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Zeinali v. Pense

United States District Court, D. Maryland

December 20, 2016




         The 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.

         I. BACKGROUND

         At all 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[1] 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.

         On June 2, 2015, Zeinali filed this lawsuit under 42 U.S.C. § 1983. [ECF No. 1].[2] By the instant motion, [ECF No. 15], Pense seeks summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.


         A 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. 56(a).

         The 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).

         When 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).


         At the 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. Undisputed Facts

         Zeinali, a woman, was hired by DPSCS on August 13, 2014.[3]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.

         In 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.

         On 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.

         The 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.

         On 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.

         On 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].

         A few 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 wish.”).

         On 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.

         On 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.

         Pense's 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 you.
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.

         On 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.

         A few 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 a ...

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