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Monday, October 21, 2019

Third Circuit says IRS employee did not prove prima facie discrimination case against Treasury Department


By Nicholas Malfitano | Jul 27, 2018

PHILADELPHIA – A federal appellate court ruled that a former employee of the Internal Revenue Service did not set out a prima facie case to support her allegations that she faced racial discrimination and a hostile work environment in her time at the IRS.

In a ruling reached July 19, U.S. Court of Appeals for the Third Circuit judges L. Felipe Restrepo, Anthony J. Scirica and D. Michael Fisher upheld a ruling of summary judgment in favor of Secretary of the U.S. Treasury Department Jacob T. Lew, and against plaintiff Patrice Shenel Leftwich.

“Leftwich, who is African-American, began employment with the Internal Revenue Service in November 2009 and alleged she began experiencing incidents of discrimination on the basis of race in April 2012. As regulations of the Equal Employment Opportunity Commission (EEOC) required, Leftwich met with an EEOC counselor in August 2012 to attempt informal resolution of her concerns,” the Third Circuit said.

“Leftwich then filed a formal complaint with the Treasury Department in October 2012. Leftwich filed four amendments to her formal complaint through October and November 2012 due to what she called continued escalating harassment and retaliation. The Department eventually issued a final agency decision on Leftwich’s formal complaint in January 2015 which denied all relief. Leftwich then brought suit against the Secretary of the Treasury in the District Court.”

Leftwich’s complaint included charges of racial discrimination, a hostile work environment based on race and retaliation for engaging in protected activity, all in violation of Title VII of the Civil Rights Acts of 1964 – and 16 incidents to support her case, while Lew moved for summary judgment.

The District Court granted summary judgment to Lew, finding Leftwich produced no sufficient evidence for the discrimination and hostile work environment claims to support a prima facie case – and while Leftwich had successfully done so as to the retaliation claim, the IRS produced a non-discriminatory rationale for the reprimand. As a result, Leftwich appealed to the Third Circuit.

The appellate court applied burden-shifting framework as created in McDonnell Douglas Corp. v. Green to Leftwich’s case and supporting claims. With that analysis, the appellate court upheld the District Court’s rationale to her discrimination and hostile work environment claims.

“We agree with the District Court’s conclusion that Leftwich failed to set out a prima facie case of disparate treatment on account of race. For substantially the reasons provided by the District Court, none of the circumstances surrounding the sixteen incidents upon which Leftwich based her case gave rise to an inference of unlawful discrimination, even if any of those incidents could have been considered an adverse employment action. The District Court systematically reviewed each such incident and found no evidence in the record to suggest that those incidents occurred as a result of racial animus,” the Third Circuit stated on the discrimination claim.

As to the hostile work environment claim, the Third Circuit found similarly.

“The same incidents that underlay Leftwich’s disparate treatment claim were cited in support of her hostile work environment claim. As the District Court correctly concluded, however, none of those incidents – considered both individually and collectively – caused a change in work conditions. Leftwich could not therefore sustain her hostile environment claim absent evidence that the purported harassment was so severe or pervasive so as to alter the conditions of her employment,” the Third Circuit added.

Referring to the retaliation claim, the appellate court applied similar burden-shifting criteria.

“The District Court concluded that Leftwich set out a prima facie case of retaliation. Leftwich produced evidence to show that a letter of reprimand that she received in November 2012 could constitute an adverse employment action that followed chronologically after her protected activity. Also, the District Court found sufficient circumstantial evidence in the record of a causal connection between Leftwich’s protected activity and the reprimand. The District Court accordingly required IRS to identify a legitimate, non-discriminatory reason for the reprimand,” the Third Circuit stated.

Continuing its rationale, the appellate court said the IRS did provide such a legitimate reason – this being that Leftwich “began engaging in progressively-worsening behavior at work”, and that “Leftwich was provided warnings and counseling for that behavior both before and after her EEOC activity began.”

In conclusion, the Third Circuit upheld the District Court’s summary judgment ruling since her allegations did not “cast sufficient doubt upon each of the legitimate reasons proffered by the defendant so that a factfinder could reasonably conclude that each reason was a fabrication” or “allows the factfinder to reasonably conclude that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.”

“Here, Leftwich failed to present any evidence that IRS’s legitimate, non-discriminatory reasons for the adverse actions alleged were pretext for retaliation. Leftwich merely asserted that the IRS’s rationale for the reprimand was pre-textual without offering record evidence to support that assertion. So too in her brief on appeal, which is devoid of any citation to record evidence of pretext. Instead, Leftwich offers a general summary of the number of discrimination complaints that have been brought against IRS, apparently from a government report,” the Third Circuit remarked.

“That birds-eye-view summary has no bearing on Leftwich’s case, and Leftwich does not explain how those statistics can show that the particular reasons for her reprimand were pre-textual. On this record, IRS’s proffered reason for its action was neither ‘weak, incoherent, implausible, or so inconsistent’ that a reasonable juror could find it unworthy of credence. Thus, no reasonable juror could conclude that retaliation for engaging in protected activity was the likely reason for IRS’s reprimand.”

As a result, the Third Circuit stated Leftwich “failed to produce sufficient evidence to create a triable issue of fact for her claims of disparate treatment, a hostile work environment, or retaliation under Title VII.”

“We have considered Leftwich’s various arguments and conclude that none has merit. Thus, we will affirm the District Court’s judgment. Because there is no triable issue in this case, and because Leftwich did not prevail on appeal, Leftwich’s motions for a jury trial and for fees and expenses are denied,” the appellate court ruled.

The plaintiff represented herself in this matter.

The defendant is represented by Colin Michael F.X. Cherico of the U.S. Attorney’s Office, in Philadelphia.

U.S. Court of Appeals for the Third Circuit case 16-1069

U.S. District Court for the Eastern District of Pennsylvania case 2:15-cv-00300

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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