United States District Court, E.D. Kentucky, Central Division, Lexington
OPINION & ORDER
E. WIER UNITED STATES DISTRICT JUDGE.
ADEA action, Plaintiff Kendell Seaton claims that USDA Rural
Development (RD) State Director Tom Fern ignored
Plaintiff's superior credentials and picked Barry Turner
(12-years Seaton's junior) for the London, Kentucky Area
Director position because he wanted a younger man for the
job. DE 1 (Complaint). Defendant Sonny Perdue, USDA
Secretary, moves for judgment on the pleadings or,
alternatively, summary judgment. DE 25 (Motion). The motion
is fully briefed, DE 38 (Response), DE 44 (Reply), and stands
ripe for review. For the following reasons, and under the
applicable standards, the Court finds that Plaintiff
marshalled sufficient proof for a triable issue on the ADEA
claim. Accordingly, the Court denies summary judgment.
accepting Seaton's substantiated take, there is
significant evidence to support a finding of employment
mischief. Here, the hiring unit, RD, had selected Plaintiff
for the Area Director position but then reversed course when
Fern became State Director. In a reeking process that Fern
directly oversaw, he repeatedly lied, created dubitable
procedural cover, and ultimately selected a significantly
younger candidate that once had been tied as the lowest rated
qualifying applicant. Although the Court has significant
questions about Fern's actual motivations, the ADEA
burden-shifting structure and pretext analysis provide a
binding formula that here, in the summary judgment context,
gets Seaton to a fact-finder.
Hood, who had the case at one point, previously recapped the
relevant factual backdrop:
In 2009, Seaton applied for the Area Director position with
[RD's] . . . office in London, Kentucky. [DE 1, p. 5,
¶ 19]. Human Resources Manager Cheri Gaudinier ranked
and scored each applicant based on their education and
experience, as well as knowledge, skills, and abilities
relevant to the position. [Id. at p. 5, ¶ 21].
This data was compiled in a Certificate of Eligibles and
considered by a selection committee, which consisted of the
Agency's State Director, Vernon Brown, as well as
Administrative Program Director Tom Kostelnik, Housing
Director Linda Chadwell, Business Director Jeff Jones, and
Multi-Family Director Paul Higgins. Of the six eligible
applicants, Seaton scored and ranked highest on the
[FN 2] Seaton's experience includes his tenure as
Kentucky State Director for the USDA/FHA from 1981 to 1987.
[Id. at p. 6, ¶ 21]. He also served as a
Business and Industrial Loan Officer, a County Supervisor,
and Assistant County Supervisor with the USDA/FDA.
[Id.]. Seaton has a B.S. in Agriculture from Western
Kentucky University, an M.A. in Applied Public Financial
Management from American University, and a Teaching
Certificate in Vocational Agriculture Education from the
University of Kentucky. [Id.].
On September 23, 2009, Brown selected Seaton for the position
on the basis of a unanimous recommendation from the
committee. [Id. at p. 6, ¶ 20]. The following
month, Seaton received a letter stating that he had been
chosen for the Area Director Position. [Id.]. Seaton
then completed the appropriate paperwork and submitted to a
background check. [Id.].
In November 2009, Tom Fern was appointed as the Kentucky
State Director for . . . [RD]. [Id. at p. 6, ¶
23]. The following January, he met with Kostelnik, Agency
employee Michele Witt, and Director of Human Resources Allen
Hatcher. [Id. at p. 7, ¶ 24]. Based on
Witt's and Gaudinier's notes from that meeting,
Seaton concludes that its purpose was to find a legitimate
business reason for denying him the Area Director position.4
[Id. at p. 7, ¶ 25-27]. Shortly thereafter,
Seaton received a letter from Fern notifying him that the
position had been cancelled due to a pending reorganization.
[FN 4] For example, Gaudinier's notes indicate that an
old arrest was “not enough to deny employment”
and that this was a “sensitive
position/situation.” [Id. at p. 7, ¶ 26].
Witt's notes state that a“background check-felony
conviction” was reviewed. [Id. at p. 7, ¶
Although Fern cancelled five other open jobs at this time,
the Area Director position was the only one that had already
been filled. [Id. at p. 7-8, ¶ 30-31]. Seaton
alleges that reorganization “was only a pretext to
cover [his] removal … from the job, ” as Fern
evinced an intent to re-announce the Area Director position
at the meeting. [Id. at p. 8, ¶ 32-34]. On
February 14, 2010, Fern, Kostelnik, Gaudinier, and Hatcher
held another meeting. [Id. at p. 8, ¶ 36].
