Joan Opara v. Janet Yellen ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOAN OPARA, No. 21-55953
Plaintiff-Appellant,
D.C. No.
v. 2:19-cv-00002-
MCS-AS
JANET YELLEN, Secretary of the
Treasury,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
Mark C. Scarsi, District Judge, Presiding
Submitted July 12, 2022*
Pasadena, California
Filed January 17, 2023
Before: Kim McLane Wardlaw and Mark J. Bennett,
Circuit Judges, and Gary S. Katzmann,** Judge.
Opinion by Judge Katzmann
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Gary S. Katzmann, Judge for the United States Court
of International Trade, sitting by designation.
2 OPARA V. YELLEN
SUMMARY***
Employment Discrimination
The panel affirmed the district court’s summary
judgment in favor of the Treasury Secretary of the United
States in plaintiff’s action alleging she was wrongfully
terminated from her employment as a Revenue Officer at the
Internal Revenue Service for assessed Unauthorized Access
of Taxpayer Data (“UNAX”) offenses.
After unsuccessfully pursuing an internal Equal
Employment Opportunity complaint, plaintiff brought her
action in federal court alleging that her termination was
based on impermissible criteria of age and national origin in
violation of the Age Discrimination in Employment Act
(“ADEA”) and Title VII of the Civil Rights Act of 1964.
The panel held that the district court did not err in
granting the Treasury Secretary’s motion for summary
judgment on plaintiff’s age discrimination claim. At step
one of the legal framework for a discrimination action, the
district court found that none of plaintiff’s evidence
established a prima facie case of age discrimination. The
panel agreed with the district court that most of plaintiff’s
evidence comprised “circumstantial evidence”—her
superior’s alleged exaggeration of her offenses, assignment
of menial tasks, selection of draconian penalties. The panel
held, however, that the record was not devoid of direct
evidence of age discrimination. Because very little evidence
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
OPARA V. YELLEN 3
is necessary to establish a prima facie case through direct
evidence, the panel was satisfied that the record taken as a
whole supported plaintiff’s prima facie case of age
discrimination. At step two, the burden shifted to the
employer to articulate a legitimate, nondiscriminatory
reason for terminating plaintiff's employment. Here, the IRS
Manager’s Guide instructed that the decision to terminate
plaintiff was an appropriate penalty for the assessed
UNAX(c) and UNAX(e) violations. The panel held that the
Secretary’s proffered reasons for its action was
sufficient. At step three, since the Secretary articulated a
sufficient reason for the challenged action, the burden
shifted back to plaintiff to show that the articulated reason
was pretextual. Because plaintiff’s direct record evidence
of age-related discriminatory animus consisted of her own
allegations, the panel held that the proffered direct record
was insufficient to raise a genuine issue as to
pretext. Plaintiff’s indirect evidence likewise did not raise a
genuine issue of material fact regarding her employer’s
motive. It was undisputed that plaintiff committed at least
some UNAX offenses. Regarding plaintiff’s claims of
humiliation, all parties acknowledged that it was standard
procedure to deny certain access to any employee under
investigation for UNAX violations until a disciplinary
decision was reached. Because plaintiff had not raised a
genuine issue as to whether her termination was due in whole
or in part to age discrimination, the panel affirmed the
district court’s summary judgment to the Secretary on
plaintiff’s first claim.
The panel held that the district court did not err in
granting the Treasury Secretary’s motion for summary
judgment on plaintiff’s national origin discrimination
claim. At step one of the framework, the panel held that
4 OPARA V. YELLEN
plaintiff seemed to rely exclusively on circumstantial
evidence to establish her prima facie case of national origin
discrimination. The panel held further that it need not decide
whether plaintiff could establish a prima facie case because
even assuming arguendo that she could, her claim failed at
the pretext stage. At the second step, the panel held that the
Secretary satisfied her burden of articulating a legitimate,
non-discriminatory reason for the challenged action for the
same reasons as those discussed in plaintiff’s age
discrimination claim. At step three, the panel held that
plaintiff failed to prove that the Secretary’s proffered reasons
for termination were a pretext for discrimination based on
national origin. The conclusory allegations that plaintiff
presented were insufficient. The panel concluded that
plaintiff did not succeed in creating a genuine issue as to
whether the agency’s proffered reasons were false or
whether her termination was due in whole or in part to her
national origin; and the district court appropriately granted
summary judgment to the Secretary on the national origin
discrimination claim.
COUNSEL
Andrew M. Wyatt, Wyatt Law, Woodland Hills, California,
for Plaintiff-Appellant.
Daniel A. Beck, Assistant United States Attorney; David M.
Harris, Assistant United States Attorney, Civil Division
Chief; Tracy L. Wilkison, United States Attorney; Office of
the United States Attorney, Los Angeles, California; for
Defendant-Appellee.
OPARA V. YELLEN 5
OPINION
KATZMANN, Judge:
Plaintiff-Appellant Joan Opara (“Opara”) was
terminated from her employment as a Revenue Officer at the
Internal Revenue Service (“IRS”) for assessed Unauthorized
Access of Taxpayer Data (“UNAX”) offenses. After
unsuccessfully pursuing an internal Equal Employment
Opportunity (“EEO”) complaint, Opara brought suit against
the Treasury Secretary in the United States District Court for
the Central District of California alleging that her
termination was based on impermissible criteria of age and
national origin in violation of the Age Discrimination in
Employment Act (“ADEA”) 1 and Title VII of the Civil
Rights Act of 1964, 2 respectively. The district court granted
summary judgment to the Treasury Secretary on the grounds
that Opara: (1) failed to establish a prima facie case of age
discrimination; and (2) failed to show that the IRS
Management’s proffered reasons for terminating her were
pretext for age or national origin discrimination.
For the reasons discussed below, we affirm.
1
Under the ADEA, it is “unlawful for an employer . . . to discharge any
individual or otherwise discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of employment,
because of such individual’s age.” 29 U.S.C. § 623(a)(1).
2
Under Title VII of the Civil Rights Act of 1964, it is “an unlawful
employment practice for an employer . . . to discharge any individual, or
otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because
of such individual’s . . . national origin.” 42 U.S.C. § 2000e–2(a)(1).
6 OPARA V. YELLEN
I. BACKGROUND
The Treasury Department’s IRS terminated Opara—
born in 1954 and Nigerian in national origin—after
determining that she had committed several UNAX offenses.
Prior to her termination, Opara served as an IRS Revenue
Officer for twenty-seven years, ultimately reaching the
“grade” of “GS-1169-12.” 3 As a Revenue Officer, Opara
was responsible for using the IRS’s integrated data retrieval
system (“IDRS”) to access information for taxpayers
assigned to her as part of her regular case work, as well as
for walk-in taxpayers whom Opara assisted on her rotational
days as the assigned “Duty Officer” for her office, but who
were not otherwise assigned to her.
A. UNAX Offenses
Opara received annual training on proper usage of the
IDRS, which focused in particular on UNAX offenses. The
3
The General Schedule, or “GS,” is a “classification and pay system”
that “covers the majority of civilian white-collar Federal employees.”
Salary & Financial, IRS, https://www.jobs.irs.gov/resources/benefits-
programs/salary-financial (last visited Nov. 29, 2022) (“Salary &
Financial”). The GS-1169 “series [covers] positions involved in
administering, supervising, or performing work related to collecting
delinquent taxes, surveying for unreported taxes, and securing
delinquent returns.” Position Classification Standard for Internal
Revenue Officer Series, GS-1169, U.S. Off. of Pers. Mgmt.,
https://www.opm.gov/policy-data-oversight/classification-
qualifications/classifying-general-schedule-
positions/standards/1100/gs1169.pdf (last visited Nov. 29, 2022).
