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Panarello v. Zinke

United States District Court, District of Columbia

May 30, 2017

RYAN ZINKE, [1] Secretary, United States Department of the Interior, Defendant.


          RANDOLPH D. MOSS United States District Judge.

         Plaintiff Lori Panarello, a lieutenant in the National Parks Police, brings this Title VII action against the Department of the Interior, the parent agency of the Park Police. She alleges that she was denied training, leadership opportunities, awards, and “promotions within her agency” based on her sex and her participation in protected equal employment opportunity (“EEO”) activity. She further alleges that this same discriminatory and retaliatory conduct created a “hostile work environment.” The Interior Department initially responded to her complaint with a Motion to Dismiss and for Summary Judgment. Dkt. 12. That motion asserted that Panarello failed to timely exhaust administrative remedies with respect to most of her claims and that, with respect to the claims that she did exhaust, the Department's actions were taken for legitimate, non-discriminatory and non-retaliatory reasons. Id. Panarello opposed the Department's motion on the merits but also argued that the motion was premature and that she should be permitted to take discovery pursuant to Federal Rule of Civil Procedure 56(d) before responding. Although a close question, the Court (Lamberth, J.) agreed that the Department's motion was premature and that discovery was warranted. See Dkt. 23 at 5. The Court, accordingly, denied the Department's initial motion without prejudice and set a discovery schedule.

         After approximately a year of discovery, the Department has renewed its Motion to Dismiss and for Summary Judgment. Dkt. 39. That motion reasserts the two defenses raised in the Department's original motion, this time with the benefit of a factual record. The Court is now in a position to decide the Department's motion, and, for the reasons discussed below, it will grant the motion and enter judgment in favor of the Department.

         I. BACKGROUND

         A. Factual Background

         Because Panarello is the nonmoving party, the Court views the evidence in the light most favorable to her. See Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011).

         Panarello has been employed by the National Park Police as a law enforcement officer since 1991. Dkt. 39-19 at 3. At the time she filed suit, she held the rank of Lieutenant (Grade 5). Dkt. 39-1 at 1. Early in her career at the Park Police, Panarello served as a witness in an EEO proceeding involving allegations of sexual harassment committed by another Park Police officer, Sergeant William Wolz. Dkt. 39-19 at 5. That administrative proceeding eventually led to a lawsuit, which Panarello and five other female Park Police officers brought against the Department in 1998. See Complaint, Sabate v. Babbitt, No. 98-cv-929 (D.D.C. Apr. 14, 1998), ECF No. 1. In the 1998 lawsuit, Panarello and the other plaintiffs alleged that Wolz, who worked with them at the Park Police's Glen Echo Substation, “subjected them to gender discrimination and sexual harassment on a continuing basis.” Id. at 7. The 1998 complaint also alleged that Wolz “imposed unwarranted discipline on the [p]laintiffs, ” “made unsubstantiated complaints against them, ” and threatened retaliation when they complained about his behavior. Id. at 9. With respect to Panarello in particular, the complaint alleged that she was “warned” by another officer that “she would have no career at” the Glen Echo Substation. Id. at 12.

         David Stover, who was then a lieutenant in the Park Police, “was the station commander and[, ] as such, had responsibility for overseeing the operations of the station and directly supervising the sergeants, ” including Wolz. Id. at 6. According to the 1998 complaint, after “Wolz was removed from duty, . . . Stover continued the[] campaign of retaliatory actions against the [p]laintiffs in an effort to force them to withdraw their EEO complaints.” Id. at 14. Among other things, he allegedly “told [the] [p]laintiffs that he was upset that they had not gone to him with their problems and accused them of trying to get rid of” another sergeant “‘the way they got rid of . . . Wolz.'” Id. In front of other officers, Stover allegedly “accused the [p]laintiffs of acting to ‘tear the substation apart' by pursuing their EEO complaint, ” and he allegedly told two of the plaintiffs “that their allegations of discrimination had undermined his career” and “warned them against filing claims against other officers.” Id. Although the 1998 complaint does not specify which plaintiffs were targets, it asserts that Stover “engaged in numerous retaliatory actions, ” including bringing “an unfounded complaint, ” assigning the plaintiffs to “undesirable and inconvenient shifts, ” “attempting to bar one [p]laintiff from an assignment she had requested in Virginia, ” and “attempting to solicit complaints against [p]laintiffs.” Id. Finally, the 1998 complaint alleged that, as a result of the asserted discriminatory and retaliatory conduct, “Panarello transferred” from the Glen Echo Substation “to the Greenbelt, Maryland Substation.” Id. at 15.

