United States District Court, District of New Jersey
June 21, 1999
SAMUEL KOHN PLAINTIFF,
AT & T CORP., THE WORLDPARTNERS COMPANY, BRUCE LEASURE AND KAMIE ZARACKI DEFENDANTS.
The opinion of the court was delivered by: Lechner, District Judge.
This is an action by plaintiff Samuel Kohn ("Kohn") against New Jersey
defendants AT & T Corp. ("AT & T"), The WorldPartners Company ("WPC"),
Bruce Leasure ("Leasure") and Kamie Zaracki ("Zaracki") (collectively,
the "Defendants"). In an amended complaint (the "Amended Complaint"),
filed on 21 January 1999, Kohn alleges violations of Title VII of the
Civil Rights Act ("Title VII"), as amended, 42 U.S.C. § 2000e-1, et
seq., the Age Discrimination in Employment Act (the "ADEA"),
29 U.S.C. § 621, et seq., the Americans with Disabilities Act (the
"ADA"), 42 U.S.C. § 12101, et seq. and State law claims for
violations of the Conscientious Employee Protection Act ("CEPA"),
N.J.S.A. 34:19-1, and defamation.
Presently pending is a motion by the Defendants for summary judgment
(the "Summary Judgment Motion") pursuant to Fed.R.Civ.P. 56 ("Rule
56").*fn1 For the reasons which follow, the Summary Judgment Motion is
granted. The remaining State law claims are dismissed without prejudice.
Kohn, a fifty-two year old Jewish male, was hired by AT & T on or about
1 February 1997. See Amended Complaint at ¶¶ 3, 5 and 6; Defendants'
Rule 56.1 Statement at ¶ 1; Kohn Dep. at 46:24-47:4.*fn2
In or about March 1996, Kohn accepted an assignment with WPC, an
affiliate of AT & T. Amended Complaint at ¶ 7; Defendants' Rule 56.1
Statement at ¶ 2. Kohn assumed the position of Manager of Pricing and
Business Analysis with WPC, id. at ¶ 3, while remaning an employee of
AT & T. Amended Complaint at ¶ 8; Defendants' Rule 56.1 Statement at
As Manager of Pricing and Business Analysis, Kohn was responsible
for, among other things, negotiating an Integrated Global Discount
("IGD") among various telephone companies, Amended Complaint at ¶
22, and compiling and maintaining a price book which analyzed prices
charged by telephone companies. Id. at ¶ 29.
Kohn reported directly to Zaracki, then Director of Marketing and
Acting Vice President of Marketing for WPC. Defendants' Rule 56.1
Statement at ¶ 3. When Leasure became Vice President of Marketing in
or about September 1996, Zaracki began reporting to Leasure, who in turn
reported to Simon Krieger ("Krieger"), President of WPC. Id.; see also
Zaracki Aff. at ¶ 2.
2. Performance Reviews of Kohn
According to Zaracki, during the second half of 1996 she began
receiving complaints concerning the work performance of Kohn. Zaracki
Aff. at ¶ 3. Specifically, in August 1996, Zaracki states she was
apprised of two incidents where Kohn engaged in sexually harassing
behavior towards two female employees. Id. Kohn, however, denies having
engaged in any sexually harassment. See Amended Kohn Rule 56.1 Statement
at ¶¶ 4, 20. Zaracki nevertheless states she investigated these
incidents and counseled Kohn concerning his inappropriate behavior.
Zaracki Aff. at ¶ 3*fn3
In or about August 1996, Zaracki states she again met with Kohn (the
"August 1996 Meeting") to discuss a "Career Plan Summary" of the
performance expectations and future goals of Kohn. Id. at ¶ 4*fn4 The
Career Plan Summary states, in relevant part:
[Kohn] desires to further his advancement within AT &
T and to obtain an overseas assignment. To indicate
his readiness for such advancement, [Kohn] must
• Subject matter expertise in the area of
international pricing and the relevant WPC/WPA
processes and policies associated with influencing
of pricing strategy WorldSource SM Services across
• Successful leadership of a broad range of
Partnership, WPC and Member teams in the achievement
of mutual goals/objectives for WorldSourceSM
[Kohn] has only just joined WPC as the Pricing and
Business Analysis Manager. He should continue in this
position for at least 2 more years. This position will
give [Kohn] the opportunities to demonstrate his
readiness for advancement or placement in an overseas
assignment. To facilitate this personal development,
[Kohn] should concentrate his efforts in the following
1. Improving his interpersonal skills and cultural
awareness by demonstrating effective relationship
management with peers, customers and suppliers
— recognizing cultural differences and
modifying his management approach to their needs.
2. Improving his ability to plan and organizing work
activities. [Kohn] must focus on `making it easy' for
others to support his projects, complete
activities necessary for WPC success, etc.
3. Demonstrate his willingness and ability to help
others succeed while ensuring that his business
objectives are also being met. This will require
[Kohn] to successful [sic] multi-task while producing
quality work on time.
Career Plan Summary. Zaracki states that during the
August 1996 Meeting, she advised Kohn he needed to
improve upon his interpersonal skills, cultural
awareness and ability to plan and organize work
activities. Zaracki Aff. at ¶ 4.
Following the August 1996 Meeting, Zaracki states she
"continued to receive complaints about Kohn's work
performance and his interactions with other employees."
Id. at ¶ 5. Zaracki also states she personally
observed "deficiencies in Kohn's performance, including
the fact that he was missing commitments and was having
difficulty managing his projects." Id. As a result,
Zaracki states she held a "coaching/feedback session"
with Kohn in October 1996 (the "October 1996 Feedback
Session") to help Kohn improve his performance. Id. She
describes the session as follows:
During this session, I advised Kohn that his work
performance was declining and that his peers and
clients were complaining about his behavior and lack
of respect, and that if he did not improve, he would
be in danger of receiving a `Partially Met' appraisal
rating for the year. I also provided Kohn with a
Coaching/Feedback [D]ocument*fn5 which described his
career objectives and detailed the skills needed for
him to succeed.
During the October 1996 Feedback Session, Zaracki states she also
provided Kohn with a written Development Plan detailing her expectations
for him for the remainder of 1996. See id. at ¶ 6.*fn6
Also during the October 1996 Feedback Session, Zaracki states she
"discussed with, and provided to, Kohn, numerous examples of his
inappropriate behaviors and performance deficiencies." Id. She
additionally states she prepared and provided to Kohn a document entitled
Examples — S. Kohn Development Opportunities" (the "Illustrative
Examples Document") which detailed examples of his inappropriate
behavior.*fn7 Zaracki then recommended Kohn contact the Employee
Assistance Program. Zaracki Aff. at ¶ 6.
According to Zaracki Kohn's "did not satisfactorily complete the
Development Plan[.]" Id.*fn8
Kohn, by contrast, denied:
that Ms Zaracki `continued to receive complaints'
about [his] performance and interactions `throughout
the second half of 1996.' There was only one instance
during that period when this was brought to [his]
attention, . . . [by way of the Illustrative Examples
Document]. When [Kohn] followed up with the
individuals identified [in the document], [he]
discovered that they denied complaining or reporting
the incidents reflected in the document. [He]
concluded] that this document is simply further
evidence of Ms. Zaracki's attacks on [him].
Kohn Certif. at ¶ 28. He further states:
Ms. Zaracki's characterizations of the [October 1996
Feedback Session] is [sic]
also false. She did not advise me at that time that my
work performance was declining and that peers and
clients were complaining. . . . The coaching/feedback
session was addressed simply to my getting a promotion
and an overseas assignment, developments which
reflected the opposite of declining performance and
increasing complaints. I deny Ms. Zaracki's statements
that I was missing commitments and having difficulty
managing my projects.
Id. at ¶ 29.
Kohn asserts the "difficulties arose because of Ms. Zaracki's disregard
for the legal problems raised by her instructions to me." Id.
Specifically, Kohn states he "objected to carrying out [Zaracki's]
instructions with respect to distributing certain price books because of
antitrust reasons discussed with legal counsel for AT & T." Id. at ¶
4; see also Amended Complaint at ¶¶ 30-31 (alleging that
communications among telephone companies concerning pricing and
publication of prices the companies agreed to charge violates antitrust
laws).*fn9 He likewise alleges he failed to complete the IGD process
development and trial documentation because "communications among
different telephone companies concerning that `integrated global
discount' may reasonably be thought to constitute a violation of the
antitrust laws." Amended Complaint at ¶ 23; see also id. at ¶¶
25-27; Kohn Certif. at ¶¶ 4, 5.
Kohn further asserts he "successfully completed in all material
respects the [Development] Plan, insofar as it could be completed,
without giving effect to illegal actions." Kohn Certif. at ¶ 8. Kohn
opines his sensitivity to these alleged legal problems "prevented AT & T
and the members of [WPC] from the legal liability that would have
followed" had he completed his assigned tasks. Id. at ¶ 5.
It appears from a memorandum sent by Zaracki to Kohn, dated 29 October
1996, (the 29 October 1996 Memorandum) that Kohn was informed there were
no legal impediments to completing his assignments. See 29 October 1996
Memorandum.*fn10 Kohn was directed to complete his projects, which had
been "clearly identified" in his objectives since the preceding April,
notwithstanding his reservations. See id.
3. Alleged Disability
Kohn additionally states he informed Zaracki during the August 1996
Meeting that he suffered from attention deficit disorder ("ADD"). See
Kohn Dep. at 281:5-23; Kohn Certif. at ¶ 27; Amended Complaint at
¶ 5. According to Kohn, during that meeting he "asked [Zaracki] to
speak with [his] physician to get details on the required accomodations
[sic]; she declined. Only several months later did she refer it to [the
Health Affairs division of AT & T ("Health Affairs")], and it was not
until late February [of 1997], some six months after it was first brought
to her attention, that a `report' was issued by Dr. [Joseph] Cillo
[("Dr.Cillo")]." Kohn Certif. at ¶ 27. The Defendants, however,
assert: "Kohn never specified any accommodations he needed to ensure that
he could complete the projects that he was assigned as part of his job
responsibilities." Defendants' Rule 56.1 Statement at ¶ 8.
