Seaton v. United States Department of Agriculture et al

Filing 15

MEMORANDUM OPINION & ORDER: (1) GRANTING dfts' 7 MOTION to Dismiss; (2) dfts Tom Fern, Gene Floyd, Cheri Gaudineer, Allen Hatcher, Jeff Jones, Tom Kostelnik, Michelle Witt; (3) dft Sonny Perdue, acting in his official capacity as the Secretary of the US Department of Agriculture, having filed an answer: (a) w/in 21 days parties meet & exchange disclosures; (b) Order for Meeting & Report due within 10 days thereafter. Signed by Judge Joseph M. Hood on 8/2/17.(KJR)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
KENDELL SEATON,

)
)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.

SONNY PERDUE, Secretary of the
United States Department of
Agriculture, et al.1
Defendants.

Action No. 5:16-cv-309-JMH

MEMORANDUM OPINION
AND ORDER

****
I. INTRODUCTION

This matter is before the Court upon a Motion to Dismiss, or

in the Alternative, Motion for Summary Judgment [DE 7] filed by
Defendants Tom Fern, Tom Kostelnik, Cheri Gaudinier, Michele Witt,
Allen Hatcher, Jeff Jones, and Gene Floyd, all of whom have been
sued in their individual and official capacities.

Plaintiff

Kendell Seaton having filed a Response in Opposition [DE 12], and
Defendants having submitted their Reply [DE 14], this matter is

1
 The Complaint names Tom Vilsack, in his official capacity as Secretary
of the United States Department of Agriculture (“USDA”), as a defendant
in this action. [DE 1]. Secretary Vilsack resigned on January 13, 2017
and Michael Scuse assumed the role of Acting Secretary. [DE 13, p. 1,
n. 1].
Mike Young replaced Scuse on January 20, 2017 and served as
Acting Secretary until April 25, 2017, when Sonny Perdue was sworn in
as the 31st Secretary.
See United States Department of Agriculture,
Press Release No. 0029.117, available at www.usda.gov/media/pressreleases/2017/04/25/sonny-perdue -sworn-31st-us-secretary-agriculture.
Consistent with Federal Rule of Civil Procedure 25(d), Secretary Perdue
is substituted as a party in place of former Secretary Vilsack.
1

now ripe for the Court’s review.

For the reasons stated herein,

the Motion to Dismiss is hereby GRANTED.
II.

FACTUAL AND PROCEDURAL BACKGROUND

In 2009, Seaton applied for the Area Director position with
the USDA’s Rural Development office in London, Kentucky.
p. 5, ¶ 19].

[DE 1,

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.].

On September 23, 2009, Brown selected Seaton for the position
on the basis of a unanimous recommendation from the committee.3

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.].
3
 One paragraph of the Complaint refers to Brown as a defendant. [Id. at
p. 7, ¶ 21]. Notably, he is not listed as a defendant in the caption
of the Complaint or referred to as a defendant in other paragraphs.
2

[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

submitted to a background check.

appropriate

paperwork

and

[Id.].

In November 2009, Tom Fern was appointed as the Kentucky State
Director for the USDA’s Rural Development office.
¶ 23].

[Id. at p. 6,

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.].

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

[Id.].
This leads the Court to believe that Seaton committed a
typographical error in characterizing Brown as a defendant. However,
even if Seaton intended to name Brown as a defendant, a claim against
him would fail for the same reasons stated herein.
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].
3

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.
38].

[Id. at p. 8, ¶ 36-

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 position one month later.
applied.

The Agency re-announced

[Id. at p. 9, ¶ 44].

[Id. at p. 9, ¶ 45].

Seaton re-

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.
47].

[Id. at p. 9, ¶ 46-

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.
48].

4

[Id. at p. 9, ¶

Seaton filed a formal complaint with the Equal Employment
Opportunity Commission (“EEOC”), charging the USDA with unlawful
age discrimination.

[Id. at p. 4, ¶ 15].

After exhausting his

administrative remedies, Seaton received a Notice of Right to Sue
and filed this civil action on August 15, 2016.
16-18].

[Id. at p. 4, ¶

Defendants filed the instant Motion shortly thereafter.
III. ANALYSIS

A.

Standard of Review5
A Complaint must contain a “short and plain statement of the

claim showing that the pleader is entitled to relief.”

Fed. R.

Civ. P. 8(a)(2). This statement should include “sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Twombly v. Bell Atl. Corp., 550 U.S. 544, 570
(2007)).

“A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable
inference that a defendant is liable for the misconduct alleged.”
Id. “[A] formulaic recitation of the elements of a cause of action
will not do.”

Twombly, 550 U.S. at 555.

