Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-18-2002

Fogleman v. Mercy Hosp
Precedential or Non-Precedential:

Docket 0-2263




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

Recommended Citation
"Fogleman v. Mercy Hosp" (2002). 2002 Decisions. Paper 184.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/184


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
PRECEDENTIAL

       Filed March 18, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-2263

GREGORY FOGLEMAN, Appellant

v.

MERCY HOSPITAL, INC.

On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 98-cv-01746)
District Judge: Honorable James F. McClure, Jr.

Argued: July 10, 2001

Before: BECKER, Chief Judge, NYGAARD and REAVLEY,*
Circuit Judges.

(Filed: March 18, 2002)
_________________________________________________________________

* Honorable Thomas M. Reavley, United States Circuit Judge for the
       Fifth Circuit, sitting by designation.
JAMES C. OSCHAL, ESQUIRE
 (ARGUED)
ELIZABETH C. LEO, ESQUIRE
Rosenn, Jenkins & Greenwald, LLP
15 South Franklin Street
Wilkes-Barre, PA 18711-0075

Counsel for Appellant Gregory
Fogleman

JAMES A. O'BRIEN, ESQUIRE
 (ARGUED)
Oliver, Price & Rhodes
1212 South Abington Road
P.O. Box 240
Clarks Summit, PA 18411

Counsel for Appellee Mercy Hospital,
Inc.

GWENDOLYN YOUNG REAMS,
 ESQUIRE
 Associate General Counsel
PHILIP B. SKLOVER, ESQUIRE
 Associate General Counsel
LORRAINE C. DAVIS, ESQUIRE
 Assistant General Counsel
ROBERT J. GREGORY, ESQUIRE
 (ARGUED)
 Senior Attorney
Equal Employment Opportunity
 Commission
Room 7032
1801 L Street, NW
Washington, D.C. 20507

Counsel for Amicus Curiae
Equal Employment Opportunity
Commission

                        2
OPINION OF THE COURT

BECKER, Chief Judge.

This employment discrimination action is presented as a
modern rendition of the age-old parable of a son being
punished for the sins of his father.1 The father, Sterril
Fogleman, had been an employee of defendant Mercy
Hospital, Inc. ("Mercy") for seventeen years before leaving
the hospital in 1993. In an action separate from this case,
Sterril sued Mercy claiming that he had been forced out of
his job due to age and disability discrimination. Sterril's
son Greg Fogleman, who is the plaintiff in the case at bar,
also worked for Mercy, being employed as a security guard
for eighteen years before his termination in 1996. Although
Mercy claims to have fired Greg for valid job-related
reasons, Greg asserts that these reasons were pretextual,
and that the real reasons for his firing relate to his father's
legal action against Mercy.

Greg sued Mercy under the anti-retaliation provisions of
three civil rights laws: the Americans with Disabilities Act
("ADA"), 42 U.S.C. SS 12101-12213; the Age Discrimination
in Employment Act ("ADEA"), 29 U.S.C. #8E8E # 621-634; and the
Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons.
Stat. SS 951-963, alleging three theories of illegal
retaliation. Greg's first theory of illegal discrimination is
that he was fired in retaliation for his father's having sued
Mercy for disability and age discrimination. Second, Greg
claims that Mercy violated the anti-discrimination laws by
terminating him because it thought that he was assisting
his father with his lawsuit (even if, in actuality, he was not).
Third, Greg alleges that he was fired for refusing to
cooperate with Mercy in the investigation of his father's
claim. The District Court granted summary judgment to
Mercy on all of Greg's claims, concluding that none of his
_________________________________________________________________

1. See, e.g., Euripides, Phrixus, frag. 970 ("[T]he gods visit the sins of
the
fathers upon the children."); Horace, Odes III, 6:1 ("For the sins of
your
fathers you, though guiltless, must suffer."); William Shakespeare, The
Merchant of Venice, act III, sc. 5, line 1 ("[T]he sins of the father are
to
be laid upon the children.").

                               3
theories of illegal retaliation were supported by the
language of the ADA, ADEA or PHRA.

In reviewing the District Court's grant of summary
judgment with respect to Greg's first claim, we are called
upon to determine whether the anti-retaliation provisions of
the ADA, ADEA, and PHRA prohibit an employer from
taking adverse employment action against a third party in
retaliation for another's protected activity. The ADA, ADEA,
and PHRA contain nearly identical anti-retaliation
provisions that prohibit discrimination against any
individual because "such individual" has engaged in
protected activity. 42 U.S.C. S 12203(a); 29 U.S.C. S 623(d);
43 Pa. Cons. Stat. S 955(d). Although we recognize that
allowing an employer to retaliate against a third party with
impunity can interfere with the overall purpose of the anti-
discrimination laws, we believe that by referring to"such
individual," the plain text of these statutes clearly prohibits
only retaliation against the actual person who engaged in
protected activity.

