F IL E D
United States Court of Appeals
Tenth Circuit
PU BL ISH April 22, 2008
Elisabeth A. Shumaker
U N IT E D ST A T E S C O U R T O F A P PE A L S Clerk of Court
T E N T H C IR C U IT
ALBERT H INDS ,
Plaintiff - Appellant ,
v.
No. 07-3027
SPR IN T/U N ITED M A N A G EM ENT
C OM PA N Y and SPR IN T
C ORPO RA TIO N ,
Defendants - A ppellees.
A ppeal from the U nited States D istrict C ourt
for the D istrict of K ansas
(D .C . N o. 05-C V -2362-K H V )
Dennis E. Egan of The Popham Law Firm, P.C., Kansas City, M issouri, for
Plaintiff-A ppellant.
Joseph H. Knittig (Paul D. Seyferth with him on the brief) of Seyferth Knittig &
Blumenthal, LLC, Kansas City, M issouri, for D efendants-A ppellees.
Before M cC O N N E L L , B A LD O C K , and G O R SU C H , Circuit Judges.
G O R SU C H , Circuit Judge.
Sprint/United M anagement Company and Sprint Corporation (collectively,
“Sprint”) discharged Albert Hinds as part of a reduction in force in which his
entire department was eliminated. M r. Hinds sued, alleging that Sprint
discriminated against him on the basis of age and retaliated against him for
complaining of age discrimination. The district court granted summary judgment
for Sprint on both counts. Because M r. Hinds does not present evidence from
which a reasonable juror could discredit Sprint’s age-neutral explanation for his
discharge or conclude that a retaliatory motive spurred his termination, we affirm.
I
W hile this case centers on M r. Hinds’s discharge in 2004, in his view that
event represents only the culmination of a series of events suggestive of age
discrimination and unlawful retaliation; accordingly, we begin at the beginning of
M r. Hinds’s relationship with Sprint.
A
M r. Hinds joined the company as a senior supervisor at its Overland Park,
Kansas headquarters in October 1994, when he was 40 years old. During the
1990s, Sprint promoted M r. Hinds at least twice, and he received generally
positive performance reviews, a pattern that continued into the early part of the
next decade. So, in October 2001, M r. Hinds accepted a position as a project
manager on Sprint’s newly-created W orkforce M anagement Team (“W FM ”), a
position with a Sprint pay grade of 77, and, several months later, in M ay 2002,
Sprint promoted M r. Hinds to a project manager position with a higher pay grade
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of 78. As a project manager in the W FM group, M r. Hinds bore responsibility for
the operation of several Sprint call centers. 1
Sometime after this latest promotion, things began to change for M r. Hinds.
Ted Smith, M r. Hinds’s immediate supervisor in the W FM group, became
concerned that, while very competent technically, M r. Hinds had developed
certain communication problems in dealing with his peers, customers, and
supervisors. M r. Smith also believed M r. Hinds was not adapting to the process
of negotiating with the call centers for which he was responsible. In mid-2002,
M r. Smith provided M r. Hinds with a performance evaluation that reflected these
concerns, giving M r. Hinds the next-to-lowest performance rating in ten different
areas of assessment. In response, M r. Hinds acknowledged he had
communication challenges with his peers and supervisor.
A few months later, David Roberson, who also worked in the W FM group,
replaced M r. Smith as M r. Hinds’s supervisor. M r. Roberson had been hired into
the W FM group at its inception as a level 78 employee, a level above M r. Hinds
at the time, but a level below his own prior job elsewhere in Sprint. At the time
he replaced M r. Smith, M r. Roberson was 42 years old, compared to M r. Hinds’s
1
Neither party describes the exact functions and operations of the Sprint
call centers, so it is not clear, for example, whether the call centers had contact
with Sprint customers or whether other departments within Sprint were the
“customers” served by the call centers. See Aplt. A pp. at 484.
