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June 26, 1992

ANGEL A. BRITO, Plaintiff, against WILLIAM J. DIAMOND, Regional Administrator, General Services Administration, Region 2, GENERAL SERVICES ADMINISTRATION, Region 2, RICHARD AUSTIN, Administrator, General Services Administration, GENERAL SERVICES ADMINISTRATION, UNITED STATES OF AMERICA, JOHN ULIANKO, individually and in his official capacity as Chief of Operations, Law Enforcement Branch, General Services Administration, Region 2, HORST E. MUELLER, individually and in his official capacity as Regional Personnel Officer, General Services Administration, Region 2, Defendants.


The opinion of the court was delivered by: ROBERT L. CARTER

ROBERT L. CARTER, District Judge

 Plaintiff Angel Brito brings this action asserting various claims in connection with his dismissal from his position as a Federal Police Officer employed by the General Services Administration ("GSA"). Defendants in this action are: Wiliam Diamond, Regional Administrator of the GSA, Region 2; the GSA, Region 2; Richard Austin, Administrator of the GSA; the GSA; the United States of America; John Ulianko, a GSA official; and Horst E. Miller, a GSA official. Plaintiff alleges violations of the First and Fifth Amendments of the United States Constitution, the Civil Service Reform Act, 5 U.S.C. ยง 7114 et seq. (1988), his collective bargaining agreement, and GSA regulations. Plaintiff also asserts that his dismissal was arbitrary and capricious. Defendants have moved, under Rule 12(c), F.R.Civ.P., for judgment on the pleadings and alternately under 56, F.R.Civ.P., for summary judgment on all plaintiff's claims. Plaintiff has moved for summary judgment on his Fifth Amendment claim.


 The GSA hired plaintiff Angel Brito as a Federal Police Officer on June 5, 1989. Plaintiff's first year of service was a probationary period and, according to the GSA's records, plaintiff executed his duties completely satisfactorily until March 23, 1990. On that date, according to the GSA, plaintiff, while on duty, received a radio message directing him to respond to a call but replied that he could not respond because he was having lunch. The GSA also alleges that on March 26, plaintiff broadcast a message over the official Federal Protective Service telecommunications system directing all units to respond to an emergency when in fact plaintiff knew that no emergency existed. The GSA further alleges that on March 27, after a meeting with defendant Ulianko and another GSA official concerning the March 23 and March 26 incidents, plaintiff failed to report back to work in a reasonable time. Plaintiff contests the accuracy of the GSA's descriptions of the March 23 and March 27 incidents, although he does not substantially contest the accuracy of the description of the March 26 incident. Plaintiff also asserts that at the March 27 meeting with defendant Ulianko, he requested to have his union representative present but was prevented from doing so until the meeting had ended.

 In a memorandum dated May 14, 1990, defendant Mueller informed plaintiff that his employment by the GSA would be terminated on May 25, ten days before the end of his probationary period. The memorandum cited the March 23 and March 26 incidents. No formal hearing was held with respect to plaintiff's alleged misconduct and the GSA terminated him on May 25. The GSA remained in possession of plaintiff's personnel file which contained records of the March 23, 26 and 27 incidents and the reasons for plaintiff's termination. The GSA's procedures allow it to distribute plaintiff's personnel file to prospective employers. Plaintiff appealed his termination to the Merit Systems Protection Board, which dismissed the appeal, but did not file a claim with the Federal Labor Relations Authority. Plaintiff subsequently began this action.


 Defendants have submitted affidavits and other material with their motion. Since the motion will be decided based on this extra-pleading material, as well as that submitted by plaintiff, it may not be decided on the basis of a judgment on the pleadings, see Rule 12(c), F.R.Civ.P., and must be evaluated as a motion for summary judgment. See id. In order to prevail on a summary judgment motion, a party must show that "there is no genuine issue as to any material fact and that [he] is entitled to a judgment as a matter of law." Rule 56, F.R.Civ.P. The court is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue" which must be reserved for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In this inquiry, the court must decide whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250.


 Both plaintiff and defendants have moved for summary judgment on plaintiff's Fifth Amendment claim. Plaintiff claims that his dismissal constituted a deprivation of liberty without due process of law in violation of the Fifth Amendment because he was denied a hearing to refute the charges against him. *fn1" In Board of Regents of State Colleges v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972), the Supreme Court held that a government employee's liberty interest is implicated when he is dismissed amid charges that "impose[] on him a stigma or other disability that forecloses his freedom to take advantage of other employment opportunities" or that "might seriously damage his standing and associations in his community." See id. at 573. The court stated that, for example, charges of "dishonesty, or immorality" would stigmatize an employee because they call into question his "'good name, reputation, honor, or integrity.'" Id. (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437, 27 L. Ed. 2d 515, 91 S. Ct. 507 (1971)). In such a case, the employee must be provided with a name-clearing hearing. See id.

 In order to be stigmatized enough to be deprived of liberty, a dismissed employee must be accused of something more than unsatisfactory job performance. In Russell v. Hodges, 470 F.2d 212 (2d Cir. 1972), the Second Circuit, per Judge Friendly, evaluated a liberty interest claim of an employee who had been dismissed based on allegations of incompetence. The court, in rejecting his liberty interest claim, stated:

 We believe the Court [in Roth] was thinking of something considerably graver than a charge of failure to perform a particular job, lying within the employee's power to correct; the cases cited as illustrations involved charges of chronic alcoholism or association with subversive organizations. Indeed, a general rule that informing an employee of job-related reasons for termination created a right to a hearing, in circumstances where there was no constitutional requirement for the state to do anything, would be self-defeating; the state would merely opt to give no reasons and the employee would lose the benefit of knowing what might profit him in the future.

 470 F.2d at 217. The Court of Appeals read Roth to mean that an accusation of incompetence is insufficient to constitute an unconstitutional deprivation of liberty. See id.; see also Schwartz v. Thompson, 497 F.2d 430, ...

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