                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/690


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                                                                  NOT PRECEDENTIAL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




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