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).
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")
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
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 ...