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Zerfas v. Burwell

United States District Court, D. Maryland, Southern Division

June 26, 2015

SYLVIA BURWELL, Secretary, U.S. Department of Health and Human Services, Defendant.


PAUL W. GRIMM, District Judge.

Plaintiff has brought this case alleging a hostile work environment caused by sexual harassment in her workplace and retaliation by her employer after she reported the alleged harassment and was suspended from work for two weeks. Defendant has moved to dismiss or for summary judgment, arguing that even if Plaintiff was harassed, her harasser was not her supervisor and therefore her employer is not liable, and that the suspension had a legitimate, nondiscriminatory justification because the employer had concluded that Plaintiff willingly participated in improper sexual conduct in the workplace. Plaintiff has cross-moved for summary judgment based on her view that the harasser qualifies as a supervisor because, inter alia, he oversaw her day-to-day work and had the ear of management, and that the finding that she participated willingly in sexual conduct was incorrect and therefore cannot be a legitimate justification for her suspension. I find that whatever degree of supervisory role the harasser filled, he does not fit the narrow definition of a supervisor recognized under current case law and that the employer's justification for Plaintiff's suspension, whether or not it was correct, was arrived at in good faith and was not improper. Accordingly, I grant Defendant's motion for summary judgment and deny Plaintiff's cross-motion.


In reviewing a motion for summary judgment, the Court considers the facts in the light most favorable to the non-movant, drawing all justifiable inferences in that party's favor. Ricci v. DeStefano, 557 U.S. 557, 585-86 (U.S. 2009); George & Co., LLC v. Imagination Entm't Ltd., 575 F.3d 383, 391-92 (4th Cir. 2009); Dean v. Martinez, 336 F.Supp.2d 477, 480 (D. Md. 2004). Where, as here, the Court is presented with cross-motions for summary judgment, the facts relevant to each motion must be considered in the light most favorable to the nonmovant. Mellen v. Bunting, 327 F.3d 355, 363 (4th Cir. 2003). Unless otherwise stated, this background is composed of undisputed facts. See Ricci, 557 U.S. at 585-86; George & Co., 575 F.3d at 391-92; Dean, 336 F.Supp.2d at 480.[2]

Plaintiff Patricia M. Zerfas has been employed by the National Institutes of Health ("NIH") as a Biologist in the Pathology Service, Division of Veterinary Resources ("DVR"), Diagnostic and Research Services Branch ("DRSB"), Office of Research Services ("ORS"), Office of the Director, since April 2003. Zerfas ROI Aff. 1, Def.'s Mem. Ex. 9, ECF No. 8-11, CE0651. Dr. Matthew Starost has served as a Research Scientist and Veterinary Pathologist in DVR since July 2002. Starost Aff. 1, Def.'s Mem. Ex. 15, ECF No. 8-17, CE0720. Starost is one of four Veterinary Pathologists in the Pathology Service. Zerfas Decl. ¶ 4, Pl.'s Mem. Ex. 21, ECF No. 9-22 Zerfas's "primary responsibility is to assist the DRSB veterinary pathologists with their diagnostic submissions by providing electron microscopy ("EM") and immunohistochemistry ("IHC") services." Eckhaus Decl. ¶ 6, Def.'s Mem. Ex. 16, ECF No. 8-18, CE0737. Both Zerfas and Starost are subject to the same chain of command: their first-level supervisor is Dr. Michael Eckhaus, their second-level supervisor is Dr. James Crowell, and their third-level supervisor is Dr. Charmaine Foltz. See Zerfas ROI Aff. 2, CE0652; Starost Aff. 2, CE0721; Foltz Dep. 10:14-11:3, Def.'s Mem. Ex. 6, ECF No. 8-8, CE0329-30.

