Anthony FALSO, Plaintiff-Appellant, v. SPG DIRECT and Director of H.R. at SPG Direct, Defendants-Appellees, 353 F. App'x 662

SUMMARY ORDER Plaintiff-appellant Anthony Falso, pro se, appeals from an order of the District Court granting

summary judgment in favor of defendants-appellees SPG Direct and Director of Human Resources at SPG Direct (jointly, “defendants”), in Falso’s action alleging violations of the American with Disabilities Act of 1990, 42 U.S.C. § 12112 et seq. (“ADA”), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal. On appeal, Falso argues that the District Court erred in granting

summary judgment in favor of defendants on both of his claims. Specifically, he argues that the District Court erred in dismissing (1) his Title VII claim, based on the fact that Falso’s complaint alleged discrimination based on disability only, and (2) his ADA claim, based on Falso’s failure to allege a prima facie case of discrimination. We review de novo the District Court’s decision to grant

summary judgment and, in the course of that review, we resolve ambiguities and draw all permissible factual inferences in favor of the nonmoving party. See, e.g., Holcomb v. Iona College, 521 F.3d 130, 137 (2d Cir.2008); Nationwide Life Ins. Co. v. Bankers Leasing Ass'n, Inc., 182 F.3d 157, 160 (2d Cir. 1999). No genuinely triable issue of fact exists when the moving party demonstrates, by pleadings and submitted evidence, that no rational jury could find in the non-movant’s favor. See Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir.1996).

Falso first argues that the District Court erred in dismissing his Title VII claim and in concluding that Falso’s “administrative charge makes no reference whatsoever to discrimination on the basis of race, color, religion, sex or national origin.” Falso v. SPG Direct, No. 05-cv-6548, 2008 WL 1946542, at *2 (W.D.N.Y. May 1, 2008). We agree with the District Court that Falso failed to state a specific claim under Title VII, and that even if he had asserted a specific claim, Falso “failed to exhaust his administrative remedies with respect to [that] claim.” Id.

Accordingly, we hold that the District Court properly dismissed Falso’s Title VII claim. Falso also argues that the District Court erred in concluding that he failed to assert a prima facie case of discrimination to support his ADA claim. In order to establish a claim for discrimination under the ADA, a plaintiff must prove that (1) his employer is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of the job, with or without reasonable accommodation; and (4) he suffered an adverse employment action because of his disability.

See Jacques v. DiMarzio, Inc., 386 F.3d 192, 198 (2d Cir.2004). If a plaintiff establishes a prima facie case, the employer must then provide evidence of a legitimate, non-discriminatory reason for the adverse employment action, and the plaintiff must show that the employer’s proffered reason is a pretext for discrimination. See Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir.2006). The District Court concluded that Falso failed to provide sufficient evidence that he was “disabled” within the meaning of the ADA.

Even assuming that Falso’s alleged learning disability renders him “disabled” within the meaning of the statute, Falso failed to provide any evidence that he was otherwise qualified to perform the essential functions of his job with or without reasonable accommodation, or that he suffered an adverse employment action because of his disability. We therefore agree with the District Court that Falso failed to establish a prima facie case of disability discrimination.

In any event, defendants provided a legitimate, non-discriminatory reason for not retaining Falso beyond his one-week assignment — his insufficient performance and work product — and Falso failed to provide any evidence that this reason was a pretext of discrimination. Accordingly, we cannot conclude that the District Court erred in dismissing plaintiffs ADA claim. CONCLUSION For the reasons stated above, we AFFIRM the judgment of the District Court.