United States District Court, D. Maryland
MEMORANDUM AND ORDER
J. GARBIS, UNITED STATES DISTRICT JUDGE
Court has before it Defendant's Motion for Summary
Judgment [ECF No. 15] and the materials submitted relating
thereto. The Court has held a hearing and received the
benefit of the arguments of counsel.
times relevant hereto, Plaintiff Matta Zeinali
(“Zeinali”) was employed by the Maryland
Department of Public Safety and Correctional Services
(“DPSCS”) as an Assistant Director of Budget
Management. Zeinali claims that her former supervisor,
Defendant Michael Pense (“Pense”), sexually
harassed her from September 2014 until April 21, 2015,
thereby creating a hostile work environment in violation of
the Due Process and Equal Protection Clauses of the United
States Constitution and Maryland State Constitution.
2, 2015, Zeinali filed this lawsuit under 42 U.S.C. §
1983. [ECF No. 1]. By the instant motion, [ECF No. 15], Pense
seeks summary judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure.
SUMMARY JUDGMENT STANDARD
motion for summary judgment shall be granted if the pleadings
and supporting documents “show that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
well-established principles pertinent to summary judgment
motions can be distilled to a simple statement: The Court may
look at the evidence presented in regard to a motion for
summary judgment through the non-movant's rose-colored
glasses, but must view it realistically. After so doing, the
essential question is whether a reasonable fact finder could
return a verdict for the non-movant or whether the movant
would, at trial, be entitled to judgment as a matter of law.
See, e.g., Celotex Corp. v. Catrett, 477
U.S. 317, 322-323 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); Shealy v.
Winston, 929 F.2d 1009, 1012 (4th Cir. 1991). Thus, in
order to defeat a motion for summary judgment, “the
party opposing the motion must present evidence of
specific facts from which the finder of fact could reasonably
find for him or her.” Mackey v. Shalala, 43
F.Supp.2d 559, 564 (D. Md. 1999) (emphasis added). “If
the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.”
Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511
(internal citations omitted).
evaluating a motion for summary judgment, the Court must bear
in mind that the “summary judgment procedure is
properly regarded not as a disfavored procedural shortcut,
but rather as an integral part of the Federal Rules as a
whole, which are designed ‘to secure the just, speedy
and inexpensive determination of every action.'”
Celotex, 477 U.S. at 327 (quoting Rule 1 of the
Federal Rules of Civil Procedure).
hearing, Plaintiff made clear her contentions that Defendant
pursued a sexually-motivated physical and romantic
relationship with her against her wishes, thereby creating a
hostile work environment. As discussed herein, in light of
the undisputed facts, no reasonable juror could conclude that
Plaintiff's contentions were accurate and that Defendant
sexually harassed the Plaintiff.
a woman, was hired by DPSCS on August 13, 2014.Pense, a
sixty-year-old male, was the Director of Budget Management
and Zeinali's direct supervisor. As Pense's
Assistant, Zeinali was expected to work closely with Pense,
as well as supervise other employees.
October 2014, Pense had lunch with Zeinali, along with other
coworkers, three times at nearby restaurants. Dep. of Matta
Zeinali (“Zeinali Dep.”) [ECF No. 19-7] at 6.
According to Pense, this was not unusual for him - he often
had lunch and dinner with co-workers and supervisors. Decl.
of Michael Pense [“Pense Decl.”] [ECF No. 15-3]
at ¶ 5; Decl. of Tekia Jackson [ECF No. 15-2, Ex. C] at
28, ¶ 8.
January 7, 2015, Pense invited Zeinali to have dinner at a
local diner after working late, and Zeinali went. During the
dinner, Pense said, “What does your husband think of
this?” and “We don't have to do this all the
time, there are other things we can do.” IID Report
[ECF No. 19-5] at 10. Zeinali claims that these comments made
her uncomfortable. Id.
next day Pense arrived at work at 8:49 AM and noticed that
Zeinali was not yet in her office. Later that day, Zeinali
told Pense that she arrived at 8:40 AM. He checked her time
sheet and found that she reported that she arrived at 8:30
AM. After this incident Pense began to closely monitor
Zeinali's arrivals and departures to determine if she was
accurately reporting her time. Pense also tracked the
arrivals and departures of his other Assistant, Tekia
Jackson. Pense Decl. [ECF No. 15-3] at ¶ 13. He told his
supervisor, Jerri Nolet, that he was monitoring Zeinali's
attendance because he questioned her integrity. Id.
January 13, 2015, Pense confronted Zeinali about not
correctly completing a journal entry, and Zeinali became
upset. Pense Decl. [ECF No. 15-3] at ¶ 16. Zeinali did
not learn from Pense's instructions, and Pense had to ask
Ms. Jackson and another employee to train Zeinali.
Id. at ¶ 17. The record reveals that Pense had
a “tendency at times to get frustrated with people who
did not listen to him or who were incompetent” and
would “raise his voice and become critical.”
Decl. of Sue Dooley [ECF No. 15-2, Ex. B] at ¶ 10.
January 15, Pense invited Zeinali to lunch, but she declined.
MCCR Complaint [ECF No. 15-2, Ex. K] at 111. The next day
Pense denied Zeinali's leave request for March 30 to
April 4 because it was “projection review week”
in the office. Pense Decl. [ECF No. 15-3] at ¶ 18.
Employees were discouraged from taking vacation during
projection review week. See Nolet Decl. [ECF No.