Within a series, positions are assigned a “grade” “based on the level of
difficulty, responsibility, and qualifications required,” generally with
GS-1 being the lowest possible grade, and GS-15 being the highest. See
Salary & Financial, supra. Accordingly, within the GS-1169 series,
Opara ultimately reached the grade of 12.
OPARA V. YELLEN 7
IRS Manager’s Guide to Penalty Determinations, revised
August 2012 (“IRS Manager’s Guide” or “the Guide”)—
which was in effect at the time of Opara’s termination—
defines UNAX offenses as “unauthorized inspection of
returns or return information.” The Guide delineates several
types of UNAX offenses: A UNAX(c) offense entails
“[u]nauthorized access of a tax return or tax return
information” on behalf of “a covered taxpayer” 4 who
requests assistance “otherwise within the scope of the
employee’s official duties” “through other than official
channels”; while a UNAX(e) offense entails “[u]nauthorized
access of tax return or tax information without the taxpayer’s
knowledge and consent”. Accesses giving rise to UNAX(e)
offenses are “outside [of] official channels” and are “not
otherwise within the employee’s official duties.”
The IRS Manager’s Guide states that “[r]emoval is an
appropriate penalty for all UNAX violations and must be
proposed at the proposal stage. Less severe penalties are to
be imposed only at the decision stage after mitigation is
considered.” Although the Guide states that it is intended to
serve as a “guide ONLY, [and] not a rigid standard”
(emphasis in original), the document delineates that a 30-day
suspension is an appropriate penalty for a first UNAX(c)
offense—followed by removal for additional UNAX(c)
offenses—and removal is the appropriate penalty for any
UNAX(e) offense. “[I]n determining the appropriate
corrective action for each situation,” the Guide requires
management to consider the “Douglas Factors” identified by
4
A “covered taxpayer” is a taxpayer with a preexisting, or “covered,”
relationship to the acting IRS employee.
8 OPARA V. YELLEN
the Merit Systems Protection Board (“MSPB”) in Douglas
v. Veterans Administration, 5 M.S.P.B. 313 (1981). 5
Opara signed “Certifications of Annual UNAX
Awareness Briefings” on January 6, 1998; May 1, 2000;
October 3, 2001; August 6, 2002; June 16, 2003; September
14, 2005; September 28, 2006; August 28, 2007; October 9,
2008; September 28, 2009; September 9, 2011; August 16,
2012; August 7, 2013; September 6, 2014; and September
14, 2015. The most recent Awareness Briefing that Opara
signed specified:
As an IRS employee, I have been informed
that, 1. Under law, I may only access or
inspect tax returns for an IRS assigned
business purpose. 2. The willful
unauthorized access or inspection of tax
returns and return information can result in
severe penalties, including: imprisonment of
up to one year; a fine of up to $1,000;
dismissal from employment/removal from
the contract; and the costs of prosecution. I
have been notified that if I have any questions
or concerns as to whether any access or
inspection is authorized, it is my
5
The “Douglas Factors” include consideration of the: (1) Nature and
Seriousness of the Offense; (2) Employee’s Job; (3) Disciplinary Record;
(4) Work Record; (5) Effect on Future Performance; (6) Consistency
with Other Penalties; (7) Notoriety and Impact; (8) Clarity of Notice; (9)
Potential for Rehabilitation; (10) Mitigation Circumstances; and (11)
Adequacy of Alternative Sanctions. The IRS Manager’s Guide specifies
that “[n]ot all of the Douglas Factors will be pertinent in every case,” and
that management need only “balanc[e] . . . the relevant factors in the
specific case.”
OPARA V. YELLEN 9
responsibility to consult with my immediate
supervisor for guidance, and that I am to
notify my immediate supervisor of any
inadvertent access or inspection that may
occur while performing my business
responsibilities.
Additionally, on November 12, 1993, Opara signed the
IRS’s IDRS Security Rules, whereby she acknowledged the
following rules (among others) governing her use of the
IDRS system:
1. Do not attempt to access (research or
change) your own account or that of a
spouse, other employee, friend, relative,
or any other account in which you may
have a personal or financial interest.
2. Access only those accounts required to
accomplish your official duties. You
have no authority to access an account of
a celebrity or well-known taxpayer unless
you are assigned such an account.
Opara confirmed that she signed the training certificates and
the UNAX security rules. She further confirmed that as an
IRS employee, she never asked her supervisor questions
about whether any access via the IDRS constituted a UNAX.
B. The Taxpayer Interactions at Issue
The taxpayer interactions that precipitated Opara’s
termination from the IRS are as follows:
10 OPARA V. YELLEN
Taxpayers A and B 6 are married and file jointly. Opara
personally knew the taxpayers because they attended the
same religious congregation. Opara used the IDRS to access
the tax records of Taxpayers A and B on both February 11,
2016, and on March 11, 2016. Opara further called the IRS
service center on February 11, 2016, to inquire about certain
notifications she observed posted to the account of
Taxpayers A and B in IDRS. The campus employee with
whom Opara spoke informed her that he “d[id not] have
authorization to . . . access t[he] account,” and advised Opara
to “go through the proper channels.”
Taxpayers C and D are also married and file jointly.
Taxpayer C and his father worked as contractors at Opara’s
home in early 2016. IRS electronic records show that on
July 15, 2016, Opara accessed the tax records of Taxpayer C
via IDRS. The IRS maintains the electronic records further
indicate that on July 15, 2016, Opara used certain command
codes to access Taxpayer D’s information and to access
Taxpayer C’s business tax records generally.
C. Treasury Inspector General for Tax
Administration Investigation
Following Opara’s call to the IRS service center on
behalf of Taxpayers A and B on February 11, 2016, the
campus employee with whom Opara spoke sent an email
regarding the outreach to Opara’s manager on February 12,
2016. Opara’s manager then contacted the Treasury
Inspector General for Tax Administration (“TIGTA”)
regarding a possible issue.
6
To maintain the privacy of third parties, we refer to the taxpayers as
“Taxpayers A and B” and “Taxpayers C and D” throughout.
OPARA V. YELLEN 11
On May 4, 2017, two TIGTA agents interviewed Opara
in person. According to the TIGTA Memorandum
documenting the interview, “[w]hen asked, ‘[h]ave you ever
committed UNAX?’” “Opara stated that she could not recall
as she was almost 63 years old and she had difficulties
recalling.” When “asked if she accessed IRS records of
anyone she knew personally,” Opara “claimed that she could
not recall.” However, when “asked specifically if she knew
[Taxpayers A and B] Opara stated that she knew them”
through church.
The TIGTA Memorandum documented that Opara
“admitted” she accessed Taxpayers A and B’s IRS records
through IDRS on February 11, 2016, and again on March 11,
2016. The Memorandum captured Opara’s account of the
circumstances surrounding these incidents as follows:
Approximately February 2016, OPARA
received a telephone call 7 from
[REDACTED] in [“a] panic” as they tried to
file their 2015 tax return with the IRS and
discovered that [REDACTED’s] [Social
Security Number (“SSN”)] was
compromised. They were not able to get
assistance from the IRS. She advised them
that she was the duty officer on the following
day and that she will call the IRS service
center for them to find out what occurred.
