[00:00:05] Speaker 04:
Good morning, Ms.

[00:00:26] Speaker 04:
Bertrand.

[00:00:26] Speaker 04:
Welcome to Washington.

[00:00:27] Speaker 03:
Thank you, ma'am.

[00:00:29] Speaker 03:
Thank you.

[00:00:34] Speaker 03:
This case is about a campaign of retaliation against an employee who successfully brought an EEO lawsuit.

[00:00:47] Speaker 03:
It spans five years.

[00:00:48] Speaker 03:
It's insidious retaliation and it's serious retaliation.

[00:00:56] Speaker 03:
The agency makes a lot of

[00:01:03] Speaker 03:
its process in explaining all of the acts it took against Ms.

[00:01:11] Speaker 03:
Panarello to include the non-selection for promotions, the taking away of awards she'd been named for, refusing to send her to command assignments and to additional training.

[00:01:26] Speaker 03:
And they focus a good deal on what they assert are objective factors, but really,

[00:01:34] Speaker 03:
The one problem the agency has throughout its decision making is the subjective nature of these factors.

[00:01:42] Speaker 03:
Particularly when it came to the testing center, only 50% of the weight was given to the standardized testing that they were using.

[00:01:54] Speaker 03:
The other half was subjective.

[00:01:56] Speaker 03:
The rating officials knew who they were grading.

[00:02:02] Speaker 03:
And they have offered nothing in the record to explain how the subjective portion of these decisions was balanced.

[00:02:15] Speaker 04:
Ms.

[00:02:15] Speaker 04:
Bernhard, you emphasize in your brief, is it the KSA?

[00:02:19] Speaker 04:
Is that the subjective portion?

[00:02:21] Speaker 03:
I believe so, yes.

[00:02:23] Speaker 04:
Did you request that in discovery, any record of how the KSA was evaluated?

[00:02:29] Speaker 04:
I didn't see that.

[00:02:30] Speaker 03:
I don't believe it was turned over in discovery.

[00:02:32] Speaker 03:
It was discussed in the depositions of the witnesses.

[00:02:36] Speaker 04:
I saw that, but in terms of what it actually said, we don't know, do we?

[00:02:41] Speaker 04:
No.

[00:02:42] Speaker 04:
You didn't put that in the record, did you?

[00:02:45] Speaker 03:
No, I didn't, and the government didn't either.

[00:02:47] Speaker 04:
It's your burden of proof.

[00:02:49] Speaker 03:
On the second prong of McDonnell Douglas, it's the government's

[00:02:57] Speaker 03:
Respectfully, Your Honor, I believe it's the government's burden to show that what they did was.

[00:03:01] Speaker 04:
Well, under McDonald Douglas, as our court has interpreted it under Brady, you come forward with a prima facie case.

[00:03:10] Speaker 04:
They put forward their nondiscriminatory reasons.

[00:03:14] Speaker 04:
And then it's your burden to raise a jury issue of discrimination.

[00:03:18] Speaker 04:
And so they put forward what they say are legitimate nondiscriminatory bases for the various decisions

[00:03:27] Speaker 04:
you challenge, and then the question is, it's your burden to show in the end that the reasons were protectual and the real reason was discrimination.

[00:03:35] Speaker 04:
And it would seem to me that if a major part of your case is that that subjective evaluation was somehow tainted by discrimination, you would have sought that.

[00:03:45] Speaker 04:
And if they didn't provide it, you would have moved to compel.

[00:03:48] Speaker 04:
But I gather that's not the case.

[00:03:50] Speaker 03:
Your Honor, it is not.

[00:03:52] Speaker 03:
information surrounding the subjective portion is not in the record, that is correct.

[00:03:58] Speaker 03:
And the government's representations regarding that testing system also is limited even as to their prove-up.

[00:04:11] Speaker 03:
I don't believe that they showed in any way

[00:04:18] Speaker 03:
what went into the subjective portion.

[00:04:21] Speaker 03:
They didn't show what questions were asked, how candidates were scored, and particularly how Ms.

[00:04:28] Speaker 03:
Panarello scored in the subjective portion versus the other candidates.

