Seaton v. United States Department of Agriculture et al

Filing 65

OPINION, ORDER, FINDINGS OF FACT, AND CONCLUSIONS OF LAW: For all these reasons, the Court FINDS in favor of Defendant Sonny Perdue. The Court will enter a separate Judgment consistent with this ruling. Signed by Judge Robert E. Wier on 9/30/2019.(JJ)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
KENDELL SEATON,
Plaintiff,
v.

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

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

No. 5:16-CV-309-REW
OPINION, ORDER,
FINDINGS OF FACT, and
CONCLUSIONS OF LAW

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

INTRODUCTION
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

1

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–

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 551 (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

3

name added, DE 56-1 at 12, Fern convened a committee1 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
1

The initial selection and final concurrence committees had three overlapping members:
Tom Kostelnik, Vernon Brown, and Jeff Jones. Compare DE 38-1 at 4, with DE 56-1 at
13.
4

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.
II.

QUESTIONS PRESENTED
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

5

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.
III.

FINDINGS & CONCLUSIONS
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
“Establish by a preponderance of the evidence” means evidence, which as a
whole, shows that the fact sought to be proved is more probable than not. In other
words, a preponderance of the evidence means such evidence as, when considered
and compared with the evidence opposed to it, has more convincing force, and
produces in your minds belief that what is sought to be proved is more likely true
than not true. This standard does not require proof to an absolute certainty, since
proof to an absolute certainty is seldom possible in any case.
3 Fed. Jury Prac. & Instr. § 104:01 (6th ed.); see also Williams v. Eau Claire Pub. Sch.,
397 F.3d 441, 446 (6th Cir. 2005) (approving trial court’s use of instruction defining
preponderance of the evidence as “such evidence as, when considered and compared with
that opposed to it, has more convincing force and produces in your minds belief that what
is sought to be proved is more likely true than not true”).
2

6

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

3

The Court, in denying summary judgment, thoroughly detailed the unsettled status of
the burden applicable to a federal-sector ADEA claim and ultimately concluded that “butfor” rather than “motivating factor” causation is required. DE 46 at 7–10. The Court’s
initial finding was preliminary; however, the Court explicitly noted its expectation of
“thorough advocacy if there is a dispute on the question.” DE 46 at 9 n.4. The Court’s
prior analysis stands unchallenged. See DE 63 at 19; DE 64 at 1–2. Indeed, Plaintiff
explicitly agrees that “but-for” causation is the appropriate standard. DE 59 at 7 n.2
(“Plaintiff agrees with the Court’s analysis and conclusion.”). Thus, the Court declines to
retread undisputed ground, relies on the prior analysis, and applies the “but for” standard.
7

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 F. App’x 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

8

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) (“Plaintiff’s lack of recent
experience provided Defendant with a legitimate non-discriminatory
reason for declining to interview and hire Plaintiff.”), aff’d sub nom.
Killian v. Carter, 672 F. App’x 677 (9th Cir. 2016).
....
The cancellation explanation is also grounded in record evidence. See,
e.g., DE 38-3 (EEOC Hr’g Tr. – Vol. 1) at 6; id. at 83 (“[A]t one point we
were” not even going to “have the London area office.”); id. at 113 . . . .
Indeed, some proof shows that the national RD office initially spurred the
reorganization efforts. DE 22-2 at 1 (Sherie Hinton Henry Letter to all
State Directors suggesting study of “Reorganizations in the Field.”).
Precedent supports reorganization as a valid explanation for adverse action
at McDonnell Douglas step two. Cf. Shah v. NXP Semiconductors USA,
Inc., 507 F. App’x 483, 492 (6th Cir. 2012) (“Evidence of an employer’s
business restructuring, which may include the elimination of jobs or
termination of otherwise competent employees . . . satisfies the employer’s
burden of producing a legitimate, non-discriminatory reason for a
plaintiff’s termination.”). RD offers documentation of deliberate steps in
consideration of the state structure under Fern’s leadership. Those papered
steps—which involved many players from local, to area, to state, to DC—
articulate a rational basis for the sequence of and decision behind
cancellation.
In sum, Defendant’s stated grounds are legitimate, “clear[,] reasonably
specific[,]” and they afford Seaton “a full and fair opportunity to
demonstrate pretext.” Texas Dep’t of Cmty. Affairs v. Burdine, 101 S. Ct.
1089, 1096 (1981) (internal quotation marks omitted). The cases require
no more.
DE 46 at 14–16.
d. Pretext4
Because Defendant presents legitimate bases for the posting cancellation and
ultimate hiring decisions, the burden returns to Seaton. Plaintiff had to prove that the
offered reasons were, in fact, “a pretext designed to conceal unlawful discrimination.”
A pretext is “something that is put forward to conceal a true purpose or object.” Pretext,
Webster’s Unabridged Dictionary (2001 ed.). It involves or features a “misleading
appearance or behavior.” Id.
4