7
In a remote deposition on January 25, 2021, as part of these court
proceedings, Opara contested the portion of TIGTA’s Memorandum
stating that she first learned of Taxpayer A and B’s tax issue via a
telephone call, stating: “It wasn’t a phone call. [Taxpayer B] came to
my house. It wasn’t a phone call, yeah. She came to my house in a
panic, crying.”
12 OPARA V. YELLEN
She received their permission and their SSNs
to assist them.
(footnote not in original). A recording of Opara’s February
11, 2016 phone call to the IRS service center on Taxpayer A
and B’s behalf captured Opara’s account of the access as
follows:
I was the Duty Officer yesterday at my office
. . . and these taxpayers, they called to me as
I had already shut down my computer and
was leaving. So I had to listen. I grabbed her
social. I told her I would look into it and call
her back today. I have been busy since
morning.
These accounts by Opara differ in certain respects from
Taxpayer A’s version of the events as captured in TIGTA’s
Memorandum of Interview dated August 31, 2016. TIGTA
documented that Taxpayer A stated under oath:
During a casual conversation with OPARA
possibly sometime in February 2016, they
were talking about an online tax fraud that
was in the news, and he advised OPARA of
his personal identity theft issue involving his
IRS tax. He told her that he could not file his
IRS tax return because someone else had
fraudulently filed a return using his SSN for
a tax refund.
He asked OPARA to check on his federal tax
account for him as he wanted someone from
within the IRS to personally verify his
information. He stated that he asked,
OPARA V. YELLEN 13
“[c]ould you look it up for me?” And, he
provided her with his Social Security
Number (SSN) and [Taxpayer B’s] SSN to
check their account.
Both Opara and Taxpayer A relayed to the TIGTA
investigators that Opara did not receive compensation to
assist with the tax issues.
The TIGTA Memorandum further documents that in that
same in-person interview with Opara on May 4, 2017, agents
asked Opara “if she personally knew any of the walk-in
taxpayers that she assisted,” to which she reportedly replied
“‘[s]ometimes you know them.’” The Memorandum details
that “[w]hen asked who she knew, [Opara] provided the
following: ‘I don’t remember,’” adding that “[s]he stated
that she was sixty-three (63) years old and she did not
remember like she used to.”
“Opara was asked if she personally knew [Taxpayer C];”
TIGTA’s Memorandum documented Opara’s response as:
She confirmed that she personally knew
[Taxpayer C] as his father [Redacted]
provided contractor work for her home . . .
[Taxpayer C] assisted his father to work on
her home as the electrician for the lighting.
“Opara was asked if she accessed [Taxpayer C’s] account on
IDRS,” with TIGTA documenting her response as:
[Taxpayer C] just showed up at her IRS office
in Santa Ana on a Wednesday when she was
the duty officer. He provided his SSN to her
and requested an abatement on his taxes due.
14 OPARA V. YELLEN
She accessed his IDRS records to look at his
IRS situation and to assist him with his IRS
matter. She noticed that [Taxpayer C] had
filed his tax return himself. He had applied
for an IRS abatement which was denied. He
provided her with a copy of an IRS notice.
She discovered that there was no reasonable
cause for an abatement. She advised him to
request an IRS Installment Payment
Agreement and to pay the IRS.
The TIGTA Memorandum further detailed that Opara “did
not recall scheduling an appointment or asking [Taxpayer C]
directly to meet her at the IRS office in Santa Ana” and that
“[s]he stated that she was so upset that [Taxpayer C] just
showed up at her IRS office on her duty officer day.”
Taxpayer C’s account—as captured by TIGTA’s
Memorandum summarizing a telephone interview with him
on January 11, 2017—largely mirrors Opara’s account,
except that Taxpayer C recounted that Opara “advised him
to meet with her at her IRS office in Santa Ana.”
Regarding Taxpayer D, TIGTA documented Opara’s
assertions that she “did not know [Taxpayer D]” and “never
met with [her].” Opara reportedly explained she “accessed
[Taxpayer D’s information] only because [she and Taxpayer
C] were married and filed jointly,” meaning that Taxpayer
C’s records necessarily included Taxpayer D’s information.
In contrast, TIGTA’s Memorandum of Activity analyzing
Opara’s IDRS audit trail represents that Opara used a
command code “to access [Taxpayer D’s individual tax]
information on July 15, 2016.” Moreover, Opara maintains
that because Taxpayers C and D were self-employed, their
Schedule C business information was part of the tax records.
OPARA V. YELLEN 15
However, the IRS represents that the electronic records show
that on July 15, 2016, Opara entered another command code
to search for Taxpayer C’s business tax records generally.
Two separate TIGTA Memoranda summarizing
interviews with Taxpayer C on January 11, 2017 and March
15, 2017, respectively, document that Taxpayer C stated
under oath that he did not authorize Opara to access the tax
information of either Taxpayer D or of his business. The
January 11, 2017 Memorandum reads:
[Taxpayer C] only provided [Opara] with his
own tax information. He did not provide her
with his wife’s information or SSN. He did
not provide her with his business
information. He did not ask OPARA to
check information regarding his wife or his
business as they had nothing to do with his
personal tax matter that he was discussing
with OPARA. He affirmed that OPARA
should not have researched his wife or his
business information as that was not a part of
their discussion and he did not seek
assistance with anything other than his
personal tax matter for tax period 2007 and
2008. 8
8
The March 15, 2017, TIGTA Memorandum reiterates:
[Taxpayer C] did not provide OPARA with his wife
[Taxpayer D’s] Social Security Number (SSN) or
information. [Taxpayer D] did not know OPARA and
she did not communicate with OPARA. He did not
ask OPARA to look up [Taxpayer D’s] information.
16 OPARA V. YELLEN
(footnote not in original). Moreover, TIGTA’s
Memorandum summarizing an in-person meeting with
Taxpayer D on March 15, 2017, documents that Taxpayer D
“did not contact OPARA or anyone at [the] IRS regarding
any tax matter on or about July 15, 2016,” but that
“[Taxpayer C], who handled their taxes, advised her that he
met with OPARA regarding his personal tax matter.”
Both Opara and Taxpayer C told TIGTA investigators
that Opara did not obtain any financial benefits—including
any discounts on the contracting work on her house—for
assisting Taxpayer C.
D. Opara’s Termination
Following the interview between Opara and TIGTA,
Opara’s access to all IRS computer systems—including
IDRS and email—was suspended on August 2, 2017. All
parties acknowledge it is “standard procedure” to deny IDRS
access to any employee under investigation for UNAX
violations until a disciplinary decision has been reached.
Because Opara admittedly could not perform her normal
duties as an IRS Revenue Officer without access to IDRS,
the local IRS management reassigned Opara to
administrative work, which included, among other tasks,
washing the office’s government vehicle and cleaning
cubicles. IRS management maintains that such tasks are
“normal administrative duties” in Opara’s office, and Opara
acknowledges that maintaining the government car is “the
responsibility of the secretary.”
He did not know why OPARA would access
[Taxpayer D’s] tax account information.
OPARA V. YELLEN 17
On October 23, 2017, IRS Territory Manager Frances
Miller (“Miller”)—59 years old and Hispanic—sent Opara a
“Notice of Proposed Adverse Action” to remove Opara from
the IRS or otherwise discipline her. Per the IRS’s process in
effect at the time of this action, in sending the notice, Miller
assumed the role of the “proposal official” in Opara’s
disciplinary proceedings. In the letter, Miller enumerated six
instances—referred to as “specifications”—in which Opara
“improperly accessed taxpayer data on the [IDRS] without
an official reason to do so,” namely:
Specification 1: On February 11, 2016, you
improperly accessed the account of Taxpayer
A on IDRS without an official reason to do
so.