It appears that on or about 25 November 1996, Zaracki forwarded a
"Request for Employee Fitness Evaluation" to Health Affairs to have Kohn
his alleged ADD. See Zaracki Aff. at ¶ 7*fn11 In or about February
1997, Zaracki received a written evaluation from Dr. Cillo (the "Cillo
Evaluation"). See id.; see also Kohn Certif. at ¶ 27. The Cillo
Evaluation, dated 21 February 1997, provided:
[Kohn] has a medical condition which if optimally managed should not
interfere with his ability to perform his job. Recommendations for the
workplace include the following: He needs a clear statement about
productivity and the outcome expected in a clear set of objectives and
milestones. This would certainly involve a formal performance
improvement plan with well-understood time-bound goals.
It is hoped that distractions and side issues will not be a problem if
the expectation is clear that he focus on what is important to
accomplish his job. He must be urged not to dwell on his perceptions of
supervisors' feelings or `office politics,' but focus on the job at
Zaracki states she discussed the content of the
evaluation with Dr. Cillo. Zaracki Aff. at ¶ 7.
Kohn asserts Zaracki failed to follow the instructions provided by
Cillo, and instead "utilized [Kohn] disability to undercut [his] ability
to perform." Kohn Certif. at ¶ 18; see also Amended Complaint at
¶¶ 45. In this regard, Kohn states Zaracki refused to hold weekly
meetings and failed to provide him with "meaningful feedback" or certain
documents needed to complete assignments. Kohn Certif. at ¶ 18;
Amended Complaint at ¶ 53. Kohn alleges:
Rather than accommodating [sic] [Kohn's] disability,
Ms. Zaracki used that disability to create hostility
and division in the workplace against [Kohn] and
create barriers and obstacles to the successful
completion of his objectives, in violation of the
Amended Complaint at ¶ 49.
4. Events Culminating in Termination of Kohn
On or about 24 February 1997, Zaracki again met with Kohn to discuss
his deficient performance. See Amended Complaint at ¶ 61. Zaracki
states that during the meeting, she provided Kohn with a Performance
Appraisal for the period spanning from 15 March 1996 through 31 December
1996. Zaracki Aff. at ¶ 8; see also Performance Appraisal.*fn13 The
Performance Appraisal observed, inter alia:
[Kohn] successfully developed the WPC proposal for
global discounts (IGD) and reviewed, it with Members
and Partners to gain their input and support. His
document on the IGD concept is well constructed and
easy to understand. However, and more importantly,
[Kohn] did not effectively manage the IGD concept into
a workable plan. As project manager, [Kohn] was
responsible for managing the IGD into market trial by
12/96. This required obtaining Member commitment to
participate in the trial as well as completion of the
Trial Reference Guide documentation, a turn key
document which explains the IGD concept, processes,
roles/responsibilities and Member job aids associated
with IGD. [Kohn] successfully obtained commitment
from six Members to participate in the trial. He did
not complete the IGD process development and trial
documentation in the time frame required. Progress was
so slow that the trial start date, which was the WPC
President's commitment to the Partners, was in
jeopardy. IGD team members repeatedly complained about
lack of effective project management. As a result,
[Kohn] was removed from the project.
[Kohn] did prepare a draft outline of the pricing
strategy document. However, it did not have sufficient
detail to be meaningful. [Kohn] was notified by his
supervisor that the outline was unsatisfactory. No
revisions were submitted for review to his
While [Kohn] completed [a WS-PL price book and work
updating subsequent price books], the work was not
completed in a timely manner. Delays in updating the
price books prevented Members from quickly pricing
initial customer bid requests. The outdated price
books generated more work for the Members in pricing
bids, thus adding to the bid cycle time and a [sic]
creating a source of Member and customer
dissatisfaction. [Kohn] prepared the Offer Management
department budget. He did an adequate job, but
required assistance from his supervisor to identify
errors. In addition, his supervisor determined that
[Kohn] was having difficulty effectively managing the
IGD Offer Development and price book update projects.
This combined with mediocre support of the budgeting
process led his supervisor to conclude that [Kohn]
would not be effective in leading the revenue forecast
project. This critical job responsibility was assigned
to another individual. [Kohn's] overall contribution
to WPC in the area of business plan support was
Performance Appraisal at 1-2.
As a result of the findings in the Performance Appraisal, Kohn received
a "Partially Met" performance rating. Zaracki Aff. at ¶ 8. Kohn then
was presented with an Election Form, dated 24 February 1997, which gave
him option of either (1) being placed on a Performance Improvement Plan
(the "PIP"), which provided for the termination of his employment if he
failed to improve his employment within sixty days, or (2) being
permitted to search for another position full-time for sixty days, after
which his employment would be terminated if he did not find another
position. See Zaracki Aff. at ¶ 9; Election Form.*fn14 The Election
Form further stated: "If employee declines to sign or choose an Option,
he/she will be placed on a PIP immediately." Election Form. Because Kohn
did not sign the Election Form, he was, by default, placed on the sixty
day PIP. See Zaracki Aff. at ¶ 9; Amended Complaint at ¶ 37; Kohn
Certif. at ¶ 23.
A document entitled "Performance Improvement Plan" (the "PIP Document")
was then provided to Kohn. The PIP Document delineated the "skills
required for success," "opportunities to demonstrate skills" and various
"development benchmarks" to be employed by Kohn in improving both his
management and interpersonal skills. See PIP Document.*fn15 The PIP
Document also listed the managerial responsibilities of Kohn:
[Kohn] shall be responsible for carrying out all
phases of the pricing and business analysis projects
assigned to him. This includes but is not limited to:
• Ongoing Member deployment and certification
• FR and PL Price Book updates and distribution
to the required individuals
• Development of pricing strategy document,
updates and revisions based on supervisor(s)
• Conducting price analysis with recommendations
on WorldSource PL
• Ongoing participation in win/loss review
• Develop price structures and supporting
documentation for WorldSource
Source Toll Free Service (Freephone).
Kohn asserts the actives set forth in The PIP
were not clearly defined and there were no objectively
measurable performance criteria . . . Because such
`objectives' were antithetical to the instructions by
AT & T's Dr. Cillo, the application of PIP itself
constituted a violation of the American with
Disabilities Act, for Ms. Zaracki was taking advantage
of [his] disability to assist in [his] being fired.
Kohn Certif. at ¶ 24; see also Amended Complaint at ¶ 62.
Zaracki states Kohn did not successfully complete the terms of the
PIP. Zaracki Aff. at ¶ 11. Zaracki memorialized her findings a "PIP
Results" document, dated 6 May 1997, (the "PIP Results Document") which
reflected her assessment of the performance of Kohn as measured against
the conditions and objectives set forth in the PIP document. The PIP
Results Document stated; inter alia, Kohn failed to complete the "Pricing
Strategy Document" or conduct "PL Competitive Price Analysis[.]" See PIP
Results Document.*fn16 It further observed Kohn "[d]id not take full
responsibility for all decisions (i.e. price book)," "constantly
attempted to get others to complete his activities (i.e. price book,
price strategy document)," and "[d]id not complete activities on time[.]"
Kohn does not contest that he failed to meet the requirements of the
PIP. See Amended complaint at ¶ 64. He simply states Zaracki had
extended the deadlines of various assingments and told him to ignore
certain projects. See Kohn Certif. at ¶¶ 31-33.*fn17 Kohn attributes
other failures to vaguely referenced "legal and regulatory problems."
Id. at ¶ 31; Amended Complaint at ¶¶ 64-66.
Zaracki subsequently recommended Kohn be terminated from his position
with WPC, in light of his failure to successfully complete the PIP.
Zaracki Aff. at ¶ 11. According to Zaracki, both Leasure and Krieger
concurred in and approved her recommendation. Id.
On 8 May 1997, Kohn was terminated from his position with WPC. See
Zaracki Aff. at ¶ 12. By letter, dated 8 May 1997, (the "8 May 1997
Termination Letter") Zaracki informed Kohn he had not met the terms of
the PIP and had thirty days within which to find another position within
AT & T. See 8 May 1997 Termination Letter.*fn18 Kohn was directed to
report immediately to the AT & T Resource Center and to take his personal
belongings with him. Id.
By letter, dated 30 May 1997, (the "30 May 1997 Extension Letter") Kohn
was provided with a thirty-day extension of time within which to utilize
the AT & T Resource Center to find another position with AT & T. See
Zaracki Aff. at ¶ 12; 30 May 1997 Extension Letter.*fn19 While Kohn
searched for another position, Zaracki, Leasure and Krieger agreed to
extend him on the AT & T payroll until 20 June 1997. See Zaracki Aff. at
¶ 12. It appears, however, Kohn did not obtain another position with
AT & T. See id. Consequently, Kohn was removed from the AT & T payroll,
effective 20 June 1997. Id.; Kohn Certif. at ¶ 25.
5. The Instant Complaint
Following his termination, Kohn filed a complaint with the Equal
Commission (the "EEOC"). Kohn Certif. at ¶ 25. Kohn alleges he
received a Right-To-Sue letter from the EEOC on or about 1 September
1998. Amended Complaint at ¶ 18.
As mentioned, Kohn filed the Amended Complaint on 21 January 1999. He
alleges, inter alia, he was illegally terminated and discriminated
against "by reason of his age, his religion and his disabilities," in
violation of Title VII, the ADEA and the ADA. Amended Complaint at ¶¶
1, 5. The Amended Complaint also alleges Zaracki and Leasure engaged in
discriminatory conduct, including:
[Zaracki's] failure to provide [Kohn] with clear
objectives and criteria regarding job expectations and
reasonable managerial support and providing
contradictory direction to [Kohn], her sabotaging
[Kohn's] pricing work by directing co-workers of
[Kohn] not to cooperate with him and providing
misinformation to [Kohn] and his co-workers, her
attempt to isolate [Kohn] from his co-workers, her
failure to accomodate [sic] [Kohn's] observance of
Jewish holy days and dietary requirements, as well as
her failure to follow AT & T-required procedures to
address alleged deficiencies in his work, which
procedures were necessary by virtue of his
disabilities as shown by AT & T's own medical
evaluation. Before terminating an employee with
perceived unsatisfactory performance behavior, these
procedures were required by AT & T in devising and
following through on a PIP . . . which was necessarily
to be in writing and followed through by discussion
and explanation to the affected employee.
