Zeinali v. Pense
MEMORANDUM AND ORDER granting 15 Motion for Summary Judgment. Signed by Judge Marvin J. Garbis on 12/20/2016. (kw2s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CIVIL ACTION NO. MJG-15-1599
MEMORANDUM AND ORDER
The Court has before it Defendant’s Motion for Summary
Judgment [ECF No. 15] and the materials submitted relating
The Court has held a hearing and received the benefit
of the arguments of counsel.
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 20141 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.
Although the Complaint alleges that the discrimination
began in September, there is no evidence of any conduct
whatsoever occurring until October.
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.
III. SUMMARY JUDGMENT STANDARD
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.
The well-established principles pertinent to summary
judgment motions can be distilled to a simple statement:
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.
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).
She is seeking general, special, punitive and compensatory
damages, plus attorneys’ fees and costs.
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)
“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
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.
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.
Matta Zeinali (“Zeinali Dep.”) [ECF No. 19-7] at 6.
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.
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.
that these comments made her uncomfortable. Id.
Prior to being hired at DPSCS, Zeinali resigned from her
previous job at the Department of Housing and Community
Development in lieu of being terminated for poor performance.
[ECF No. 15-2, Ex. G]. DPSCS hired her at Pense’s insistence
because he thought he could teach her despite her inadequate
work history. Pense Decl. [ECF 15-3] at ¶ 8. Her position at
DPSCS was at a lower pay grade. [ECF No. 15-2, Ex. L].
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.
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.
day Pense denied Zeinali’s leave request for March 30 to April 4
because it was “projection review week” in the office.
Decl. [ECF No. 15-3] at ¶ 18.
Employees were discouraged from
taking vacation during projection review week.
[ECF No. 15-2, Ex. A] at ¶ 13.
See Nolet Decl.
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.”
M] at 168.
[ECF No. 15-2, Ex.
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
Pense Decl. [ECF No 15-3] at ¶ 21.
respond to Pense’s offer.
[ECF No 15-3, Ex. H].
Zeinali did not
The next day,
January 21, Pense, Zeinali, and Nolet met to discuss Zeinali’s
work performance and time cards.
Pense Decl., at ¶ 23.
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.
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.
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.
February 11, Pense emailed Nolet expressing hesitation about
ending Zeinali’s probationary period.
[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.
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
accountant not an Assistant Director of Budget
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 journal
entry. The backup for the journal entry was woefully
inadequate . . . .
Pense did other things that made Zeinali uncomfortable in
the time period between October 2014 and March 2015. He made
remarks inviting her and her daughter to go hiking with him and
his nephew. He also spent “a lot of time” in Zeinali’s office
and talked to her “about personal matters and tr[ied] to
convince [her] to be his friend and how it was important for
[them] to be close.” Zeinali Dep. [ECF No. 15-2, Ex. D] at 48.
On two occasions, Pense briefly “touched” and/or “rubbed
against” Zeinali’s knee/legs as they were sitting in chairs
close to each other working at the same computer. Zeinali Dep.
[ECF 19-7] at 4. He also touched her chest with his arm or body
on “several” occasions when he was reaching over her to point
out something on the computer. Id.; Dep. of Bonnie Keller [ECF
No. 15-2] at 93. “[E]ach time he would act like it was an
accident,” like he bumped into her, but Zeinali asked him to
stop and not sit so close to her. Plaintiff’s Responses to
Defendant’s First Set of Interrogatories [ECF No. 19-6] at 3-4,
9. “[H]e still kept acting like he was innocent and he would
still sit close to her so eventually Zeinali moved the chair so
that he would know not to sit next to her.” Id. at 4.
Pense also commented on Zeinali’s looks.
He told her she
was “pretty” “about five to seven times.” Id. at 54.
Pense asked Zeinali if she washed her hair every day, and on
another occasion when Zeinali was complaining about makeup,
Pense told her she does not need to wear makeup. Id.; Pense Dep.
