Gregory Fogleman v. Mercy Hospital, Inc

283 F.3d 561, 2002 U.S. App. LEXIS 4306, 82 Empl. Prac. Dec. (CCH) 40,986, 88 Fair Empl. Prac. Cas. (BNA) 513, 2002 WL 415833
CourtCourt of Appeals for the Third Circuit
DecidedMarch 18, 2002
Docket00-2263
StatusPublished
Cited by375 cases

This text of 283 F.3d 561 (Gregory Fogleman v. Mercy Hospital, Inc) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gregory Fogleman v. Mercy Hospital, Inc, 283 F.3d 561, 2002 U.S. App. LEXIS 4306, 82 Empl. Prac. Dec. (CCH) 40,986, 88 Fair Empl. Prac. Cas. (BNA) 513, 2002 WL 415833 (3d Cir. 2002).

Opinion

*564 OPINION OF THE COURT

BECKER, Chief Judge.

This employment discrimination action is presented as a modern rendition of the age-old parable of a son being punished for the sins of his father. 1 The father, Sterril Fogleman, had been an employee of defendant Mercy Hospital, Inc. (“Mercy”) for seventeen years before leaving the hospital in 1993. In an action separate from this case, Sterril sued Mercy claiming that he had been forced out of his job due to age and disability discrimination. SterriPs son Greg Fogleman, who is the plaintiff in the case at bar, also worked for Mercy, being employed as a security guard for eighteen years before his termination in 1996. Although Mercy claims to have fired Greg for valid job-related reasons, Greg asserts that these reasons were pretextual, and that the real reasons for his firing relate to his father’s legal action against Mercy.

Greg sued Mercy under the anti-retaliation provisions of three civil rights laws: the ■ Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213; the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634; and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Cons.Stat. §§ 951-963, alleging three theories of illegal retaliation. Greg’s first theory of illegal discrimination is that he was fired in retaliation for his father’s having sued Mercy for disability and age discrimination. Second, Greg claims that Mercy violated the anti-discrimination laws by terminating him because it thought that he was assisting his father with his lawsuit (even if, in actuality, he was not). Third, Greg alleges that he was fired for refusing to cooperate with Mercy in the investigation of his father’s claim. The District Court granted summary judgment to Mercy on all of Greg’s claims, concluding that none of his theories of illegal retaliation were supported by the language of the ADA, ADEA or PHRA.

In reviewing the District Court’s grant of summary judgment with respect to Greg’s first claim, we are called upon to determine whether the anti-retaliation provisions of the ADA, ADEA, and PHRA prohibit an employer from taking adverse employment action against a third party in retaliation for another’s protected activity. The ADA, ADEA, and PHRA contain nearly identical anti-retaliation provisions that prohibit discrimination against any individual because “such individual” has engaged in protected activity. 42 U.S.C. § 12203(a); 29 U.S.C. § 623(d); 43 Pa. Cons.Stat. § 955(d). Although we recognize that allowing an employer to retaliate against a third party with impunity can interfere with the overall purpose of the anti-discrimination laws, we believe that by referring to “such individual,” the plain text of these statutes clearly prohibits only retaliation against the actual person who engaged in protected activity.

Unlike the ADEA and PHRA, however, the ADA contains an additional anti-retaliation provision that makes it unlawful for an employer “to coerce, intimidate, threaten, or interfere with any individual” exercising rights protected under the Act. 42 U.S.C. § 12203(b). We conclude that under this provision, which contains language similar to that of a section of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 158(a)(1), that we have interpreted as recognizing third-party retaliation claims, Greg’s claim that he was retaliated against for his father’s protected activity is valid as a matter of law, and we will therefore reverse the grant of summary judgment.

*565 We also believe that Greg’s perception theory of illegal retaliation — that he was fired because Mercy thought that he was engaged in protected activity, even if he actually was not — presents a valid legal claim. Because the statutes forbid an employer’s taking adverse action against an employee for discriminatory reasons, it does not matter whether the factual basis for the employer’s discriminatory animus was correct and that, so long as the employer’s specific intent was discriminatory, the retaliation is actionable. Accordingly, we will reverse the Court’s grant of summary judgment on Greg’s perception claim of retaliation. We discuss these first two theories in the text, infra. Greg’s other theory of illegal retaliation'— that he was fired for refusing to cooperate with Mercy in the investigation of his father’s claim — is plainly without merit and we dispose of it in the margin. 2

I. Facts and Procedural History

Members of the Fogleman family have a long history of employment at Mercy Hospital. The plaintiff, Greg Fogleman, began working for Mercy as a security officer in 1978. In 1992 Mercy named him Supervisor of Security, a post he held until his termination in 1996. Greg’s wife, Michelle, also worked for Mercy for a few years in the late 1980s and early 1990s, and Greg’s mother was an employee at Mercy until her retirement in May 1999. But the story of this litigation begins with Greg’s father, Sterril Fogleman, who began working at Mercy in 1976 as an engineer and remained on the staff for 17 years, until 1998, when the hospital offered him a choice between accepting a demotion or leaving the hospital. Sterril chose to leave, and suspected that Mercy had pushed him out due to his advancing age and his recent loss of sight in one eye.

In June 1995, after satisfying the administrative prerequisites, Sterril sued Mercy for illegal discrimination in the District Court for the Middle District of Pennsylvania. Just before trial was to begin, in July 1998, the parties settled and the case was dismissed. Greg asserts that he did not participate in any way in Sterril’s complaints or lawsuit.

Shortly after Sterril filed his lawsuit in federal court, Martin Everhart, Mercy’s Vice President of Human Resources, circulated a one-page memorandum to top Mercy officials offering a brief explanation of why, in the hospital’s opinion, Sterril’s claim was meritless. The memo acknowledged that commenting on Sterril’s lawsuit during its pendency was “done at some risk as we continue to have relatives of Mr. Fogleman employed by Mercy and open ourselves up to further public exposure particularly through newspapers as this document may be shared that way.” Greg submits that this language indicates that Mercy considered him a “risk” because of *566 his father’s lawsuit. He also asserts that Everhart was “a bit colder” to him after the circulation of this memo. As described in note 2, supra,

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283 F.3d 561, 2002 U.S. App. LEXIS 4306, 82 Empl. Prac. Dec. (CCH) 40,986, 88 Fair Empl. Prac. Cas. (BNA) 513, 2002 WL 415833, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gregory-fogleman-v-mercy-hospital-inc-ca3-2002.