United States District Court, District of Columbia
January 7, 2003
Albert CHINCHILLO, Plaintiff,
Donald E. POWELL, Chairman, Federal Deposit Insurance Corporation,[fn1] Defendant.
The opinion of the court was delivered by: PAUL FRIEDMAN, District Judge.
*fn1 Pursuant to Rule 25(d)(1) of the Federal Rules of Civil
Procedure, Donald E. Powell, the current Chairman of the Federal
Deposit Insurance Corporation, is substituted for Donna A.
Tanoue, the former Chairman, who was substituted for Andrew C.
Hove, who was sued in his official capacity and was Acting
Chairman of the Federal Deposit Insurance Corporation at the time
the case was filed. See Fed.R. Civ. P. 25(d)(1).
[236 F. Supp.2d 19]
Plaintiff Albert Chinchillo brings this action under the
Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. He
alleges that the Federal Deposit Insurance Corporation
discriminated against him when it terminated him for poor
performance caused by his disability severe depression.
Defendant has moved for summary judgment on the ground that
plaintiff has failed to make out a prima facie case under the
Rehabilitation Act. Based on the arguments and authorities
presented in the parties' briefs and the entire record herein,
the Court grants defendant's motion for summary judgment.
Plaintiff worked in the FDIC's Office of Training and
Educational Services ("OTES") as an Employee Development
Specialist from June 29, 1992, until June 18, 1993. See
Defendant's Statement of Material Facts as to Which There is No
Genuine Issue ¶¶ 1, 8 ("Def.'s Statement of Facts"). Plaintiff
was hired for a term appointment not to exceed four years and was
required to serve a one year trial period. See Defendant's
Memorandum of Points and Authorities in Support of Defendant's
Motion for Summary Judgment at 1 ("Def.'s Motion"), Exhibit A,
Chinchillo v. FDIC, Equal Employment Opportunity Commission,
August 14, 1995 at 2 ("EEOC Opinion"). Shortly after he began his
service with the FDIC, plaintiff began to experience performance
difficulties, which continued throughout his time of employment.
See Def.'s Motion, Exhibit D, Transcript of July 15, 1994 Merit
Systems Protection Board ("MSPB")
[236 F. Supp.2d 20]
Hearing ("MSPB Hearing Tr.") at 34, 52-60 (Testimony of Albert
In January 1993, Mary Killeen became plaintiff's immediate
supervisor and soon began to observe problems with his
performance. See MSPB Hearing Tr. at 68-69 (Testimony of Mary
Killeen). Ms. Killeen met with Mr. Chinchillo on March 17, 1993,
to discuss his poor performance and to warn him that he would not
be retained beyond his trial period unless his performance
improved. See Def.'s Statement of Facts ¶ 3; Def.'s Motion,
Exhibit N, Plaintiff's Response to Requests for Admission
¶¶ 5, 6 ("Plaintiff Admissions"). On May 14, 1993, Ms. Killeen
officially recommended plaintiff's termination within his trial
period. See Def.'s Motion, Exhibit K, Memorandum from Mary
Killeen to Peggy Stokes, May 14, 1993 (recommending termination
of plaintiff based on poor performance). Plaintiff's employment
was terminated effective June 18, 1993. See Plaintiff Admissions
On May 20, 1993, prior to his removal, plaintiff contacted an
FDIC Equal Employment Opportunity counselor and alleged that he
had been discriminated against based on his mental disability
severe depression at the time his supervisor
recommended termination. See Plaintiff Admissions ¶ 13. In
addition, concurrent with making these allegations of
discrimination, plaintiff applied to the United States Office of
Personnel Management ("OPM") to receive disability retirement
benefits under the Federal Employees' Retirement System ("FERS").
See id. ¶ 19. His application for disability retirement
benefits was refused upon initial submission and again upon
reconsideration. Plaintiff then appealed to the United States
Merit Systems Protection Board. Id. ¶¶ 20-21.
At the hearing before the MSPB, plaintiff's supervisor, Mary
Killeen, recounted in detail plaintiff's poor work performance.
See Plaintiff Admissions ¶ 22; MSPB Hearing Tr. at 71-73. As
restated by the MSPB in its opinion following the hearing, Ms.
Killeen testified that
[plaintiff] seemed to lose track of details. . . . He
was unable to remember things that were agreed to at
meetings or get them confused and change them. . . .
