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Defense Digest

Whispering Isn’t Enough for Harassment: Federal Court Sets a Boundary for Employers

Defense Digest, Vol. 32, No. 1, March 2026

March 1, 2026

by Veronica R. Sansone

Key Points:

  • The U.S. District Court for the Eastern District of Pennsylvania recently held that there are limits to workplace harassment.
  • The “severe and pervasive” standard cannot be stretched to cover a Title VII claim.
  • To establish a protected activity, plaintiffs must show that a reasonable person would perceive the conduct described in the complaint as harassment and/or illegal.

Recently, the U.S. District Court for the Eastern District of Pennsylvania limited the scope of workplace harassment. In Nyamu v. Merck & Co., 2025 WL 2599528, (E.D. Pa. Sept. 8, 2025), the court ruled in favor of the defendant-employer. It granted summary judgment and dismissed the plaintiff’s claims for both retaliation and hostile work environment.

The plaintiff, Peter Nyamu, brought claims against his employer, Merck Sharp & Dohme LLC, for creating a hostile work environment based on sexual harassment and retaliating against him for reporting the harassment. The plaintiff was employed as a biotechnician and worked in a sterile lab. The plaintiff claimed that during a staff meeting, his supervisor forgot to hand him one of the schedules he was passing out. Allegedly, after the meeting, the supervisor came close to the plaintiff and whispered in his ear, “I don’t know how I missed to give you a schedule because I use your voice to know where you are standing ... You have a voice that is very specific to me.” Notably, the plaintiff is of African descent, and he perceived this remark as condescending – due to his heavy accent. After the meeting, the plaintiff filed a formal complaint about his supervisor.

The same year the incident at the staff meeting occurred, the plaintiff had failed six contamination tests, excluding him from working in a sterile area for one year as per policy. Under the policy, the plaintiff was able to request, and was later transferred to a department that did not involve entering a sterile area until his exclusion was lifted after a year. The transfer occurred after the plaintiff reported his supervisor’s conduct at the staff meeting. The defendant claimed the transfer was based on the exclusion policy, which the plaintiff was made aware of prior to logging his complaint, and he was placed back in his original unit once his exclusion ended.

Cross-motions for summary judgment were filed by both the plaintiff and defendant. In deciding the motions, the court analyzed the standards for both a hostile work environment due to sexual harassment and retaliation. In most employment cases, summary judgment is uncommon and a high hurdle for defendants.

Here, the plaintiff alleged that his supervisor’s comments were about his distinct voice – yet he brought a hostile work environment claim under sexual harassment only. Thus, the court could only examine the instance based on the totality of the circumstances in reference to the plaintiff’s sex.

Under this type of claim, the plaintiff first had to show the sex discrimination was severe and pervasive. When analyzing this first prong of the claim, the court focused on the act of leaning in and whispering to a co-worker. It recognized that this act can be uncomfortable and interfere with one’s personal space. However, based on the facts presented, it did not find that the supervisor was making a sexual advance toward the plaintiff. The court ruled that, while the plaintiff may have felt uncomfortable, the singular act of whispering in this instance was not severe and pervasive enough to support a gender-based claim, especially because the allegations did not involve his sex. Thus, the court granted summary judgment in favor of the defendant.

The plaintiff also brought a retaliation claim, which was based on being transferred to another unit after he complained about the incident with his supervisor. Therefore, the court had to examine if the plaintiff engaged in a protected activity under Title VII.

In Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 322 (3d Cir. 2008), the Third Circuit held that if no reasonable person could believe the reported incident constituted unlawful discrimination, then the complaint is not considered a protected activity. In Nyamu v. Merck & Co., the District Court determined that the plaintiff’s supervisor whispering about his voice being distinct was not derogatory. In fact, the court further explained that this was an “isolated incident” and something one could reasonably determine was an attempt by the supervisor to be discrete. Ultimately, summary judgment was, again, granted in favor of the defendant.

This was a key win for employers. The ruling strengthens the legal standard for claims of hostile work environment and retaliation, providing employers with a strong defense to claims involving only isolated, minor incidents. The court’s holding was consistent with previous interpretations of “severe and pervasive,” and confirmed that not every workplace complaint meets the reasonable person standard required to establish a protected activity.

Veronica works in our King of Prussia, PA office. She can be reached at (610) 354-8261 or VRSansone@mdwcg.com.

Firm Highlights

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Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

Thought Leadership

Florida Supreme Court Rules Florida Statute §627.70152 Does not Apply Retroactively

In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

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Result

Summary Judgment Obtained in Insurance Coverage Case

Thought Leadership

The Tolling Trap: Filing Alone Will Not Toll the Statute Without Good-Faith Service

The Eastern District of Pennsylvania recently reinforced a critical limitation on bad faith claims, holding that a timely filing alone will not preserve a cause of action absent a good-faith effort to serve the original process. The plaintiff had presented a claim for underinsured motorist benefits to his auto insurer. The insurer evaluated the claim and determined that the plaintiff’s accident-related damages did not exceed the bodily injury liability insurance limits of the at-fault driver and denied his claim. Among other claims, the plaintiff sought to present a claim for insurance bad faith under 42 Pa. C.S.A. § 8371, to which a two year statute of limitation applies. He first filed a praecipe for writ of summons before the expiration of the statute of limitation. However, the plaintiff did not attempt to serve the praecipe or writ until after the statute of limitations had expired. Additionally, the service failed as the plaintiff had mailed the original process to an incorrect address. Despite receipt of the Postal Service’s failure to deliver the original process, the plaintiff did not attempt to re-serve the writ. Two months later, the plaintiff filed a complaint and then successfully served that complaint. The insurer sought to dismiss the plaintiff’s bad faith claim as time-barred by the statute of limitations. The district court agreed. Though the plaintiff had filed a praecipe for a writ of summons prior to the expiration of the statute of limitations, the statute is only tolled if there is a good faith effort to serve that original process. In this case, the court determined that the plaintiff had failed to perform a “good faith effort to serve the original process”. Additionally, though the filing and service of a complaint can serve as alternative original process when the lawsuit is commenced by the filing of a praecipe for a writ of summons, the plaintiff filed his complaint after the statute of limitations had expired. The plaintiff’s bad faith claim was therefore determined to be barred by the statute of limitations and dismissed by the court, with prejudice. A key takeaway for the defense is not to assume that the statute of limitations has been successfully tolled by a plaintiff merely because a praecipe for a writ of summons or complaint has been filed prior to the expiration of the statute. A filed complaint or writ is only part of the equation. The defense should carefully review the docket and filings to confirm that the plaintiff also performed the requisite good faith effort to serve that original process. A thorough review of the docket may reveal that the plaintiff failed to make the good-faith service efforts necessary to toll the statute of limitations.

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

Event

CLM 2026 Focus Conference

Allison joins three insurance industry leaders to discuss how cyber coverage disputes, the growing impact of social inflation on bodily injury claim valuation, and the use of artificial intelligence are reshaping the bad faith landscape. The panel will examine emerging sources of extra-contractual exposure, including evolving cyber insurance coverage issues and the challenges of accurately valuing bodily injury claims. Practical approaches to claim evaluation using AI, along with defense strategies designed to help prevent or successfully defend against bad faith litigation, will also be addressed. 

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case