Notes from the meeting indicate that Seaton “will
re-apply for the position & not be selected (results of
NACI-doesn't matter)” and that he “would have
to argue an EEO basis” to complain about it.
[Id. at p. 8, ¶ 36-38]. The notes further state
that “age disc. = 40 yrs.” [Id.].
In March 2010, Fern submitted a reorganization plan to the
USDA's national office that did not affect the Area
Director position in London. [Id. at p. 9, ¶
43]. The Agency re-announced the position one month later.
[Id. at p. 9, ¶ 44]. Seaton reapplied.
[Id. at p. 9, ¶ 45]. A younger candidate named
Barry Hunter, who had applied for the position in 2009, also
resubmitted his application. [Id.]. Although Hunter
had scored the lowest on the Certificate of Eligibles in
2009, Fern presented Hunter to the selection committee as his
choice and asked for the committee's approval, rather
than their recommendation. [Id. at p. 9, ¶
46-47]. The committee, comprised of Fern, Kostelnik, Jones,
Brown, Witt, Gaudinier, and Agency employee Gene Floyd,
approved Hunter for the Area Director position on June 25,
2010. [Id. at p. 9, ¶ 48].
DE 15 at 1-4 (footnote 3 omitted).
on February 11, 2010, contacted the EEOC and eventually, on
April 29, 2010, lodged a formal complaint alleging, among
other bases, age discrimination. DE 22-5 at 1; DE 25-3
(Collective Excerpts from Def.'s Investigative File -
Part 1) at 33-34. Plaintiff eventually brought his claim to a
two-day, August 29 & 30, 2011, hearing before EEOC
administrative law judge (ALJ) Davidson Momah. Judge Momah,
though finding “the entire selection process very
disturbing, ” concluded that “the record shows
that age was not the real reason . . . for [Seaton's]
nonselection.” DE 38-5 at 19, 31 (March 28, 2012,
decision). The agency adopted the ALJ's recommendation
both initially, on October 23, 2013, and after completing its
internal appeals procedure, on May 13, 2016. Seaton then
filed this suit. DE 1. Judge Hood substituted as Defendant
Secretary Perdue for former-Secretary Vilsack and, under Rule
12, dismissed all named individual co-defendants.
See DE 15 at 1 (Mem. Op. & Order). Secretary
Perdue now pursues dispositive relief. DE 25.
“shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A reviewing court must construe the
evidence and draw all reasonable inferences from the
underlying facts in favor of the nonmoving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 106 S.Ct. 1348, 1356 (1986); Lindsay v.
Yates, 578 F.3d 407, 414 (6th Cir. 2009). Additionally,
the court may not “weigh the evidence and determine the
truth of the matter” at the summary judgment stage.
Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505,
burden of establishing the absence of a genuine dispute of
material fact initially rests with the moving party.
Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553
(1986) (requiring the moving party to set forth “the
basis for its motion, and identify those portions of
‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any,' which it believes demonstrate an
absence of a genuine issue of material fact”);
Lindsay, 578 F.3d at 414 (“The party moving
for summary judgment bears the initial burden of showing that
there is no material issue in dispute.”). If the moving
party meets its burden, the burden then shifts to the
nonmoving party to produce “specific facts”
showing a “genuine issue” for trial. Celotex
Corp., 106. S.Ct. at 2253; Bass v. Robinson,
167 F.3d 1041, 1044 (6th Cir. 1999). However, “Rule
56(c) mandates the entry of summary judgment . . . against a
party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial.” Celotex Corp., 106 S.Ct. at 2552;
see also Id. at 2557 (Brennan, J., dissenting)
(“If the burden of persuasion at trial would be on the
non-moving party, the party moving for summary
judgment may satisfy Rule 56's burden of production in
either of two ways. First, the moving party may submit
affirmative evidence that negates an essential element of the
nonmoving party's claim. Second, the moving party may
demonstrate to the Court that the nonmoving party's
evidence is insufficient to establish an essential element of
the nonmoving party's claim.” (emphasis in
is “material” if the underlying substantive law
identifies the fact as critical. Anderson, 106 S.Ct.
at 2510. Thus, “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment. Factual
disputes that are irrelevant or unnecessary will not be
counted.” Id. A “genuine” issue
exists if “there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that
party.” Id. at 2511; Matsushita Elec.
