[00:00:00] Speaker 00: Case number 21-5035, Laurie Panarello, appellant versus Deborah A. Haland, secretary, United States Department of the Interior. [00:00:10] Speaker 00: Ms. [00:00:10] Speaker 00: Bertrand for the appellant, Mr. DiGenerro for the appellant. [00:00:15] Speaker 03: Good morning. [00:00:16] Speaker 03: All right, Ms. [00:00:16] Speaker 03: Bertrand, good morning. [00:00:19] Speaker 01: Please proceed. [00:00:20] Speaker 01: Good morning. [00:00:21] Speaker 01: My name is Joy Bertrand and I represent the plaintiff appellant, Laurie Panarello. [00:00:27] Speaker 01: This case presents an opportunity for this circuit to join the 11th and 7th circuits in finding that the resolution of adverse employment actions contingent on withdrawal of protected Title VII actions is evidence of retaliation. [00:00:53] Speaker 01: Knox versus Roper, cited in the appellant's reply brief at 17, talks about a similar circumstance to what happened with Ms. [00:01:04] Speaker 01: Pantarello. [00:01:05] Speaker 03: Well, let me interrupt you because this is the only issue that I see in this case. [00:01:11] Speaker 03: And I have combed the record and I see nowhere where a decision maker, not Peyton Williams, who is not a decision maker, [00:01:20] Speaker 03: but where a decision maker, that would be fear or his agent who was delivering the termination notice, ever mentioned the last chance agreement. [00:01:35] Speaker 03: It was Peyton Williams who said to fear, will you consider it? [00:01:38] Speaker 03: He said yes. [00:01:40] Speaker 03: He obviously didn't consider it because Libby delivered this termination notice [00:01:48] Speaker 03: Your client asked if it could go to the end of the pay period. [00:01:53] Speaker 03: He called Peyton Williams and she told your client, well, you were supposed to be offered the last chance agreement. [00:02:03] Speaker 03: And she said, I'm not interested in that or whatever she said. [00:02:06] Speaker 03: The offer was never made as far as I can see from this record. [00:02:12] Speaker 03: by a decision maker. [00:02:14] Speaker 03: Peyton Williams was discussing it. [00:02:17] Speaker 03: But where did a decision maker ever relay that to your client? [00:02:23] Speaker 03: And even your client in her depositions doesn't say that. [00:02:28] Speaker 01: Your Honor, Peyton Williams works at the behest of the decision maker. [00:02:33] Speaker 01: She worked directly with the decision maker. [00:02:36] Speaker 03: She's human resources. [00:02:37] Speaker 03: She has no authority as far as I can tell. [00:02:40] Speaker 03: And she even said she didn't. [00:02:42] Speaker 03: to make the decision. [00:02:44] Speaker 03: And that's clear from her actions. [00:02:46] Speaker 03: She said to fear, will you consider this? [00:02:51] Speaker 01: Your honor, I believe the government agrees that this was extended to Ms. [00:02:55] Speaker 01: Panarello. [00:02:55] Speaker 01: And I think the district court agrees. [00:02:57] Speaker 03: And I think they're all wrong on this record. [00:03:01] Speaker 01: But the thing is, at this point, [00:03:05] Speaker 01: We have this discussion of it. [00:03:06] Speaker 01: And at the summary judgment stage, if your honor believes that that is something that hasn't been entirely established, then that is an issue of fact for a jury, especially when the government hasn't contested that it occurred and that Ms. [00:03:21] Speaker 01: Panarella was given that last chance offer and rejected it because it was based only on the withdrawal of impending lawsuit. [00:03:31] Speaker 03: All right, well, let's [00:03:33] Speaker 03: Talk about what the district court said. [00:03:35] Speaker 03: The district court said it came too late. [00:03:37] Speaker 03: The decision had already been made. [00:03:39] Speaker 03: That is clear from the record. [00:03:41] Speaker 03: The termination notice was delivered by Libby. [00:03:50] Speaker 03: Your client asked for more time. [00:03:51] Speaker 03: Libby calls Peyton Williams. [00:03:54] Speaker 03: She says you were supposed to be offered this. [00:03:56] Speaker 03: And she says, I'm not interested. [00:03:59] Speaker 03: And that makes it too late. [00:04:01] Speaker 03: even if we assume it was offered at that point. [00:04:06] Speaker 01: I respectfully think that it wasn't too late. [00:04:09] Speaker 01: And this is what happened in Roper, or not with Roper, where the decision was made. [00:04:15] Speaker 