[00:04:33] Speaker 03:
That also goes to the subjective nature of the suspension discipline that is discussed in that it's quite subjective.

[00:04:49] Speaker 03:
come back and say, well, we had all these reasons to do it, but what they cannot say is why this discipline decision is so different

[00:05:00] Speaker 03:
from the treatment of other employees who have been involved in far more serious matters.

[00:05:05] Speaker 03:
That record is in the trial court docket at docket number 19-4.

[00:05:15] Speaker 03:
It's an exhibit that includes Ms.

[00:05:19] Speaker 03:
Panarello's listing of all of the employees that she knows have been involved in more serious

[00:05:25] Speaker 03:
or comparable matters that were not proposed.

[00:05:28] Speaker 03:
And then we have O'Toole testifying that this is the only employee O'Toole has ever recommended for demotion, despite all these other things that happen in a law enforcement agency.

[00:05:42] Speaker 03:
It's the only one.

[00:05:43] Speaker 02:
Ms.

[00:05:44] Speaker 02:
Bertrand, what's your best argument that you exhausted your claim about the January suspension?

[00:05:54] Speaker 02:
Because it doesn't seem to be

[00:05:56] Speaker 02:
part of the lengthy narrative that's in Ms.

[00:05:58] Speaker 02:
Panarello's complaint.

[00:06:03] Speaker 03:
The best argument is that she was talking to the EEO investigator about that suspension right when it happens.

[00:06:13] Speaker 03:
She meets with the agency counselor or talks to the agency counselor on January 22,

[00:06:19] Speaker 03:
At that time, it is discussed that she's been proposed for demotion.

[00:06:24] Speaker 03:
I'm just watching my time here.

[00:06:26] Speaker 03:
And the agency within days says, we're going to suspend you.

[00:06:33] Speaker 03:
We're not gonna allow you to stay that pending mediation, even though she grieved it.

[00:06:39] Speaker 03:
And then, if the purpose of exhaustion rules is to allow the agency an opportunity to investigate and resolve

[00:06:49] Speaker 03:
employee claims, we know the agency investigated it.

[00:06:54] Speaker 03:
And we know that starting from her report... How do we know that?

[00:07:00] Speaker 03:
The agency has in its report discussions of the discipline and goes on to state in the reports that one of the remedies Ms.

[00:07:14] Speaker 03:
Pantarello was seeking

[00:07:16] Speaker 03:
was the reversal of that suspension.

[00:07:20] Speaker 03:
So while the agency stated in its letter, we're only going to accept these two non-selection claims, it went on to talk with supervisors to find out more about what happened in that discipline and know that Ms.

[00:07:35] Speaker 03:
Panarello's, one of her listed remedies was reverse the suspension.

[00:07:39] Speaker 03:
It was unfair.

[00:07:41] Speaker 03:
And it came after EEO process had started.

[00:07:46] Speaker 03:
Panarello was not required to start a whole new process when this additional retaliation occurs after the EEO, after the agency has been on notice.

[00:08:00] Speaker 01:
But she could have amended the formal complaint that she filed right after the informal process.

[00:08:10] Speaker 03:
The agency did not offer her the opportunity to amend.

[00:08:14] Speaker 03:
She did repeatedly state in response to the agency's questions.

[00:08:17] Speaker 03:
They asked for several follow-up statements from her.

[00:08:22] Speaker 03:
She talks about the disparate treatment that she received in that suspension and asked that it be reversed.

[00:08:28] Speaker 03:
So the agency knew.

[00:08:29] Speaker 03:
The agency had the opportunity to do whatever it wanted to do with that in terms of... Does she ask for that in her complaint, in her formal complaint?

[00:08:39] Speaker 03:
In the formal complaint, I just want to make sure we're talking about the same thing.

[00:08:43] Speaker 03:
I believe she does ask for a reversal of the suspension in that mail.

[00:08:46] Speaker 02:
Yes.

[00:08:47] Speaker 02:
But does she mention the specific facts about the claim?

[00:08:57] Speaker 03:
I just don't want to misspeak, so I'm being careful, Your Honor.

[00:09:01] Speaker 03:
I believe that throughout the process, she does.