9

Loyd, 766 F.3d at 590–91. Plaintiff’s ultimate burden, however, was not merely to
convince the Court to reject Defendant’s explanation. Rather, Plaintiff had to demonstrate
that if not for his age, Fern would have chosen Seaton over Turner. See St. Mary’s Honor
Ctr. v. Hicks, 113 S. Ct. 2742, 2754 (1993) (“It is not enough . . . to dis believe the
employer; the factfinder must believe the plaintiff's explanation of intentional
discrimination.” (emphasis in original)). Of the three recognized paths for proving
pretext,5 Seaton opts for the second. See DE 59 at 8 (noting selection of non-motivation).
Thus, Plaintiff first must prove that the reorganization and any credential disparity “did
not actually motivate” Fern’s selection. Loyd, 766 F.3d at 590 (citing Wexler, 317 F.3d at
576).
That is, Plaintiff rightly concedes that Turner had more recent experience and
closer ties to the London Area [and that Fern actually submitted a partial reorganization
plan, see DE 56-1 at 2 (memorandum requesting reorganization approval)]. Plaintiff
endeavors instead to “demonstrate that . . . ‘the sheer weight of the circumstantial
evidence of discrimination makes it more likely than not that the employer’s explanation
is a pretext, or coverup,’ and did not actually motivate its action.” McDaniels v.
Plymouth-Canton Cmty. Sch., No. 17-2412, 2018 WL 5734695, at *8 (6th Cir. Nov. 1,
2018) (citation omitted) (Title VII). The parties offer no new categories of evidence to
supplement the three the Court previously identified as relevant to this question.

At McDonnell Douglas step three, a plaintiff may offer proof that “(1) the employer’s
stated reason had no basis in fact, (2) the stated reason did not actually motivate the
employer, or (3) the stated reason was insufficient to warrant the adverse employment
action.” Loyd, 766 F.3d at 590 (citing Wexler v. White’s Fine Furniture, Inc., 317 F.3d
564, 576 (6th Cir. 2003) (en banc)).
5

10

Vacancy Cancellation
First, the Court is convinced, on this record and for essentially the same reasons
expressed in the summary judgment decision, that,
[S]incere reorganization considerations did not actually motivate Fern’s
decision to cancel the London vacancy. Initially, the Court notes that the
reorganization efforts never ultimately impacted the London office and
that RD reannounced the vacancy less than three months after the
cancellation. [DE 55-1 at 33] (January 15, 2010, cancellation letter); [DE
56-1 at 36] (April 5, 2010, reannouncement). This is far from
determinative as to Fern’s original motives, but—just as a closure of the
London office would logically suggest sincere consideration—failure to
act cuts in Plaintiff’s favor. The record also includes statements from
multiple current and former high-level employees that suggest moving the
London office to Somerset was never a viable option. DE 22 at 96 (Former
State Director Seaton); DE 38-3 at 92 (Former State Director Slone); id. at
66–67 (Former Acting State Director Brown); id. at 145 (Administrative
Program Director Kostelnik). . . .
Fern’s testimony regarding acting director Brown’s decision to fill a
Madisonville, Kentucky, management vacancy further suggests a nonreorganization motive for the Seaton cancellation. Brown had filled the
spot just before Fern arrived. Fern, as to the Madisonville selection, stated
that he “felt it should not have been done” because “usually with respect
and courtesy [the selecting official] will hold [management] positions . . .
knowing that a new state director is going to be appointed.” DE 38-4 at 5;
see also id. at 35 (testifying to relating similar concerns to Hatcher). . . .
More importantly, however, are Cheri Guadinier’s notes from a January
2010, pre-cancellation meeting attended by Allen Hatcher, Tom Fern,
Tom Kostelnik, and Michele Witt. See DE 23 (Guadinier Dep.) at 63[; id.
at 59 (approximately Jan. 14, 2010)]. The relevant notes state: “Cancel
them all at same time. Keep the position where it is. We are going to
reannounce. . . . Document on . . . restructur[ing].” Id. at 69; DE 23-6 at 1.
The use of “reannounce” alongside the status quo reference is telling. A
reasonable and indeed obvious inference from this notation is that prior to
the cancellation the reorganization initiators knew that any restructuring
plan would not impact or displace the London area director position. . . .
It is interesting to the Court that Fern and his group spent significant time
on a cancellation-purposed call discussing Seaton as an individual
candidate. The January 14 call notes from Witt (DE 27-1) and Guadinier
(DE 23-6 at 1) both show this. If the cancellation decision did not
personally target Seaton, why did the call involve detailed discussion of

