United States District Court, E.D. Missouri, Eastern Division
JOSEPH P. MILCHAK, Plaintiff,
ASHTON B. CARTER, Secretary of Defense, Department of Defense, Defendant.
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Ashton B.
Carter's motion for summary judgment (Doc. 33). The
matter is fully briefed and ready for disposition. For the
following reasons, the motion will be granted.
civil action, Plaintiff Joseph P. Milchak asserts three
claims for relief. First, he alleges that Defendant
discriminated against him based on his age in violation of
the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq.
Second, he claims that Defendant violated Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791
et seq., by failing to accommodate his need for a
second-shift work schedule, and discriminating against him
based on his association with his wife who is physically
disabled. Third, he alleges that Defendant breached a
settlement agreement that the parties reached after he filed
an informal charge of discrimination under Title VII of the
Civil Rights Act of 1964 (“Title VII”), as
amended, 42 U.S.C. § 2000e et seq.
(“settlement-agreement claim”) (Doc. 1).
summary judgment evidence establishes the following.
Plaintiff was born in 1943, and started working for the
National Geospatial-Intelligence Agency (“NGIA”)
in January 1985 (Doc. 34.3 at 3, 6). In 2009 and 2010, he was
employed as a Digital Image Specialist working second shift
in the NGIA's Edit Department, which is also known as
EGMM (Id. at 6-7). Vernon Grothoff was
Plaintiff's first line supervisor, and Patricia Dickens
was his second line supervisor (Id.; Doc. 34.6).
November 2009, Plaintiff heard a rumor that EGMM's second
shift was going to be eliminated (Doc. 34.3 at 9-10).
According to Plaintiff, he approached Dickens at that time to
discuss a potential transfer to a new department in the NGIA,
the St. Louis Information Library (“STIL”); that
Dickens told him “he was not going to be able to work
there” because Dickens wanted “longevity”
in the new STIL positions; and that Plaintiff could instead
transfer to a second-shift position in Gateway, another NGIA
department, if his second-shift position with EGMM was
eliminated (Id. at 9-13; Doc. 43.1 at 4).
undisputed that, in December 2009, Dickens sent an email to
all EGMM employees, including Plaintiff, informing them that
STIL would become operational, and associated training would
begin, in March 2010; stating that there would be positions
available during all three work shifts; formally seeking
volunteers to transfer to STIL; and asking that interested
employees submit their names and shift preferences by
December 17, 2009 (Doc. 34.3 at 10-12; Docs. 34.7, 34.8). It
is also undisputed that a position in STIL would have been a
lateral transfer for Plaintiff (Doc. 34.3 at 27). Plaintiff
did not reply to Dickens's December 2009 email by
December 17, 2009 (Id. at 12).
January 2010, Grothoff emailed Plaintiff and other EGMM
second-shift employees, informing them that the EGMM's
second shift would be eliminated in the next few months as a
result of “recapitalization of the Digital
Transformation equipment, personnel movement to [STIL], and
workstation availability on first shift.” (Doc. 34.9).
In his email, Grothoff again sought volunteers to transfer to
STIL, noted that there was still one second-shift position
available in STIL, and directed employees who were interested
in volunteering to transfer to STIL to communicate their
interest to their supervisor by January 28, 2010
(Id.; Doc. 34.3 at 13). Plaintiff did not email
Dickens or Grothoff to express interest in transferring to
STIL by January 28, 2010 (Docs. 34.5, 34.7, 34.10).
February 8, 2010, Dickens informed eight second-shift EGMM
employees, including Plaintiff, that they would be reassigned
to EGMM's first shift on either March 15, 2010 or April
26, 2010, based on their seniority and equipment
availability; Plaintiff was directed to report to first shift
on March 15, 2010 (Docs. 34.6, 34.11). On February 16, 2010,
Plaintiff emailed Grothoff, indicating that he had not
requested a STIL position because he was “planning to
be retired before the STIL goes into operation.”
Plaintiff also provided a third EGMM supervisor a note from
his wife's physician which stated that Plaintiff's
wife needed him to take care of her until 4:30 p.m. each day;
and requested an accommodation from NGIA based on his
wife's medical condition (Docs. 34.3 at 7, 16; 34.12).
Plaintiff was able to perform the essential functions of his
job, whether on first or second shift; his accommodation
request was based on his need to attend to his wife's
medical needs during the day, which conflicted with a
first-shift work schedule (Doc. 34.3 at 21-22). On February
18, 2010, Grothoff notified Plaintiff that his accommodation
request had been denied under the NGIA's
“Reasonable Accommodation Program” because the
program was only available to employees who themselves had
disabilities (Doc. 34.13).
with three of his colleagues from EGMM's second
shift-reported to first shift in the EGMM on March 15, 2010,
as scheduled (Docs. 34.3 at 17; 34.5; 34.6). Plaintiff
performed the same job he had performed on second shift, and
he received the same pay and benefits (Doc. 34.3 at 17). From
March 14, 2010 until March 30, 2010, Plaintiff worked partial
days, using sick leave to cover the remainder of each shift
(Id. at 17-18). He did not inquire about other
second-shift or third-shift positions in NGIA, nor did he
invoke his rights under the Family Medical Leave Act.
Plaintiff had unused paid annual leave when he retired
(Id. at 18). On March 31, 2010, Plaintiff retired
(Id. at 8).
April 26, 2010, two more of Plaintiff's former colleagues
from EGMM's second shift transitioned to EGMM's first
shift (Docs. 34.5; 34.6). In total, four employees from
EGMM's second shift applied and were selected for
second-shift positions in STIL (Docs. 34.5, 34.6, 34.7).
Three of those employees completed STIL training and
transferred to STIL; one employee did not complete the
training, and instead was reassigned to first shift (Doc.
did not email Dickens to volunteer for STIL. He also did not
ask Dickens about transferring to Gateway, and no one told
him that there was not a position for him in Gateway (Docs.
34.3 at 25; 34.7; 43 at 1). According to Plaintiff, he did
not formally apply for a position in STIL because Dickens had
told him in November 2009 that she did not want him in STIL,
and he assumed there were no positions available in Gateway
after he received Grothoff's February 2010 email
directing him to report for first shift in EGMM (Docs. 34.3
at 9-10, 25; 43 at 1).
he retired, Plaintiff filed an informal complaint of
discrimination, and the parties participated in mediation of
that complaint in July 2010. Plaintiff claims that, during
the mediation, Dickens offered him any of three open
positions with NGIA and that he agreed to accept any of the
positions. According to Plaintiff, the parties arrived at an
agreement to settle his informal complaint during the
mediation, but Defendant thereafter breached the agreement
when Dickens told him there were no positions for him at NGIA
(Id. at 28). On August 16, 2010, Plaintiff filed a
formal complaint of discrimination, alleging that Defendant
had discriminated against him based on his age and his
wife's medical condition; his complaint was
administratively denied (Docs. 34.3 at 18; 34.15;
34.17). On April 15, 2015, Plaintiff filed suit in
this Court (Doc. 1). Defendant now moves for summary judgment
(Docs. 33, 38, 44). Plaintiff opposes the motion (Docs.