As described by Zerfas, the intra-office politics in the DRSB are somewhat complex. Because her job is to assist the veterinary pathologists, all of the pathologists have the authority to assign her work, including Starost. Eckhaus Dep. 82:12-15, Def.'s Mem. Ex. 4, ECF No. 8-6, CE0247; Starost Dep. 36:14-17, Def.'s Mem. Ex. 7, ECF No. 8-9, CE0388. In addition to their required tasks, there are regular slide conference and journal club meetings that provide educational and development opportunities for pathologists and other employees interested in attending those meetings; at all relevant times, Starost coordinated these meetings. Eckhaus Dep. 58:16-59:2, CE0223-24. On many Thursdays, Crowell holds a mandatory staff meeting for all DRSB employees. Crowell Dep. 31:6-33:2, Def.'s Mem. Ex. 5, ECF No. 8-7, CE0305-07. In 2011, the pathologists also began to hold quarterly lunches with the technicians and support staff. Eckhaus Nov. Aff. 10, Def.'s Mem. Ex. 25, ECF No. 8-27, CE0941. And in addition to her job duties, Zerfas also published numerous papers in scholarly journals, frequently co-authoring those articles with Starost. Zerfas Decl. ¶ 16.

Though Eckhaus was both Zerfas's and Starost's direct supervisor, Zerfas believed that Starost had greater authority than the other pathologists and that he was her supervisor. Zerfas Dep. Vol. II 429:8-10, Def.'s Mem. Ex. 3, ECF No. 8-5, CE0151. Starost participated in Zerfas's job interview and recommended that she be hired, Zerfas Decl. ¶ 22, and she states that Starost played a role in selecting summer students to interview and in hiring other individuals, id. ¶¶ 23-24. Starost, along with the other pathologists, sometimes served as "acting chief" when Eckhaus was out of the office, Eckhaus Dep. 84:7-16, CE0249, and he occasionally identified himself as one of the "DRSB Supervisors, " Email from Matthew Starost to Patricia Zerfas et al. (Jan. 29, 2010, 8:08 A.M.), Pl.'s Cross-Mot. Mem. Ex. 20, ECF No. 9-21. There is some evidence to show that Starost provided feedback on her work to Eckhaus, Zerfas Dep. 159:22 - 160:10, CE0040, although Eckhaus denies this, Eckhaus Oct. Aff. 3-4, Def.'s Mem. Ex. 13, ECF No. 8-15, CE0692-93, and there is no dispute that Eckhaus alone was responsible for signing Zerfas's performance appraisals, Zerfas Dep. 178:15-19, CE0045. In 2006, Starost threatened to have Zerfas removed from a project of his, after which Eckhaus exercised closer supervision of her work. Zerfas Decl. ¶ 21. More recently, he went to Eckhaus to request that Zerfas no longer be permitted to publish papers, although Eckhaus ultimately allowed her to continue doing so. Zerfas Dep. Vol II 431:12-432:7, CE0152; Zerfas Decl. ¶ 19, Zerfas also is aware of at least four instances in which negative feedback from Starost led Eckhaus to terminate or relocate other employees. Zerfas Decl. ¶ 25.

Although the record is sparse with respect to their interactions before early 2010, prior to that point Zerfas and Starost appear to have had a positive working relationship. When Zerfas took her position in 2003, Starost was setting up an IHC lab in the Pathology Service that Zerfas eventually took over, relying on Starost for support when she encountered difficulties. Eckhaus Dep. 53:21-55:6, CE0218-20. Beginning in 2006, most of Zerfas's work came from Starost, and his work led to numerous publications. Zerfas Decl. ¶¶ 10-15. "The more work [Zerfas] could do for Dr. Starost in publishing, the better were [her] chances of being promoted." Id. ¶ 10. Starost provided mentoring to Zerfas. Starost Dep. 19:3-5, CE0371. According to Starost, he believed that he and Zerfas were friends. Id. at 140:7-19, CE0492.

The majority of the record before me focuses exhaustively on the details of the relationship between Zerfas and Starost for the eleven-month period from June 2010 until May 23, 2011. For the purposes of the parties' cross-motions for summary judgment it suffices to say that both parties acknowledged that substantial intimate, physical, and sexual contact occurred between Zerfast and Starost during this time period. While a good deal of the intimate contact between Zerfas and Starost is acknowledged, Plaintiff and Defendant disagree considerably regarding the degree to which Zerfas willingly initiated, or at least participated in, it. This behavior began in June 2010 when Starost began to touch and put his arm around Zerfas while she was working on the electron microscope. Zerfas ROI Statement 1, Def.'s Mem. Ex. 18, ECF No. 8-20, CE0766; Starost ROI Statement 1, Def.'s Mem. Ex. 18, ECF No. 8-20, CE0775. Over time this escalated to massaging her shoulders and waist and frequent hugging. Zerfas ROI Aff. 7, CE0657; Starost ROI Statement 1, CE0775. In October 2010, Zerfas exposed her breasts to Starost and he exposed his penis to her, Zerfas ROI Statement 4, CE0769, although this occurred only after Starost had requested to see Zerfas's breasts and asked if she wanted him to expose herself several times, see Starost Dep. 47:21-48:20, CE0399-400 (indicating that Zerfas declined each request at least once before acceding). On multiple occasions, Starost touched Zerfas's breasts and Zerfas touched Starost's penis, although Zerfas says that she was forced to participate in this behavior. Zerfas ROI Statement 4, CE0769.

