Panarello v. Bernhardt

LORI PANARELLO, Plaintiff, v. DAVID L. BERNHARDT, in his official capacity as Secretary,United States Department of the Interior, Defendant.

Case No. 1:17-cv-02103 (TNM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

January 11, 2021

MEMORANDUM OPINION

Lori Panarello filed this employment discrimination-related lawsuit while another case she brought against the same defendant alleging very similar claims was still pending in this courthouse. That action was ultimately unsuccessful. Her case here meets the same fate.

Panarello challenges her termination as a United States Park Police supervisor following her guilty plea for driving while intoxicated ("DWI"), her third disciplinary infraction overall and second involving alcohol. She sues the Secretary of the Department of Interior, who has ultimate authority over the Park Police, under Title VII. She claims that the Park Police discriminated against her on the basis of sex and sexual orientation and removed her in retaliation for her other Title VII lawsuit, as well as another Title VII action she filed more than fifteen years ago.

The Secretary moves for summary judgment, citing the DWI as the reason for Panarello's removal. Panarello pursues several paths to show that her criminal conviction was not the actual reason for her removal. But each path leads to the same dead end. The evidence, even when viewed in the light most favorable to her, would not allow a reasonable jury to find that the Park Police intentionally discriminated or retaliated against her. The Court will therefore grant the Secretary's motion.

I.

Panarello is a homosexual female who worked for the Park Police, achieving the rank of lieutenant. See Compl. ¶¶ 9-10, ECF No. 1; Def.'s Mem. in Supp. Mot. Summ. J. ("Def.'s Mem.") Ex. A ("Panarello Dep. Tr.") 13:4-5, ECF No. 33-4.¹

The current case centers on Panarello's 2015 guilty plea to a DWI. See Pl.'s Statement of Genuine Issues of Fact ("Pl.'s Statement") ¶ 31, ECF No. 35-8 (Redacted); Panarello Dep. Tr. 47:11-13; see also Pl.'s Resp. & Mem. in Opp'n Summ. J. ("Pl.'s Resp.") Ex. 3 ("Panarello Aff.") ¶ 81, ECF No. 35-3 (Redacted). She had been driving back from a funeral when a deputy sheriff pulled her over near her home in Virginia. See Panarello Dep. Tr. 18:17-19:7; Pl.'s Statement ¶ 13. The deputy determined that Panarello had a blood alcohol content of .13. Panarello Dep. Tr. 46:8-16. During the stop, the deputy sheriff discovered that Panarello was a police officer. Id. 43:13-17. After Panarello appeared before a magistrate, the deputy allowed a Park Police supervisor to drive Panarello home, rather than leaving her in the county jail to sober up. Id. 54-55; Pl.'s Statement ¶¶ 28-29.

The DWI was not Panarello's first infraction. In 1996, Panarello was stopped for speeding and "there was alcohol involved." Panarello Dep. Tr. 63:22-64:2; see also Panarello Aff. ¶ 29.² As in the 2015 stop, Panarello's blood alcohol content registered at .13, well over the legal limit. See Panarello Aff. ¶¶ 30-38. But the officer learned Panarello was a law enforcement officer, and Panarello was not charged with a DWI, nor did she receive a ticket. See id. ¶ 39; Panarello Dep. Tr. 64:19-21, 171:4-6. Instead, he called a tow truck because he did not want Panarello driving her car home. Panarello Aff. ¶¶ 40-41. Before the tow truck arrived, however, Panarello let a friend drive her car home. Id. ¶¶ 42-43. Learning that Panarello's car was not there when the tow truck arrived, the police officer notified the Park Police of the incident. Id. ¶¶ 44, 47. The Park Police later suspended Panarello for three days, citing "impairing the efficiency of the force." Id. ¶¶ 48, 50-51; Panarello Dep. Tr. 170:19-21, 171:12-17.

Panarello was also involved in an incident near the Jefferson Memorial, which another court in this District already recounted:

[O]fficers 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. 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. Panarello then placed it on top of the vehicle and called another officer to the scene to take pictures. The officer Panarello originally called was unable to attend, but he directed another officer to the scene in his place. 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. 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.

Panarello v. Zinke, 254 F. Supp. 3d 85, 91 (D.D.C. 2017), aff'd sub nom. Panarello v. Bernhardt, 788 F. App'x 18 (D.C. Cir. 2019) (per curiam) (cleaned up). Panarello received a fourteen-day suspension for this infraction. See Pl.'s Statement ¶ 73.

