Kinzie v. United States Department of Agriculture et al

Filing 60

ORDER granting in part and denying in part defendant's 44 motion for summary judgment; defendant is granted summary judgment on plaintiff's ADEA discrimination claim and denied summary judgment on plaintiff's retaliation claim; summary judgment in defendant's favor on the discrimination claim will be entered when the case is concluded as to all claims. Fed.R.Civ.P 54(b). Signed by Honorable Joe Heaton on 7/19/2018. (cla)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
TERRY KINZIE,
Plaintiff,
vs.
SONNY PERDUE, SECRETARY, U.S.
DEPARTMENT OF AGRICULTURE, et al.,
Defendants.

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NO. CIV-16-1463-HE

ORDER
Plaintiff Terry Kinzie sued the United States Department of Agriculture (“USDA”),
the Secretary of Agriculture, the Conservation of the Natural Resources Conservation
Service (“NRCS”), 1 and the Chief and Acting Chief of the NRCS, asserting claims for age
discrimination and retaliation under the Age Discrimination in Employment Act of 1967
(“ADEA”). The court previously dismissed plaintiff’s claims against all defendants except
for the Secretary of Agriculture, granted the Secretary summary judgment on two of
plaintiff’s three grounds for his retaliation claim – hostile work environment and
constructive discharge 2 -- and dismissed his requests for compensatory and punitive

1

The NRCS is an agency within the USDA. Although not expressly stated in the second
amended complaint, plaintiff proceeded against the individual defendants only in their official
capacities.
2

Defendants asserted plaintiff had three separate retaliation claims, rather than one claim
with multiple grounds supporting it. Because “[e]ach discrete incident of alleged discrimination
or retaliation constitutes its own unlawful employment practice for which administrative remedies
must be exhausted,” Green v. Donahoe, 760 F.3d 1135, 1140 (10th Cir. 2014), vacated and
remanded on other grounds sub nom., Green v. Brennan, 136 S. Ct. 1769 (2016) (internal
quotation marks omitted), and, for purposes of clarity, the court referred to the different grounds
as separate claims. However, as only one basis for plaintiff’s retaliation claim remains to be
resolved, the court will refer to it as plaintiff’s retaliation claim.

damages. See Doc. #22. The Secretary now seeks summary judgment on plaintiff’s
remaining disparate treatment and retaliation claims, which are based on his allegations
that he was not hired for a newly created position because of his age and that his
performance review was changed in retaliation for reporting the age discrimination.
Summary judgment is appropriate only “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “A genuine dispute as to a material fact ‘exists when the evidence,
construed in the light most favorable to the non-moving party, is such that a reasonable
jury could return a verdict for the non-moving party.’” Carter v. Pathfinder Energy Servs.,
Inc., 662 F.3d 1134, 1141 (10th Cir. 2011) (quoting Zwygart v. Bd. of Cnty. Comm'rs, 483
F.3d 1086, 1090 (10th Cir.2007)). Considering defendant’s motion under this standard,
the court concludes it should be granted with respect to plaintiff’s discrimination claim and
denied with respect to his retaliation claim.
Background 3
In 2015, as part of result of a nationwide reorganization of administrative and other
functions, NRCS created a new position, that of Business Services Specialist (“BSS”), in
the Assistant State Conservationist for Management and Strategy (“ASTC(M&S)”) section
of NRCS. According to the job announcement, the person who was hired for the position
would “perform[] a wide variety of duties and assignments in support of business

3

The parties separated their statements of material facts into two sections relating to
plaintiff’s two claims. The court has done likewise.

2

operations and administrative services necessary to accomplish the mission responsibilities
of the State or Area office and the NRCS.” Doc. #44-12, p. 2. 4 Thirty-three BSS positions
were to be filled across the country, with one in Oklahoma. Plaintiff applied for the
Oklahoma position. At the time he was over 40. He had been an Oklahoma NRCS
employee since 2009, starting as a contract specialist and eventually becoming a realty
officer. The person hired instead of plaintiff, Joshua Ketch, another NRCS employee, was
in his 20’s. Ketch had worked at NRCS full-time as a rangeland management specialist
since 2010.
The selection process was straightforward. The Office of Personnel Management
(“OPM”) initially reviewed the applications and determined who met the minimum
qualifications. It prepared a “Merit Promotion Certificate of Eligibles,” and forwarded the
list of candidates to NRCS with instructions that any person on the list could be selected.
No NRCS employees were involved in this initial process. Both plaintiff’s and Ketch’s
names were on the list, along with ten others. The selecting official does not have to
recheck or verify the qualifications of the persons appearing on the Certificate of Eligibles.
In conjunction with the administrative reorganization, NRCS sent out suggested
procedures to be used in filling the BSS and other new positions, including convening a
Qualifications Review Panel (“QRP”). The selecting official could use a QRP, instead of
handling the selection process by himself if, “in collaboration with the Human Resources
(HR) Specialist,” he determined it was “needed to evaluate the best qualified applicants.”