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48, though he had worked for Sprint a year longer than M r. Hinds. Shortly after
his promotion within W FM , M r. Roberson and Krystal Barr, the director with
responsibility for W FM , began receiving complaints from several of M r. Hinds’s
peers and clients that he did not listen to them or accept their input and feedback,
and that he sent criticisms directly to senior level management without first trying
to work with his peers and follow Sprint’s chain of authority. Jim Curran, a
Sprint vice president to w hom M r. Hinds would directly bring low -level problems,
told M s. Barr to make sure M r. Hinds shared his ideas and criticism with his peers
first and worked through issues with them constructively as a team when possible.
Although M s. Barr communicated this to M r. Hinds, apparently he did not
comply, explaining that he simply had a different “management paradigm” than
his supervisors and that, as long as he met objective goals, how well he got along
with peers, management, and clients should not matter. Aplt. App. at 158, 214;
see D. Ct. O rder 12/12/06 at 8.
B
In M ay 2003, M r. Hinds wrote an e-mail to Rich Joyce in human resources
complaining about M r. Roberson’s appointment to the W FM supervisory position,
and noting that he had more W FM experience than M r. Roberson, as well as an
advanced business degree. In June 2003, M r. Hinds followed up by meeting
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personally with M r. Joyce and asking M r. Joyce, among other things, “could this
have been age discrimination?” Aplt. A pp. at 136.
The next day, M r. Hinds sent an e-mail to Sprint’s CEO, Gary Forsee,
complaining about Sprint internal politics, the new performance evaluation rating
system, and the company’s management philosophy in general. He referred to his
age in the following context: “I am significantly older than many of [my
managers], have more business experience and more education. I refuse to align
with a business decision that I know is wrong, based on my experience and
knowledge.” Aplt. App. at 173. M r. Hinds later testified at his deposition that
the purpose of this message was not to complain of age discrimination but to
make M r. Forsee aw are of “the challenges that [he] had and that others w ere
having with [aspects of the company’s then newly instituted performance
evaluation rating] system.” Aplt. App. at 133-34. As part of the new rating
system, employees w ere assigned an overall rating in addition to ratings in
particular categories, as had previously been the case. 2 M any employees,
including M r. Hinds, apparently were not pleased with the new performance
evaluation system.
2
The overall rating system consisted of the following: M (most effective);
H (highly effective); V (very effective); L (less effective); and N (not yet rated).
-5-
In September 2003, M r. Roberson prepared a scheduled performance
evaluation for M r. Hinds in which he rated M r. Hinds below average in several
categories and assigned him an overall rating of “less effective,” the lowest
possible rating. M r. Roberson described M r. H inds as “high maintenance,”
requiring considerable high-level management and human resources time and
attention on issues M r. Hinds was expected to handle with his call centers and
peers without such assistance. Aplt. A pp. at 328.
C
Toward the end of 2003, Sprint underwent a company-wide reorganization
in which some employees in W FM faced discharge as part of a reduction in force
(“RIF”). At the same time, Sprint created a new group dedicated to long-term
strategic planning and forecasting called the Call Center Tools and Technology
Evolution (“CCTTE”) group. M arian Fields was the CCTTE manager and Joe
M odica w as the director responsible for the group. M s. Barr recommended M r.
Hinds to M r. M odica because she believed a strategic planning position would
suit his technical strengths and play aw ay from his perceived interpersonal skill
weaknesses. M r. Hinds accepted the position in CCTTE, a pay grade 77 position,
one pay grade below his prior W FM post. Four other employees also joined
CCTTE, all at pay grade 77; three were older and one younger than M r. H inds.
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Around this same time in November 2003, M r. Hinds sent another e-mail to
M r. Joyce in human relations. This time, M r. Hinds asserted that his complaints
about Sprint management, including the promotion of M r. Roberson, had “put
them in the position to have retaliatory inclinations.” Aplt. App. at 643. He said
he saw “a clear path of retaliatory action” by Smith, Roberson, Curran, and Barr
due to the “negative feedback” he had provided on their performance evaluations.
Id. M r. Hinds alleges he also sent a PowerPoint presentation to several of his
managers and human resources representatives. The presentation generally
complained about the company’s new performance evaluation rating system, but
one of the ten slides did state that M r. Hinds believed M r. Roberson gave him a
low rating “in retaliation for taking issues to HR and upper management or as an
act of discrimination.” Id. at 359. The slide w ent on to state that M r. Hinds also
believed he was “downgraded a band level and moved out of WFM vs. being
promoted to the W FM senior manager position [as] an act of retaliation.” Id.
