Case 1:17-cv-02103-TNM Document 41 Filed 01/11/21 Page 1 of 25
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`LORI PANARELLO,
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`Plaintiff,
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`Case No. 1:17-cv-02103 (TNM)
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`v.
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`DAVID L. BERNHARDT, in his official
`capacity as Secretary, United States
`Department of the Interior,
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`Defendant.
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`MEMORANDUM OPINION
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`Lori Panarello filed this employment discrimination-related lawsuit while another case
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`she brought against the same defendant alleging very similar claims was still pending in this
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`courthouse. That action was ultimately unsuccessful. Her case here meets the same fate.
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`Panarello challenges her termination as a United States Park Police supervisor following
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`her guilty plea for driving while intoxicated (“DWI”), her third disciplinary infraction overall
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`and second involving alcohol. She sues the Secretary of the Department of Interior, who has
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`ultimate authority over the Park Police, under Title VII. She claims that the Park Police
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`discriminated against her on the basis of sex and sexual orientation and removed her in
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`retaliation for her other Title VII lawsuit, as well as another Title VII action she filed more than
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`fifteen years ago.
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`The Secretary moves for summary judgment, citing the DWI as the reason for Panarello’s
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`removal. Panarello pursues several paths to show that her criminal conviction was not the actual
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`reason for her removal. But each path leads to the same dead end. The evidence, even when
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`viewed in the light most favorable to her, would not allow a reasonable jury to find that the Park
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`Case 1:17-cv-02103-TNM Document 41 Filed 01/11/21 Page 2 of 25
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`Police intentionally discriminated or retaliated against her. The Court will therefore grant the
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`Secretary’s motion.
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`I.
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`Panarello is a homosexual female who worked for the Park Police, achieving the rank of
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`lieutenant. See Compl. ¶¶ 9–10, ECF No. 1; Def.’s Mem. in Supp. Mot. Summ. J. (“Def.’s
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`Mem.”) Ex. A (“Panarello Dep. Tr.”) 13:4–5, ECF No. 33-4.1
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`The current case centers on Panarello’s 2015 guilty plea to a DWI. See Pl.’s Statement of
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`Genuine Issues of Fact (“Pl.’s Statement”) ¶ 31, ECF No. 35-8 (Redacted); Panarello Dep. Tr.
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`47:11–13; see also Pl.’s Resp. & Mem. in Opp’n Summ. J. (“Pl.’s Resp.”) Ex. 3 (“Panarello
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`Aff.”) ¶ 81, ECF No. 35-3 (Redacted). She had been driving back from a funeral when a deputy
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`sheriff pulled her over near her home in Virginia. See Panarello Dep. Tr. 18:17–19:7; Pl.’s
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`Statement ¶ 13. The deputy determined that Panarello had a blood alcohol content of .13.
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`Panarello Dep. Tr. 46:8–16. During the stop, the deputy sheriff discovered that Panarello was a
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`police officer. Id. 43:13–17. After Panarello appeared before a magistrate, the deputy allowed a
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`Park Police supervisor to drive Panarello home, rather than leaving her in the county jail to sober
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`up. Id. 54–55; Pl.’s Statement ¶¶ 28–29.
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`1 Panarello failed to “submit a statement enumerating all material facts which [she] contends are
`genuinely disputed and thus require trial,” as this Court requires. Standing Order ¶ 14(B)(i),
`ECF No. 14. She instead objected to many of the Secretary’s proposed facts as “misleading,”
`“incomplete,” or both. Pl.’s Statement of Genuine Issues of Fact, ECF No. 35-8 (Redacted).
`Since the Court must construe the evidence in the light most favorable to Panarello, it relies on
`the evidence that she provides whenever possible, and only resolves Panarello’s objections to the
`Secretary’s proposed facts as necessary.
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`Unless a deposition transcript, page citations refer to the pagination generated by the Court’s
`CM/ECF system. Page citations for deposition transcripts refer to the pagination of the
`transcript.
