United States District Court, Middle District of Pennsylvania
March 29, 2000
GREGORY FOGLEMAN, PLAINTIFF,
MERCY HOSPITAL, INC., DEFENDANT.
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.
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
. . [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 did not, and
stated that he would not discuss it even if he did.
On September 6, 1996, there was an incident involving Fogleman
and Audrey Oeller, an employee at the Mercy Hospital Gift Shop.
Oeller was in the shop before it opened when the door was
unlocked by Fogleman. The circumstances of Fogleman's entry are
in dispute, but it is clear that he generally did not have
authority to be in the shop. The reason he gave for being there
and his actions while in the shop were inconsistent with the
statement given by Oeller.
Purportedly based on the inconsistencies, as well as the
failure to report the incident, Fogleman's employment was
terminated. He claims that the real reason was Sterril Fogleman's
claims against Mercy and that the incident in the gift shop is a
pretext for retaliation by Mercy.
III. RETALIATION FOR "PROTECTED ACTIVITY"
The provisions barring retaliation in each of the asserted acts
read as follows:
No person shall discriminate against any individual
because such individual has opposed any act or
practice made unlawful by this chapter or because
such individual made a charge, testified, assisted,
or participated in any manner in an investigation,
proceeding, or hearing under this chapter.
42 U.S.C. § 12203(a)(ADA).
It shall be unlawful for an employer to
discriminate against any of his employees or
applicants for employment, for an employment agency
to discriminate against any individual, or for a
labor organization to discriminate against any member
thereof or applicant for membership, because such
individual, member or applicant for membership has
opposed any practice made unlawful by this section,
or because such individual, member or applicant for
membership has made a charge, testified, assisted, or
participated in any manner in an investigation,
proceeding, or litigation under this chapter.
29 U.S.C. § 623(d) (ADEA).
It shall be an unlawful discriminatory practice,
unless based upon a bona fide occupational
qualification, or in the case of a fraternal
corporation or association, unless based upon
membership in such association or corporation, or
except where based upon applicable security
regulations established by the United States or the
Commonwealth of Pennsylvania:
(d) For any person, employer, employment agency
or labor organization to discriminate in any manner
against any individual because such individual has
opposed any practice forbidden by this act, or
because such individual has made a charge,
testified or assisted, in any manner, in any
investigation, proceeding or hearing under this
43 Pa.Stat.Ann. § 955(d) (PHRA).
By their terms, each act prohibits retaliation against the
person who actually opposes an unlawful discriminatory practice,
referring to "such individual," and to no other person.
This is the reading of the ADEA given by the Fifth Circuit in
Holt v. JTM Industries, Inc., 89 F.3d 1224 (5th Cir.), reh'g
en banc denied, 105 F.3d 658 (5th Cir. 1996) (table), cert.
denied, 520 U.S. 1229, 117 S.Ct. 1821, 137 L.Ed.2d 1029 (1997).
In that case, a husband and wife were employees of the defendant
when the wife's employment was terminated. She pursued a claim of
age discrimination under the ADEA before the EEOC and the Texas
Commission on Human Rights. About two weeks after the employer
received notice of the administrative complaint, it placed the
husband on administrative leave and later offered him a job in
another part of the country. He quit after several weeks. Id.
The Fifth Circuit examined § 623(d) and pointed out that a
third party may sue for retaliation under that provision if the
third person engages in the enumerated conduct even if the
conduct is on behalf of another employee's claim of
discrimination. Id. at 1226. The problem in Holt was that the
third party (the husband) had not participated in any way in
enumerated conduct, either for himself or on behalf of the wife.
The Fifth Circuit discussed De Medina v. Reinhardt,
444 F. Supp. 573 (D.D.C. 1978), in which a wife sued for retaliation
based on her husband's anti-discrimination activities. The Fifth
Circuit pointed out that the opinion did not specify whether the
wife had participated in her husband's activities. To the extent
it could be read as stating as much, the Fifth Circuit simply
disagreed. Holt at 1226.
The rationale of Holt is straightforward: The ADEA
retaliation provision does not
say that a third party may assert a claim for retaliation when
that third party does not engage in protected activity. The
protection from retaliation is limited by plain language to those
persons who engage in protected activity, which is consistent
with Congress' intent "to enable employees to engage in protected
activities without fear of economic reprisal." Id. at
1226-1227. The problem with a rule allowing third-party standing
is that the type of relationship which would confer such standing
is undefined. Further, in most instances, the types of people who
would be covered by an automatic standing rule will have
participated in protected activity on the employee's behalf, so
that such a rule would add little to the scheme actually enacted
by Congress. Id. at 1227.
