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

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

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.

Defense Digest, Vol. 32, No. 1, March 2026, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2026 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact MEDeSatnick@mdwcg.com.