Labor & Employment Law Daily Wrap Up, RETALIATION—8th Cir.: IRS agent can’t revive claims of discriminatory non-promotion, retaliatory proposed firing, (May 12, 2025)

By Marjorie Johnson, J.D.

Though “[a] letter proposing to terminate an employee could dissuade a reasonable worker from advancing a charge of discrimination,” she failed to show a causal connection to her EEOC complaint.

A 53-year-old Black special agent for the IRS failed to convince the Eighth Circuit to reinstate her lawsuit alleging the agency engaged in race, sex and age discrimination when it declined to select her for a criminal investigator position and instead selected a non-Black male who was the hiring committee’s “number 1 option,” and then retaliated against her for filing an EEOC complaint by proposing she be fired for alleged misconduct. Affirming dismissal of her claims on summary judgment, the Eighth Circuit concluded that she failed to present any evidence suggesting the hiring decision was pretextual, and the seven-month gap between her protected activity and the adverse action was too tenuous to suggest causation (Hester v. U.S. Dept. of Treasury, No. 24-2039 (8th Cir. May 9, 2025)).

Job posting. The employee began work as a special agent for the IRS in Iowa in 2006. Her responsibilities included developing education materials and serving as an instructor for incoming special agents. In December 2020, the IRS posted a job announcement for two openings for the position of criminal investigator and senior resident course developer/instructor (RCDI) in Georgia.

Not selected. In March 2021, she interviewed with a panel consisting of the national training academy director (the selecting official), the assistant director, and the supervisory academy instructor. After the interviews, the selecting official sent an email to the acting deputy director explaining that: “In the end, we all agreed that [the non-Black male candidate] is our number 1 option and [the plaintiff] is our number 2 option for these positions,” The selecting official concluded that her recommendation was to offer the positions to both candidates.

A few hours later, the deputy director replied: “Given our upcoming HQ re-organization, I am going to limit you to one selection at this time. I will leave the one applicant selection to you.” The employee was notified that she did not get the job.

Proposed firing after EEOC complaint. On July 9, 2021, she filed a complaint with the EEOC alleging race, age, and sex discrimination. Seven months later, she received a notice from the IRS proposing her removal as a special agent, citing conduct inconsistent with her law enforcement duties and misuse of a government-owned vehicle. She filed a retaliation complaint with the EEOC.

Termination rescinded. On June 24, 2022, the IRS sent a letter terminating her. She contested the termination before the Merit Systems Protection Board (MSPB), which rescinded it in favor of a 30-day suspension without pay.

She sued, alleging retaliation and race, sex, and age discrimination. The district court granted the IRS’s motion for summary judgment on all counts, and this appeal followed.

Inference of bias. At the outset, the Eighth Circuit found that she met her prima facie burden with regard to her race and sex discrimination claims since she was a member of a protected class, she suffered an adverse employment action when she was not selected for the position, and the circumstances permitted an inference of discrimination since the applicant selected was a non-Black male. However, while he was younger than her, “[a] four-year age gap is not significant enough to support an age discrimination claim.”

“[N]umber 2 option.” The Eighth Circuit next found that the IRS provided a legitimate, nondiscriminatory reason for her non-selection; namely, that only one position was filled due to the HQ reorganization and the non-Black male candidate was the hiring panel’s “number 1 option” while she was the “number 2 option.” The selecting official also added that although both candidates had strong credentials, the committee sought a candidate with “international case experience, experience teaching international classes both in person and virtually, and fluency in Spanish.” While the employee met the first two criteria, she did not speak Spanish.

No evidence of pretext. The court rejected the employee’s contention that pretext could be inferred from the allegedly unusual timing of the HQ re-organization. In particular, she argued that although the decision to restructure was announced the same month as when the position was posted, neither the interviewers nor the candidates were informed that there would only be one vacancy. However, she overlooked the fact that the deputy director entrusted the hiring decision to the training academy director, whose contemporaneous email indicated the hiring panel unanimously favored the non-Black male candidate for the position.

Moreover, the record did not suggest that the deputy director was aware of her race or sex, nor was there any evidence suggesting that the second RCDI position was ever filled. Accordingly, she failed to provide any specific evidence, either directly or indirectly, suggesting that her age or race played a role in the decision not to promote her.

Proposed removal adverse action. The Eighth Circuit also declined to reinstate her claim that the IRS proposed her removal in retaliation for her EEOC complaint. First, the appeals court found that “[a] letter proposing to terminate an employee could dissuade a reasonable worker from advancing a charge of discrimination.” In particular, the February 22 letter from the IRS expressed “grave concerns about [her] judgment,” and a lack of confidence in her ability to perform her duties as a special agent. The IRS also sought a severe penalty, noting that removal was the “only reasonable sanction.” The MSPB disagreed, reducing the termination to a 30- day suspension. A reasonable juror could find that she suffered an adverse employment action.

But no causal connection. Nevertheless, her claim failed because she offered no evidence to establish a connection between her discrimination complaint and the proposal of her termination—which came seven months later. Her only argument—timing— did not establish a causal connection.

The case is No. 24-2039.

Judge: Benton, W.

Attorneys: Charles E. Gribble (Gribble Law Firm) for Danette Hester. Jeffrey P. Ray, U.S. Attorney's Office, for Scott Bessent.

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