Unlike the ADEA and PHRA, however, the ADA contains
an additional anti-retaliation provision that makes it
unlawful for an employer "to coerce, intimidate, threaten, or
interfere with any individual" exercising rights protected
under the Act. 42 U.S.C. S 12203(b). We conclude that
under this provision, which contains language similar to
that of a section of the National Labor Relations Act
("NLRA"), 29 U.S.C. S 158(a)(1), that we have interpreted as
recognizing third-party retaliation claims, Greg's claim that
he was retaliated against for his father's protected activity
is valid as a matter of law, and we will therefore reverse the
grant of summary judgment.

We also believe that Greg's perception theory of illegal
retaliation -- that he was fired because Mercy thought that
he was engaged in protected activity, even if he actually
was not -- presents a valid legal claim. Because the
statutes forbid an employer's taking adverse action against
an employee for discriminatory reasons, it does not matter
whether the factual basis for the employer's discriminatory
animus was correct and that, so long as the employer's
specific intent was discriminatory, the retaliation is
actionable. Accordingly, we will reverse the Court's grant of

                               4
summary judgment on Greg's perception claim of
retaliation. We discuss these first two theories in the text,
infra. Greg's other theory of illegal retaliation -- that he was
fired for refusing to cooperate with Mercy in the
investigation of his father's claim -- is plainly without merit
and we dispose of it in the margin.2

I. Facts and Procedural History

Members of the Fogleman family have a long history of
employment at Mercy Hospital. The plaintiff, Greg
Fogleman, began working for Mercy as a security officer in
1978. In 1992 Mercy named him Supervisor of Security, a
post he held until his termination in 1996. 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. But
the story of this litigation begins with Greg's father, Sterril
Fogleman, who began working at Mercy in 1976 as an
engineer and remained on the staff for 17 years, until 1993,
when the hospital offered him a choice between accepting a
demotion or leaving the hospital. Sterril chose to leave, and
suspected that Mercy had pushed him out due to his
advancing age and his recent loss of sight in one eye.
_________________________________________________________________

2. Greg alleges that Mercy's Vice President for Support Services, Michael
Elias, called him into his office at least six times to inquire about the
state of Sterril's claim. In response to Elias's entreaties, Greg
repeatedly
responded that he had not discussed the case with his father, and that
even if he had, he would not discuss the matter with Elias. While an
employee's refusal to cooperate with management's investigation of a
claim filed by another employee may constitute protected activity under
the anti-discrimination laws, see 2 Employment Discrimination S 34.02[2]
(Lex K. Larson ed., 2d ed. 2001), we do not think that Greg's remarks
amounted to a refusal to cooperate. Greg's response that he "did not
discuss" the case with his father indicated only that he had no
information to provide the hospital. This is not a case, therefore, in
which an employee refused to share knowledge of a fellow employee's
claim with his employer. Although Greg claims to have also told Elias
that even if he had discussed the claim with his father, he would not be
willing to share the information, we consider this remark gratuitous in
light of Greg's own admission that he had not broached the issue with
his father.

                                  5
In June 1995, after satisfying the administrative
prerequisites, Sterril sued Mercy for illegal discrimination in
the District Court for the Middle District of Pennsylvania.
Just before trial was to begin, in July 1998, the parties
settled and the case was dismissed. Greg asserts that he
did not participate in any way in Sterril's complaints or
lawsuit.

Shortly after Sterril filed his lawsuit in federal court,
Martin Everhart, Mercy's Vice President of Human
Resources, circulated a one-page memorandum to top
Mercy officials offering a brief explanation of why, in the
hospital's opinion, Sterril's claim was meritless. The memo
acknowledged that commenting on Sterril's lawsuit during
its pendency was "done at some risk as we continue to have
relatives of Mr. Fogleman employed by Mercy and open
ourselves up to further public exposure particularly
through newspapers as this document may be shared that
way." Greg submits that this language indicates that Mercy
considered him a "risk" because of his father's lawsuit. He
also asserts that Everhart was "a bit colder" to him after
the circulation of this memo. As described in note 

,
Greg also avers that a representative of management--
namely, Michael Elias -- repeatedly questioned him about
the status of his father's lawsuit in an attempt to pry
information out of him to aid the hospital in its defense.