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`2
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`Case 1:17-cv-02103-TNM Document 41 Filed 01/11/21 Page 3 of 25
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`The DWI was not Panarello’s first infraction. In 1996, Panarello was stopped for
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`speeding and “there was alcohol involved.” Panarello Dep. Tr. 63:22–64:2; see also Panarello
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`Aff. ¶ 29.2 As in the 2015 stop, Panarello’s blood alcohol content registered at .13, well over the
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`legal limit. See Panarello Aff. ¶¶ 30–38. But the officer learned Panarello was a law
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`enforcement officer, and Panarello was not charged with a DWI, nor did she receive a ticket. See
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`id. ¶ 39; Panarello Dep. Tr. 64:19–21, 171:4–6. Instead, he called a tow truck because he did not
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`want Panarello driving her car home. Panarello Aff. ¶¶ 40–41. Before the tow truck arrived,
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`however, Panarello let a friend drive her car home. Id. ¶¶ 42–43. Learning that Panarello’s car
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`was not there when the tow truck arrived, the police officer notified the Park Police of the
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`incident. Id. ¶¶ 44, 47. The Park Police later suspended Panarello for three days, citing
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`“impairing the efficiency of the force.” Id. ¶¶ 48, 50–51; Panarello Dep. Tr. 170:19–21, 171:12–
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`17.
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`Panarello was also involved in an incident near the Jefferson Memorial, which another
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`court in this District already recounted:
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`[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.
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`2 Panarello filed certain information and exhibits under seal. In reaching its decision, the Court
`relies on public information whenever possible. Any information cited from a sealed exhibit
`either need not be sealed or is generalized to maintain confidentiality.
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`3
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`Case 1:17-cv-02103-TNM Document 41 Filed 01/11/21 Page 4 of 25
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`Panarello v. Zinke, 254 F. Supp. 3d 85, 91 (D.D.C. 2017), aff’d sub nom. Panarello v.
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`Bernhardt, 788 F. App’x 18 (D.C. Cir. 2019) (per curiam) (cleaned up). Panarello received a
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`fourteen-day suspension for this infraction. See Pl.’s Statement ¶ 73.
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`After Panarello’s 2015 DWI, the Park Police investigated and ultimately proposed
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`removing her from the force. See id. ¶ 33; Panarello Dep. Tr. 17:19–21. It sent Panarello a
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`“Notice of Proposed Removal” (“Removal Notice”), signed by Captain Keith Rogers. See Def.’s
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`Mem. Ex. H, ECF No. 33-11.3 The Removal Notice outlined the Park Police’s considerations
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`for removing Panarello, including the nature and seriousness of the offense and Panarello’s
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`supervisory position. See id. at 3–5. The Park Police also considered Panarello’s two prior
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`infractions because it used a progressive discipline system—more violations lead to more severe
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`penalties. Id. at 4; see Def.’s Mem. Ex. S (“Table of Penalties”) (reflecting increasing penalties
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`after first, second, and third offense), ECF No. 33-22; id. Ex. D (“Smith Dep. Tr.”) 65:18–66:4,
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`ECF No. 33-7 (describing decision based on progressive discipline). Panarello addressed her
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`proposed removal through an oral and written response. See Def.’s Mem. Ex. K, ECF No. 33-
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`14; Panarello Aff. ¶ 87.
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` The Park Police sustained the recommendation to remove Panarello in a “Decision on
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`Proposed Removal” (“Removal Decision”), signed by Deputy Chief Scott Fear. See Pl.’s
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`Statement ¶ 51; Def.’s Mem. Ex. L, ECF No. 33-15. The Removal Decision identified the same
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`3 Panarello moves to strike as hearsay various documents that the Park Police submits as
`evidence. See, e.g., Pl.’s Statement ¶ 14 (seeking to strike DWI arrest report); id. ¶ 37 (seeking
`to strike Removal Notice); id. ¶ 49 (seeking to strike Removal Decision). “A motion to strike is
`considered an exceptional remedy and is generally disfavored, and the proponent of such a
`motion must shoulder a formidable burden.” United States ex rel. K&R Ltd. P’ship v. Mass.