01: And then the employer came back and said, well, we've decided to fire you, however, if you don't want to be fired. [00:04:23] Speaker 01: withdraw your pending protected EEO matter and here the same thing happened that yes the firing decision had been made and this is for example here's an uh but the offer was made by someone who had no authority to make the offer if that's what you're if what Peyton Williams said was an offer she has no authority to make that [00:04:46] Speaker 01: Your Honor, I don't think there's been any factual finding in the lower court confirming that Ms. [00:04:51] Speaker 01: Peyton Williams did not have the ability. [00:04:54] Speaker 03: In her deposition or affidavit, she says she doesn't. [00:05:00] Speaker 03: Let me, you go on with your argument because I'm taking up a lot of your time. [00:05:06] Speaker 01: Sure, thank you. [00:05:08] Speaker 01: There's an analogy to this that I would ask the court to consider, and that would be this. [00:05:12] Speaker 01: If you had an employee, [00:05:14] Speaker 01: who had a pending Title VII matter, whether it was like an EEO complaint or an actual lawsuit as we had here, and that employee comes in late to work several times. [00:05:26] Speaker 01: And the employer says to her, we're going to fire you because you've been consistently late to work. [00:05:32] Speaker 01: We've decided to fire you. [00:05:36] Speaker 01: the supervisor or whomever, HR, and there's been no indication in this record that Peyton Williams doesn't have the ability to communicate decisions from higher ups. [00:05:46] Speaker 01: And the government has agreed that this was extended to Ms. [00:05:49] Speaker 01: Panarillo. [00:05:51] Speaker 01: If the employer comes back and says, well, we did decide to fire you. [00:05:55] Speaker 01: However, if you have sex with me, your boss, [00:06:02] Speaker 01: we'll drop the lawsuit. [00:06:04] Speaker 01: And this is, or we'll drop the firing. [00:06:07] Speaker 01: It would be the same type of quid pro quo as we have here. [00:06:11] Speaker 01: We've decided to fire you. [00:06:12] Speaker 01: We're holding your job hostage, but drop your lawsuit. [00:06:17] Speaker 05: And what's really- It's not the same though, counsel. [00:06:20] Speaker 05: I don't think that that analogy works. [00:06:23] Speaker 05: I mean, global settlements, I mean, I don't know what the latest data is, [00:06:30] Speaker 05: It's something very well north of 90% of civil cases get resolved by settlements. [00:06:39] Speaker 05: And global settlements are the preferred way to do it. [00:06:43] Speaker 05: I mean, it's malpractice for a lawyer to settle one case. [00:06:50] Speaker 05: And if the same party has a different case pending against their client to try to figure out how to make them both go away. [00:07:01] Speaker 05: And so I don't think that this is, you're comparing apples and oranges here. [00:07:07] Speaker 05: And so to me, I don't think that that analogy works in the way that your retaliation theory has to work, really has to be that they didn't really have any intentions on really firing her at all when they proposed it. [00:07:27] Speaker 05: Instead, they proposed it so that they could get her to settle a separate lawsuit that she had brought by proposing this kind of without really like meaning to follow through on it to see if she would be kind of pressured into agreeing to a last chance agreement. [00:07:55] Speaker 05: I mean, that's the way your theory has to work, right? [00:08:01] Speaker 01: Well, Your Honor, I agree with the court that global settlements are always preferred. [00:08:08] Speaker 01: And one thing that I think is important that the court just noted here is that lawyers do have an obligation to try to resolve as many issues as possible. [00:08:18] Speaker 01: But here, the lawyers were never presented with this. [00:08:20] Speaker 01: And they didn't have an opportunity to negotiate. [00:08:25] Speaker 01: What Knox versus Roper says in the 11th circuit is no, you can't hold that you can't make this. [00:08:32] Speaker 01: You can't create this kind of contingency, especially on a case that's not related to the the discipline issue. [00:08:39] Speaker 01: And here, in addition to that, we don't have anything in the record about there being any other contingencies regarding this last chance agreement. [00:08:49] Speaker 01: Ordinarily, as the court is well aware, and as we see