Andersonv.Radio One, Inc.

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUITSep 13, 2011
No. 10-4132 (3d Cir. 2011)
No. 10-4132444 Fed. Appx. 596

No. 10-4132

09-13-2011

CHERYL ANDERSON, Appellant v. RADIO ONE, INC.


NOT PRECEDENTIAL


On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-09-00194)

District Judge: Hon. Mitchell S. Goldberg


Submitted Under Third Circuit LAR 34.1(a)

September 12, 2011


Before: SLOVITER, SCIRICA, and SMITH, Circuit Judges


OPINION

SLOVITER, Circuit Judge.

This is an appeal from the District Court's grant of summary judgment in favor of Radio One, Inc. on Cheryl Anderson's claims that Radio One terminated her employment in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. We will affirm.

The District Court had jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review of the District Court's grant of summary judgment, and apply the same standard applicable in the District Court found in Fed. R. Civ. P. 56. See Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 362 (3d Cir. 2008).

Because we write primarily for the parties, we need not discuss the facts or procedural history of this case.

With respect to the ADEA claim, Radio One did not dispute that Anderson established a prima facie case of age discrimination for purposes of the summary judgment motion and the District Court presumed that she had met this burden. See Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997) (en banc) (setting forth elements of a prima facie claim). The burden thus shifted to Radio One to produce evidence of a legitimate, nondiscriminatory reason for the adverse action. Id. Once Radio One produced such evidence, the burden shifted back to Anderson to provide sufficient evidence to allow a factfinder to either reject the employer's nondiscriminatory explanation, or conclude that an invidious discriminatory reason was more likely than not a motivating cause of her discharge (pretext). Id. (citing Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994)).

Radio One claims that it terminated Anderson because she failed to satisfy the demands of the Program Assistant position, including meeting deadlines and accurately completing assignments. We agree with the District Court's conclusion that Anderson did not then produce sufficient evidence of a pretext for age discrimination. Indeed, Anderson has never meaningfully disputed the substance of Radio One's repeated concerns with her job performance. Because Anderson failed to meet her burden to show pretext, summary judgment is appropriate on her ADEA claim.

Notably, prior to termination, Radio One offered Anderson a position as a receptionist, but she rejected the offer.
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Summary judgment is likewise appropriate on Anderson's ADA claim. We agree with the District Court that Anderson "is not actually disabled" within the meaning of 42 U.S.C. § 12102(2), and "she was not 'regarded as' disabled" within the meaning of 42 U.S.C. § 12102(3) by her employer. Anderson v. Radio One, Inc., No. 09-194, 2010 WL 3719088, at *9-10 (E.D. Pa. Sept. 20, 2010). Even if Anderson could establish that Radio One regarded her as disabled, as the District Court concluded, she did not meet her burden to demonstrate pretext for disability discrimination.

We have considered all of Anderson's arguments, but we find no basis for reversal. Accordingly, we will affirm the judgment of the District Court in favor of Radio One.