Former Employee

Could Not Rely On Her Own Declaration To Prove Discriminatory Pretext.

Joan Opara, a 62-year old woman of Nigerian national origin, worked as a Revenue Officer at the Internal Revenue Service (IRS). Opara was investigated for several alleged Unauthorized Access of Taxpayer Data (UNAX) offenses. Pending the investigation, she was reassigned to administrative work which included, among other tasks, washing the office’s government vehicle and cleaning cubicles.

After the investigation, Opara received an opportunity to respond to the charges at a meeting before Paul Alvarado, who was the hearing official. Seven years prior, Opara had successfully brought an EEO complaint against Alvarado’s mentee Rosanna Savala because Savala allegedly quoted Alvarado with phrases such as “if anyone is too old to do this job, she should quit” and “the job was better with young people.” Opara alleged that her superiors exaggerated the nature and severity of her several UNAX offenses. The IRS terminated Opara’s employment.

After unsuccessfully pursuing an EEO complaint, Opara sued the Treasury Secretary in the U.S. District Court alleging that her termination was based on her age and national origin in violation of the Age Discrimination in Employment Act (ADEA), and Title VII, 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’s proffered reasons for her termination were a pretext for age or national origin discrimination.

On appeal, the Ninth Circuit applied the McDonnell Douglas burden-shifting framework, which first requires the employee to establish a prima facie case of discrimination. Upon doing so, the burden then shifts to the employer to produce a legitimate, non-discriminatory reason for the adverse action. If the employer can do so, the burden shifts back to the employee to show that the employer’s proffered reason is a pre-text for discrimination.

An employee may offer direct or circumstantial evidence to establish her prima facie case. Here, Opara offered circumstantial evidence: her uncorroborated testimony about the decision maker’s allegedly biased statements; the alleged exaggeration of the severity of Opara’s UNAX offenses; and the alleged “draconian” punishment of cleaning cubicles and cars.

The Ninth Circuit held that very little evidence of discriminatory animus is necessary to establish a prima facie case of age discrimination on a motion for summary judgment. Opara’s three pieces of evidence were enough to establish a prima facie case. However, once the employer provides sufficient evidence for its actions and the burden of proof shifts back to the employee, the employee’s own, uncorroborated allegations alone are not enough to raise a genuine issue as to pretext.

The Ninth Circuit held that the IRS had met its burden of proving legitimate, nondiscriminatory reasons for its decisions. First, once a Revenue Officer is under investigation for a UNAX offense, the Officer cannot access the computer system necessary to perform her usual duties. Second, the assignment to cleaning duties, including cleaning the office and a vehicle, were undisputedly the type of duties that were performed by secretarial staff. Third, the supervisor’s manual stated that termination was the appropriate penalty for a first time UNAX violation.

The Ninth Circuit held that Opara failed to meet her burden to show that the IRS’s reasons for her termination were a pretext for age discrimination. At the pretext stage, Opara could not rely on her testimony about the agebiased statements the decision maker allegedly made to prove that the IRS’s proffered reasons for Opara’s termination were pre-textual. The Ninth Circuit stated that at the pretext stage on a motion for summary judgment, the court has “refused to find a ‘genuine issue’ where the only evidence presented is ‘uncorroborated and selfserving’ testimony.”

Similarly, the Ninth Circuit assumed that even if Opara could establish a prima facie case of national origin discrimination, she would not succeed in using her own testimony to create a genuine issue as to whether the proffered reasons for her termination were “false” or whether her termination was due in whole or in part to her national origin.

Because Opara had no evidence other than her uncorroborated statements to support her claim of pretext, the Ninth Circuit affirmed the summary judgment against her.

Opara v. Yellen, 57 F.4th 709 (9th Cir. 2023).

Note:

This case highlights how powerful a motion for summary judgement can be in a discrimination case. An employer can avoid a costly trial if the person suing has not produced any corroboration of her allegations of discriminatory animus.

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The Deliberative Process

Privilege Broadly Protects Records That Reveal An Agency’s Collective Bargaining Evaluations, Research, Theories, Or Strategy.

In January and March 2020, an organization called the Freedom Foundation submitted two requests under the California Public Records Act (CPRA). The CPRA generally requires a public agency to disclose public records upon request, unless an exemption or privilege applies.

The Freedom Foundation requested a variety of information on the bargaining unit membership of state employees. For each employee currently employed in certain bargaining units, it requested: full name, month and year of birth, job classification title, job classification code, employee identification number, hire date, current pay rate/salary, work email address, worksite/duty station address, and bargaining unit number.

The California Department of Human Resources (CalHR) had the information requested via a report it purchased on a yearly basis from the database of another department of the state government. CalHR then used this report to inform its decisions about formulating bargaining proposals, evaluate proposals from unions, and inform and direct its negotiators concerning labor relations.

Because CalHR uses the information the Freedom Foundation requested in a strategic manner and to inform its decisions, CalHR contended it did not have to provide the information due to the deliberative process privilege. The Freedom Foundation argued that the privilege did not apply because no decision or strategy was contained in the records requested; the records contained only the information used in making a decision or strategy.

However, the trial court stated that the relevant definition of the deliberative process privilege is not only records that reveal a state agency’s deliberative process, but also records that reveal a state agency’s impressions, evaluations, opinions, recommendations, meeting minutes, research, work products, theories, or strategy. The trial court found that the requested information revealed CalHR’s research and evaluation of information, and therefore, the information was protected by the deliberative process privilege.

The Freedom Foundation appealed to the California Court of Appeal, which promptly affirmed the lower court’s decision.

A related issue in this case dealt with whether CalHR was required to search the database of the other government department to come up with the information requested. As referenced above, that other government department owned, controlled, and operated this database. CalHR did not possess the database or have the power or authority to manage, direct, or oversee the information within it. All CalHR did was view the parts of the database contained in the report it obtained. Because CalHR did not have control over or possess the relevant files, the trial court and Court of Appeal held that CalHR was not required to search the other agency’s database and provide further information.

Freedom Foundation v. Superior Court of Sacramento County, 302 Cal.Rptr.3d 655 (2022).

Note:

This case illustrates the breadth and depth of the deliberative process privilege, and how agencies can use it to protect internal collective bargaining deliberations and strategies. Although this case concerned the deliberative process for state agencies at the newly recodified Public Records Act at Government Code section 7928.405, an identical deliberative process statute for local government agencies is codified at Government Code Section 7928.410.