Danette Hester v. United States Department of Treasury, Secretary, Scott Bessent1

United States Court of Appeals
For the Eighth Circuit
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No. 24-2039
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Danette Hester
Plaintiff - Appellant
v.
United States Department of Treasury, Secretary, Scott Bessent1
Defendant - Appellee
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: March 19, 2025
Filed: May 9, 2025
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Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
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BENTON, Circuit Judge.
Danette L. Hester applied for a Criminal Investigator position with the
Internal Revenue Service but was not hired. After she filed a discrimination
complaint, the IRS proposed to terminate her for alleged misconduct. Hester sued,
1 Secretary Bessent is automatically substituted for his predecessor under
Federal Rule of Appellate Procedure 43(c)(2).

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claiming discrimination and retaliation. The district court2 granted summary
judgment to the IRS. Hester appeals. Having jurisdiction under 28 U.S.C. §1291,
this court affirms.
I.
Danette Hester 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 a Criminal
Investigator and Senior Resident Course Developer/Instructor (“RCDI”) in Georgia.
The posting listed two vacancies. Hester applied.
In March 2021, she interviewed with a panel—National Training Academy
Director Christopher J. Altemus Jr., Assistant Director Melissa D. McFadden, and
Supervisory Academy Instructor Nicholas Rice. Altemus was the “selecting
official.”
The panel interviewed four applicants. After the interviews, Altemus emailed
Acting Deputy Director Kristina O’Connell: “In the end, we all agreed that Winston
De Feria is our number 1 option and Danette Hester is our number 2 option for these
positions.” Altemus concluded: “[M]y recommendation is to offer the positions to
Winston and Danette.” A few hours later, O’Connell 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.”
Hester was notified that she did not get the job.
2 The Honorable Stephanie M. Rose, Chief Judge, United States District Court
for the Southern District of Iowa.

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On July 9, 2021, Hester filed a complaint with the Equal Employment
Opportunity Commission, 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.
On June 24, 2022, the IRS sent a letter terminating her. She contested the
termination before the Merit Systems Protection Board, which rescinded it in favor
of a 30-day suspension without pay.
Hester, a 53-year-old Black woman, sued in district court, alleging retaliation
and race, sex, and age discrimination. The district court granted the IRS’s motion
for summary judgment on all counts.
This court reviews de novo a grant of summary judgment. Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). “Summary judgment
is proper if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Id. “Facts must be viewed in
the light most favorable to the nonmoving party only if there is a genuine dispute as
to those facts.” Id. “Only disputes over facts that might affect the outcome of the
suit under the governing law will properly preclude the entry of summary judgment.
Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
II.
Hester challenges the adverse judgment on her race and sex discrimination
claims. She must establish: (1) she was a member of a protected group; (2) she was
qualified to perform the job; (3) she suffered an adverse employment action; and (4)
circumstances permit an inference of discrimination. Xuan Huynh v. U.S. Dep’t of
Transp., 794 F.3d 952, 958 (8th Cir. 2015). If she meets these requirements, the

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burden shifts to the IRS to articulate a “legitimate, nondiscriminatory reason for”
each of its adverse actions. Id.
Hester met her initial burden. She is 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 (the applicant
selected was a non-African American male).
The burden shifts to the IRS, which must provide a legitimate,
nondiscriminatory reason for the adverse action. The IRS asserts that Hester was
not hired because only one position was filled. In a contemporaneous email, Director
O’Connell explained: “Given our upcoming HQ reorganization, I am going to limit
you to one selection . . . .” Selecting official Altemus indicated the hiring panel’s
top choice: “In the end, we all agreed that Winston De Feria is our number 1 option
and Danette Hester is our number 2 option for these positions.” Altemus added that
although both De Feria and Hester 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 Hester met the
first two criteria, she did not speak Spanish.
If an employer satisfies its burden, the plaintiff bears the burden to produce
evidence that the proffered nondiscriminatory reason is merely a pretext for
discrimination. Grant v. City of Blytheville, 841 F.3d 767, 773 (8th Cir. 2016). A
plaintiff may demonstrate a material question of fact about pretext by showing that
either the employer’s explanation has “no basis in fact” or that a “prohibited reason
more likely motivated the employer.” Torgerson, 643 F.3d at 1047.
Hester argues that the timing of the HQ re-organization was unusual: “the
decision to re-structure was announced the same month as when the position was
posted; yet, neither interviewers nor the candidates were informed that there would
only be one vacancy.” She argues that this in and of itself raises a genuine issue of
material fact by asking why the panel was “not informed of the re-organization and

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instead was allowed to go through an application and interview process with four
candidates for two vacancies.”
Hester overlooks that O’Connell entrusted the hiring decision to Altemus,
whose email indicates the hiring panel unanimously favored De Feria for the
position. Further, no evidence indicates that O’Connell was aware of Hester’s race
or sex, nor does any evidence suggest that the second Senior Resident Court
Developer/Instructor position was ever filled. Hester failed to provide any specific
evidence, either directly or indirectly, suggesting that her sex or race played a role
in the decision not to promote her.
III.
Hester disputes the district court’s dismissal of her age discrimination claims.
To establish a prima facie case of age discrimination, a plaintiff must demonstrate
that she: (1) was at least forty years old, (2) experienced an adverse employment
action, (3) was meeting her employer’s legitimate expectations at the time of the
adverse action, and (4) was replaced by someone substantially younger. Morgan v.
A.G. Edwards & Sons, Inc., 486 F.3d 1034, 1039 (8th Cir. 2007). Hester is four
years older than De Feria. A four-year age gap is not significant enough to support
an age discrimination claim. See Schiltz v. Burlington N.R.R., 115 F.3d 1407, 1413
(8th Cir. 1997) (finding that an age difference of five years or less is not
“substantially younger”).
IV.
Hester sued for retaliation, which was the proposed removal after her initial
complaint for discrimination. To establish a prima facia case for retaliation, she
must show: (1) she engaged in statutorily protected activity; (2) she suffered an
adverse employment action; and (3) there was a causal connection between the
protected activity and the adverse action. Gilbert v. Des Moines Area Cmty. Coll.,
495 F.3d 906, 916 (8th Cir. 2007). The adverse employment action at issue is the

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February 22, 2022 letter “proposing that she be removed from service or otherwise
disciplined.”
Hester’s discrimination complaint is unquestionably statutorily protected
activity. AuBuchon v. Geithner, 743 F.3d 638, 641 (8th Cir. 2014) (holding that
“filing an EEOC complaint” is “protected activity”).
“The antiretaliation provision protects an individual not from all retaliation,
but from retaliation that produces an injury or harm.” Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 67 (2006). “A plaintiff must show that a reasonable
employee would have found the challenged action materially adverse, which in this
context means it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Id. A letter proposing to terminate an
employee could dissuade a reasonable worker from advancing a charge of
discrimination. In the letter Hester received, 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 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 Hestor suffered an adverse
employment action.
Nevertheless, Hester’s claim fails on the third prong. She offers 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—
does not establish a causal connection. See Nelson v. J.C. Penney Co., 75 F.3d 343,
346 (8th Cir. 1996) (rejecting “the mere coincidence of timing” as a basis for raising
an inference of causation by itself) (gap of one month); Ebersole v. Novo Nordisk,
Inc., 758 F.3d 917 (8th Cir. 2014) (“Although we have not drawn a definitive line,
we have determined that a one-month or two-month lag is too long absent other
evidence.”) (gap of seven months).

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* * * * * * *
The judgment is affirmed.
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