                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-19-2009

Eric Kellerman v. UPMC St Margaret
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1685




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                                                              NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       _________

                                       No. 08-1685
                                       _________


                                  ERIC KELLERMAN,
                                                Appellant
                                         v.

                                UPMC ST. MARGARET,

                                 ___________________

                     Appeal from the United States District Court
                      For the Western District of Pennsylvania
                                  (2-06-cv-00528)
                  Honorable Terrence F. McVerry, U.S. District Judge

                                  __________________

                                Argued: February 2, 2009

                     Before: McKEE, STAPLETON, Circuit Judges
                              and IRENAS,* District Judge

                                 (Filed: March 19, 2009)




       *
          The Honorable Joseph E. Irenas, Senior United States District Judge for the
District of New Jersey, sitting by designation.
Samuel J. Cordes, Esq.
John E. Black, III, Esq.
Ogg, Cordes, Murphy & Ignelzi
245 Fort Pitt Boulevard
Pittsburgh, PA 15222!0000

Counsel for the Appellant


Allison Feldstein, Esq.
John J. Myers, Esq.
Eckert, Seamans, Cherin & Mellott
Suite 200, 600 Grant Street
44th Floor, US. Steel Tower
Pittsburgh, PA 15219-0000

Counsel for the Appellee



                              OPINION OF THE COURT

McKEE, Circuit Judge

Eric Kellerman (“Kellerman”) appeals the entry of summary judgment in favor of UPMC

   St. Margaret Hospital (“SMH”) in the United States District Court for the Western

    District of Pennsylvania dismissing Kellerman’s claims of sexual harassment and

  retaliation. For the reasons that follow, we conclude that there are genuine issues of

material fact as to both claims and will therefore reverse the grant of summary judgment.

                                             I.

      Because we write primarily for the parties, it is not necessary to recite the facts or




                                             2
history of this case except insofar as may be helpful to our brief discussion.1 With regard

to Kellerman’s sexual harassment claim, the district court found that Kellerman did not

establish respondeat superior liability, the fifth prong of the Andrews test.2 Kellerman

now argues that the district court erred in holding so because he gave SMH management

notice that Ms. Hemphill was harassing him and management failed to adequately

respond. The district court dismissed Kellerman’s retaliation claim based on its

conclusion that he had not established a causal nexus between his sexual harassment

complaint and his termination.3 On appeal, Kellerman argues that there is a factual


       1
         The standard of review for an order granting summary judgment is plenary.
Knabe v. Boury Corp., 114 F.3d 407, 410 n.10 (3d Cir. 1997). The record is considered
in the light most favorable to the non-moving party. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Viewed in that light, the record must establish that there are specific
genuine issues of material fact for trial. Anderson v. Liberty Lobby, 477 U.S. 242, 256
(1986).
       2
         See Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990) (setting
forth the test for sexual harassment where the plaintiff must prove (1) he suffered
intentional discrimination because of his sex; (2) the discrimination was severe or
pervasive; (3) the discrimination detrimentally affected him; (4) the discrimination would
detrimentally affect a reasonable person of the same sex in that position; and (5) the
existence of respondent superior liability). The district court noted that because the fifth
prong was not established, it was not necessary to decide whether the second prong was
established. Kellerman v. UPMC St. Margaret, 2008 U.S. Dist. LEXIS 10064 at *22
n.4.(W.D.Pa. Feb 11, 2008).
       3
           See Moore v. City of Philadelphia, 461 F.3d 331, 340-41 (3d Cir. 2006) (to
establish a claim of retaliation under Title VII, a plaintiff must prove that (1) he engaged
in activity protected by Title VII; (2) the employer took an adverse action against him;
and (3) there was a causal connection between his participation in the protected activity
and the adverse employment action). The district court noted that because it found a lack
of causal connection, it did not need to decide whether Kellerman actually engaged in
protected activity. Kellerman, 2008 U.S. Dist. LEXIS 10064, at *27 n.5.

                                              3
dispute based on the timing of the termination of his employment as well as evidence that

SMH management already knew about his previous employment at Divine Providence

Hospital well before they chose to terminate his employment. He relies upon the latter to

argue that a factfinder could regard SMH’s reason for terminating him as pretextual and

instead conclude that he was actually terminated because he engaged in activity that is

protected under Title VII.

                                             II.

       To establish respondent superior liability and thereby satisfy the fifth prong of

Andrews, an employee must present sufficient evidence to raise genuine issues of material

fact about whether the “defendant knew or should have known of the harassment and

failed to take prompt remedial action.” Andrews, 895 F.2d at 1486 (internal quotation

marks and citations omitted). Once an employer has notice of alleged harassment, it must

take prompt remedial action that is reasonably calculated to prevent further harassment.