[ECF No. 19-3] at 74.
During meetings and trainings, Pense
would make comments such as, “I really like you” and “I am
enjoying this.” Defendant’s First Set of Interrogatories [ECF
No. 19-6] at 9.
One time when Pense was sitting in Zeinali’s
office, he “grabbed his collar and moved his hand back and forth
as if he were trying to open his collar and said, ‘Do you feel
this, can’t you feel it, there is something here.’” Id. at 10.
Zeinali claims these actions were sexual advances and evidence
of Pense’s desire to have a relationship with her. Id.
On March 6, 2015, a liberal leave day in the office due to
bad weather, Pense asked Zeinali to go to lunch, but she
Zeinali Dep. [ECF No. 15-2, Ex. D] at 70.
On March 25, Pense and Zeinali argued over scheduling.
After Zeinali left Pense’s office, Pense entered her office and
yelled that he “d[id] not appreciate her attitude and d[id] not
want to hear it anymore.” [ECF No. 15-3, Ex. P] at 60.
stated that Pense’s actions scared her.
5] at 13.
IID Report [ECF No. 19-
Zeinali reported Pense’s behavior to Nolet. Id.
On March 26, Pense and Zeinali met to discuss other
matters. At this time, Zeinali asked Pense if he wanted her to
leave his unit. He told her “no” and apologized. Then he asked
Zeinali if she wanted to go to dinner to discuss the issue, but
she refused. Pense Decl. [ECF No. 15-3] at ¶ 42.
The next morning Pense put a store-bought card on Zeinali’s
desk. The card said: “Something went wrong. I’m pretty sure it
was me. I’m sorry.” Pense inscribed underneath, “Please talk to
me. Mike”. [ECF No. 15-3, Ex. Q] at 62-63.
the card was a sheet of paper with a typewritten message from
Pense, which read:
You asked me if I wanted you to leave. Emphatically
NO! I do not want you to leave. I do not want you to
leave work nor do I want you to leave my life. But
we cannot keep hurting each other. I will take some
and maybe most of the blame if that will help you
forgive me. But you have to take some blame too. We
are both so highly emotional individuals with a huge
desire to succeed. And you have to admit we are both
very demanding and stubborn. I will give in if and
when you have a good argument or are able to prove
me wrong. But you have to give in also when I have a
good argument and not just because I am your boss. I
do not want to hurt you. I have never intended to do
so. But you were not the only one hurt. I feel you
have shut me out. I feel you do not want to talk to
me. You told me you did this to your sister after
Thanksgiving. I cannot handle being shut out
especially when that is mostly what my job is. I
have enjoyed our conversations immensely. I find you
fascinating. All of the complements [sic] I have
given you (especially the ones that make you blush)
come from my heart. Every time you come into my
office to ask me a question I am so happy inside. I
do not understand why you think I am always mad at
you. The further could be the truth. Please stop
assuming that you are “in trouble” all of the time.
If you think you are in trouble ask me. And please
trust me when I tell you “No, you are not in
trouble”. I will do my best to listen to you and
ease your concerns and worries. Please believe me
when I tell you I want to help you. I have been
doing this same job for over fifteen years. I seldom
give up on anything I set out to do and I am asking
you to not give up on me. Work with me. Learn my
habits. And eventually you will see a very nice guy
with a gruff protective exterior. I will do most
anything to protect the ones I care about.
I am willing to put in the extra effort into making
our working relationship and our friendship grow but
you have to also. Please come talk me. I want to
answer all of your questions no matter how busy I
am. I want to know all about you; tell me about your
daughter, your latest shopping spree, or whatever.
I’ll even listen to you vent if you are mad about
something or at someone (including me). And most of
all tell me what I need to do to fix things.
I have a little sister whom I am so very proud of.
But I still have room in my heart for another little
sister just like you!
Id. at 64 (emphasis added).