`Hous. Fin. Agency, 456 F. Supp. 2d 46, 53 (D.D.C. 2006) (cleaned up). The Court will resolve
`the requests to strike only for those documents on which it relies to reach a decision. Accord
`Tsehaye v. William C. Smith & Co., 402 F. Supp. 2d 185, 195 n.3 (D.D.C. 2005) (declining to
`strike evidence not necessary to the court’s disposition of the case).
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`4
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`Case 1:17-cv-02103-TNM Document 41 Filed 01/11/21 Page 5 of 25
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`considerations as the Removal Notice for removing Panarello, such as the seriousness of a DWI,
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`Panarello’s position as a lieutenant, and that the DWI was Panarello’s third infraction. Id. at 3–5.
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`Fear noted that he was “unaware of any other employees who have been disciplined for the same
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`or similar offenses.” Id. at 4. But he continued that, in any event, Panarello’s “misconduct [was]
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`serious enough to warrant removal, irrespective of similar cases.” Id.
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`Before the removal became effective, Panarello submitted her retirement paperwork.
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`Pl.’s Statement ¶ 63. A member of the Park Police’s human resources staff also offered
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`Panarello a “last chance agreement.” See Pl.’s Resp. Ex. 5 (“Payton-Williams Dep. Tr.”) 10, 85–
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`87, ECF No. 36-9 (Sealed). A last chance agreement holds a termination in abeyance for a
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`certain period until the employee complies with the conditions of the agreement. See id. 85:8–
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`20. Under the proposed agreement, Panarello had to drop an earlier equal employment
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`opportunity (“EEO”) complaint she had filed against the Park Police. Id. 87:2–8. Panarello
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`declined this offer. See Pl.’s Statement ¶ 62. She then retired and receives annuity benefits. See
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`Panarello Dep. Tr. 158:12–16.
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`*
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`*
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`*
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`Panarello has twice before sued the Secretary for alleged Title VII violations. In 1998,
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`Panarello and other female officers claimed that a sergeant “subjected them to gender
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`discrimination and sexual harassment on a continuing basis,” “imposed unwarranted discipline,”
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`“made unsubstantiated complaints against them,” and threatened retaliation for their complaints
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`about his behavior. See Compl. at 7, 9, Sabate v. Babbitt, No. 98-cv-929 (D.D.C. Apr. 14, 1998)
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`(“Sabate lawsuit”), ECF No. 1. The Park Police settled and agreed to promote Panarello to
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`sergeant, among other things. Stipulation, Sabate lawsuit, ECF No. 36.
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`5
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`Case 1:17-cv-02103-TNM Document 41 Filed 01/11/21 Page 6 of 25
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`More than a decade later, Panarello sued the Secretary again. See Panarello v. Zinke, 254
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`F. Supp. 3d 85 (D.D.C. 2017) (“Panarello I”). There, Panarello alleged several acts of
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`discrimination by the Park Police, including the failure to promote her to captain and assign her
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`to command positions, as well as her suspension for the Jefferson Memorial incident. Id. at 90–
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`93. She also claimed that a Park Police lieutenant retaliated against her for the Sabate lawsuit.
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`Id. at 90. Panarello relied in part on her proposed removal from the Park Police to support her
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`claims in Panarello I. Id. at 92–93.