Knabe, 114 F.3d at 412.

       Whether SMH took prompt remedial action upon learning of the harassment

cannot be determined on summary judgement because there is a material dispute about

when SMH knew of Hemphill’s alleged harassment. Kellerman claims that in November,

2003, he complained about Hemphill’s conduct to Reed and shortly thereafter to Naples

and Fantini. According to Kellerman, those complaints put SMH on notice that he was

being sexually harassed because he said Hemphill was “infatuated” and “bothering him.”



                                              4
The district court disagreed. The court concluded that SMH was not given notice of the

sexual nature of the harassment until Kellerman’s May 2004 complaint to Saunders,

because until then Kellerman had only referred to Hemphill’s letters and cards, but did

not specifically complain that her conduct had anything to do with his gender.

       There is obviously a factual dispute about when Kellerman first notified SMH of

the alleged harassment as well as whether the notice given was adequate to place SMH on

notice that Hemphill’s conduct toward Kellerman was gender based. Following the

November meeting, SMH issued a verbal warning to Hemphill, but the adequacy of that

warning is yet another factual dispute that cannot be resolved at the summary judgment

stage. Moreover, in May, 2004, when Kellerman produced overtly sexual letters, SMH

suspended Hemphill for five days and then transferred her to a different shift. Although

she never worked with Kellerman again, we believe the adequacy of that response is also

an issue of fact material to SMH’s liability under Title VII.

       Accordingly, Kellerman’s claim of gender discrimination cannot be resolved by a

motion for summary judgment, and the district court erred by granting summary judgment

on that claim.

                                            III.

       Kellerman also argues that the district court erred in granting summary judgment

to SMH on his retaliation claim. Under § 704(a) of Title VII, an employer is prohibited

from retaliating against an employee “because he has opposed any practice made an



                                              5
unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a). The district

court found that Kellerman failed to establish a prima facie case for retaliation because he

did not establish a causal connection between his sexual harassment complaint and the

termination of his employment.

       Kellerman claims that the timing of his termination is “unusually suggestive”

because he was terminated less than a month after he filed his complaint in 2004. The

law is well settled that a plaintiff may establish a causal connection by showing a

sufficiently suggestive temporal relationship between the protected activity and the

alleged retaliatory conduct or by submitting “circumstantial evidence . . . that give[s] rise

to an inference of causation.” Marra v. Philadelphia Hous. Auth., 497 F.3d 286, 302 (3d

Cir. 2007). While there is no per se rule about relying on temporal proximity to establish

causation in retaliation cases, the probative value depends on “how proximate the events

actually were, and the context in which the issue came before us.” Farrell v. Planters

Lifesavers Co., 206 F.3d 271, 279 (3d Cir. 2000).

       SMH argues that the timing here is not sufficient to establish causation. Although

there is some authority suggesting that timing alone is not sufficient to establish a causal

connection, Delli Santi v. CNA Ins. Co, 88 F.3d 192, 199 n.1 (3d Cir. 1996), we have also

explained that timing that is “‘unusually suggestive’ of retaliatory motive” may establish

a causal link. Krouse v. American Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997) (citing

Robinson v. City of Pittsburgh, 120 F.3d 1286, 1302 (3d Cir. 1997)). Whether or not



                                              6
timing alone would be sufficient, Kellerman has produced additional evidence of pretext.

At the deposition, he testified that he told SMH of his prior employment history at Divine

Providence when he was first interviewed for the job in March,2 002, but that his failure

to include that prior employment on his job application did not become an issue until after

he filed his EEOC complaint. We agree that the timing of his termination combined with

evidence of a pretextual explanation for his termination is sufficient to establish a prima

facie case of retaliatory dismissal.

       Where a plaintiff establishes a prima facie retaliation case, the burden shifts to the

defendant to articulate a legitimate, non-retaliatory reason for the adverse action. Reeves

v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142 (2000). SMH relies on

Kellerman’s inaccurate employment application. SMH claims that it did not learn of

Kellerman’s past employment at Divine Providence Hospital until Marty Kling informed

Reed in June 2004 that Kellerman had “walked off the job” there, and that it had every

right to then terminate him pursuant to its corrective action policy. According to

Kellerman, however, SMH knew of his past employment with Divine Providence

Hospital as early as March 2003, yet did not terminate his employment until a year later,

three weeks after he complained of sexual harassment.

       It is not for a court to decide the significance, if any, of the timing of Kellerman’s

termination or when SMH learned of his prior employment. Such disputes must be

resolved by a factfinder, and the district court therefore erred in granting summary



                                              7
judgment on the retaliation claim.

                                          IV.

       For the reasons stated above, we reverse summary judgment for SMH on

Kellerman’s sexual harassment and retaliation claims and remand for further proceedings

consistent with this opinion.




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