There was a lot of confusion, and that confusion was
consistently having to be handled or fixed up by
somebody else, either by [Ms. Killeen], or
[plaintiff's] team members. . . . It took him four to
five weeks to prepare a simple, straightforward
memorandum. . . .
Def.'s Motion, Exhibit E, Chinchillo v. Office of Personnel
Management, MSPB, September 8, 1994, at 9 ("MSPB Opinion").
Ms. Killeen also recorded plaintiff's deficiencies in notes
taken after a meeting with Mr. Chinchillo on March 17, 1993,
describing plaintiff's "inability to efficiently generate routine
memoranda; inadequate support for `clients' within the agency;
failure to pull weight vis a vis teammates; inability to
understand agreements reached after long meetings held to acquire
consensus on plans of action; inability to grasp the content of
work; failure to properly carry out functions as a contract
manager; and frustration with simple tasks." EEOC Opinion at 2,
n. 2 (summarizing content of Mary Killeen's March 18, 1993
notes). Ms. Killeen memorialized her negative assessment of
plaintiff's performance in a March 26, 1993 letter to plaintiff.
See Plaintiff Admissions ¶ 7.
Plaintiff's clinical psychologist, Dr. W. Mark Lassleben,
submitted two reports to the MSPB and testified at the MSPB
hearing that Mr. Chinchillo suffered from major clinical
depression. See MSPB Opinion at 4. Dr. Lassleben reported that
plaintiff "is sufficiently depressed as to be disabling, to keep
him from functioning in his
[236 F. Supp.2d 21]
former position" and "is not capable of performing useful and
efficient service in the former Employee Development Specialist
position at this time, because of the number of tasks which
require initiative and implementation." MSPB Opinion at 6-7
(summarizing testimony of Dr. Lassleben). Dr. Lassleben explained
that when a person is diagnosed with this mental disease, "these
skills are the first things that they are unable to perform." Id.
at 7. A task that requires "creativity, innovation, or just
`getting the ball rolling, so to speak,' is very difficult for
someone who is even mildly depressed, and Mr. Chinchillo is more
than mildly depressed." Id. Dr. Lassleben further testified that
there was no guarantee that plaintiff would ever again be able to
do the work he had been doing. Id.
Confirming this assessment, plaintiff himself testified at the
MSPB hearing that he had been unable to perform the essential
functions of his job at the FDIC. MSPB Hearing Tr. at 52.
Plaintiff stated that
. . . [starting around November of 1992] I found
when I was participating in meetings with
[co-workers] or when we were trying to carry out
tasks that had to do with interviewing people, making
associations between some of the things that had been
said in the interviews and maybe what it meant as far
as training needs were concerned I couldn't
do it. . . . [I had never had a problem with this
before that.] . . . I was having trouble
communicating with my co-workers . . . because I was
withdrawing myself from participating with them,
because I felt guilty, because I felt that I was
letting down my end of the bargain. . . . I made bad
proposals. . . . I was ineffective in making
decisions concerning the delivery of the contractor.
I was unable to sequence the events that were going
to have to occur and develop memorandums [sic] and
letters of understanding. . . . I just couldn't do
MSPB Hearing Tr. at 52-59. When asked if he thought he could
return and perform the duties of his prior position, given the
therapy and medication that he had received, plaintiff stated
clearly that he could not do so. He testified that "the therapy
and medication have not improved the functions of my brain
sufficiently . . . to allow me to go back to doing the things
that I couldn't do before in the FDIC." Id. at 60. While stating
that he probably could find some employment, plaintiff testified
that he could not see himself being able to do "the kinds of very
involved work that I was doing with the FDIC . . . any better
than I did when I left." Id.
Based upon the testimony of Dr. Lassleben, plaintiff's
supervisor Mary Killeen, and plaintiff himself, the MSPB reversed
the OPM's previous denial of plaintiff's application for
disability retirement benefits and ordered that the application
be granted. The Board concluded that plaintiff's depression was
severe enough to be disabling and to prevent him from functioning
in his position as an Employment Development Specialist with the
FDIC. MSPB Opinion at 11.