11

Seaton’s “suitability issues,” or his prior criminal record? In other words,
if Fern acted only from a genuine and neutral desire to consider
reorganization, he would have had no reason to explore a particular
justification for not hiring Seaton at the time. Such imponderables signal
pretext.
DE 46 at 18–20 (footnotes omitted).6 For completeness, the Court addresses several of
Defendant’s briefed theories.
The defense highlights proof of discussions regarding a potential London move.
See, e.g., DE 63 at 3. However, such proof, given (among other evidence) the precancellation fated “reannounce” note, is ultimately unhelpful to the defense. After all, the
reorganization would have been a poor façade had RD, at Fern’s direction, not acted to
give the appearance of legitimate consideration. Though Defendant insists that
“everything” was on the table during the reorganization talks, the London-specific proof
shows that the result of any such consideration was, even before the cancellation, a
foregone conclusion. The London slot withheld from Seaton would be filled. This is
paradigmatic pretext. See Jones v. Potter, 488 F.3d 397, 408-09 (6th Cir. 2007) (labeling
as “the very definition of pretext” a plan by an employer to “wait[] for a legal, legitimate
reason to fortuitously materialize, and then use[] it to cover up [the] true, longstanding
motivations for firing the employee”).
Next, the defense argues the Slone and Seaton claims regarding reorganization
legitimacy are, essentially, meaningless. See DE 63 at 5. The Court finds them not so
easily discounted.

The defense characterizes the Guadinier note as no more than a “tentative proposal to
reannounce the position[.]” DE 63 at 8. Yet, the relevant text includes no qualifying
language and is wholly affirmative. See DE 55-1 (“Keep the position where it is – we are
going to reannounce.” (emphasis added)).
6

12

Seaton, as deponent, detailed the basis for his opinion that the
reorganization, at least affecting London, was a sham. See DE 22 (Seaton
Dep.) at 96 (“[T]he flow of people and the way the roads are, the network,
how people are served that come in from the mountains to London, and
just move them over and they got to go around the lake to get to -- over to
Somerset, it made no sense.”). Slone, a 33-year RD veteran (DE 38-3 at
87), also explained his (less strenuous) criticism: “Moving the London
office to Somerset, considering how far the London office serves up into
eastern Kentucky wouldn’t be conducive to travel patterns[.]” Id. at 92.
Further, the underpinnings of the Slone and Seaton opinions are consistent
with Kostelnik’s view. See id. at 145 (“Is it your belief that shutting down
. . . the London office was ever a viable option . . . ? . . . . You know, we
needed an office in that area.”).
DE 46 at 18 n.10. The opinion of two former State Directors is surely weightier than the
typical subjective views of a spurned applicant. That said, Defendant does raise one valid
criticism of the Slone and Seaton statements—namely, the fact that neither was an RD
employee during the relevant period. See DE 63 at 5. Thus, neither had direct knowledge
of whether Fern legitimately considered the move. Yet, circumstantial impact of the
former Directors’ views persists. Further, the fact that then-current RD decisionmakers
ultimately reached the same conclusion that Seaton and Slone espoused, relative to
London, sharply undercuts the idea that their opinions were no better than sour-grapes
conjecture.7
In short, Plaintiff has proven that reorganization was a pretext for the cancellation
and Defendant offers no compelling contrary claim. That said, the vacancy cancellation is
not, here, an independently actionable event. Seaton also needed to prove that Fern was

7

Perhaps a better, but related critique is that both Seaton and Slone had not been
employed at RD for some time. Both may have missed internal changed circumstances
that potentially justified a fresh look at RD’s London-area structure. Yet, no RD
employee testified to any compelling basis for an actual London office move or closure.
[Fern’s thin rationale was, evidently, shot down by RD’s own reorganization committee.
DE 38-4 at 7.] The defense’s reliance on generalities, as to consideration and motivation
for the London move, is telling.
13

dishonest when describing his motives for, months later, selecting Turner. Though, “the
proof suggesting ulterior cancellation motives carries consequential weight for the later
decision.” DE 46 at 21. That is, Fern’s disingenuous reliance on the restructuring
explanation leads to general doubts regarding his overall credibility and specific doubts
about the veracity of his claimed reliance on Turner-favorable factors in making the final
selection.
In sum, the Court, on the full record, is convinced that legitimate consideration of
a London office move or closure did not motivate Fern’s cancellation decision, and the
vacancy-related proof provides a strong foundation for Seaton’s overall pretext case.
February 12, 2010 - Meeting Notes
Next, Cheri Guadinier’s February 12, 2010, teleconference notes include clear
indications of prejudgment regarding Seaton’s candidacy. During the call, a high-level
RD employee, DE 23 at 82, stated that Seaton would “re-apply for the position [and] not
[be] selected[.]” DE 23-6 at 7. From this, the Court notes several Plaintiff-favorable
inferences:
First, the implicit suggestion—post-cancellation, but amidst “analysis of
the reorganization plan” (DE 23-6 at 7)—that the same position was going
to be reposted (this, of course, from a natural reading of re-apply) adds to
doubts about the proffered cancellation motive. Second, the conference,
mid-process, provides a temporal guidepost connecting the cancellation
and ultimate selection.
DE 46 at 22. That is, this additional link in Plaintiff’s narrative chain adds confirming
weight to the Court’s doubts (springing from the cancellation) about the Turner-pick
explanation. Third, the statement independently discredits Fern’s explanation for his final
selection.