In January 2004, M r. Hinds again e-mailed M r. Joyce in human relations,
this time with a copy to M r. Forsee and James Kissinger, the head of human
relations for the entire company. In this e-mail, M r. Hinds complained about M r.
Roberson’s performance review deeming him “high maintenance” for consuming
high-level management and human resources time. In response, M r. Kissinger
wrote M r. Joyce to say he remembered “frequent escalated e-mails from [M r.
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Hinds] over the years – some legit, some not – in almost every role he has held.”
Aplt. App. at 640. He went on to say, “I would guess that going to HR is not the
issue in this case – but skipping multiple levels in the chain of command is not
uncomm on for him – and not necessarily appropriate.” Id. In a follow-up e-mail
to M r. Joyce, M r. Kissinger relayed a similar experience with another employee
who had escalation problems, was put on warning, and was ultimately fired.
D
In M ay 2004, Sprint undertook another reorganization and RIF. This time,
the CCTTE group was eliminated. In connection with the RIF, various managers,
including M r. M odica, held a full-day meeting to determine, among other things,
whether alternative employment opportunities within Sprint existed for the
CCTTE employees. In this vein, M r. Hinds was considered for an open position
in another group, but the job was ultimately given to a different CCTTE
employee, M ark Smith. M r. Smith had 30 years of experience with Sprint and
was 54 years old; at the time, M r. Hinds was 49 and had approximately 10 years
with the company. In addition to M r. Smith, two other CCTTE employees and the
CCTTE manager, M s. Fields, secured other open positions within Sprint; all three
were also older than M r. Hinds. Ultimately, only M r. Hinds and another CCTTE
employee, the youngest member of that group, were discharged.
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After the meeting, spreadsheets w ere prepared identifying the employees in
the various groups, including CCTTE, impacted by the reorganization and RIF.
Uncontested testimony suggests that these spreadsheets were completed to allow
Sprint’s human resources department to review, after the fact, the potentially-
impacted candidates and check for any “potential problems” with the decisions
that were made in the meeting. Aple. Supp. App. at 83. Affected employees were
divided into different spreadsheets based on their individual skills sets; M r. Hinds
was listed in the “infrastructure support” spreadsheet. This spreadsheet provided
performance rating histories, years in service, and manager evaluations for each
listed employee. It also included certain “hidden” data cells that contained
various personal information such as the employee’s age, ethnicity, military
status, and disability, if any; these data cells were password protected, and the
information in them apparently was not available to decisionmakers at the time of
M r. Hinds’s discharge, though the security of this information is open to some
question. See infra note 10.
E
In February 2005, M r. Hinds filed a discrimination complaint against Sprint
with the Equal Employment Opportunity Commission. After receiving notice of
his right to sue from the Commission, M r. Hinds filed this lawsuit against Sprint,
alleging that the company violated the Age Discrimination in Employment Act
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(“ADEA”), 29 U.S.C. § 621 et seq., in two ways: (1) discriminating against him
because of his age; and (2) retaliating against him for his complaints of age
discrimination. 3
Before the district court, M r. Hinds initially proceeded with his age
discrimination claim on the theory that Sprint treated younger employees within
CCTTE more favorably than him during the M ay 2004 RIF. It soon became
apparent in the discovery process, however, that Sprint actually retained the
oldest members of the CCTTE group and discharged only the two youngest, and
Sprint moved for summary judgment on this basis. M r. Hinds responded by
seeking to revise his discrimination theory, now suggesting that age
discrimination was apparent from Sprint’s decision during the RIF to retain
certain younger employees w ho were also listed in the “infrastructure support”
spreadsheet and shared his pay grade at the time (77) but worked in positions
outside the CCTTE group. Although this new theory arguably went beyond the
scope of the district court’s pretrial order, 4 Sprint did not object to it and, in an
3
Because M r. Hinds filed his administrative claim within 300 days of his
termination, his claims in this suit are not time-barred, as Sprint argues, and this
case is properly before us. See 29 U.S.C. § 623(d)(2); M ontes v. Vail Clinic, Inc.,
497 F.3d 1160, 1163 (10th Cir. 2007).
4
In the pretrial order, M r. Hinds’s claim was that Sprint treated “younger
employees in [his] department” more favorably in the RIF by allowing them to
retain their positions. Aplt. App. at 29. The order did not mention any claims
regarding younger employees outside M r. H inds’s department.
