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Milchak v. Carter

United States District Court, E.D. Missouri, Eastern Division

October 26, 2016

ASHTON B. CARTER, Secretary of Defense, Department of Defense, Defendant.



         This 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.

         I. Background

         In this 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).

         The 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).

         In 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[1]; 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).

         It is 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).

         In 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).

         On 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).

         Plaintiff-along 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).

         On 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. 34.6).

         Plaintiff 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).

         Before 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).[2] 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. 42-43).

         II. Summary ...

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