AGE DISCRIMINATION: EMPLOYEE’S SUSPICION NOT ENOUGHOlder Worker Needs More Than Her Belief of Unequal Treatment « Law Offices of Timothy Bowles | Top Employment Law Firm in Los Angeles


Older Worker Needs More Than Her Belief of Unequal Treatment

The federal Ninth Circuit Court of Appeals recently confirmed that a former worker’s self-professed speculation that her employer terminated her due to her age and national origin was insufficient to establish a discrimination claim. Opara v. Yellen.

Joan Opara served for 27 years as an IRS Revenue Officer.  After the agency terminated her for alleged unauthorized access to tax returns of  friends and associates, she claimed the firing was improperly motivated by her age (over 39) and national origin (Nigerian) in violation of the Age Discrimination in Employment Act (ADEA) and the Civil Rights Act of 1964. On review of the elements of federal age and national discrimination claims, the Ninth Circuit agreed with the lower court’s pre-trial dismissal of her case for lack of sufficient evidence.

To determine an employee’s liability for age discrimination:

● The plaintiff-employee must establish a prima facie (“at first sight” or “first impression”) case, including: (1) her or his membership in the protected class (40 years old or older, employed by a company with 20 or more on payroll); (2) satisfactory job performance; (3) discharge; and (4) replacement by “substantially younger employees with equal or inferior qualifications”; and

● If the employer can then “articulate some legitimate, nondiscriminatory reason for the challenged action,” the employee must show  that the articulated reason is pretextual, “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 (3) via a combination of these two kinds of evidence.”

While the Ninth Circuit panel found Opara had satisfied the prima facie step to take her case to trial, she failed to adequately deflate the IRS’s showing of legitimate bases for her termination — i.e., her various reported violations of the tax return access laws — as false, pretextual justifications.

Opara’s sole evidence was her “uncorroborated and self-serving testimony.” To qualify her case for a trial, Opara would have to have presented more than “mere conclusory allegations.”

The appeals court also agreed with the lower court’s dismissal of Opara’s national origin discrimination claims for the same reason, not sufficient independent indication of the employer’s pretext.

Take Away:  Unfortunately, frivolous workplace discrimination accusations are not rare.  The Opara decision underscores that when an employer can show a former worker is just speculating about improper discrimination in his/her termination, it can avoid trial.

See also:

Tim Bowles
March 10, 2023

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