15-2, Ex. A] at ¶ 13. Bonnie Keller, a co-worker and
Zeinali's friend, confirmed in a message to Zeinali that,
“projection week is serious, You will just have to deal
with that one. They are strict on projections.” [ECF
No. 15-2, Ex. M] at 168. When Zeinali complained about the
denial, Pense granted her leave request after Zeinali
promised to stay late to complete her assignments before she
left. Pense Decl. [ECF No. 15-3] at ¶
19; [ECF No. 15-3, Ex. G].
days later, Pense texted Zeinali to offer her a ride to and
from work because the roads were icy and Zeinali had
previously expressed that she was uncomfortable driving in
icy conditions. Pense Decl. [ECF No 15-3] at ¶ 21.
Zeinali did not respond to Pense's offer. [ECF No 15-3,
Ex. H]. The next day, January 21, Pense, Zeinali, and Nolet
met to discuss Zeinali's work performance and time cards.
Pense Decl., at ¶ 23. At this time, Pense and Nolet
imposed strict reporting requirements on Zeinali in that she
was required to email Pense every day when she arrived and
departed. These reporting conditions lasted from January 21
to February 4, 2015. Throughout this time, Zeinali complained
about Pense, his managing style, and reporting requirements
to Keller. See, e.g., [ECF No. 15-2, Ex. M] at 144
(“He expects me to do every step as he would do.. I am
fig him out and its not good. He truly expects me to do every
step as he does. He must be very stressed out over
it.”); Id. at 1327 (“I pray I report to
someone new soon. I don't want to leave... just a
February 4, Pense met with Zeinali in his office. At the
meeting Pense read from the following note:
I am going to take back all of the requirements I imposed
upon you two weeks ago. I do not know totally why you have
been so upset at me the past month or so. I do know I have
been upset at you. I am not going to play these games
anymore. I'm going to give up being friendly to you. I
will be professional and courteous. But I cannot promise you
that I will not get mad. I get mad at everybody sometimes.
You just have to get over it. I have bent over backwards for
you. I went out on a limb for you. I got you everything you
wanted when you started. I have been nicer to you than I have
been to just about everybody in this place. And now I feel I
have been stabbed in my back. I have never said or done
anything inappropriate to you. I have never done anything
wrong to you. And I am infuriated that anybody thinks that I
have. I offered you a ride and to share a meal as work
friends. I did not ask you on a date. You can't talk to
me? I'm done! I will send you an email removing the
requirements I imposed upon you two weeks ago.
Pense Decl. [ECF 15-3, Ex. J] at 43.
February 10, Zeinali attended work training at another
facility. Before the training, Pense asked Zeinali if he
could give her a tour of the facility and if she could have
lunch with him so that he could introduce her to his former
clerk. Plaintiff's Responses to Defendant's First Set
of Interrogatories [ECF No. 19-6] at 6-7. However, at the end
of the training session, Zeinali left without telling Pense
and returned to her office instead of staying for lunch.
Id. Pense was angry that she did not go to lunch
with him. Id. At 7. Zeinali claims that at this time
she began to think Pense was romantically interested in her.
Zeinali Dep. [ECF No. 15-2, Ex. D] at 42-43.
dissatisfaction with Zeinali's work continued. On
February 11, Pense emailed Nolet expressing hesitation about
ending Zeinali's probationary period. Pense confided:
[Matta Zeinali] seems always afraid of me like I am always
telling her she is doing something wrong. . . . I believe she
is just flat out scared of me. I think she is also scared of
I will get over not being friends with her. But how will we
(all of us) be able to work together if Matta is always
thinking she is being scolding for not doing something
exactly right. I can only give so much lavish praise. . . . I
am beginning to rethink approving the probation. I am
wondering if it will be better for Matta to leave DPSCS to
get away from both Bonnie [Keller] and me. This would break
my heart as I do not want to see Matta leave nor do
I want to see her out of a job.
[ECF 15-3, Ex. L] at 49.
February 12, Zeinali met with Nolet and told her, “Mike
wants to date me.” Nolet told her “Mike
doesn't want to take your husband's place.” IID
Report [ECF No. 19-5] at 11.
days later, Zeinali met with Pense and complained that he was
micromanaging her and also questioned him about taking time
off work to care for her sick daughter. On February 14, Pense
completed Zeinali's probationary evaluation form. [ECF
No. 15-2, Ex. R] at 213. In his evaluation, Pense wrote:
As a supervisor I feel in [sic] I am in a compromised
position. Matta thinks I have acted inappropriately. Matta
has also accused me of not allowing her to take leave for
health reasons due to the fact it would compromise her work.
Both of these accusations are false. She thinks I
“micro manager” her and just about anything I say
I am considered “complaining”. Matta has had just
about every job duty taught to her since she has started in
this position. Very little of Matta's fifteen years of
experience has apply to any of her duties. I was aware that
this was a possibility and that I would be responsible for
instructing her. Now there is a strained relationship between
us making her performance questionable. I have just another
accountant not an Assistant Director of Budget Management. I
have serious doubts that her performance will ever be at a
level of an Assistant Director of Budget Management.
Her organizational skills are awful. Just one look at her
desk and you wonder how she finds anything. Twice Robbie
Fitzgerald, a contractual intern almost did not get paid due
to a misplace timesheet and lack of proper instructions being
forwarded. Her notes are scatter [sic] amongst all of the
papers on her desk. She states that she types them. But when
question about duties / documentation that were performed /
created/ reviewed months ago she does not remember. . . . She
does not understand the assignments that are given to her
well enough to properly prioritize them.
She had to be taught to do a journal entry, a simple
accountant 101 task, and instead of getting proper assistance
she ask a Robbie Fitzgerald, a contractual intern for
assistance. Robbie, who was still learning himself, showed
her the pieces he knew as she created, entered, and released