To the rationale of the Fifth Circuit, we would add one more
point: In most cases in which the spouse of a complainant suffers
retaliation, it may be that the complainant might have standing
to pursue the claim of retaliation, since the complainant would
suffer financially from such action as well.
One other Court of Appeals has considered the question of
automatic third-party standing under the civil rights statutes
and has agreed with the Fifth Circuit:
We believe that the rule advocated by Thomas — that a
plaintiff bringing a retaliation claim need not have
personally engaged in statutorily protected activity
if his or her spouse or significant other, who works
for the same employer, has done so — is neither
supported by the plain language of Title VII nor
necessary to protect third parties, such as spouses
or significant others, from retaliation. See
[Holt]. Title VII already offers broad protection
to such individuals by prohibiting employees from
retaliating against employees for "assist[ing] or
participat[ing] in any manner" in a proceeding under
Title VII. Accordingly, we hold that a plaintiff
bringing a retaliation claim under Title VII must
establish that she personally engaged in the
Smith v. Riceland Foods, Inc., 151 F.3d 813, 819 (8th Cir.
1998) (brackets in original).
Fogleman concedes that the Third Circuit has not ruled on the
issue of automatic third-party standing, but points to two
district court opinions from within the Third Circuit which he
contends represent the "overwhelming majority of cases" and
support his position. Actually, both cases are distinguishable.
In Aquino v. Sommer Maid Creamery, Inc., 657 F. Supp. 208
(E.D.Pa. 1987), plaintiffs were a husband and wife bringing
claims under, inter alia, Title VII. The husband participated
in a conciliation meeting before the Pennsylvania Human Relations
Commission, and the district court held that this was protected
activity for purposes of a retaliation claim under Title VII.
Id. at 210. Thus, standing was not automatic but based on the
husband's own conduct in participating in the proceedings.
More difficult is the opinion in Mandia v. ARCO Chemical Co.,
618 F. Supp. 1248 (W.D.Pa. 1985), in which the plaintiffs were
again a husband and wife. The opinion is somewhat confusing
because of the manner in which the court summarized its analysis
at the opening of the discussion. It stated:
With respect to the participation element, the
evidence is clear that [the husband] participated,
supported and aided his wife in the filing of the
EEOC charge on November 3, 1982 with relation to
sexual harassment. It is solely by reason of his
wife's charge that he could be considered to have
made any allegation of sexual harassment against his
employer, and thus be engaged in a protected
activity. We will concentrate on the evidence
surrounding the claim that his discharge from
employment arose out of the filing by his wife of a
complaint under Title VII against her employer, the
same employer as her
husband's, the defendant here. This is retaliation
against a third-party because of the filing of a
Title VII complaint by a close relative. We conclude
that Section 2000e-3 proscribes such retaliation.
See De Medina v. Reinhardt, 444 F. Supp. 573 (D.D.C.
1978) and Kornbluh v. Stearns and Foster Co., 73
F.R.D. 307 (N.D.Ohio 1976).
Mandia at 1250 (emphasis in original; bracketed material
In other words, the court states that the husband engaged in a
protected activity, then states that the claim is one of
retaliation based solely in his wife's Title VII complaint.
Because the husband's own activity was protected, there would be
no reason for an automatic standing rule to be applied.
Moreover, the analysis in which the Mandia court engaged
confuses the matter further. The court pointed out that, while
both the husband and the wife had made complaints about her
treatment, those complaints had not included claims of sexual
harassment. Id. at 1251-1252. Also, when the wife finally made
a complaint of sexual harassment to the EEOC, the decision
already had been made to fire the husband, and a determination
not to reconsider the termination was made before the
decision-maker learned of the complaint. Id. at 1252-1253.
Above all of this, at the time that the decision to fire the
husband was made, the decision-maker did not even know that the
couple was married. Id. at 1253.
Given all of these facts, we are unable to see how the husband
could possibly maintain a cause of action. It simply is
impossible for an employer to retaliate with respect to a claim
about which it is unaware, and it cannot retaliate by terminating
a spouse's employment when it does not know that there is a
spouse. In other words, the court found that (1) the husband was
engaged in a protected activity but (2) he could not establish a
causal connection between that activity (or his wife's activity)
and the adverse employment decision. See esp. 618 F. Supp. at
1253 (finding of causal relation between discharge and wife's
charge of sexual harassment "would be pure speculation"). An
automatic standing rule is unrelated to this analysis.