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attempt to give M r. Hinds every benefit of the doubt, the district court considered
his new theory. Because Sprint had not been given an opportunity to address M r.
Hinds’s new theory in its opening brief at summary judgment, however, the court
ordered supplemental briefing and received additional evidence from both parties.
Sprint supported its supplemental brief w ith affidavits from two w itnesses,
David W amsher and Kevin Quirk. The affidavits discussed the various non-
CCTTE employees in M r. Hinds’s same pay grade who were retained by the
company. M r. Hinds filed a response brief and a motion to strike the affidavits or
reopen discovery. The district court denied the motion and considered the
affidavits in its summary judgment decision, ultimately granting summary
judgment for Sprint on M r. Hinds’s age discrimination and retaliation claims. 5
5
M r. Hinds argues that the district court should not have considered
Sprint’s supplemental summary judgment brief and the supporting affidavits from
M r. W amsher and M r. Quirk, or should have reopened discovery. The district
court, however, did not abuse its discretion by considering the supplemental brief
and evidence and declining to reopen discovery because (1) M r. Hinds introduced
his new discrimination theory comparing himself to employees outside the
CCTTE group only after the close of discovery; (2) the district court allowed M r.
Hinds to submit a surreply brief and additional supporting evidence responding to
Sprint’s supplemental brief; and (3) M r. Hinds had already deposed M r. W amsher
and M r. Quirk, and thus was not completely without an opportunity to question
them about his expanded theory. See Beaird v. Seagate Tech., Inc., 145 F.3d
1159, 1164 (10th Cir. 1998).
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II
M r. Hinds now seeks reversal of the district court’s judgment. As always,
we assess this summary judgment appeal de novo, view ing the facts, and all
reasonable inferences those facts support, in the light most favorable to M r. Hinds
as the non-movant. Young v. Dillon Cos., Inc., 468 F.3d 1243, 1249 (10th Cir.
2006). Summary judgment is of course appropriate if, but only if, the evidence
reveals no genuine issue of material fact and the movant is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(c).
A
Turning first to M r. Hinds’s age discrimination claim, we begin with
Congress’s charge to us. Congress has indicated that an ADEA claim pursuable
in federal court arises when certain employers “discharge any individual . . .
because of such individual’s age.” 29 U.S.C. § 623(a)(1); id. § 626(c)(1). Thus,
pertinent for our current purpose, a plaintiff must prove that his or her discharge
was motivated, at least in part, by age. See Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 141 (2000).
Though M r. Hinds concedes he lacks direct evidence of discriminatory
intent, he still may carry his statutory burden by presenting circumstantial
evidence in accord w ith the familiar M cDonnell Douglas burden-shifting
framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04
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(1973). Under M cDonnell Douglas, the plaintiff first bears the burden of
establishing a prima facie case of age discrimination. If the plaintiff carries this
burden, the employer must then come forward with some legitimate, non-
discriminatory reason for the adverse employment action. If the employer
succeeds in this showing, the burden shifts back to the plaintiff to show that the
employer’s proffered justification is pretextual. See Young, 468 F.3d at 1249.
1
To make out a prima facie case of age discrimination, our case law requires
a plaintiff affected by a RIF to show that he or she (i) was within a protected age
group, (ii) was doing satisfactory work, (iii) was discharged despite the adequacy
of his or her work, and (iv) has some evidence the employer intended to
discriminate against him or her in reaching its RIF decision. Beaird v. Seagate
Tech., Inc., 145 F.3d 1159, 1165 (10th Cir. 1998). The parties before us proceed
on the basis that the fourth element may be satisfied by a showing that, during the
RIF, the employer discharged the plaintiff but retained a younger employee who
held a “similar position.” Id. at 1167.
