district court’s grant of summary judgment de novo, construing the evidence

 8   in the light most favorable to the non-moving party. See Tenenbaum v. Williams, 193 F.3d 581,

 9   593 (2d Cir. 1999). Summary judgment is appropriate where “there is no genuine dispute as to

10   any material fact and the movant is entitled to judgment as a matter of law,” Fed. R. Civ. P.

11   56(a), i.e., “[w]here the record taken as a whole could not lead a rational trier of fact to find for

12   the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

13   (1986). Although the evidence is viewed in favor of the non-moving party, the “‘mere existence

14   of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be

15   evidence on which the jury could reasonably find for the plaintiff.’” Jeffreys v. City of New

16   York, 426 F.3d 549, 553-54 (2d Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

17   242, 252 (1986)). Having conducted an independent and de novo review of the record in light of

18   these principles, we affirm the district court’s judgment.

19          In order to establish a claim under the Age Discrimination in Employment Act

20   (“ADEA”), a plaintiff must prove by a preponderance of the evidence that age was the “but-for”

21   cause of the challenged adverse employment action. Gross v. FBL Fin. Servs., Inc., 129 S. Ct.

22   2343, 2352 (2009). ADEA claims are analyzed under the burden-shifting framework set forth in


                                                        2
 1   McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Gorzynski v. Jetblue Airways

 2   Corp., 596 F.3d 93, 106 (2d Cir. 2010). Assuming that Cardo established a prima facie case of

 3   discrimination under the ADEA, the defendants stated a legitimate, non-discriminatory reason

 4   for his failure to be appointed head coach and/or his termination, namely, that he could not work

 5   effectively with other coaches. The burden therefore shifted back to Cardo to establish by a

 6   preponderance of the evidence that the asserted reasons were pretextual and that his age was the

 7   “but-for cause” of his termination. See Gross, 129 S. Ct. at 2352.

 8           With respect to the failure of the Arlington County School District (“District”) to appoint

 9   him head coach, Cardo presents no evidence that the District’s stated reasons for declining to

10   appoint him were pretextual. While Cardo disputes the specifics of some of the incidents cited

11   by defendants, he does not deny that these incidents occurred, and offers no evidence that the

12   District did not in good faith conclude that he had difficulties getting along with others.

13   Moreover, in suggesting that he was denied appointment because of his age, he ignores the fact

14   that he was over 70 years old when he was first hired as a paid coach by the same officials he

15   alleges held his age against him a few years later.

16           With respect to his termination, even taking Cardo’s assertion that he was terminated for

17   the reasons stated in Baker’s letter as true, there is still insufficient evidence to conclude that his

18   age was the “but-for cause” of his termination. While Baker’s letter referred to Cardo’s alleged

19   fragility and inability to move quickly, the bulk of the letter emphasized Cardo’s lack of

20   “professionalism” as an assistant coach. Additionally, the letter stated that Cardo had

21   undermined Baker’s authority as head coach. While the letter did suggest that Cardo was not

22   physically able to perform the duties of an assistant wrestling coach, the letter asserted inability

23   to perform based on specific cited incidents, and did not reference Cardo’s age or infer
                                                        3
 1   incapacity from age. Moreover, Cardo admitted that District officials had never made any

 2   comments or criticisms with respect to his age prior to his termination. Accordingly, Cardo did

 3   not adduce sufficient evidence to show by a preponderance of the evidence that the reasons

 4   given for his firing were pretextual or that his age was the “but-for cause” of his termination.

 5   See Jeffreys, 426 F.3d at 554 (noting that the “mere existence of a scintilla of evidence in support

 6   of the plaintiff’s position will be insufficient” to survive summary judgment (internal quotation

 7   marks omitted)).

 8          With regard to Cardo’s Americans with Disabilities Act (“ADA”) claim based on a

 9   perceived disability, the district court properly granted summary judgment in favor of the

10   defendants for the reasons stated in its order. As the district court noted, nothing in Baker’s

11   letter identified a condition that, as a matter of law, constituted a substantial limitation of a major

12   life activity under the ADA. Baker’s suggestion that Cardo lacked the physical strength and

13   agility necessary to safely demonstrate wrestling techniques was insufficient to establish that

14   Cardo was considered substantially limited in the major life activity of “working.” At most,

15   Baker’s letter suggests that Cardo was regarded as incapable of performing his particular,

16   physically demanding job. See Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 525 (1999)

17   (“[T]he undisputed record evidence demonstrates that petitioner is, at most, regarded as unable

18   to perform only a particular job. This is insufficient, as a matter of law, to prove that petitioner

19   is regarded as substantially limited in the major life activity of working.”). Accordingly, even

20   assuming that Cardo’s termination was based on the statements contained in Baker’s letter, the

21   district court correctly concluded that Cardo did not adduce sufficient evidence by which the

22   court could infer that the District regarded Cardo as having a qualifying disability under the

23   ADA.


                                                       4
 1          Finally, we affirm the district court’s grant of summary judgment for the defendants on

 2   Cardo’s state law defamation claim. As the district court noted, New York law required Cardo

 3   to file a timely notice of claim with the District in order to pursue this claim. See N.Y. Educ.

 4   Law § 3813(2). Cardo argues on appeal that he was not required to give the District notice of his

 5   claim because Baker was not acting within the scope of his employment when he made the

 6   allegedly defamatory statements. This argument is without merit because Baker’s letter was

 7   written in his capacity as the head wrestling coach regarding his concerns about the performance

 8   of one of his subordinates.

 9          We have considered all of Cardo’s arguments and found them to be without merit.

10   Accordingly, the judgment of the district court is hereby AFFIRMED.

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




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