4

Page references to briefs and exhibits are to the CM/ECF document and page number.

3

Doc. #44-16, p. 1. Factors to be considered in deciding if a QRP should be used included
“the complexity and organizational level of the vacant position and the number of best
qualified applicants, both competitive and/or non-competitive, received in response to the
vacancy announcement.” Id. at p. 2. 5 If a QRP was used, the selecting official, “in
consultation with the HR Specialist” designated subject matter experts to serve as panel
members. Doc. #44-16, p. 2. The panel, which would have “expert knowledge about what
it takes to do the job,” would determine which applicants were most qualified and should
“advance to interview.” Doc. #44-15, p. 1. According to the suggested procedures, the
SME panel should “compare applicant resumes and supporting materials to the skills and
abilities in the assessment questions tool.” Id.
Oklahoma Assistant State Conservationist for Management and Strategy (“OASTC
(M&S)”) Jamey Wood was the selection official for the BSS position in Oklahoma. He
wanted to hire someone who “had exceptional interpersonal skills, who could work with a
wide and diverse number of people and handle a large and complex workload under
stressful conditions, a quick learner and someone with administrative skills and effective
problem solving skills.” Doc. #44, p. 18, ¶ 13. The position description listed these skills
as among those required for the job. See Doc. #44-11, p. 4.
5

Plaintiff refers to an email Wood received from another NRCS employee in Kansas about
hiring procedures. He states that “Wood reached out” to the employee “to inquire about how to
handle the hiring process, instead of following the protocols provided to him.” Doc. #53, p. 9, ¶2.
Defendant objects to the email on multiple grounds. The court agrees that it is inadmissible, but
also notes that it fails to demonstrate Wood’s “subjective[] determin[ation] not to follow
Defendant’s own protocol for the purpose of allowing the younger candidate to move on in the
selection to where he could ensure his appointment as Business Services Specialist (BSS”).” Id.
at p. 8, ¶2.

4

Wood decided to interview all candidates rather than use a Qualifications Review
Panel because the number of eligible applicants for the Oklahoma BSS position – 12 -- was
manageable. 6 The panel was designed to be used when the “applicant pool was too large
or diverse for the selecting official to evaluate.” Doc. #44-6, p. 3, ¶15. While he did not
use a QRP, Wood did use an interview panel. 7

After consulting with the State

Conservationist, Gary O’Neill, 8 he selected Bill Porter, who had been the acting Oklahoma
State Conservationist, and Steve Glasgow, who was the State Resource Conservationist, to
serve on the panel. All panel members had some prior contact with both plaintiff and
Ketch.
Wood divided the job selection process into three categories: interviews, resume
reviews and references. All eligible candidates were interviewed either in person or by
phone. Both plaintiff and Ketch were interviewed in person. Questions were divided
among the panel members, who asked the same questions of each candidate. Each panel
member then rated the candidate’s response, using a score of 1, 3 or 5, with 5 being the
highest rating. The panel members then compiled a table of their scores. Wood totaled the
raw scores of all three panel members from the interviews. Ketch scored the highest with

6

As will be discussed subsequently, plaintiff contends Wood improperly decided not to use
a QRP because he made the decision unilaterally, without “collaborating with HR.” Doc. #53, p.
7.
7
This, too, was a suggested procedure. See Doc. #44-15, p. 1(“Selecting Officials are
encouraged to establish an interview panel of 3 to 5 . . . to assist with interviews.”).
8

The parties disagree as to the extent of O’Neill’s involvement, if any, in the selection of
the interview panel. The dispute is not material for purposes of plaintiff’s ADEA claim as plaintiff
does not explain how O’Neill’s participation in the process led to discrimination against plaintiff
based on his age.

5

97 total points; Kinzie was next, with 93 points. Wood then converted the scores to a 5point scale. Both Kinzie and Ketch received 5 points.
Next Wood reviewed the candidates’ resumes, using a ranking of low, medium and
high. In ranking the resumes, Wood considered eight factors or skills he was looking for
in a BSS. These were essentially the same skills mentioned earlier which Wood was
seeking in the applicants for the BSS position – a problem solver, a team leader, someone
who could handle a large workload under pressure, an effective communicator who could
work well with diverse individuals and a quick learner who could adapt to change. See
Doc. Nos. 44-25; 44-26. Ketch’s score was a H-, which converted to a 4.5 on a 5-point
scale. Kinzie’s was a M+, which converted to a 3.5. 9
The last step in the selection process was consideration of candidates’ references.10
The job announcement did not request references and Kinzie did not list any, although
Ketch did. Woods testified that he tried to “get as many commonalities between candidates
and references as [he] could.” Doc. #44-6, p. 5, ¶23. He stated that “[g]iven the size of
our organization, it would have been difficult to have found manager references that did
not have some connection or contact with one or more candidates.” Id. at ¶24. Wood
acknowledged that he did not contact plaintiff’s current direct supervisor, Janette Jensen,