On September 6, 1996, Greg was involved in an incident
at the hospital's gift shop that ultimately provided the
official -- Greg claims pretextual -- basis for Mercy's
termination of his employment. Greg claims that he used a
spare key to enter the hospital gift shop that morning to
check on the well-being of an elderly woman, Audrey Oeller,
who worked there as a volunteer. Greg avers that his job
description authorized him to enter the shop; additionally,
his supervisor testified that before this incident Greg
routinely entered the shop to check on Oeller.

The hospital, in contrast, asserts that Greg had no
authority to enter the gift shop at any time, and that his
entry was in violation of hospital rules. Moreover, the
hospital represents that it was troubled by Oeller's
conflicting account of Greg's reasons for entering the shop.
According to Oeller, Greg told her that he entered the shop

                               6
to check on the sprinkler system at the request of
maintenance supervisor Dave Searfoss. Searfoss, however,
related to the hospital that he had never made any such
request of Greg. According to Mercy, Greg also violated
hospital policy by failing to report the incident to anyone
until questioned about it, failing to request assistance,
failing to document the incident until directed to do so, and
failing to report the taking of the key to the gift shop from
a secure Maintenance Department Room.

On September 11, the hospital suspended Greg with pay
in the wake of the gift shop incident pending further
investigation. Greg claims that he was told that he would
not receive a final determination on his employment status
until September 17, which was also the same day that his
father was to be deposed for his federal lawsuit against
Mercy. Although it appears that no actual investigation
took place before September 17, Greg was fired on that day,
allegedly for reasons related to the gift shop incident. Greg
avers that his termination was in violation of the hospital's
progressive discipline policy. Other employees, Greg
contends, were punished less severely for far more
egregious infractions.

Greg sued Mercy in the District Court for the Middle
District of Pennsylvania alleging violations of the ADA, the
ADEA, and the PHRA. Mercy moved for summary judgment
on these claims, and the District Court granted the motion,
concluding that the statutes did not allow a plaintiff to sue
on the theory that he had suffered a discharge in retaliation
for protected activity engaged in by another person, even if
that other person was a close relative. The Court rejected
Greg's alternative theories, concluding that they were
unsupported by the statutory language. This timely appeal
followed. The District Court had jurisdiction pursuant to 28
U.S.C. S 1331, and we have jurisdiction pursuant to 28
U.S.C. S 1291. We set forth the familiar standard of review
for grants of summary judgment in the margin.3
_________________________________________________________________

3. Our review of a district court's grant of summary judgment is plenary.
See Beers-Capitol v. Whetzel, 

, 130 n.6 (3d Cir. 2001).
Summary judgment is proper if there is no genuine issue of material fact
and if, viewing the facts in the light most favorable to the non-moving
party, the moving party is entitled to judgment as a matter of law. See
F.R.C.P. 56(c); Celotex Corp. v. Catrett, 

(1986).

                               7
II. The Relevant Anti-Retaliation Provisions

Greg alleges that his termination violated the anti-
retaliation provisions of the ADA, the ADEA, and the PHRA.
The ADA's anti-retaliation provision states:

       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. S 12203(a). The ADEA and PHRA contain nearly
identical anti-retaliation provisions, which we quote in the
margin.4

Because the anti-retaliation provisions of the ADA and
ADEA are nearly identical, as is the anti-retaliation
provision of Title VII, we have held that precedent
interpreting any one of these statutes is equally relevant to
interpretation of the others. See Krouse v. American
Sterilizer Co., 

, 500 (3d Cir. 1997). The
language of the PHRA is also substantially similar to these
anti-retaliation provisions, and we have held that the PHRA
is to be interpreted as identical to federal anti-
discrimination laws except where there is something
_________________________________________________________________

4. The anti-retaliation provision of the ADEA provides:

       It shall be unlawful for an employer to discriminate against any of
       his employees . . . because such individual . . . has opposed any
       practice made unlawful by this section, or because such individual
       . . . has made a charge, testified, assisted, or participated in
any
       manner in an investigation, proceeding, or litigation under this
       chapter.

29 U.S.C. S 623(d). Similarly, the PHRA states:

       It shall be an unlawful discriminatory practice . . . [f]or any . .
.
       employer 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 act.