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`Panarello I did not survive summary judgment. As relevant here, Judge Moss
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`determined that Panarello’s evidence—including her proposed removal—was “too thin.” Id. at
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`106.4 The lieutenant at the center of Panarello’s retaliation claim had retired before her
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`nonselection to captain-level and command positions, as well as her proposed removal. Id. at
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`106–08. Addressing Panarello’s proposed removal, Judge Moss explained that, “[o]nce again,
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`Panarello points to no evidence that sex discrimination motivated the Park Police’s action,” and
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`that she “fails to offer any evidence that the proposed termination was part of a pattern of
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`retaliation against her.” Id. at 107. Judge Moss found “no basis in the record from which a
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`reasonable jury could find that the proposed termination was part of a pattern of retaliation that
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`would not have occurred but for Panarello’s EEO activity between 1993 and 2000.” Id.
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`The D.C. Circuit affirmed. See Panarello v. Bernhardt, 788 F. App’x 18 (D.C Cir. 2019)
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`(per curiam) (“Panarello II”). It held that “no reasonable jury could find that the Park Police
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`subjected Panarello to disparate discipline in retaliation for her EEO activity.” Id. at 19. And
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`that Panarello “present[ed] no evidence sufficient to create a triable factual dispute over the
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`4 The court also found that Panarello failed to exhaust her administrative remedies as to certain
`claims, including her allegations of a hostile work environment. See Panarello I, 254 F. Supp.
`3d at 95–103.
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`6
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`agency’s non-discriminatory reason” in imposing the fourteen-day suspension “for failing to
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`prevent, and even participating in, admittedly juvenile and unprofessional acts in the presence of
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`members of the public.” Id. “Panarello’s allegations rest[ed] on a theory of retaliation without
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`evidentiary support.” Id. at 20.
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`*
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`*
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`*
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`Shortly after Panarello I and while Panarello II was still pending, Panarello sued the
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`Secretary for sex and sexual orientation discrimination and retaliation under Title VII, 42 U.S.C.
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`§ 2000e et seq.5 See Compl. ¶¶ 51–54. She claims her removal for the DWI was harsher than
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`the discipline her male, heterosexual colleagues received for alcohol-related offenses. Id. ¶¶ 42–
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`45. And that the removal was retaliation for Panarello I and the Sabate lawsuit. Id. ¶¶ 27–31.
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`Panarello also alleges that her treatment “constituted a discriminatory, hostile work environment
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`for [her] in violation of her rights under federal law.” Id. ¶ 18.
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`The Secretary moves for summary judgment. His main contention is that the DWI was
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`the reason for Panarello’s removal and that Panarello cannot identify sufficient facts to show
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`otherwise. See Def.’s Mem. at 23–40. This motion is ripe for disposition.6 Pl.’s Resp.; Def.’s
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`Reply in Supp. Mot. for Summ. J. (“Def.’s Reply”), ECF No. 40.
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`5 Although Panarello captions her discrimination claim as “sex-based” in her complaint, she also
`refers to her sexual orientation and alleges disparate treatment from her “heterosexual male
`colleagues.” Compl. ¶¶ 9, 42, 51–52. The Court thus construes Panarello to be pursuing
`discrimination based on sex and sexual orientation. See Bostock v. Clayton Cnty., 140 S. Ct.
`1731 (2020).
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` 6
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` The Court has jurisdiction under Title VII’s jurisdictional provision, 42 U.S.C. § 2000e–
`5(f)(3), and the federal question statute, 28 U.S.C. § 1331. See Arbaugh v. Y & H Corp., 546
`U.S. 500, 503 (2006).
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`7
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`Case 1:17-cv-02103-TNM Document 41 Filed 01/11/21 Page 8 of 25
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`II.
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`A party seeking summary judgment must show that “there is no genuine dispute as to any
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`material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A
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`“material” fact is one that could alter the outcome of the suit based on the substantive law that
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`governs. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute over that
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`material fact is “genuine” “if the evidence is such that a reasonable jury could return a verdict for
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`the nonmoving party.” Id.