Specification 2: On February 11, 2016, you
improperly accessed the account of Taxpayer
B on IDRS without an official reason to do
so.
Specification 3: On March 11, 2016, you
improperly accessed the account of Taxpayer
A on IDRS without an official reason to do
so.
Specification 4: On March 11, 2016, you
improperly accessed the account of Taxpayer
B on IDRS without an official reason to do
so.
Specification 5: On July 15, 2016, you
improperly accessed the account of Taxpayer
C on IDRS without an official reason to do
so.
18 OPARA V. YELLEN
Specification 6: On July 15, 2016, you
improperly accessed the account of Taxpayer
D on IDRS without an official reason to do
so.
Miller explained that “[a]fter reviewing the evidence and the
[IRS Manager’s Guide],” she assessed that Opara’s
“misconduct is a ‘UNAX . . . Section e, which falls into the
penalty range of removal for a first offense.” As required by
the Guide, Miller also considered the “Douglas Factors” and
found the following to be aggravating factors: Nature and
Seriousness of the Offense; Employee’s Job; Effect on
Future Performance; Clarity of Notice; Potential for
Rehabilitation; and Adequacy of Alternative Sanctions.
On January 29, 2018, an oral reply was held regarding
the discipline proposed in Miller’s letter, which provided
Opara a chance to answer the charges against her. At the
oral reply, Opara was represented by Linda Morton, a
steward from the National Treasury Employees Union
(“NTEU”), who maintained that Opara mistakenly “felt that
as Duty Officer she was authorized to access any account
when requested by the taxpayers, regardless of any
affiliation.” Morton contested both Miller’s determination
that Opara committed a UNAX(e) offense, as well as
Miller’s application of the Douglas Factors.
Miller did not attend Opara’s oral reply but sent another
Territory Manager, Paul Alvarado (“Alvarado”)—61 years
old and Hispanic—in her place to serve as the “hearing
official,” which required Alvarado to drive 50 miles to
attend. Seven years prior, Opara successfully brought an
EEO complaint against Alvarado’s assigned mentee,
Rosanna Savala (“Savala”). The EEO complaint derived
from “disparaging remarks on age [and] national origin”
OPARA V. YELLEN 19
made by Savala, which Opara maintains included Savala
“quot[ing] [Alvarado’s] general comments [that] if anyone
is too old to do this job, she should quit” and that “the job
was better with young people.” Opara asserts that Alvarado
and Miller were aware of the prior EEO against Savala
because Miller was “the one who gave [Opara] a copy of that
EEO”; Alvarado and Miller averred in affidavits that they
were not aware of Opara’s prior EEO activity.
On April 4, 2018, IRS Director for Small Business/Self
Employed Collection for the Southwest Area, Dawn
Harris—49 years old and Caucasian—sent Opara a
supplemental letter informing her that Harris, as the
“deciding official,” was considering additional information
not addressed in Miller’s original “Notice of Proposed
Adverse Action.” Harris explained that because Opara was
“evasive and misleading” in her interview with TIGTA on
May 4, 2017, and because her NTEU representative
maintained at the oral reply on January 29, 2018 that Opara
“did not know it was wrong to assist people [she] personally
[knew],” Harris’s “trust and confidence in [Opara]” had been
“compromise[d].” A supplemental oral reply was held on
April 20, 2018, to allow Opara to answer the charges in
Harris’s supplemental notice; at said supplemental oral
reply, Opara attributed her misconduct, at least in part, to a
language barrier.
On May 11, 2018, Harris issued a final removal letter to
Opara. Similar to Miller’s “Notice of Proposed Adverse
Action,” Harris’s Termination Letter explained that “[a]fter
reviewing the evidence and the [IRS Manager’s Guide],” she
“decided that [Opara’s] misconduct is a ‘UNAX . . . Section
e[] violation, which falls into the penalty range of removal
for a first offense.” As required by the Guide, Harris also
considered the “Douglas Factors” and identified the
20 OPARA V. YELLEN
following aggravating factors: Nature and Seriousness of the
Offense; Employee’s Job; Effect on Future Performance;
Potential for Rehabilitation; and Adequacy of Alternative
Sanctions. Harris reiterated that Opara’s “actions severely
compromise[d] [her] trust and confidence” because Harris
found Opara to be “evasive and misleading” in her May 4,
2017 TIGTA interview—where Opara “indicated repeatedly
[that she] could not recall if [she] accessed IDRS records for
people [she] personally knew citing [her] age”—and
“continually fail[ed] to take responsibility for [her]
actions”—citing Opara’s “attributi[on] [of her] misconduct,
at least in part, to a language barrier” at her supplemental
oral reply. As such, Harris decided to “remove [Opara] from
the [IRS] effective” immediately.
E. Subsequent Internal Proceedings
On August 20, 2018, Opara filed a formal EEO
complaint against the Department of the Treasury alleging
that agency management discriminated against her based on
her age and national origin when it terminated her
employment on May 11, 2018. After completing an internal
investigation, the Department issued a final agency decision
on December 4, 2018, concluding that Opara “failed to
establish a prima facie case of age and national origin
discrimination.”
In reaching this determination, the Department noted that
Opara “did not attempt to show any similarly situated
employees who were younger or of a different national
origin, who were treated differently by management when
found to have committed similar violations.” In an affidavit
submitted for the purposes of this EEO investigation, Harris
averred that in the past two years: (1) there had been no
members of Opara’s workgroup or unit who had engaged in
OPARA V. YELLEN 21
the same or similar conduct who were not disciplined or
terminated; nor (2) were there members of Opara’s
workgroup or unit who were disciplined or terminated for
the same or similar conduct.
Additionally, the Department concluded that Opara did
not “adduce another form of evidence that management took
her age or national origin into account in deciding upon her
removal, such as biased comments.” The Department noted
that both Miller and Harris denied awareness of Opara’s
protected categories and found that Opara “provided no
convincing evidence” to prove otherwise. Additionally, the
Department noted that Miller and Harris denied any
awareness of Opara’s earlier EEO activity against Savala,
and Opara “did not challenge their assertion.” Nor, in the
Department’s estimation, did Opara “adduce any substantive
evidence that [Alvarado] was involved in or somehow
influenced the decision to terminate her employment.”
Thus, the Department concluded that “[Miller] and
[Harris] provided a legitimate non-discriminatory
justification for [Opara’s] removal,” such that Opara was
“not entitled to relief.”
F. District Court Proceedings
After receiving the Department’s final EEO decision,
Opara filed a Complaint against the Secretary of the
Treasury in the United States District Court for the Central
District of California on January 1, 2019, asserting claims of
discrimination based on age and national origin in violation
of ADEA and Title VII of the Civil Rights Act of 1964,
respectively. Before the district court, Opara argued that
Miller discriminated against her by proposing her
termination and by “humiliat[ing]” her with “menial tasks,”
while Harris discriminated against her by terminating her
22 OPARA V. YELLEN
without offering her the opportunity to retire after twenty-
seven years with “no history of discipline.” Opara further
argued that the unpublished, out-of-circuit case McLeod v.
Department of Treasury, 332 F. App’x 631 (Fed. Cir. 2009),
is persuasive in that it illustrates that Miller and Harris had
latitude in their assessment of charges but discriminatorily
lodged the most “draconian” one in the form of a UNAX(e)
violation.