frequently with last chance agreements, there's a performance plan put in place. [00:08:55] Speaker 01: There's things the employer has to do, but things the employee has to do to improve their performance. [00:09:01] Speaker 01: There was never an issue with Ms. [00:09:03] Speaker 01: Pantarello's performance. [00:09:04] Speaker 01: And in fact, she stayed working. [00:09:07] Speaker 01: Throughout this she had access to confidential information she was receiving briefing she was mentoring subordinates. [00:09:14] Speaker 01: So there was no performance to be improved upon the only contingency discussed in this last chance agreement idea. [00:09:24] Speaker 01: that was related to Ms. [00:09:25] Speaker 01: Pantarello was that she dropped her pending lawsuit against the agency. [00:09:31] Speaker 01: And that's what Knox versus Roper. [00:09:33] Speaker 01: And to a related extent, the Coggins decision out of the Seventh Circuit says you cannot do. [00:09:41] Speaker 01: There is an issue of fact here about whether or not, but for the employee rejecting the term that [00:09:51] Speaker 01: they drop their Title VII action, they would have been fired. [00:09:58] Speaker 01: I'm sensitive to time, Your Honor, and I'm at 20 seconds. [00:10:01] Speaker 01: So I want to make sure the court doesn't have any other questions for me before Mr. DeGenerro. [00:10:07] Speaker 01: All right. [00:10:08] Speaker 01: Judge Rogers, do you have any questions? [00:10:10] Speaker 03: No. [00:10:11] Speaker 03: OK, well, we'll give you a couple of minutes and reply then. [00:10:13] Speaker 03: Thank you, Mr. DeGenerro. [00:10:19] Speaker 04: Good morning, Your Honors, Assistant United States Attorney Stephen DeGeneres on behalf of the appellee. [00:10:24] Speaker 04: I would like to begin briefly on this question about the last chance agreement that this court earlier asked about and highlight an additional reason to reject Ms. [00:10:34] Speaker 04: Panarello's last chance agreement argument beyond that which Judge Henderson had identified. [00:10:39] Speaker 04: And that is these preliminary global settlement discussions between human resource official acting at the behest of the deciding official and Miss Panarello to explore the possibility of [00:10:54] Speaker 04: of a global settlement is not at all dissimilar from global settlement discussions generally, but for the circumstances that in which it came out. [00:11:04] Speaker 04: And our position would be that this puts the case more in line with the line of authority mentioned in the case that was cited in the secretary's brief Snowden versus Zinke. [00:11:17] Speaker 04: A decision by then Judge Kataji Brown Jackson that discuss how courts within the circuit and elsewhere have upheld knowing involuntary waivers of then existing title seven claims as part of a last chance agreement. [00:11:32] Speaker 04: There's also evidence in the record that the park police had not only offered last chance agreements previously to other employees to waive them existing Title VII claims, but that- Where do you think in the record it is apparent that she was made an offer by someone in a position to make her that offer? [00:11:56] Speaker 04: Your Honor, I believe that there was testimony during Ms. [00:12:01] Speaker 04: Paton's deposition that she had asked Deputy Chief Feer to consider the last chance agreement. [00:12:09] Speaker 03: And he said he would. [00:12:10] Speaker 03: And the next thing we know, she gets a letter of termination. [00:12:16] Speaker 03: He obviously decided to consider it and reject it from the record. [00:12:22] Speaker 04: Yes, I believe that is generally the sequence. [00:12:25] Speaker 04: It was after the decision had been, the decision on removal had been tendered. [00:12:33] Speaker 04: Ms. [00:12:33] Speaker 04: Payton then asked Deputy Chief Feer whether he would consider the last chance agreement. [00:12:38] Speaker 04: But the government's argument is even- No, no, no. [00:12:43] Speaker 03: Oh, you mean Payton Williams. [00:12:46] Speaker 03: Okay. [00:12:46] Speaker 03: Now, I get the feeling that, no, you're right, because she said, [00:12:52] Speaker 03: She said she had the discussion with Panarello on September 9. [00:13:03] Speaker 03: And that had to have been when Libby calls her to say, can she extend the termination to the end of the pay period? [00:13:12] Speaker 03: And Peyton Williams says, well, she was supposed to be given this