Starost frequently asked Zerfas to remove her underwear when she was wearing a skirt. Id. In November 2010, Zerfas undressed completely before Starost in the EM lab, but only let him see her back without his glasses. Id. By December 2010, he began aggressively to request oral sex from Zerfas, which she refused several times. Id. at 5, CE0770. In early March, either Zerfas or Starost proposed collecting a sample of his semen to view in the electron microscope; Starost wanted Zerfas to masturbate him to collect the sample and, although Zerfas initially refused, she eventually acceded to this request. Id.; Starost ROI Statement 2, CE0776. At some point Starost pulled down Zerfas's pants and touched her vagina. Starost Dep. 156:11-20. Also in the spring of 2011, Zerfas requested Starost to put on a fashion show to show her his Under Armour underwear, Zerfas ROI Statement 6, CE0771, and Starost offered Zerfas a "full body massage, " for which Zerfas changed into scrubs but stopped Starost when he tried to massage her breasts, Starost ROI Statement 3, CE0777. On May 12, 2011, after a 5K walk, Starost proposed that he and Zerfas shower together. Id. She initially agreed but changed her mind and locked the door to the shower she used so that he could not join her. Zerfas ROI Statement 6, CE0771.

The parties have introduced contradictory evidence as to the extent to which this relationship was reciprocal and consensual or whether Starost was forcing himself upon Zerfas. Starost claims that he believes that the relationship was consensual, although that conclusion is based partly on his misguided belief that Zerfas was a willing participant because she did not "forcefully tell [him] to stop." Starost ROI Statement 1, CE 0775. And Zerfas does acknowledge that she engaged in some behavior that could have sent mixed signals, such as hugging Starost back, Zerfas ROI Aff. 7, CE0657, asking to see Starost's Under Armour underwear, Zerfas ROI Statement 6, CE0771, buying him beer and taking him to lunch, Zerfas Dep. 201:16-205:10, CE0051-52, or slapping and pinching his buttocks as they passed in the hallway, id. However, Zerfas is adamant that this behavior was an attempt to make Starost uncomfortable, id., and in any event, she is quite clear that from her perspective, Starost's conduct was unwelcome and caused her significant emotional and physical distress, Zerfas ROI Statement 2-7, CE 0767-71.

On the afternoon of May 23, 2011-eleven months after the conduct that Zerfas now asserts was unwelcome sexual harassment-Zerfas went to Eckhaus and told him that Starost had been harassing her. Eckhaus ROI Aff. 6, Def.'s Mem. Ex. 13, ECF No. 8-15, CE0695. Zerfas said that she did not wish to report the harassment, but rather wanted to keep Eckhaus apprised of the situation because she planned to approach Starost about the harassment and give him a letter demanding that it stop, and she feared that Starost would react badly. Id. at 6-7, CE0695-96. She also told Eckhaus that she "felt like [she] consented with [Starost] on some of the behaviors." Zerfas Dep. Vol. II 390:11-19, CE0141. It is undisputed that Eckhaus immediately reported Zerfas's claims to his own supervisor, Crowell, who advised Eckhaus to contact their supervisor, Foltz. Eckhaus ROI Aff. at 7, CE0696. After Eckhaus spoke with Foltz the next day, the two of them had a telephone call with human resources specialist Lanetta Holloway, who recommended that both Zerfas and Starost be issued cease and desist letters barring them from contact with one another, that Starost's office be relocated, and that an administrative inquiry take place. Id. Eckhaus spoke with Zerfas on May 24, as well, and "told her that [he] had a sense that aspects of what happened were consensual, and she agreed that they were." Eckhaus Dep. 65:17-21, CE0230.

