NOT PRECEDENTIAL


UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

                          __________

                          No. 10-4132
                          __________


                    CHERYL ANDERSON,
                                Appellant

                               v.

                      RADIO ONE, INC.

                           _________

         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

                  (Filed: September 13, 2011)

                          __________

                           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. 1

       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., 

, 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. 

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




                 1
                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.,
       

, 362 (3d Cir. 2008).

                                             2
a motivating cause of her discharge (pretext). 

v. Perskie, 

,

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. 2 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.

       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, 

, 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.




              2
               Notably, prior to termination, Radio One offered Anderson a position as a
       receptionist, but she rejected the offer.
                                             3