On April 13, 2021, the Treasury Secretary moved for
summary judgment on Opara’s age and national origin
discrimination claims, which the district court granted
without oral argument on August 12, 2021. In so granting,
the district court concluded that Opara: (1) failed to establish
a prima facie case of age discrimination; and (2) failed to
show that Miller and Harris’s reasons for terminating Opara
were pretext for age or national origin discrimination. The
district court reasoned that “Miller had to recommend
removal” for the assessed UNAX violations and that
“legitimate, nondiscriminatory reasons” justified assigning
Opara to administrative work after she lost access to the
IRS’s electronic systems. Furthermore, the district court
rejected Opara’s reliance on the non-binding McLeod case,
noting that the “IRS Policy Guide lists ‘removal’ as the
penalty for multiple UNAX(c) violations and any UNAX(e)
violation.”
On August 30, 2021, Opara timely filed her notice of
appeal to this court.
II. STANDARD OF REVIEW
We review the district court’s grant of summary
judgment de novo, see Northrop Grumman Corp. v. Factory
Mut. Ins. Co., 563 F.3d 777, 783 (9th Cir. 2009), and “may
affirm on any ground supported by the record even if it
OPARA V. YELLEN 23
differs from the rationale of the district court,” Nat’l Wildlife
Fed’n v. U.S. Army Corps of Eng’r, 384 F.3d 1163, 1170
(9th Cir. 2004) (quoting Martinez–Villareal v. Lewis, 80
F.3d 1301, 1305 (9th Cir. 1996)). “Viewing the evidence in
the light most favorable to the nonmoving party, we must
determine whether there are any genuine issues of material
fact.” E.E.O.C. v. Boeing Co., 577 F.3d 1044, 1049 (9th Cir.
2009). “Where the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party, there
is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting
First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253,
288 (1968)).
III. DISCUSSION
On appeal, Opara argues that the district court’s grant of
summary judgment to the Treasury Secretary was
inappropriate because “there is a genuine issue of material
fact” as to whether Opara’s termination was motivated by
discriminatory animus based on age and/or national origin.
In opposition, the Secretary argues that the district court’s
judgment should be affirmed because even if Opara is able
to make a prima facie case, she “did not submit evidence
sufficient to raise a triable issue of whether her termination
for her various UNAX violations was pretext for age or
national origin discrimination.” Because we agree with the
Secretary, we affirm.
A. Legal Framework
“[W]hen responding to a summary judgment motion” in
a discrimination suit under ADEA or Title VII, the plaintiff
“may proceed by [either] using the McDonnell Douglas
framework,” as established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), “or alternatively, may simply
24 OPARA V. YELLEN
produce direct or circumstantial evidence demonstrating that
a discriminatory reason more likely than not motivated” the
defendant’s contested conduct. Metoyer v. Chassman, 504
F.3d 919, 931 (9th Cir. 2007) (quoting McGinest v. GTE
Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004)), abrogated
on other grounds by Nat’l Ass’n of African Am.-Owned
Media v. Charter Commc’ns, Inc., 915 F.3d 617 (9th Cir.
2019); see also Wallis v. J.R. Simplot Co., 26 F.3d 885, 888
(9th Cir. 1994) (“[T]he burdens of proof and persuasion are
the same” for Title VII and ADEA claims.). Under either
approach, staving off a motion for summary judgment on
disparate treatment claims under ADEA and Title VII entails
three steps.
1. Step One: The Prima Facie Case
A plaintiff must first make out a prima facie case of her
discrimination claim. The plaintiff may do so either “by
using the McDonnell Douglas framework, or
alternatively, may simply produce direct or circumstantial
evidence 9 demonstrating that a discriminatory reason more
9
We note it appears that this court has variably identified circumstantial
evidence as an independent avenue to establish a prima facie case.
Compare Weil v. Citizens Telecom Servs. Co., 922 F.3d 993, 1002 n.7
(9th Cir. 2019) (“In opposing a motion for summary judgment, a plaintiff
. . . may either produce direct or circumstantial evidence that a
discriminatory reason motivated the defendant’s employment decision,
or alternatively may establish a prima facie case under the McDonnell
Douglas burden-shifting framework.” (citing McGinest, 360 F.3d at
1122)), with Yoshikawa v. Seguirant, 41 F.4th 1109, 1119 (9th Cir. 2022)
(“‘[A] plaintiff can prove disparate treatment either (1) by direct
evidence . . . or (2) by using the burden-shifting framework set forth in
McDonnell Douglas.’” (ellipsis in original) (quoting Young v. United
Parcel Serv., Inc., 575 U.S. 206, 213 (2015))). Because the parties have
not themselves identified such variance, and because we do not assess
OPARA V. YELLEN 25
likely than not motivated” the employer. McGinest, 360
F.3d at 1122 (footnote not in original) (Title VII case); see
also Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1409
(9th Cir. 1996) (applying the same principle in an ADEA
case).
a. McDonnell Douglas Factors
Establishing a prima facie case of national origin
discrimination via the McDonnell Douglas factors generally
requires a plaintiff to show: “(1) [s]he belongs to a protected
class; (2) [s]he was qualified for the position; (3) [s]he was
subject to an adverse employment action; and (4) similarly
situated individuals outside [her] protected class were
treated more favorably.” Chuang v. Univ. of Cal. Davis, Bd.
of Trs., 225 F.3d 1115, 1123 (9th Cir. 2000) (citing
McDonnell Douglas, 411 U.S. at 802). 10
In the ADEA context, the following factors give rise to a
prima facie showing of age discrimination: (1) membership
in a protected class (forty years old or older); (2) satisfactory
any “clear[] inconsisten[cy]” among these formulations, Lair v. Bullock,
697 F.3d 1200, 1207 (9th Cir. 2012) (quoting United States v. Orm
Hieng, 679 F.3d 1131, 1141 (9th Cir. 2012)), we do not address this point
further.
10
The Supreme Court has been clear that while these four factors supply
“an appropriate model for a prima facie case of . . . discrimination”
under Title VII, see Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 n.6 (1981) (emphasis added), they will “not necessarily [be]
applicable in every [case],” id. (internal quotation marks omitted)
(quoting McDonnell Douglas, 411 U.S. at 802 n.13). Accordingly, “the
fact[ors] sufficient to raise an inference of discrimination necessarily will
vary depending upon the situation.” Foster v. Arcata Assocs., Inc., 772
F.2d 1453, 1460 (9th Cir. 1985), overruled on other grounds by Kennedy
v. Allied Mut. Ins. Co., 952 F.2d 262, 266–67 (9th Cir. 1991).
26 OPARA V. YELLEN
job performance; (3) discharge; and (4) replacement by
“substantially younger employees with equal or inferior
qualifications.” Coleman v. Quaker Oats Co., 232 F.3d
1271, 1281 (9th Cir. 2000). 11
“[U]nder the McDonnell Douglas framework, ‘[t]he
requisite degree of proof necessary to establish a prima facie
case . . . on summary judgment is minimal and does not even
need to rise to the level of a preponderance of the evidence.’”
Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062
(9th Cir. 2002) (second brackets in original) (quoting Wallis,
26 F.3d at 889).
b. Direct or Circumstantial Evidence
Nothing compels reliance on the McDonnell Douglas
factors to establish a prima facie case, see Metoyer, 504 F.3d
at 931; see also Schnidrig, 80 F.3d at 1409; a plaintiff may
alternatively offer direct or circumstantial evidence of
discriminatory motive to establish her prima facie case.
While the line between direct and circumstantial evidence
can be elusive, see, e.g., Costa v. Desert Palace, Inc., 299
F.3d 838, 851–54 (9th Cir. 2002) (en banc), aff’d, 539 U.S.