Sprint concedes that M r. Hinds has established the first three elements of a
prima facie case, but contests the fourth by pointing to the fact that the company
did not retain any employees in the CCTTE group younger than M r. Hinds. Once
these facts became apparent to M r. Hinds during the district court proceedings,
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and without any objection by Sprint, M r. Hinds changed tack and amended his
discrimination theory by seeking to compare himself not only to employees inside
the CCTTE group, but to employees outside the CCTTE group who shared his
level 77 pay grade and whose groups were also assessed during the RIF. Using
this measure, M r. Hinds points to the fact that Sprint retained seven pay grade 77
employees younger than him.
Two aspects of M r. Hinds’s amended discrimination theory seem to us
significant. First, it is important that, as here, the employer’s RIF process
affected not just the plaintiff’s group but also the business units containing the
younger employees who the plaintiff alleges occupy positions similar to his or
hers. It is the fact that the employer scrutinized both departments during the R IF
and decided to retain similarly situated younger employees while discharging an
older employee that gives rise to an inference of discrimination. See id. (“[T]he
employer could have retained [the older employee] but chose instead to retain a
younger employee.” (emphasis added)). Such an inference does not arise simply
because an employer eliminates an entire underperforming business unit in a RIF,
firing, say, accountants along with all others in that unit, but does not undertake a
RIF process with respect to other business units, thus retaining otherwise
similarly qualified accountants in those business units whose positions were not
up for consideration in the RIF. See, e.g., Pippin v. Burlington Res. Oil & Gas
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Co., 440 F.3d 1186, 1193 (10th Cir. 2006) (fourth element may be established
through “evidence that the plaintiff was treated less favorably than younger
employees during the RIF” (emphasis added) (quoting Beaird, 145 F.3d at 1165));
Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1138 (10th Cir. 2000) (evidence that
employer filled similar positions with younger employees “during the
reorganization” satisfies fourth element); Krause v. Dresser Indus., Inc., 910 F.2d
674, 677 (10th Cir. 1990) (fourth element satisfied when RIF leaves only one
accounting position in department with two accountants and employer retains the
younger accountant).
Second, the fact that employees in business units affected by a RIF simply
share the same pay grade does not establish, standing alone, that the employees
occupy “similar positions.” After all, a security guard and a secretary, a doctor
and a lawyer, may well share pay grades in a large corporation but cannot
reasonably be said to hold “similar positions.” A nd M r. W amsher and M r. Quirk
testified in their affidavits that this is exactly the case at Sprint: employees in the
same pay grade at the company do not necessarily perform substantively
comparable jobs. Accordingly, we hold that, at a minimum, a plaintiff must
establish that a purportedly “similar position” is one that he or she was qualified
to assume. The purpose of the ADEA is to address intentional discrimination
between like persons on the basis of invidious criteria; the fact that a company
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discharges security guards but not secretaries in the same pay grade does nothing
to tell us whether discrimination, as opposed to legitimate business concerns, was
at play. To give rise to an inference of unlawful discrimination, the plaintiff must
come forward with evidence suggesting that the non-discharged employee
occupied a position the plaintiff was qualified to assume.
In this case, M r. Hinds has come forward with evidence that the business
units employing the seven younger employees he has identified were affected by
the R IF. G iving him the benefit of the doubt, and for purposes of this appeal, w e
also proceed on the assumption that M r. Hinds w as qualified to assume the spots
held by the individuals outside the CCTTE group he has identified. Under these
conditions, all four of Beaird’s elements are satisfied, and the burden shifts to
Sprint to come forward with evidence suggesting a legitimate non-discriminatory
reason for its decision to discharge M r. Hinds.
2
M r. Hinds simplifies this portion of our analysis by conceding that Sprint
has carried its burden. Specifically, M r. Hinds acknowledges Sprint’s evidence
that his position was eliminated only as part of a larger, non-discriminatory
business decision to discontinue the entire CCTTE group. And he does not
contest Sprint’s evidence, from M r. M odica, M r. W amsher, and M r. Quirk, that,
while M r. Hinds’s entire group was eliminated, the positions of the seven younger
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non-CCTTE employees were not eliminated as part of the RIF. That is, although
their groups were subjected to review as part of the RIF process, their groups,
unlike the CCTTE group, were not totally eliminated and, indeed, their positions,
along with others in their groups, were retained intact.