14

Fern testified at length about how he evaluated Seaton in comparison to
Turner. DE 38-4 at 13–24. He further claimed to have considered Seaton’s
application as selecting official and, indeed, convened a committee
specifically for that purpose. Id. at 42–43. Yet, despite testifying that June
2010 was the “first time [he] had occasion to compare Mr. Seaton directly
to Mr. Turner[,]” the Guadinier notes suggest that such comparison was, at
best, a nullity and, [in the Court’s view], a total ruse. DE 38-3 at 153–54.
DE 46 at 22 (footnote omitted). Per the testimony, the statement reflected in Guadinier’s
notes would have, to Ms. Witt, RD’s Civil Rights Manager, raised “red flags,”. See DE
27 (Witt Dep.) at 55. The Court reacts similarly.
The post-cancellation notes indicate that the team on the call knew Seaton would
reapply, knew Seaton would not be selected, and knew Seaton would “argue an EEO
basis” after his non-selection. See DE 23-6 at 7; DE 38-3 at 106 (Guadinier confirming
that her notes indicate “they’re not going to select” Seaton if he reapplied). Of course, all
of this ultimately came to pass. Fern, having already rescinded the prior pick, knew he
would never select Seaton. Thus, his purported comparisons of Seaton and Turner’s
credentials were a mere mise-en-scène.
Additionally,
[T]he February 12 notes reflect a Fern inquiry regarding recusal and/or
delegating the selection process. Hatcher advised that it could be done but
it would be “irregular[.]” DE 23-6 at 7. Typically, idiosyncrasies in the
selection process are a plaintiff-favorable factor in the pretext analysis.
Jenkins v. Nashville Pub. Radio, 106 F. App’x 991, 995 (6th Cir. 2004)
(holding that the plaintiff had raised a triable issue as to pretext based, in
part, on “evidence of irregularities in the application and selection
process”).
DE 46 at 23. Though Fern did not ultimately recuse or delegate the selection decision, the
inquiry shows implicit acknowledgment of legitimate reasons to question his impartiality.
In short, the Court does not buy Fern’s tales regarding cancellation, on January
15, or legitimate Seaton consideration, on February 12.

15

Credentials
The defense contends that Seaton’s credential disparity claims rely entirely on his
(and his friend, Slone’s) opinions. DE 63 at 17. The Court, for the following reasons,
disagrees: (1) Fern himself testified that Seaton’s educational experience was clearly
superior to Turner’s. DE 38-4 at 30; (2) Seaton previously served 6 years as State
Director and 2 years as a tri-county supervisor at RD’s predecessor agency. DE 56-1 at
20 (Seaton Resume); (3) Turner had never served (in a non-acting capacity) in a
managerial position broader than the county level. See DE 55-1 at 54. [Former Director
Slone testified that supervisory experience is “70 percent of what” an Area Director does
and “the number one criteria.” DE 28-3 at 88, 90.]; (4) RD personnel, scoring both
applicants (along with several others) using objective criteria, initially ranked Seaton
(tied for) first and Turner (tied for) last. DE 55-1 at 41–42; (5) the first selection
committee, evaluating Seaton and Turner on the same Certificate of Eligibles,
unanimously found Seaton most qualified, or at least the group’s favored candidate, and
recommended Brown pick him. DE 38-3 at 68–69.
On comparison of the resumes, non-recency/locality factors objectively favor
Seaton.8 Though, the gap is not enormous and Brown, the original selector,
acknowledged that reasonable minds could differ regarding his choice of Seaton. DE 383 at 69. The Court, however, sees enough for Seaton to clear the pretext hurdle on Fern’s
hiring explanation:

8

Further, while the defense insists that experience recency was the linchpin for the
Turner pick, Fern (the selector), prior to his appointment, had not worked at RD for
nearly a decade. DE 38-4 at 4. This logically diminishes the creditability of Fern’s
principal Seaton resume critique.
16