         Ultimately, the 1998 lawsuit resulted in a settlement in which the Department agreed to make a substantial monetary payment, to provide Panarello certain training, to “expunge the documentation regarding” a disciplinary proceeding brought against her, and to promote Panarello to sergeant within 120 days of settlement. Sabate v. Babbitt, No. 98-cv-929 (RCL), (D.D.C. Aug. 14, 2000), ECF No. 36. As required by the settlement, Panarello was promoted to sergeant in 2000 or 2001. Dkt. 39-1 at 1; see also Dkt. 39-19 at 8 (Panarello Dep. 26, 27) (promoted in 1999 or 2000). She was further promoted to lieutenant in 2004. Dkt. 39-6 at 21.

         Panarello's current complaint focuses on mistreatment that allegedly occurred many years later, starting in 2009. That mistreatment, however, allegedly had roots in Panarello's earlier protected EEO activity. Dkt. 1 at 2 (Comp. ¶ 13). She contends, for example, that Stover continued to hold a grudge against her and that, at some point after he was promoted to deputy chief, Stover and another deputy chief, Jeanne O'Toole, instructed Panarello's captain not to give her an evaluation rating above a three, on a scale of one to five. Dkt. 39-19 at 13-14 (Panarello Dep. 47-50). She also contends that, unlike other equally or less qualified officers, she was denied several opportunities to receive special training and assignments-including the opportunity to attend “the FBI Academy” in September, 2009, Dkt. 1 at 5-6, and assignment to the “SWAT K-9” and “Aviation” teams, Dkt. 41-1 at 3, 4 (Panarello's Statement of Facts ¶¶ 24, 31)-and that she was not “included in an award for a barricade incident in which she was involved, ” Dkt. 1 at 6. This pattern of discrimination and retaliation reached its pinnacle in 2009 and 2010, according to Panarello, when the Park Service took disciplinary action against her and declined to promote her to the rank of captain and rejected her application for two command positions. Id. at 6-8.

         The disciplinary matter arose from an early-morning car stop near the Jefferson Memorial on April 11, 2008. According to a “Notice of Proposed Demotion” issued following an investigation into the incident, the accuracy of which Panarello does not dispute, officers under Panarello's supervision stopped a vehicle approaching the Jefferson Memorial slightly before 3 a.m. on April 11, 2008, and ordered the occupants out of the vehicle. Dkt. 39-23 at 2. When searching the trunk of the car, one of the officers “discovered a . . . dildo, ” and another officer removed it from the trunk and gave it to Panarello, who was at the scene of the stop. Id. at 2-3. Panarello then “placed it on top of the vehicle” and called another officer to the scene “to take pictures.” Id. at 3. The officer Panarello originally called was unable to attend, but he directed another officer to the scene in his place. Id. At Panarello's request, that officer then took pictures “with his personal cell phone” while another officer “laugh[ed] about” the device and engaged in “distasteful shenanigans.” Id. The remaining officers at the scene simply looked on, “embarrassed by [Panarello's] actions to condone such behavior, particularly in the same vicinity of the . . . occupants” of the vehicle the Park Police had stopped and searched. Id.

         On August 2, 2009, while the Jefferson Memorial incident was under investigation but before any disciplinary action was proposed or finalized, Panarello applied for promotion to captain. Dkt. 39-6 at 2. At that time, applications for promotion to captain were assessed on a 100-point scale, with fifty points assigned to the candidate's performance on a battery of exercises at an “assessment center” and fifty points assigned to an assessment of the candidate's “Knowledge, Skills, and Abilities (KSAs).” Dkt. 39-5 at 3, 5. The applicable rules also provided that “any disciplinary/adverse action certified by the Commander, Office of Professional Responsibility” for the two years preceding the closing date for the vacancy announcement would be “negatively reflected in the overall score of a candidate's KSAs.” Id. at 4. Disciplinary incidents that were under investigation, however, were not considered in promotion decisions. Dkt. 39-22 at 9 (Lauro Dep. 32).