Zeinali did not mention the note to Pense. Later, Pense
asked her what she thought of the note. Zeinali responded,
“[a]re you trying to be nice to me now?” Zeinali Dep. [ECF 15-2,
Ex. D] at 56.
Pense did not reply, and they never discussed the
On April 21, 2015, Zeinali spoke with the DPSCS Office of
Equal Opportunity (“OEO”) regarding allegations of Pense
sexually harassing her.
The OEO gave Zeinali information on how
to file a formal complaint, but Zeinali declined to do so and
would not cooperate with the OEO.
Nevertheless, Pense was
immediately transferred to a different office and was ordered to
have no contact with Zeinali while the OEO conducted an
Pense and Zeinali were not together in the office from
March 30 to April 10 because of their vacations.
OEO made a preliminary finding that “given the
mere existence of the claim itself it is clear that Mr. Pense
has, at a minimum, created an intimidating, hostile, or
offensive work environment and the card and letter are proof of
that fact.” OEO Preliminary Finding [ECF 19-10] at 5.
finding was only preliminary, and no formal finding of sexual
harassment was made by OEO as the investigation was completed by
the DPSCS Internal Investigative Division (“IID”). Decl. of
Karen Shipley [ECF No. 20-2] at ¶ 8.
Three IID investigators interviewed Pense, Zeinali, and
other employees, and reviewed emails and other relevant
IID Report [ECF No. 19-3] at 3-4.
In her interview,
Zeinali said she had never discussed with Pense that she found
his remarks or behaviors inappropriate or told him she did not
want a relationship outside of work, but she did refuse his
invitations to spend time together. Id. at 11.
Prior to this
incident, no other person had made a sexual harassment complaint
against Pense.5 Nolet Decl. [ECF No. 15-2, Ex. A] at ¶ 7.
Zeinali submitted the testimony of Bonnie Keller, another
employee who works in the DPSCS office, who stated that a former
intern claimed that Pense sexually harassed her by “stalking
her” and “asking her out” and that she heard similar “rumors”
about another intern. This is hearsay and therefore not suitable
to be considered for summary judgment purposes. See Fed. R. Civ.
P. 56 (“An affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.”).
On June 2, 2015, Zeinali filed the instant lawsuit.
June 29, 2015, Pense was terminated from DPSCS.6 On or about July
14, 2015, the IID concluded its investigation and determined
that Pense’s actions “did not constitute a hostile work
environment” and that he did not make “any unwanted sexual
advances toward Ms. Zeinali.” Decl. of William Sage [ECF No. 154] at ¶¶ 8-9.
B. Section 1983 Sexual Harassment Claim
To establish a claim under § 1983, a plaintiff must show
that a person acting under color of state law violated a right
secured by the Constitution and laws of the United States.
U.S.C § 1983 (2012); West v. Atkins, 487 U.S. 42, 48 (1988).
Here, the Equal Protection Clause of the Fourteenth Amendment
provides “a right to be free from gender discrimination that is
not substantially related to important governmental objectives.”7
Beardsley v. Webb, 30 F.3d 524, 529 (4th Cir. 1994)(citing Davis
v. Passman, 442 U.S. 228, 234–35, 99 S.Ct. 2264, 2271 (1979)).
“[C]ourts have held that intentional sexual harassment of
The Secretary determined “that it is in the best interest
of the Department to separate [Pense] from [his] position.”
Termination Letter [ECF No. 20-1] at 15.
Although the Complaint mentions a violation of the
Fourteenth Amendment Due Process Clause and State Constitution,
Plaintiff has not put forth any facts to show that she was
deprived of any liberty or property interests so as to violate
the state or federal Due Process Clauses.
employees by persons acting under color of state law violates
the Fourteenth Amendment and is actionable under § 1983.” Id.
The prima facie elements of a Title VII8 sexual harassment
case apply in § 1983 sexual harassment suits. See Beardsley, 30
F.3d at 529 (“Courts may apply the standards developed in Title
VII litigation to similar litigation under § 1983.”); Gairola v.
