Fogleman v. Mercy Hosp., Inc.

• Decision Date: 18 March 2002
• Docket Number: No. 00-2263.,00-2263.
• Citation: 283 F.3d 561
• Parties: Gregory FOGLEMAN, Appellant, v. MERCY HOSPITAL, INC.
• Court: U.S. Court of Appeals — Third Circuit

283 F.3d 561

Gregory FOGLEMAN, Appellant, v. MERCY HOSPITAL, INC.

No. 00-2263.

United States Court of Appeals, Third Circuit.

Argued July 10, 2001.

March 18, 2002.

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James C. Oschal, (Argued) Elizabeth C. Leo, Rosenn, Jenkins & Greenwald, LLP, Wilkes-Barre, PA, Counsel for Appellant Gregory Fogleman.

James A. O'Brien, (Argued) Oliver, Price & Rhodes, Clarks Summit, PA, Counsel for Appellee Mercy Hospital, Inc.

Gwendolyn Young Reams, Associate General Counsel, Philip B. Sklover, Associate General Counsel, Lorraine C. Davis, Assistant General Counsel, Robert J. Gregory, (Argued) Senior Attorney, Equal Employment Opportunity Commission, Washington, D.C., Counsel for Amicus Curiae Equal Employment Opportunity Commission.

Before BECKER, Chief Judge, NYGAARD and REAVLEY,^* Circuit Judges.

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. Sterril's 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.

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 1993, 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 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, Greg also avers that a representative of management-namely, Michael Elias — repeatedly questioned him about the status of his father's lawsuit in an attempt to pry information out of him to aid the hospital in its defense.

On September 6, 1996, Greg was involved in an incident at the hospital's gift shop that ultimately provided the official — Greg claims pretextual — basis for Mercy's termination of his employment. Greg claims that he used a spare key to enter the hospital gift shop that morning to check on the well-being of an elderly woman, Audrey Oeller, who worked there as a volunteer. Greg avers that his job description authorized him to enter the shop; additionally, his supervisor testified that before this incident Greg routinely entered the shop to check on Oeller.

The hospital, in contrast, asserts that Greg had no authority to enter the gift shop at any time, and that his entry was in violation of hospital rules. Moreover, the hospital represents that it was troubled by Oeller's conflicting account of Greg's reasons for entering the shop. According to Oeller, Greg told her that he entered the shop to check on the sprinkler system at the request of maintenance supervisor Dave Searfoss. Searfoss, however, related to the hospital that he had never made any such request of Greg. According to Mercy, Greg also violated hospital policy by failing to report the incident to anyone until questioned about it, failing to request assistance, failing to document the incident until directed to do so, and failing to report the taking of the key to the gift shop from a secure Maintenance Department Room.

On September 11, the hospital suspended Greg with pay in the wake of the gift shop incident pending further investigation. Greg claims that he was told that he would not receive a final determination on his employment status until September 17, which was also the same day that his father was to be deposed for his federal lawsuit against Mercy. Although it appears that no actual investigation took place before September 17, Greg was fired on that day, allegedly for reasons related to the gift shop incident. Greg avers that his termination was in violation of the hospital's progressive discipline policy. Other employees, Greg contends, were punished less severely for far more egregious infractions.

Greg sued Mercy in the District Court for the Middle District of Pennsylvania alleging violations of the ADA, the ADEA, and the PHRA. Mercy moved for summary judgment on these claims, and the District Court granted the motion, concluding that the statutes did not allow a plaintiff to sue on the theory that he had suffered a discharge in retaliation for protected activity engaged in by another...