         The “assessment center” portion of the evaluation was conducted at an external testing center, and none of the assessors were Park Police employees. Dkt. 39-18 at 3 (Lauro Decl. ¶ 8). The KSA portion of the evaluation was scored by Park Police officers at the rank of captain or above. Dkt. 39-5 at 3. Panarello does not allege that Stover was on the panel that assessed her KSAs, and Stover retired in September 2008, almost a year before Panarello applied for any of the captain-level positions at issue. See Dkt. 41-4 at 5. Candidates who completed both portions of the assessment were rated either “Well Qualified” or “Qualified, ” and listed on a “promotion roster” in alphabetical order without scores. Dkt. 39-5 at 5. When a captain-level position became vacant, lieutenants on the promotion roster could apply for the position. Id. at 6. Salvatore Lauro, Chief of the Park Police at the time, was the selecting official for the captain-level vacancies for which Panarello applied. Dkt. 39-9 at 4. His selection policy was that, “[i]f a ‘Well Qualified' candidate applied for a posted Captain position, [that candidate] had an absolute preference over a candidate in the ‘Qualified' list.” Dkt. 39-18 at 3. Lauro and his command staff “use[d] the natural break in the scores” to separate “Well Qualified” from “Qualified” candidates, such that “if there is a bunch of people between 80 and a hundred and then there is a gap from 80 to 70 and then you have another group of people from 50 to 60, the natural break would be that 60 to 70.” Dkt. 39-22 at 9.

         Panarello scored below average at the external assessment center. Her total score on the external assessment was “23.800, ” compared to an average score of “28.2754.” Dkt. 39-6 at 23. The highest scoring candidate received a score of “39.1714, ” while the lowest scoring candidate scored “19.1143.” Id. Panarello's score on the KSA portion of the assessment is not in the record before the Court. Overall, Panarello was one of five lieutenants listed as “Qualified” on the promotion roster; twenty were listed as “Well Qualified.” Dkt. 39-8 at 2. Lauro attested in the course of the administrative EEO investigation that Panarello “was rated near the bottom of the list (24 out of 25 candidates) by the assessors.” Dkt. 39-9 at 4. Several captain-level vacancies were filled in 2009 and 2010 from the promotion roster; Panarello applied for all of them, but was not selected for any of them. Dkt. 39-11 at 2, 4, 6, 9. All of the officers selected were on the “Well Qualified” list. Compare Dkt. 39-8 at 2 (promotion roster) with Dkt. 39-11 at 2, 4, 5, 8 (selection notices).

         On October 22, 2009-more than eighteen months after the Jefferson Memorial incident-Panarello received her proposed discipline. Citing Panarello's “[f]ailure to act appropriately as a manager” and “[d]ereliction of duty, ” Deputy Chief Jeanne O'Toole proposed to demote Panarello from lieutenant to sergeant. Dkt. 39-23 at 2-4. Panarello appealed the proposed demotion to Assistant Chief William Lynch, who decided to reduce the penalty to a fourteen-day suspension, principally due to the delay between the events at issue and the completion of the disciplinary process. Dkt. 39-23 at 12; Dkt. 39-24 at 3, 9. Lynch issued the suspension on January 22, 2010. Dkt. 39-23 at 9. Panarello filed a grievance with Lauro on February 8, 2010, challenging that decision, but nonetheless served the suspension between February 21 and March 6, 2010. Dkt. 39-23 at 15. Lauro denied the grievance on December 15, 2010. Id.

         On April 20, 2010, Panarello was not selected for two “command positions” for which she had applied. Dkt. 39-3 at 5. The first position was to serve as a “SWAT/K-9” commander, and the second was to serve as an “Aviation” commander. Id. Both positions were apparently at the lieutenant level, and thus did not involve promotion to captain. See Dkt. 41-1 at 3 (“SWAT K-9 and Aviation would have been considered specialized assignments.”); Dkt. 41 at 18 (noting that specialized assignments “would improve [Panarello's] promotion potential”); Dkt. 39-10 at 4 (describing “SWAT-K-9” and “Aviation Commander” as “lateral voluntary transfer position[s]”). And, unlike with the captain-level positions, “[a]ny interested [l]ieutenants” could apply without the additional “paperwork” required for promotion to captain. Dkt. 39-22 at 14 (Lauro Dep. at 51-52). As with the captain-level positions, however, Lauro remained the selecting official. Id.