Com. of Va. Dep’t of Gen. Servs., 753 F.2d 1281, 1285–86 (4th
Zeinali contends that Pense’s acts created a
hostile work environment.
Title VII is violated “[w]hen the
workplace is permeated with ‘discriminatory intimidation,
ridicule, and insult,’ that is ‘sufficiently severe or pervasive
to alter the conditions of the victim’s employment and create an
abusive working environment.’” Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21, 114 S.Ct. 367, 370 (1993)(quoting Meritor
Savings Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399,
2405 (1986)) (internal citations omitted). In a hostile
environment suit, the plaintiff must prove that:
(1) the subject conduct was unwelcome;
(2) it was based on the sex of the plaintiff;
(3) it was sufficiently severe or pervasive to
alter the plaintiff’s conditions of
employment and to create an abusive work
Title VII makes it unlawful for an employer to
“discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual’s . . . sex.” 42 U.S.C. § 2000e–
Spicer v. Com. of Va., Dep’t of Corr., 66 F.3d 705, 710 (4th
Cir. 1995); see also Ocheltree v. Scollon Prods., Inc., 335 F.3d
325, 331 (4th Cir. 2003).
According to Pense, the evidence is
insufficient to show the second and third elements, which the
Court discusses below.
1. Based on Sex of Plaintiff
In order to constitute sexual harassment, a plaintiff must
prove he or she was discriminated against because of his or her
sex. See Ocheltree, 335 F.3d at 331 (quoting Oncale, 523 U.S.
75, 80, 118 S. Ct. 998, 1002 (1998))(“The critical issue [in the
“because of sex” inquiry] is whether members of one sex are
exposed to disadvantageous terms or conditions of employment to
which members of the other sex are not exposed.”).
To satisfy this element, Zeinali claims that Pense was
interested in a physical, sexual relationship with her, as well
as a romantic relationship.
Pense contends that he is
homosexual, and therefore, he has no sexual or romantic interest
in Zeinali or any other woman.
Pense has submitted evidence to
this effect, including his own declaration that he has never
been in a romantic relationship with a woman.
that Pense is homosexual, and cites two pieces of evidence: (1)
Pense did not tell his coworkers that he is homosexual prior to
the start of this lawsuit, and (2) in his deposition, Pense
admitted that he had a drunken “sexual encounter” with a woman
over thirty years ago.
Although it is debatable whether Zeinali
has put forth significantly probative evidence to create a
genuine dispute of fact on this point, the Court will proceed on
the assumption that Pense is not homosexual.9
This is because,
based on all of the evidence presented with all inferences made
in favor of Zeinali, no reasonable juror could conclude that
Pense’s conduct constituted sexual advances, regardless of
Pense’s sexual orientation.
In the instant case, Zeinali identified the following as
instances of Pense’s “aggressive sexual advances in the
workplace” or “sexualized banter”:
Pense asking her out to lunch more than once.
Pense asking her to go hiking with him in New York.
Pense touching her legs and chest when he was working
near her on the computer.
Pense saying he “enjoyed this” when he sat next to
The Supreme Court has stated that in male-female harassment
cases, “it is reasonable to assume those proposals [of sexual
activity] would not have been made to someone of the same sex.
The same chain of inference would be available to a plaintiff
alleging same-sex harassment, if there were credible evidence
that the harasser was homosexual.” Oncale, 523 U.S. at 80.
Evidence of Pense’s sexual orientation could be relevant here in
that it generally refutes the chain of inference that Pense’s
conduct was directed at Zeinali because of her sex, as is
normally assumed in cases of male-female harassment.
it is not necessary for the Court to reach this issue based on
the facts of this particular case.
Pense telling her she was “pretty” and talking about
her hair, looks, or outfits approximately five to
Zeinali Dep. [ECF No. 15-2, Ex. D] at 36-37, 53.
