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LIBERMAN v. BRADY

May 29, 1996

SHAY LIBERMAN, Plaintiff, against NICHOLAS F. BRADY, SECRETARY, DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, Defendant.


The opinion of the court was delivered by: SPATT

 SPATT, District Judge.

 The plaintiff Shay Liberman (the "plaintiff" or "Liberman") appearing pro se, brought this Title VII employment discrimination action against the Internal Revenue Service ("the defendant" or "the IRS") alleging that he was not promoted and was discharged because of his national origin and his religion. The plaintiff's pro se complaint alleges that he was employed by the IRS as a taxpayer service representative in the Smithtown office. The complaint states that "between April 1990 up to August 1991, Shay Liberman suffered discrimination on the job. The discrimination (was) based on his religion (Jewish) and national origin (Israeli)." The complaint further alleges a specific act of discrimination in that "his manager commented that Shay Liberman could not perform the duties of a taxpayer service representative working the front desk because of his accent."

 DISCUSSION

 I. The Applicable Law - The Standards in a Title VII Case

 The plaintiff's employment discrimination lawsuit against the IRS is brought under Title VII of the Civil Rights Act of 1964 (42 U.S.C. ยง 2000 et seq.).

 A. McDonnell Douglas - Burdine - Hicks Pretext Cases

 Title VII of the Civil Rights Act of 1964 makes it an unfair employment practice for an employer to discriminate against any individual with respect to the terms and conditions of employment because of such individual's race, color, religion, sex, or national origin; or to limit, segregate or classify his employees in ways that would adversely effect any employee because of the employee's race, color, religion, sex, or national origin. Fisher v. Vassar College, 70 F.3d 1420, 1432 (2d Cir. 1995); Bridgeport Guardians, Inc. v. City of Bridgeport, 933 F.2d 1140 (2d Cir.), cert. denied. 502 U.S. 924 112 S. Ct. 337, 116 L. Ed. 2d 277 (1991).

 As stated recently in Fisher v. Vassar College, supra, a Title VII claim, including one alleging discriminatory treatment, is generally tried in a three-step process. In the seminal case of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), the Supreme Court devised a three-tiered burden shifting framework in Title VII cases. In the first tier, the plaintiff must prove a prima facie case, which, in a national origin and religious discrimination case such as this, consists of four elements: (1) that the plaintiff is a member of a protected class; (2) that the plaintiff was qualified for the position he held at the time he was not promoted and was terminated; (3) that the plaintiff was not promoted and was terminated from his position; and (4) that the failure to promote him and his termination occurred in circumstances giving rise to an inference that it was based on the plaintiff's national origin or religion.

 The next two tiers are described in Fisher, as follows:

 
If the plaintiff presents a prima facie case, the burden shifts to the employer, who is required to demonstrate "some legitimate, nondiscriminatory reason" for the decision. Id. The employer's burden here is one of production of evidence rather than one of persuasion. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). The defendant need only articulate -- but need not prove -- the existence of a nondiscriminatory reason. Id. at 254-56, 101 S. Ct. at 1094-94.
 
If the defendant carries this burden of production, the plaintiff then assumes the burden to "show that [the employer's] stated reason for [the plaintiff's] rejection was in fact pretext." McDonnell Douglas, 411 U.S. at 804, 93 S. Ct. at 1825. "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Burdine, 450 U.S. at 253, 101 S. Ct. at 1093. In St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993), the Supreme Court held that, as to the third prong of the McDonnell Douglas test, it is not enough for a plaintiff to show that the defendant's legitimate, non-discriminatory reason for its employment decision is pretextual; the plaintiff must also prove by a preponderance of the evidence that defendant's stated reason is "a pretext for discrimination." St. Mary's, 515 U.S. at 515, 113 S. Ct. at 2752 (emphasis added). The plaintiff must establish "both that the reason was false, and that discrimination was the real reason."

 70 F.3d at 1433 (emphasis in original).

 As stated above, under the third tier of the McDonnell Douglas pattern, as clarified in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 2749, 125 L. Ed. 2d 407 (1993), even if the trier of fact rejects the defendant's purported nondiscriminatory reasons, the burden of proving that the motivation for the failure to promote and to terminate the plaintiff was unlawful remains with the plaintiff. St. Mary's Honor Center v. Hicks, supra, 113 S. Ct. at 2749 (1993) ("The Court of Appeal's holding that rejection of the defendant's proffered reasons compels judgments for the plaintiff...ignores our repeated admonition that the Title VII plaintiff at all times bears the 'ultimate burden of persuasion.'") (emphasis in original).