A higher rating on objective criteria, a unanimous committee naming him
most qualified from a list that included the ultimate selectee, the Fernacknowledged gap in education, and the relative disparity in high-level
management experience combine to offer a [sufficient] springboard for a
pretext inference. See Burdine, 101 S. Ct. at 1097 (“The fact that a court
may think that the employer misjudged the qualifications of the applicants
does not in itself expose him to Title VII liability, although this may be
probative of whether the employer’s reasons are pretexts for
discrimination.”).
DE 46 at 25 (footnote omitted). Finally, the Court notes that when Fern made his initial
selection, (though through no fault of his own) he did so without Seaton appearing as an
eligible candidate. DE 38-3 at 134 (Kostelnik EEOC testimony). Despite knowledge of
Seaton’s interest, and prior selection, Fern chose Turner without Seaton in the mix.
Though Fern later utilized a concurrence committee for approval, he repeatedly testified
that he had “already” decided on Turner. DE 38-3 at 153; DE 38-4 at 12, 42. That was
true. This too, is proof that Fern made his choice without the comparative consideration
the defense offers to justify the ultimate Turner pick. In short, the Court, with ample
record support, rejects Fern’s stated rationale for tapping Turner over Seaton.
e. Fern’s Credibility & Pretext Sub-Conclusion
If Fern had been honest from the jump, the pretext question would be a closer
call. However, the Court finds that Fern, on this record, was decidedly dishonest about
the sequence and process.
As discussed, Fern’s cancellation and hiring narratives are impeached by and
conflict with copious record proof. Fern’s direct dissembling with Seaton further
damages his credibility. Per Plaintiff, as he began to develop insecurity and heard that
Fern, new on the job, might be meddling with the selection, Seaton went to meet with
Fern. In this awkward exchange, weeks before cancellation, Fern led Seaton to believe

17

that his application was mid-process and that Fern would have no role in hiring
completion: “And he basically told me that he was not going to get involved in the
process, that I was already involved in getting it processed, and that personnel had
already started dealing with me. . . and for me to work with them, but he was not going to
get involved in the process.” DE 22 at 59–60. Given actual events—Fern had seized on
the reorganization, initiated cancellation of the selection, and indeed ultimately was
Turner’s selector—this, credibly reported, darkling, exchange shows blatant deceit by the
subject decisionmaker.9
Fern’s withholding at the EEOC hearing adds to the picture. For instance, Fern
repeatedly refused to credit any of Seaton’s significant credentials. ALJ Momah’s
comments during this portion of Fern’s testimony are noteworthy. See DE 38-4 at 29
(“[T]here’s certain things that you’re saying that makes my skin crawl.”). This was not
the first time that Judge Momah questioned Fern’s forthrightness. See DE 38-4 at 10
(suggesting Fern was not a “straight shooter” and, perhaps, was trying to “play mind
games”). At the hearing, Fern, initially, did everything but explicitly admit that RD’s
nationwide reorganization authorization presented a chance opening for him to expunge
non-final selections made prior to his arrival and pick his own candidates. See DE 38-4 at
4, 6 (“I had the opportunity to cancel those positions[.]”). Of course, this did not stop him
from ultimately insisting that London-specific reorganization intent was the true

Defendant’s limp rejoinder, that Fern was not “involved in Seaton’s background check
or any of the nuts and bolts of personnel operations regarding Seaton[,]” DE 63 at 12,
misses the point. Seaton never claimed that Fern offered him a qualified assurance of
non-involvement in background checks or on-boarding minutiae. Rather, per Seaton,
Fern said he was not going to get involved in the process whatsoever. The Court finds
Seaton’s report credible. Thus, Fern’s subsequent push for cancellation prove his prior
statement false.
9

18

cancellation driver. Here, an independent factfinder had the opportunity to eyeball Fern
as he testified. Judge Momah found Fern, on several topics, incredible. See, e.g., DE 38-5
at 11. That finding, for this Court, is hardly determinative. However, a neutral jurist’s
adverse read on Fern’s live testimony is certainly confirming as to the Court’s paperrecord conclusions regarding witness verity.
In sum, the record paints Fern as, at least on the topic and details of this hiring
process, dishonest. This finding is, as to the Turner pick, critical. Turner was surely
qualified for the job. See DE 38-3 (Brown EEOC Testimony: “[A]ny of the candidates
could have done the job.”). RD twice rated him as such. See Wrenn v. Gould, 808 F.2d
493, 502 (6th Cir. 1987) (“So long as its reasons are not discriminatory, an employer is
free to choose among qualified candidates.”). The qualifications gap is no wide gulf and,
again, experience recency is surely a legitimate factor. Yet, Fern’s dishonesty regarding
reorganization (and direct lie to Seaton) plant seeds of doubt, and obligate the Court to
examine his selection explanation (itself circumstantially subject to question) through a
doubtful lens.
Fern conducted a fetid process. See DE 38-5 at 25 (finding meeting discussions
“very disturbing”). He lied, created dubitable procedural cover, and ultimately selected a
significantly younger candidate that once had been tied as the lowest-rated qualifying
applicant. The first two influence the Court’s view of the last, and drive the ultimate
pretext finding. That is, the Court finds that Fern relied on a convenient excuse
(reorganization) to cover his real motives for the posting cancellation and, to justify the
Turner pick, ignored the areas of Seaton’s superior qualifications and simply pointed to