Indus. Co., 106 S.Ct. at 1356 (“Where the record
taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no ‘genuine
issue for trial.'”) (citation omitted). Such
evidence must be suitable for admission into evidence at
trial. Salt Lick Bancorp v. FDIC, 187 Fed.Appx. 428,
444-45 (6th Cir. 2006).
federal-sector ADEA provision requires that “personnel
actions affecting employees or applicants . . . who are at
least 40 years of age . . . be made free from any
discrimination based on age.” 29 U.S.C. § 633a(a).
Seaton stakes his discrimination claim on this statute.
See DE 1 at ¶ 59.
prevail on a claim under the ADEA, it is not sufficient for
the plaintiff to show that age was a motivating factor in the
adverse action; rather, the ADEA's . . . language
requires that a plaintiff ‘prove by a preponderance of
the evidence (which may be direct or circumstantial) that age
was the ‘but-for' cause of the challenged employer
decision.'” Scheick v. Tecumseh Pub. Sch.,
766 F.3d 523, 529 (6th Cir. 2014) (quoting Gross v. FBL
Fin. Servs., Inc., 129 S.Ct. 2343, 2351 (2009)). The
Gross Court clarified the ultimate burden for a
private-sector (§ 623) ADEA plaintiff. Under
Gross, an ADEA plaintiff cannot “establish
discrimination by showing that age was simply a motivating
factor.” 129 S.Ct. at 2349.
course, Seaton brings a federal-sector ADEA claim under
§ 633a. Though both §§ 623 & 633a forbid
age discrimination, Congress used different verbiage to
implement each prohibition. Compare 29 U.S.C. §
633a(a) (requiring that actions be “free from any
discrimination based on age”), with Id. at
§ 623 (prohibiting discrimination “because of . .
. age”). This language variation led the EEOC and the
D.C. Circuit to hold that Gross does not mandate a
“but-for” test in federal-sector cases. Ford
v. Mabus, 629 F.3d 198, 205 (D.C. Cir. 2010) (“But
the Secretary goes on to argue that Gross requires
us to hold that section 633a also creates a but-for test. On
this point, we disagree.”); Nita H., EEOC DOC
0320110050, 2014 WL 3788011, at *10 n.6 (July 16, 2014)
(“In the Commission's view, the ‘but for'
standard . . . does not apply to retaliation claims by
federal sector applicants or employees under . . . the
other hand, the Ninth and Eleventh Circuits apply
Gross to § 633a claims. See Shelley v.
Geren, 666 F.3d 599, 606-07 (9th Cir. 2012); Babb v.
Sec'y, Dep't of Veterans Affairs, 743 Fed.Appx.
280, 287 (11th Cir. 2018). In light of Gross, the
Seventh Circuit-and the lone concurrence in the D.C.
Circuit's decision-questioned the Ford
Majority's reading of § 633a. See Reynolds v.
Tangherlini, 737 F.3d 1093, 1096 (7th Cir. 2013);
Ford, 629 F.3d at 208 (Henderson, J. concurring)
(“Given its flat declaration that the mixed-motives
theory ‘is never proper in an ADEA case' . . . it
is difficult for me to conclude [that] the [Supreme] Court
would endorse the reading we announce today.”). The
First, Second, and Fifth Circuits have discussed the
unsettled question without deciding whether the
“but-for” test applies to federal-sector claims.
See Palmquist v. Shinseki, 689 F.3d 66, 76 (1st Cir.
2012); Leal v. McHugh, 731 F.3d 405, 411-12 (5th
Cir. 2013); Neary v. Gruenberg, 730 Fed.Appx. 7, 12
(2d Cir. 2018). The Sixth Circuit has not authoritatively
decided this question. But see Parnell v. Stone, 12
F.3d 213 (table) (per curiam) (6th Cir. 1993) (applying the
“but for” standard to a federal sector ADEA
Seaton nor the Secretary raises the circuit split on this
critical issue. Defendant cites Colorado and Michigan
district court decisions. DE 25-2 at 29 (quoting Hartley
v. Dep't of Agric., No. 10-CV-0323-ZLW-CBS, 2010 WL
5865371, at *3 (D. Colo. Nov. 29, 2010), report and
recommendation adopted, No. 10-CV-00323-ZLW-CBS, 2011 WL
721861 (D. Colo. Feb. 23, 2011) and Parnell v.
