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Wisham v. Commissioner of the Internal Revenue Service

August 19, 2009

WELTON K. WISHAM, PLAINTIFF,
v.
COMMISSIONER OF THE INTERNAL REVENUE SERVICE, CHAPTER 47, OF THE NATIONAL TREASURY EMPLOYEES UNION, (CHAPT 47) THE NATIONAL TREASURY EMPLOYEES UNION,: (NTEU), PHYLLIS B. NEWMAN, IN HER INDIVIDUAL AND OFFICIAL CAPACITY, THERESE B. DORAN, IN HER INDIVIDUAL AND OFFICIAL CAPACITY, CLIFF KAZAKAUSKAS, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, KATHY ROBINS, IN HER INDIVIDUAL AND OFFICIAL CAPACITY, MARK WEINBERG, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, FRANK HEFFLER, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, MARTIN BIRNBAUM, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, BARRY SHOTT, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, COLLEEN KELLY IN HER INDIVIDUAL AND OFFICIAL CAPACITY, AND DEBRA NOLAN, IN HER INDIVIDUAL AND OFFICIAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: Denise Cote, District Judge

OPINION & ORDER

Plaintiff Welton K. Wisham, proceeding pro se, has brought suit against defendants National Treasury Employees Union ("NTEU"), NTEU Chapter 47, Colleen Kelley, Frank Heffler, Martin Berman*fn1 (collectively, the "NTEU defendants"), the Commissioner of the Internal Revenue Service ("IRS"), Phyllis B. Newman, Cliff Kazakauskas, Kathy Robbins, Mark Weinberg, Therese Doran, Barry Shott, and Debra Nolan (collectively, the "IRS defendants"). Wisham alleges that the IRS defendants improperly charged him with violation of the tax laws, and that the NTEU defendants "failed to adequately represent" him during his proceedings with the IRS. Both the NTEU defendants and the IRS defendants have moved to dismiss this action.*fn2 For the following reasons, the motions to dismiss (and the IRS's motion in the alternative for summary judgment) are granted.

BACKGROUND

The following facts are taken from the complaint unless otherwise noted.*fn3 Wisham, who is African-American, was employed by the IRS as a revenue agent from 1984 until his resignation in February 2008. He is also licensed to practice law in New York and New Jersey. During his employment, he was a member of the NTEU.

In March 2007, IRS defendant Cliff Kazakauskas interviewed Wisham regarding Wisham's failure to pay a ten percent penalty for the 2002 and 2003 tax years for the early withdrawal from his pension fund. Martin Berman was present at this meeting as Wisham's NTEU representative. Wisham explained at the meeting that he did not pay the 2002 penalty because he thought he had more time, and that he paid the 2003 penalty late. At this meeting, Berman suggested to Wisham that he resign from the IRS.

Also in March 2007, Phyllis Newman, a Territory Manager with the IRS and Wisham's manager from 2005 to 2007, told Wisham that the IRS could take away his right to practice law. Newman also engaged in unspecified "acts of harassment" toward Wisham in 2007.

On May 19, 2007, Kazakauskas informed Wisham, in the presence of Berman, that Wisham had violated Section 1203(b)(9) of the Internal Revenue Service Restructuring and Reform Act of 1988 ("Section 1203"), and that the IRS had concluded that Wisham should be discharged from the IRS. On May 21, 2007, Newman confirmed in a written "notice of proposed adverse action" to Wisham that it was proposed that Wisham be removed from the IRS due to Wisham's having "willfully understated []his tax liability" and his "fail[ure] to timely pay" his federal income tax liability in connection with his early withdrawal from his pension. The notice also stated that "even if [Wisham] did not willfully understate the tax liability . . ., [he] failed to accurately state the tax liability . . . and/or ensure the accuracy of the return prior to filing."

In August 2007, Frank Heffler, the president of Chapter 47 of the NTEU, met with Wisham to discuss the IRS's allegations. Wisham alleges that Heffler "failed to adequately prepare himself and Martin [Berman]" in connection with his representation of Wisham. On August 1, 2007, a hearing was held at the IRS office in New York, NY. Heffler's presentation on behalf of Wisham in response to the IRS's charges lasted approximately five to ten minutes. After the hearing, Heffler told Wisham that he should seek assistance from his congressional office and that the IRS could fire Wisham immediately. Heffler also told Wisham that NTEU would not provide him with legal representation.

In October 2007, Wisham received a letter from Kathy Robbins, an IRS employee in New York. This letter was addressed to the Hon. Joseph Crowley, United States House of Representatives. The letter stated that the IRS had issued a proposal letter to remove Wisham for violating Section 1203, for which the penalty was termination unless the Commissioner of the IRS decided otherwise, and explained that the letter was part of a formal process for resolving serious misconduct issues. It explained that once a final decision had been reached, Wisham would receive a decision letter that would also explain any appeal rights. It further explained that if the Commissioner decided not to mitigate the penalty, Wisham could appeal to the Merit Systems Protection Board ("MSPB"), and if the decision was a different disciplinary action, Wisham could file a grievance or an appeal through the IRS discrimination complaint system. Finally, the letter explained that for certain adverse actions, Wisham could appeal either to the MSPB or through the IRS discrimination complaint system. The letter also stated that if Wisham did not understand his rights in this process, he could consult with the workforce relations consultant that had been identified in the proposal letter. Wisham responded to this letter with a 129-page written reply that was sent to all defendants. Wisham received no response to his submission.

Wisham thereafter had to retain private counsel to defend him against the IRS charges. He alleges that he was "forced to submit his involuntary resignation to the IRS for the sole purpose of protecting [his] pension and benefits thereof." As set forth in the IRS defendants' 56.1 statement, which Wisham has not disputed, at the time Wisham retired, the IRS had not yet issued a final decision regarding the charges in the May 21, 2007 notice letter, and Wisham has never filed a formal Equal Employment Office ("EEO") complaint with the IRS in connection with any matter.

Wisham states in his complaint that he did not intend willfully to understate his tax liability. He also asserts that he did not substantially understate his tax liability.

Wisham's complaint pleads four causes of action. The first is a violation of equal protection rights under the Fourteenth Amendment, claiming that "[d]efendants have employed a gross abuse of power, unfair procedures and gross disparate treatment in their treatment of [Wisham] due to [his] race as African- Americans [sic]." The complaint also alleges that defendants subjected him to intentional discrimination in violation of 42 U.S.C. § 1981 ("Section 1981").*fn4

Wisham's second cause of action is styled as a cause of action for negligence. He alleges that the individual defendants were negligently hired, trained, and retained. He also claims that the NTEU defendants "failed to adequately represent [him] during the time of the . . . accusations and actions accusing [Wisham] of violating section 1203." Wisham also alleges that the IRS defendants were grossly negligent in failing to inform themselves properly of "all sufficient data pertaining to section 1203."

Wisham's third cause of action is for defamation. Wisham's fourth cause of action is against the Commissioner of the IRS for negligent failure to ensure proper training, supervision, or discipline of the IRS ...


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