[00:09:05] Speaker 03:
I don't want to state anything that I absolutely am not sure of.

[00:09:09] Speaker 03:
I can't remember the exact language in that initial complaint.

[00:09:13] Speaker 03:
But I know she tells the investigator from the outset, I was proposed for this demotion.

[00:09:20] Speaker 03:
That is for certain because that's related to them taking away her law enforcement powers and that is from the outset of even the informal process.

[00:09:31] Speaker 04:
There's no dispute she was proposed for demotion and there's no dispute that it was converted into a two week suspension and then the question is whether the reason for that was retaliation or discrimination or on the other hand an appropriate reaction to the top person in charge

[00:09:49] Speaker 04:
having done what was alleged to have happened at the Jefferson Memorial.

[00:09:53] Speaker 04:
So the disputes are not about whether it occurred.

[00:09:55] Speaker 04:
The disputes are about the reasoning behind.

[00:09:58] Speaker 04:
And your best evidence for retaliation being the reason in that case is what?

[00:10:05] Speaker 03:
A, the timing of it coming days after the initiation.

[00:10:10] Speaker 03:
And also the history.

[00:10:12] Speaker 03:
And Stover making the statement to one of her employees that was also involved.

[00:10:16] Speaker 04:
But the timing is days after she

[00:10:19] Speaker 04:
files her complaint, the proposed discipline is reduced.

[00:10:24] Speaker 04:
We'll give you some time for review.

[00:10:26] Speaker 04:
The proposed discipline is actually reduced in severity.

[00:10:29] Speaker 04:
It is reduced in its severity, correct.

[00:10:31] Speaker 04:
Significantly, from a demotion to a two week suspension.

[00:10:35] Speaker 03:
However, I agree with you.

[00:10:38] Speaker 04:
So the retaliation, I thought the gravamen of the complaint was retaliation going back from the EEO activity in the 1990s.

[00:10:46] Speaker 04:
That was the gravamen of it.

[00:10:47] Speaker 04:
And so the question I have is how, what's your best evidence that the reason that Ms.

[00:10:57] Speaker 04:
Panrello was treated harshly in discipline with respect to the Jefferson Memorial event was retaliation for what had happened a decade earlier?

[00:11:07] Speaker 04:
What's the best evidence on that?

[00:11:11] Speaker 03:
Two prongs.

[00:11:12] Speaker 03:
The first is Stover says,

[00:11:15] Speaker 03:
to one of the other officers involved in that incident when the officer says, Ms.

[00:11:19] Speaker 03:
Panarello really was not involved in this centrally.

[00:11:23] Speaker 03:
We're all sorry.

[00:11:25] Speaker 03:
Please don't get Ms.

[00:11:25] Speaker 03:
Panarello in trouble.

[00:11:27] Speaker 03:
Stover says to him, very tellingly, you're not the target.

[00:11:32] Speaker 03:
So Ms.

[00:11:33] Speaker 03:
Panarello was the target from the outset.

[00:11:35] Speaker 03:
We also have here the agency

[00:11:39] Speaker 03:
ignoring its own rules in pursuing the discipline and in executing the discipline.

[00:11:46] Speaker 03:
It takes them 18 months to issue this when it should only take 12 months.

[00:11:52] Speaker 03:
They don't use the internal affairs process, which they were supposed to use, and that's discussed also, I believe, in docket number 19-4.

[00:12:02] Speaker 03:
They went around everything, and when you see that,

[00:12:09] Speaker 03:
type of pattern of, you have a supervisor saying what his intention is, and then you have a pattern of breaking its own rules to affect discipline, that is, particularly at this stage of the litigation, taking the facts and the inferences in a light most favorable to Ms.

[00:12:27] Speaker 03:
Panarello,

[00:12:29] Speaker 03:
evidence that this was a retaliatory decision.

[00:12:33] Speaker 03:
The last piece of evidence that shows it was retaliatory, Your Honor, is that they refused to stay it, and again, refused to follow their own process.

[00:12:42] Speaker 03:
When she said, I would like to grieve this, it was not subject to an MSPD appeal because it was two weeks or less.