Notwithstanding the cease and desist letter, both Starost and Zerfas still were required to attend Thursday morning staff meetings held by Crowell. Crowell Dep. 31:14-32:9, CE0305-06. However, when Eckhaus noticed that Zerfas was "groaning and moaning" during a slide conference, he advised her that she did not have to attend slide conferences if she did not want to and he arranged for her to receive the same information outside of the conferences. Eckhaus Dep. 71:17-77:11, CE0236-42. According to Eckhaus, he did not tell Starost to stop attending the slide conference because it was "expected the pathologists attend, " but only "elective for Pat [Zerfas] to attend" the slide conferences. Id. at 75:11-20, CE0240. Zerfas, however, concludes that Eckhaus was excluding her from attending. Zerfas also asserts that she was excluded from the department's quarterly lunches in July and October 2011 and January 2012, Zerfas Dep. Vol. II 275:6-9, CE0113, although Eckhaus has testified that she was not invited because she was out of the office on the dates of the July and October lunches, Eckhaus Dep. 89:20-91:3, CE0254-56, and pathologist Mark Bryant has stated that there was no lunch held in January 2012, Bryant Decl. ¶ 23, Def.'s Mem. Ex. 11, ECF No. 8-13, CE0685.

A Management Inquiry took place between May 25, 2011 and June 15, 2011 and was conducted by Susan Grimes Associates, Inc., an independent contractor. Management Inquiry 1, Def.'s Mem. Ex. 18, ECF No. 8-20, CE0752. The Management Inquiry concluded that both Zerfas and Starost had participated in a number of physical and sexual interactions at work. Id. at 11-13, CE0762-64. After reviewing the inquiry, Crowell determined that Zerfas had not been sexually harassed by Starost, and that both she and Starost had participated in an extended course of inappropriate conduct in the workplace that constituted misconduct. See Crowell Dep. 19:14-17, 30:10-16, Def.'s Mem. Ex. 5, ECF No. 8-7, CE0293-304. Although Hollway recommended terminating both Zerfas and Starost, Holloway Dep. 53:18-54: 20, Def.'s Mem. Ex. 8, ECF No. 8-10, CE0630-61, Crowell proposed suspending Starost for twenty-eight days, Starost Proposal to Suspend, Def.'s Mem. Ex. 19, ECF No. 8-21, CE0879, and suspending Zerfas for twenty-one days, Zerfas Proposal to Suspend, Def.'s Mem. Ex. 20, ECF No. 8-22, CE0885. These suspensions were reduced to twenty-one and fourteen days, respectively, upon review by Charmaine Foltz. Zerfas Decision 2, Def.'s Mem. Ex. 21, ECF No. 8-23, CE0892; Starost Decision 2, Def.'s Mem. Ex. 22, ECF No. 8-24, CE0894.

Although the parties continue to disagree about many things regarding the interactions between Zerfas and Starost, whether he was her supervisor for purposes of a hostile workplace claim, and whether the actions taken by Defendant constitute an appropriate response to the facts revealed by the investigation, what is quite clear is that once the Defendant took disciplinary action against Starost and Zerfas, the conduct that forms the basis for this lawsuit ceased. The record is devoid of any evidence that, following the disciplinary actions taken, Starost continued to harass Zerfas, despite the fact that both continue to work at DRSB.

Defendant acknowledges that Zerfas properly pursued her administrative remedies, Def.'s Mem. 27, following which she filed her two-count Complaint in this Court on September 3, 2014, ECF No. 1, alleging claims for (I) sexual harassment in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, and (II) retaliation in violation of Title VII. On November 10, 2014, Defendant filed a Motion to Dismiss or, in the Alternative, for Summary Judgment ("Def.'s Mot."), ECF No. 8, with a supporting Memorandum ("Def.'s Mem."), ECF No. 8-1. Zerfas filed an opposition and cross-moved for summary judgment, Pl.'s Opp'n to Mot. for Summ. J. and Cross Mot. for Summ. J. ("Def.'s Cross-Mot."), ECF No. 9, with a supporting Memorandum ("Pl.'s Cross-Mot. Mem."), ECF No. 9-1. Defendant filed a consolidated opposition and reply ("Def.'s Reply"), ECF No. 10, and Zerfas has filed a consolidated reply and proposed surreply ("Pl.'s Reply"), ECF No. 12, along with a Request for Leave to File Surreply to Defendant's Reply in Support of Defendant's Motion for Summary Judgment ("Pl.'s Mot. to ...

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