would not have promoted Liberman and would have terminated him, for a non-discriminatory valid reason having nothing to do with his national origin or his accent. The Court finds that the defendant has clearly met its burden.
The defendant IRS has established, by a preponderance of the evidence, that it had three valid, non-discriminatory reasons for failing to promote Shay Liberman and for ultimately terminating his employment. First, the defendant proved that, while on official duty, Liberman handed out his personal stock brokerage business cards to taxpayers. The Court finds that on occasion, he handed out these business cards without being solicited by the taxpayers. This conduct represented a clear conflict of interest and a violation of the IRS "Rules of Conduct." Section 221 warns the employee that "the Service's extremely sensitive mission and the attendant importance of public relations necessitates certain restrictions." Section 223 sets forth the important principle that the employee makes sure that "outside activity does not place the employer in a situation where there is a possible conflict, or the appearance of a conflict, between his or her private interests and his or her official duties and responsibilities." Liberman used his superior position as a taxpayers service representative having some influence over the taxpayers appearing before him for aid and assistance, to advance his personal stock brokerage business. The Court agrees that, in Liberman's position, this conduct is unacceptable. Liberman knew that this conduct on his part violated the rules and yet he continued to hand out these cards, according to him, from 20 to 100 times.
Second, the IRS proved that Liberman conducted these outside, personal employment activities as a financial consultant, while working as a taxpayer service representative, without permission. By doing so, the plaintiff violated Sections 225.1 and 226 of the IRS "Rules of Conduct." In view of the appearance of impropriety such personal business would engender, it is doubtful whether the IRS would have granted such permission to Liberman. Perhaps that is why he did not make the request.
Finally, the defendant proved a third compelling and non-discriminatory reason for making its adverse employment decisions. The defendant clearly established that the plaintiff made a number of deliberate false statements. Section 214.5 of the IRS "Rules of Conduct" states that "Employees will not intentionally make false or misleading verbal or written statements in matters of official interest." In his updated application for employment dated January 2, 1989, Liberman wrote in his own hand that the reason he left his employment with the Immigration and Naturalization Service was for "job opportunities" (Defendant's Exh. E). He well knew that he was fired by the INS on September 15, 1987 after employment with that agency after less than five months on the job. In fact, on September 1, 1987, the plaintiff received a termination notice which provided a detailed description of his errors. The notice expressly stated that his employment would be terminated on September 15, 1987. (See Memorandum Decision and Order in the case of Liberman v. Reno, CV 93-4375 (ADS) dated March 6, 1996).
In addition, on the same update application dated January 12, 1989, at question 39, the plaintiff was expressly asked whether, during the last ten years he was "fired from any job for any reason," and he answered "No." This was another intentional false statement, and it was a material misrepresentation. This kind of information would be important to an employer with regard to the future progress of an employee and would possibly have led to an investigation of the plaintiff's activities at INS, which could cause a serious problem in connection with his employment at IRS. To compound his culpable conduct, when questioned by IRS representatives on December 9, 1990, the plaintiff continued to deny that he was fired by INS, and stated that he will continue to make such denials in future job applications.
IV. The Defense that the Plaintiff's Claims are Untimely
The defendant argues that the plaintiff's failure to promote and termination claims are time barred in that Liberman failed to satisfy the exhaustion requirements of Title VII by contacting an EEOC counselor within thirty days of the alleged discriminatory event, or justify why the 30-day period should be tolled, and to submit a written complaint within 15 calendar days of the final interview with the EEOC counselor. See 29 C.F.R. § 1613.214(a)(1). The defendant contends that Liberman has not shown the "extraordinary circumstances" that would justify equitable tolling of the limitation period. See Royce v. Postal Service, 1988 WL 131654 (W.D.N.Y. December 6, 1988) (citing Miller v. Intern. Tel. & Tel. Corp., 755 F.2d 20, 24 (2d Cir. 1985), cert. denied, 474 U.S. 851, 88 L. Ed. 2d 122, 106 S. Ct. 148 (1985); Smith v. American President Lines Ltd., 571 F.2d 102, 109 (2d Cir. 1978)). As the defendant correctly notes, the Second Circuit has held that a plaintiff may defeat a time bar to a Title VII civil suit by asserting subsequent identifiable acts of discrimination related to the time-barred incident, at least where the complaining party files a timely amended or second EEOC complaint, or where the initial charge alleged certain enumerated acts within an alleged "continuing pattern of discriminatory conduct." Smith, supra, 571 F.2d at 105-6.
Liberman's EEOC complaint focused on his performance ratings and the conduct of his supervisor, with the last enumerated act listed as April 3, 1991. The defendant contends that the conduct Liberman complained of in his EEOC complaint cannot be considered part of a continuing pattern of discrimination that would include the September, 1991 termination. In the Court's view, a liberal reading of Liberman's pro se papers, would reasonably place the failure to promote and termination claims as "links in a chain" of alleged continuous discriminatory conduct. See Smith, supra, 571 F.2d at 105. Accordingly, the Court declines to dismiss the plaintiff's failure to promote and termination claims as time barred based on a failure to satisfy exhaustion requirements.
The plaintiff proved, by a preponderance of the evidence, that his national origin played a motivating factor in the decisions by IRS Taxpayers Service Representative Supervisor Connie Casiano with regard to his employment.
The defendant IRS proved, by a preponderance of the evidence, that the IRS would not have promoted the plaintiff as a result of three valid non-discriminatory reasons, which decision was made in the absence of any discriminatory motivation.
The Court finds that the plaintiff failed to prove that any adverse employment decision was made by the defendant IRS for a retaliatory motive.
The defendant IRS further proved by a preponderance of the evidence, that the decision to terminate the plaintiff was made based on three valid non-discriminatory reasons, and was not motivated by his national origin or religion.
Accordingly, for the reasons stated above, the Court directs the Clerk to enter a judgment in favor of the defendant, dismissing the complaint. The Clerk is also directed to close this case.
Dated: Uniondale, New York
May 29, 1996
Arthur D. Spatt
United States District Judge
© 1992-2004 VersusLaw Inc.