                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-26-2007

Lee v. Comhar Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2811




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"Lee v. Comhar Inc" (2007). 2007 Decisions. Paper 883.
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                                                           NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 06-2811


                                  MARVIN E. LEE,
                                              Appellant

                                           v.

                                    COMHAR INC.


                    On Appeal From the United States District Court
                        For the Eastern District of Pennsylvania
                               (D.C. Civ. No. 05-cv-01781)
                     District Judge: Honorable Lawrence F. Stengel


                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 5, 2006


           Before: BARRY, CHAGARES AND ROTH, CIRCUIT JUDGES

                                 (Filed: June 26, 2007 )


                                       OPINION


PER CURIAM

      Appellant Marvin Lee, proceeding pro se, appeals the District Court’s entry of

summary judgment in favor of Appellee. For the reasons that follow, we will affirm.

      Lee was employed by Appellee, Comhar, Inc., as a direct care worker for
individuals with mental retardation. During the time in question, he worked at Comhar’s

Pennway site. David Milbourne was also an employee at this site. Lee and Milbourne

worked different shifts, and usually overlapped for no more than one hour. Lee alleges

that, during August and September of 2002, he was sexually harassed by Milbourne.

       Lee describes three incidents that form the basis for his claim. First, Lee claims

that on a number of occasions, Milbourne touched him on the arm while speaking to him.

In one instance, while Lee and Milbourne were in the car transporting two of Comhar’s

clients to a workshop, Milbourne touched Lee’s hat and then brushed his hand against

Lee’s shoulder. Lee states that he immediately stopped the car in response to this

touching and told Milbourne never to touch him again, which Milbourne did not. Next,

Lee maintains that while he was demonstrating a leg stretching technique on Milbourne in

front of several other co-workers, Milbourne said “oh, that feels good,” with what Lee

believed to be a sexual connotation, causing the other people in the room laugh. Finally,

Lee alleges that on September 27, 2002, as his shift ended and he was planning to leave

the residence, Milbourne was standing in front of the door talking to someone on the

steps outside, intentionally blocking Lee’s exit. Lee states that he said “let me get by

here, boy,” at which point Milbourne moved out of the way and let Lee pass.

       According to Lee, he complained to his and Milbourne’s supervisor, Michelle

Murrill, about Milbourne’s behavior after each of the three incidents discussed above. In

response to the last incident, Lee again met with Murrill and said to her: “this gay stuff is



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starting to get psychotic.” Lee further stated: “I’d hate to write an incident report that

somebody fell down around here and got hurt.” Lee admitted to making this comment at

least two additional times, mainlining that it was intended as a joke. On October 4, 2002,

Lee was suspended pending the results of an investigation into his threats of physical

violence against Milbourne. Concurrently, an investigation into his claims of sexual

harassment was undertaken by Comhar.

       While he was suspended, Lee filed two incident reports alleging client abuse. One

report was filed on November 18, 2002 with Sara Began, the client’s case manager, based

on an incident which allegedly occurred on September 28, 2002. The other was filed on

November 22, 2002 with Mike Kennedy of the Philadelphia Department of Mental

Retardation Services, complaining of both the aforementioned incident, and another

incident of abuse which allegedly took place in July of 2002.

       On November 26, 2002, Lee was notified by a letter from Barry McLaughlin,

Comhar’s Human Resources Director, that Comhar’s investigation of his allegations of

sexual harassment concluded that no such acts had occurred, and that its investigation into

his behavior concluded that he has “expressed negative opinions, stereotyped people with

insults and verbally threatened physical violence.” Based on these results, Comhar

terminated Lee’s employment effective immediately.

       Lee then filed the instant lawsuit in the United States District Court for the Eastern

District of Pennsylvania. In his amended complaint, he alleged: (i) that he was the victim



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of both quid pro quo and hostile work environment sexual harassment and retaliation in

violation of Title VII of the Civil Rights Act of 1964; (ii) that he was terminated in

violation of the Pennsylvania Whistleblower Law; (iii) that Appellee committed perjury

in the context of an unemployment compensation hearing in violation of 18 Pa. Cons.