Zeinali also claims that the card Pense gave her was a “love
letter” with “sexual innuendos.” [ECF No. 19-1] at 23-24.
The evidence, in context, fails to show that Zeinali was
singled out for discriminatory treatment because of her sex.
Instead, the record shows that Pense was frustrated with
Zeinali’s performance as his new Assistant and was trying to
develop a better working relationship – not a sexual one.
In Oncale v. Sundowner Offshore Servs., Inc., the Supreme
Court warned courts to “not mistake ordinary socializing in the
workplace . . . for discriminatory ‘conditions of employment.’”
523 U.S. at 81, 118 S.Ct. at 1003.
In other words, there is no
legal cause of action for unwelcome friendship.
friendly with male and female work colleagues and frequently
invited them to go to lunch or do other activities with him
outside of work; Zeinali was no exception. Decl. of Tekia
Jackson [ECF No. 15-2, Ex. C] at 28, ¶ 8.
repeatedly told Zeinali that he did not want to date her.
e.g., [ECF No. 15-3, Ex. J] at 43.
Pense’s intentions are made
clear in the March 27 note, wherein he makes statements, such
as, “I still have room in my heart for another little sister
just like you,” and “I am willing to put in the extra effort
into making our working relationship and our friendship grow
. . I want to know all about you; tell me about your daughter,
your latest shopping spree, or whatever.” [ECF No. 15-3, Ex. Q]
After reading the note, no reasonable juror could
determine that Pense was pursuing a sexual or romantic
relationship with Zeinali.
Additionally, the alleged touching was “incidental conduct
that was void of sexual overtones.” Bonora v. UGI Utilities,
Inc., No. CIV.A. 99-5539, 2000 WL 1539077, at *4 (E.D. Pa. Oct.
18, 2000) (involving a defendant who purposefully touched the
plaintiff’s arm when opening a door and brushed his body against
the plaintiff’s buttocks on two to four occasions).
herself stated that on the two times Pense touched her legs, he
jumped back and acted like it was an accident, and that Pense’s
body only brushed against Zeinali’s chest when he was leaning
over her to show her something on the computer. [ECF No. 19-6]
Title VII is not a tool to prevent any accidental or
minor physical contact in the office, nor was it meant to “reach
genuine but innocuous differences in the ways men and women
routinely interact with [each other]. The prohibition of
harassment on the basis of sex requires neither asexuality nor
androgyny in the workplace.” Oncale, 523 U.S. at 81, 118 S. Ct.
Last, there is no evidence to show that Pense harbored
general hostility toward women in the workplace.
Even when a
defendant has not made sexual advances,
discrimination, for example, when a woman is the
individual target of open hostility because of her
sex, or when “a female victim is harassed in such
sex-specific and derogatory terms ... as to make it
clear that the harasser is motivated by general
Ocheltree, 335 F.3d at 331–32 (quoting Oncale, 523 U.S. at 80,
118 S.Ct. at 1002) (internal citations omitted).
Zeinali contends that the evidence shows that Pense treated
women in the workplace differently than men because (1) he did
not compliment male co-workers on their hair, (2) he remains in
contact with two female colleagues, but no males, and (3) he did
not give a male employee a card.
These facts do not show hostility to women.
There is no
evidence of Pense using gender-specific derogatory terms or
treating his female co-workers differently because of their sex.
In Smith v. First Union Nat. Bank, the court found that the
plaintiff’s supervisor belittled her “because she was a woman”
when the supervisor made comments such as, a woman who was upset
“must be menstruating” or that she needed “a good banging”; the
“only way for a woman to get ahead at First Union is to spread
women had no place in management and did not even
belong in college;
women should be “barefoot and pregnant.” 202
F.3d 234, 243 n.6 (4th Cir. 2000). There is a complete absence
of any similar insults in the record here.
