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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 Chinchillo).

  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 ¶ 12.

  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 it.
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 ...

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