 Thus, even if the defendant's reasons are found to be pretextual, the plaintiff must, nevertheless, prove that he was not promoted and was terminated as a result of intentional discrimination. "It is not enough...to disbelieve the employer: the factfinder must believe the plaintiff's explanation of intentional discrimination." Hicks, 113 S. Ct. at 2754 (emphasis in original). However, this proof may be inferred from proof of the four elements of the prima facie case. See also DeMarco v. Holy Cross High School, 4 F.3d 166, 170 (2d Cir. 1993) (Proof that the employer has provided a false reason for its action permits the finder of fact to determine that the defendant's actions were motivated by an improper discriminatory intent, but does not compel such a finding.)

 B. Mixed Motive Theory

 Employment discrimination cases fall into one of several categories, including "pretext" cases, discussed above, and "mixed motive" cases. See Tyler v. Bethlehem Steel Corp., 958 F.2d 1176 (2d Cir.), cert. denied, 506 U.S. 826, 121 L. Ed. 2d 46, 113 S. Ct. 82 (1992). These two approaches involve different analyses. Under a mixed motive theory, a plaintiff "must initially show more than the 'not onerous' McDonnell Douglas-Burdine factors." Id. at 1181. If the plaintiff is able to produce evidence to establish that an illegitimate factor played a motivating or substantial role in the challenged employment decision, the defendant is then given an opportunity to prove an affirmative defense, namely, that the defendant "'would have reached the same decision as to [the employee's employment] even in the absence of the' impermissible factor." Id. quoting from Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977) and Price Waterhouse v. Hopkins, 490 U.S. 228, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989).

 The question is what does the plaintiff have to show in order for the burden to shift to the defendant. In the Second Circuit, the plaintiff is required to submit "enough evidence that, if believed, could reasonably allow a jury to conclude that the adverse employment consequences were 'because of' an impermissible factor." 958 F.2d at 1187. The Second Circuit rejected the notion that the plaintiff must introduce "direct" evidence of discrimination (such as an admission by the decisionmaker that "I fired the plaintiff because she was a woman") as opposed to circumstantial evidence. Id. at 1185-1187. However, if the plaintiff relies on circumstantial evidence, "that circumstantial evidence must be tied directly to the alleged discriminatory animus." Ostrowski v. Atlantic Mutual Insurance Co., 968 F.2d 171, 182 (2d Cir. 1992).

 In Ostrowski, Judge Kearse explained that the plaintiff would not be entitled to a 'mixed motive' burden shifting instruction based on (1) purely statistical evidence; (2) mere evidence of the plaintiff's qualification for, and the existence of, a certain position; or (3) 'stray' remarks in the workplace by persons not involved in the relevant decisionmaking process. Id. at 182. In other words, evidence that would satisfy the requirements of a McDonnell Douglas prima facie case, would not necessarily justify a Price Waterhouse 'mixed motive' analysis. Statistical evidence that is "directly tied to the forbidden animus, for example policy documents or statements of a person involved in the decisionmaking process that reflect animus of the type complained of in the suit" will entitle the plaintiff to a burden shifting instruction. Id. To qualify for a 'mixed motive' instruction, the plaintiff must introduce "evidence of conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting the alleged discriminatory attitude, and that evidence [must be] sufficient to permit the factfinder to infer that the attitude was more likely than not a motivating factor in the employer's decision." Id.

 C. Pro Se Standard

 As in the Court's prior decision rendered in Liberman v. INS, CV 93-4375 (ADS), the Court again recognizes the rule regarding pro se litigants, that their pleadings are held "to less stringent standards than formal pleadings drafted by lawyers" Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972), and the Second Circuit instructions that a "pro se litigant should be afforded every reasonable opportunity to demonstrate that he (or she) has a valid claim." Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759, 762 (2d Cir. 1990), cert. denied, 499 U.S. 943, 113 L. Ed. 2d 459, 111 S. Ct. 1404 (1991) (quoting Satchell v. Dilworth, 745 F.2d 781, 785 (2d Cir. 1984)). See also Ruotolo v. Internal Revenue Service, 28 F.3d 6 (2d Cir. 1994).

