Court of Appeals of Missouri, Western District, Third Division
APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY, MISSOURI. The Honorable Jon E. Beetem, Judge.
Jonathan D. McQuilkin, for Appellant.
Nicholas S. Beydler, for Respondent.
Before Division Three: Victor C. Howard, Presiding Judge, James E. Welsh, Judge and Gary D. Witt, Judge. All concur.
VICTOR C. HOWARD, JUDGE
William Alton appeals the summary judgment in favor of the Missouri Department of Public Safety in his action against it for age discrimination/failure to hire. He contends that a genuine dispute of material fact existed as to whether he was an employment applicant under section 213.055.1, RSMo 2000. The judgment is affirmed.
In March 1996, William Alton began working for the Department of Public Safety as a special agent in the Division of Alcohol and Tobacco Control. In April 2009, Lafayette Lacy was hired as the state supervisor for the Division. In May 2010, Mr. Lacy informed twenty-five agent employees including Mr. Alton that they would be laid off effective June 15, 2010, as a result of a budget cut. Mr. Alton, who was fifty-eight years old, believed he had two options: he could either be laid off without pay or choose to take retirement. Mr. Alton chose to retire and requested that his termination date be delayed and that he be allowed to use accrued vacation time from June 15 to June 30 so that he would be eligible for full retirement benefits on July 1, 2010. The Department approved the request. On June 2, 2010, Mr. Alton sent Mr. Lacy a letter confirming his plan to retire:
This is to confirm that I have applied for retirement effective July 1, 2010. I had no intention for retiring that soon, but felt compelled to retire due to the elimination of my job. Thank you for changing the termination date to June 30. I will take vacation from June 16, 2010, to June 30, 2010. Should the situation change prior to June 30th that would allow my continued employment with the Division; please let me know and I will cancel my retirement.
Mr. Alton retired effective July 1, 2010.
Meanwhile, prior to the effective date of the layoff, Mr. Lacy learned that the budget for five positions was restored. The five positions covered one agent in each of the five district offices--Kansas City, Jefferson City, St. Louis, Springfield, and Cape Girardeau. Mr. Lacy sent a letter to the most senior agents inviting them to bid on the five restored positions. Mr. Alton was not among the special agents invited to bid for the five restored positions. The restored positions were filled by the end of May 2010, and the five selected agents began work in the district offices on June 1.
Shortly thereafter, the agents staffing the Kansas City and St. Louis offices went on extended sick leave. Later, the special agent assigned to the Jefferson City office resigned to accept a job with the Department of Insurance. After the special agents assigned to the Kansas City and St. Louis offices exhausted their twelve weeks of FMLA leave, both chose to retire. After the remaining agents transferred to different offices, Mr. Lacy needed to fill agent vacancies in Kansas City, St. Louis, and Cape Girardeau offices. He contacted former special agents who lived near each of the district offices and asked whether they wanted to come back to work for the
Division in that office. Specifically, he contacted Charles Bidding (age 51), who lived in St. Joseph, regarding the Kansas City position; LaMont Mitchell (age 41), who lived in St. Louis County, regarding the St. Louis position; and Edward Widenbenner (age 47), who lived in Farmington, regarding the Cape Girardeau position. Mr. Alton was not called or asked to apply. On September 20, 2010, the Division received written applications from the three agents contacted by Mr. Lacy. All three were rehired as special agents in October 2010. On October 15, 2010, after learning of the rehire of agents Bidding, Mitchell, and Widenbenner, Mr. Alton emailed Mr. Lacy stating, " As you know, I had no intention of retiring from the Division ...