offer. [00:13:18] Speaker 03: That's her testimony as to when she tells Peyton Williams about it. [00:13:25] Speaker 04: Yes, that is my recollection as well. [00:13:28] Speaker 03: Okay, so I'm still back at who made her the offer. [00:13:32] Speaker 03: Peyton Williams couldn't do it. [00:13:35] Speaker 04: Your honor, the government would characterize the conversations between Ms. [00:13:42] Speaker 04: Peyton Williams and Ms. [00:13:43] Speaker 04: Panarello as preliminary ones to consider whether there was some appetite on the part of Ms. [00:13:52] Speaker 04: Panarello to explore that conversation. [00:13:55] Speaker 03: I think that is such a stretch. [00:13:57] Speaker 03: I mean, think about this. [00:13:58] Speaker 03: If Libby had done what Peyton Williams thought he was supposed to do, that is deliver the message that if you'll drop the suit, will we consider the termination? [00:14:09] Speaker 03: He doesn't do that. [00:14:12] Speaker 03: Peyton Williams [00:14:13] Speaker 03: says to Panarello, well, you were supposed to be given this offer. [00:14:17] Speaker 03: That's not an offer because she has no authority to do it. [00:14:21] Speaker 03: And Panarello says, I'm not interested in that. [00:14:26] Speaker 03: That's all the record shows about the offer. [00:14:33] Speaker 04: Yes, Your Honor. [00:14:34] Speaker 04: And in addition to that, which you've identified in the [00:14:40] Speaker 04: the record, that factual circumstance is slightly different from the circumstances presented in the Knox decision, which the record that was developed there was that the employee and the employer had come to an agreement about a way to handle a proposed disciplinary path for that employee after they reached that agreement. [00:15:07] Speaker 04: But which at the time did not include a waiver of title seven claims that employee then makes a charge about disparate treatment in the manner in which the employee or the employer rather was meeting out certain discipline to its employees on the basis of race. [00:15:24] Speaker 04: after that charge is made, then the employer adds to the last chance agreement the waiver of the Title VII claims. [00:15:31] Speaker 04: So even if we accept it for purposes of the argument that the park police had tendered an offer by somebody with authority to bind the park police in this circumstance, the sequence of that is dissimilar from the manner in which the waiver was added in Knox. [00:15:55] Speaker 05: What about the argument made by your friend on the other side that the last chance agreement was anomalous because it didn't have other characteristics that last chance agreements normally have? [00:16:11] Speaker 05: It only had the waiver. [00:16:15] Speaker 04: Your Honor, the government's argument is that because the conversations of exploring the prospect of this global settlement were only very preliminary, there is no evidentiary records to suggest what else would have been included in that last chance agreement. [00:16:36] Speaker 04: So the record has not been developed because of the fact that Ms. [00:16:39] Speaker 04: Pantarello did not otherwise seek to explore the prospect once she heard that she would have to drop her existing Title VII claims, the conversations ended there. [00:16:50] Speaker 04: So the record is not developed as to what the contents are. [00:16:55] Speaker 04: But given that as the non-movement, Ms. [00:16:58] Speaker 04: Pantarello has to show there's a tribal fact as to pretext [00:17:03] Speaker 04: any gaps in the federal or in the evidence there wouldn't support denial of the summary judgment motion, particularly when there's testimony in the case, suggesting that the inclusion of last chance agreement [00:17:20] Speaker 04: within last chance agreements, waivers of then existing claims is not anomalous in this circumstance, nor something that was disparately offered to Ms. [00:17:32] Speaker 04: Petarello either because of her sex or prior protected activity. [00:17:36] Speaker 02: But aren't your previous comments supportive of Judge Henderson's point that you don't, she doesn't have any burden absent proof [00:17:48] Speaker 02: that the offer was extended by someone who had authority to extend it. [00:17:56] Speaker 02: I mean, she doesn't have any burden. [00:17:58] Speaker 02: I thought that, I'm saying things Judge Henderson hasn't said, but isn't that where some of her questions lead you? [00:18:09] Speaker 02: You're