The PIP set up by Ms. Zaracki and Mr. Leasure was set up with the
intention of forcing [Kohn] to leave AT & T. The PIP was not used as a
tool to help the employee but, rather was set up and used as a means to
terminate [Kohn]. The alleged plan consisted of vague and obtuse
objectives combined with unclear subjective non-measurable performance
Id. at ¶¶ 10-11. As stated, Kohn alleges, "these actions were
motivated by discrimination against him by reason of his age, his faith
and his disability[.]" Id. at ¶ 16.
Zaracki, however, asserts:
The sole reason for Kohn's termination was his poor
work performance. Neither Kohn's age, religion, his
ADD, nor any legal issues and/or concerns he may have
raised during his assignment to WPC, played any part
in this decision, or for that matter any other
employment action taken with respect to Kohn.
Zaracki Aff. at ¶ 11.
B. Procedural History
Kohn initially filed a complaint against the Defendants in the Superior
Court of New Jersey, Chancery Division, Bergen County (the "Chancery
Division Complaint") on 4 June 1998. See Chancery Division Complaint. The
Chancery Division Complaint alleged violations of CEPA and defamation. By
order, dated 27 January 1999, the Chancery Division Complaint was
dismissed without prejudice. See Stipulation and Order filed with this
Court on 22 March 1999, (the "Stipulation and Order").
On or about 24 November 1998, Kohn filed another complaint against the
Defendants in the Superior Court of New Jersey, Law Division, Bergen
County (the "Superior Court Complaint"). The Superior Court Complaint
alleged, inter alia, the Defendants maintained a pattern and practice of
discrimination against Kohn, in violation of Title VII, the ADEA and the
ADA. See Superior Court Complaint.*fn20
On 8 January 1999, the Defendants timely removed the action to this
court. See Notice of Removal. On 13 January 1999, the Defendants
requested an extension
of time to answer or otherwise move, which request was granted, by order
of the Clerk of the Court, dated 13 January 1999, (the "13 January 1999
Clerk's Order"). See 13 January 1999 Clerk's Order.
As mentioned, Kohn filed the Amended Complaint on 21 January 1999. See
Amended Complaint. The Amended Complaint added claims against the
Defendants for defamation and violations of CEPA. See id. at Counts Two
and Three. Pursuant to the Stipulation and Order, the pauses of action
for defamation and CEPA violations were deemed to have been commenced as
of 4 June 1998, the date of the filing of the Chancery Division
Complaint. See Stipulation and Order.
The Defendants filed an answer (the "Answer") to the Amended Complaint
on 10 March 1999. See Answer. The Summary Judgment Motion was filed on 7
A. Summary Judgment Standard of Review
To prevail on a motion for summary judgment, the moving party must
establish "there is no genuine issue as to any matetrial fact and that
[it] is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c);
see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986); Williams v. Chrysler Corp., 163 F.3d 183, 186 (3d
Cir. 1998); Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d
Cir. 1996); Witco Corp. v. Beekhuis, 38 F.3d 682, 686 (3d Cir. 1994).
Factual disputes may not be resolved on a motion for summary judgment.
See Linan-Faye Constr. Co. v. Housing Auth. of City of Camden, 49 F.3d 915,
926-27 (3d Cir. 1995) ("[A]t the summary judgment stage, `the judge's
function is not . . . to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue for trial'")
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986)); Desvi, Inc. v. Continental Ins. Co.,
968 F.2d 307, 308 (3d Cir. 1992).
When considering a motion for summary judgment, all evidence submitted
must be viewed in a light most favorable to the party opposing the
motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Seitzinger v.
Reading Hosp. & Med. Ctr., 165 F.3d 236, 238 (3d Cir. 1999) (citing Gallo
v. City of Philadelphia, 161 F.3d 217, 219 (3d Cir. 1998)); Williams, 163
F.3d at 186; Healey v. Southwood Psychiatric Hosp., 78 F.3d 128, 130-31
(3d Cir. 1996); General Ceramics Inc. v. Firemen's Fund Ins. Cos.,
66 F.3d 647, 651 (3d Cir. 1995); Meyer v. Riegel Prods. Corp.,
720 F.2d 303, 307 n. 2 (3d Cir. 1983) (stating court must resolve "all
inferences, doubts and issues of credibility . . . against the moving
party"), cert. dismissed, 465 U.S. 1091, 104 S.Ct. 2144, 79 L.Ed.2d 910
When the resolution of issues depends wholly upon the interpretation of
specific statutory language and the applicable law, summary judgment is
appropriate. See DiBiase v. SmithKline Beecham Corp., 48 F.3d 719, 724 (3d
Cir.), cert. denied, 516 U.S. 916, 116 S.Ct. 306, 133 L.Ed.2d 210
(1995); see also Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.) ("[S]ummary
judgment is proper where the facts are undisputed . . ."), cert. denied,
474 U.S. 1010, 106 S.Ct. 537, 88 L.Ed.2d 467 (1985); Estate of Reddert
v. United States, 925 F. Supp. 261, 265 (D.N.J. 1996).
When the nonmoving party bears the burden of proof at trial, the moving
party is entitled to summary judgment by showing "there is an absence of
evidence to support the nonmoving party's case." Celotex, 477 U.S. at
325, 106 S.Ct. 2548. Once the movant demonstrates an essential element of
the nonmovant's case is lacking, the nonmovant must come forward with
sufficient evidence to demonstrate there is a factual controversy as to
that element. See Anderson, 477 U.S. at 247, 106 S.Ct. 2505; Siegel
Transfer, Inc. v. Carrier Express,
Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995); Witco, 38 F.3d at 686. "The
mere existence of a scintilla of evidence in support of the [nonmovant's]
position will be insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff." Anderson, 477 U.S. at 252, 106
S.Ct. 2505; Matsushita, 475 U.S. at 586, 106 S.Ct. 1348 (nonmovant must
"do more than simply show that there is some metaphysical doubt as to the
material facts"); accord Siegel, 54 F.3d at 1130-31; Nevets C.M., Inc.
v. Nissho Iwai Am. Corp., 726 F. Supp. 525, 534 (D.N.J.), aff'd without
op'n, 899 F.2d 1218 (3d Cir. 1990).
If the nonmovant fails to make a sufficient showing regarding an
essential element of its case upon which it will bear the ultimate burden
of proof at trial, all other facts are necessarily immaterial and summary
judgment must be granted. See Celotex, 477 U.S. at 321, 106 S.Ct. 2548;
Siegel, 54 F.3d at 1130-31; see also Armstrong v. City of Dallas,
997 F.2d 62, 67 (5th Cir. 1993) (stating "[s]ummary judgment is
appropriate where critical evidence is so weak or tenuous on an essential
fact that it could not support a judgment in favor of the nonmovant, or
where it is so overwhelming that it mandates judgment in favor of the
In a discrimination action, a defendant must establish "the plaintiff
will be unable to introduce either direct evidence of discrimination or
indirect evidence by showing that the proffered reason for the employment
action is subject to factual dispute." Hankins v. Temple University,
829 F.2d 437, 440 (3d Cir. 1987); see Weldon v. Kraft, 896 F.2d 793, 797
(3d Cir. 1990).
Once a motion for summary judgment is made and supported by
"pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any," see Fed.R.Civ.P. 56(c),
an adverse party may not rest upon the mere
allegations or denials of the adverse party's
pleading, but the adverse party's response, by
affidavits or as otherwise provided in this rule, must
set forth specific facts showing that there is a
genuine issue for trial. If the adverse party does not
so respond, summary judgment, if appropriate, shall be
entered against the adverse party.
Fed.R.Civ.P. 56(e) ("Rule 56(e)"). As noted, to survive a properly
supported motion for summary judgment, the nonmovant must "proffer
evidence significantly probative of the validity of his [or her] claims."
Padillas, 1997 WL 597655, at *3 (citing Anderson, 477 U.S. at 248-49, 106
S.Ct. 2505); see Coolspring Stone Supply, 10 F.3d at 147; Bodie, 682 F.2d
at 439; Jamison, 536 F.2d at 564. Unsworn declarations not filed under
penalty of perjury fail to significantly legitimize claims. See Small, 98
F.3d at 765 n. 5 (citing Adickes, 398 U.S. at 158 n. 17, 90 S.Ct.
1598.); Pastore, 24 F.3d at 511; Radich, 886 F.2d at 1394; Branella, 972
F. Supp. at 300; Maietta, 749 F. Supp. at 1362; Fucci, 969 F. Supp. at
315 n. 8.
B. Framework for Discrimination Claims
As indicated, Kohn alleges the Defendants discriminated against him on
the basis of his religion, age and alleged disabilities in violation of
Title VII, the ADEA and the ADA.
Employment discrimination claims under Title VII, the ADEA and the ADA
may be established either by the presentation of direct evidence of
discrimination, see Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct.
1775, 104 L.Ed.2d 268 (1989); Torre v. Casio, Inc., 42 F.3d 825, 829 (3d
Cir. 1994), or from evidence which creates an inference of
discrimination. See United States Postal Service Rd. of Governors v.
Aikens, 460 U.S. 711, 714 n. 3, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983);
Torre, 42 F.3d at 829; Kralman v. Illinois Dep't of Veterans' Affairs,
23 F.3d 150, 153 (7th Cir.), cert. denied, 513 U.S. 948, 115 S.Ct. 359,
130 L.Ed.2d 313 (1994); Harel v. Rutgers, The State University,
5 F. Supp.2d 246, 263 (D.N.J. 1998). "Direct evidence of
discrimination would be evidence which, if believed, would prove the
existence of the fact in issue without inference or presumption." Torre,
42 F.3d at 829 (emphasis in original; citations and internal punctuation
omitted). Evidence is not direct "where the trier of fact must infer the
discrimination . . . from an employer's remarks." Id. (emphasis in
original; citation omitted).
