Michael Gerhart v. Exelon Corp , 461 F. App'x 143 ( 2012 )


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  •                                                               NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _____________
    No. 11-1765
    _____________
    MICHAEL GERHART,
    Appellant
    v.
    EXELON CORPORATION
    _____________
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE EASTERN DISTRICT OF PENNSYLVANIA
    (D.C. Civ. No. 10-cv-00425)
    District Judge: Lawrence F. Stengel
    ______________
    Submitted Under Third Circuit LAR 34.1(a)
    January 23, 2012
    ______________
    Before: FISHER, GREENAWAY, JR., and ALDISERT, Circuit Judges.
    (Opinion Filed: February 6, 2012)
    ______________
    OPINION
    ______________
    GREENAWAY, JR., Circuit Judge.
    Michael Gerhart (“Gerhart”) brought suit against his former employer, Exelon
    Corporation (“Exelon”), in the Court of Common Pleas of Lehigh County, Pennsylvania,
    1
    alleging claims under Title VII and the Pennsylvania Human Rights Act, as well as
    intentional interference with prospective contractual relations. The case was removed to
    the Eastern District of Pennsylvania. Shortly thereafter, Exelon filed a motion for
    summary judgment. The District Court granted the motion on the ground that Gerhart
    had waived his claims in signed agreements with Exelon.
    Since no substantial question is presented by Gerhart’s appeal, we will affirm.
    I. BACKGROUND
    We write primarily for the benefit of the parties and recount only the essential
    facts.
    Gerhart’s employment at Exelon’s Limerick, Pennsylvania nuclear power plant
    commenced in 1996. In 2003, he sought and was granted unescorted access to the plant,
    in a process similar to obtaining security clearance. As part of that process, he signed a
    “PADS Consent Form” 1 with which he agreed that Exelon could “obtain, retain and
    transfer information necessary to determine whether to grant [him] unescorted access.”
    (App. 41.) The Form specifically noted that the Nuclear Regulatory Commission
    (“NRC”) requires that “this information be used in determining that an individual is
    trustworthy, reliable, and fit-for-duty prior to granting and while maintaining unescorted
    access.” (Id.) It also released Exelon and its agents from “any and all liability based on
    1
    PADS is the Personnel Access Data System, a database used by the commercial nuclear
    power industry “to share information necessary to process applications of workers for
    unescorted access to nuclear power plant protected areas.” (App. 41.)
    2
    their authorized receipt, disclosure, or use of the information obtained pursuant to this
    Consent.” (Id.)
    In April 2007, Gerhart was interviewed by Exelon’s security manager as a witness
    to an alleged act of sexual harassment that had taken place in a locker room at the plant.
    After the interview, Gerhart left a telephone message for the alleged victim. When
    confronted by the security manager about the inappropriateness of this contact, Gerhart
    “clarif[ied]” his earlier testimony. (Id. at 17.) Exelon determined that Gerhart had
    provided false information during this internal investigation and, as a result, it denied him
    unescorted access to the nuclear power plant based on concerns about his
    “trustworthiness and reliability.” (Id. at 43.) Gerhart appealed this decision, but the
    appeals were denied. Although a peer review process determined that he had not been
    lying, his unescorted access was not restored. Without unescorted access, Gerhart could
    not perform his job duties, and he was terminated on November 20, 2007.
    As part of the termination process, Gerhart signed a Waiver and Release drafted
    by Exelon in exchange for receiving thirty-three weeks of severance pay and other
    severance benefits. With that document, Gerhart agreed that “[i]n exchange for the
    optional severance benefits to be provided . . . I knowingly and voluntarily agree to this
    waiver and release of claims.” (Id. at 44.) Included were “claims of whatever nature that
    I now have or that I may ever have against the Released Parties up until the date I sign
    this Waiver and Release.” (Id.) The release provided examples of waived claims and
    explicitly included claims under Title VII of the Civil Rights Act of 1964 and claims of
    3
    discrimination in employment, retaliation, wrongful discharge, and “any other common
    law tort or statutory claims.” (Id. at 44-45.)
    Gerhart applied for employment with a number of other nuclear energy
    companies. However, the record showing that Gerhart’s unescorted access had been
    rescinded by Exelon remained in the PADS database, accessible to other NRC-regulated
    entities. Gerhart was selected for at least two other positions, but these prospective
    employers noted that record and opted not to hire him.
    Gerhart initiated this action against Exelon on August 14, 2008, by filing a
    complaint with the Pennsylvania Human Rights Commission and the Equal Employment
    Opportunity Commission (“EEOC”). After receiving a right-to-sue letter from the
    EEOC, Gerhart filed suit in Pennsylvania state court. He later amended the complaint,
    alleging claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a),
    and the Pennsylvania Human Relations Act, 43 P.S. §§ 951-963, as well as a tort claim
    for intentional interference with prospective contractual relations. (App. 21). He alleges
    that Exelon’s failure to rescind the denial of unescorted access constitutes an act of
    retaliation subsequent to his signing of the Waiver and Release. The suit was removed to
    the United States District Court for the Eastern District of Pennsylvania.