         Finally, after the close of discovery and the completion of summary judgment briefing, Panarello was arrested and charged with Driving While Intoxicated (“DWI”) on February 14, 2015. Dkt. 44-1 at 1. On March 18, 2016, the Commander of the Park Police's Office of Professional Responsibility proposed terminating Panarello's employment as a result of her DWI arrest. Id. Panarello moved to supplement her opposition to the pending motion for summary judgment with the notice of proposed termination, Dkt. 44, and the Court granted that motion by minute order on March 29, 2017. At the same time, however, the Court noted that the proposed termination was not properly before the Court as a separate claim of discrimination or retaliation and that, accordingly, it would consider the proposed action only “to the extent probative” of those claims that were properly before the Court. Minute Order, March 29, 2017.

         B. Procedural Background

         The procedural record is unfortunately confused. Panarello contacted an EEO counselor on January 19, 2010, and informal EEO counseling continued through April 1, 2010. Dkt. 39-2 at 11. According to the EEO counselor, Panarello raised two complaints: First, “she was [allegedely] discriminated against based on retaliation (prior EEO Activity in 2001) when she found out on January 19, 2001, that she was not selected for any of the 4 positions for vacancy announced [in] NPS-USPP-09-08.” Id. at 6. (That assertion is not quite right. NPS-USPP-09-08 was the announcement for the captain-level positions, Dkt. 39-7 at 2, but only two of the captain-level positions were filled by that time, Dkt. 39-11 at 2, 4. The remaining captain-level positions were not filled until February and July 2010. Id. at 5-8; Dkt. 39-12 at 6). Second, “she was [allegedly] discriminated against based on retaliation (prior EEO Activity in 2001) when she received a [p]roposed [d]emotion.” Dkt. 39-2 at 6. The EEO counselor was unable to resolve either complaint, id. at 11, and Panarello, through counsel, filed a formal administrative complaint with the Park Service's EEO office on April 29, 2010. Dkt. 39-3 at 2.

         The EEO office acknowledged Panarello's formal complaint in a letter dated July 14, 2010. Dkt. 39-4 at 2. According to that letter, Panarello's administrative complaint asserted that Panarello “was subjected to disparate treatment on the bases of sex (Female) and reprisal (prior EEO activity) when” (1) “she was not selected for [two] command positions” in April 2010, and “received two separate non-selection notices for the captains position[s] that were advertised under vacancy announcement number NPS-USPP-09-08” in January 2010; (2) “she was denied training to attend the FBI Academy” in September 2009; (3) “she received a ‘low' performance evaluation” in January 2010; (4) “she was denied part of an award” and “was not considered as a recipient of the Chief's Certificate for Outstanding Police Service” in May and October 2009; (5) “she was not allowed to sit on the Applicant Review Panel” in August 2009; (6) “she was placed on restricted duty” in October 2009; and (7) “her request was denied to return to midnights, and as a result, she has lost night differential pay” in February 2009. Id. at 2-3.

         The EEO officer notified Panarello's counsel that the Park Service was accepting only one claim for investigation. That assertion, however, requires some clarification because the “one” claim that was accepted for investigation actually combined two separate claims, while omitting portions of one of those claims. Thus, although the EEO counselor's report and Panarello's administrative complaint both asserted that Panarello was not selected for four captain-level positions in early 2010, the EEO officer limited this claim to “two separate non-selection notices for the captain[-level] positions, ” Dkt. 39-4 at 2 (emphasis added), which were presumably the first two of the four captain-level positions, [2] see Dkt. 39-11 at 2-4. Moreover, although the Department asserts in its Statement of Material Facts Not in Dispute that Panarello only exhausted claims with respect to the “four captain nonselections, ” Dkt. 39-1 at 4-5 (emphasis added), and Panarello has not controverted that assertion, the EEO officer actually accepted for investigation Panarello's separate claim that she was not selected for two “command positions” on April 20, 2010-that is, the date on which Panarello was not selected for the lieutenant-level “SWAT/K-9” and “Aviation” command positions. Accordingly, although neither party recognizes as much, the record is clear that claim “one, ” as defined by the EEO officer, included Panarello's contention that the Department violated Title VII when it failed to select Panarello (1) for two of the captain-level positions and (2) for the two lieutenant-level command positions. It was these claims that the EEO officer concluded were timely raised with the EEO counselor.