90 (2003), “direct evidence” has been “defined as ‘evidence
of conduct or statements by persons involved in the decision-
making process that may be viewed as directly reflecting the
alleged discriminatory attitude . . . .” Enlow v. Salem-Keizer
Yellow Cab Co., 389 F.3d 802, 812 (9th Cir. 2004) (internal
quotation marks omitted) (quoting Walton v. McDonnell
Douglas Corp., 167 F.3d 423, 426 (8th Cir. 1999)). “When
11
As with Title VII claims, the “facts that a plaintiff must assert to raise
an inference of discrimination under . . . ADEA have not been
predetermined,” such that the prima facie factors can “vary depending
upon the situation.” Foster, 772 F.2d at 1460.
OPARA V. YELLEN 27
a plaintiff . . . seeks to establish a prima facie case through
the submission of actual evidence, very little such evidence
is necessary.” Schnidrig, 80 F.3d at 1409.
2. Step Two: Legitimate, Nondiscriminatory
Reason
Whether a plaintiff establishes her prima facie claim of
disparate treatment using direct or circumstantial evidence
or the McDonnell Douglas factors, “[o]nce a prima facie
case [of discrimination] has been made, ‘[t]he burden . . .
shifts to the employer to articulate some legitimate,
nondiscriminatory reason for the challenged action.’”
Boeing Co., 577 F.3d at 1049 (second brackets in original)
(quoting Chuang, 225 F.3d at 1123–24). 12 “This burden is
one of production, not persuasion . . . [and] involve[s] no
credibility assessment.” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 142 (2000) (internal quotation
12
See e.g., Boeing Co., 577 F.3d at 1049–50 (first finding plaintiff
established a prima facie case of Title VII discrimination on the basis of
“direct evidence of discriminatory animus” and then finding that
defendant satisfied its burden of “articulat[ing] legitimate,
nondiscriminatory reasons for its decision”); McGinest, 360 F.3d at1122–23 (first finding plaintiff established a prima facie case of Title VII
discrimination under the McDonnell Douglas factors then finding the
defendant satisfied its burden of producing a legitimate,
nondiscriminatory reason for the action); Schnidrig, 80 F.3d at 1409–10
(where plaintiff “did not attempt to establish the [McDonnell Douglas]
factors giving rise to a presumption of [age] discrimination,” first finding
plaintiff established a prima facie case of age discrimination via “direct
evidence of discriminatory motives” and then finding the defendant
satisfied its burden by “offer[ing] three nondiscriminatory reasons” for
its actions); Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983)
(establishing the same two steps in an ADEA case relying on the
McDonnell Douglas factors).
28 OPARA V. YELLEN
marks omitted) (quoting St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502, 509 (1993)).
3. Step Three: Pretext
Finally, regardless of the approach a plaintiff takes on
step one—i.e., establishing the prima facie case via direct or
circumstantial evidence or the McDonnell Douglas
factors—once an employer articulates some legitimate,
nondiscriminatory reason for the challenged action, the
employee must show that the articulated reason is pretextual.
See e.g., McGinest, 360 F.3d at 1123 (discussing pretext
showing in Title VII case utilizing McDonnell Douglas
factors); see also Schnidrig, 80 F.3d at 1410 (discussing
pretext showing in ADEA case utilizing direct evidence).
Here too, a plaintiff can prove pretext in multiple ways,
either: (1) “directly, by showing that unlawful
discrimination more likely [than not] motivated the
employer;” (2) “indirectly, by showing that the employer’s
proffered explanation is ‘unworthy of credence’ because it is
internally inconsistent or otherwise not believable;” or via “a
combination of the[se] two kinds of evidence.” Chuang, 225
F.3d at 1127 (quoting Godwin v. Hunt Wesson, Inc., 150
F.3d 1217, 1220–22 (9th Cir. 1998)).
Under any approach, generally, “very little[] evidence is
necessary to raise a genuine issue of fact regarding an
employer’s motive.” McGinest, 360 F.3d at 1124 (alteration
in original) (internal quotation marks omitted) (quoting
Schnidrig, 80 F.3d at 1409). For instance, the Supreme
Court has instructed that “a plaintiff’s prima facie case,
combined with . . . evidence . . . that the employer’s asserted
justification is false, may” be enough. Reeves, 530 U.S. at
OPARA V. YELLEN 29
148 (emphasis added). 13 However, the plaintiff at all times
retains “[t]he ultimate burden of persuading the trier of fact,”
St. Mary’s, 509 U.S. at 507 (internal quotations omitted)
(quoting Burdine, 450 U.S. at 253), that an employer’s
contested action was “due in part or [in] whole to
discriminatory intent,” McGinest, 360 F.3d at 1123.
Accordingly, where “abundant and uncontroverted
independent evidence” suggests that “no discrimination . . .
occurred,” plaintiff’s “creat[ion of] only a weak issue of fact
as to whether the employer’s reason was untrue” will not
suffice. Reeves, 530 U.S. at 148.
B. The district court did not err in granting the
Treasury Secretary’s motion for summary
judgment on Opara’s age discrimination claim.
A de novo application of the above legal framework
occasions our conclusion that the district court did not err in
granting the Treasury Secretary’s motion for summary
judgment on Opara’s age discrimination claim, even if our
path to affirming may “differ[] [somewhat] from the
rationale of the district court.” Nat’l Wildlife Fed’n, 384
F.3d at 1170 (quoting Martinez–Villareal, 80 F.3d at 1305).
1. Step One: The Prima Facie Case
The district court found that “[n]one of Plaintiff’s
evidence establishes a prima facie case of age
discrimination.” In so holding, the court reasoned that Opara
“relie[d] on circumstantial evidence” to establish her prima
facie case, rather than on direct evidence, and assessed the
13
Though we note the Supreme Court’s qualification that “the
factfinder’s rejection of the employer’s legitimate, nondiscriminatory
reason for its action does not [necessarily] compel judgment for the
plaintiff.” Reeves, 530 U.S. at 146 (citing St. Mary’s, 509 U.S. at 511).
30 OPARA V. YELLEN
McDonnell Douglas factors for age discrimination claims.
The district court found that because Opara “ha[d] not
provided any evidence as to whether Defendant replaced her
with a ‘substantially younger employee[] with equal or
inferior qualifications,’” she failed to establish a prima facie
case of age discrimination. (second brackets in original)
(quoting Coleman, 232 F.3d at 1281).
On appeal, Opara maintains that she can establish a
prima facie case of age discrimination through direct
evidence of discriminatory motive, and thus need not prove
the McDonnell Douglas factors. 14 We agree with the district
court that most of Opara’s evidence comprises
“circumstantial evidence”—namely, her superiors’ alleged
“exaggeration” of the offenses, assignment of “menial
tasks,” selection of “draconian” penalties, etc. However, we
do not conclude that the record is devoid 15 of direct evidence
of age discrimination, which “in the context of an ADEA
claim,” can comprise “statements by persons involved in the
decision-making process that may be viewed as directly
reflecting the alleged discriminatory attitude.” Enlow, 389
14
In stating that she “was not privy to who replaced her,” the Secretary
suggests Opara acknowledges that she cannot make out a prima facie
case of age discrimination via the McDonnell Douglas factors because
she cannot establish the fourth factor (replacement by “substantially
younger employees with equal or inferior qualifications”). This
argument is not dispositive because, as we have noted, supra notes 10
and 11, the McDonnell Douglas factors are not “predetermined” and can
“vary depending upon the situation.”