Pense’s infrequent compliments about Zeinali’s appearance
(the compliments that Pense wrote made her “blush”) were not
gendered insults; nor did Zeinali ever ask him to stop
mentioning her appearance.
Affidavits submitted by Pense’s
other Assistant and other female co-workers, demonstrate that
Pense has never made any sexual or gendered insults to them, or
treated them differently because of their gender.
Decl. [ECF 15-2, Ex. A] at 18, ¶¶ 6-7; Decl. of Sue Dooley [ECF
15-2, Ex. B] at 23, ¶¶ 6-9; Jackson Decl. [ECF 15-2, Ex. C] at
27-28, ¶¶ 3-4; Decl. of Joselyn Hopkins [ECF 20-3] at 2, ¶ 7.
In fact, Pense’s closest work friendships were with females.
The record also reveals that Pense and Zeinali had a tense
working relationship, and that Pense scrutinized Zeinali’s job
However, there is no evidence to show that this
scrutiny had anything to do with Zeinali being a woman. The
evidence demonstrates that Pense distrusted Zeinali’s integrity
and her ability to do the required accounting tasks. See Pense
Decl. [ECF No. 15-3] at ¶ 16; [ECF No. 15-3, Ex. L] at 49; see
also Ziskie v. Mineta, 547 F.3d 220, 226 (4th Cir.
2008)(“[H]arassment due to personality conflicts will not
suffice. Some persons, for reasons wholly unrelated to race or
gender, manage to make themselves disliked.”).
The Court concludes that a reasonable jury could not find
that Pense’s conduct was based on her sex.
2. Severe or Pervasive
Pense’s conduct, even if it were found to be based on sex,
must also be “sufficiently severe or pervasive” so as to alter
the conditions of the work environment. Ocheltree, 335 F.3d at
To determine whether a work environment is “hostile,” the
Court must look at all the circumstances, including:
(1) the frequency of the discriminatory conduct;
(2) its severity;
(3) whether it is physically threatening or humiliating, or
a mere offensive utterance; and
(4) whether it unreasonably interferes with an employee’s
Harris, 510 U.S. at 23.
A plaintiff must clear a “high bar” to
establish this element. E.E.O.C. v. Sunbelt Rentals, Inc., 521
F.3d 306, 315 (4th Cir. 2008).
The Court must examine the evidence from “both the
subjective and objective perspectives.” Ward v. Johns Hopkins
Univ., 861 F. Supp. 367, 376 (D. Md. 1994). “[T]he objective
severity of harassment should be judged from the perspective of
a reasonable person in the plaintiff’s position, considering
‘all the circumstances.’” Oncale, 523 U.S. at 81, 118 S. Ct. at
1003 (quoting Harris, 510 U.S. at 23, 114 S.Ct. at 371).
The Court will assume that Pense’s conduct subjectively
created a hostile work environment for Zeinali. See Williams v.
Silver Spring Volunteer Fire Dep’t, 86 F.Supp. 3d 398, 412 (D.
Md. 2015)(“[C]ourts often assume the conduct is subjectively
However, the evidence does not demonstrate that,
under the circumstances, a reasonable person in Zeinali’s
position would be significantly affected.
A reasonable juror could not label Pense’s conduct – one
unprofessional outburst, a personal card and letter, repeated
lunch invitations, scrutiny at work, compliments on appearance,
and brief touchings (even if purposeful) – as “physically
threatening or humiliating” or “severe.”
Zeinali has failed to
point out any act that is fairly characterized as “severe.”
Williams v. Silver Spring Volunteer Fire Dep’t, 86 F. Supp. 3d
398, 413 (D. Md. 2015)(calling a single act “severe” when a
supervisor approached the plaintiff at a meeting, straddled her
waist, and grinded his pelvis on her in front of co-workers).
Although each case is different and must be judged on its
own merits, a comparison to the facts of other sexual harassment
cases shows how mild the conduct at issue in this case is.