9

During the review process, Wood used a plus or minus to reflect a question as to whether
the score should move up or down. The same signs were used during the interview process.
10

Kinzie asserts that “references were not a required part of the online submissions for
the position of BSS.” Doc. #53, p. 10, ¶5. However, he offers no evidence that they could not be
considered or that they were considered to discriminate against him because of his age.

6

because he had worked with her and did not respect her “opinions, practices or the way she
did business.” Doc. #44-6, p.6, at ¶25. 11 He did, though, contact one of Kinzie’s former
supervisors, Renee Gardner, who was not listed by Ketch, and another resource
conservationist, Melanie Oliver, whom Ketch also did not list but who had worked with
both Kinzie and Ketch. Using the same scoring method as before, Ketch received a
reference score of 5.0, while Kenzie received a score of 3.5.
When the scores were tallied, Ketch had the top score of 14.5 points and Kinzie had
the second highest score of 12 points. Wood selected Ketch to be the BBS based on his
score.
Kinzie received an annual performance appraisal. The rating year for most NRCS
employees is the fiscal year, October 1 through September 30 of the next calendar year.
Plaintiff was rated on three critical elements: (1) civil rights, EEO, and diversity and
inclusion; (2) mission results and (3) customer service. 12 The possible ratings, from high
to low, were: exceeds fully successful, meets fully successful, and does not meet fully
successful. The combined element ratings then determined Kinzie’s summary rating, of
which there were five possibilities. From highest to lowest they were: outstanding,
superior, fully successful, marginal and unacceptable.
The employee’s direct supervisor usually prepares his or her performance appraisal.
The employee’s second line supervisor is the reviewing official for the appraisal. The

11

Plaintiff asserts it was because of a personality conflict. See Doc. #53, p. 14.

12

Because each element was “critical,” an unacceptable performance on any one would
result in a determination that his overall performance was unacceptable.

7

appraisal is not official until the reviewing official approves or “sign[s] off on the rater’s
evaluation.” Doc. #44, p. 24, ¶31.
From 2013 through 2015, Janette Jenson, Kinzie’s first line supervisor, prepared his
appraisals and Oklahoma State Conservationist O’Neill was his reviewing official.
O’Neill, as manager of the Oklahoma NRCS, either rated or reviewed approximately one
third of the NCRS’s Oklahoma employees in 2015.
The reviewing official has multiple responsibilities. Among them are:
a. Establishing a performance culture that supports a high-performing
organization through management of individual and organization
performance.
b. Ensuring that rating officials carry out their performance management
responsibilities and evaluate the rating officials to ensure accountability
for performance management.
c. Reviewing and approving the performance plans and ratings of his or her
subordinate rating officials to ensure consistency, fairness, objectivity
and completeness and ensuring that plans reflect the overall needs and
goals of the agency.
Doc. #44, p. 24, ¶ 30.
The reviewing official may change an employee’s rating after discussing it with the
rating official if the change is “consistent with the performance and the employee’s
accomplishment.” Doc. #44-31, p. 2, ¶7. NRCS policy governing performance appraisals
provides that the “ratings may not be communicated to the employees before they are
approved by the final reviewer.” Doc. #44-36, p. 14. 13 However, around October 1, 2015,
before O’Neill reviewed and signed off on Kinzie’s performance review, Jensen met with

13

However, the policy also provides that “the supervisor and the employer should discuss
the employee’s performance before the rating has been determined.” Doc. #44-36, p. 14.

8

Kinzie and told him he would receive a summary rating of superior for his 2015
performance appraisal.

Jensen later proposed that Kinzie receive an “exceeds fully

successful” rating for both the mission results and customer service elements.

