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Michael Gerhart v. Exelon Corporation

February 21, 2011


The opinion of the court was delivered by: Stengel, J.


STENGEL, J. February 21, 2011

Michael Gerhart filed an employment discrimination action against his former employer alleging retaliation in violation of Title VII of the Civil Rights Act of 1964, a violation of the Pennsylvania Human Relations Act,*fn1 and the state law tort of intentional interference with prospective contractual relations. The defendant filed a motion for summary judgment to which the plaintiff responded. For the following reasons, I will grant the motion in its entirety and enter judgment on behalf of the defendant.


Michael Gerhart worked at Exelon Generation Company for eleven years as a First Class Maintenance Technician at the Limerick Generating Station, allegedly enjoying an excellent work record. Pursuant to this employment, Mr. Gerhart applied for unescorted access to the nuclear power plant, which was a requirement for his position. As part of this process, Mr. Gerhart signed an Exelon PADS*fn3 Consent Form and a PSEG Nuclear PADS Consent Form. See Document #10-3, Exhibit 1.

Pursuant to his execution of these consent forms, Mr. Gerhart consented that Exelon Generation could obtain, retain, and transfer information necessary to determine whether to grant him access to a nuclear power plant. Id. The PADS Consent Forms specifically provide that the information obtained will be used in determining that an individual is trustworthy, reliable, and fit-for-duty. By signing the forms, Mr. Gerhart acknowledged that the information will include, but is not limited to, dates when unescorted access has been authorized or terminated. Furthermore, he released Exelon, other PADS participants, NEI, and the officers, employers, representatives, agents, and records custodians of any entity or individual supplying such information from any and all liability based on their authorized receipt, disclosure, or use of the information obtained pursuant to the Consent and to determine eligibility for unescorted access.

On April 24, 2007, Mr. Gerhart was interviewed by the defendant's security team regarding the investigation of an allegation of sexual harassment which occurred five years before in the men's locker room with four men present. The security officer described the incident but Mr. Gerhart said he did not witness the incident. He did see one of the gentlemen "make a hand motion" towards another gentleman. Attached to his response to the motion for summary judgment, Mr. Gerhart provided an affidavit in which he described, inter alia, the incident and the security interview as he remembered them. Ron Seltman, Mike Kern, Ed Conjar, and Mr. Gerhart were all in the locker room together. In response to the security manager telling Mr. Gerhart that Mr. Conjar accused Mr. Seltman of sexually assaulting him, Mr. Gerhart told the interviewer that no such assault had occurred. The interview lasted approximately forty-five minutes. On the way home from the interview, Mr. Gerhart left a message on Mr. Conjar's telephone and asked him to return the call.

Two days later, Mr. Gerhart was called back for a second interview. This time, the security manager seemed angry and asked Mr. Gerhart if he had attempted to contact Mr. Conjar. Mr. Gerhart told the manager that he called Mr. Conjar about a car he had recently purchased from him. He then "clarified" his testimony from the first interview. This time, he recalled seeing Mr. Seltman standing at Mr. Conjar's feet. Mr. Gerhart said that that would have made it impossible for Mr. Seltman to have performed the alleged sexual act on Mr. Conjar.

The defendant's security department determined that Mr. Gerhart was lying during the interviews. By letter dated May 31, 2007, Exelon advised Mr. Gerhart that it was denying his unescorted access to its nuclear plants based on trustworthiness and reliability, as a result of its conclusion that Mr. Gerhart had provided false information during an internal investigation. See Document #10-3, Exhibit 2. When unescorted access is removed for any reason, employees, contractors, and vendors are legally prohibited from accessing the vast majority of Exelon's nuclear power plant locations, which may result in termination of employment if such access is necessary for the employee to perform his or her job duties. On November 19, 2007, Exelon terminated Mr. Gerhart's employment as a result of the investigation and denial of access. See Document #10-3, Exhibit 4. His appeal of the access denial was denied in August 2007. Mr. Gerhart also requested a peer panel process seeking an overturn of his termination. The peer panel determined that Mr. Gerhart was not lying, and suggested that his employment be reinstated with full back pay. He could not return to work, however, because his access was denied. Mr. Gerhart appealed a second time following the peer panel decision, but was denied a second time.

On December 14, 2007, Mr. Gerhart signed a Waiver and Release under the Exelon Corporation Severance Benefit Plan. See Document #10-3, Exhibit 3. This Waiver and Release released Exelon Corporation and its affiliated entities, including but not limited to Exelon Generation, from all claims that otherwise could have been asserted by Mr. Gerhart arising out of his employment and/or termination of employment with Exelon Generation, including claims under Title VII, claims under any state anti- discrimination law, breach of contract claims, and tort claims. Id. As consideration for this Waiver and Release, Mr. Gerhart received salary continuation for thirty-three weeks, payment of his COBRA health insurance premiums, life insurance coverage, and tuition reimbursement.


A court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). A dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" if it might affect the outcome of the case under governing law. Id.

A party seeking summary judgment always bears the initial responsibility for informing the court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the movant's initial Celotex burden can be met simply by "pointing out to the district court that there is an absence of evidence to support the non-moving party's case." Id. at 325. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers or other materials. FED. R. CIV. P. 56(c)(1)(A). That is, summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. at 322. Under Rule 56, the court must view the evidence presented on the motion in the light most favorable to the opposing party. Anderson v. Liberty Lobby, Inc., 477 U.S. at 255. The court must decide not whether the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence ...

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