Where a plaintiff has not presented direct evidence of
discrimination, employment discrimination claims are construed pursuant
to the framework set forth McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and clarified in Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d
207 (1981). See Harel, 5 F. Supp.2d at 263. In McDonnell Douglas and
Burdine the Supreme Court articulated a four-part framework for
evaluating claims of unlawful discrimination under Title VII.*fn21
Under the McDonnell Douglas/Burdine framework, a discharged employee
must first prove a prima facie case of discrimination by a preponderance
of the evidence. Burdine, 450 U.S. at 252-53, 101 S.Ct. 1089 (quoting
McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). To establish a prima
facie case of disparate treatment discrimination, Kohn must prove by a
preponderance of the evidence (1) he belongs to a protected class, (2) he
was qualified for the Manager of Pricing and Business Analysis position
with WPC and was performing at a level which met the legitimate
expectations of WPC, (3) he was not retained in the position, despite
being qualified and (4) he ultimately was replaced by someone not in the
protected class, permitting an inference of discrimination. See Burdine,
450 U.S. at 252-53, 101 S.Ct. 1089; McDonnell Douglas, 411 U.S. at 802,
93 S.Ct. 1817; see also Smith v. Borough of Wilkinsburg, 147 F.3d 272,
278 (3d Cir. 1998); Simpson, 142 F.3d at 643-44 & n. 5; Turner v.
Schering-Plough Corp., 901 F.2d 335, 342 (3d Cir. 1990); Lawrence v.
Nat'l Westminster Bank of N.J., 98 F.3d 61, 65-66 (3d Cir. 1996); Waldron
v. SL Industries, Inc., 56 F.3d 491, 494 (3d Cir. 1995); Sempier v.
Johnson & Higgins, 45 F.3d 724, 728 (3d Cir.), cert. denied, 515 U.S. 1159,
115 S.Ct. 2611, 132 L.Ed.2d 854 (1995); Billet v. CIGNA Corp.,
940 F.2d 812, 816 n. 3 (3d Cir. 1991) (citing Maxfield v. Sinclair
Int'l, 766 F.2d 788, 792 (3d Cir.), cert. denied, 474 U.S. 1057, 106
S.Ct. 796, 88 L.Ed.2d 773 (1986)); Chipollini v. Spencer Gifts, Inc.,
814 F.2d 893, 897 (3d Cir.), cert. dismissed, 483 U.S. 1052, 108 S.Ct.
26, 97 L.Ed.2d 815 (1987).
Once established, a prima facie case creates a presumption of
discriminatory intent by the defendant-employer. See St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407
(1993); Burdine, 450 U.S. at 254, 101 S.Ct. 1089. While the ultimate
burden of persuasion remains with the plaintiff, see Smith, 147 F.3d at
278, the burden of production shifts to the defendant-employer who must
articulate a legitimate, nondiscriminatory justification for terminating
the employee. Hicks, 509 U.S. at 507, 113 S.Ct. 2742; Burdine, 450 U.S.
at 254, 101 S.Ct. 1089; McDonnell Douglas, 411 U.S. at 802, 93 S.Ct.
1817; Lawrence, 98 F.3d at 66. "To accomplish this, the defendant must
clearly set forth, through the introduction of admissible evidence, the
reasons for the plaintiff's rejection." Burdine, 450
U.S. at 255, 101 S.Ct. 1089. At this stage, "the defendant bears only the
burden of explaining clearly the nondiscriminatory reasons for its
actions." Id. at 260, 101 S.Ct. 1089 (rejecting lower court decision
holding defendant to a preponderance of the evidence standard). Once the
employer satisfies this burden, the presumption raised by the prima
facie case is "rebutted" and "drops from the case." Id. at 255 & n. 10,
101 S.Ct. 1089; see Hicks, 509 U.S. at 507, 113 S.Ct. 2742.
A plaintiff-employee must then prove by a preponderance of the evidence
the legitimate reasons proffered by the employer "were not its true
reasons, but were a pretext for discrimination." McDonnell Douglas, 411
U.S. at 802, 93 S.Ct. 1817; see Hicks, 509 U.S. at 507-08, 113 S.Ct.
2742; Burdine, 450 U.S. at 253, 101 S.Ct. 1089; Torre, 42 F.3d at 829;
Fuentes, 32 F.3d at 763; Owen, 1999 WL 43642, at *3 n. 6. Concerning the
"pretext" stage of the McDonnell Douglas/Burdine analysis, this Circuit
To discredit the employer's proffered reason [for
discharging an employee], . . . the plaintiff cannot
simply show that the employer's decision was wrong or
mistaken, since the factual dispute at issue is
whether discriminatory animus motivated the employer,
not whether the employer is wise, shrewd, prudent, or
competent. Rather, the . . . plaintiff must
demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in
the employer's proffered legitimate reasons for its
action that a reasonable factfinder could rationally
find them `unworthy of credence,' and hence infer
`that the employer did not act for [the asserted]
Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 331 (3d Cir.
1995) (quoting Fuentes, 32 F.3d at 765) (emphasis in original) (internal
citations omitted); see Waldron, 56 F.3d at 495 (rejecting the
"pretext-plus" standard under which a plaintiff would have to show
defendant-employer's reasons were false and the real reason for the
employment action was discriminatory).
To survive summary judgment when an employer has articulated a
legitimate, nondiscriminatory reason for its actions,
the plaintiff must point to evidence, direct or
circumstantial, from which a factfinder could
reasonably either (1) disbelieve the employer's
articulated legitimate reasons; or (2) believe that an
invidious discriminatory reason was more likely than
not a motivating or determinative cause of the
Simpson, 142 F.3d at 644 (quoting Fuentes, 32 F.3d at 764); Lawrence, 98
F.3d at 66; Sempier, 45 F.3d at 731.
Once the plaintiff points to evidence sufficient to discredit the
proffered reasons of the defendant-employer, the plaintiff need not also
come forward with additional evidence of discrimination beyond his or her
prima facie case to overcome a summary judgment motion by the defendant.
Brewer, 72 F.3d at 331; Waldron, 56 F.3d at 495.
In this instance, Kohn has not presented, nor does he allege there is
any direct evidence of age, religious or disability discrimination.
Accordingly, his claims are analyzed pursuant to the McDonnell
Douglas/Burdine framework. See Harel, 5 F. Supp.2d at 263. As discussed
below, Kohn has offered no evidence, or even explanation to show the
actions taken by AT & T and WPC*fn22 were prima facie discriminatory.
However, assuming, arguendo, Kohn has stated a prima facie case of
discrimination, he has not adduced facts indicating the proffered reasons
for his termination were pretextual. Material facts relating to the Title
VII, ADEA and
ADA claims of Kohn are not in dispute; AT & T and WPC, therefore, are
entitled to judgment as a matter of law on those claims. The claims of
Kohn against his employer are addressed seriatim.
1. Title VII
As stated, Kohn alleges WPC and AT & T discriminated against him in
part because he was Jewish. See Amended Complaint at ¶ 14. The Amended
Complaint does not set forth specific examples of religious
discrimination. It alleges only that Kohn is Jewish, see Amended
Complaint at 5, and that he was prevented from taking vacation during
Christmas time because he already took vacation time during the Jewish
Holy Days.*fn23 See id. at ¶ 56.
The Kohn Certification similarly omits mention of specific instances of
religious discrimination. Kohn simply states he received the PIP Results
Document, which was "full of erroneous information," after he returned
from vacation for Passover. See Kohn Certif. at ¶¶ 8, 9. Kohn also
states he is an ordained rabbi and discussed with Zaracki that he could
not work on the Jewish Holy Days or on the Sabbath. See id. at ¶ 12.
According to Kohn, Zaracki later falsely testified at her deposition that
she did not know he was an observant Jew. See id. at ¶¶ 11-14.
Title VII provides, in pertinent part:
It shall be an unlawful employment practice for an
(1) to fail or refuse to hire or to discharge any
individual or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of
such individual's race, color, religion, sex or
42 U.S.C. § 2000e-2 (a). In enacting Title VII, Congress sought to
"assure equality of employment opportunities and . . . eliminate those
discriminatory practices and devices which have fostered racially
stratified job environments to the disadvantage of minority citizens."
McDonnell Douglas, 411 U.S. at 800, 93 S.Ct. 1817 (citing, inter alia,
Griggs v. Duke Power Co., 401 U.S. 424, 429, 91 S.Ct. 849, 28 L.Ed.2d 158
(1971)). Congress, however, did not intend Title VII
`to guarantee a job to every person regardless of
qualifications. . . . Discriminatory preference for
any group, minority or majority, is precisely and only
what Congress has proscribed. What is required by
Congress is the removal of artificial, arbitrary, and
unnecessary barriers to employment when the barriers
operate invidiously to discriminate on the basis of
racial or other impermissible classifications.'
Id. at 800-01, 93 S.Ct. 1817 (quoting Griggs, 401 U.S. at 430-31, 91
As discussed, claims of unlawful discrimination under Title VII must be
evaluated pursuant to the McDonnell Douglas/Burdine burden-shifting
scheme. Before the burden of production shifts to the defendant-employer
to articulate a legitimate, nondiscriminatory reason for terminating the
plaintiff-employee, the plaintiff bears the burden of establishing a prima
facie case of discrimination under Title VII. See Hicks, 509 U.S. at
506, 113 S.Ct. 2742; Burdine, 450 U.S. at 254, 101 S.Ct. 1089; McDonnell
Douglas, 411 U.S. at 802, 93 S.Ct. 1817.
As explained below, it appears Kohn has not stated a prima facie case
of discrimination under Title VII. Consequently, WPC and AT & T need not
come forward with a legitimate, nondiscriminatory reason for terminating
his employment. See Spangle v. Valley Forge Sewer Auth., 839 F.2d 171,
174 (3d Cir. 1988) ("Where the plaintiff is unable to establish a prima
facie case, no inference of discrimination is raised and defendants have
no burden to
proffer a reason for its action."). Nevertheless, as discussed below, the
repeated failures of Kohn to remedy his performance deficiencies provide
sufficient, non-pretextual justification for his termination under Title
Preliminarily, the Defendants do not contest Kohn, a member of the
Jewish faith, is part of a "protected class." See Moving Brief at 12 n.
6. The Defendants instead focus on the second element of the prima facie
Kohn failed to improve his unsatisfactory work
performance, despite being repeatedly advised that he
needed to do so . . . . [I]t is clear that Kohn was
not performing his job duties `at a level that met the
employer's legitimate expectations[.]'
Id. at 13 (quoting Turner, 901 F.2d at 342).
Kohn admits he failed to perform various tasks assigned to him, and
offers excuses for his failure to do so. In this regard, he states the
"questionable legality" of negotiating an IGD and compiling prices
precluded his timely completion of these tasks or of the PIP. See Kohn
Certif. at ¶ 4. Kohn, however, refused to complete these assignments
even after WPC and AT & T assured him there would be no attendant legal
implications. See id. at ¶ 16 (citing 29 October 1996 Memorandum).