She

recommended he receive a “meets fully successful” rating for the remaining element (civil
rights, EEO and diversity and inclusion). The combination of two “exceeds fully
successful” and one “meets fully successful” ratings would have resulted in a summary
rating of “superior” for the 2015 rating year.
When O’Neill reviewed Kinzie’s proposed 2015 performance appraisal, he was
aware that Kinzie had filed an administrative EEO age discrimination complaint
challenging Ketch’s selection for the BSS position. O’Neill testified that he had concerns
about the “exceeds fully successful” rating Jensen had given Kinzie for the customer
service element. He stated that during the rating year he received numerous complaints
from NRC field supervisors and employees about Kinzie’s handling of problems that arose
with respect to three buildings which NRCS leased in McAlester, Pauls Valley and Eufaula.
The employees had to be relocated and the leases were terminated. Kinzie was responsible
for the building leases.
According to O’Neill, he participated in several meetings, which took place both in
person and over the telephone, with field employees who worked in the buildings. He
testified that the employees told him Kinzie was not responsive to their concerns – he did
not listen to, act on or appear to be concerned about their complaints. Doc. #44-5, p. 3. ¶13.
O’Neill stated that “[t]hey believed he was more concerned with maintain[ing] a good
relationship with the common landlord of the problem leases/buildings than getting lease
9

issues with the buildings resolved.” Id. O’Neill said he did not hold Kinzie accountable
for the problems with the leases or buildings, but was concerned “about customer service
and the complaints [he] had received and the negative impressions and perceptions that the
field had of Kinzie.” Id. at ¶14. O’Neil felt that Kinzie was representing the state NRCS
leadership “[i]n his dealings with the field on lease matters.” Id. He was concerned about
the message an “exceeds” rating in customer service would send to the organization when
there had been so many customer complaints.
While O’Neill claims he spoke with Kinzie about the perceptions NRCS field
employees had regarding plaintiff’s work during the summer and fall of 2015, Kinzie
denies that any discussions occurred. He contends no reports were made to his supervisor,
Jensen, and that O’Neill never talked to him about his performance until after Jensen gave
him the summary superior rating. He also denies being aware that “anyone took any issue
with the way he was handling the customers at the three respective leases.” Doc. Nos. 53,
p. 18; 53-3, p. 13. According to plaintiff, there had been water and mold problems with
the leased buildings for several years, which had been conveyed to NRCS leadership.
Plaintiff asserts that it was only “after a news story broke concerning mold in the buildings,
[that] O’Neill became involved in the subject leases.” Doc. #53, p. 18.
Although plaintiff asserts that O’Neill told both him and Jensen that he disagreed
with the rating solely because of the mold issues, Jensen testified that O’Neill advised her
it was “because of the mold issues they were having and that there were concerns Terry
did not provide good customer service to the field offices.” Doc. #53-9, p. 8, ¶11. She also
stated:
10

I told Gary the mold issues were not something under Terry’s control and
was not under Terry’s performance standards and would not be a fair
assessment of his performance. We talked about communications and I
asked Gary if he had recent specific feedback from individuals saying that
Terry did not provide good customer service. Gary did not have anything in
writing.
Id.
O’Neill decided that the customer service element of Kinzie’s 2015 performance
evaluation should be “meets fully successful” rather than “exceeds fully successful” and
he instructed Jensen to make the change. He did so, he stated, because he “believed it
would be unfair to other employees in the state and would be sending the wrong message
if [he] were to approve the ‘exceeds’ rating in customer service.” Doc. #44-5, p. 4, ¶18.
He then asked field supervisors to “memorialize the comments and concerns that they had
expressed to him earlier that year.” Doc. #44, p. 28, ¶42.
After he exhausted his administrative remedies, plaintiff filed this action.
Analysis
In the absence of evidence of direct evidence of discrimination or retaliation,
plaintiff’s claims are analyzed under the McDonnell Douglas 14 three-part test. 15 Smothers
v. Solvay Chems., Inc., 740 F.3d 530, 538 (10th 2014). Plaintiff bears the initial burden
of establishing a prima facie case of discrimination or retaliation by a preponderance of the
evidence under this burden-shifting framework. Id. at 539. Once he makes out a prima
facie case, he creates an inference of discrimination or retaliation. Id. The burden then

14

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

15

Plaintiff does not claim to have direct evidence of age discrimination or retaliation.

11

shifts to the defendant to articulate a legitimate nondiscriminatory or nonretaliatory reason
for the adverse employment action. Id. At this stage of the proceeding the defendant’s
burden is one of production, not persuasion. Id. If the defendant sustains his burden,
plaintiff “bears the ultimate burden of demonstrating that [defendants’] proffered reason is
pretextual.” Vaughn v. Epworth Villa, 537 F.3d 1147, 1150 (10th Cir. 2008) (internal
quotation marks omitted). “‘[A] plaintiff demonstrates pretext by showing either that a
discriminatory reason more likely motivated the employer or that the employer's proffered
explanation is unworthy of credence.’” Smothers, 740 F.3d at 539 (quoting Zamora v.
Elite Logistics, Inc., 478 F.3d 1160, 1166 (10th Cir. 2007)). Despite the shifting burden
of production “under the McDonnell Douglas framework, the ultimate burden of proving
intentional discrimination is borne by the plaintiff.” EEOC v. Horizon/CMS Healthcare
Corp., 220 F.3d 1184, 1191-92 (10th Cir.2000).
Age Discrimination Claim
Plaintiff claims defendant failed to hire him for the BBS position because of his age.
The ADEA makes it unlawful for an employer to discriminate against “any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of
such individual's age.” 29 U.S.C. § 623(a)(1). To prevail on his ADEA claim, plaintiff
“must prove by a preponderance of the evidence that [his] employer would not have taken
the challenged action but for the plaintiff's age.” Jones v. Oklahoma City Public Schools,
617 F.3d 1273, 1277 (10th Cir. 2010). This causal standard “does not require[] [plaintiff]
to show that age was the sole motivating factor in the employment decision.” Id. (internal
quotation marks omitted). Rather, as long as “age was the factor that made a difference,”
12