Stated differently, the husband alleged that he engaged in
protected activity on behalf of his wife, and he therefore had
standing to pursue a claim of retaliation. The claim fails
substantively because (1) the court found as a fact that the
husband did not engage in protected activity because the timely
complaints were not allegations of sexual harassment and (2) the
employer was not aware of any claim of sexual harassment or that
the couple were married before the decision to terminate the
husband's employment had been made. Thus, despite a lengthy
analysis related to standing, the claim of retaliation actually
failed on the merits.
We therefore conclude that neither Mandia nor Aquino stands
for the proposition for which they are cited. To the extent they
are read as supporting the automatic standing rule, we disagree
for the reasons stated herein and in Holt.
Fogleman also cites a "Guidance" issued by the EEOC on May 20,
1998, to support the proposition that he has automatic standing
to pursue his claim of retaliation. EEOC: Guidance on
Investigating, Analyzing Retaliation Claims, Fair Employment
Practices Rep. (BNA) No. 849, at 405:7581 (1998) (hereinafter
cited as "Guidance"). As with Mandia and Aquino, the Guidance
does not survive closer scrutiny, a conclusion we reach after
traveling a rather circuitous route.
The Guidance provides in part:
Title VII, the ADEA, the EPA [Equal Pay Act], and
the ADA prohibit retaliation against someone so
closely related to or associated with the person
exercising his or her statutory rights that it would
discourage that person from pursuing those rights.
For example, it is unlawful to retaliate against an
because his son, who is also an employee, opposed
allegedly unlawful employment practices. Retaliation
against a close relative of an individual who opposed
discrimination can be challenged by both the
individual who engaged in protected activity and the
relative, where both are employees. See Section 8-II
C.3. for discussion of similar principle under
The retaliation provisions of Title VII, the ADEA,
the EPA, and the ADA prohibit retaliation against
someone so closely related to or associated with the
person exercising his or her statutory rights that it
would discourage or prevent the person from pursuing
those rights. For example, it would be unlawful for a
respondent to retaliate against an employee because
his or her spouse, who is also an employee, filed an
EEOC charge. Both spouses, in such circumstances,
could bring retaliation claims.
Guidance at § 8-II.B.3.c., 8-II.C.3. (Fair. Employment Practices
Rep. at 405:7586, 7587) (footnotes omitted).
In the first quoted paragraph, the omitted footnote cites
Murphy v. Cadillac Rubber & Plastics, Inc., 946 F. Supp. 1108,
1118 (W.D.N.Y. 1996), for the proposition that the plaintiff may
state a valid claim of retaliation based on his or her spouse's
protected activities. Fair Employment Practice Rep. at 405:7586
n. 23. Once again, the opinion states that the husband also
participated in the protected activity. See id. at 1117
(husband alleged that "he assisted and supported his wife in her
request to leave her quality control position and return to her
former union production job, and that he assisted and supported
her in her complaints of discrimination. . ."). Thus, the
Murphy opinion suffers from the same shortcoming as Mandia.
See esp. Murphy at 1118 (citing Mandia).
In the second paragraph quoted above, an omitted footnote
See, e.g., EEOC v. Ohio Edison Co., 7 F.3d 541,
544 (6th Cir. 1993) (agreeing that plaintiff's
allegation of reprisal for relative's protected
activities states claim under Title VII); Thurman v.
Robertshaw Control Co., 869 F. Supp. 934, 941
(N.D.Ga. 1994) (plaintiff could make out first
element of prima facie case of retaliation by
showing that plaintiff's close relative participated
in the complaint process).
The Commission disagrees with the Fifth Circuit's
holding in [Holt] that there was no unlawful
retaliation where the plaintiff was put on paid
administrative leave because his wife had filed an
age discrimination charge.
Fair Employment Practices Rep. at 405:7587 n. 27 (parallel
While the Sixth Circuit in Ohio Edison purported to be
relying on De Medina and its progeny, in the end its holding
differed from those cases. Rather than concluding that a
complainant's relative has automatic standing to sue for
retaliation under Title VII, it held that a plaintiff may bring
an action for retaliation based on the protected activity of a
person acting on the plaintiff's behalf. See 7 F.3d at 545-546
(Title VII anti-retaliation provision "should be broadly
construed to include a claim in which an employee, or his
representative, has opposed any practice may an unlawful
employment practice"; emphasis in original). In fact, the person
who engaged in the protected activity was an unrelated coworker,
not a relative. Id. at 542.