This, then, is not a case where the plaintiff and younger employees all had
their positions eliminated and the company found alternative employment options
only for younger employees. Cf. Stone, 210 F.3d at 1135-36. Neither is it a case
where the company chose to eliminate only plaintiff’s position, but retained other,
younger employees in his or her business unit. Cf. Beaird, 145 F.3d at 1168.
Quite unlike these scenarios, the one now before us appears far more obviously
consonant with legitimate business practices and concerns – viz., a company
discontinuing a business unit it has determined to be unproductive, while
retaining other employees in other productive business units in their preexisting
jobs. Indeed, Sprint employees testified uniformly that it is their company’s
policy to keep in their current positions those employees whose positions are not
eliminated in a R IF and to terminate only those employees whose positions are
eliminated if they cannot be placed in open positions elsewhere in the company.
See Aplt. App. at 343, 713, and 721.
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3
To reach trial, it remains for M r. Hinds to demonstrate that a genuine issue
of material fact exists on the question whether Sprint’s purported justification for
his termination was pretextual. To accomplish this task, M r. Hinds must present
facts suggesting that Sprint’s proffered age-neutral reason for his dismissal is “so
incoherent, weak, inconsistent, or contradictory that a rational factfinder could
conclude the reason[] [is] unworthy of belief.” Young, 468 F.3d at 1250. In the
typical RIF case, a plaintiff demonstrates pretext by presenting evidence that his
or her termination did not accord w ith the company’s RIF criteria, that the R IF
criteria were deliberately falsified or manipulated to secure the plaintiff’s
dismissal, or that the RIF generally was pretextual. Pippin, 440 F.3d at 1193.
Before us, M r. Hinds does not dispute that Sprint eliminated his position in
the CCTTE group – indeed eliminated the entire CCTTE group – as part of the
RIF; that the RIF did not eliminate the positions of the seven younger non-
CCTTE employees he has identified; or that Sprint’s policy was to retain in their
preexisting jobs employees whose positions were not affected by the RIF.
Instead, M r. Hinds claims that pretext can be discerned from a single
document – the spreadsheet created after the meeting of Sprint managers
regarding the RIF. See supra Part I.D. Specifically, M r. Hinds identifies three
features associated with the spreadsheet that he believes to be “key evidence” of
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pretext: (i) while Sprint claims that it used the spreadsheet only after termination
decisions, instructions accompanying the document suggest it was to be used
during the decisionmaking process; (ii) the spreadsheet contains certain
“subjective” evaluations by managers and age data about the employees; and
(iii) the spreadsheet does not include some members of the CCTTE group Sprint
retained in other positions, even though their original positions were also
eliminated in the RIF. W e address each of these points in turn. 6
(i)
Regarding the first, M r. Hinds calls our attention to generic instructions
accompanying Sprint’s “Selection W orksheet Job Aid for M anagers” that describe
the spreadsheet as a “tool” for managers to use in identifying “potential
candidates for displacement/selection for job opportunities.” Aplt. A pp. at 636.
In this particular case, of course, Sprint managers uniformly testified that they did
not actually use the spreadsheet in making their termination decisions, and that
6
M r. Hinds also lists additional “unanswered questions” related to the
spreadsheet that he asserts contribute to raising a genuine issue of material fact as
to Sprint’s true motivation for firing him. Some of these echo issues raised in his
“key evidence” arguments. The others, however, are but questions, and M r.
Hinds does not, as he must, present evidence of potential answers suggesting
pretext. “To avoid summary judgment, a party must produce specific facts
showing that there remains a genuine issue for trial and evidence significantly
probative as to any material fact claimed to be disputed. Thus, plaintiffs’ mere
conjecture that their employer’s explanation is a pretext for intentional
discrimination is [] insufficient.” Branson v. Price River Coal Co., 853 F.2d 768,
771-72 (10th Cir. 1988) (quotation omitted).