an employer may be held liable under the ADEA, even “if other factors contributed to its
taking an adverse action.” Id. (Internal quotation marks omitted).
Defendant has conceded for purposes of resolving his summary judgment motion
that plaintiff can establish a prima facie case of age discrimination. See Anaeme v.
Diagnostek, Inc., 164 F.3d 1275, 1278 (10th Cir. 1999) (plaintiff must show to establish a
prima facie case of discriminatory failure to hire that “(1) he applied for an available
position; (2) he was qualified for the position; and (3) he was rejected under circumstances
which give rise to an inference of unlawful discrimination.”) (internal quotation marks
omitted). The burden shifts to defendant to state a legitimate, nondiscriminatory reason for
not hiring plaintiff, which defendant has done. According to Wood, the selection officer,
while “Kinzie was a qualified candidate . . . Ketch was the better-qualified candidate.”
Doc. #44-6, p. 6, ¶27. The candidates received scores based on interviews, their resumes
and references. Woods testified that he “selected Ketch to be the BSS based on the overall
scoring during the selection process.” Id. at ¶26. Plaintiff’s claim therefore turns on the
third McDonnell-Douglas step – pretext. The question is does the evidence, viewed in
plaintiff’s favor, show that a triable issue of fact exists as to whether Wood’s reasons for
hiring Ketch rather than plaintiff were pretextual.
Although “pretext can be shown in a variety of ways . . . [g]enerally, a plaintiff can
establish pretext by showing the defendant's proffered non-discriminatory explanations for
its actions are so incoherent, weak, inconsistent, or contradictory that a rational factfinder
could conclude [they are] unworthy of belief.” Conroy v. Vilsack, 707 F.3d 1163, 1172
(10th Cir. 2013) (internal quotation marks omitted). Plaintiff’s argument that defendant’s
13

explanation is pretextual is simple – “he was not just more qualified than Ketch, but
extraordinarily more qualified than him.” 16 Doc. #53, p.22. Plaintiff asserts Wood would
have discovered this if, during the selection process, he had used a Qualifications Review
Panel, had compared the candidate’s resumes to the initial self-assessment questionnaires
they completed which OPM reviewed 17 and had contacted his first line supervisor as a
reference. Defendant responds that plaintiff essentially relies on his own subjective belief
that he was the most qualified candidate to establish pretext. Defendant contends that:
“Kinzie’s argument is simply he was older, with more years in the workforce. Ergo, he
must have had more experience and been more qualified than a younger person.” Doc.
#54, p. 9.
A Qualifications Review Panel might have discovered that Ketch inflated his
resume as plaintiff asserts. However, its use was optional. Wood explained that he decided
a QRP, which is used “to narrow your candidate pool down so the selecting official does
not have to process an enormously large applicant pool,” was unnecessary because of the
limited number of qualified applicants. Doc. #53-1, pp. 2-3. As OPM’s list of qualified
candidates was “manageable, Wood decided everyone on it would be interviewed. See

16

The court’s task in assessing plaintiff’s arguments has been made much more difficult
by his improper inclusion of lengthy arguments in his responses to defendant’s statement of
material facts.
17

The questionnaire applicants completed was used to assess their qualifications for the
job and “to identify the best qualified applicants to be referred to the hiring manager for further
consideration and possible interviews.” Doc. #44-12, p. 5.