    Exelon moved for summary judgment, arguing that Gerhart had released Exelon
    from his claims with both the PADS Consent Form and the Waiver and Release he signed
    in order to obtain his severance package. It also argued that a number of Gerhart’s claims
    were untimely and that the District Court lacked jurisdiction to consider the denial of
    4
    unescorted access because nuclear power plant access is within the exclusive purview of
    the NRC.
    The District Court granted Exelon’s motion and entered summary judgment in its
    favor. In its memorandum opinion, the District Court agreed that Gerhart had waived his
    claims by signing both waiver documents. It noted that Gerhart had not raised any issues
    concerning the validity of the Waiver and Release and it rejected his argument that
    Exelon’s refusal to rescind the denial of unescorted access constitutes a post-termination
    action about which he had not waived his claims. The District Court also noted that,
    since Gerhart had filed no response to Exelon’s Rule 56(c) statement of undisputed facts,
    it would consider those facts to be undisputed. Gerhart timely appealed.
    II. JURISDICTION AND STANDARD OF REVIEW
    The District Court had jurisdiction under 28 U.S.C. § 1331 and supplemental
    jurisdiction under 28 U.S.C. § 1367. We have jurisdiction over the appeal from the final
    orders of the District Court pursuant to 28 U.S.C. § 1291.
    We exercise plenary review over a district court’s grant of summary judgment.
    Azur v. Chase Bank, USA, Nat’l Ass’n, 
    601 F.3d 212
    , 216 (3d Cir. 2010). Summary
    judgment is appropriate “where the pleadings, depositions, answers to interrogatories,
    admissions, and affidavits show there is no genuine issue of material fact and that the
    5
    moving party is entitled to judgment as a matter of law.” 
    Id. at 216
    (quoting Nicini v.
    Morra, 
    212 F.3d 798
    , 805-06 (3d Cir. 2000) (en banc))). 2
    III. ANALYSIS
    Gerhart signed a Waiver and Release that expressly waived any “claims of
    whatever nature that [he] now ha[s] or that [he] may ever have against the [Exelon] up
    until the date [he] sign[ed] this Waiver and Release.” (App. at 44.) The District Court
    correctly noted that we hold such waivers to be valid so long as they were entered into
    knowingly and voluntarily. Coventry v. U.S. Steel Corp., 
    856 F.2d 514
    , 522 (3d Cir.
    1988). Since Gerhart did not contest that he acted knowingly and voluntarily when he
    signed the waiver, the District Court properly found that he had waived all the claims at
    issue in this lawsuit. 3
    Gerhart presents to this Court virtually no argument challenging this conclusion.
    He argues only that, because Exelon’s peer review committee found that Gerhart had not
    been lying, Gerhart assumed when he signed the Release and Waiver that the denial of
    2
    Fed. R. Civ. P. 56 was revised in 2010. The standard previously set forth in subsection
    (c) is now codified as subsection (a). The language of this subsection is unchanged,
    except for “one word — genuine ‘issue’ bec[ame] genuine ‘dispute.’” Fed. R. Civ. P. 56
    advisory committee’s note, 2010 amend.
    3
    Gerhart argues to this Court that the District Court erred in granting summary judgment
    before pretrial discovery had been taken. Gerhart did not, however, file an affidavit in
    the District Court laying out his need for more time to conduct discovery, as required by
    Fed R. Civ. P. 56(d). Accordingly, he has waived his objection to his alleged inability to
    obtain necessary discovery. Pastore v. Bell Tel. Co. of Pa., 
    24 F.3d 508
    , 511 n.3 (3d Cir.
    1994).
    6
    unrestricted access would not negatively impact his future employment prospects.
    Assuming that this contention is true, it does not affect the reality that he nonetheless
    waived these claims with the Release and Waiver.
    Further, even if we were to find that Exelon’s maintenance of the record of
    denying Gerhart unrestricted access somehow constituted an action taken by Exelon
    subsequent to Gerhart’s signing of the Release and Waiver, his claims would still be
    barred by the PADS Consent form. That document released Exelon from “any and all
    liability based on [its] authorized receipt, disclosure, or use of the information obtained
    pursuant to this Consent,” information that includes the “[d]ate of any denial of access
    and the company holding the relevant information.” (App. at 41.) Accordingly, Gerhart
    waived his right to bring this lawsuit with two different documents.
    IV. CONCLUSION
    In sum, Gerhart’s appeal presents no substantial question. Accordingly, we will
    affirm the judgment of the District Court.
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