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the document was instead completed after the fact by the human resources
department as part of a process to see if there were any “potential problems”
(including, it seems, questions of discrimination) associated with decisions the
relevant managers had already made. See supra Part I.D. 7 M r. Hinds argues that
this “contradiction” between the instructions in the spreadsheet tool and Sprint’s
alleged use of the spreadsheet in this case is enough to raise a genuine issue of
material fact on the issue of pretext for two reasons.
First, M r. Hinds can be understood to suggest that if, as the Sprint
managers testified, they did complete the spreadsheet only after the firing
decisions, they did so in contravention of the spreadsheet instructions and we may
infer pretext from this “contradiction” alone. In response, Sprint does not dispute
the existence of its generic instructions accompanying the spreadsheet, but argues
only that they were not followed in this particular case. And, standing alone, it is
hardly suggestive of discriminatory animus (and thus capable of satisfying the
7
For example, M r. W amsher, a Sprint human resources manager, explained
that human resources asked the managers to fill out the evaluation section of the
spreadsheet after the selection meeting “to determine if there [were] any issues,
potential problems, with regards to the data and those that were selected or not
selected. It gave us as an HR function an opportunity to do a once-over to make
sure we were comfortable with the decisions that w ere made.” Aplt. A pp. at 582.
M r. Quirk, a Sprint manager tasked with gathering evaluations about employees
from managers for the spreadsheet, testified that he did not read the instructions
to the spreadsheet but simply filled in the employee evaluation cells requested by
human resources.
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pretext requirement) that, in a particular case, a company used a human resources
“tool” to evaluate employees at a time, or in a manner, other than that directed by
its generic instructions. As we have repeatedly explained, we simply do not sit as
a “super personnel department” to enforce an employer’s policies about the
manner in which its internal human resources tools are deployed. Young, 468
F.3d at 1250; see, e.g., Riggs v. AirTran Airways, Inc., 497 F.3d 1108, 1119 (10th
Cir. 2007) (employer’s failure to follow company policies of seeking employee’s
response to customer complaint against her and having station manager personally
inform employee of termination did not suggest pretext for unlawful
discrimination).
Now, to be sure, if M r. Hinds had some evidence that Sprint failed to
follow its policies in this particular case for a discriminatory reason, that would
be a very different matter. But the mere failure of a company’s employees to
follow their employer’s manuals and written directives, without more, does
nothing to suggest discrimination as opposed to perhaps, say, laxity on the part of
company employees. If the case were otherwise, potentially every irregularity or
deviation from company policy during a RIF w ould suffice to show pretext, even
when there is no evidence that the action was taken in anything but good faith,
much less as a subterfuge for pursuing a discriminatory purpose. Indeed, it would
appear that Sprint used the spreadsheet at issue here, if anything, as a tool to
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scrutinize hiring and firing decisions (albeit after the fact) for signs of potential
problems such as discrimination, and inferring discriminatory animus under these
circumstances would, if anything, risk undermining, rather than furthering, the
ADEA’s purposes. See 29 U.S.C. § 621(b); Kolstad v. Am. Dental Ass’n, 527
U.S. 526, 545 (1999) (“Dissuading employers from implementing programs or
policies to prevent discrimination in the workplace is directly contrary to the
purposes underlying [the ADEA].”).
Second, in the face of all this, M r. Hinds seems to suggest an alternative
course exists to infer pretext from the spreadsheet’s generic instructions. Noting
that there is a dispute of fact between the generic instructions accompanying
Sprint’s spreadsheet and the testimony of its employees about its use, and viewing
the facts in the light most favorable to the plaintiff, M r. Hinds suggests that we
must infer the spreadsheet was created before termination decisions were made
and was used by managers during the decisionmaking process. W e readily
concede this possibility. Although, as we have already indicated, there is no
inherent contradiction between the generic instructions and Sprint’s testimony
that its managers did not use the spreadsheet in making their termination
decisions, a reasonable juror could consider the instructions to be evidence
suggesting that the Sprint managers, in contradiction to their testimony, did in
fact complete the spreadsheet before termination decisions were made. But, even
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if we were to suppose that Sprint did use the spreadsheet during the
decisionmaking process, we must still ask: W hat exactly in the spreadsheet or its
use as part of the decisionmaking suggests discriminatory animus? This question
takes us to M r. Hinds’s second point.