acting as though the plaintiff hasn't met her burden of proof yet. [00:18:17] Speaker 02: She didn't have any burden of proof if the offer was never extended. [00:18:20] Speaker 02: That's all. [00:18:25] Speaker 04: Your Honor, I'm not quite sure I follow the question as to which step of the analysis. [00:18:32] Speaker 02: You can't understand I won't repeat it I won't take up your time why don't you continue your argument. [00:18:42] Speaker 04: As previously mentioned, on this factual record, we believe that the evidence developed is dissimilar from the cases that Ms. [00:18:51] Speaker 04: Panarello relies on. [00:18:54] Speaker 04: I've already discussed the distinctions between this case and Knox, but just to briefly discuss the Cognos Corp case. [00:19:03] Speaker 04: In there, in that case, the court found as potentially retaliatory the fact that the employer had asked had written the waiver in such a manner that would have required the employee to wave future title seven claims that not yet materialized. [00:19:21] Speaker 04: And that court had included language about the fact that employers may not buy a license to discriminate through a prospective waiver. [00:19:30] Speaker 04: Here, the only testimony developed, assuming an offer in the last change agreement had been made, was that it would require Ms. [00:19:41] Speaker 04: Pandarello to drop then existing Title VII claims. [00:19:44] Speaker 04: So that's a reason for finding Fognus Corp distinct from this case. [00:19:50] Speaker 04: and the Board of Governors decision involved a case where the employees would have been forced to choose between waiving statutory rights to file a charge with the EEO as distinct from bringing a Title VII claim or forego a collectively bargained for a contractual right to a grievance procedure. [00:20:12] Speaker 04: Again, no evidence has been induced that such a circumstance [00:20:17] Speaker 04: exists here. [00:20:18] Speaker 04: And unless there are any other further questions from the panel, we would respectfully request that the decision below be affirmed. [00:20:26] Speaker 03: All right, thank you. [00:20:27] Speaker 03: Madam Clerk, why don't you give Ms. [00:20:30] Speaker 03: Burton two minutes? [00:20:33] Speaker 03: Thank you. [00:20:34] Speaker 01: One thing the court just mentioned that I think is really important here is where the burdens are. [00:20:39] Speaker 01: And this case was a summary judgment determination. [00:20:43] Speaker 01: This wasn't a trial. [00:20:45] Speaker 01: This was a summary judgment determination. [00:20:47] Speaker 01: And on de Noble, all we're looking for are there disputes of fact here that support Ms. [00:20:53] Speaker 01: Panarello's claim that her firing for an off-duty DUI in which she was cooperative, presented no problem, certainly honest, [00:21:05] Speaker 01: constituted retaliation. [00:21:07] Speaker 01: And the strongest evidence of that is that she was fired. [00:21:12] Speaker 01: She was offered a last chance agreement by an agent of the agency that would be Ms. [00:21:18] Speaker 01: Peyton Williams, and then was fired when she rejected that. [00:21:23] Speaker 01: We have other evidence of retaliation that goes to all of this that's being proffered by the government being pretext for what was really going on here. [00:21:33] Speaker 01: And we have the [00:21:34] Speaker 01: evidence of sworn statements of people involved in the investigation saying that firing of Ms. [00:21:40] Speaker 01: Panarello was consistent with this agency's pattern and practice of using the disciplinary process to punish people who come forward in EEO matters. [00:21:51] Speaker 01: That is per se retaliation and here the issue is only are there issues of fact and this [00:21:59] Speaker 01: record, particularly just looking at the little piece of the record here that we're talking about regarding who had authority and what was extended to Ms. [00:22:07] Speaker 01: Panarello and what did she reject versus accept are issues of fact. [00:22:11] Speaker 01: This case must be returned to the district court because these are issues of fact that remain in the province of the jury. [00:22:20] Speaker 01: Does the court have any further questions for me at this time before in the last 10 seconds here? [00:22:28] Speaker 03: It doesn't look like it. [00:22:29] Speaker 03: So thank you for your argument. [00:22:31] Speaker 03: And Madam Clerk, if you would call the next case.