The 29 October 1996 Memorandum from Zaracki to Kohn stated, in pertinent
We have already discussed the legal issue that you
raise. There isn't one. If a meeting is required [to
discuss Kohn's allegations of illegality], then you
better set it up. Regardless of the outcome or
scheduling conflicts, the due date for completion of
this project is still the same.
Sam, this project has been clearly identified in your
objectives since April. You have had plenty of time to
work the issues associated with the project. The
deliverables are overdue and this project is not yet
completed. The due date for completion of this project
is 11/22. I would strongly recommend that you focus
your energies on completing this work per my
instructions instead of creating new blocking issues
and asking me to make your decisions for you.
29 October 1996 Memorandum.
Kohn offers other excuses as well, asserting, among other things,
Zaracki had extended the deadline for the price analysis beyond the dates
set forth in the PIP. See Kohn Certif. at ¶ 32. The PIP Results
Document submitted by the Defendants indicates the original deadline for
completing the price analysis was extended by ten days. See PIP Results
Document. The PIP Results Document also reveals that Kohn failed to meet
this extended deadline as well. See id. Significantly, Kohn does not
dispute he missed the extended deadline for completing the price
In contrast to the weak excuses offered by Kohn, the Defendants
submitted several documents indicating Kohn was not performing his job
duties at an acceptable level, despite ample guidance and feedback from
his supervisors. It appears Zaracki provided Kohn with the Career Plan
Summary, the Coaching/Feedback Document, the Development Plan, the
Illustrative Examples Document and the Performance Appraisal all well in
advance of his termination in May 1997. It appears all of these documents
clearly delineated the tasks required of Kohn and set forth guidelines
for appropriate office behavior. It further appears Zaracki informed Kohn
in August 1996, and again in the October 1996 Feedback Session, that his
interpersonal and job-related skills needed to improve. Finally, it
appears from the PIP Document and PIP Results Document that Kohn was again
made aware of the tasks and skills needed to avoid termination, but
failed to successfully complete meet most of the tasks or conform his
behavior accordingly. See PIP Document; PIP Results Document.
Kohn fails to proffer any credible evidence indicating his performance
a level which met the legitimate expectations of WPC or AT & T. In
opposition to the Summary Judgment Motion, he argues:
[W]e submit, the credible evidence will show that
[Kohn] was performing his job properly, and that he
was fired because of the discrimination against him
Opposition Brief at 3. Mere reliance of conclusory arguments will not
establish a genuine issue of material fact. See Maguire v. Hughes
Aircraft Corp., 912 F.2d 67, 72 (3d Cir. 1990); Schoch v. First Fidelity
Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990); Cigarrera La Moderna
v. Inventory Mgmt. Consultant Group, Ltd., No. 95-1788, 1998 WL 419460,
at *3 (D.N.J. July 20, 1998).
In further opposition to summary judgment, counsel for Kohn states the
case "will turn on the credibility of Kamie Zaracki versus that of
[Kohn]." Freedman Certif. at ¶ 3; see also Opposition Brief at 2. In
light of the documents proffered by the Defendants which support the
statements of Zaracki, there is no genuine issue of material fact as to
the credibility of Zaracki concerning Kohn's job performancee. As
stated, Kohn concedes he was not performing various job assignments. In
addition, that Zaracki may have been aware Kohn is Jewish, as Kohn
asserts, is irrelevant absent any credible evidence of discriminatory
Because Kohn has not met his burden of establishing a prima facie case
of religious discrimination, the Defendants need not articulate a
legitimate, nondiscriminatory reason for terminating his employment. See
Hicks, 509 U.S. at 507, 113 S.Ct. 2742; Burdine, 450 U.S. at 254, 101
S.Ct. 1089; McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Lawrence,
98 F.3d at 66; Spangle, 839 F.2d at 174. As explained, however, the
Defendants have nevertheless articulated legitimate, nondiscriminatory
reasons for terminating Kohn, namely, his repeated failures to remedy the
deficiencies in his work performance and, ultimately, his failure to meet
the terms of the PIP. As discussed, Zaracki repeatedly alerted Kohn to
problems with his job performance and advised him he needed to improve his
job-related skills. Despite denials by Kohn that such problems existed,
the submissions of the Defendants reveal the problems were
As discussed, to survive a summary judgment motion, Kohn must come
forward with facts or inferences logically flowing from such facts which
discredit the proffered legitimate, nondiscriminatory reasons of WPC and
AT & T for his termination. See Simpson, 142 F.3d at 644; Lawrence, 98
F.3d at 66; Sempier, 45 F.3d at 731. Kohn, however, simply argues in
conclusory fashion: "On this summary judgment motion, we submit that
[Kohn] has established, as the minimum, that the stated reason [for his
termination] is a pretext. The motion should be denied." Opposition Brief
at 3. Critically, Kohn points to no evidence, direct or circumstantial,
suggesting the legitimate, nondiscriminatory reasons proffered by the
Defendants are a pretext for religious discrimination.
It appears, moreover, Kohn was not terminated until repeated efforts by
the Defendants to remedy his performance deficiencies proved unfruitful.
The Defendants gave Kohn ample opportunity to improve his work
performance. In any event, whether the decision of WPC to fire Kohn was
prudent or wise is irrelevant; Kohn must offer evidence, direct or
circumstantial, to demonstrate the decision was "weak, implausible,
contradictory, or coherent" or that discriminatory animus was the likely
impetus for the decision. See Silvestre v. Bell Atlantic Corp.,
973 F. Supp. 475, 483 (D.N.J.) (quoting Fuentes, 32 F.3d at 765), aff'd,
156 F.3d 1225 (3d Cir. 1998).
Although the evidence must be viewed in the light most favorable to
Kohn, see Matsushita, 475 U.S. at 587, 106 S.Ct. 1348, Kohn has not
submitted any evidence,
under oath or otherwise, to demonstrate religious discrimination. The
unsupported, conclusory allegations of Kohn do not create a genuine issue
of material fact. See Schoch, 912 F.2d at 657. Accordingly, summary
judgment is granted in favor of AT & T and WPC as to the Title VII claims
2. The ADEA
Kohn additionally alleges he was terminated in violation of the ADEA.
In support of this claim, Kohn alleges a single fact: he is fifty-two
years old. See Amended Complaint at ¶ 3.
The ADEA was enacted in 1967 "to promote employment of older persons
based on their ability rather than age; to prohibit arbitrary age
discrimination in employment; [and] to help employers and workers find
ways of meeting problems arising from the impact of age on employment."
29 U.S.C. § 621 (b). The ADEA is intended to further the dual goals
of compensating victims of discrimination and deterring employers from
discriminating against older workers. Long v. Sears Roebuck & Co.,
105 F.3d 1529, 1541 (3d Cir.), cert. denied, ___ U.S. ___, 118 S.Ct.
1033, 140 L.Ed.2d 100 (1998). The ADEA makes it illegal for employers to
refuse to hire, to fire or to discriminate against an employee "with
respect to his [or her] compensation, terms, conditions, or privileges of
employment, because of such individual's age." 29 U.S.C. § 623 (a)(1)
("Section 623").*fn24 A cause of action under the ADEA is limited to
plaintiffs who are at least forty years of age. 29 U.S.C. § 631.
To recover in an age discrimination suit, a plaintiff must prove, by a
preponderance of the evidence, age was a determinative factor in the
employment decision at issue. Billet, 940 F.2d at 816; Bartek v. Urban
Redevelopment Auth. of Pittsburgh, 882 F.2d 739, 742 (3d Cir. 1989). A
plaintiff, however, is not required to prove "that age was the sole or
exclusive reason, but rather that `age made a difference' in the
employer's decision." Billet, 940 F.2d at 816 (citation omitted).
As discussed, age discrimination claims are governed by the burden
shifting analysis enunciated in McDonnell Douglas, 411 U.S. 792, 93
S.Ct. 1817, 36 L.Ed.2d 668, refined in Burdine, 450 U.S. at 252-53, 101
S.Ct. 1089 and clarified in Hicks, 509 U.S. at 506, 113 S.Ct. 2742. See
Hicks, 509 U.S. at 506, 113 S.Ct. 2742; Simpson, 142 F.3d at 643 (citing
Sempier, 45 F.3d at 728); Johnson v. Penske Trnck Leasing Co.,
949 F. Supp. 1153, 1170-71 (D.N.J. 1996). Kohn has not come forward with
any evidence, direct or circumstantial, to support his claims of age
discrimination; a careful review of the submissions, moreover, reveals no
To establish a prima facie case of age discrimination, Kohn must
establish (1) he is forty years of age or older and therefore belongs to
a protected class, (2) he was qualified for the position from which he
was discharged, (3) he was dismissed notwithstanding his qualifications
and (4) he was replaced by an individual sufficiently younger to permit
an inference of discrimination. Armbruster v. Unisys Corp., 32 F.3d 768,
777 (3d Cir. 1994) (citing Burdine, 450 U.S. at 253, 101 S.Ct. 1089 and
McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817).
It is undisputed Kohn falls within the protected age group under the
See Moving Brief at 12 n. 6. As discussed in conjunction with his Title
VII claim, however, Kohn has not even alleged facts indicating he was
dismissed by WPC because of his age, despite being qualified. See Amended
Complaint. The Amended Complaint is devoid of any specific examples of
age discrimination; it merely alleges Kohn is fifty-two years old. See
Kohn also has not indicated in any of his submissions that he was
replaced by an individual sufficiently younger, permitting an inference
of discrimination. The Opposition Brief and the Kohn Certification do not
even mention age or any facts hinting at age discrimination. See
Opposition Brief. That Kohn is fifty-two years old does not create a
genuine issue of material fact. As discussed, mere conclusory allegations
of age discrimination are insufficient to survive a properly supported
motion for summary judgment. See Maguire, 912 F.2d at 72; Schoch, 912
F.2d at 657. Because Kohn has not stated a prima facie case of age
discrimination, much more demonstrated the legitimate, nondiscriminatory
reasons for his termination were pretextual, the ADEA claim against WPC
and AT & T is dismissed.