Meanwhile, plaintiff was pursuing administrative claims of
discrimination within the FDIC. This EEO process included: a
formal hearing on the merits of plaintiff's claim on May 10,
1995; a Recommended Decision by an Administrative Law Judge on
August 14, 1995, finding no discrimination; a Final Agency
Decision on September 25, 1995, adopting the Recommended
Decision; and an appeal resulting in summary affirmance of the
Recommended Decision by the Office of Federal Operations on
February 3, 1998. See EEOC Opinion at 1; Def.'s Motion, Exhibit
B, Chinchillo v. FDIC, FDIC, September 25, 1995;
[236 F. Supp.2d 22]
Def.'s Motion, Exhibit C, EEOC Affirmance of FDIC Final Decision,
February 3, 1998.
On May 6, 1998, three months after the agency issued its final
decision that plaintiff had not suffered discrimination based on
his depression, plaintiff filed this action under Section 501 of
the Rehabilitation Act of 1974, 29 U.S.C. § 791. Defendant
immediately moved to dismiss pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, arguing that plaintiff had
failed to state a claim under the Rehabilitation Act because the
evidence presented during the MSPB appeal process precluded
plaintiff from making out a prima facie case of discrimination.
See Defendant's Motion to Dismiss Complaint, July 10, 1998.
Defendant also argued for dismissal based on the Supreme Court's
decision in Cleveland v. Policy Management Systems Corp.,
526 U.S. 795, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999), asserting that
plaintiff's testimony before the MSPB was incompatible with his
claim that he is a "qualified individual" for employment. Id. The
Court denied defendant's motion to dismiss on the ground that it
asked the Court to rule on issues of fact properly raised only in
a motion for summary judgment or at trial. See Order, July 14,
2000 at 2; Fed.R. Civ. P. 56. Defendant subsequently moved for
summary judgment on the ground that plaintiff is not a "qualified
individual" protected from discrimination under the
II. SUMMARY JUDGMENT
Summary judgment shall be granted if the pleadings,
depositions, answers to interrogatories and admissions on file,
together with the affidavits or declarations, if any, demonstrate
that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c). Material facts are those that "might affect the
outcome of the suit under the governing law. . . . " Anderson v.
Liberty Lobby, Inc., 477 U.S. 242
, 248, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986). When considering a summary judgment motion,
"the evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor." Id. at 255,
106 S.Ct. 2505; see also Washington Post Co. v. United States
Dep't of Health and Human Services, 865 F.2d 320, 325 (D.C. Cir.
Even in employment discrimination cases, however, the
non-moving party's opposition must consist of more than mere
unsupported allegations or denials and must be supported by
affidavits or other competent evidence setting forth specific
facts showing that there is a genuine issue for trial.
Fed.R.Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The non-moving party is
"required to provide evidence that would permit a reasonable jury
to find" in its favor. Laningham v. United States Navy,
813 F.2d 1236, 1242 (D.C. Cir. 1987). If the non-movant's evidence is
"merely colorable" or "not significantly probative," summary
judgment may be granted. Anderson v. Liberty Lobby, Inc., 477
U.S. at 249-50, 106 S.Ct. 2505. To defeat summary judgment, a
plaintiff must have more than "a scintilla of evidence to support
his claims." Freedman v. MCI Telecommunications Corp.,
255 F.3d 840, 845 (D.C. Cir. 2001).
III. THE REHABILITATION ACT
Section 504 of the Rehabilitation Act provides that "[n]o
otherwise qualified individual with a disability . . . shall,
solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving
[236 F. Supp.2d 23]
Federal financial assistance or . . . conducted by any Executive
agency. . . ." 29 U.S.C. § 794(a). Section 501(b) of the Act,
29 U.S.C. § 791(b), applies uniquely to federal employers; it
requires them to take affirmative action on behalf of individuals
with disabilities, an obligation beyond the general
non-discrimination requirement in Section 504. See Southeastern
Community College v. Davis, 442 U.S. 397, 410-11, 99 S.Ct. 2361,
60 L.Ed.2d 980 (1979). Under Section 501(b) and the applicable
EEOC regulations, a federal agency must make "reasonable
accommodation to the known physical or mental limitations of an
applicant or employee who is a qualified individual with
handicaps, unless the agency can demonstrate that the
accommodation would impose an undue hardship on the operations of
its program." Carr v. Reno, 23 F.3d 525, 528-29 (D.C. Cir. 1994),
quoting 29 C.F.R. § 1614.203(c)(1); see also Scarborough v.
