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Seaton v. Perdue

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

September 30, 2019

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


          Robert E. Wier, United States District Judge.

         In this ADEA action, Plaintiff Kendell Seaton claims that, in 2010, USDA Rural Development (RD) Kentucky State Director Tom Fern ignored Plaintiffs 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. This matter is now before the Court on summary bench trial briefing.


         a. Factual Overview

         Seaton's Background

         Kendell Seaton, age 63 during the relevant events, see DE 38-1 at 145 (EEOC Report), began working for RD's predecessor agency, Farmers Home Administration (“FHA”), in 1970. DE 56-1 at 24 (Seaton Resume). He worked for FHA in the Commonwealth as an Assistant County Supervisor, County Supervisor, and Business & Industrial Loan Specialist. Seaton also worked for several years ('75-'77) at FHA's national office in D.C. Id. During his time in Washington, Seaton obtain an M.A. in Applied Public Financial Management from American University. In 1981, the first President Bush appointed Seaton as Kentucky FHA Director. Seaton's tenure as Director ended in 1987 when he resigned after being indicted on federal charges stemming from acceptance of improper benefits See DE 22 (Seaton Dep.) at 30-31 (“I decided to plead guilty to one count of accepting a gift that I wasn't entitled to.”). For the 2 decades after his resignation and prior to applying for RD's London Area Director position, Seaton worked as a realtor in Lexington, Kentucky. DE 56-1 at 20-21.

         Turner's Background

         Barry Turner, age 51 during the relevant period (DE 38-1 at 144), had roughly two decades of experience at RD prior to his selection. DE 55-1 at 48. A graduate of Berea College, id. at 49, and then-current RD employee, Turner:

[H]ad come up through the ranks as an assistant county supervisor, county supervisor, area specialist. He was very knowledgeable about the programs.... I mean, the communication systems, the computers that we used, the programs that were used . . . in those systems. He [ ] was from the local area. He knew th[e] stakeholders, our customers in the local areas, and his recentness of his experience was . . . considered to be [ ] a strength.

DE 24 (Kostelnik Dep.) at 70-71.

         The Initial Selection

         In 2009, both Seaton and Turner applied for the London, Kentucky, Area Director position. This was a management slot with area-wide authority. Cheri Guadinier, RD's local HR Manager, scored all applicants-including Turner, who tied for last, and Seaton, who tied for first-based on objective criteria and compiled a “Certificate of Eligibles[.]” DE 55-1 at 41-42. The spread between first and last was only 5 points. See DE 23-3 at 2- 3. Then-Acting State Director Brown formed a selection committee-which included Brown, and Program Directors Tom Kostelnik, Linda Chadwell, Jeff Jones, and Paul Higgins-to consider the applicants. DE 38-1 at 4 (Report of Investigation). The panel unanimously recommended Seaton as the preferred candidate. DE 38-3 at 68-69; DE 55-1 (9/23/2009 Selection Certificate). Seaton's application went then to HR for processing and a background check. DE 38-1 at 5. Time passed and government gears slowly turned.

         Fern's Arrival Position Cancellation & Reorganization

         While Seaton's background check pended, in November 2009, President Obama appointed Tom Fern Kentucky RD Director. Id. at 4. Following two December 2009 and January 2010 meetings where Seaton's pending selection was heavily discussed, RD cancelled all open vacancy announcements in the state (including the London Director position for which Seaton was the selectee). DE 55-1 at 27 (1/15/2010 Letter to Seaton). The reason given: contemplated reorganization. Id. After several months, RD submitted a reorganization plan that did not impact the London office. See DE 56-1 at 2.

         The Final Selection

         The Agency then reannounced the Area Director vacancy. See DE 56-1 at 36 (April 5, 2010, reannouncement). Seaton and Turner again applied. Fern, the new selector, first chose Turner from a Certificate of Eligibles that, through clerical error, omitted Seaton. DE 56-1 at 9. Fern claims his decision was principally driven by the recency and proximity (to the London office) of Turner's experience and background. See DE 38-4 at 13-15 (EEOC Hr'g Tr.). Once the mix-up was remedied, and Seaton's name added, DE 56-1 at 12, Fern convened a committee[1] to approve or disapprove of the Turner pick. See Id. at 13. The committee, no surprise, signed off on their boss's choice. Id. at 13. This suit, after a lengthy administrative process, followed.

         b. Jurisdiction & Venue

         The Court has jurisdiction over the instant dispute pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 633a. Section 1331 grants district courts original jurisdiction in “all civil actions arising under” federal law. Section 633a(c) authorizes civil suits for alleged age discrimination by federal employers “in any Federal district court of competent jurisdiction[.]” Defendant is a federal employer, and Plaintiff claims age discrimination as to a personnel action in this District. See DE 59 at 1. Accordingly, the Court has original jurisdiction.

         Further, venue is proper in this District pursuant to 28 U.S.C. § 1391(b), which provides that an action may be brought where “a substantial part of the events or omissions giving rise to the claim occurred.” Id. The Court's findings, below, detail the relevant events. For now, suffice it to say most critical events and key individuals trace to this District.

         c. Posture

         The Court has already described the case's posture prior to dispositive motion consideration:

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 . . . . 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. . . . Judge Hood[, who had the case at one point, ] 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).