 It is further noted that under the circumstances in this case, the Court arranged for the Civil Litigation Fund of the Eastern District of New York, a non-profit organization, to pay for the witness fees of two witnesses subpoenaed into court by the pro se plaintiff. This payment by the Civil Litigation Fund is not a payment by the Federal Court itself. This circuit and others has held that "federal courts are not authorized to waive or pay witness fees on behalf of an in forma pauperis litigant." See Malik v. LaValley, 994 F.2d 90 (2d Cir. 1993); Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989) (per curiam); Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir. 1987), cert. denied, 485 U.S. 991, 99 L. Ed. 2d 508, 108 S. Ct. 1298 (1988); McNeil v. Lowney, 831 F.2d 1368, 1373 (7th Cir. 1987), cert. denied, 485 U.S. 965, 99 L. Ed. 2d 435, 108 S. Ct. 1236 (1988); Cookish v. Cunningham, 787 F.2d 1, 5 (1st Cir. 1986) (per curiam); United States Marshals Service v. Means, 741 F.2d 1053, 1056-57 (8th Cir. 1984); Johnson v. Hubbard, 698 F.2d 286, 289-90 (6th Cir.), cert. denied, 464 U.S. 917, 78 L. Ed. 2d 260, 104 S. Ct. 282 (1983).

 The Court also recognizes that it must make reasonable allowances so that a pro se plaintiff does not forfeit his rights by virtue of his lack of legal training. Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). But the Court is also aware that pro se status "'does not exempt a party from compliance with relevant rules of procedural and substantive law.'" Id. (quoting Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981). Furthermore, pro se litigants are

 
generally required to inform themselves regarding procedural rules and to comply with them. Edwards v. INS, 59 F.3d 5, 8 (2d Cir. 1995). This is especially true in civil litigation. See McNeil v. United States, 508 U.S. 106, 113 S. Ct. 1980, 1984, 124 L. Ed. 2d 21 (1993) (suggesting that procedural rules in ordinary civil litigation should not be "interpreted so as to excuse mistakes by those who proceed without counsel").

 LoSacco v. City of Middleton, 71 F.3d 88, 92 (2d Cir. 1995).

 II. The Trial - Findings of Fact

 This opinion and order includes the Court's findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a). See Colonial Exchange Ltd. Partnership v. Continental Casualty Co., 923 F.2d 257 (2d Cir. 1991). During this discussion, the Court will make findings of fact, which will be supplemented by additional findings later in the opinion.

 The plaintiff commenced employment with the IRS on July 20, 1987. The plaintiff's national origin is the State of Israel. He speaks English with a clearly noticeable accent. At the time he started to work for the IRS, he was also employed at the Immigration & Naturalization Service ("INS"). In addition, the plaintiff was also working for Marget Security, a brokerage house. For a short period of time, namely between July 20, 1987 and September 15, 1987, the plaintiff had three jobs, as a taxpayer service representative for the IRS, an immigration inspector for the INS, and a stockbroker for Marget Security. He was terminated from his INS position on September 15, 1987. His employment with INS was the subject of another employment discrimination lawsuit, similarly based on his religion and national origin, which was decided by this Court in an opinion dated March 6, 1996.

 As stated above, the plaintiff was first employed by the IRS on July 20, 1987. After a six-week training period, the plaintiff passed a test and assumed the position of taxpayer service representative in the Smithtown, Long Island IRS office. A taxpayer service representative provides assistance to taxpayers by answering questions and helping them prepare their tax returns. The plaintiff was terminated by the IRS as of September 6, 1991, so that he worked for the IRS for a period of approximately four years and two months.

 Asked if he complained about this conduct by Casiano, the plaintiff stated that he did so by writing to her on three occasions. On January 14, 1991 (Plaintiff's Exh. 6), on January 16, 1991 (Plaintiff's Exh. 7) and on March 29, 1991 (Plaintiff's Exh. 8). In these written communications, the plaintiff requested a meeting with a management official "other than my supervisor," in the presence of his union representative. He also disputed his evaluations, stating that "I consider the evaluations a falsification of employment records" and requested "a formal hearing" (Plaintiff's Exh. 7). Notwithstanding Liberman's attempts to speak to another management official, Casiano denied his requests. Liberman testified that when he finally was able to talk to Noreen Hoenig, the Branch Chief, she told him that she did not want to talk to him about Casiano.

 Liberman testified that Casiano apparently had a grudge against him. However, he conceded that Casiano was the only person in the IRS office who treated him in this manner. Further, he testified that, other than the actions by Casiano, there were no other discriminatory acts done to him. In addition, Liberman conceded that he never heard Casiano say anything about his accent, his religion or his being an Israeli.

