United States District Court, E.D. Kentucky, Central Division, Lexington
OPINION, ORDER, FINDINGS OF FACT, AND CONCLUSIONS OF
E. Wier, United States District Judge.
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.
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, 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.
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.
Arrival Position Cancellation & Reorganization
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.
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 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.
Jurisdiction & Venue
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.
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.
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
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,  answers each in the negative. The third is
the one that really counts.
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.
FINDINGS & CONCLUSIONS
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.
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)).
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). 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.
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 . He further noted
that Seaton's work history never placed him in the London
area. Id. at .
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) ...