15
Recall that in the “context of summary judgment,” “the court must
review the record ‘taken as a whole.’” Reeves, 530 U.S. at 150 (quoting
Matsushita, 475 U.S. at 587); see also Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255–56 (1986).
OPARA V. YELLEN 31
F.3d at 812 (internal quotation marks omitted) (quoting
Walton, 167 F.3d at 426).
Here, record evidence—for example, interrogatory
responses—detail Opara’s account that she previously
lodged a successful EEO complaint against Savala, which
ostensibly derived in part from Savala’s quotation of
“general comments” by Territory Manager Alvarado that “if
anyone is too old to do this job, she should quit” and that
“the job was better with young people.” Where Alvarado
later served as the “hearing official” at the January 29, 2018
oral reply precipitating Opara’s termination, we consider
Opara’s interrogatories to raise a question of material fact as
to whether “persons involved in the decision-making
process” 16 made “statements . . . reflecting [a]
discriminatory attitude.” Enlow, 389 F.3d at 812 (internal
quotation marks omitted) (quoting Walton, 167 F.3d at
426). 17
Because “very little . . . evidence is necessary” to
establish a prima facie case through direct evidence,
16
Whether Alvarado indeed qualifies as a “person involved in the
decision-making process” is a genuine issue of material fact; after all,
Alvarado was the “hearing official” at Opara’s oral reply—a step in the
process of the disciplinary proceedings that resulted in her termination.
17
We note that it is not decisive that Alvarado’s alleged remarks were
“general comments” not directed at Opara specifically. See Boeing, 577
F.3d at 1050 (finding supervisor’s statements “sufficient to create an
inference of discriminatory motive even though the comments were not
directed specifically at [a plaintiff] or made in regard to decisions about
her employment” when considered along with supervisor’s other
conduct). Nor is it decisive that Alvarado reportedly made the alleged
remarks many years prior. See Metoyer, 504 F.3d at 937 (“[W]e have
held that remarks by such a decisionmaker tend to show bias, even if
several years old.”).
32 OPARA V. YELLEN
Schnidrig, 80 F.3d at 1409, and because “uncertainty at the
summary judgment stage must be resolved in favor of the
plaintiff,” McGinest, 360 F.3d at 1124, we are satisfied that
“the record ‘taken as a whole’” supports Opara’s prima facie
case of age discrimination. Reeves, 530 U.S. at 150 (quoting
Matsushita, 475 U.S. at 587).
2. Step Two: Legitimate, Nondiscriminatory
Reason
Having passed the prima facie stage, “[t]he burden . . .
shifts to the employer to articulate some legitimate,
nondiscriminatory reason for the challenged action.” Boeing
Co., 577 F.3d at 1049 (brackets in original) (internal
quotation marks omitted) (quoting Chuang, 225 F.3d at1123–24). Opara argues that Miller discriminated against
her by proposing her termination and “humiliat[ing]” her
with “menial tasks,” and that Harris discriminated against
her by terminating her without offering the opportunity to
retire after twenty-seven years with “no history of
discipline.”
The Secretary counters that (1) the IRS Manager’s Guide
required Miller to propose removal at the proposal stage; (2)
Opara was assigned to “normal administrative work”
following her suspension of access to the IDRS system; and
(3) the IRS Manager’s Guide instructs that Harris’s decision
to terminate Opara was an appropriate penalty for the
assessed UNAX(c) and UNAX(e) violations. Because the
Secretary’s burden “is one of production, not persuasion . . .
[and] involve[s] no credibility assessment,” the Secretary’s
proffered legitimate, nondiscriminatory reasons for its action
are sufficient. Reeves, 530 U.S. at 142 (internal quotation
marks omitted) (quoting St. Mary’s, 509 U.S. at 509).
OPARA V. YELLEN 33
3. Step Three: Pretext
Since the Secretary has articulated legitimate,
nondiscriminatory reasons to explain the challenged actions,
the burden shifts back to Opara to show that defendant’s
articulated reasons are pretextual. See McGinest, 360 F.3d
at 1123; Schnidrig, 80 F.3d at 1410. Opara attempts to prove
pretext through a combination of direct and indirect
evidence. See Chuang, 225 F.3d at 1127. Although, here
too, “very little[] evidence is necessary to raise a genuine
issue of fact regarding an employer’s motive,” McGinest,
360 F.3d at 1124 (alteration in original) (internal quotation
marks omitted) (quoting Schnidrig, 80 F.3d at 1409),
because we assess that Opara has “created only a weak issue
. . . as to whether the [Secretary]’s reason[s] w[ere] untrue”
against a backdrop of “abundant and uncontroverted
independent evidence that no discrimination has occurred,”
Reeves, 530 U.S. at 148, she has not carried her “ultimate
burden of persua[sion],” Burdine, 450 U.S. at 253. As such,
we affirm the district court’s grant of summary judgment to
the Secretary on Opara’s age discrimination claim.
Concerning direct evidence, the only record support for
Opara’s claim of age discrimination appears to be her
aforementioned account of Alvarado’s alleged comments
that “anyone . . . too old to do this job . . . should quit” and
that “the job was better with young people” underpinning her
previous EEO complaint. 18 While we deemed these alleged
18
All other direct references to Opara’s age in the record are those that
Opara herself injected. For instance, when asked by TIGTA
investigators “if she personally knew any of the walk-in taxpayers that
she assisted,” Opara reportedly responded “that she was sixty-three (63)
years old and she did not remember like she used to.” Although Harris
34 OPARA V. YELLEN
comments by Alvarado to be sufficient direct evidence to
support a prima facie case of age discrimination, at the
pretext stage, we have “refused to find a ‘genuine issue’
where the only evidence presented is ‘uncorroborated and
self-serving’ testimony.” Villiarimo, 281 F.3d at 1059–63,
1059 n.5 (quoting Kennedy v. Applause, Inc., 90 F.3d 1477,
1481 (9th Cir. 1996)) (after entertaining plaintiff’s prima
facie case of sex discrimination, holding that plaintiff had
“not demonstrated [defendant employer’s] explanations for
her termination . . . [were] pretextual” because plaintiff
“cite[d] only her own self-serving and uncorroborated
affidavit and deposition testimony” that male colleagues
were “punished less severely” for similar mistakes). 19
Because Opara’s direct record evidence of age-related
discriminatory animus consists of her own allegations, 20 as
did reference these age-related comments by Opara in the final removal
letter dated May 11, 2018, such references were used only to support
Harris’s assessment that Opara was “evasive and misleading” with
TIGTA—thereby meriting termination—and not to suggest that
termination was due to Opara’s age.
19
Cf. Chuang, 225 F.3d at 1128 n.13 (declaring “[t]he fact that [a
discriminatory] incident was related in the declaration of a faculty
member other than [plaintiffs] strengthens its value as direct evidence of
discriminatory intent” at the pretext stage); Cordova v. State Farm Ins.
Cos., 124 F.3d 1145, 1150 (9th Cir. 1997) (holding plaintiff “set forth
enough evidence of pretext to survive summary judgment” where she
offered a coworker’s affidavit recounting certain discriminatory remarks
made by defendant employer); Schnidrig, 80 F.3d at 1411 (holding
plaintiff produced sufficient evidence to raise a genuine issue as to
whether defendant employer’s proffered reasons were pretext for age
discrimination where plaintiff “did more than offer mere allegations of
discriminatory intent”).
20
We note the record does not even definitively implicate Alvarado in
Opara’s prior EEO activity.