3. ADD as a Disability Under the ADA
As indicated, Kohn also alleges WPC and AT & T violated the ADA by
discriminating against him by virtue of his ADD. Specifically, Kohn
alleges WPC and AT & T were aware Kohn suffered from ADD, but
nevertheless failed to provide him with clear objectives and criteria
concerning their job expectations for him. See Amended Complaint at
The ADA proscribes discrimination against a qualified individual with a
disability because of the disability of such individual in regard to job
application procedures, the hiring, advancement or discharge of
"employees, employee compensation, job training and other terms,
conditions and privileges of employment." 42 U.S.C. § 12112 (a). The
term "qualified individual with a disability" refers to a person who,
with or without "reasonable accommodation," can perform the essential
functions of the employment position that person holds or seeks.
42 U.S.C. § 12111 (8).
The McDonnell Douglas/Burdine framework described above also applies to
the analysis of suits brought under the ADA. See Walton, 168 F.3d at
666; Olson, 101 F.3d at 951 (citing Newman, 60 F.3d at 157).
Accordingly, Kohn bears the burden of establishing a prima facie case of
unlawful disability discrimination. See id.
To establish a prima facie case of disability discrimination under the
ADA, Kohn must prove by a preponderance of the evidence that (1) he
belongs to a protected class under the ADA, (2) he was otherwise
qualified to perform the essential functions of the position, (3) he was
dismissed despite being qualified and (4) he was ultimately replaced by a
person sufficiently outside the protected class to create an inference of
discrimination. See Gaul v. Lucent Technologies, Inc., 134 F.3d 576, 580
(3d Cir. 1998) (citing Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir.
1996)); Olson, 101 F.3d at 952; Lawrence, 98 F.3d at 68; Sempier, 45 F.3d
at 728; Chipollini, 814 F.2d at 897; Owen, 1999 WL 43642, at *4
At issue in the instant case is whether Kohn falls within the protected
class. Resolution of this issue depends on whether the ADD of which Kohn
claims to suffer is a "disability" under the ADA. See Gaul, 134 F.3d at
580; Olson, 101 F.3d at 952.
The ADA defines "disability" to mean:
(A) a physical or mental impairment that substantially
limits one or more of the major life activities of
. . . [an] individual; (B) a record of such an
impairment; or (C) being regarded as having such an
42 U.S.C. § 12101 (2) ("Section 12101(2)") (emphasis added). Major
life activities include activities such as "caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning and working." 29 C.F.R. § 1630 (I). To be considered
"substantially limit[ed]" in a major life activity, a plaintiff must be
significantly restricted in the performance of the activity, compared to
the average person. 29 C.F.R. § 1630.2 (j).
Because Kohn has not alleged he has a record of an impairment or that
he was regarded as having an impairment, see 42 U.S.C. § 12101 (2)(B)
and (C), he therefore must proffer evidence indicating (1) he suffers
from a physical or mental impairment (2) which limits a major life
activity (3) to a substantial degree. See 42 U.S.C. § 12101 (2)(A)
(emphasis added); see also Bercovitch v. Baldwin School, Inc.,
133 F.3d 141, 155 (1st Cir. 1998).
This Circuit has not squarely addressed whether ADD or the related
condition, Attention Deficit-Hyperactivity Disorder ("ADHD"), qualifies
as an impairment within the meaning of Section 12101(2).*fn25 Most
courts which have addressed this issue have concluded that ADD and ADHD
qualify as mental impairments under the ADA. See DeMar v. Car-Freshner
Corp., 49 F. Supp.2d 84, 89 (N.D.N.Y. 1999) (citing Bercovitch, 133 F.3d
at 155); Axelrod v. Phillips Academy, Andover, 46 F. Supp.2d 72, 82
(D.Mass. 1999); Bingham v. Oregon School Activities Ass'n,
37 F. Supp.2d 1189, 1195 (D.Or. 1999); cf. Davidson v. Midelfort Clinic,
Ltd., 133 F.3d 499, 505-06 (7th Cir. 1998). In so finding, it has been
Although the relevant regulations do not specifically
list ADHD as an included physical or mental
impairment, the list is not exhaustive and includes
"[a]ny mental or psychological disorder such as mental
retardation . . . emotional or mental illness, and
specific learning disabilities. . . ." ADHD is not a
learning disability per se.
It is listed as a `mental disorder' in the American
Psychiatric Association's Diagnostic and Statistical
Manual of Mental Disorders (DSM-IV).
Bercovitch, 133 F.3d at 155 n. 18 (quoting 28 C.F.R. § 36.104); see
DeMar, 49 F. Supp.2d at 89.
Whether ADD constitutes a mental impairment within the meaning of the
statute is not dispositive of whether ADD is a disability under the ADA,
however. "The ADA does not consider every impaired person to be disabled
as defined under the statute." DeMar, 49 F. Supp.2d at 89. As stated, the
ADD must also "substantially limit" a major life activity. See
42 U.S.C. § 12101 (2)(A).
A person is "substantially limited" in a major life activity when he or
(i) Unable to perform a major life activity that the
average person in the general population can perform;
or [is] (ii) significantly restricted as to the
condition, manner or duration under which [he or she]
can perform a particular major life activity as
compared to the condition, manner, or duration under
which the average person in the general population can
perform that same major life activity.
29 C.F.R. § 1630.3Cj)(1). Where the major life activity involved is
working, an individual is substantially limited if he or she is
"significantly restricted in the ability to perform either a class of
jobs or a broad range of jobs in various classes as compared to the
average person having comparable training, skills and abilities." Id.
§ 1630(j)(3)(i). The effects of ADD on a claimant, therefore, must
be measured in relation to the performance of an average person having
comparable training, skills and abilities. See Bercovitch, 133 F.3d at
155-56; Roth v. Lutheran Gen. Hosp. 57 F.3d 1446, 1454 n. 12 (7th Cir.
1995); Price v. Nat'l Bd. of Medical Examiners, 966 F. Supp. 419, 427
(S.D.W.Va. 1997) (adopting the "comparison to most people" approach when
evaluating whether ADD is a disability under the ADA).
Impairments which merely affect major life activities must be
distinguished from impairments which substantially limit major life
activities. DeMar, 49 F. Supp.2d at 89 (citing Ryan v. Grae & Rybicki,
135 F.3d 867, 869-70 (2d Cir. 1998)); see Knapp v. Northwestern
University, 101 F.3d 473, 481 (7th Cir.) ("Not every impairment that
affects an individual's major life activities is a substantially limiting
impairment.") cert. denied, 520 U.S. 1274, 117 S.Ct. 2454, 138 L.Ed.2d
212 (1997). "[T]he impairment must be significant, and not merely
trivial." Reeves v. Johnson Controls World Servs. Inc., 140 F.3d 144, 151
(2d Cir. 1998) (quoting Sutton v. United Air Lines, Inc., 130 F.3d 893,
898 (10th Cir. 1997)); Davidson, 133 F.3d at 505-06; Price, 966 F. Supp.
The Defendants, citing Davidson, 133 F.3d 499 (7th Cir. 1998) and Jones
v. Men's Wearhouse, No. 97-1891, 1999 WL 134210 (N.D.Tx. Mar. 10,
1999),*fn26 argue: "Kohn may suffer from ADD; however, Kohn's ADD is not a
disability under the ADA because there is no evidence that he is unable
to perform or is significantly restricted in his performance of a major
life activity." Moving Brief at 19.
Kohn, by contrast, argues in his Opposition Brief:
Defendant's [sic] . . . claim that [ADD] is not a
disability under the [ADA], citing the Davidson case.
But that case ruled that there was sufficient evidence
to permit the factfinder there to conclude that the
impairment substantially limited plaintiff's abilities
as a person with a disability for purposes of the
Curiously, [D]efendants also cite the Jones case,
although in that case the Court rule first that Jones'
discharge claim was barred for failure to exhaust his
administrative remedies and Jones submitted no medical
or expert testimony supporting his ADD claim.
Here, defendant's [sic] own doctor [Cillo] admitted
[Kohn] suffered from a medical condition that required
he be treated in a particular manner, which [Kohn] has
shown was not followed by Ms. Zaracki. Moreover,
[Kohn] has submitted a report from the physician who
had been treating him for ADD. Defendants have
submitted nothing factual proving that [Kohn] did not
suffer from ADD; to the contrary, defendant Zaracki's
action have shown her failure to accomodate [sic]
[Kohn's] medical condition, as part of her scheme to
Opposition Brief at 4. Kohn also submitted a report prepared by Dr.
Michael R. Milano, M.D., dated 25 March 1999, (the "Milano Report"). The
Milano Report states, in relevant part:
Mr. Samuel Kohn . . . is a 54 year old man who was
first seen by me in conjoint psychotherapy with his
now ex-wife in 1981. . . . During that period and for
several years after, Mr. Kohn engaged in weekly
psychotherapy which focused largely on the need to
comprehend the problems which he had brought to the
marriage and to develop new relationship patterns with
his children and others in his personal life. . . .
During this time, difficulties in work adaptations
were not prominent concerns. Psychotherapy might have
concluded with the resolutions of some of these issues
when the focus of therapy shifted to several new areas
. . . [F]or the first time, employment issues became
paramount in his therapy. From 1995 through his
employment termination in 1998 we intensified the
focus on Mr. Kohn's Adult Type Attention Deficit
Mr. Kohn's degree of impairment varied from modestly
severe . . . to mild It was apparent long before this
that Mr. Kohn had lifelong ADD and part of earlier
psychotherapeutic work had dealt with the impact on
his social life. . . . He is currently benefiting
[sic] from Paxil 20 mg per day.
Throughout 1998, Mr. Kohn was profoundly concerned
with the job problems that ultimately led to his
termination. We discussed and tried to implement
behavioral modifications that would optimize his
performance. I had one lengthy phone conversation with
Dr. Cillo where we reviewed some specific
recommendations, such as: Try to make instructions
clear and unambiguous. Help Mr. Kohn to be more
directed and terse in his communication. Ignore a
degree of messiness and non corporate dress that were
minor manifestation. Be patient in clarifying issues
of misunderstanding. Finally, ADD can be both a
liability and an asset, and look for creative
From mid 1997 on, work related issues have dominated
the therapy. Mr. Kohn has worked to minimize the
psychological damage from his termination and to
continue to improve his functioning as an individual
despite major cardiac surgery and the stresses he has
described relating to work. When he completes his
cardiac rehabilitation I would see him highly
qualified for the work he has done.