19

other narrower grounds where Plaintiff was fortuitously deficient. In short, Fern’s
explanations for denying Seaton were pretextual.
f. Ultimate Burden
Beyond the prima facie case,
the record analyzed thus far includes little to point the finger at an ageist
motive. Further, “[t]he isolated fact that a younger person eventually
replaces an older employee is not enough to permit a rebuttal inference
that the replacement was motivated by age discrimination.” Chappell v.
GTE Prods. Corp., 803 F.2d 261, 267 (6th Cir. 1986).
DE 46 at 26. And, though rejection of RD’s proffered explanations permits the Court “to
infer the ultimate fact of intentional discrimination[,]” Seaton still needed to convince the
Court that age discrimination was Fern’s true motive. St. Mary’s Honor Center, 113 S.
Ct. at 2749, 2754. The Court, for the reasons detailed below, concludes that Seaton failed
to prove that age was the but-for cause for his non-selection.
In Seaton’s ledger is the prima facie case and the strong pretext proof. To this,
Seaton seeks to add his interpretation of two other pieces of record proof. First, Michele
Witt’s January 14, 2010, meeting notes:
From this pre-cancellation teleconference involving Hatcher, Fern,
Kostelnik, and Guadinier, Witt recorded: “Age Disc. = 40 yrs.” DE 27-1. .
. . When asked, at the EEOC hearing, if this note indicated that part of the
meeting discussion concerned whether there was “a potential age
discrimination issue[,]” Witt testified: “Apparently so or I wouldn’t have
written that, because that’s just my mental note of what age discrimination
equals.” DE 38-3 at 76; see also id. at 80 (“[I]f I wrote that down,
obviously someone just mentioned age discrimination[.]”).

20

DE 46 at 28–29. Seaton argues that the Witt note constitutes “a signal that age was a
primary consideration for what was truly motivating Defendant.” DE 64 at 7.10 The Court
for several reasons, does not buy the interpretation.
Consider the involved parties: Cheri Guadinier, Allen Hatcher, Tom Fern, Tom
Kostelnik, and Michele Witt. One, Kostelnik, was on the committee that originally (and
unanimously) selected Seaton. See DE 38-1 at 4; cf. Wexler, 317 F.3d at 573 (“[A] court
may infer an absence of discrimination where the same individual hired and fired the
plaintiff[.]”). Another, Hatcher, was RD’s national Director of Human Resources. The
relevant note-taker, Witt, was RD’s Civil Rights Manager. DE 27 (Dep.) at 9. The idea
that such RD personnel would be frankly, perhaps blithely, discussing a scheme to cover
up age discrimination, while allowing a civil rights compliance officer to record the fact,
is, at best, very improbable. See also DE 22-6 (Seaton EEOC Resp. – “[T]he only people
I have reservations about in this entire matter are Mr. Kostelnik and Mr. Fern.”).11
The far more reasonable explanation, and the one the Court adopts, is that RD,
aware that the cancellation would likely raise a stink—given Seaton’s consistent zealous
involvement in the process—was, so to speak, covering its bases. The note, itself, is a
vanilla statement of the law, and “the legislative history of the [ADEA] counsels against
reading the statute as forbidding any consideration of age under any circumstances[.]”
Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004). Surely
Congress did not intend to bar consideration or mention of the very strictures it
10

It is notable that Plaintiff, with his last words in the case, argues (at least with regard to
interpretation of the Witt note) only that age was “a[,]” not the principal consideration for
the hiring choice. See id.
11
See DE 38-5 (ALJ Momah doubting “that on any particular occasion that the ADEA is
mentioned, it is [ ] because a group of management figures are fiendishly plotting how
they can break the law and get away with it”).
21

implemented for purposes of compliance. The individuals involved with the relevant
meeting, at least those with record testimony, explicitly disavow any improper
discussions. At bottom, the Court is simply unconvinced that the Witt note constitutes
proof of any nefarious discussion and, thus, views it as unhelpful to Seaton’s attempt to
prove ageist motive. See DE 38-5 at 27 (Judge Momah described the idea that “Ms.
Witt’s notes have anything to do with discriminatory intent” as “wildly unlikely[.]”). The
Court expects any employer, dealing with a protected applicant, to vet job action legality
as part of a diligent decision.
Next, the Court considers Kostelnik’s attributed remarks:
Kostelnik was the administrative program director and was working
closely with Fern on re-doing the selection. He had a handle on Fern’s
views, DE 38-3 at 138 (“Mr. Fern . . . felt that . . . recentness of experience
was an important characteristic[.]”), and allegedly relayed directly to
Seaton that he was “out of touch” and “out of date[.]” DE 22 at 75 (Seaton
attributing such remarks to Kostelnik).
DE 46 at 29 n.19. The Court, on summary judgment review, noted potential pernicious
and innocuous counter inferences from these statements. See id. On the full record, and
acting as factfinder, the Court views the Kostelnik statements as reflecting a legitimate
negative view of dated experience. The statements are consistent with Fern’s reported
preference for more recent experience. Given that Fern is actually 6 years older than