[00:12:48] Speaker 03:
I'd like to grieve this, set it for mediation, please stay, and they said no.

[00:12:53] Speaker 03:
They had no reason to not stay it other than to punish.

[00:12:58] Speaker 03:
My red light is on, may I please?

[00:13:01] Speaker 03:
Yes, we'll hear from you briefly on the phone.

[00:13:03] Speaker 03:
Okay, thank you.

[00:13:10] Speaker 04:
Good morning, Mr. Field.

[00:13:11] Speaker 00:
Good morning, Your Honors.

[00:13:12] Speaker 00:
May I please support Brian Field on behalf of the Appellee?

[00:13:15] Speaker 00:
I'd like to begin briefly on this question of the KSAs that the court was asking about a few minutes earlier.

[00:13:23] Speaker 00:
As the court noted, those are missing from – or those are not in the record.

[00:13:29] Speaker 00:
They were not requested by Ms.

[00:13:30] Speaker 00:
Panarello during discovery.

[00:13:33] Speaker 00:
And importantly, they were also not asked about in any of the depositions.

[00:13:37] Speaker 00:
There are discussions of the KSAs in the depositions, but the focus of those questions is really just

[00:13:44] Speaker 00:
on Ms.

[00:13:46] Speaker 00:
Panrello's questions about whether or not the KSAs were blind.

[00:13:49] Speaker 00:
Did the reviewers know who they were reviewing?

[00:13:52] Speaker 00:
That's really the entirety of the questions that were asked, or the focus of the questions that were asked about the KSAs.

[00:13:59] Speaker 00:
What we do know from the record, we do in fact, contrary to the suggestion this morning, we do have the questions that were asked in the KSAs.

[00:14:06] Speaker 00:
Those are in the vacancy announcement at JA 89-90.

[00:14:10] Speaker 00:
We similarly have Ms.

[00:14:12] Speaker 00:
Panrello's answers to those KSAs in her application at JA 71-80.

[00:14:18] Speaker 00:
We also have the fact that we know that the KSAs and the assessment center scores are each weighted at 50%.

[00:14:27] Speaker 00:
We know her assessment center score that was in the lower quarter of all applicants, and we know that she ultimately scored at 24 out of 25.

[00:14:37] Speaker 00:
From that, the record is clear that Ms.

[00:14:42] Speaker 00:
Panarello scored more poorly than others on the KSAs as she did on the assessment center.

[00:14:50] Speaker 04:
On the suspension question, Mr. Field, why isn't the reference to the suspension and requested remedies form enough

[00:14:58] Speaker 04:
to put the agency on notice that she's complaining about that.

[00:15:01] Speaker 04:
I mean, it's a little bit odd where the complaint clearly and squarely objects to the proposed emotion.

[00:15:07] Speaker 04:
And then when the agency converts the discipline, it's the discipline for the exact same event.

[00:15:15] Speaker 04:
So she's saying, wait, I shouldn't have been disciplined.

[00:15:18] Speaker 04:
with a proposed motion, and then she persists in her claim when the discipline has been changed, but she's objecting to the rationale and the fact of discipline where others weren't.

[00:15:29] Speaker 04:
So it seems quite formalistic, or one might say it's quite formalistic to fault her on exhaustion accounts for that.

[00:15:37] Speaker 00:
A few responses, Your Honor.

[00:15:39] Speaker 00:
I want to respond first to something that you said right in the middle of that question, which was the suggestion that the formal EEO complaint put the proposed demotion squarely at issue.

[00:15:50] Speaker 00:
The disparate discipline section, the last or second-to-last page of that six-page narrative, discusses only the October 14 suspension of law enforcement authority, not the actual demotion.

[00:16:06] Speaker 00:
And I do think that, and I take your honor's question and this court's case law about not being overly formalistic.

[00:16:16] Speaker 00:
focusing too greatly on technicalities, but at the same time, an agency needs to be presented with sufficient information, this court explained in Crawford, sufficient information to put the agency on notice of the claim.

[00:16:30] Speaker 00:
And our argument on this point is Ms.

[00:16:33] Speaker 00:
Panarello directed the agency to the attachment, and in that attachment did not raise

[00:16:39] Speaker 00:
We did not raise either the demotion or the suspension.