Viewing the facts in a light most favorable to Kohn, it nevertheless
appears Kohn does not suffer from a "disability" within the meaning of the
statute. Specifically, Kohn has not adduced facts indicating he
was substantially limited in performing a major life activity, namely,
his job duties and responsibilities.
Contrary to the conclusory assertions of Kohn, the condition of ADD, in
itself, does not create a genuine issue of material fact as to whether
Kohn is "disabled" under The ADA. See Davidson, 133 F.3d 506; Jones, 1999
WL 134210, at *3; DeMar, 1999 WL 34973, at *6. Critically, Kohn has not
offered evidence comparing his ability to work with that of the average
person. See 29 C.F.R. § 1630(j); see also DeMar, 1999 WL 34973, at *6
("Notably absent from Plaintiff's allegations are specific facts or
evidence demonstrating that Plaintiff is substantially limited in his
ability to concentrate [or work by virtue of ADD] in comparison to the
general population. . . . [N]either `conclusory statements, conjecture,
[n]or speculation' suffices to defeat summary judgment."); Davidson, 133
F.3d at 506. That the "Defendants have submitted nothing factual proving
that [Kohn] did not suffer from ADD[,]" Opposition Brief at 4, is
irrelevant absent proof the ADD was substantially limiting as compared
with the average person having comparable training, skills and
Kohn also has not identified which of his job requirements were
rendered significantly more difficult because of the unarticulated
limitations alleged to have been imposed on him by virtue of having ADD.
See Davidson, 133 F.3d at 507 ("In the face of [Defendant's] motion for
summary judgment, [plaintiff] needed to identify what requirements posed
by the class of . . . jobs (or, alternatively, by a broad range of other
jobs) were problematic in light of the limitations that ADD imposed upon
her.").*fn28 Kohn has not demonstrated his ADD precluded him from
performing specific duties as Manager of Pricing and Business Analysis or
from holding other comparable positions.
The Milano Report also does not establish Kohn is significantly
restricted in his ability to perform as Manager of Pricing and Business
Analysis or a class of jobs, as compared to the average person having
comparable training, skills and "abilities. See 29 C.F.R. § 1630(j).
It states only that Kohn suffers from ADD, which, as discussed, ifs
insufficient absent proof of substantial limitations on his job
performance. Consequently, Kohn has not adduced facts evidencing an
inability to perform or any significant" restrictions as to the
condition, manner, or duration under which he can work. See Jones, 1999
WL 134210, at *3 (holding plaintiff's ADD did not substantially limit
him, where plaintiff did not offer evidence indicating he was unable to
perform or was significantly restricted in any way).
Because Kohn has not demonstrated he is disabled within the meaning of
the ADA, WPC and AT & T need not demonstrate they provided Kohn with
reasonable accommodations. Pursuant to 42 U.S.C. § 12112(b),
[N]ot making reasonable accommodations to the known
physical or mental limitations of an otherwise
qualified individual with a disability who is an
applicant or employee, unless [the employer] can
demonstrate that the accommodation would impose an
undue hardship on the operation of the business of
42 U.S.C. § 12112 (b)(5)(A) (emphasis added); see Walton, 168 F.3d at
670; see also 29 C.F.R. § 1630.9 ("[I]t is the responsibility of the
individual with a disability to
inform the employer that an accommodation is needed.") (Emphasis added).
In any event, it appears WPC and AT & T provided Kohn with clear
objectives and criteria concerning job expectations as early as October
1996. As discussed, in February 1997, Dr. Cillo recommended Kohn be given
"a clear statement about productivity and the outcome expected; a clear
set of objectives and milestones. This would certainly involve a formal
performance improvement plan with well-understood time-bound goals." Cillo
Evaluation. Following these recommendations, Zaracki provided Kohn the
PIP Document, which clearly set forth objectives and milestones. See PIP
Document. Specifically, the PIP Document delineated, among other things,
the following "developmental benchmarks" and "deliverables" to which Kohn
should have adhered:
• Complete project deliverables on time
• Work review process into the planning timeline
• Develop/use written project plan with
milestones, DD, individual responsible as mechanism
to communicate project progress
• Written meeting minutes with deliverables noted
and distributed to team members
• Take initiative to work objectives and find
solutions to blocking issues, proactively reviews
• Proactive follow-up with others to ensure
project deliverables met
• Take initiative to find `parallel examples' to
use as models in developing outputs
1. Continue on-going deployment support of:
• Telecom Malaysia
• AT & T Canada
This includes but is not limited to providing
pricing tutorials as needed, responding to ad hoc
price questions, proofing Member input to FR and PL
price books to ensure quality.
2. Complete Price Book update process for FR and PL by
4/1/97. . . .
3. Participate in Ongoing Win/Loss Reviews This
includes successful completion of any work items
resulting from the process. [Kohn] should provide
courtesy copies of his responses to work
assignments from these meetings to his supervisor.
4. Complete Development of The WorldSourceSM
Services Pricing Strategy document by
4/20/97. . . .
5. Complete Competitive Price Analysis including
appropriate Member recommendations on
WorldSourceSM PL by 4/20/97. . . .
6. Develop suggested price structure for WorldSource
Toll Free Service by 4/20/97.
Id. The PIP Document additionally listed skills Kohn needed to master to
be a successful Manager of Pricing and Business Analysis:
• Good organizing and planning skills of
self, others, projects
• Sets clear direction for self and others
consistent with job objectives
• Plans in advance — both for primary
output and contingency plans
• Makes timely decisions appropriate to team and
• Helps others achieve their goals and
• Demonstrates interpersonal flexibility Moves
concepts from theory to practical application and
• Demonstrates support of management direction
Id. The PIP Document also listed the managerial responsibilities of
[Kohn] shall be responsible for carrying out all phases of the pricing
and business analysis projects assigned to him. This includes but is not
• Ongoing Member deployment and certification
• FR and PL Price Book updates and distribution
to the required individuals
• Development of pricing strategy document,
updates and revisions based on supervisor(s) input
• Conducting price analysis with recommendations
on WorldSource PL
• Ongoing participation in win/loss review
• Develop price structures and supporting
documentation for WorldSource Toll Free Service
The conclusory allegations of Kohn that the PIP objectives "were not
clearly defined," Kohn Certif. at ¶ 23 and "were very general,
confusing and not objectively and specifically measurable," Amended
Complaint at ¶ 62, are unpersuasive in light of the straightforward
criteria set forth in the PIP Document.
It appears, moreover, Kohn never requested any specific
accommodations. See 29 C.F.R. § 1630; see also Kaltenberger v. Ohio
College of Podiatric Medicine, 162 F.3d 432, 437 (6th Cir. 1998) ("[T]he
[Defendant] was not obligated to provide accommodation until plaintiff
had provided a proper diagnosis of ADHD and requested a specific
accommodation."). Zaracki testified that Kohn never provided his
supervisors with any specific direction as to the nature and type of
accommodations he required. See Deposition of Zaracki, dated 22 March
1999, (the "Zaracki Dep.") at 67:14-15.*fn29 Kohn has not proffered any
evidence indicating otherwise. The conclusory allegations of Kohn,
without more, are insufficient to overcome the Summary Judgment Motion.
See Maguire, 912 F.2d at 72; Schoch, 912 F.2d at 657; La Moderna, 1998 WL
419460, at *3*fn30
C. Liability of Individual Defendants Under Title VII, the ADEA
and the ADA
The Defendants further argue: "There is no basis in law for holding
[D]efendants Zaracki and Leasure individually liable under Title VII,
ADEA or the ADA." Moving Brief at 21; see Reply Brief at 12.
"`[I]n the context of employment discrimination, the ADA, ADEA and
Title VII all serve the same purpose — to prohibit discrimination
in employment against members of certain classes.'" Walton, 168 F.3d at
666 (quoting Newman, 60 F.3d at 157); see DeJoy v. Comcast Cable
Communications, Inc., 941 F. Supp. 468, 473 (D.N.J. 1996). Courts,
including the Third Circuit, routinely use the case law under all three
statutes interchangeably. Walton, 168 F.3d at 666; DeJoy, 941 F. Supp. at
When addressing the question of individual liability under these
statutes, therefore, case law interpreting any of these statutes is
relevant. See Stults v. Conoco, Inc., 76 F.3d 651, 655 (5th Cir. 1996);
Williams v. Banning, 72 F.3d 552, 553 (7th Cir. 1995); Matthews v.
Rollins Hudig Hall Co., 72 F.3d 50, 52 n. 2 (7th Cir. 1995) (dicta);
Thelen v. Marc's Big Boy Corp., 64 F.3d 264, 267 n. 2 (7th Cir. 1995)
(dicta); U.S. EEOC v. AIC Security Investigations, Ltd., 55 F.3d 1276,
1280 (7th Cir. 1995); Smith v. Lomax, 45 F.3d 402, 403 n. 4 (11th Cir.
1995); Miller v. Maxwell's Int'l, Inc., 991 F.2d 583, 587 (9th Cir.),
cert. denied, 510 U.S. 1109, 114 S.Ct. 1049, 127 L.Ed.2d 372 (1994);
Fullman v. Philadelphia Int'l Airport, 49 F. Supp.2d 434, 441 (E.D.Pa.
1999); Cohen v. Temple Physicians, Inc., 11 F. Supp.2d 733, 736 (E.D.Pa.
1998) (citing DeJoy, 941 F. Supp. at 474).
The Title VII, ADA and ADEA definitions of "employer" are virtually
identical. Title VII provides for liability for discriminatory conduct
against a "person engaged in an industry affecting commerce who has
fifteen or more employees . . . and any agent of such a person."
42 U.S.C. § 2000e. The term "employer" under the ADA is similarly
defined as "a person engaged in an industry affecting commerce who has
fifteen or more employees . . . [or] any agent of such a person. . . ."