         With respect to all of Panarello's remaining claims, the EEO officer concluded that Panarello did not timely exhaust. As to one of the remaining claims-that Panarello received a “low” performance evaluation-the EEO officer concluded that Panarello never raised the claim with the EEO counselor. Id. at 3. And, with respect to the other remaining claims, the EEO officer determined that “[t]he record indicates that” Panarello did not raise these issues with the EEO counselor until “well beyond the 45[-]day timeframe to contact an EO [c]ounselor.” Id. at 4.

         The EEO officer notified Panarello of her right to dispute “the accepted claim as stated” within five days of receipt of the letter. Id. at 3. Panarello, however, never submitted “a five-day letter” disputing the scope of her claims accepted for investigation. Dkt. 39-19 at 31 (Panarello Dep. at 117). After the Park Service issued its Report of Investigation on December 20, 2011, Dkt. 1 at 2, Panarello timely exercised her right to request that the Equal Employment Opportunity Commission (“EEOC”) appoint an Administrative Law Judge (“ALJ”) to adjudicate her case. Id. The EEOC, in turn, did not issue a decision within 180 days of Panarello's request, triggering her further right to file suit without continuing to await a decision from the EEOC. Id. at 3. She exercised that right and filed the instant suit on December 7, 2012.

         Panarello's complaint asserts two causes of action-one for discrimination on the basis of sex in violation of Title VII, 42 U.S.C. § 2000e et seq., and one for retaliation for protected EEO activity in violation of Title VII, id. Dkt. 1 at 9 (Comp. ¶¶ 82-85). Although not organized as distinct counts, the complaint identifies seven sets of factual allegations, with the following headings: (1) “The Agency's Disparate Promotion Actions, ” Dkt. 1 at 3-5 (Compl. ¶¶ 23-39); (2) “Exclusion from Agency Boards/Committees and Denials of Command Assignments, ” id. at 5 (Compl. ¶¶ 40-44); (3) “The Agency's Refus[al] to Train Ms. Panarello, ” id. at 5-6 (Compl. ¶¶ 45-48); (4) “The Agency Issues a Retaliatory Evaluation, Denies Ms. Panarello Awards, and Denies her Further Leadership Opportunities, ” id. at 6 (Compl. ¶¶ 49-54); (5) “The Agency Seeks to Demote Ms. Panarello, ” id. at 6-7 (Compl. ¶¶ 55-67); (6) “Heightened Scrutiny of Ms. Panarello and the Agency's Efforts to Find Information that Would Discredit Her, ” id. at 7-8 (Compl. ¶¶ 68-73); and (7) “The Agency's Refusal to Promote Ms. Panarello, ” id. at 8-9 (Compl. ¶¶ 74-81). Finally, although not framed as a separate count, the complaint includes a single reference to an alleged “hostile work environment” in an introductory paragraph. Id. at 2 (Compl. ¶ 12).


         The moving party is entitled to summary judgment under Federal Rule of Civil Procedure 56 if it can “show that there is no genuine dispute as to any material fact and [that it] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). When, as here, the plaintiff bears the ultimate burden of proof, but the defendant has moved for summary judgment, the defendant “bears the initial responsibility” of “identifying those portions” of the record that “demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is “material” if it could affect the substantive outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007). The Court, moreover, must view the evidence in the light most favorable to the nonmoving party and must draw all reasonable inferences in that party's favor. Talavera, 638 F.3d at 308.

         “Although summary judgment is not the occasion for the [C]ourt to weigh credibility or evidence, . . . summary judgment is appropriate if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Id. (internal citations and quotation marks omitted). The nonmoving party's opposition, accordingly, must consist of more than unsupported allegations or denials and must be supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324. That is, once the moving party carries its initial burden on summary judgment, the nonmoving party must provide evidence that would permit a reasonable jury to find in its favor. See Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). If the nonmoving party's evidence is “merely colorable” or “not significantly probative, ” the Court should grant summary judgment. Liberty Lobby, 477 U.S. at 249-50.

         III. ANALYSIS

         The Department argues that Panarello failed to exhaust most of her claims and that she cannot show discrimination or retaliation as to the claims that she did exhaust. Although the Court's analysis differs from the Department's in certain ...

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