Labor & Employment Law Daily Wrap Up, DISCRIMINATION—SEX—E.D. Pa.: Merck biotechnician, who claimed supervisor’s whispering in ear was sexual harassment, gets claims tossed, (Sep 11, 2025)

By Marjorie Johnson, J.D.

While the supervisor’s conduct may have invaded his personal space and caused him some degree of discomfort, there was no suggestion that it created a gender-based hostile work environment.

Merck won’t face trial on a Title VII lawsuit brought by a biotechnician who claimed he was subjected to a sex-based hostile work environment and lost overtime opportunities in retaliation for complaining, after an incident in which his supervisor allegedly came close to him and whispered in his ear during a staff meeting, “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.” Granting Merck’s motion for summary judgment, a federal district court in Pennsylvania held that the employee did not engage in protected activity since no reasonable person could have believed that the supervisor’s behavior violated Title VII, and there was also no evidence suggesting the isolated incident was sex based or sufficiently severe or pervasive (Nyamu v. Merck & Co., No. 22-4788 (E.D. Pa. Sept. 8, 2025)).

Mandated testing for contamination. For over a decade, the employee worked for Merck as a biotechnician in Department 245, where he was primarily responsible for growing, harvesting, and storing live virus cells to manufacture vaccines. To ensure compliance with its directives, Merck maintained Standard Operating Procedure (SOP) 16283, which required biotechnicians whose work required them to enter sterile gowning areas to undergo routine testing to identify any contamination. An “excursion” occurred when one of these tests reveals contamination on a biotechnician’s sterile gown or gloved hands. A biotechnician who failed this testing six times within a year was disqualified from working in the sterile area for a year and then retrained.

Excluded from working in sterile area. In August 2021, after having accumulated six excursions in a year, the employee was excluded from working in the sterile area for one year. Because this meant he was unable to perform most of the work in Department 245, Merck gave him the opportunity—pursuant to the applicable collective bargaining agreement (CBA)—to bid on open positions for which he was qualified. The CBA also contained a “flex flow” procedure, which gave Merck the ability to temporarily move an employee to another department based on business needs. As a result, if the employee failed to successfully bid into a new role by the end of 2021, he would be flex flowed to a department that did not require sterile gowning until his disqualification was over.

Grievance over whispering incident. On September 14, 2021, the employee filed a grievance stating that his supervisor was creating a hostile work environment. Relevant to his lawsuit, one of the incidents that formed the basis for his grievance occurred during a staff meeting on July 25. After he alerted his supervisor that he had not been provided a schedule distributed to other attendees, the supervisor allegedly came up close to him 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.”

Second grievance about overtime. On November 13, the employee filed a grievance asserting that overtime was not being distributed in accordance with the CBA. Four days later, he met with his union steward, along with his supervisors, and discussed Merck’s decision to permit him to bid into another position or be temporarily flex flowed until the end of his disqualification from the sterile area. Following this meeting, he declined to bid on any positions.

Third grievance alleges retaliation. On November 19, he filed a grievance asserting that his decreased overtime and impending flex flow was in retaliation for his September grievance regarding his supervisor’s harassment. The next day, he filed another grievance complaining that the company’s actions were based on his being “of African descent.” On March 27, 2022, he was flex flowed to a different department where the majority of work did not need to be performed in a sterile environment.

EEOC charge. The employee subsequently filed an EEOC charge, and this lawsuit eventually followed. Meanwhile, he returned to Department 245 in August 2022, when he was eligible to requalify to work in the sterile area. He remained there until January 2023, when he bid into a role in another department. He currently remains in that position.

Lawsuit. Significantly, his amended complaint alleged only Title VII claims of retaliation and sex-based hostile work environment, as he abandoned race discrimination and harassment claims.

No protected activity. The employee’s retaliation claim asserted that he was transferred from 245, and thereby lost overtime opportunities, because he complained about his supervisor’s conduct at the July 25 staff meeting. He argued that he engaged in protected activity because he objectively believed that his supervisor’s act of leaning in to whisper in his ear was inappropriate and sexual harassment. The court disagreed, concluding that no reasonable person standing in the employee’s shoes could have believed that his supervisor’s behavior violated Title VII.

A voice being “distinctive” is “not inherently derogatory,” stated the court. Moreover, the whispering event was an isolated incident that could not even remotely be considered “extremely serious.” Indeed, one could reasonably conclude that the supervisor’s “alleged act of whispering the comment was an attempt to be discrete or considerate.”

Not sex-based. Finding that his hostile work environment claim also failed, the court emphasized that because he did not assert race or national origin as the basis for the claim, whether the supervisor’s conduct was related to his “heavy African accent” was not relevant. There was also no evidence suggesting the supervisor’s whispering into his ear was related to his sex or that the single incident was severe or pervasive.

In concluding that no reasonable jury could infer that the supervisor’s action constituted a sexual advance, the court noted that “the record is devoid of any statements, gestures, or instances of physical contact from the supervisor that take on or suggest sexual connotations or would suggest that his supervisor had a sexual interest in the employee.” While the conduct may have invaded his personal space and caused him some degree of discomfort, it did not create a gender-based hostile work environment.

The case is No. 22-4788.

Judge: Hodge, K.

Attorneys: Ayesha Krishman Hamilton (Hamilton Law Firm) for Peter Nyamu. Brad M. Kushner (Stevens & Lee) for Merck & Co.

Companies: Merck & Co.

Cases: SexDiscrimination Discrimination Retaliation PennsylvaniaNews