42 U.S.C. § 12111 (5)(A); see also Sheridan v. E.I. DuPont de Nemours
& Co., 74 F.3d 1439, 1996 WL 36283, at *13 (3d Cir.), vacated on other
grounds, 74 F.3d 1439 (3d Cir. 1996) (en banc) (observing ADA definition
concerning who can be held liable "mirror [those] of Title VII");
Fitzpatrick v. Commonwealth of Pa., No. 99-64, 1999 WL 164476, at *5
(E.D.Pa. Mar. 25, 1999) ("[T]he ADA's definition of `employer' . . . is
in relevant respects identical to Title VII's definition."). Likewise,
the ADEA defines "employer" as "a person engaged in an industry affecting
commerce who has twenty or more employees . . . [or] any agent of such a
person." 29 U.S.C. § 630 (b); see also Martin v. United Way of Erie
County, 829 F.2d 445, 448 (3d Cir. 1987) (observing similarities in
definitions of "employer" in ADEA and Title VII); EEOC v. Zippo Mfg.
Co., 713 F.2d 32, 38 (3d Cir. 1983). These statutes do not contain
similar provisions providing for liability against an individual
Several courts of appeals have considered the question of individual
employee liability in cases under the ADA, ADEA and Title VII. The
majority of these courts have rejected the concept of employee
liability. See, e.g., Wathen v. General Elec. Co., 115 F.3d 400, 405 (6th
Cir. 1997) (Title VII); Mason v. Stallings, 82 F.3d 1007, 1009 (11th
Cir. 1996) (ADA); Stults, 76 F.3d at 655 (ADEA), Tomka v. Seiler Corp.,
66 F.3d 1295, 1313-17 (2d Cir. 1995) (Title VII); Gary v. Long,
59 F.3d 1391, 1399 (D.C.Cir.) (Title VII), cert. denied, 516 U.S. 1011,
116 S.Ct. 569, 133 L.Ed.2d 493 (1995); AIC Security Investigations, 55
F.3d at 1279-82 (ADA); Cross v. Alabama, 49 F.3d 1490, 1504 (11th Cir.)
(Title VII and ADA), reh'g denied, 59 F.3d 1248 (11th Cir. 1995); Smith,
45 F.3d at 403 n. 4
(Title VII and ADA); Birkbeck v. Marvel Lighting Corp., 30 F.3d 507,
510-11 (4th Cir.) (ADEA), cert. denied, 513 U.S. 1058, 115 S.Ct. 666, 130
L.Ed.2d 600 (1994); Grant v. Lone Star Co., 21 F.3d 649, 653 (5th Cir.)
(Title VII), cert. denied, 513 U.S. 1015, 115 S.Ct. 574, 130 L.Ed.2d 491
(1994); Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir. 1993)
(Title VII); Miller, 991 F.2d at 587 (Title VII and ADEA); Busby v. City
of Orlando, 931 F.2d 764, 772 (11th Cir. 1991) (Title VII).
District court decisions in this Circuit have similarly rejected
individual employee liability under these statutes. See Fullman, 49 F.
Supp.2d at 441 (listing cases in the Third Circuit which have held
individual employees cannot be held liable under the ADA); Johnakin v.
City of Philadelphia, No. 95-1288, 1996 WL 18821, at *6 (E.D.Pa. Jan.
18, 1996) (listing cases in the Third Circuit which have limited
liability to the employer); see also Cohen, 11 F. Supp.2d at 736-37;
Clarke v. Whitney, 907 F. Supp. 893, 895 (E.D.Pa. 1995); Ascolese v.
SEPTA, 902 F. Supp. 533, 538 (E.D.Pa. 1995); Clark v. Commonwealth of
Pa., 885 F. Supp. 694 (E.D.Pa. 1995); Caplan v. Fellheimer Eichen
Braverman & Kaskey, 882 F. Supp. 1529, 1531 (E.D.Pa. 1995); Verde v. City
of Philadelphia, 862 F. Supp. 1329, 1334-1335 (E.D.Pa. 1994); Crawford
v. West Jersey Health Sys., 847 F. Supp. 1232, 1237 (D.N.J. 1994);
Violanti v. Emery Worldwide A-CF Co., 847 F. Supp. 1251, 1256-57
(M.D.Pa. 1994). But see Bishop v. Okidata, 864 F. Supp. 416 423 (D.N.J.
1994) (holding the plain language of the ADA subjects supervisory
employees, who are agents of the employer, to liability and the
distinction between "individual" and "official" liability should be
abandoned in ADA cases); Doe v. Shapiro, 852 F. Supp. 1246, 1253
The Third Circuit has not addressed the issue of individual liability
under the ADA or the ADEA. It has, however, addressed the issue of
individual liability under Title VII. In Sheridan v. E.I. duPont de
Nemours and Co., 74 F.3d 1439 (3d Cir.), vacated, 74 F.3d 1459 (3d Cir.
In Sheridan, the plaintiff, a hotel employee, asserted the district
court had erred by dismissing her Title VII claims against the general
manager of the hotel. 74 F.3d 1439, 1996 WL 36283 at *12. The plaintiff
argued, because the term "employer" is defined to include "any agent" of
an employer and the hotel general manager was an "agent" of the hotel,
the hotel general manager could be held personally liable under Title
VII. Id. The Third Circuit, in rejecting the argument of the plaintiff,
"follow[ed] the great weight of authority from other courts of appeals"
and held "an employee cannot be sued." Id. at *13 (citations omitted). In
its superceding opinion, the Circuit stated:
The [plaintiff's] arguments are not without some
force. However, the clear majority of courts of
appeals that have considered this question have held
that individual employees cannot be held liable under
Title VII. . . . [W]e are persuaded that Congress did
not intend to hold individual employees liable under
Sheridan v. E.I. DuPont de Nemours, 100 F.3d 1061, 1077-78 (3d Cir.)
(citations omitted), cert. denied, 521 U.S. 1129, 117 S.Ct. 2532, 138
L.Ed.2d 1031 (1997).
In Dici v. Commonwealth of Pennsylvania, 91 F.3d 542 (3d Cir. 1996),
the Circuit again addressed the issue of individual liability under Title
VII. There, the plaintiff had been denied workers' compensation benefits
for "psychic injuries" resulting from alleged sexual and racial
harassment. She brought an action under Title VII and Pennsylvania law.
Id. at 544.
The Dici court held the plaintiff could not sustain her Title VII
claims against her supervisors. Id. at 552. The Circuit stated:
When the issue of individual liability was before this
court in Sheridan v. E.I. duPont Nemours, 1996 WL
36283 (3d Cir. 1996), vacated, 74 F.3d 1459 (3d Cir.
1996), the court held that an individual employee
cannot be liable under Title VII. The majority opinion
. . . noted the great weight of authority from other
courts of appeals holding an employee cannot be sued
under Title VII . . . .
The Sheridan opinion was withdrawn when the court
voted to take the case en banc. . . . However, the
principal focus of the en banc briefs and arguments
was on Title VII issues other than individual
liability. In light of this, we conclude, for the
reasons previously given by the court in Sheridan and
the other courts of appeals, that individual employees
cannot be held liable under Title VII.
Id.; see also Galbraith v. Lenape Regional High School Dist.,
964 F. Supp. 889, 897 n. 5 (D.N.J. 1997); Caldwell v. KFC Corp.,
958 F. Supp. 962, 971 (D.N.J. 1997); DeJoy, 941 F. Supp. at 473-75.
Significantly, Kohn ignores the settled law in this Circuit concerning
individual liability under Title VII. He weakly asserts:
We found no definitive ruling by the Supreme Court as
to whether individuals have liability under Title
VII, the ADEA or the ADA. While we believe the
individuals fall under the strict wording of the
statute, as an `agent' of the employer, we recognize
the position taken by the Third Circuit and simply
wish to leave the matter open should the Supreme Court
definitively decide the question.
Opposition Brief at 4-5. The Third Circuit authority, however, is
dispositive of this issue. As indicated, moreover, the ADA and the ADEA
similarly define "employer" and share the same basic purpose as Title VII
—" "`to prohibit discrimination in employment . . .'" Walton, 168
F.3d at 666 (quoting Newman, 60 F.3d at 157). The Title VII, ADEA and ADA
claims asserted in the Amended Complaint cannot be sustained as against
Zaracki and Leasure. Accordingly, summary judgment in favor of Zaracki
and Leasure is granted as to these claims.
Based upon the foregoing, it appears there are no genuine issues of
material fact precluding the entry of summary judgment on all of the
Federal claims of Kohn.
D. State Law Claims
As indicated, Kohn has alleged violations of Title VII, the ADA and the
ADEA, which provided the basis for removal jurisdiction. Supplemental
jurisdiction existed over his State law Claims for CEPA violations and
defamation pursuant to 28 U.S.C. § 1367 ("Section 1367").
Supplemental jurisdiction enables Federal courts to hear State law
claims over which there is no independent basis of jurisdiction. See
28 U.S.C. § 1367; Lee-Patterson v. New Jersey Transit Bus
Operations, Inc., 957 F. Supp. 1391, 1403-04 (D.N.J. 1997) (citing
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349, 108 S.Ct. 614, 98
L.Ed.2d 720 (1988)). Supplemental jurisdiction depends upon the existence
of subject matter jurisdiction over other claims in the action. Pursuant
to Section 1367, the "district courts shall have supplemental
jurisdiction over all other claims that are so related to claims in the
action within such original jurisdiction that they form part of the same
case or controversy. . . ." 28 U.S.C. § 1367 (a); see also Sinclair
v. Soniform, Inc., 935 F.2d 599, 603 (3d Cir. 1991).
Section 1367(c) permits a court to decline to exercise supplemental
jurisdiction when "the district court has dismissed all claims over which
it has original jurisdiction." 28 U.S.C. § 1367 (c)(3); see also
Carnegie-Mellon, 484 U.S. at 350, 108 S.Ct. 614 ("When the [F]ederal-law
claims have dropped out of the lawsuit in its early stages and only
[S]tate-law claims remain, the [F]ederal court should decline the
exercise of jurisdiction by dismissing the case without prejudice.")
(footnote omitted); Fuentes v. South Hills Cardiology, 946 F.2d 196, 198
n. 3 (3d Cir. 1991) (dismissal of "pendent [S]tate law claim" proper
where [F]ederal claims dismissed for lack of subject matter
As discussed, the Title VII, ADA and ADEA claims raised against the
Defendants have been dismissed. Because no other ground for Federal
jurisdiction is alleged,*fn31 the remaining claims are dismissed without
prejudice. See 28 U.S.C. § 1367 (c)(3); Lee-Patterson, 957 F. Supp. at
1403 (citing United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct.
1130, 16 L.Ed.2d 218 (1966)).
For the reasons set forth above, the Summary Judgment Motion is