5
 Defendants also predicate their Motion to Dismiss on Federal Rules of
Civil Procedure 12(b)(1) and (2).
In the alternative, they move for
summary judgment pursuant to Federal Rule of Civil Procedure 56. Because
the claims against them are easily disposed of under Rule 12(b)(6), the
Court need not analyze their arguments under these alternative standards
of review.
5

B.

Age Discrimination in Employment Act (“ADEA”)
“The ADEA forbids an employer to ‘fail or refuse to hire or

discharge any individual or otherwise discriminate against any
individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s age.’”

Ky.

Ret. Sys. v. E.E.O.C., 554 U.S. 135, 141 (6th Cir. 2008) (quoting
29 U.S.C. § 623(a)(1)).

While the ADEA was initially limited to

private employees, Congress created a new provision that extended
the Act’s protections to federal employees in 1974.6

Lehman v.

Nakshian, 453 U.S. 156, 157 (1981) (citing 29 U.S.C. § 633a).
“[T]he prohibitory language in the ADEA’s federal-sector
provision differs sharply from that in the corresponding ADEA
provision relating to private-sector employment.”7
Potter, 553 U.S. 474, 487 (2008).

Gomez-Perez v.

“The ADEA federal-sector

6
  “Federal employees must rely on Title VII and other federal
antidiscrimination statutes likes the ADEA that apply to the federal
government as the exclusive remedy for combating illegal job
discrimination.” Briggs v. Potter, 463 F.3d 507, 517 (6th Cir. 2006);
see also 29 U.S.C. § 633a (explicitly waiving sovereign immunity as to
such claims).
7
  For example, courts generally require private-sector plaintiffs to
exhaust their administrative remedies before bringing suit. See Davis
v. Sodexho, Cumberland Coll. Cafeteria, 157 F.3d 460, 463 (6th Cir. 1998)
(“Pursuant to the provisions of the ADEA, an individual must first file
a charge of discrimination with the EEOC as a jurisdictional prerequisite
to filing a civil action.”).
By contrast, § 633a “provides two
alternative routes for pursuing a claim of age discrimination.” Stevens
v. Dep’t of Treasury, 500 U.S. 1, 5 (1991). A federal-sector employee
“may invoke the EEOC’s administrative process and then file a civil
action in federal district court if he is not satisfied with his
administrative remedies” or “[h]e can decide to present the merits of
his claim to a federal court in the first instance.” Id. at 5-6.
6

provision was patterned ‘directly after’ Title VII’s federalsector discrimination ban.”
n.

Id. (quoting Lehman, 453 U.S. at 167,

15).

These

federal-sector

provisions

prohibition

of

‘discrimination,’

rather

“contain[]
than

[the]

a

broad

list

of

specific prohibited practices” set forth in the private-sector
provisions.

Id.; compare 42 U.S.C. § 2000e-16(a) (“All personnel

actions affecting employees or applicants for employment … shall
be

made

free

from

any

discrimination

based

on

race,

color,

religion, sex, or national origin.”) with 29 U.S.C. § 633a(a) (“All
personnel actions affecting employees or applicants for employment
who are at least 40 years of age … shall be made free from any
discrimination based on age.”).
While Title VII’s federal-sector provision explicitly states
that “the head of the department, agency, or unit, as appropriate,
shall be the defendant” in such actions, the ADEA is silent on the
issue.

42 U.S.C. § 2000e-16(c).

The United States Court of

Appeals for the Sixth Circuit has read this statute as stating
that the head of the department is the only proper defendant in
actions brought under Title VII’s federal sector provision. Stiles
v.

Frank,

972

F.2d

348

(6th

Cir.

1992)

Ashcroft, 287 F.3d 543 (6th Cir. 2002).

(Table);

Mulhall

However, that court has

yet to consider whether the same rule applies to the ADEA.

7

v.

McGhee

v. U.S. Postal Serv., No. 06-CV-10337-DT, 2006 WL 1851261, at *2
(E.D. Mich. June 30, 2006).
The Supreme Court of the United States “has held that due to
their common purpose and nearly identical language, portions of
the ADEA should be construed in accordance with Title VII.”

Id.

(citing Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756 (1979)).
Accordingly, several federal courts of appeal have held that the
only proper defendant in an ADEA action is the head of the relevant
agency.

See Ellis v. U.S. Postal Serv., 784 F.2d 835, 838 (7th

Cir. 1986); Romain v. Shear, 799 F.2d 1416, 1418 (9th Cir. 1986);
Honeycutt v. Long, 861 F.2d 1346, 1349 (5th Cir. 1988).
courts

sitting

conclusion.

in

the

Sixth

Circuit

have

reached

District
the

same

See McGhee, 2006 WL 1851261, at *2; Hixon v. Donahoe,

Civ. A. No. 13-12439, 2015 WL 2405973, at *4 (E.D. Mich. May 19,
2015); Delaney v. Potter, No. 3:06-0065, 2006 WL 2469380, at *4,
n. 3 (M.D. Tenn. Aug. 24, 2006).
Seaton brings this action under the federal-sector provision
of the ADEA, codified at 29 U.S.C. § 633a.

