Kanofsky v. Univ of Medicine , 50 F. App'x 546 ( 2002 )

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
10-30-2002
Kanofsky v. Univ of Medicine
Precedential or Non-Precedential: Non-Precedential
Docket No. 01-2860
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"Kanofsky v. Univ of Medicine" (2002). 2002 Decisions. Paper 690.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No: 01-2860
____________
ALVIN KANOFSKY, Ph.D., and; DANIEL KANOFSKY, M.D., M.P.H.
individually, and as joint executors of the ESTATE OF PAUL
KANOFSKY, Ph.D., and as joint executors of the ESTATE OF
PHILIP KANOFSKY,
Appellants
v.
UNIVERSITY OF MEDICINE & DENTISTRY OF NEW JERSEY;
LESLIE P. MICHELSON, PH.D.; RICHARD CALMAN; STANLEY S. BERGEN, JR.;
HOWARD J. PRIPAS; MARILYN BODOW; JOHN DOE(S), individually and in
their official capacities.; THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA; JERRY YORK; RON NAPIORSKI
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 96-cv–03007)
District Judge: Honorable Dickinson R. Debevoise
____________________
Submitted Under Third Circuit LAR 34.1(a)
on August 1, 2002
Before: ROTH, RENDELL
and AMBRO Circuit Judges
(Opinion filed: October 30, 2002)
OPINION
ROTH, Circuit Judge:
Alvin Kanofsky and Daniel Kanofsky, individually and as the executors of the Estate of Paul
Kanofsky, appeal the granting of summary judgment to defendants by the United States District Court
for the District of New Jersey. The action for age and disability discrimination and intentional infliction
of emotional distress was brought on behalf of their brother, Paul Kanofsky, now deceased of unrelated
causes. They contend on appeal that the District Court erred in granting summary judgment because
(1) they had established a prima facie case of disability discrimination, (2) they had established a prima
facie case of age discrimination, and (3) they had adequately alleged a claim of intentional infliction of
emotional distress.1
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our review of a District Court’s
grant of summary judgment is plenary. See Ideal Dairy Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737,
743 (3d Cir. 1996). “Viewing the facts in the light most favorable to the nonmoving party, we look to
see if there was a genuine issue of material fact and, if not, whether the moving party was entitled to
judgment as a matter of law.” Gaul v. Lucent Tech., Inc., 134 F.3d 576, 579 (3d Cir. 1998).
We will not recite the facts herein as the parties are familiar with them.
Discrimination Claims
1
We do not consider the Estate of Philip Kanofsky to be a party to the appeal, because
the District Court denied appellants’ motion to add that Estate as an additional plaintiff.
2
Appellants claim that they established a prima facie case of both disability and age
discrimination. We disagree.
First, as to disability, to establish a prima facie case of discrimination under the ADA, an
employee must show that "(1) he is a disabled person within the meaning of the ADA; (2) he is
otherwise qualified to perform the essential functions of the job, with or without reasonable
accommodations by the employer; and (3) he has suffered an otherwise adverse employment decision
as a result of discrimination." Taylor v. Phoenixville School Dist., 184 F.3d 296, 306 (3d Cir. 1999).2
We find that the appellants failed to meet this burden. Appellants failed to prove that Dr. Kanofsky
was a qualified employee. See Gaul, 134 F.3d at 580. In Gaul, we established that an employee
claiming disability discrimination must possess certain skills and abilities as a prerequisite for his
position, and the employee must be able to carry out the “essential functions” of the job. Id.Appellants failed to show that Dr. Kanofsky was able to carry out the essential functions of his position,
with or without accommodation.3 The appellants did not demonstrate that Dr. Kanofsky either
requested an accommodation or that his employer was aware of any need of one. Thus, they have
failed to make out a prima facie case.
As to the age discrimination claim, an employee must establish a four-prong prima facie case of
2
See also Jansen v. Food Circus Supermarkets, Inc., 541 A.2d 682, 692 (N.J. Super.
1986) (citing elements of a prima facie case under the NJLAD).
3
Appellants allege that because Dr. Kanofsky’s disability was obvious, he was not
required to ask for an accommodation. We have previously stated that an employer’s
knowledge of an impairment is not sufficient to prove that the employer was aware of any
desire by the employee for an accommodation. See Taylor, 184 F.3d at 313. Dr. Kanofsky
did not request an accommodation and his employer was not to assume he needed one.
3
age discrimination. See Lawrence v. Nat’l Westminster Bank New Jersey, 98 F.3d 61, 65 (3d Cir.
1996). The employee must prove by a preponderance of the evidence that “(1) he is over 40 years
old; (2) he is qualified for the position in question; (3) he suffered from an adverse employment
decision; and (4) his replacement was sufficiently younger to permit a reasonable inference of age
discrimination.” Id. (stating that state standards under the NJLAD are the same as under the federal
ADEA standards); see also Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir. 1987).
Because, for the reasons stated above, the appellants have failed to show that Dr. Kanofsky was able
to carry out the essential functions of his position and, thus, was qualified for it, they do not meet their
burden of making a prima facie case of age discrimination.
Intentional Infliction of Emotional Distress
Appellants also assert that their claim of intentional infliction of emotional distress was
adequately alleged in their amended complaint. The elements of such a claim pursuant to New Jersey
law are (1) extreme and outrageous conduct, (2) intent to commit both the act and the emotional
distress, (3) proximate cause, and (4) emotional distress so severe that no reasonable person could
endure it. See Buckley v. Trenton Saving Fund Soc’y, 544 A.2d 857, 863 (N.J. 1988). To survive a
summary judgment motion, there must be sufficient evidence to raise a genuine issue of material fact for
each element of the claim. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986). We
agree with the District Court’s determination that there was insufficient evidence to establish these
elements.
For the foregoing reasons, we will affirm the judgment of the District Court.
4
TO THE CLERK:
Please file the foregoing Opinion.
By the Court,
/s/ Jane R. Roth
Circuit Judge
5