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`The moving party “always bears the initial responsibility of informing the district court of
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`the basis for its motion, and identifying those portions of the pleadings, depositions, answers to
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`interrogatories, and admissions on file, together with the affidavits, if any, which it believes
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`demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
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`317, 323 (1986) (cleaned up). The non-moving party then must set forth “specific facts showing
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`that there is a genuine issue for trial.” Anderson, 477 U.S. at 250 (cleaned up). “The mere
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`existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there
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`must be evidence on which the jury could reasonably find for the plaintiff.” Id. at 252.
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`In construing a motion for summary judgment, the court must “view the facts and draw
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`reasonable inferences in the light most favorable to the party opposing the summary judgment
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`motion.” Scott v. Harris, 550 U.S. 372, 378 (2007) (cleaned up).
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`III.
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`Title VII contains anti-discrimination and anti-retaliation provisions. As relevant here,
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`the statute bars an employer from terminating or discriminating against an individual on the basis
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`of sex, see 42 U.S.C. § 2000e–2(a)(1), or from discriminating against an employee “because he
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`8
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`Case 1:17-cv-02103-TNM Document 41 Filed 01/11/21 Page 9 of 25
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`has opposed any practice made an unlawful employment practice by this subchapter, or because
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`he has made a charge . . . under this subchapter,” id. § 2000e–3(a).
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`“Discrimination and retaliation claims are subject to the familiar, burden-shifting
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`framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Walker v. Johnson,
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`798 F.3d 1085, 1091 (D.C. Cir. 2015). Under this framework, a plaintiff first must establish a
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`prima facie case. For discrimination claims, the plaintiff must show: “she is part of a protected
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`class under Title VII, she suffered a cognizable adverse employment action, and the action gives
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`rise to an inference of discrimination.” Id. A plaintiff pursuing a retaliation claim similarly must
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`show: “she engaged in activity protected by Title VII, the employer took adverse action against
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`her, and the employer took that action because of the employee’s protected conduct.” Id. at
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`1091–92. The burden then shifts to the employer to identify a “legitimate, non-discriminatory or
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`non-retaliatory reason on which it relied in taking the complained-of action.” Id. at 1092.
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`Once the employer provides such a reason, the “court need not—and should not—decide
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`whether the plaintiff actually made out a prima facie case under McDonnell Douglas.” Brady v.
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`Off. of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (emphasis in original). Instead,
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`“the central question at summary judgment becomes whether the employee produced sufficient
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`evidence for a reasonable jury to find that the employer’s asserted nondiscriminatory or non-
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`retaliatory reason was not the actual reason and that the employer intentionally discriminated or
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`retaliated against the employee.” Walker, 798 F.3d at 1092 (cleaned up).
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`Courts do not sit as a “super-personnel department.” Barbour v. Browner, 181 F.3d
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`1342, 1346 (D.C. Cir. 1999) (cleaned up). They cannot “second-guess an employer’s personnel
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`decision absent demonstrably discriminatory motive.” Fischbach v. D.C. Dep’t of Corrs., 86
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`F.3d 1180, 1183 (D.C.Cir.1996) (cleaned up). “The ultimate burden of persuading the trier of
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`Case 1:17-cv-02103-TNM Document 41 Filed 01/11/21 Page 10 of 25
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`fact that the defendant intentionally discriminated against the plaintiff remains at all times with
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`the plaintiff.” Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981).
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`A.
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`The Park Police identifies the DWI as the reason for Panarello’s removal. See Def.’s
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`Mem. at 23–25. It considered the DWI to be a “very serious” offense that went “to the heart of
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`[Panarello’s] responsibility as a [Park Police] officer and manager.” Removal Notice at 3; see
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`Removal Decision at 3 (describing the DWI as “extremely serious”).7 To the Park Police, the
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`DWI had a “direct relation to [Panarello’s] duties” because she was “entrusted with the
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`enforcement of laws prohibiting drinking and driving.” Removal Decision at 3.
