National Origin Discrimination Claim Properly Dismissed, Ninth Circuit Concludes

In Opara v. Yellen, 2023 WL 193678 (9th Cir. Jan. 17, 2023), the court, inter alia, affirmed the dismissal of plaintiff’s national origin discrimination claim.

As in many, if not most, employment discrimination cases, the plaintiff failed to establish that, even assuming plaintiff established a prima facie case of discrimination, they failed to demonstrate that the legitimate, nondiscriminatory reasons proffered for the challenged action did not amount to a “pretext” for unlawful discrimination.

From the decision:

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, 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.”

The court concluded that “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,” and, therefore, the district court properly granted summary judgment to the defendant on plaintiff’s claim of national origin discrimination.

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