Stat. Ann §§ 4902, 4903 & 4904; (iv) that Appellee intentionally or negligently

misrepresented the contents of a settlement agreement in an attempt to defraud him of his

right to sue in violation of 43 Pa. Cons. Stat. Ann. §§ 861, 872 & 873; and (v) that in

doing (iii) and (iv), Appellee intentionally inflicted emotional distress on him. Lee sought

compensatory, exemplary and punitive damages. On April 17, 2006, following a four-

month period of discovery, Comhar moved for summary judgment. On May 18, 2006, the

District Court granted Comhar’s motion and the instant appeal followed.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review a

district court’s grant of summary judgment de novo. Pennsylvania Coal. Ass’n v. Babbitt,

63 F.3d 231, 235 (3d Cir. 1995). Summary judgment is proper only if it appears “that

there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed.R.Civ.P. 56(c); Carrasca v. Pomeroy, 313 F.3d 828,

832-33 (3d Cir. 2002). We will draw all inferences from the record in favor of Appellant

as the non-moving party. Id.

       The District Court issued a thorough opinion granting Appellee’s motion for

summary judgment. For the reasons expressed by the District Court, we agree that, taking



                                              4
all of Appellant’s allegations as true, he has not made out a claim for either quid pro quo

or hostile work environment sexual harassment or retaliation under Title VII, nor has he

satisfied the requirements of a claim for negligent or intentional misrepresentation. See

Dist. Ct. Mem. & Order at 5-8, 9-11. We further agree with the District Court that there

is no private right of action under 18 Pa. Cons. Stat. Ann. §§ 4902, 4903 & 4904, or 42

Pa. Cons. Stat. Ann. §§ 861, 872 & 873. See id. at 10.

       With respect to Appellant’s claim under the Pennsylvania Whistleblower Law, the

District Court concluded that Appellant had failed to allege that Appellee is a public

body, and therefore rejected his claim. See 42 Pa. Cons. Stat. Ann. § 1423(a) (barring an

employer from taking an adverse employment action against an employee who “makes a

good faith report or is about to report, verbally or in writing, to the employer or

appropriate authority an instance of wrongdoing or waste”); 42 Pa. Cons. Stat. Ann. §

1422 (limiting statute to employees of “public bod[ies]”). It is not entirely clear from the

record that Appellee would not be considered a “public body” for purposes of the

Pennsylvania Whistleblower Law. See Denton v. Silver Stream Nursing & Rehab. Ctr.,

739 A.2d 571 (Pa. Super. 1999) (holding that a recipient of Medicaid funding is a “public

body” for purposes of the Whistleblower Law). However, we need not reach this issue at

the present time. Appellee argues that Appellant offered no evidence indicating that it

was aware of his complaints alleging client abuse prior to his termination, and Appellant

has not offered any proof to rebut this assertion. In fact, Appellant maintains that his



                                              5
claim rests only on the fact that he made the complaints days before he was terminated,

and that “it is not his responsibility to determine when or if the investigators contacted

[Appellee].” Because Appellant has failed to demonstrate a causal connection between

the filing his complaints and his subsequent termination, and because Appellee has

offered a legitimate reason for Appellant’s termination, we conclude that the District

Court correctly entered summary judgment in favor of Appellee on this claim. See

O’Rourke v. Commonwealth, 778A.2d 1194, 1204 (Pa. 2001) (holding that an employer

may rebut a prima facie case of retaliation by demonstrating that it would have taken the

same adverse employment action absent the employee’s good faith report of wrongdoing).

       Finally, Appellant claims that the District Court failed to address his claims for the

intentional infliction of emotional distress. Under Pennsylvania law, liability for the

intentional infliction of emotional distress lies only when the alleged conduct is “‘so

outrageous in character, and so extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.’”

Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998) (quoting Buczek v. First Nat’l Bank of

Mifflintown, 531 A.2d 1122, 1125 (Pa. Super. 1987)). As we have held, “it is extremely

rare to find conduct in the employment context that will rise to the level of

outrageousness necessary to provide a basis for recovery for the tort of intentional

infliction of emotional distress.” Cox v. Keystone Carbon Co., 861F.2d 390, 395 (3d Cir.

1988). Appellant has alleged no conduct that rises to this level, and, as such, cannot



                                              6
prevail on his claim for the intentional infliction of emotional distress.

       Accordingly, we will affirm the judgment of the District Court. Appellant’s

motion for summary action is denied.




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