[00:16:43] Speaker 00:
And this discussion about whether or not a new process needed to be started, as we explain in our papers, I think is

[00:16:50] Speaker 00:
is secondary to the real question, which I think Judge Wilkins raised, which is she could have at least mentioned it or included it in her formal EEO complaint or asked or endeavored to amend her EEO complaint to include that argument.

[00:17:05] Speaker 00:
She didn't do that.

[00:17:06] Speaker 02:
Mr. Field, doesn't she say this in the remedy section of her complaint?

[00:17:11] Speaker 02:
She'd ask for reversal of the suspension with back pay.

[00:17:15] Speaker 00:
Yes, Your Honor.

[00:17:15] Speaker 02:
Why isn't that enough?

[00:17:18] Speaker 02:
I mean, it's not in the narrative.

[00:17:19] Speaker 02:
But it is here on the complaint form.

[00:17:23] Speaker 00:
It is on the complaint form.

[00:17:24] Speaker 00:
We think that it is important to draw some distinction between the allegations and the factual explanation of the allegations that are included in that attachment and the reference in the remedy section.

[00:17:37] Speaker 00:
And we would suggest that that reference in the remedy section should be treated similarly to the comments that this court has found insufficient in Marshall and insufficient in Crawford.

[00:17:49] Speaker 00:
For instance, in Marshall, a reference was made, actually two references were made, to an employer attempting to, or trying to terminate me.

[00:17:58] Speaker 04:
And the court... You said that this, it's secondary, you know, whether a whole new process needs to be started.

[00:18:07] Speaker 04:
real questions whether this discipline was at issue.

[00:18:10] Speaker 04:
And in some sense, the exhaustion question seems to be secondary to the question whether there is evidence in the record of the retaliation of which the plaintiff complains.

[00:18:21] Speaker 04:
And I know that this was litigated and decided in the district court, principally on the non-exhaustion ground, but is there

[00:18:30] Speaker 04:
And it seems like all of the adverse actions that are complained of stem from the same theory about retaliation.

[00:18:39] Speaker 04:
And the government argues that there isn't evidence and prevailed on the non-promotions and the non-assimistic command responsibilities for want of evidence of retaliation.

[00:18:51] Speaker 04:
Doesn't that same conclusion apply to the Jefferson Memorial Discipline?

[00:18:56] Speaker 00:
Yes, Your Honor, it does.

[00:18:58] Speaker 00:
And to be sure, the district court decided on exhaustion grounds, but we briefed below, and the briefing in this court has also addressed the causal connection, or the lack of a causal connection, and also the lack of any evidence to suggest retaliatory motive in the Jefferson Memorial Discipline, also in the non-selections, and as we were talking about with plaintiff's counsel,

[00:19:26] Speaker 00:
They, Ms.

[00:19:29] Speaker 00:
Panarello's argument in the briefing has really been focused on this 1993 to 2001 timeframe.

[00:19:35] Speaker 00:
And I think as we explain in our papers,

[00:19:37] Speaker 00:
there is ample case law to suggest that that type of lack of temporal proximity really undercuts any inference of retaliation.

[00:19:45] Speaker 00:
We would suggest that that is reinforced by the fact that Lieutenant Stover was not even around at the time that the discipline was enacted and in fact was

[00:19:57] Speaker 00:
had retired more than a year before the proposal to demote was even issued, let alone the ultimate suspension.

[00:20:05] Speaker 00:
So we would agree wholeheartedly, Your Honor, that this case could be decided and that the district court's decision could be affirmed on the basis that the legitimate non-discriminatory and non-retaliatory reasons

[00:20:17] Speaker 00:
for the suspension.

[00:20:19] Speaker 00:
I'm happy to go through some of those reasons in more detail if Your Honor would like.

[00:20:22] Speaker 04:
I think the question for us would be, is the district court's decision on the non-promotions and non-assignment to command responsibilities, does that include any treatment of this question about the way the Jefferson Memorial event was handled?

[00:20:44] Speaker 04:
And I thought that

[00:20:46] Speaker 04:
It was dealt with there, so that there is some basis in the district court's treatment.