[DE 1, p. 10, ¶ 59].

Defendants Fern, Kostelnik, Gaudinier, Witt, Hatcher, Jones, and
Floyd urge the Court to dismiss the ADEA claims against them
because they do not serve as the head of the department, agency,
or unit.

Thus, Defendants conclude that they do not qualify as

proper defendants under § 633a.

8

They emphasize that the only

appropriate Defendant in this action is Sonny Perdue, Secretary of
the USDA.
Seaton insists that these Defendants are subject to liability
under Title VII and the ADEA because they satisfy the definition
of “employer” found in 42 U.S.C. § 2000e(b) and 29 U.S.C. § 630(b).
However, these provisions do not apply to the federal-sector
section of Title VII and the ADEA.8
29 U.S.C. § 633a(f).

See 42 U.S.C. § 2000e-16(c);

Seaton makes no other effort to argue that

the above-cited case law is inapplicable to the present facts.
The Court therefore concludes that Secretary Purdue is the only
proper

party

to

this

ADEA

suit.9

Because

Defendants

Fern,

Kostelnik, Gaudinier, Witt, Hatcher, Jones, and Floyd are not
proper Defendants to this action, Seaton has failed to state claims

8
 Even if these sections were applicable to the present case, Seaton has
not alleged facts to demonstrate that these Defendants met the definition
of “employers.”
He simply states that they “circumvent[ed] and
hijack[ed] established hiring protocols.” [DE 12 at 7]. This assertion
does not lead to the conclusion that these Defendants each qualified as
“a person engaged in an industry affecting commerce who has twenty or
more employees for each working day in each of twenty or more calendar
weeks in the current or preceding calendar year.” 42 U.S.C. § 2000e(b);
29 U.S.C. § 630(b).
9
 Pursuant to 42 U.S.C. § 2000e-16(a), “[a]ll personnel actions affecting
employees or applicants for employment … in executive agencies as defined
in section 105 of Title 5 … shall be made free from any discrimination
based on race, color, religion, sex, or national origin.” “’Executive
agency’ means an Executive department, a Government corporation, and an
independent establishment.”
5 U.S.C. § 105.
The Department of
Agriculture is an Executive department. 5 U.S.C. § 101. Thus, Seaton
correctly named USDA Secretary Sonny Perdue as Defendant in this action.
9

against them upon which relief may be granted.

Dismissal is

therefore appropriate.10
IV. CONCLUSION
Accordingly, for the reasons stated herein, IT IS ORDERED as
follows:
(1)

The Motion to Dismiss [DE 7] is GRANTED;

(2)

Defendants Tom Fern, Tom Kostelnik, Cheri Gaudinier,

Michelle Witt, Allen Hatcher, Jeff Jones, and Gene Floyd are hereby
DISMISSED as parties to this action; and
(3)

Defendant Sonny Perdue, acting in his official

capacity as the Secretary of the United States Department of
Agriculture, having filed an Answer [DE 13] to Plaintiff Kendell
Seaton’s

Complaint,

and

pursuant

to

Federal

Rules

of

Civil

Procedure 16 and 26,
(a)

within

twenty-one

(21)

days

from

the

date

of

service of this Order, the parties, by counsel, shall meet, either
in person or by telephone, to discuss the nature and basis of their
claims and defenses and the possibilities for a prompt settlement
or resolution of the case, to make or arrange for the disclosures
required by Fed. R. Civ. P. 26(a)(1), as amended December 1, 2010,

10
 Because Seaton cannot sustain an action against these Defendants, the
Court need not address their alternative argument that they are entitled
to qualified immunity.
10

and to develop a proposed discovery plan.

See Fed. R. Civ. P.

26(f), as amended December 1, 2006.
(b)

within ten (10) days after the meeting the parties

shall file a joint status report containing:
(i)

the discovery plan;

plan,

the

parties

should

in formulating their
consider

the

Court’s

belief that discovery should last between three and
five months.
(ii) the parties' estimate of the time necessary to
file pretrial motions;
(iii) the parties' estimate as to the probable
length of trial;
(iv) the dates mutually convenient for trial;
(v)

the parties' decision as to whether the action

may be referred to a United States magistrate judge
for trial pursuant to 28 U.S.C. § 636(c); and
(vi)

the parties’ determination as to whether the

resolution of the case may be aided by mediation or
other special procedures as

authorized by statute

or local rule.
Counsel may utilize Form 52, Fed. R. Civ. P.(App.) as the
form of the joint status report.

Each party is directed to advise

the Court at the time of the submission of the joint report of all

11

parent

corporations,

subsidiaries,

affiliates,

partners with which it is associated.
This the 2nd day of August, 2017.

12

members

and/or