Opara v. Yellen

• Citation: 57 F.4th 709
• Decision Date: 17 January 2023
• Docket Number: 21-55953
• Parties: Joan OPARA, Plaintiff-Appellant, v. Janet YELLEN, Secretary of the Treasury, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

57 F.4th 709

Joan OPARA, Plaintiff-Appellant,

v.Janet YELLEN, Secretary of the Treasury, Defendant-Appellee.

No. 21-55953

United States Court of Appeals, Ninth Circuit.

Submitted July 12, 2022^* Pasadena, California

Filed January 17, 2023

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.

Before: Kim McLane Wardlaw and Mark J. Bennett, Circuit Judges, and Gary S. Katzmann,^** Judge.

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.

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 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 the Merit Systems Protection Board ("MSPB") in Douglas v. Veterans Administration , 5 M.S.P.B. 313, 5 MSPR 280 (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 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:

Taxpayers A and B⁶ 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.

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 call⁷ 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. 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

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