[00:20:51] Speaker 04:
It's not.

[00:20:52] Speaker 00:
I believe that the district court certainly talked about the significant disconnect in the theory of the case, in Ms.

[00:21:00] Speaker 00:
Panarello's theory of the case.

[00:21:04] Speaker 00:
We would contend that that is certainly equally applicable over on the Jefferson Memorial Discipline.

[00:21:08] Speaker 00:
My recollection is that the district court did not expressly tie the two together.

[00:21:14] Speaker 00:
And my apologies if I'm overlooking a statement from the district court on that ground.

[00:21:18] Speaker 00:
We, both parties, briefed it extensively below.

[00:21:23] Speaker 00:
And it's discussed in the briefing as well before this court.

[00:21:26] Speaker 00:
If there's anything further, we would request that the court affirm the district court's decision.

[00:21:37] Speaker 04:
You can have two minutes.

[00:21:54] Speaker 03:
The government focused just now in their argument, and they've done this in the briefs too, about the temporal relationship.

[00:22:02] Speaker 03:
And the case law that they're citing regarding temporal relationship to retaliation is misplaced.

[00:22:12] Speaker 03:
Ms.

[00:22:12] Speaker 03:
Padarello has not at least up to the point where the discipline is issued after she files the new EEO matter.

[00:22:24] Speaker 03:
she's not argued temporal proximity.

[00:22:27] Speaker 03:
That is used and the case law cited by the government pertains to when an employee claims retaliation and her only basis is temporal proximity.

[00:22:40] Speaker 03:
So for example, she comes to the EEO or to the court and says, I filed a sexual harassment claim on July 1st.

[00:22:49] Speaker 03:
On July 15th, I received a layoff notice.

[00:22:54] Speaker 03:
I don't have direct proof that this was in retaliation for my EEO activity, but it sure seems convenient that it happened in time.

[00:23:08] Speaker 03:
Ms.

[00:23:08] Speaker 03:
Panarello has not argued that.

[00:23:10] Speaker 03:
She wouldn't be able to.

[00:23:13] Speaker 04:
So having a longer- So I think this will allow you to continue on what you're trying to make, but just to focus you, the district,

[00:23:24] Speaker 04:
judge on page 36 of his opinion, which is at 382 of our joint appendix, in the process of talking about the lack of evidence of discrimination for the employment decision says, she failed to identify evidence from which a reasonable jury could find that the two-week suspension was imposed in retaliation for Panarello's participation in the 1998 litigation and the preceding EO investigation.

[00:23:53] Speaker 04:
So he's read the record.

[00:23:55] Speaker 04:
We look at it at de novo.

[00:23:57] Speaker 04:
Where should we look in this record, if you could point to the best evidence that that is wrong and on a de novo review that we should so hold?

[00:24:07] Speaker 03:
The best evidence is the fact that this is particularly compared to what the discipline is for.

[00:24:14] Speaker 03:
O'Toole says, I never have even recommended anyone for demotion before.

[00:24:19] Speaker 03:
I understand they downgrade that to a suspension.

[00:24:22] Speaker 03:
We have the timing immediately after she contacts the EEO counselor.

[00:24:28] Speaker 04:
Although that doesn't intensify it.

[00:24:31] Speaker 04:
So retaliation for contacting the EEO officer would be if they intensified it.

[00:24:35] Speaker 04:
We're not just going to demote you.

[00:24:37] Speaker 04:
We're going to fire you because you contacted the EEO.

[00:24:39] Speaker 04:
But that's actually the inverse of what happens.

[00:24:41] Speaker 04:
So I'm not following the inference that you're drawing there.

[00:24:45] Speaker 03:
I think there's also, Judge, and it is relevant in looking at intent,

[00:24:51] Speaker 03:
and common scheme and plan, we can look at the entire history of how Ms.

[00:24:58] Speaker 03:
Panarello has been treated.

[00:24:59] Speaker 03:
And that, I understand it's more amorphous, but I think that the most telling thing is the disparate treatment of Ms.

[00:25:06] Speaker 03:
Panarello with that discipline.

[00:25:08] Speaker 03:
And yes, thank you very much.