14

Doc. Nos. 53-1, pp, 2-3; 44-6, p. 4, ¶18. 18 Plaintiff has offered conjecture, but no evidence,
demonstrating that Wood’s decision not to use a QRP was motivated by improper bias. 19
Plaintiff also faults Wood for not reexamining the applicant’s responses in relation
to the initial self-assessment questionnaire when he was conducting his resume reviews.
However, plaintiff “admit[ted] that the selecting official is not required to go behind
OPM’s determination.” Doc. #53, p. 8, ¶2. Wood was entitled to rely on OPM’s initial
screening process and to assume that everyone on the list of candidates OPM provided,
including Ketch, was qualified for the BSS position. Pretext cannot be inferred merely
from Wood’s failure to look beyond the resumes.
As for the resumes themselves, plaintiff asserts that the scoring methodology Woods
used when evaluating the resumes is unclear. He contends the “subjective scoring” shows
that Wood “clearly wanted to hire the younger applicant.” Doc. #53, p. 10. Again, plaintiff
offers no evidence to support his assertion of pretext. And he fails to develop his argument
regarding the alleged subjective evaluation of the resumes. Regardless, the evidence in the

18

The suggested procedures state that a QRP would be used when the “Selecting Official
determines, in collaboration with the Human Resources (HR) Specialist, a Qualifications Review
Panel is needed . . . .” Doc. #44-16, p. 1. Plaintiff argues that Wood unilaterally made the decision
not to use a QRP and “subjectively determined not to follow Defendant’s own protocol for the
purpose of allowing the younger candidate to move on in the selection to where he could ensure
his appointment as Business Services Specialist (‘BSS’).” Doc. #53, p. 8. However, the suggested
protocol did not require the selecting official to consult with the HR specialist before deciding that
a QRP would not be used. And the HR specialist at the time in question testified that whether to
use the panel “was a decision for the selecting official.” Doc. #44-14, p. 2, ¶12.
19

If Wood intended to discriminate against plaintiff, it is doubtful he would have used an
interview panel in the selection process. An interview panel also was discretionary with the
selecting official. See supra note 8.

15

record is to the contrary. Based on their resumes, Wood rated each candidate on a scale of
low, medium and high. There were eight criteria by which the candidates were
differentiated: coordination of business operations; point of contact of organization units;
conducting reviews/studies; effective problem-solving skills; leading and/or working with
groups/teams; ability to handle large, complex workload under stress; ability to
communicate and effectively interact with wide spectrum of individuals and
ability/willingness to learn new things and adapt to changes. Wood’s notes reflect the
factual bases for each candidate’s rankings. See Doc. Nos. 44-25; 44-26.
The Tenth Circuit has concluded that pretext is typically inferred “from the
employers’ use of subjective evaluation criteria in the hiring process ‘only when the criteria
on which the employers ultimately rely are entirely subjective in nature.’” Conroy, 707
F.3d at 1178 (quoting Jones v. Barnhart, 349 F.3d 1260,1267-68 (10th Cir. 2003)); cf.
Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1217-18 (10th Cir. 2002). The criteria
defendant used were not “entirely subjective in nature,” and they explain how someone
like plaintiff could have a resume score below Ketch’s, even though his “[r]esume shows
over 30 years of business and administrative service [and] Ketch wasn’t even 30 years old
at the time.” Doc. #53, p. 10. Many of the skills the selecting officer was looking for were
not dependent on the candidate having spent years in the workplace. Wood stated that
“[t]he ability to work large complex projects under stressful conditions; interpersonal skills
and ability to work with a broad diverse group of people; and the capacity to learn new
things and quickly” were among the most important job skills for the BSS position. Doc.

16

#44, p. 18, ¶13. Someone like Ketch could acquire these skills despite his relative youth
and lack of years in the workforce.
When talking to the candidates’ references, Woods again focused on the same skills
he considered to be the most important for the position. Plaintiff objects to the persons
Wood contacted as his references, complaining that the people Wood spoke with had not
worked with him either recently enough or long enough to be able to assess his skills. 20
Wood explained, though, how he selected the references he used. He was attempting to
get as many of the same references for the candidates as he could because he “wanted to
get as close to an apples-to apples comparison as possible.” Doc. #44, p. 20, ¶18. He was
apparently unable though to find references who had recently worked closely with both
Ketch and Kinzie. 21 Plaintiff does not suggest the names of anyone who knew them both
whom Wood should have, but failed to, contact.
Plaintiff does complain about Woods’ failure to consult the one person whom he
asserts was the most knowledgeable about his abilities – his first line supervisor, Janette
Jensen. Wood testified that that he had worked with Ms. Jensen and did not value her

20

In his brief plaintiff asserts that defendant should have contacted Jensen and O’Neill as
both “were tasked with Kinzie’s performance evaluations.” Doc. #53, p. 13. He then cites to his
deposition where he listed Janette Jensen and Rhonda LaFleur, but not O’Neill. Doc. #53-3, p. 3.
21

One of the persons Wood spoke with, Melanie Oliver, had not worked recently with either
Kinzie or Ketch. Plaintiff’s criticism about another, D’Ann Peterson, was that she had “very little
to provide in the way of constructive information concerning Kinzie as an applicant and [was]
possibly a person with an axe to grind with Kinzie.” Doc. #53, p. 12. That does not demonstrate,
though, that Wood’s decision to use her as a reference was improper or somehow motivated by
age bias, particularly when plaintiff offers no individuals who could have served as references for
both him and Ketch.