Natsios, 190 F. Supp.2d 5, 19 (D.D.C. 2002); Johnson v. Brown,
26 F. Supp.2d 147, 149 (D.D.C. 1998).*fn2
In order to establish a prima facie case of discrimination
under the Act, a plaintiff must show that: (1) the plaintiff is
an individual with a disability within the meaning of the Act,
(2) the plaintiff can otherwise perform the essential functions
of his job with reasonable accommodation, and (3) the employer
refused to make such an accommodation or discharged the plaintiff
because of his handicap. Barth v. Gelb, 2 F.3d 1180, 1186
(D.C. Cir. 1993), cert. denied, 511 U.S. 1030, 114 S.Ct. 1538,
128 L.Ed.2d 190 (19941); see also Scarborowgh v. Natsios,
190 F. Supp.2d at 19; La-Corte v. O'Neill, 139 F. Supp.2d 45, 47-48
(D.D.C. 2001); Gaskins v. Runyon, 921 F. Supp. 779, 781 (D.D.C.),
affirmed, 1994 WL 704080 (D.C. Cir. 1994), cert. denied,
516 U.S. 832, 116 S.Ct. 106, 133 L.Ed.2d 60 (1995).
Because the parties in this case agree that plaintiff is an
individual with a disability, see Def.'s Motion at 7, this case
centers on the second element of the prima facie case of
discrimination under the Rehabilitation Act: whether plaintiff is
"otherwise qualified" for employment by the FDIC and, with a
reasonable accommodation, can perform the essential functions of
A. "Qualified Individual
with a Disability"
A "qualified individual with handicaps" is one "who, with or
without reasonable accommodation, can perform the essential
functions of the position in question without endangering the
health and safety of the individual or others. . . . "
29 C.F.R. § 1614.203(a)(6) (emphasis added). An individual with a
disability is "qualified" if he or she can perform the essential
functions of the position with reasonable accommodation; an
accommodation is considered "reasonable" if it allows the
employee to fulfill all essential functions of his or her job
without imposing an undue hardship on the employer. See
29 C.F.R. § 1614.203(c)(1); Carr v. Reno, 23 F.3d at 529; Barth v.
Gelb, 2 F.3d at 1186-87. Because plaintiff has admitted that he
was (and continues to be) unable to perform the essential
functions of his job without some form of accommodation, see MSPB
Hearing Tr. at 59-60, the Court must determine whether some
reasonable accommodation to enable him to perform those functions
could have been provided. See Carr v. Reno, 23 F.3d at 529.
Plaintiff has the burden of identifying what reasonable
accommodation would have enabled him to perform the essential
functions of his employment,
[236 F. Supp.2d 24]
but the agency has the burden of proving undue hardship. See
Barth v. Gelb, 2 F.3d at 1186.
B. Reasonable Accommodation
Section 501 of the Rehabilitation Act requires a high level of
accommodation by federal employers and provides that
"[r]easonable accommodations may include, but shall not be
limited to: (i) Making facilities readily accessible to and
usable by individuals with handicaps; and (ii) Job restructuring,
part-time or modified work schedules, acquisition or modification
of equipment or devices, appropriate adjustment or modification
of examinations, the provision of readers and interpreters, and
other similar actions." 29 C.F.R. § 1614.203(c)(2); see Cart
v. Reno, 23 F.3d at 528. Despite this high expectation of federal
employers, the Court finds that the FDIC properly rejected each
of these options with respect to plaintiff.
The testimony at the MSPB hearing of plaintiff's clinical
psychologist and former supervisor, as well as plaintiff's own
testimony, reveals that the very manner in which plaintiff's
disability affects his work causing an inability to make
judgments and logistical arrangements, complete assignments
within a reasonable time and communicate with others
precludes him from performing essential functions of his job.
See, e.g., MSPB Hearing Tr. at 71-73, 75-78; EEOC Opinion at
2-20; see also Carr v. Reno, 23 F.3d at 530 (plaintiff with
disease causing periodic dizziness, vomiting and nausea not a
"qualified individual" because even with reasonable
accommodation, she could not work regular hours and therefore
could not perform essential functions of job; "an essential
function of any government job is an ability to appear for work
. . . and to complete assigned tasks within a reasonable period
of time."); Bolstein v. Reich, No. 93-1092, 1995 WL 46387 (D.D.C.