OPARA V. YELLEN 35
in Villiarimo, the proffered direct evidence is insufficient to
raise a genuine issue as to pretext.
Opara’s indirect evidence likewise does not “raise a
genuine issue of fact regarding [her] employer’s motive.”
McGinest, 360 F.3d at 1124 (internal quotation marks
omitted) (quoting Schnidrig, 80 F.3d at 1409). This is so,
because Opara’s circumstantial allegations—namely, that:
(1) Miller “greatly exaggerated her findings” in the “Notice
of Proposed Adverse Action” and (2) assigned Opara
“demeaning tasks” “for the remainder of her employment,”
and that (3) Harris could have selected a “penalty less
harsh,” 21—establish neither that the Secretary’s “asserted
justification[s] [were] false,” Reeves, 530 U.S. at 148, nor
that the Secretary’s adverse action was “due in part or [in]
whole to discriminatory intent,” McGinest, 360 F.3d at 1123.
Addressing the allegations of discrimination by Miller
first, it is undisputed that Opara committed at least some
UNAX offenses, even if Opara disagrees that she committed
a UNAX(e) offense. Per the IRS’s process in effect at the
time of this action, Miller assumed the role of the “proposal
official” in Opara’s disciplinary proceedings. The IRS
Manager’s Guide unequivocally states that “[r]emoval is an
appropriate penalty for all UNAX violations and must be
proposed at the proposal stage.” (emphasis added).
Moreover, regarding Opara’s claims of “humiliation” by
Miller, all parties acknowledge that it is “standard
21
Opara addresses Harris’s involvement in the section of her opening
brief laying out the prima facie case. There, Opara asserts that Harris’s
exercise of discretion in choosing to fire her “creates a genuine issue of
material fact as to why Miller and Harris wanted to terminate a 27 year
exemplary employee instead of a penalty less harsh.” Because this
argument speaks to pretext, we consider it here.
36 OPARA V. YELLEN
procedure” to deny IDRS access to any employee under
investigation for UNAX violations until a disciplinary
decision has been reached. Opara herself admitted that
without access to IDRS she could not perform her standard
duties as an IRS Revenue Officer. As such, local IRS
management reassigned Opara to “normal administrative
work,” which Harris declared—and Opara acknowledged—
included tasks such as washing the office car.
Finally, concerning Harris’s termination of Opara, the
IRS management assessed that Opara committed multiple
UNAX violations, including a UNAX(e) offense. The IRS
Manager’s Guide delineates that removal is the appropriate
penalty for multiple UNAX(c) offenses as well as the
appropriate penalty for any UNAX(e) offense. Opara
invokes the non-binding McLeod case to suggest that she did
not in fact commit a UNAX(e) offense, however, this
argument amounts to nothing more than an assertion that
Harris’s assessment was incorrect, which we have said is not
the equivalent of proving “falsity.” Villiarimo, 281 F.3d at
1063. Even if Harris, as the “deciding official,” perhaps
could have “imposed” a “less severe penalt[y] . . . at the
decision stage”—a point on which we take no view—her
selected course of action accorded with the IRS Manager’s
Guide in effect at the time.
In short, because Opara has not raised a genuine issue as
to whether her termination was due in whole or in part to age
discrimination, we affirm the district court’s grant of
summary judgment to the Secretary on Opara’s first claim.
C. The district court did not err in granting the
Treasury Secretary’s motion for summary
OPARA V. YELLEN 37
judgment on Opara’s national origin
discrimination claim.
Here too, a de novo application of the governing legal
framework indicates that the district court did not err in
granting the Treasury Secretary’s motion for summary
judgment on Opara’s national origin discrimination claim.
1. Step One: The Prima Facie Case
Concerning her claim of national origin discrimination,
Opara seems to rely exclusively on circumstantial evidence
to establish her prima facie case, namely: (1) Miller’s
allegedly “extremely deceptive” and “over the top”
assessment of Opara’s offenses in the “Notice of Proposed
Adverse Action;” (2) Miller’s assignment of Opara to menial
tasks ostensibly “stereotypical of uneducated people of
color;” (3) Alvarado’s attendance at her oral reply on
January 29, 2018 22; and (4) that Opara was “treated so
harshly” for a “mistake [made] in good faith.” 23
22
Unlike with her age discrimination claim, Opara has not alleged that
Alvarado made statements directly reflective of discriminatory animus
based on national origin. Thus, we here assess that Alvarado’s alleged
implication in Opara’s prior age and national origin-focused EEO
complaint and subsequent participation in her oral reply comprise
circumstantial evidence, rather than direct evidence, of discrimination
based on national origin.
23
Any direct references implicating Opara’s national origin in the record
appear to be ones that Opara herself engendered. For example, at the
supplemental oral reply held on April 20, 2018, Opara reportedly
attributed her misconduct, at least in part, to a language barrier.
Although Harris did reference this comment by Opara in the final
removal letter dated May 11, 2018, such reference was used only to
support Harris’s assessment that Opara “fail[ed] to take responsibility for
38 OPARA V. YELLEN
Ultimately, we need not and do not decide whether
Opara can establish a prima facie case of national origin
discrimination because even assuming arguendo that she
can, her claim fails at the pretext stage.
2. Step Two: Legitimate, Nondiscriminatory
Reason
Proceeding to the second step, the Secretary satisfies her
“burden of production . . . to articulate . . . legitimate,
nondiscriminatory reason[s] for the challenged action,”
Chuang, 225 F.3d at 1123–24, for the same reasons as those
laid out in the discussion of Opara’s age discrimination
claim. Supra pp. 30–31.
3. Step Three: Pretext
The third step is fatal to Opara’s claim, as she fails to
prove that the Secretary’s proffered reasons for termination
were pretext for discrimination based on national origin.
Opara essentially recycles her unsuccessful arguments
underpinning the age discrimination claim, while adding that
“if she were Hispanic, she would not have been terminated
and would have at least been given the option to retire.” But
“mere ‘conclusory allegations,’” such as these, are
“insufficient,” McGinest, 360 F.3d at 1113 n.5 (quoting
Nat’l Steel Corp. v. Golden Eagle Ins. Co., 121 F.3d 496,
502 (9th Cir. 1997)), “to raise a genuine issue of fact
regarding an employer’s motive,” id. at 1124 (quoting
Schnidrig, 80 F.3d at 1409).
Moreover, rebutting Opara’s additional contention that
she was not “given the option to retire” based on race,
[her] actions”–thereby meriting termination—and not to suggest that
Opara’s termination was due to any “language barrier.”
OPARA V. YELLEN 39
Miller’s “Notice of Proposed Adverse Action” dated
October 23, 2017 explained that “[a]fter reviewing the
evidence and the [IRS Manager’s Guide],” Miller assessed
that Opara’s “misconduct is a ‘UNAX . . . Section e, which
falls into the penalty range of removal for a first offense.”
Thus, Opara was on notice that her termination was a
possibility. “As to retirement,” Harris averred that
“management cannot make that decision for an employee.
[Opara] could have submitted retirement paperwork at any
point but did not.”
In short, even assuming arguendo that Opara can
establish a prima facie case of national origin discrimination,
she does not succeed in creating a genuine issue as to
whether Miller and Harris’s proffered reasons were “false”
or whether her termination was due in whole or in part to her
national origin. Accordingly, the district court appropriately
granted summary judgment to the Secretary on Opara’s
second claim alleging discrimination on the basis of national
origin.
IV. CONCLUSION
For the foregoing reasons, we affirm the district court’s
grant of summary judgment to the Treasury Secretary.