17

opinions or business practices. Doc.44-6, p. 6, ¶25. For that reason, he said he did not
contact her and use her as a reference for plaintiff. Plaintiff argues that Wood, who did
contact Ketch’s direct supervisor, “[went] to the horse’s mouth on Ketch but not for Kinzie
and chose to call only references that would be favorable to Ketch.” Doc. #53, pp. 14-15.
But he offers no evidence to substantiate this assertion. And he admits in his response that
“Woods determined not to contact Kinzie’s first line supervisor[] because of a personality
conflict.” which he documented. See Doc. Nos. 53, p. 14; #53-6, 4. While perhaps
unfortunate, it is not evidence of pretext.
Here, as in Conroy, where the Tenth Circuit confronted a hiring decision alleged to
be discriminatory, the court “see[s] nothing in the decisionmaking process that would allow
a reasonable jury to conclude that the process was used to discriminate against [plaintiff]
on the basis of [age].” Conroy, 717 F.3d at 1172. Plaintiff has not produced evidence
showing that defendant’s hiring process raises a triable dispute as to pretext. 22 What
plaintiff’s claim essentially boils down to is his belief that he was better qualified for the
position. He asserts that he has “had over 30 years of business [and other] experience,”
while, as he “understand[s] Mr. Ketch, most of his experience was in range land
management and his college degree was in range land management.” Doc. #53-3, p. 4.
But plaintiff’s subjective opinion about his qualifications is insufficient to create a material
fact dispute. See Santana v. City & Cnty. of Denver, 488 F.3d 860, 865-66 (10th Cir.

22

Plaintiff asserts that “[t]he only semi-objective measure in the entire process was the
interview which was scored a tie by Wood . . . .” Doc. #53, p. 16, ¶9. However, Ketch’s raw
interview score was higher. Ketch and Kinzie tied only after Wood converted the scores to his 13-5 scale. See Doc. 44, p. 19, ¶16.

18

2007); Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d
1321, 1329 (10th Cir.1999), overruled on other grounds by Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101 (2002)). More importantly, plaintiff has not produced evidence
supporting an inference that he was overwhelmingly more qualified than Ketch with
respect to the qualifications which the selecting officer identified as being among the most
important for the position. See Conroy, 707 F.3d at 1172 (pretext will not be inferred
“based upon ‘minor differences between plaintiff's qualifications and those of successful
applicants;’ rather, there must be ‘an overwhelming merit disparity.’”) (quoting Santana,
488 F.3d at 865).
Plaintiff relies on the opinion of his former first line supervisor, Janette Jensen, as
evidence of his superior qualifications and Ketch’s lack of qualifications. The problem is
that Ms. Jensen also did not evaluate plaintiff in terms of the particular skills Wood was
looking for to fill the BSS position. Her conclusion that plaintiff had “the knowledge and
experience necessary to do the job of Business Services Specialist that is far superior to
that of the individual who was selected” is based on the qualifications reflected in the
assessment questions on the on-line questionnaire which the applicants initially completed.
See Doc. # 53-5, pp. 5-7.
Ms. Jensen essentially disagrees with the OPM’s conclusion that Ketch was
qualified for the BSS position. But neither Ms. Jensen nor plaintiff provide more than
general criticisms of Ketch’s job skills. Ms. Jensen states that she previously performed
some of the duties required of the position and knew that “someone in the position of a
Rangeland Management Specialist in the field, would not have the experience required for
19

the BSS job. Mr. Ketch might have some knowledge, but not the necessary experience.”
Doc. #53-5, p. 6. Plaintiff testifies that his “objection is that it’s unclear to me how a range
management specialist who works in the field with farmers would have these kind[s] of
qualifications.” “I’ve got 30 years experience in business and he has his experience in
range land management.” Doc. Nos. 53-3, p. 9; 59, p. 21. Neither, though, directs the
court to specific deficits in Ketch’s knowledge or experience which demonstrate the
significant merit disparity required to permit an inference of pretext to be drawn. And as
has been discussed, Wood was entitled to accept, without further evaluation, the
qualifications of any person listed on the Certificate of Eligibles. See Conroy, 707 F.3d at
1173 (“Moreover, a Forest Service human-resources specialist certified Mr. Hager as
qualified for the position, (Certification of Candidates, dated Nov. 9, 2001)—a certification
that the selecting official, Mr. Pyron, was entitled to rely upon.”) (internal citation omitted);
see generally Santana, 488 F.3d at 865 (“Once applicants reached the interview process,
the panelists were free to select any of the candidates in the group without regard to
[assessment] scores.”).
Defendant offered a legitimate, nondiscriminatory reason for his decision to hire
someone other than plaintiff for the BSS position. Plaintiff has not offered evidence
“sufficient to raise a genuine doubt about [the Department of Agriculture’s] motivation in
selecting” Ketch. Conroy, 707 F.3d at 1178 (quoting Santana, 488 F.3d at 866). Here, as
in Conroy, “‘the evaluation system . . . was transparent and reflected that all listed
employees were evaluated according to the same criteria . . . and assessed in non-

