## Facts

- Gregory Fogleman worked as a security guard at Mercy Hospital for about eighteen years and was terminated in 1996.
- Gregory’s father, Sterril Fogleman, previously worked at Mercy Hospital for about seventeen years and, after leaving in 1993, sued Mercy alleging age and disability discrimination.
- Mercy asserted Gregory was fired for legitimate job-related reasons; Gregory claimed those reasons were pretextual and that he was fired because of the father’s discrimination lawsuit.
- Gregory sued under the anti-retaliation provisions of the ADA, ADEA, and PHRA.
- Gregory advanced three theories: (1) he was fired in retaliation for his father’s lawsuit; (2) he was fired because Mercy believed he was assisting his father’s lawsuit (even if he was not); and (3) he was fired for refusing to cooperate with Mercy’s efforts relating to the father’s discrimination claim.
- The district court granted summary judgment to Mercy on all claims, concluding the statutory language did not support any of Gregory’s theories.

## Issues

1. Whether the ADA, ADEA, and PHRA anti-retaliation provisions permit a claim by an employee who did not engage in protected activity but was allegedly fired because a relative engaged in protected activity (third-party retaliation).
2. Whether retaliation liability may be based on an employer’s mistaken belief that the employee engaged in protected activity (perceived participation/assistance).
3. Whether an employee’s refusal to cooperate with an employer’s investigation relating to another person’s discrimination claim can constitute protected “opposition” under the statutes.

## Decision

- The Third Circuit affirmed summary judgment against Gregory on the pure third-party retaliation theory.
- The Third Circuit reversed summary judgment in part, holding that retaliation claims may proceed where adverse action is taken because the employer believed the employee engaged in protected activity, even if that belief was mistaken.
- The Third Circuit also held that refusing to cooperate with an employer’s efforts relating to another person’s discrimination claim may constitute protected opposition, depending on the circumstances.
- The case was remanded for further proceedings on the “perceived assistance” and “refusal to cooperate” theories.

## Legal Principles

- Under the ADA, ADEA, and PHRA retaliation provisions, the protected activity referenced by “such individual” must be the plaintiff’s own; the text does not create a freestanding cause of action for adverse action taken solely because someone else engaged in protected activity.
- Retaliation liability turns on the employer’s retaliatory motive; an employer may be liable for acting against an employee based on the mistaken belief that the employee engaged in protected activity.
- Protected “opposition” can include an employee’s refusal to cooperate with an employer’s efforts that, in context, could be viewed as directed at defeating or undermining a discrimination claim.
- Where anti-retaliation provisions are materially identical across statutes (ADA, ADEA, PHRA), they are construed consistently.

## Conclusion

The Third Circuit held that the ADA, ADEA, and PHRA do not allow a retaliation claim based solely on another person’s protected activity, but they may support retaliation claims when the employer acts on a belief that the employee participated in protected activity or when the employee’s refusal to cooperate constitutes protected opposition, requiring remand for further fact development.


Fogleman v. Mercy Hosp., Inc., 283 F.3d 561 (3d Cir. 2002)