The United States Court of Appeals for the Third Circuit continued its recent trend of employee-friendly opinions in discrimination claims with its decision in Fogleman v. Mercy Hospital. In Fogleman, the Court, without citation to a single case from another Court interpreting the ADA, held that an employee can maintain an action against his employer for retaliation under the ADA on a theory that he was terminated because his father had sued the same hospital for disability discrimination. Though it was the employee's father in Fogleman who had engaged in the "protected activity", the Court did not, in any way, limit the reach of its decision to those circumstances where the two employees were family members.

The facts of Fogleman were relatively straightforward. The father was employed as a security guard by Mercy Hospital until 1993, when he alleged that he was forced to resign, in violation of the ADA and the ADEA. Subsequently, he brought suit against the Hospital. In 1996, his son, who was also employed as a security guard by Mercy Hospital, was terminated after what the employer identified as an unauthorized entry into the hospital's gift shop. He also sued the Hospital, alleging violations of the anti-retaliation provisions of the ADA, the ADEA, and the Pennsylvania Human Relations Act ("PHRA").

The District Court granted summary judgment in favor of the employer, finding that none of the retaliation provisions of those statutes permit an action for retaliation by an individual who himself was not engaged in "protected activity." The employee then appealed.

On appeal, the Third Circuit agreed with the District Court, in part, finding that neither the ADEA nor the PHRA permit an employee to maintain a retaliation action unless that employee himself or herself engaged in "protected activity" and was terminated as a result of such protected activity. Thus, the Court held that the District Court properly granted summary judgment in favor of the Hospital.

However, the Third Circuit reversed the District Court's decision as it related to the employee's claim under the ADA, holding that an employee can maintain a claim that he or she was retaliated against because another employee engaged in protected activity. The Court based its decision on purportedly similar language from the National Labor Relations Act, which the Court had previously interpreted as permitting such claims. Significantly, the Third Circuit made such a finding without citation to any caselaw interpreting the ADA as permitting such a claim and also acknowledging that the language of the NLRA and ADA did differ. The Court also held that the employee could sue his employer on a theory that he was terminated based upon the employer's mistaken perception that the employee had assisted his father in the father's litigation against the employer.

It is, of course, too early to measure the effects of the Fogleman decision. However, a very real possibility exists that the Third Circuit has opened the door to a new generation of litigation: employees claiming they were retaliated against because a co-employee filed an ADA discrimination claim. The Third Circuit did not provide any requirements or standards for determining how "close" (i.e., relative, friend, acquaintance) an employee must be to the aggrieved employee before an action may be filed. Moreover, there is no way for employers to know in advance if someone they discipline or terminate an employee that such employee will subsequently allege that the discipline or termination was in retaliation for another employee's discrimination claim. Essentially, the Third Circuit has eliminated the requirement of the ADA that an employee engage in protected activity as a prerequisite to an ADA retaliation claim; instead, the employee need only allege that another employee engaged in protected activity, which cause the employer to take adverse action against the plaintiff employee.

There is, in addition, yet another concerning feature of Fogleman. The Third Circuit also stated, in dicta, that "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." This quotation suggests that the Third Circuit would recognize a claim by an employee that he was terminated because of refusal to cooperate in an employer's investigation of another employee's discrimination claim. Though the Third Circuit failed, yet again, to cite a single case in support of its position, the language of its decision raises the very real question of whether an employee can ever compel an employee to provide information regarding even the investigation of an unlawful discrimination claim.

In light of the uncertain effects of Fogleman, we will continue to monitor the progress of actions raising these issues. Employers will need to be even more sensitive of actions they take relative to discipline of employees where another employee has filed a disability discrimination claim. This is particularly true where the employer has knowledge of a close relationship of some sort between the employees. Moreover, employers at least need to be cognizant of the Third Circuit's dicta regarding a refusal to cooperate in an investigation amounting to "protected activity." Check back periodically for updates on the after-effects of this potentially significant decision.