Compare Smith v. First Union Nat. Bank, 202 F.3d at 243 (finding
a hostile workplace when defendant insulted plaintiff at least
once a month, called her angrily at night, and made physical
threats by saying “or else you’ll see what will happen to you”
and that he would “slit a woman’s throat”); Paroline v. Unisys
Corp., 879 F.2d 100, 103 (4th Cir. 1989), opinion vacated in
part on reh’g on other grounds, 900 F.2d 27 (4th Cir.
1990)(finding the issue of “severe and pervasive” to be a jury
issue when the defendant supervisor made sexually suggestive
remarks to the plaintiff, kissed her and rubbed his hands on her
back even when she asked him to stop, and forced his way into
her home for sexual reasons); with Raley v. Bd. of St. Mary’s
Cty. Comm’rs, 752 F. Supp. 1272, 1275, 1280 (D. Md. 1990)
(conduct was not severe and pervasive where defendant
“uninvitedly placed his hand on [plaintiff’s] thigh underneath
her dress,” hugged and kissed other women in the office, and
made isolated sexual innuendos); Hale v. Vill. of Madison, 493
F.Supp. 2d 928, 938 (N.D. Ohio 2007) (finding that behavior was
not severe when intimidating outbursts did not occur regularly
and complaining plaintiffs could not articulate why they feared
for their safety, even when the defendant’s conduct was found to
violate the municipality’s sexual harassment policy).
case, Pense never insulted or threatened Zeinali, made any overt
sexual references or acts, or unreasonably interfered with her
work performance in any way related to her sex.
The most notable evidence, the apology card and note, could
be characterized as unprofessional, but it could not reasonably
be called humiliating or threatening.10
Instead, when looking at
the totality of the circumstances, it is apparent the note was
another one of Pense’s failed attempts at mere friendship.
very language of the card makes this evident.
Zeinali may have felt overwhelmed by her work environment,
but those feelings were attributable to Pense’s dissatisfaction
with her work performance, not gender-based discrimination, as
evidenced by her messages to Ms. Keller. “[C]allous behavior by
[one’s] superiors, or a routine difference of opinion and
personality conflict with [one’s] supervisor are not actionable
under Title VII.” Sunbelt Rentals, Inc., 521 F.3d at 315–16
(internal citations and quotations omitted).
disagreement “with the management style or decisions of
[supervisors] . . . is not actionable under Title VII.”
v. Sebelius, 766 F.Supp. 2d 585, 601 (D. Md. 2011), aff’d, 465
Fed. App’x 274 (4th Cir. 2012) (citing Webster v. Johnson, 126
Fed. Appx. 583, 588 (4th Cir. 2005) (noting that stern
supervision does not evidence actionable harassment)).
After considering the relevant circumstances from an
objective perspective, the Court concludes that a reasonable
Joselyn Hopkins, another DPSCS employee, stated in her
affidavit that she once argued with Pense over a work-related
matter. The next day, Pense put a Hallmark greeting card in her
in-box apologizing for his temper. Hopkins and Pense thereafter
resumed a cordial and professional relationship. Hopkins Decl.
[ECF No. 20-3] at 2-3.
fact-finder could not find that Pense’s conduct created a
hostile work environment.
C. Qualified Immunity
Pense claims that he is entitled to qualified immunity as a
Zeinali must show (1) that Pense violated her
right to be free from gender discrimination, and (2) the right
was clearly established at the time of the events at issue. See
Graham v. Gagnon, 831 F.3d 176, 182 (4th Cir. 2016).
reasons stated above, Zeinali has failed to show a violation of
her rights; therefore, Pense is entitled to qualified immunity.
For the foregoing reasons:
1. Defendant’s Motion for Summary Judgment [ECF No. 15]
2. Judgment shall be entered by separate Order.
SO ORDERED, this Tuesday, December 20, 2016.
Marvin J. Garbis
United States District Judge
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