Panarello v. Salazar
254 F. Supp. 3d 85
D.D.C.2017Background
- Plaintiff Lori Panarello, a National Park Police lieutenant, sued the Department of the Interior under Title VII alleging sex discrimination and retaliation for prior EEO activity based on denial of training, awards, leadership assignments, discipline, nonselection for promotions/command positions, and a hostile work environment.
- Panarello had earlier been a participant/witness in 1990s EEO litigation; that case settled and she received a promotion to sergeant and later lieutenant. Alleged adverse actions at issue here occurred mainly in 2009–2010 (denials of FBI Academy, awards, assignments; Jefferson Memorial disciplinary incident; nonselection for captain and two lieutenant command positions).
- Administrative process: Panarello sought EEO counseling beginning Jan 19, 2010 and filed a formal complaint April 29, 2010. The agency accepted for investigation only a subset of claims (two captain non-selections and two lieutenant command non-selections) and rejected or found untimely other discrete claims. Panarello did not dispute the agency’s articulation of accepted claims within five days.
- After discovery, the Department moved for summary judgment arguing failure to exhaust most claims and that the exhausted nonselection claims were justified by legitimate, non-discriminatory reasons (candidate rankings/skill sets); the court considered the renewed motion on the developed record.
- The court held that most discrete claims (training, awards, low evaluation, restricted duty placement, hostile work environment) were not administratively exhausted or were not pled with sufficient notice for the agency to investigate; for the exhausted nonselection claims the Department produced legitimate reasons and Panarello failed to show pretext.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exhaustion of promotion/command nonselection claims | Panarello contends she timely exhausted nonselection claims for captain and the two command positions | Dept. contends only some captain nonselections were exhausted and disputes exhaustion as to other discrete claims | Court: two captain nonselections and the two command-position claims were treated as accepted and thus exhausted; some other captain claims unnecessary to resolve; granted summary judgment on merits for exhausted promotions |
| Exhaustion of discipline claims (Jefferson Memorial) | Panarello argues the suspension and related discipline were part of her administrative complaint | Dept. says the agency accepted only the Oct 14, 2009 restricted-duty claim (untimely); suspension imposed Jan 22, 2010 was not clearly raised and thus not exhausted | Court: Plaintiff failed to clarify scope when invited; suspension claim not exhausted |
| Exhaustion of training/leadershop/awards/low evaluation claims | Panarello contends these were part of administrative complaint | Dept. argues these incidents occurred outside 45-day counseling window or were not raised | Court: These discrete claims are untimely/ unexhausted and dismissed |
| Hostile work environment claim | Panarello asserts disparate acts form an ongoing hostile work environment | Dept. argues she never raised a hostile work environment claim with sufficient factual detail in admin process | Court: Administrative complaint did not give agency reasonable notice of a hostile-environment claim; claim not exhausted (and also fails as a pleading matter) |
Key Cases Cited
- Bowden v. United States, 106 F.3d 433 (D.C. Cir. 1997) (defendant bears burden to plead and prove failure to exhaust; exhaustion subject to equitable defenses)
- Brown v. Marsh, 777 F.2d 8 (D.C. Cir. 1985) (exhaustion doctrine is pragmatic and aims to give agencies a chance to address claims)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (burden-shifting framework for discrimination claims without direct evidence)
- National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (distinguishes discrete acts from hostile work environment for timeliness)
- Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013) (retaliation claims require but-for causation)
- Park v. Howard Univ., 71 F.3d 904 (D.C. Cir. 1995) (EEOC charge must put agency on notice of hostile work environment; mere disparate-treatment allegations insufficient)
- Brady v. Office of Sergeant at Arms, 520 F.3d 490 (D.C. Cir. 2008) (once employer offers legitimate reason, focus is whether plaintiff produced evidence of pretext)