After Panarello's 2015 DWI, the Park Police investigated and ultimately proposed removing her from the force. See id. ¶ 33; Panarello Dep. Tr. 17:19-21. It sent Panarello a "Notice of Proposed Removal" ("Removal Notice"), signed by Captain Keith Rogers. See Def.'s Mem. Ex. H, ECF No. 33-11.³ The Removal Notice outlined the Park Police's considerations for removing Panarello, including the nature and seriousness of the offense and Panarello's supervisory position. See id. at 3-5. The Park Police also considered Panarello's two prior infractions because it used a progressive discipline system—more violations lead to more severe penalties. Id. at 4; see Def.'s Mem. Ex. S ("Table of Penalties") (reflecting increasing penalties after first, second, and third offense), ECF No. 33-22; id. Ex. D ("Smith Dep. Tr.") 65:18-66:4, ECF No. 33-7 (describing decision based on progressive discipline). Panarello addressed her proposed removal through an oral and written response. See Def.'s Mem. Ex. K, ECF No. 33-14; Panarello Aff. ¶ 87.

The Park Police sustained the recommendation to remove Panarello in a "Decision on Proposed Removal" ("Removal Decision"), signed by Deputy Chief Scott Fear. See Pl.'s Statement ¶ 51; Def.'s Mem. Ex. L, ECF No. 33-15. The Removal Decision identified the sameconsiderations as the Removal Notice for removing Panarello, such as the seriousness of a DWI, Panarello's position as a lieutenant, and that the DWI was Panarello's third infraction. Id. at 3-5. Fear noted that he was "unaware of any other employees who have been disciplined for the same or similar offenses." Id. at 4. But he continued that, in any event, Panarello's "misconduct [was] serious enough to warrant removal, irrespective of similar cases." Id.

Before the removal became effective, Panarello submitted her retirement paperwork. Pl.'s Statement ¶ 63. A member of the Park Police's human resources staff also offered Panarello a "last chance agreement." See Pl.'s Resp. Ex. 5 ("Payton-Williams Dep. Tr.") 10, 85-87, ECF No. 36-9 (Sealed). A last chance agreement holds a termination in abeyance for a certain period until the employee complies with the conditions of the agreement. See id. 85:8-20. Under the proposed agreement, Panarello had to drop an earlier equal employment opportunity ("EEO") complaint she had filed against the Park Police. Id. 87:2-8. Panarello declined this offer. See Pl.'s Statement ¶ 62. She then retired and receives annuity benefits. See Panarello Dep. Tr. 158:12-16.

* * *

Panarello has twice before sued the Secretary for alleged Title VII violations. In 1998, Panarello and other female officers claimed that a sergeant "subjected them to gender discrimination and sexual harassment on a continuing basis," "imposed unwarranted discipline," "made unsubstantiated complaints against them," and threatened retaliation for their complaints about his behavior. See Compl. at 7, 9, Sabate v. Babbitt, No. 98-cv-929 (D.D.C. Apr. 14, 1998) ("Sabate lawsuit"), ECF No. 1. The Park Police settled and agreed to promote Panarello to sergeant, among other things. Stipulation, Sabate lawsuit, ECF No. 36.

More than a decade later, Panarello sued the Secretary again. See Panarello v. Zinke, 254 F. Supp. 3d 85 (D.D.C. 2017) ("Panarello I"). There, Panarello alleged several acts of discrimination by the Park Police, including the failure to promote her to captain and assign her to command positions, as well as her suspension for the Jefferson Memorial incident. Id. at 90-93. She also claimed that a Park Police lieutenant retaliated against her for the Sabate lawsuit. Id. at 90. Panarello relied in part on her proposed removal from the Park Police to support her claims in Panarello I. Id. at 92-93.

Panarello I did not survive summary judgment. As relevant here, Judge Moss determined that Panarello's evidence—including her proposed removal—was "too thin." Id. at 106.⁴ The lieutenant at the center of Panarello's retaliation claim had retired before her nonselection to captain-level and command positions, as well as her proposed removal. Id. at 106-08. Addressing Panarello's proposed removal, Judge Moss explained that, "[o]nce again, Panarello points to no evidence that sex discrimination motivated the Park Police's action," and that she "fails to offer any evidence that the proposed termination was part of a pattern of retaliation against her." Id. at 107. Judge Moss found "no basis in the record from which a reasonable jury could find that the proposed termination was part of a pattern of retaliation that would not have occurred but for Panarello's EEO activity between 1993 and 2000." Id.

The D.C. Circuit affirmed. See Panarello v. Bernhardt, 788 F. App'x 18 (D.C Cir. 2019) (per curiam) ("Panarello II"). It held that "no reasonable jury could find that the Park Police subjected Panarello to disparate discipline in...