For its part, the court in Thurman simply cited Mandia and
Ohio Edison without analysis. 869 F. Supp. at 941, 941 n. 3.
A number of the cases reaching the conclusion that a plaintiff
may bring an action for retaliation rely on the reasoning set
forth in cases discussing the problem of a former employee suing.
That is, a plaintiff may have been an employee of the defendant
at one time, then suffer a termination of that employment for a
prohibited reason. In such a case, a literal reading of
the civil rights statutes would preclude a civil action because
only an employee or applicant for employment may sue. However,
the courts have consistently held that a former employee may
bring an action under such circumstances. See generally Ohio
Edison at 544-545 (collecting cases).
There is a major difference in the principles of interpretation
applicable in those cases, however. Title VII makes it unlawful,
inter alia, for an employer to discharge an employee because of
the employee's race, color, religion, sex, or national origin.
42 U.S.C. § 2000e2(a)(1). A person aggrieved by such an unlawful
employment practice may bring a civil action after exhausting
available administrative remedies. 42 U.S.C. § 2000e-5(f). There
is thus a tension between the definition of employee as a "person
employed by an employer," 42 U.S.C. § 2000e(f), and the
provisions allowing an employee to bring an action: the employee
is not an employee (having been discharged) at the time of the
filing of the claim or complaint. Given this tension, which may
be termed an ambiguity, the term "employee" is subject to
interpretation or construction, and inclusion of former employees
within its definition is consistent with the purpose of Title
VII. Indeed, inclusion of former employees within the meaning of
"employee" is the only way that the rights of a discharged
employee can be protected and the goal of Title VII fulfilled
under these circumstances.
In contrast, Fogleman points to no similar tension or ambiguity
within the anti-retaliation provisions of the ADA, ADEA, or PHRA,
nor does any court which authored any of the opinions cited by
Fogleman, and we are able to discern none. It is therefore
improper to interpret the statutes in any way other than by their
We return, then, to the Guidance and the view of Title VII, the
ADEA, the EPA, and the ADA offered by the EEOC. Generally, in the
absence of a direct expression of congressional intent, a court
must defer to an agency's interpretation of its governing
statute. Sandoval v. Reno, 166 F.3d 225, 229 (3d Cir. 1999)
(citing Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694
(1984)). Congressional intent on the precise question at issue is
ascertained by employing traditional tools of statutory
construction. Sandoval at 240 (citing Chevron at 843 n. 9,
104 S.Ct. 2778).
Each of the anti-retaliation provisions quoted above states
that an employer may not retaliate against a person who opposes
an unlawful discriminatory practice or a person who participates
in proceedings related to a charge of unlawful discrimination.
The statutes are clear in referring to retaliation against "such
person," meaning the person who actually opposed the practice or
participated in the proceedings. In plain, unmistakable English,
Congress has limited claims of retaliation to adverse acts taken
against "such person[s]." The Guidance by the EEOC therefore is
contrary to the statutes at issue, and we will not defer to the
EEOC's view of the statutes.
IV. ALTERNATIVE ARGUMENTS
As an alternative, Fogleman contends that he engaged in
protected activity by telling his superior that he did not know
anything about his father's suit. We fail to see how refraining
from engaging in protected activity can be considered to be
protected activity, and no statutory language supports this
Fogleman also contends that he has a cause of action because
Mercy perceived of him as engaging in a protected activity. Once
again, no statutory language indicates that a person perceived in
this manner is to be considered as engaged in a protected
activity for purposes of the anti-retaliation provisions. Cf.
42 U.S.C. § 12102(2)(C) (under ADA, "disability" includes being
regarded as having an impairment).
As stated by the Fifth Circuit in Holt, and as reiterated by
the Eighth Circuit in Smith, the plain language of the civil
rights statutes' anti-retaliation provisions is to the effect
that only a person who actually engages in protected activity may
bring an action for retaliation. There is no ambiguity in the
language employed, and there is no tension between the
anti-retaliation provisions and the remainder of the acts. The
plain language therefore governs.
Fogleman may not maintain an action alleging retaliation based
on his father's prior suit, standing alone. He must allege and
prove that he engaged in protected activity, and he has not done
The motion for summary judgment will be granted with respect to
Counts I, II, and III. An order consistent with this memorandum