20

discriminatory terms.’” Id. (quoting Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187,
1200 (10th Cir. 2008). The court therefore rejects plaintiff’s age discrimination claim.
Retaliation claim
Plaintiff claims defendant retaliated against him by changing his 2015 performance
evaluation because he filed an age discrimination complaint. “[A]n employer may not
retaliate against an employee ‘because he has opposed any practice made an unlawful
employment practice’ by Title VII.” Vaughn, 537 F.3d at 1151 (quoting 42 U.S.C. §
2000e-3(a)). To make out a prima facie case of retaliation under McDonnell Douglas,
plaintiff must show: “(1) that he engaged in protected opposition to discrimination, (2) that
a reasonable employee would have found the challenged action materially adverse, and (3)
that a causal connection existed between the protected activity and the materially adverse
action.” Conroy, 707 F.3d at 1181 (internal quotation marks omitted). Defendant concedes
plaintiff has met this initial burden. 23

Defendant must therefore state a legitimate,

nonretaliatory reason for the adverse action, which he has done. O’Neill testified that he
did not believe plaintiff should be given an exceeds rating in customer service when so
many employees complained about plaintiff’s handling of their building complaints during
the 2015 rating year. At this point “[t]he defendant need not persuade the court that it was

23

It is not altogether clear to the court that there was actually an “adverse action” here.
As noted previously, it is undisputed that an employee’s performance evaluation is not final until
the reviewing official, here, O’Neill, approved it. So the adverse action plaintiff relies on is
essentially him not getting the benefit of a preliminary, non-final evaluation of a subordinate
supervisor. It is less than obvious that such a circumstance constitutes an adverse action but, in
light of defendant’s concession that a prima facie case has been made out, it is unnecessary to
belabor the question here.

21

actually motivated by the proffered reasons. Anaeme, 164 F.3d at 1279. All the employer
must do to satisfy his burden is to “‘produce admissible evidence which would allow the
trier of fact rationally to conclude that the employment decision had not been motivated by
discriminatory animus.’” Id. (quoting Texas Dep’t of Community Affairs v. Burdine, 450
U.S. 248, 257 (1981). “‘[T]he determination that a defendant has met its burden of
production . . . involve[s] no credibility assessment.’” Id. (quoting St. Mary’s Honor Ctr.
v. Hicks, 509 U.S. 502, 509 (1993)).
To defeat summary judgment plaintiff must offer sufficient evidence to raise a
genuine doubt about O’Neill’s motivation for the actions he took which are viewed as
adverse to plaintiff. Although a close question, considering the evidence in the aggregate
and in the light most favorable to plaintiff, the court concludes plaintiff has met his burden.
A reasonable jury could determine that defendant’s proffered explanation is pretextual.
While O’Neill asserts he discussed the complaints with plaintiff in the summer and
fall of 2015 and that plaintiff participated in some of the meetings where the complaints
were aired, plaintiff denies having any discussions with O’Neill about his performance
“until after fiscal year 2015.” Doc. #53-3, p. 16. Plaintiff also denies that any employees
ever indicated to him that they thought he was doing anything wrong. Id. at p. 13. There
is evidence O’Neill did not discuss the issues with plaintiff’s performance with plaintiff’s
direct supervisor, Janette Jensen, and evidence that she spoke “with some other individuals,
too, throughout the State, who said that things were fine.” Doc. #53-9, p. 8. Finally, the
documentation which substantiates defendant’s position that employees complained about
plaintiff’s performance was all obtained after the asserted retaliatory action was taken.
22

Plaintiff’s evidence, while not overwhelming, is sufficient for a reasonable jury to question
defendant’s reason for lowering plaintiff’s performance appraisal from the one he might
otherwise have gotten. A trial is therefore warranted on plaintiff’s retaliation claim.
Accordingly, the court concludes defendant’s motion for summary judgment [Doc.
#44] should be GRANTED IN PART and DENIED IN PART. Defendant is GRANTED
summary judgment on plaintiff’s ADEA discrimination claim and DENIED summary
judgment on plaintiff’s retaliation claim. Summary judgment in defendant’s favor on the
discrimination claim will be entered when the case is concluded as to all claims.
Fed.R.Civ.P 54(b).
IT IS SO ORDERED
Dated this 19th day of July, 2018.

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