Jan. 19, 1995),1995 U.S. Dist. LEXIS 731, at *11, aff'd, 1995 WL
686236, (D.C. Cir. Oct. 4, 1995), 1995 U.S.App. LEXIS 32536
(plaintiff not a "qualified" disabled individual who could be
reasonably accommodated because "the very manner in which
plaintiff's [depression] impacts his ability to work" was an
"essential" characteristic of the position); Matzo v. Postmaster
General, 685 F. Supp. 260, 263 (D.D.C. 1987) (legal secretary
with manic-depressive disorder was not "qualified" individual
because "a handicap which deprives a worker of an ability to
fulfill an essential requirement of his craft can never be
In his effort to demonstrate that he was qualified, plaintiff
suggests two accommodations that might have enabled him to
recover from his mental condition and perform the duties required
for his job: (1) Indefinite Leave-Without-Pay ("LWOP"), and (2)
extension of plaintiff's trial employment period for several
months to allow him to seek medical treatment and to permit the
treatment to take effect. See Plaintiff's Brief in Support of His
Opposition to Defendant's Motion for Summary Judgment at 2; EEOC
Opinion at 5. The Court finds, however, that neither of these
accommodations was "reasonable" and thus neither was required.
While adopting either of plaintiff's suggestions would have
allowed him to receive treatment that might have had the
potential to enable him to perform his duties, both would have
imposed undue hardships on the defendant. Prospects for the
plaintiff's improvement were uncertain and speculative.
Plaintiff's medical expert, Dr. Lassleben, initially estimated
six months for treatment and recovery, but later described that
prognosis as "overly optimistic" and predicted that recovery
would take almost a year. At the MSPB hearing, Dr. Lassleben
could not provide any firm estimate of time required for
[236 F. Supp.2d 25]
recuperation or even an assurance that plaintiff would ever
recover the ability to perform his essential job functions: "[I]t
is so speculative, and depends on so many things." MSPB Opinion
at 7 (restating Dr. Lassleben's testimony),*fn3 Indeed, plaintiff's
mental capacity remained diminished in July of 1994, a full year
after his termination. Id. Even two years after plaintiff's
termination, in August of 1995, the EEOC noted that plaintiff had
been unable to hold a job since June 1993 and concluded that
defendant was not legally obligated to await an indefinite and
uncertain recovery period. See EEOC Opinion at 19.
This Court agrees with the Commission's determination. There is
no evidence in the record that extending plaintiff's probationary
period or granting him LWOP would have allowed him to make
decisions more effectively, to gain initiative or to complete
simple tasks such as producing memoranda within a reasonable
time. See, e.g., MSPB Hearing Tr. at 59-60; MSPB Opinion at 7;
EEOC Opinion at 19. Because there was no reasonable assurance
that plaintiff's performance was likely to improve
immediately or even in the distant future even with the
accommodation of time off for treatment and recovery, defendant
was not required to provide such an accommodation. See Sampson v.
Citibank, 53 F. Supp.2d 13, 18 (D.D.C. 1999) ("[defendant]
cannot be held liable under the ADA for terminating plaintiff
when her own physician gives no estimate as to the expected
duration of her `"total disability."'").*fn4
It is also possible in some cases to reassign a disabled
employee to a different position as an accommodation, but it
would not have been reasonable here because the same skills and
functions impeded by plaintiff's depression also were required
for other positions at the FDIC.*fn5 Plaintiff's supervisor, Mary
Killeen, testified that lower-level jobs in plaintiff's branch
would have required many of the same skills and tasks that were
frustrating plaintiff in his current position. MSPB Hearing Tr.
at 84-86 (Testimony of Mary Killeen); see also Def.'s Motion,
Exhibit F, Transcript of May 10, 1995 EEOC Hearing at 106-07
[236 F. Supp.2d 26]
("EEOC Hearing Tr.") (Testimony of Peggy L. Stokes).
Specifically, Ms. Killeen testified that other positions required
analyzing data, scheduling, managing logistics, making needs
assessments, planning courses and delivering training, and that
these were the very tasks with which plaintiff had the most
difficulty. EEOC Opinion at 43-45, 84. Peggy Stokes testified
that she and Mary Killeen explored other reasonable
accommodations for Mr. Chinchillo including reassignment, job
restructuring and the feasibility of a parttime work schedule.
