Englert v. United States

38 Fed. Cl. 366, 1997 U.S. Claims LEXIS 146, 1997 WL 406274
CourtUnited States Court of Federal Claims
DecidedJuly 18, 1997
DocketNo. 95-390C
StatusPublished
Cited by2 cases

This text of 38 Fed. Cl. 366 (Englert v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Englert v. United States, 38 Fed. Cl. 366, 1997 U.S. Claims LEXIS 146, 1997 WL 406274 (uscfc 1997).

Opinion

OPINION

HORN, Judge.

The above-captioned case is presently before this court on defendant’s motion to dismiss for lack of jurisdiction, pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (RCFC). Plaintiff in this action seeks compensation from the United States for an alleged wrongful termination from employment with the Small Business Administration (“SBA”). In his complaint, plaintiff charges “violation of due process and Plaintiffs statutory due process rights the foundation being ‘Wrongful Discharge, and Handicap Discrimination in violation of § 501 of the Rehabilitation Act of 1973, as amended 29 U.S.C. § 791 et seq____’ ” The plaintiff also alleges that the “[pjlaintiff suffered a job related depression episode causing total disability per U.S. Department of Labor (and U.S. Small Business Administration) decision January 9, 1989, a job related disability retroactive to September 19,1986. Plaintiff files his Complaint for contract back wages. Plaintiff also claims Judgment by default in the Lower U.S. District Court of Arizona.” Plaintiff claims back pay for his “two separate positions” for a total of 1616,454.0o.1 Defendant denies liability, and' responds by arguing that the court lacks jurisdiction to hear plaintiffs claims.

FACTUAL BACKGROUND

According to the documents submitted by the plaintiff,2 plaintiff was a “nineteen year [368]*368tenured employee with the Government,” having commenced his employment on December 14, 1976. On May 7, 1984, the plaintiff allegedly signed a Government Employment Agreement to transfer to a new duty station at the San Francisco District Office of the Small Business Administration, without a change in pay grade (GS 12, Step 4). While at the San Francisco District Office, plaintiff apparently performed the duties of a Senior Loan Specialist and International Trade Representative (a GS 12 or 13 job). Plaintiff also states in his Reply to Defendant’s Motion to Dismiss that “the Government changed his pay grade to an 11, subsequently forging his name in the top right corner of his Assignment of Duties.”

According to the plaintiff, he commenced receiving treatment under the United States Small Business Administration Confidential Psychological Counseling Program on September 19, 1986. Also, according to the plaintiff, “[wjhile under treatment, the Government subjected the Plaintiff to daily reprimands, increased stress, untimely sixty (60) day performance improvement periods, the Plaintiff was forbidden to consult with his supervisory senior loan officer Warren Knightlinger, the Plaintiffs dictation equipment was confiscated, and the Plaintiff was continually burdened under an overload/overwork situation preventing his recovery from the job related work injury. On March 20, 1987, the Plaintiffs physician placed him on disability sick leave.... ” On April 14, 1987, while on sick leave, the plaintiff allegedly received, via mail, a termination notice from the government. Plaintiff claims that he had received incomplete performance ratings, an allegedly prohibited personnel practice, and that he was discriminated against on the basis of a handicapping condition. The plaintiff also alleges that the government committed fraud against him, failed to accord him his due process rights, made libelous and slanderous statements about plaintiffs apparent mental state, and violated his right to privacy and the confidentiality of his medical records.

The plaintiff appealed his termination to the Merit Systems Protection Board (the “Board”). The Board issued an initial decision on August 11, 1987. A final decision of the Merit' Systems Protection Board in the ease of Englert v. Small Business Administration, Docket No. SF04328710485, 35 M.S.P.R. 628 (1987), denying plaintiffs petition for review of the. August 11, 1987 initial decision, was issued on December 11, 1987, Englert v. Small Business Admin., 35 M.S.P.R. 628 (1987), aff'd, 848 F.2d 1245 (Fed.Cir.), cert. denied, 488 U.S. 858, 109 S.Ct. 151, 102 L.Ed.2d 123, reh’g denied, 488 U.S. 977, 109 S.Ct. 522, 102 L.Ed.2d 555 (1988). In the initial decision, the Administrative Judge found that prior to termination plaintiff had been properly notified of his unacceptable performance, including poor analysis on loan applications he was processing, and was given a 60-day performance improvement period, additional counseling, and additional training during that period. The Administrative Judge also rejected plaintiffs allegations that, during the performance improvement period, he suffered from and manifested significantly increased signs of stress and memory difficulties. In sum, the Administrative Judge found that, during the relevant period, plaintiffs job performance was unsatisfactory. The Administrative Judge also rejected plaintiffs claim that the agency’s action was a result of handicap discrimination, and found that plaintiff did not qualify as a handicapped individual under 29 C.F.R. § 1613.702(f). Moreover, the Administrative Judge found that Mr. Englert had failed to establish a causal connection between his psychological condition and his performance.

Furthermore, in the December 11, 1987 decision of the Board, plaintiff was informed of his right to seek further review of the Board’s decision with regard to his discrimination claims, either before the Equal Em[369]*369ployment Opportunity Commission (“EEOC”) or in an appropriate United States district court. Plaintiff also was informed of his right to seek further review of the Board’s decision with regard to his non-discrimination claims before the United States Court of Appeals for the Federal Circuit.

Plaintiff appealed to the United States Court of Appeals for the Federal Circuit. On May 11, 1988, the United States Court of Appeals for the Federal Circuit affirmed the Board’s decision “on the basis of the initial decision of the administrative judge,” and sustained the termination for unacceptable performance. Englert v. Small Business Administration, 848 F.2d 1245 (Fed.Cir. 1988) (Table Decision) (full decision found at 1988 WL 45342). Furthermore, the plaintiffs application for a writ of certiorari from the United States Supreme Court was denied, Englert v. Small Business Administration, 488 U.S. 858, 109 S.Ct. 151, 102 L.Ed.2d 123 (1988), and the plaintiffs subsequent application for rehearing on the denial of certiorari was also denied, Englert v. Small Business Administration, 488 U.S. 977, 109 S.Ct. 522, 102 L.Ed.2d 555 (1988).

On June 15, 1988, the U.S. Department of Labor, Office of Workers’ Compensation Programs held a hearing regarding a separate claim by plaintiff for compensation under 5 U.S.C. § 8101 et seq. Subsequently, on January 9, 1989, the U.S. Department of Labor, Employment Standards Administration, Office of Workers Compensation Programs, sent a letter to Mr. Englert, stating:

Upon receipt of Dr. Cata’s report, we have accepted your case for Major Depressive Episode.

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Bluebook (online)
38 Fed. Cl. 366, 1997 U.S. Claims LEXIS 146, 1997 WL 406274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/englert-v-united-states-uscfc-1997.