43 Pa. Cons. Stat. S 955(d).
8
specifically different in its language requiring that it be
treated differently. See Dici v. Commonwealth of
Pennsylvania, 

, 552 (3d Cir. 1996). There is no
argument made by either party that the PHRA should be
interpreted any differently from federal law in this case. For
purposes of this appeal, therefore, we will interpret the
anti-retaliation provisions of the ADA, ADEA, and PHRA
cited above as applying identically in this case and
governed by the same set of precedents.

In addition to the anti-retaliation provision cited above,
the ADA has a further anti-retaliation provision not found
in the ADEA and the PHRA. That provision reads:

       It shall be unlawful to coerce, intimidate, threaten, or
       interfere with any individual in the exercise or
       enjoyment of, or on account of his or her having
       exercised or enjoyed, or on account of his or her having
       aided or encouraged any other individual in the
       exercise or enjoyment of, any right granted or protected
       by this chapter.

42 USC S 12203(b). As will appear, this provision, in light
of its similarity to language in the NLRA, see 29 U.S.C.
S 158(a)(1), is critical to the outcome of this case.

Before analyzing each of Greg's theories of illegal
discrimination, we note that in order to establish a prima
facie case of illegal retaliation under the anti-discrimination
statutes, a plaintiff must show: "(1) protected employee
activity; (2) adverse action by the employer either after or
contemporaneous with the employee's protected activity;
and (3) a causal connection between the employee's
protected activity and the employer's adverse action."

. Because the District Court
concluded that Greg failed to satisfy the first prong with
respect to his theories of relief, it never addressed the
adverse employment action and causation prongs of his
retaliation claims. Consequently, we do not address those
issues here on appeal in the first instance. Rather, we
consider only the District Court's treatment of the
"protected activity" prongs of Greg's anti-discrimination
claims.

                                9
III. Greg's Third-Party Retaliation Claim

In arguing that Mercy unlawfully retaliated against Greg
for the protected activity of his father, Greg maintains that
as a matter of statutory construction, the anti-retaliation
provisions are violated even if the person retaliated against
did not himself engage in protected conduct. The Equal
Employment Opportunity Commission ("EEOC") has filed
an amicus brief in support of this position. Mercy responds
that the anti-retaliation provisions only prohibit retaliation
against a person who himself engaged in protected activity.

A.

In determining whether retaliation against a person who
has not himself engaged in protected conduct is actionable,
we first consider the ADA, 42 U.S.C. S 12203(a), ADEA, 29
U.S.C. S 623(d), and PHRA, 43 Pa. Cons. Stat.S 955(d),
each of which contains similar language prohibiting
retaliation. We have yet to decide squarely whether these
provisions make actionable retaliation against someone who
has not himself engaged in protected conduct. Among the
other courts that have addressed the issue no consensus
has emerged. Some courts have answered the question
definitively in the negative -- i.e., a plaintiff may not
present an anti-retaliation claim without personally
participating in protected activity. See, e.g. , Smith v.
Riceland Foods, Inc., 

, 819 (8th Cir. 1998);
Holt v. JTM Indus., Inc., 

, 1227 (5th Cir. 1996).
But other courts have expressly acknowledged the viability
of third-party retaliation claims. See, e.g., EEOC v.
Nalbandian Sales, Inc., 

, 1212 (E.D.
Cal. 1998); De Medina v. Reinhardt, 

, 580
(D.D.C. 1978).

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. 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

                                10
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. Furthermore, although there is no Third
Circuit opinion squarely deciding the issue, the language of
our opinions has at times reflected this literal
understanding of the statute. For instance, in Kachmar v.
Sungard Data Sys., Inc., 

(3d Cir. 1997), we
stated that "[i]n order to establish a prima facie case of
discriminatory retaliation, . . . [the plaintiff] must show
. . . that she engaged in protected activity. . . ." 

(emphasis added).

Nevertheless, Greg and the EEOC are correct that a
literal reading of the anti-retaliation provisions is at odds
with the policies animating those provisions. The anti-
retaliation provisions recognize that enforcement of anti-
discrimination laws depends in large part on employees to
initiate administrative and judicial proceedings. There can
be no doubt that an employer who retaliates against the
friends and relatives of employees who initiate anti-
discrimination proceedings will deter employees from
exercising their protected rights. Indeed, as the Seventh
Circuit sagely observed, "To retaliate against a man by
hurting a member of his family is an ancient method of
revenge, and is not unknown in the field of labor relations."
NLRB v. Advertisers Mfg. Co., 

, 1088 (7th Cir.
1987). 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.
See De 

(concluding that
"tolerance of third-party reprisals would, no less than the
tolerance of direct reprisals, deter persons from exercising
their rights under Title VII").