See EEOC Hearing Tr. at 107 (Testimony of Peggy Stokes). Ms.
Stokes and Ms. Killeen found, however, that none of theses
scenarios would solve performance deficiencies related to the
plaintiff's problems with memory, organization and judgment. See
EEOC Opinion at 18.
In the circumstances presented, the Court concludes that the
FDIC has shown that reassignment was not a reasonable
accommodation that it could have provided without "impos[ing] an
undue hardship on the operations of its program." Carr v. Reno,
23 F.3d at 528. "The Rehabilitation Act mandates
nondiscrimination against disabled individuals; it does not waive
basic prerequisites to service." Wilber v. Brady, 780 F. Supp. 837,
840 (D.D.C. 1992); see Bolstein v. Reich, 1995 WL 46387,
1995 U.S. Dist. LEXIS 731, at *12 (same). See also Cart v. Reno,
23 F.3d at 530 ("If it is unreasonable to ask the Office to
continue to put up with [the employee's] poor attendance, it is
equally unreasonable to require the Office to refer an
unqualified employee to another government agency for
employment."). Here, it would be unreasonable to require the FDIC
to reassign Mr. Chinchillo to another position for which he was
equally unqualified to carry out the essential functions.
C. Plaintiff's Application for Retirement
Benefits Based on Total Disability
The conclusion that there are no genuine issues of material
fact and that defendant is entitled to judgment as a matter of
law is further supported by plaintiff's application for
disability retirement benefits under the Federal Employee's
Retirement System. In that application, plaintiff himself
described how the effects of his depression had rendered him
unable to perform the essential functions of his job. See Def.'s
Motion, Exhibit G, Application of Albert Chinchillo for FERS
disability retirement, June 15, 1993 at 1 ("FERS Application").
As discussed below, the fact that plaintiff applied for and
received retirement benefits on grounds of disability at the same
time that he alleged illegal discrimination based on the failure
to provide a reasonable accommodation for his disability further
demonstrates that plaintiff was unqualified to perform the
essential functions of his job and that no reasonable
accommodation was possible.
In order to receive FERS benefits on the basis of a disability,
an employee must represent, among other things, that his
"disabling medical condition . . . [is] incompatible, with either
useful and efficient service or retention in the position. . . .
" 5 C.F.R. § 844.103(a)(2). To be eligible for such benefits,
it also must be established that "[a]ccommodation of the
disabling medical condition in the position held must be
unreasonable." 5 C.F.R. § 844.103(a)(4). These
representations and requirements appear to be in direct conflict
with the essential element of plaintiff's discrimination claim
under the Rehabilitation Act that he is a "'qualified individual
with a disability' that is, a person `who, with or
without reasonable accommodation, can perform the essential
functions' of her job." Cleveland v. Policy Management Systems
Corp. 526 U.S. at 806, 119 S.Ct. 1597
[236 F. Supp.2d 27]
(citing 42 U.S.C. § 12111(8)).*fn6
In Cleveland, the plaintiff had pursued an Americans with
Disabilities Act ("ADA") claim of discrimination while at the
same time applying for Social Security Disability Insurance
("SSDI") benefits. In order to receive SSDI benefits she had to
represent, among other things, that she was "unable to work."
42 U.S.C. § 423(d)(2)(A). The Supreme Court determined that
claims for SSDI are not inherently in conflict with
discrimination claims under the ADA because SSDI claims are made
without consideration of "reasonable accommodations," while ADA
claims depend upon a shooing that the claimant's disability could
be reasonably accommodated. See Cleveland v. Policy Management
Systems Corp., 526 U.S. at 802-03, 119 S.Ct. 1597. The Court held
that while a claimant cannot ignore the apparent contradiction
arising out of a concurrent SSDI claim for disability benefits
and a charge of discrimination, it is possible in some cases for
a claimant to explain the inconsistency and the burden is on the
claimant to do so. See Cleveland v. Policy Management Systems
Corp., 526 U.S. at 806, 119 S.Ct. 1597.