22

Seaton,12 among other reasons, the Court rejects an interpretation of Kostelnik’s words as
parroting an ageist tilt from RD’s apex.13
Plaintiff’s counsel, in closing argument at the EEOC hearing, provided an
interpretation of the alleged “20 years out of date” remark that is
consistent with the Court’s view, i.e., that criticism of remote experience
is just that. DE 38-4 (EEOC Hr’g Tr. – Vol. 2) at 57 (“[B]asically it meant
that Mr. Seaton’s . . . experiences . . . w[ere] too far in the past.”). Put
simply, age and age of experience, though often correlated, are hardly
synonymous.8 If Fern chose Turner because he honestly believed Seaton’s
experience “was too far in the past[,]” then Seaton’s claim fails. Browning
v. Dep’t of Army, 436 F.3d 692, 696 (6th Cir. 2006) (“[E]mploymentdiscrimination laws do not diminish lawful traditional management
prerogatives in choosing among qualified candidates, and an employer has
great flexibility in choosing a management-level employee.” (internal
citations and quotation marks omitted)).
[FN 8: For example, a 38-year old individual (not protected by the
ADEA) could have lifeguarding experience “20 years out of date.”
On the flipside, Mr. Brown’s experience from his 40+ continuous
years at the USDA (DE 38-3 at 65) was, as of the EEOC hearing,
current despite falling within the ADEA’s protective ambit.]
The Court, on Rule 56 consideration, declined invocation of a “same-group” inference,
i.e., “the idea that one member of a group is unlikely to discriminate against another
member of the same group.” Wexler, 317 F.3d at 574. However, precedent indicating that
it would be error to do otherwise “at the summary judgment stage[,]” compelled the
ruling. See id. This matter has proceeded to the trial stage and, here, the Court finds the
relative age of the purported ageist, though only a minor factor, relevant. Logically, a
hirer older than a potential employee is less likely to rely improperly on age as grounds
for finding the candidate unfit (particularly so, where, as here, the subject position is
within, but lower within, the hierarchy of the elder selector’s current role).
13
The Court previously declined:
[Reliance] on Fern’s alleged cancellation, nearly two decades prior to the
relevant period, of a Rural Utilities Director position after a preferred
candidate was selected. The Court is skeptical of the allegation’s relevance
given the absence of any ageist component and the temporal distance from
the 2009-10 events. Cf. McGrath v. Lockheed Martin Corp., 48 F. App’x
543, 553 (6th Cir. 2002) (rejecting plaintiff’s “attempt to demonstrate a
conflict in the reasons given for his layoff” based, in part, on statements
“temporally remote from the challenged . . . layoff decision.”).
DE 46 at 32 n.20. The Court further saw “no reason . . . to conclusively determine the
evidence’s admissibility for trial purposes.” Id. Plaintiff does not rely on such proof at
this stage and the Court, though accepting the parties’ agreed record, finds no probative
force in such distant, disparate events.
12

23

DE 46 at 15. “Employers may not consider an employee’s age for its own sake, but the
ADEA does not prohibit them from considering other factors that correlate with age.”
Rowan, 360 F.3d at 548. Ultimately, Kostelnik’s statements support what is a mostly
undisputed fact. Fern perceived that Seaton’s experience was too old. If that factor,
though linked with Seaton’s age, drove the Turner pick, there was no age discrimination
here.
Thus, the Court views Seaton as in principally the same position he was at the
close of the pretext analysis. He has proven a prima facie case and shown that Fern lied
about why he cancelled the vacancy cancellation and at least the manner by which he
ultimately chose Turner. The Court, in the specific case circumstances, finds this
insufficient for Judgment in Seaton’s favor.14
Seaton, who knows Fern from and indeed once supervised Fern during his prior
tenure with RD, surely had insight into the real motivations of the man. His claimed
decisional basis was uneven and only tangentially or lastly reliant on age. “[M]uch of the
evidence most damaging to [Seaton’s] allegations comes from h[is] own testimony.”
Hartsel, 87 F.3d at 800. Seaton repeatedly raised politics as the principal driver for

14

District courts may, in appropriate circumstances, grant summary judgment in the face
of a valid prima facie case and pretext showing. Alberty v. Columbus Twp., 730 F. App’x
352, 359 (6th Cir. 2018). Thus, the McDonnell Douglas results are surely not binding, as
to the ultimate discrimination question, for a court, as here, acting as factfinder. The
Court discussed the pretext-only law at length in the summary judgment decision. See DE
46 at 26–28.
24