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`Panarello’s role as a supervisor was also a “highly aggravating factor.” Removal Notice
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`at 3. The Park Police noted that Panarello was “held to a higher standard of conduct” as a
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`lieutenant and was “responsible for setting an example for subordinate officers to follow.” Id.;
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`see also id. (explaining that Panarello was “required to make significant decisions and represent
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`the Chief of Police as the highest ranking official during [her] work shift”). The Park Police
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`7 Panarello moves to strike the statements in the Removal Notice and Removal Decision as
`inadmissible hearsay. See Pl.’s Statement ¶¶ 37, 49. The Court denies that request. “In
`employment discrimination cases, internal documents relied upon by the employer in making an
`employment decision are not hearsay . . . . Rather such documents are relevant and admissible
`[as business records] because they help explain (or may help explain) the employer’s conduct.”
`Wolff v. Brown, 128 F.3d 682, 685 (8th Cir. 1997). In McKenna v. Weinberger, the D.C. Circuit
`found that the testimony of plaintiff’s supervisors discussing co-workers’ complaints about the
`plaintiff was not hearsay because “[s]uch testimony was offered to illuminate their motives and
`actions as supervisors, not to prove that the co-workers had valid complaints.” 729 F.2d 783,
`792 (D.C. Cir. 1984); cf. Desmond v. Mukasey, 530 F.3d 944, 965 (D.C. Cir. 2008) (affirming
`decision to admit report “chronicling” plaintiff’s “alleged failures, infractions, and indiscretions”
`in Title VII retaliation case because the report shows “what information [the charging official]
`had before him when he made his initial decision regarding [plaintiff]”). Here, the Removal
`Decision and Removal Notice are business records that help illuminate the Park Police’s
`proffered reasons for removing Panarello. They are thus admissible evidence to consider at the
`summary judgment stage.
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`10
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`Case 1:17-cv-02103-TNM Document 41 Filed 01/11/21 Page 11 of 25
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`highlighted the same in the Removal Decision. It stated that as a “managerial police officer,”
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`Panarello was “responsible for providing guidance, advice, and assistance to subordinate officers
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`when they encounter situations similar to [her] instance of misconduct.” Removal Decision at 3.
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`The Park Police also cited Panarello’s two prior infractions—the three-day suspension
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`“for an alcohol-related charge of Conduct” and the fourteen-day suspension for the Jefferson
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`Memorial incident.8 Removal Notice at 4; see also Removal Decision at 3. There was a
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`“significant concern” that the DWI was not Panarello’s first instance of “alcohol-related
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`misconduct.” Removal Decision at 3. As Deputy Chief Fear put it to Panarello, “[b]y involving
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`yourself in this type of behavior again, I do not believe that you warrant another opportunity to
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`continue in your career as a manager police officer.” Id.
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`Finally, the Park Police noted the DWI’s negative effect on the department’s reputation.
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`See Removal Decision at 4. The arresting deputy knew Panarello worked for the Park Police and
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`contacted a Park Police manager to pick Panarello up that evening. See Removal Notice at 4;
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`Removal Decision at 4.
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`Fear was “unaware of any other employees who ha[d] been disciplined for the same or
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`similar offenses.” Removal Decision at 4. But he stated that Panarello’s “misconduct [was]
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`serious enough to warrant removal, irrespective of similar cases.” Id.
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`8 Panarello contends that her three-day suspension “had a connection to alcohol, but she was in
`no way disciplined for an alcohol issue.” Pl.’s Statement at 28; see also Panarello Aff. ¶ 29. It is
`unclear how this dispute helps Panarello here. Even if she is correct, the undisputed fact remains
`that there was “alcohol involved” in the three-day suspension. Panarello Dep. Tr. 63:22–64:2.
`And that the Park Police cited this “alcohol-related” infraction as a basis for its removal decision.
`Removal Notice at 4; see also Removal Decision at 3. If Panarello challenges the Park Police’s
`characterization of the discipline, that dispute is one of semantics, not fact. Cf. Fischbach, 86
`F.3d at 1183 (“Once the employer has articulated a non-discriminatory explanation for its action
`. . . the issue is not the correctness or desirability of [the] reasons offered . . . [but] whether the
`employer honestly believes in the reasons it offers.” (cleaned up)).
