United States District Court, Northern District of Mississippi, Greenville Division
JANE M. VIRDEN, UNITED STATES MAGISTRATE JUDGE
This matter is before the court on Defendant’s Supplemental Motion for Summary Judgment  as invited by this court’s prior order on Defendant’s Motion for Summary Judgment . Upon due consideration of the supplemental motion, Plaintiff’s response, the reply, and relevant law, the court finds the motion well taken and, it should be granted as explained below.
By its prior order , this court noted that though Plaintiff failed to check the box on his form pro se complaint  marked “ADA” (aka “the Americans with Disabilities Act” hereinafter sometimes “the Act”) as a basis for the asserted retaliation claim, the narrative language used in his complaint is that familiar to the Act. However, because the Defendant did not address whether the retaliation claim, properly construed, was one brought under the ADA, the court did not rule on the issue. The Defendant has now raised the issue by supplemental motion for summary judgment, and it makes two arguments in opposition to any alleged retaliation claim under the ADA. First, Defendant argues Plaintiff’s complaint does not assert an ADA retaliation cause of action because Plaintiff did not check the box “ADA” in his form complaint or reference the Act in his EEOC charge. Second, Defendant contends even had Plaintiff done so, certain Fifth Circuit decisions preclude Plaintiff, as a matter of law, from establishing a prima facia case of retaliation under the ADA. In particular, defendant argues in order to be actionable, the alleged retaliation must have been in response to an employee’s complaint of the employer’s discrimination against that employee or another employee. Defendant asserts there is no cognizable claim for retaliation in response to an employee’s complaint of the employer’s discrimination against non-employees, such as the mentally ill patients at the Defendant hospital.
The court is prepared to rule on the matter. In doing so, it will adopt by reference, as if fully stated herein, its recitation of facts and standard of review set out in its original opinion .
Law and Analysis
In addressing Defendant’s arguments, the court considers the lenient pleading standard for pro se plaintiffs. Even though plaintiff did not check the box marked “ADA” in his complaint or reference it in his EEOC charge, both the complaint and EEOC charge contain narrative language applicable to ADA claims (i.e., reasonable accommodations necessitated by an asserted physical/mental condition). Specifically, the charge filed by the Plaintiff and attached to his complaint recites in pertinent part as follows:
I have also personally requested that Jessica Willis provide reasonable accommodations for mentally disabled patients along with requesting changes with department practices to promote a safe environment …. Retaliation based on my ongoing request for (Director) Jessica Willis to provide reasonable accommodations and safe environment for mentally disabled patients. The reason given for my termination by DRMC Human Resource Director and Department Director was carefully, strategically and constructively utilized for a grand opportunity to terminate me.
Compl.  at 9. Similarly, his pro se complaint states, under the portion requiring a narrative description of the complained of conduct: “Plaintiff's earlier complaint of discrimination or opposition to acts of discrimination. (If you are alleging Retaliation, state the acts or events that you claim constitute retaliation: ‘repeated requests for reasonable accommodation and safe environment or mentally disturbed ….’)” Id. at 3.
Given the plain language of the EEOC Charge and the pro se complaint, the court ordinarily would not be convinced Plaintiff’s failure to formally reference the ADA in his pro se complaint and/or in the EEOC charge is fatal to a retaliation claim under the ADA. However, in this case, the Plaintiff, by way of responsive pleading, has confirmed that as a matter of fact, he did not intend to make a claim under the ADA since he “had no idea that an action could proceed under the ADA . . .” On the basis of this concession and for the additional reason, as explained below, even had such a claim been asserted or could be construed to have been asserted in light of plaintiff’s pro se status, the Defendant is nevertheless entitled to summary judgment.
Defendant argues, irrespective of whether Plaintiff expressly referenced the ADA in his complaint and/or EEOC charge, as a matter of the substantive law, an employee may not assert a retaliation claim if the adverse employment action (in this case, termination) was in response to the employee’s complaints about treatment of non-employees-such as the patients of the defendant hospital. For support, Defendant relies on cases holding a retaliation claim under Title VII does not protect an employee from adverse action for complaining about alleged discrimination against non-employees. See Def.’s Supplemental Br. in Further Supp. of Mot. for Sum. J.  at 4-6. This court acknowledges this proposition is correct under Title VII, but in so far as Plaintiff’s retaliation claim at issue here pertains to the ADA, the cases relied on by Defendant are simply not applicable.
Unlike Title VII, the ADA is considerably broader. See Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. (2015). While Title I relates to private employers, state and local governments, employment agencies and labor unions and prohibits an employer from discriminating against qualified applicants and employees on the basis of disability, Title II applies to state and local government entities and prohibits them from discriminating against individuals on the basis of disability; and Title III covers public accommodations and commercial facilities prohibiting discrimination, such as in hotels, restaurants, and doctor’s offices. Id. Further, ADA Code Section 12203, makes it unlawful to retaliate against a person for exercise of the rights conveyed. See 42 U.S.C. § 12203 (2015).
In short, the present issue is not whether a Title VII retaliation claim is strictly limited to conduct of and concerning employees. Instead, it is whether the Plaintiff engaged in activity protected under Title II or III of the ADA and, thus, is protected from retaliation under the Act. Specifically, the question is whether Landrum, a public hospital employee, is protected from retaliation for allegedly requesting or complaining to the public hospital that its supervision/treatment of its mentally ill patients should be different from that dictated by the hospital’s adopted protocols.
A dearth of Fifth Circuit case law exists on this precise point, but a string of cases decided by the Fourth Circuit, which culminated in Freilich v. Upper Chesapeake Health Incorporated, 313 F.3d 205 (4th Cir. 2002) addresses the issue spot on. In that case, Dr. Freilich, a nephrologist, worked at the defendant Hospital. Id. at 210. During her tenure, she advocated for the rights of her patients to improve their quality of care, including “complain[ing] that the outsourcing of quality assurance and oversight services for dialysis patients led to an improper standard of care.” Id. Thereafter, the hospital non-renewed her medical privileges for improper “ethics and behavior.” Id. She then filed suit, alleging the hospital denied her application for reappointment in violation, inter alia, of the ADA because she advocated for the rights of her dialysis patients.
With respect to her retaliation claim, the Freilich court affirmed the district court’s dismissal of the claim ...