By contrast, this case involves plaintifff's application for
FERS benefits, rather than SSDI benefits. While claims for SSDI
benefits are made without consideration of "reasonable
accommodation," FERS determinations, like those under the
Rehabilitation Act, expressly turn on the availability of
reasonable accommodation. See 5 C.F.R. § 844.103. In order to
be eligible for FERS benefits, an employee must show that his
disabling medical condition is not compatible with "either useful
and efficient service or retention in the position," and that
"[a]ccommodation of the disabling medical condition in the
position held [is] unreasonable." 5 C.F.R. § 844.103(a)(2),
(a)(4). An employee cannot plausibly claim that he is unable to
work at all to obtain FERS benefits but able to work with an
accommodation in connection with a Rehabilitation Act claim. A
plaintiff filing both a FERS claim for benefits and a
Rehabilitation Act claim of discrimination cannot reconcile the
inherent conflict, as might a plaintiff who sought SSDI benefits
along with relief based on a claim of discrimination.
Plaintiff in this ease sought and received FERS benefits on the
ground that he was unable to work, with or without reasonable
accommodation. Plaintiff therefore was not "otherwise qualified"
for employment under the Rehabilitation Act when he was
terminated by the FDIC..*fn7 Based on plaintiff's application for
FERS benefits and his representation in that context that no
reasonable accommodation of his disability was possible, the
relevant case law, and the entire record in this case, the Court
finds that there is no genuine issue of fact as to whether
plaintiff was a "qualified individual with handicaps" under the
Rehabilitation Act. With or without reasonable accommodation,
plaintiff could not perform the essential functions of his job or
other jobs within the FDIC. For these reasons, the defendant's
motion for summary judgment is granted.
An Order consistent with this Opinion will issue this same
[236 F. Supp.2d 28]
ORDER AND JUDGMENT
For the reasons stated in the Opinion issued in this case this
same day, it is hereby
ORDERED that defendant's motion for summary judgment  is
GRANTED; and it is
FURTHER ORDERED that JUDGMENT is entered for the defendant and
the case is DISMISSED with prejudice. The Clerk of the Court
shall remove this case from the docket of the Court. This is a
final appealable order. See Rule 4(a), Fed.R. Civ. P.
*fn2 References to the Code of Federal Regulations throughout this
Opinion are to the 2001 edition. For the current iteration of the
regulations cited herein, see 29 C.F.R. Part 1630 (2002),
particularly 29 C.F.R. § 1630.2, 1630.9, 1630.15.
*fn3 As noted in the MSPB Opinion, Dr. Lassleben "has an optimistic
prognosis for the [plaintiff], but he is much more skeptical
about making time estimates about when the [plaintiff] will
recover. The [plaintiff] is a `problematic treatment responder (a
person who, even with good treatment, does not get better
quickly, or to the same degree that most people in the population
do).'" MSPB Opinion at 6.
*fn4 While the Court finds the proposed accommodation of granting
indefinite LWOP or extending plaintiff's probationary period to
be unreasonable in this case, the Court rejects defendant's
argument that federal regulations prohibited such accommodations.
Defendant is correct that under 5 C.F.R. § 315.802(a) and
(c), "the probationary period [applicable to plaintiff] is 1 year
and may not be extended," and "[n]onpay time in excess of 22
workdays extends the probationary period by an equal
amount. . . . " The Court is unconvinced, however, that defendant
could not have found a way to suspend or extend plaintiff's trial
period. Indeed, an employee relations specialist at the FDIC,
Peggy L. Stokes, conceded that it had been done before. See EEOC
Opinion at 18. The Court also rejects the contention that
defendant's personnel regulations preempt its obligations to
provide reasonable accommodations under the Rehabilitation
*fn5 Defendant claims that although it attempted to reassign
plaintiff, it was under no legal obligation to do so because he
was a probationary employee. See Def.'s Motion at 15;
29 C.F.R. § 1614.203(g) (stating the procedure for reassignment only as
applied to "nonprobationary employee[s]".). In view of its
decision that defendant is entitled to summary judgment on other
grounds, the Court need not address this issue.
*fn6 This statutory language found in the Americans with
Disabilities Act is mirrored in the Rehabilitation Act and
regulations. See 29 U.S.C. § 791(b)"
29 C.F.R. § 1014.203(a)(6) and (c)(1). See supra at 22-24.
*fn7 Based on the above findings, the Court need not reach the third
element of a prima facie case under the Rehabilitation Act, the
question of whether plaintiff was adversely treated or denied the
benefits of his position in this case, by being
discharged because of his disability.
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