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`11
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`Case 1:17-cv-02103-TNM Document 41 Filed 01/11/21 Page 12 of 25
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`Thus, the seriousness of a DWI, Panarello’s supervisory responsibilities, her two prior
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`infractions—including another involving alcohol, and the public nature of the DWI warranted
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`Panarello’s removal. The Park Police has identified a legitimate, nondiscriminatory, and non-
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`retaliatory reason for removing Panarello.
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`B.
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`The burden now shifts to Panarello. She must “produce[] sufficient evidence for a
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`reasonable jury to find” that the DWI was not the “actual reason” for her removal. Brady, 520
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`F.3d at 494. To that end, Panarello can cite “better treatment of similarly situated employees,”
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`“inconsistent or dishonest explanations,” a “deviation from established procedures or criteria,” a
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`“pattern of poor treatment of other employees in the same protected group,” or “other relevant
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`evidence that a jury could reasonably conclude evinces an illicit motive.” Wheeler v.
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`Georgetown Univ. Hosp., 812 F.3d 1109, 1115 (D.C. Cir. 2016) (cleaned up).
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`Panarello draws on a combination of these attacks. But it is not enough. The record,
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`even when viewed in the light most favorable to her, fails to show that the Park Police
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`intentionally discriminated or retaliated against Panarello.
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`1.
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`“One way to discredit an employer’s justification is to show that similarly situated
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`employees . . . received more favorable treatment.” Royall v. Nat’l Ass’n of Letter Carriers,
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`AFL-CIO, 548 F.3d 137, 145 (D.C. Cir. 2008). Panarello tries that path here. She contends that
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`the Park Police treated her differently than male colleagues involved in alcohol-related offenses,
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`including DWIs. See Pl.’s Resp. at 30–32 (“The record is replete with evidence of other male
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`supervisors involved in DUIs, who were not involved with EEO activity, who received little, if
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`any discipline.”). The Court is unconvinced.
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`12
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`Case 1:17-cv-02103-TNM Document 41 Filed 01/11/21 Page 13 of 25
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` To rely on comparator evidence, Panarello must show that “she and the alleged
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`similarly-situated employee were charged with offenses of comparable seriousness, and that all
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`of the relevant aspects of [her] employment situation were nearly identical to those of the other
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`employee.”9 Wheeler, 812 F.3d at 1115–16 (cleaned up). “Factors that bear on whether
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`someone is an appropriate comparator include the similarity of the plaintiff’s and the putative
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`comparator’s jobs and job duties, whether they were disciplined by the same supervisor, and, in
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`cases involving discipline, the similarity of their offenses.” Burley v. Nat’l Passenger Rail
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`Corp., 801 F.3d 290, 301 (D.C. Cir. 2015).
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`Panarello identifies two Park Police officers guilty of DWIs who were not terminated.
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`One officer received a 30-day suspension for the DWI, which followed a suspension two years
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`earlier for being “drunk, in a bar, with his service weapon.” See Pl.’s Resp. at 32; id. Ex. 4
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`(“Disciplinary Records”) at 16–21, 58–62, ECF No. 36-8 (Sealed). Panarello claims another
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`officer received a two-day suspension for a DWI.10 See Pl.’s Statement at 20; Disciplinary
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`Records at 11–15.
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`Panarello also cites two other Park Police officers with DWIs, including one with two
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`DWIs in three years. See Pl.’s Statement at 19–22; Disciplinary Records at 7–10, 36–47, 56–
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`9 The Court thus rejects as insufficient broad assertions that Panarello was treated differently
`than other Park Police officers. See Pl.’s Resp. Ex. 2 ¶ 30, ECF No. 35-2 (Redacted) (“I am
`familiar with many, many alcohol-related incidents involving both patrol officers and
`supervisors.”); see also id. ¶¶ 39–40.