 When urged by the Court to relate "anything else about your case," Liberman testified about two additional incidents concerning Casiano. He stated that on January 16, 1990, war broke out in Israel and he wanted to return to his native land. He told Casiano that he would like to use his sick days and vacation days to make the trip to Israel. According to Liberman, Casiano issued a memorandum to the effect that he had already used his sick days. Liberman has no copy of this purported memorandum. In any event, Liberman made the trip to Israel. Upon his return, the plaintiff produced a note from a doctor in Israel stating that he was ill while in Israel. The Court finds that this physician's note was not factually correct and constituted an improper attempt by Liberman to obtain a false sick leave excuse for his trip (Tr. 161-163).*

 The second incident occurred on Christmas Eve, December 24, 1990. At that time, there were no taxpayers in the office and the employees apparently were celebrating. Tomas, a co-employee was at the front desk reading a newspaper. When Liberman also tried to read a newspaper, Casiano, on her way to the ladies room, told him "Shay, find something to do." However, on her way back from the ladies room, seeing that Liberman was still reading the newspaper, she said "Shay, go home." The Court finds that neither of these incidents are in any way evidence of discrimination.

 On cross-examination, Liberman testified that the IRS office in Smithtown was a "friendly, enjoyable work environment." Further, he admitted that he got an initial "nice evaluation" from Casiano. Also, he stated that he did not feel as aggrieved against the IRS as he did with the INS, as the IRS people were "straightforward with me."

 Liberman is a man with many varied vocational and career interests, including engineering studies, acting as a security officer for El Al, studying economics, designing a digital clock, medical electronics, insurance, financial planning and working as a stockbroker.

 Liberman was asked to explain how he could work three jobs -- with IRS, INS and Marget Securities -- at the same time. Liberman explained that he worked for IRS from 8:00 a.m. to 4:00 p.m. but he always left earlier, at approximately 3:00 p.m. so he could get to the INS job by 4:00 p.m. The hours of his INS job were from 4:00 p.m. to midnight, or later, sometimes as late as 4:00 a.m. Liberman's multiple employment situation is difficult to fathom as he stated that the IRS job was for a 40-hour week, while the INS job "was more than 40 hours," a seemingly improbable feat. While he was working for INS, IRS and Marget Securities he stated that he was working "around the clock," in excess of eighty hours a week. Asked to explain how he managed to work these two full-time and one part-time job at the same time, Liberman stated that he would shower at INS, not sleep at home at all, go directly to IRS at 6:00 a.m. and take a nap in his car. Liberman also conceded that he took INS sick days while he was working for the IRS.

 Asked about his termination from the INS, the plaintiff conceded that the deficiencies in his job performance with that agency -- a subject discussed in the Court's prior decision dated March 6, 1996 -- were substantially true and correct. Further, he did not believe that there was a conspiracy against him by the IRS and INS.

 On July 10, 1987, Liberman received a copy of the IRS "Handbook of Employee Responsibilities and Conduct," and signed a form agreeing to familiarize himself with its contents and to abide by its instructions. (Defendant's Exh. A). However, Liberman stated that while he signed the form he didn't read the contents of the Handbook because he trusted the Government. One of the rules in the Handbook is that he would have to obtain approval by the IRS in order for him to work at INS. No such approval was obtained by Liberman, who stated that in so doing he took a "shortcut."

 Liberman discussed Israel and his religion with his fellow employees at IRS, and he conceded that no one made pejorative remarks to him or about him on these subjects, or with regard to his accent:

 
Q In any discussions that you ever had with anybody at the IRS in connection with anything about Judaism or Jewish holidays, nobody at the IRS ever made fun of you?
 
A No, nobody.
 
Q And nobody made any pejorative remarks to you about any Jewish practices or anything having to do with Judaism?
 
A I mean we had a very good relationship with other employees of the IRS.
 
Q And nobody at the IRS made any pejorative remarks to you about the fact that you come from the state of Israel, right?
 
A No, not whatsoever.
 
Q In fact, you have absolutely no evidence or indication that any reprimands that you ever received at the IRS had any connection to either the fact that you are Jewish or that you come from Israel, right?
 
A I mean -- you see the fact that I was Jewish, I don't think that anybody was against it. the fact that I was Israeli, I don't think anybody was against it.
 
Q Thank you.
 
Now, no one at the IRS ever said directly to you that they had anything against your accent, right?
 
A Are you talking about an employee or taxpayers?
 
Q Anybody from the IRS, employees, supervisors?
 
A No.
 
Q And in fact, your first evaluation at the IRS was quite positive, wasn't it?
 
A I have it here. The first and the second and the third probably. Definitely the ...

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