DE 46 at 3-4. The Court, seeing genuine disputes over material facts, then denied Defendant's motion for dispositive relief. DE 46 (Op. & Order). The parties, after due consideration, consented to a summary bench trial, and the Court set a briefing schedule. DE 53 (Order). The case is now fully briefed, and the parties have agreed to a specific record scope. See DE 57 (Designation of Joint Exhibits); DE 58 & 59 (Trial Briefs); DE 63 & 64 (Responses). Having considered the full record, and under the applicable standards, the Court FINDS that Plaintiff, despite discrediting much of the defense's hiring tale, failed to preponderantly prove any age-driven decision making. Age was not the but-for cause of Fern's choice. Accordingly, the Court enters a separate Judgment consistent with the following reasoning and findings.


         The case presents three principal questions: First, did Fern cancel the London Area Director vacancy because he honestly was considering moving that office? Second, did Fern pick Turner when that job was reannounced because he, after scrupulously comparing the candidates, preferred Turner's credentials? Finally, and most importantly, but for Seaton's age, would Fern have given him the job? The Court, for the following reasons and under the preponderance standard, [2] answers each in the negative. The third is the one that really counts.

         The Court first describes the legal standard, next conducts a McDonnell Douglas burden-shifting analysis, and finally assesses the ultimate question of discrimination. At bottom, the facts and law compel a result in Defendant's favor. Pursuant to Federal Rule of Civil Procedure 52(a)(1), the Court makes and memorializes the following findings of fact and conclusions of law.


         a. Legal Standard

         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 59 at 7.

         “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.'”[3] 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)).

         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). Seaton explicitly taps his claim for analysis under the circumstantial rubric. See DE 59 at 8 (“Plaintiff chose to establish his prima facie case through circumstantial evidence.”). Thus, Plaintiff must satisfy “the familiar McDonnell Douglas burden-shifting framework.” Loyd v. Saint Joseph Mercy Oakland, 766 F.3d 580, 589-90 (6th Cir. 2014). Under this rubric, Seaton had to prove: “(1) he was at least 40 years old at the time of the alleged discrimination; (2) he was subjected to an adverse employment action; (3) he was otherwise qualified for the position; and (4) after he was rejected, a substantially younger applicant was selected.” Burzynski v. Cohen, 264 F.3d 611, 622 (6th Cir. 2001). The defense does not argue that Seaton failed to establish a prima facie case. And rightfully so. Undisputed facts show that Seaton: (1) was over 60 years old during the relevant period, DE 38-1 at 145, (2) applied and was rejected for an RD position, DE 56-1 at 15 (7/13/2010 Letter to Seaton), (3) was, as RD itself twice found, qualified for the position, id. at 12; DE 55-1 at 45 (Selection Certificates), and (4) RD's ultimate choice, Turner, was 12 years Seaton's (thus substantially) junior. DE 38-1 at 144.

         c. Nondiscriminatory Rationale

         Seaton's valid prima facie case shifts the burden to the defense “to articulate a legitimate nondiscriminatory reason for the adverse employment action.” Schoonmaker v. Spartan Graphics Leasing, LLC, 595 F.3d 261, 264 (6th Cir. 2010). “[T]his burden is one of production only, not of persuasion.” Gray v. Toshiba Am. Consumer Prod, Inc., 263 F.3d 595, 599 (6th Cir. 2001). The Court's analysis on this topic remains (mostly) unchanged from the summary judgment stage:

Defendant offers several ostensibly legitimate bases for Fern's choice of Turner over Seaton. Fern contends he gave Turner the nod based on his more recent (and London-based) experience, his close ties to the relevant stakeholders, and the positive reviews Turner received from coworkers and community members. [DE 38-4 at 13-15] (Fern EEOC [Hr'g Tr.]). Fern also explained why he felt these factors were meaningful. See Id. at [15-16] (“The area director is . . . personally working hands on supervising those staff . . . . He's the leader . . . with all the stakeholders[.] . . . . [Turner] knew the people. . . . [H]e had a proven track record of working well with all the partners and stakeholders as well as his coworkers.”). Fern contrasted Turner's credentials with Seaton being away from agency work for “approximately 22 to 23” years during which “the face of Rural Development has changed dramatically[.]” Id. at [16]. He further noted that Seaton's work history never placed him in the London area. Id. at [17].
The Court views Defendant's proffered selection rationale as sufficient to carry the “extremely light” step two production burden. Baseball at Trotwood, LLC v. Dayton Prof'l Baseball Club, LLC,204 Fed.Appx. 528, 536 (6th Cir. 2006). “It is important to note that the defendant need not prove a nondiscriminatory reason for not [hiring Seaton], but need merely articulate a valid rationale.” [Hartsel v. Keys,87 F.3d 795, 800 (6th Cir. 1996)] (emphasis in original). To the extent Plaintiff argues that experience recency intrinsically is an illegitimate basis or a mere proxy for ageism, he is incorrect. See Wooden v. Bd. of Educ. of Jefferson Cty., Ky.,931 F.2d 376, 379-80 (6th Cir. 1991) (affirming summary judgment over plaintiff's objection to defendant's “giv[ing] more recent experience greater value”); Killian v. Hagel, No. 12-CV-0828 JLS (DHB), 2015 WL 13239134, at *4 (S.D. Cal. July 27, 2015) ...

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