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Kellerman v. UPMC St. Margaret

February 11, 2008


The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge


Presently before the Court for disposition is the MOTION FOR SUMMARY JUDGMENT, with brief in support, filed by Defendant, UPMC St. Margaret ("SMH") (Document Nos. 14 and 15, respectively), and the brief and response in opposition filed by Plaintiff, Eric Kellerman (Documents No. 21 and 22), and the REPLY BRIEF filed by SMH (Document No. 27).

The issues have been fully briefed and the matter is ripe for disposition. After a careful consideration of the motion, the filings in support and opposition thereto, the memoranda of the parties, the relevant case law, and the record as a whole, the Court finds that there is not sufficient record evidence upon which a reasonable jury could return a verdict for Plaintiff on his claims of sexual harassment and retaliation brought under Title VII of the Civil Rights Act fo 1964 ("Title VII") and the Pennsylvania Human Relations Act ("PHRA"). Accordingly, the motion for summary judgment will be granted.


Plaintiff, Eric Kellerman ("Plaintiff") brought this lawsuit on April 20, 2006, by the filing of a three-count Complaint against his former employer, SMH. Plaintiff alleges that (i) he was sexually harassed by a female co-worker and that (ii) his employment was unlawfully terminated in retaliation for having complained about the sexual harassment.

SMH has filed the instant motion for summary judgment in which it contends that it is entitled to judgment as a matter of law because Plaintiff is unable to establish (i) a prima facie case of sexual harassment; and (ii) a prima facie case of retaliation.


As the law requires, all disputed facts and inferences are to be resolved most favorable to the Plaintiff.

In January 2003, Plaintiff Eric Kellerman ("Plaintiff") applied for a position as a Medical Laboratory Technician ("MLT") at SMH by forwarding a cover letter and resume to Scott Davis, a UPMC recruiter. Mr. Davis, in turn, then forwarded Plaintiff's cover letter and resume to the SMH human resources department. In his resume, Plaintiff listed his employment history as follows: Best Buy (Present); Primary Health Care; Community College of Allegheny County. By his own admission, his resume did not detail all of his work experience and listed no hospital work experience, although he did in fact have prior hospital work experience.

On January 24, 2003, Plaintiff completed a SMH employment application and submitted it to the SMH human resources department. The employment section of the application requested: "Please account for all periods of employment in the past 10 years . . . ." This section also explicitly stated, in bold text that "[a] resume is welcome but not as a substitute for completing this section." Again, Plaintiff only listed the following employment history: Best Buy, Inc. (8/2000 to present); Primary Health Care, Inc. (1997 and 2000); and Community College (1991 to 1996). In addition, on the application, Plaintiff responded "No" to the following question: "Were you previously employed by any other hospital?" On the final page of the application, the Plaintiff attested to the following:

I certify that I fully understand all requests for information contained in this application, and I certify that the information supplied by me, on this form and elsewhere in conjunction with obtaining employment, is complete and correct to the best of my knowledge . . . . I understand that any false or misleading statements, omission, or misrepresentation on this application will be considered sufficient cause for rejection of this application or dismissal if such information or omission is discovered subsequent to my employment. (emphasis added).

Plaintiff alleges that on January 19 and 21, 2003 and again on February 23, 2003, he faxed a second "updated" resume to SMH. However, Plaintiff admits that the "updated" resume did not contain a fully accurate description of his work history. According to Plaintiff, he faxed this updated resume to the SMH human resources department at the following fax number: 1-888-279-0892. However, this was not the fax number for the SMH human resources department in 2003. Rather, the fax number was 412-784-4788.

In March 2003, Sue Ellen Reed, Laboratory Supervisor, and her immediate supervisor, Meredith Naples, Laboratory Director, interviewed Plaintiff for the MLT position. Plaintiff was offered the position and he began working as a part-time MLT in the automated testing laboratory at SMH in March 2003. As an MLT, Plaintiff was responsible for "the accurate performance of routine and STAT laboratory testing," which included testing on blood, urine, and fluids. Throughout his employment with SMH, Plaintiff reported directly to Ms. Reed.

Following his training period, Plaintiff worked on the afternoon shift, which was from 1:30 p.m. to 10:00 p.m., although Plaintiff's starting time varied.

On July 15, 2003, Plaintiff was issued a written warning for failing to timely call in or show up for work on two consecutive work days. Upon receipt of the corrective action form, Plaintiff informed Ms. Reed that he was in court on the days in question. The record reflects, however, that Plaintiff was actually in jail on those days because he had been arrested for violating a protection from abuse order entered at the request and on behalf of his wife, Denise Kellerman, and their children.

Plaintiff does not deny that throughout his employment at SMH, he had personal disagreements with several of his co-workers, including Joni Schad, Rachel Sutherland, Chris Einloth, and Jean Nealey, about a variety of work-related issues.

In his Complaint, Plaintiff alleges that Trudy Hemphill, one of his co-workers on the afternoon shift, sexually harassed him. According to Plaintiff, the harassment began in May or June of 2003. Ms. Hemphill (i) asked him questions about his personal life; (ii) sent letters and cards to him at his home address; (iii) called him on his cell phone; (iv) tried to rub his back on two occasions; (v) made "google eyes" at him; and (vi) followed him around at work. Specifically, Plaintiff was offended by Ms. Hemphill's use of words such as "honey," "sweetie," and "sweetheart," and by her general references to his personal life. Plaintiff also claims that he found phrases such as "hang in there honey" and "with love and prayers" to be offensive, as they suggested to him that Ms. Hemphill was infatuated with him.

Plaintiff admits that only one of the letters and/or cards that Ms. Hemphill sent him, a letter dated August 14, 2003, contained graphic sexual content. At the time that Plaintiff received the numerous letters, he did not complain or inform any of his supervisors at SMH that he had received or objected to them.

During the Summer of 2003, Plaintiff continued to socialize with Ms. Hemphill outside of work. For example, he put Ms. Hemphill in touch with Dennis Deminous, a friend of Plaintiff and an insurance agent, so that Plaintiff could purchase a life insurance policy for her husband, Tim Hemphill. In May or June, 2003, Plaintiff gave Ms. Hemphill computer cables for her home computer. On at least one occasion in September or October 2003, Plaintiff and Ms. Hemphill visited a co-worker, Cheryl Coffrini, at her home, so that Plaintiff could fix Ms. Coffrini's ceiling fan. According to Sue Reed, Plaintiff's supervisor, during this time period Ms. Hemphill and Plaintiff were friendly at work and they would talk and laugh together.

However, in early November 2003, Plaintiff complained, for the first time, to Ms. Reed about Ms. Hemphill. During this discussion, Plaintiff complained that Ms. Hemphill was engaging in unwanted personal contact which included telephone calls at his home and on his cell phone, letters and cards sent to his home, invasion of his personal space, and generally bothering him. Plaintiff did not show Ms. Reed what he had received in the mail from Ms. Hemphill nor did he provide her with any information as to what Ms. Hemphill stated in her mailings or alleged telephone calls.

Thereafter, Plaintiff met with again with Ms. Reed, along with Ms. Naples, and Tracey Fantini, human resources consultant, to discuss Plaintiff's complaints about Ms. Hemphill. During this meeting, Plaintiff again stated that Ms. Hemphill was bothering him and complained that she had obtained his home address and telephone number from the laboratory rolodex. Plaintiff did not provide the individuals at the ...

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