This case, therefore, presents a conflict between a
statute's plain meaning and its general policy objectives. In
general, this conflict ought to be resolved in favor of the
statute's plain meaning. See Caminetti v. United States, 

, 485 (1917) ("It is elementary that the meaning of
a statute must, in the first instance, be sought in the

                               11
language in which the act is framed, and if that is plain
. . . the sole function of the courts is to enforce it according
to its terms."). The preference for plain meaning is based on
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. See 2A
Norman J. Singer, Statutes and Statutory Construction 135,
S 46:03 (6th ed. 2000).

To be sure, however, there are cases in which a blind
adherence to the literal meaning of a statute would lead to
a patently absurd result that no rational legislature could
have intended. Following the letter, rather than the spirit,
of the law in such cases would go against the court's role
of construing statutes to effectuate the legislature's intent.
See United States v. Schneider, 

, 880 (3d Cir.
1994) ("It is the obligation of the court to construe a statute
to avoid absurd results, if alternative interpretations are
available and consistent with the legislative purpose."). We
do not believe, however, that this is such a case. Although
we think, as explained above, that recognizing third-party
retaliation claims is more consistent with the purpose of
the anti-discrimination statutes, we cannot say that
prohibiting such claims is an absurd outcome that
contravenes the clearly expressed intent of the legislature.
See In re Pelkowski, 

, 741 (3d Cir. 1993) ("In
the absence of clearly expressed contrary legislative intent,
the statutory language must be regarded as conclusive.").
Rather, while we do not find them particularly convincing,
there are at least plausible policy reasons why Congress
might have intended to exclude third-party retaliation
claims.

For instance, Congress may have thought that "[i]n most
cases, the relatives and friends who are at risk for
retaliation will have participated in some manner in a co-
worker's charge of discrimination," thereby having
themselves engaged in protected activity. Holt , 89 F.3d at
1227. If this is true, then the occurrence of pure third-party
retaliation will be rare, so that not allowing claims to
proceed in these few instances would not necessarily
"defeat the plain purpose" of the anti-discrimination laws.

                               12
Bob Jones Univ. v. United States, 

, 586 (1983).
Put differently, barring third-party retaliation claims will
not render the antiretaliation provisions completely
meaningless, since they still prohibit the practice of
retaliating against an employee for the employee's own
protected activity, which may be the most common form of
retaliation.

Moreover, 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. 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, 42 U.S.C. S12203(a).

B.

As an alternative basis for his third-party claim Greg also
relies on the second anti-retaliation provision of the ADA,
42 U.S.C. S 12203(b), which reads:

       It shall be unlawful to coerce, intimidate, threaten, or
       interfere with any individual in the exercise or
       enjoyment of, or on account of his or her having
       exercised or enjoyed, or on account of his or her having
       aided or encouraged any other individual in the
       exercise or enjoyment of, any right granted or protected
       by this chapter.

We have noted that the scope of this second anti-retaliation
provision of the ADA "arguably sweeps more broadly" than
the first. Mondzelewski v. Pathmark Stores, Inc. 

, 789 (3d Cir. 1998). In particular, unlike the first
provision, the text of this provision does not expressly limit
a cause of action to the particular employee that engaged in
protected activity.

                               13
This provision contains language similar to that found in
section 8(a)(1) of the NLRA, 29 U.S.C. S 158(a)(1), 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. In Kenrich
Petrochemicals, Inc. v. NLRB, 

(3d Cir. 1990)
(in banc), we enforced an order of the National Labor
Relations Board that interpreted section 8(a)(1) to prohibit
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." 

Our sister courts of appeals have also recognized that
section 8(a)(1) prohibits the firing of a close relative of an
employee who engages in activity protected by the NLRA.
See, e.g., Tasty Baking Co. v. NLRB, 

, 127-28
(D.C. Cir. 2001); NLRB v. Advertisers Mfg. Co. , 

, 1088-89 (7th Cir. 1987).

