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Seaton v. Perdue

United States District Court, E.D. Kentucky, Central Division, Lexington

March 28, 2019

KENDELL SEATON, Plaintiff,
v.
SONNY PERDUE, in his official capacity as Secretary, United States Department of Agriculture, Defendant.

          OPINION & ORDER

          ROBERT E. WIER UNITED STATES DISTRICT JUDGE.

         In this 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.

         Properly 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.

         I. BACKGROUND

         Facts

         Judge 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 Certificate.2 [Id.].
[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. [Id.].
[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, ¶ 27].
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).

         Posture

         Seaton, 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.[1] 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.

         II. STANDARD[2]

         A court “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, 2511 (1986).

         The 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 original)).

         A fact 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.”[3] 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).

         III. ANALYSIS

         The 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.

         A. Applicable Standard

         “To 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.

         Of 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 ADEA[.]”).

         On 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 claim).

         Neither 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 desultory contentions.

         Nonetheless, an independent review of the relevant precedent convinces the Court[4] 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.

         In sum, 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.

         B. Prima Facie Case

         An ADEA 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).

         Direct Evidence

         A 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). Stated otherwise:

“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. ...

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