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`10 Panarello offers no cite in the record to support the officer’s two-day suspension. Even so, the
`Court assumes the officer did in fact receive this discipline.
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`13
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`Case 1:17-cv-02103-TNM Document 41 Filed 01/11/21 Page 14 of 25
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`57.11 It is unclear what discipline (if any) the Park Police imposed after the officer’s second
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`DWI and the other officer’s only DWI.12 See Pl.’s Statement at 20, 22.
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`Even if all four Park Police officers were not removed for their DWIs, these comparators
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`are not “nearly identical” to Panarello for three reasons.
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`First, Panarello does not establish that any of these officers has the same disciplinary
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`record as her. Accord Gulley v. District of Columbia, 474 F. Supp. 3d 154, 167 (D.D.C. 2020)
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`(“None of his comparators has a disciplinary record as extensive as his.”). She identifies no
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`comparator that had more than one prior infraction at the time of the DWI. See Pl.’s Resp. at 32;
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`Pl.’s Statement at 21–22. Panarello did. See Panarello Aff. ¶ 50; Panarello, 254 F. Supp. 3d at
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`91–92. This distinction is significant. The Park Police uses a progressive discipline system:
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`more prior infractions lead to more severe penalties. See Table of Penalties (reflecting
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`increasing penalties after first, second, and third offense); Smith Dep. Tr. 65:18–66:4 (describing
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`decision based on progressive discipline). Indeed, the Park Police cited Panarello’s two other
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`violations to justify her removal. See Removal Notice at 4; Removal Decision at 3.
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`Second, none of these officers held supervisory roles at the time of their DWIs. See, e.g.,
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`Disciplinary Records at 7–15, 16–21, 56–57 (listing individual as an “officer,” not a sergeant,
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`lieutenant, major, or captain); id. at 43, 59 (“You are a permanent full-time employee and have
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`no supervisory role.”). Panarello did. And the Park Police cited Panarello’s managerial
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`11 Panarello refers to an “Employee 6” in her opposition, Pl.’s Resp. at 31, but no Employee 6 is
`referenced elsewhere. The Court construes Employee 6 to be the “Officer 3” listed in
`Panarello’s response to the Secretary’s proposed facts. See Pl.’s Statement of Facts at 21–22.
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`12 Panarello claims that the Park Police represented that the officer with two DWIs was
`terminated after the second one, but that she could not find support for this fact in its disclosures.
`Pl.’s Statement at 22. The Court construes this ambiguity in favor of Panarello and assumes the
`officer was not terminated after the second DWI.
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`14
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`Case 1:17-cv-02103-TNM Document 41 Filed 01/11/21 Page 15 of 25
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`responsibilities as a basis for its removal decision. Captain Rogers explained that Panarello was
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`“held to a higher standard of conduct” as a supervisor and was “responsible for setting an
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`example for subordinate officers to follow.” Removal Notice at 3. Deputy Chief Fear noted
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`that, as a “managerial police officer,” Panarello was “responsible for providing guidance, advice,
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`and assistance to subordinate officers when they encounter situations similar to [her] instance of
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`misconduct.” Removal Decision at 3; see also Pl.’s Resp. Ex. 1 (“Rogers Dep. Tr.”) 31:3–5,
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`ECF No. 36-5 (Sealed) (“An officer would be treated different from a lieutenant because the
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`expectations are different.”).
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`Third, “it is far from clear that these comparators were disciplined by the same
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`supervisor” as Panarello. Gulley, 474 F. Supp. 3d at 167 (cleaned up). Captain Rogers helped
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`draft the Removal Notice, and Deputy Chief Fear signed the Removal Decision. See Rogers
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`Dep. Tr. 26:7–9; Pl.’s Statement ¶ 51. Panarello has not shown that either participated in the
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`discipline for these other DWIs. See Disciplinary Records. Indeed, at least some of these
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`comparators were