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Reviving a retaliation lawsuit, the 3rd U.S. Circuit Court of Appeals has ruled that a hospital worker can sue under a theory that he was illegally targeted for firing after his father sued the same hospital for age and disability discrimination because hospital management allegedly had the false perception that the son had assisted in his father’s case. “An employer’s discharge of an employee for discriminatory reasons amounts to illegal retaliation even if it is based on the employer’s mistaken belief that the employee engaged in protected activity,” Chief Judge Edward R. Becker of the 3rd Circuit wrote in Fogleman v. Mercy Hospital Inc. Retaliation laws “focus on the employer’s subjective reasons for taking adverse action against an employee,” Becker said, “so it matters not whether the reasons behind the employer’s discriminatory animus are actually correct as a factual matter.” As a result, Becker found that U.S. District Judge James F. McClure Jr. of the Middle District of Pennsylvaniaerred when he dismissed Greg Fogleman’s suit. In a second significant holding, Becker found that Fogleman has another valid theory of retaliation under the Americans with Disabilities Act simply by alleging that he was fired because he was related to someone who filed a discrimination suit. Becker found that the retaliation provisions in several discrimination statutes do not allow for such “third-party” retaliation claims because they require a showing that the plaintiff himself engaged in some sort of “protected activity.” But the ADA includes a second anti-retaliation provision that “sweeps more broadly” and mirrors the retaliation language in the National Labor Relations Act. “This provision contains language similar to that found in Section 8(a)(1) of the NLRA … which makes it an unfair labor practice for an employer ‘to interfere with, restrain, or coerce employees’ in exercising their rights guaranteed under the act,” Becker wrote. More than a decade ago, Becker said, the 3rd Circuit held in Kenrich Petrochemicals Inc. v. NLRB that � 8(a)(1) outlaws an employer’s retaliation against a supervisory employee (who was otherwise unprotected by the act) for protected activity engaged in by her close relatives. “We noted that the firing of a close relative could have a ‘coercive’ effect on the employees engaging in protected activity, instilling ‘fear that the exercise of their rights will give the company a license to inflict harm on their family’,” Becker wrote. Since the text of the NLRA’s and the ADA’s second retaliation provisions are similar, Becker found that Fogleman “may assert his third-party retaliation claim under this section of the ADA just as he would be able to do under the NLRA.” But much of Becker’s opinion is devoted to rejecting Fogleman’s argument that he should be allowed to pursue claims under the ADA’s first retaliation clause and similar clauses in the Age Discrimination in Employment Act and the Pennsylvania Human Relations Act. Becker found that all three statutes include language that clearly shows Congress intended only to allow retaliation claims that are tied to the plaintiff’s own “protected activity.” In his opening paragraph, Becker said Fogleman’s lawyer presented his case “as a modern rendition of the age-old parable of a son being punished for the sins of his father.” Fogleman’s father, Sterril Fogleman, was hired by Mercy as an engineer in 1976 and had worked there for 17 years before leaving in 1993. Greg Fogleman began working for Mercy as a security officer in 1978 and was promoted to supervisor of security in 1992. 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. Sterril Fogleman claims he was forced to quit his job when the hospital offered him a choice between accepting a demotion or leaving. In his lawsuit, Sterril Fogleman alleged that Mercy had pushed him out due to his advancing age and his recent loss of sight in one eye. The suit cited claims under the ADA and the ADEA. Greg Fogleman claims that soon after his father’s lawsuit was filed, hospital officials started treating him differently and secretly referred to him as a “risk” in internal memos. In September 1996, Fogleman claims he was fired on trumped up charges that related to an incident in which he used a spare key to enter the hospital’s gift shop. Fogleman claims the reason was pretextual and that he did nothing wrong. He said he wanted to check on the well-being of an elderly woman who worked there as a volunteer, and that his job description authorized him to enter the shop. But the hospital insisted that Fogleman had clearly violated hospital rules and that it was troubled by conflicting accounts of his reasons for entering the shop. Fogleman claims the hospital punished him more harshly than other workers who committed more serious infractions. He also claims the timing was suspicious because his firing came on the same day that his father was to give a deposition in his lawsuit. Judge McClure dismissed the entire case, finding that none of Fogleman’s retaliation claims was grounded on a valid theory. On appeal, lawyers from the Equal Employment Opportunity Commission filed a friend-of-the-court brief supporting Fogleman’s argument that the anti-retaliation provisions of the ADA and the ADEA are violated even if the person retaliated against did not himself engage in protected conduct. Becker found that the federal courts are divided on the issue, and that the 3rd Circuit has yet to squarely address the question. Forced to decide, Becker followed the leads of the 5th and 8th circuits, which have both held that a plaintiff may not present an anti-retaliation claim without personally participating in protected activity. “The plain text of the anti-retaliation provisions requires that the person retaliated against also be the person who engaged in the protected activity: Each statute forbids discrimination against an individual because ‘such individual’ has engaged in protected conduct,” Becker wrote. “By their own terms, then, the statutes do not make actionable discrimination against an employee who has not engaged in protected activity. Read literally, the statutes are unambiguous — indeed, it is hard to imagine a clearer way of specifying that the individual who was discriminated against must also be the individual who engaged in protected activity.” Becker said he agreed with the EEOC’s argument that such a literal reading of the retaliation clauses is “at odds” with the policies animating those provisions. “Allowing employers to retaliate via friends and family, therefore, would appear to be in significant tension with the overall purpose of the anti-retaliation provisions, which are intended to promote the reporting, investigation, and correction of discriminatory conduct in the workplace,” Becker wrote. “This case, therefore, presents a conflict between a statute’s plain meaning and its general policy objectives.” But generally, Becker said, such conflicts “ought to be resolved in favor of the statute’s plain meaning.” The rationale, Becker said, is grounded in the constitutional separation of powers. “Congress makes the law and the judiciary interprets it. In doing so we generally assume that the best evidence of Congress’s intent is what it says in the texts of the statutes,” Becker wrote. While courts must also avoid “absurd results” that could come from a “blind adherence to the literal meaning of a statute,” Becker found that Congress may have had perfectly sound reasons for rejecting third-party retaliation claims. “Congress may have feared that expanding the class of potential anti-discrimination plaintiffs beyond those who have engaged in protected activity to include anyone whose friends or relatives have engaged in protected activity would open the door to frivolous lawsuits and interfere with an employer’s prerogative to fire at-will employees,” Becker wrote. “In light of these plausible explanations for excluding third party retaliation claims, we cannot say that adherence to the statute’s plain text would be absurd, and we therefore conclude that the District Court was correct to reject as a matter of law Greg’s third-party retaliation claims brought under the ADEA, the PHRA, and the first anti-retaliation provision of the ADA.” Becker was joined by 3rd Circuit Judge Richard L. Nygaard and visiting Senior Judge Thomas M. Reavley of the 5th Circuit. Fogleman was represented by attorneys James C. Oschal and Elizabeth C. Leo of Rosenn, Jenkins & Greenwald in Wilkes-Barre, Pa. Attorney James A. O’Brien of Oliver, Price & Rhodes in Clarks Summit, Pa., argued the case for Mercy Hospital. EEOC Senior Attorney Robert J. Gregory of Washington, D.C., also presented an oral argument in support of Fogleman’s appeal.

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