Fern’s choices.15 See, e.g., DE 38-3 at 34 (“I think it’s politics.”); id. at 36 (“[T]he reason
. . . why Mr. Fern did not select me is because he had decided that he didn’t want a
Republican person working for him[.]”). Seaton also testified that his prior supervisory
role over Fern may have played a role. DE 38-3 at 36 (“[H]e didn’t want to be reminded
of me being a former state director and be a district director reporting to him and working
for him[.]”); see also DE 22-5 (EEOC Compl. identifying, as a discrimination issue, that
Seaton “served as Mr. Fern’s supervisor (State Director) previously”). Alternatively,
Seaton suggested that Fern may have simply wanted Turner from the start. Id. (“[H]e had
talked to a few people and had told them that he had somebody else in mind[.]”); DE 1-1
(Seaton, at the EEOC, argued “that the State Director wanted to hire ‘his guy’ and did not
want to have” a former state director working under him.).16 Finally, Seaton indicated
that Fern may have developed a negative view of Plaintiff’s management style while
working under him during Seaton’s directorship. See DE 38-3 at 34–35 (Seaton testifying
that he and Fern “had some friction from time to time” and that “over the years it became
clear to me that he didn’t like me because he thought I was a little too hard.”).
The Court sees other explanations. For instance, Seaton’s ignominious departure
from the Agency after a federal indictment and conviction. Also, Fern’s statements
regarding the completed Madisonville hiring suggest that the cancellation may have been
motivated by a desire to interdict a similar perceived slight in the form of Brown’s Seaton
15

Seaton’s EEOC filings further highlight the primacy of politics in Plaintiff’s
understanding of the hiring decision (at least until he learned that such a claim lacked
viability). DE 22-5 (EEOC Compl. listing “assumed political beliefs” as the first of
Seaton’s “Issue(s) of Alleged Discrimination”); DE 22-6 (Seaton EEOC Resp. – “The
whole process was contrived to discriminate against me so as to employ a politically
aligned person.”).
16
Preselection, absent ageist motive, is not ADEA actionable. See Goostree v. Tennessee,
796 F.2d 854, 861 (6th Cir. 1986).
25

selection.17 See DE 38-4 at 5 (“[U]sually with respect and courtesy [the selecting official]
will hold [management] positions . . . knowing that a new state director is going to be
appointed.”). The common thread running through each of these disparate explanations is
the absence of an ageist component.
Ultimately, the Court need not find what Fern’s true motivation was. Rather, the
Court’s task is to decide if Seaton proved that age was the but-for causal driver for his
non-selection. The existence of other equally—indeed, on this record, more likely—
explanations serves only to highlight Seaton’s failure to preponderantly point the finger at
age. The individuals involved in the process all categorically deny that age played any
role. And Seaton, proceeding circumstantially, failed to provide an evidentiary platform
from which to make the necessary inferential leap. Instead, his own testimony is that a
host of non-ageist factors drove Fern’s choice. See DE 38-5 at 30 (“Taking Mr. Seaton’s
testimony as a whole, the one thing that stands out is that . . . he hardly mentioned age
except when . . . he was directly led to do so by his own attorney.”).
Fern was certainly covering up something, but, to this factfinder, no proof in the
record says it was ageism. Seaton in his own descriptions of the reasons why Fern chose
Turner—at his deposition, at the EEOC hearing, in his sworn EEOC response—mentions
age as either a postscript or not at all. The Court does not believe that, if not for Seaton’s
age, he would have gotten the job. In truth, and despite RD’s dodgy process, the Court
does not see preponderant evidence that age was even a factor in Fern’s selection
17

Bolstering the idea that the Madisonville-related testimony represents a possible
motive for Fern is a July 23, 2009, cancellation letter regarding an initial (pre-selection)
posting. See DE 55-1 at 26. It appears, from this document, that RD’s original intent (and
perhaps standard practice) was to not fill vacancies in the absence of a permanent State
Director. See id. RD ultimately forged on, but the die was not cast on Seaton when Fern
assumed control.
26

decision. Seaton, here, faced the burden of proving a but-for discriminatory cause. The
Court finds that he failed.
IV.

CONCLUSION
Despite Fern’s incredible testimony, there is simply no competent, persuasive

proof as to age-based animus, much less of age as the driving force behind Fern’s pick.
On this record, age was, as to Seaton’s litigation strategy, an afterthought and, as to
Fern’s hiring choices, considered only for purposes of compliance. The Court finds that
Seaton has not proven, by a preponderance of the evidence, that age was the but-for cause
of his non-selection as Area Director. As Fern admitted at the admin hearing, when he
knew the reorganization carrot dangled as an excuse to cancel: “[I]f I have this
opportunity [to cancel the open slots, including London] . . . I’m going to do that.” DE
38-3 at 152. Fern wanted determinative say in the selection. Whether actually because of
Fern’s past experiences with or knowledge of Seaton, a desire for his own “guy” in the
AD role, his uber-favorable impression of Turner, or his view of experiential recency or
geographic connections, Seaton surely was not the person Fern wanted. The Court finds,
simply, that it is not more likely than not true that Fern’s but-for motivation was Seaton’s
age. The statute addresses intentional age discrimination, and Fern did not prove that RD
intentionally discriminated on that basis. Therefore, Defendant is entitled to judgment.
The Court so finds and concludes, on the specifics stated in this Opinion & Order.
For all these reasons, the Court FINDS in favor of Defendant Sonny Perdue. The
Court will enter a separate Judgment consistent with this ruling.
This the 30th day of September, 2019.

27