Our interpretations of the NLRA can serve as a useful
guide to interpreting similar language in the ADA, as both
are "part of a wider statutory scheme to protect employees
in the workplace nationwide." McKennon v. Nashville
Banner Pub'g Co., 

, 357 (1995). The texts of
section 8(a)(1) of the NLRA and the ADA's second anti-
retaliation provision are essentially similar -- each makes it
illegal for an employer to "coerce" or "interfere with" an
employee exercising his rights under the act. In view of this
fact, as well as the similar policies underlying the two
provisions, it seems sensible to hold, as we now do, that
Greg may assert his third-party retaliation claim under this
section of the ADA just as he would be able to do under the
NLRA.5 Accordingly, we will reverse the District Court's
_________________________________________________________________

5. We recognize that the ADA's second anti-retaliation provision makes it
unlawful "to coerce . . . any individual" whereas section 8(a)(1) of the
NLRA makes it unlawful to "coerce employees." One could read the
reference to "any individual" as limiting causes of action to those
individuals who have themselves engaged in protected activity under the

                               14
order granting summary judgment to Mercy to the extent
that it was based on the Court's view that Greg's third-
party retaliation claim was not cognizable under the ADA's
second anti-retaliation provision. As noted above, because
the District Court did not address the second and third
prongs of Greg's retaliation claim -- adverse employment
action and causation -- we do not do so on appeal.

IV. Greg's "Perception Theory" of Retaliation

As a final means of showing illegal retaliation under the
anti-discrimination statutes, Greg argues that even if he
was not engaged in primary protected activity, Mercy
perceived him to be so engaged. Greg contends that Mercy
fired him with the subjective intent of retaliating against
him for engaging in protected activity, thereby violating the
anti-retaliation provisions. The District Court disposed of
this claim as a matter of law, concluding that the statutory
language did not support a perception theory of retaliation.
We disagree.

Unlike the interpretation of "such individual" to allow for
third party claims advocated by Greg that we rejected in
Section II.A, we do not believe that the perception theory
contradicts the plain text of the anti-discrimination
statutes. Rather, we read the statutes as directly
supporting a perception theory of discrimination due to the
fact that they make it illegal for an employer to
"discriminate against any individual because such
individual has [engaged in protected activity.]" 42 U.S.C.
S 12203(a) (emphases added). "Discriminat[ion]" refers to
the practice of making a decision based on a certain
criterion, and therefore focuses on the decisionmaker's
_________________________________________________________________

ADA in a way that the NLRA's reference to "employees" does not. We do
not take such a view, however, for we believe that the shared language
of the two provisions -- the prohibition on an employer "coerc[ing]" or
"interfer[ing] with" protected activity-- provides the basis for allowing
third party claims. This is so because action taken against the third
party employee can have the effect of coercing the employee engaging in
protected activity, and may also coerce other employees of the company
from engaging in protected activity in the future.

                                15
subjective intent. What follows, the word "because,"
specifies the criterion that the employer is prohibited from
using as a basis for decisionmaking. The laws, therefore,
focus on the employer's subjective reasons for taking
adverse action against an employee, so it matters not
whether the reasons behind the employer's discriminatory
animus are actually correct as a factual matter.

As an illustration by analogy, imagine a Title VII
discrimination case in which an employer refuses to hire a
prospective employee because he thinks that the applicant
is a Muslim. The employer is still discriminating on the
basis of religion even if the applicant he refuses to hire is
not in fact a Muslim. What is relevant is that the applicant,
whether Muslim or not, was treated worse than he
otherwise would have been for reasons prohibited by the
statute. We have adopted this same approach in the labor
law context, where we have consistently held that 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. See Fogarty v. Boles, 

,
891 (3d Cir. 1997); Brock v. Richardson, 

, 125
(3d Cir. 1987). Accordingly, we hold that if Greg can show,
as he claims, that adverse action was taken against him
because Mercy thought that he was assisting his father and
thereby engaging in protected activity, it does not matter
whether Mercy's perception was factually correct.

As evidence of the hospital's perception that he was
engaged in protected activity, Greg relies, inter alia, on the
circulation of Everhart's memo, Everhart's somewhat
"colder" demeanor toward him after the memo's circulation,
Elias's repeated questioning, and, of course, his
termination, which he alleges was in violation of the
hospital's progressive discipline policy. Because, however,
the District Court did not in the first instance address the
question of whether this evidence presented a triable issue
of fact as to Mercy's perception of Greg having engaged in
protected activity, we do not delve into it on appeal. Nor, as
noted above, do we address the second and third prongs --
adverse employment action and causation -- of Greg's
illegal retaliation claim. Rather, we hold only that the

                               16
District Court erred in concluding that Greg's perception
theory of illegal retaliation was invalid.

Conclusion

For the foregoing reasons, the order of the District Court
granting summary judgment to Mercy will be reversed and
the case remanded for further proceedings consistent with
this opinion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                17