Stone, 793 F.Supp. 742, 748 (E.D. Mich. 1992),
aff'd, 12 F.3d 213 (table)). The former applied,
with minimal analysis, the “but-for” test to a
federal-sector claim; the latter is pre-Gross &
Ford. Plaintiff's response bears only a single
muddled reference, without citation, to the crux of his
claim. See DE 38 at 19 (“Plaintiff has shown
the substantial and motivating factor for Plaintiff's
non-selection, the ‘but-for' cause, was his
age.”). Defendant, in reply, relies on the Sixth
Circuit's private-sector application of Gross in
Blizzard v. Marion Tech. Coll. See DE 44 at 4
(citing 698 F.3d 275, 283 (6th Cir. 2012)). However, given
the current federal context, Blizzard is
distinguishable, and the subsequent references to
pre-Gross “motivating factor” analysis
is flummoxing. See, e.g., Id. at 2 & 8 (quoting
Hartsel v. Keys, 87 F.3d 795, 800 (6th Cir. 1996)).
The Court, though inclined, is unwilling to find Plaintiff
conceded this crucial issue based on Defendant's
an independent review of the relevant precedent convinces the
Court that the “but-for” standard is
applicable to Plaintiffs claim. In addition to Gross
and the contrary circuit holdings discussed above, two cases
dissuade the Court from applying Ford. First, the
Supreme Court's textual interpretation of “based
on” directly undercuts the D.C. Circuit's reading
of § 633a. See Safeco Ins. Co. of Am. v. Burr,
127 S.Ct. 2201, 2212 (2007) (“In common talk, the
phrase ‘based on' indicates a but-for
causal relationship and thus a necessary logical
condition.” (emphasis added)); 29 U.S.C. § 633a(a)
(prohibiting “discrimination based on
age” (emphasis added)). Second, the Sixth Circuit's
discussion of Gross in Lewis v. Humboldt
made clear the Circuit's view on Gross's
breadth. 681 F.3d 312, 318 (6th Cir. 2012) (extending
Gross to ADA claims). As the Humboldt Court
explained, in 1991 Congress amended Title VII to incorporate
a “motivating factor” standard. Id.
(citing Civil Rights Act of 1991, Pub. L. No. 102-166, §
107, 105 Stat. 1071). The same 1991 Act included ADEA
amendments, see 105 Stat. 1071 at § 115, but
omitted any ADEA equivalent to the “motivating
factor” change. Per Gross, “[w]hen
Congress amends one statutory provision but not another, it
is presumed to have acted intentionally[.]” 129 S.Ct.
at 2349. The Court simply sees no reasoned basis for limiting
the Gross rationale to the ADEA's private-sector
provisions. The 1991 ADEA amendment Gross referenced
concerned § 626(e), which governs notice and timely
filing. Nonetheless, the Gross Court found the
contemporaneous amendments meaningful for another, unamended
ADEA provision-namely § 623. The Court finds equal
import in Congress's failure to add a
“motivating” standard to § 633a, which was
added to the ADEA long before the at-issue 1991 amendments.
See Pub. L. No. 93-259, § 28, 88 Stat. 55.
the Supreme Court's interpretation of the federal-sector
ADEA's “based on” verbiage, though in a
different context, is consistent with the private sector
“because of” standard. The rationale underlying
the Gross decision, as elucidated in
Humboldt, provides no logical basis for limiting the
Supreme Court's “flat declaration that the
mixed-motives theory ‘is never proper in an ADEA
case'” to private-sector actions. Ford,
628 F.3d at 208 (Henderson, J., concurring) (quoting
Gross, 129 S.Ct. at 2346). Accordingly, Plaintiff,
at trial, would bear the burden of showing that age was the
but-for cause of RD's failure to hire him. This standard,
of course, logically informs the summary judgment rubric in
this ADEA case.
Prima Facie Case
plaintiff may establish a prima facie case via either of two
evidentiary routes: direct or circumstantial. “The
direct evidence and circumstantial evidence paths are
mutually exclusive; a plaintiff need only prove one or the
other, not both.” Kline v. Tennessee Valley
Auth., 128 F.3d 337, 348-49 (6th Cir. 1997).
plaintiff pursuing the direct track must present evidence
that, “if believed, requires the conclusion that age
was the ‘but for' cause of the employment
decision.” Scheick, 766 F.3d at 530. The
evidence must provide this causal link “without
requiring any inferences.” Rowan v. Lockheed Martin
Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004).
“Direct evidence is composed of only the most blatant
remarks, whose intent could mean nothing other than to
discriminate on the basis of some impermissible
factor.” [Umani v. Michigan Dep't of
Corr., 432 Fed.Appx. 453, 458 (6th Cir. 2011)]. It is
“‘evidence from the lips of the defendant
proclaiming his or her . . . animus.'” Diebel
v. L & H Res., LLC, 492 Fed.Appx. ...