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
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.
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
. . [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)).
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.
II. STATEMENT OF FACTS NOT IN GENUINE DISPUTE
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
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 ...