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March 29, 2000


The opinion of the court was delivered by: McCLURE, District Judge.



On October 26, 1998, plaintiff Gregory Fogleman commenced this action by filing a complaint alleging that his employment was terminated in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., the Pennsylvania Human Relations Act (PHRA), 43 Pa.Stat.Ann. §§ 951 et seq., and the Pennsylvania Wage Payment and Collection Act (PWPCA), 43 Pa.Stat.Ann. §§ 260.1 et seq. Counts I, II, and III of the complaint allege that the termination was in retaliation for a claim by Fogleman's father under the PHRA, ADA, and ADEA, respectively. Count IV is a claim under the PWPCA alleging that Mercy withheld wages and other compensation due at the time of the termination.

After an attempt at mediation between the parties failed, discovery was completed. Jury selection is scheduled for June 1, 2000, with trial to commence as soon as feasible thereafter.

Before the court is Mercy's motion for summary judgment.



A. Summary Judgment

Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c) (emphasis added). . . [T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is `entitled to judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

Celotex Corp. v. Catrett, 477 U.S. 317, 323-324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The moving party bears the initial responsibility of stating the basis for its motions and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex at 323, 106 S.Ct. 2548. He or she can discharge that burden by "showing . . . that there is an absence of evidence to support the nonmoving party's case." Celotex at 325, 106 S.Ct. 2548.

Issues of fact are genuine "only if a reasonable jury, considering the evidence presented, could find for the non-moving party." Childers v. Joseph, 842 F.2d 689, 693-694 (3d Cir. 1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Material facts are those which will affect the outcome of the trial under governing law. Anderson at 248, 106 S.Ct. 2505. The court may not weigh the evidence or make credibility determinations. Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). In determining whether an issue of material fact exists, the court must consider all evidence and inferences drawn therefrom in the light most favorable to the non-moving party. Boyle at 393; White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988).

If the moving party satisfies its burden of establishing a prima facie case for summary judgment, the opposing party must do more than raise some metaphysical doubt as to material facts, but must show sufficient evidence to support a jury verdict in its favor. Boyle at 393 (quoting, inter alia, Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

B. Retaliation

In its brief in support of the motion for summary judgment, Mercy confines its argument to the claims of retaliation. Those claims are limited to Counts I, II, and III of the complaint, while Count IV relates to compensation allegedly not provided to Fogleman after the termination of his employment. Because no argument is made with respect to Count IV, we confine our consideration to the retaliation claims.

Because of the similarity in language, claims of retaliation under the ADEA, ADA, and PHRA follow the framework established for cases under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e-1 et seq. Krouse v. American Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997) (anti-retaliation provision of ADA similar to anti-retaliation provision of Title VII); Barber v. CSX Distribution Services, 68 F.3d 694, 698 (3d Cir. 1995) (provisions of ADEA similar in "text, tone, and purpose" of Title VII). See also Dici v. Commonwealth of Pennsylvania, 91 F.3d 542, 552 (3d Cir. 1996) (PHRA applied in accordance with Title VII unless language of PHRA demonstrates otherwise). To establish a claim under any one of these provisions, the plaintiff must demonstrate that: (1) he or she engaged in protected activity under the relevant act; (2) there was an adverse employment action either after or contemporaneous with the protected activity; and (3) there is a causal connection between the protected activity and the adverse employment action. Krouse at 500; Barber at 701; Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir.) (PHRA claim analyzed under Title VII framework), cert. denied, 522 U.S. 914, 118 S.Ct. 299, 139 L.Ed.2d 230 (1997).

Mercy's first, and strongest, argument is that Fogleman lacks standing to pursue his retaliation claims because he did not engage in a protected activity under any of the asserted statutory provisions. Rather, he brings the claims as the son of another Mercy employee who asserted rights under the relevant acts. We agree that the claims do not survive summary judgment.


The parties recite a litany of facts which have little or nothing to do with the motion for summary judgment.*fn1 We will attempt to summarize the facts as necessary for disposition of the motion.

Mercy operates the Mercy Hospital in Wilkes-Barre, Luzerne County, Pennsylvania. Fogleman began employment with Mercy Hospital in January, 1978, as a security officer. He was named Supervisor of Security at Mercy Hospital in 1992.

Fogleman's father, Sterril Fogleman, was employed at Mercy Hospital from January, 1976, through November 29, 1993. In 1994, Sterril Fogleman complained to the Equal Employment Opportunity Commission of discrimination under the ADEA and ADA. He also pursued a complaint before the Pennsylvania Human Relations Commission, and on June 30, 1995, commenced a civil action in this court which was docketed to No. 3:CV-95-0957 (assigned to Vanaskie, J., now Chief Judge). The civil action was dismissed as settled in July, 1998.

Fogleman was not a party to his father's actions before the EEOC, the PHRC, or this court, nor was he a witness or otherwise a participant. When asked by a Mercy official if he knew anything about his father's case, Fogleman indicated that he ...

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