(ii)
M r. Hinds asserts that pretext can be inferred from the spreadsheet and its
purported use in the decisionmaking process because the document contained
“subjective” performance evaluations by his manager and hidden cells listing the
employees’ ages.
W ith respect to the performance evaluations, M r. Hinds points to our
precedent indicating that “subjective evaluation methods” with no explanation or
supporting basis may sometimes be view ed with “skepticism ” and, under certain
circumstances, can be “susceptib[le] to discriminatory abuse.” Garrett v.
Hewlett-Packard Co., 305 F.3d 1210, 1218 (10th Cir. 2002). W e hold, however,
that the evaluations at issue here differ in kind from those at issue in Garrett and
give rise to no such concern. There, the evaluated employees were simply ranked
from best to worst, and the record was devoid of any evidence showing how their
order was determined. Here, by contrast, the spreadsheet set out common,
objective criteria on which the relevant manager independently rated each
- 23 -
employee. 8 It also provided room for comm ents by the manager to support the
numerical ratings assigned. 9 Quite unlike the evaluation system at issue in
Garrett, the opaqueness of w hich m ade it susceptible to unspoken discriminatory
input, the evaluation system here was transparent and reflected that all listed
employees were evaluated according to the same criteria, based on the same scale,
and assessed in non-discriminatory terms.
W ith respect to the information about employees’ ages, none of this appears
on the face of the spreadsheet; instead, it is contained in password-protected cells
hidden from unauthorized view ers. The uncontested evidence in this case is that a
8
Each employee was evaluated according to four “job requirements” and
five “behavioral dimensions.” The job requirements w ere as follows:
“U nderstanding of technology and associated capabilities, Problem solver /
Analytical / Implementation / Ideation, Ability to understand business process and
needs along with strategy, and Experience working on systems projects with ITS /
vendors.” Aplt. App. at 629. The six behavioral dimensions w ere “Act with
Integrity, Focus on the Customer, Deliver Results, Build Relationships, and
Demonstrate Leadership.” Id. Each employee’s manager provided evaluative
comm ents in every category as well as a numerical rating, which was based on a
scale from one to five, one being “greatly exceeds expectations,” three being
“fully meets expectations,” and five being “unacceptable.” Id. M r. Hinds
received twos and threes on his job requirements and threes and fours on his
behavioral dimensions.
9
For example, M r. Hinds’s manager gave him a two rating for
“U nderstanding of technology and associated capabilities,” explaining that “A l
understands the W orkforce M anagement SBS requirements and provides the
expertise to other SBS, SCS and IBM representatives.” Aplt. App. at 629. She
explained his four rating in “Focus on the Customer” by comm enting, “Al avoids
expressing the customer perspective in groups meetings; rather he projects his
own perspective and when others don’t agree, he shows displeasure.” Id.
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Sprint support organization not involved in the decisionmaking process created
these “password protected” cells, and that the managers involved in making
discharge decisions did not have access to the password necessary to view the
cells. M r. Hinds responds that Sprint’s protection of the data contained in the
hidden cells was not foolproof because one who knows the hidden cells exist may
access their information by electronically copying them into a new spreadsheet. 1 0
But M r. Hinds has not developed any facts suggesting that the managers involved
in the decision to fire him actually accessed the embedded age data in the
spreadsheet or even knew how to evade the password requirement in the manner
M r. Hinds identifies. Thus, even assuming that an inference of discrimination
could arise had decisionmakers seen the age data, the uncontested facts here fail
to support such a theory. And we have long explained that information of which
an employer is unaw are cannot be inferred to be the basis for the employer’s
decision to take action against the employee. See Montes v. Vail Clinic, Inc., 497
F.3d 1160, 1176 (10th Cir. 2007).
10
During M r. Quirk’s deposition, M r. Hinds’s counsel electronically
copied the hidden data cells and pasted them into a new spreadsheet. Counsel
asserts that the resulting spreadsheet revealed the information in the hidden data
cells, including the employees’ ages, and therefore Sprint managers w ith access to
the spreadsheet could easily access the password protected data. See Aplt. App.
at 633-34. M r. Hinds does not present any evidence, however, suggesting that
any decisionmaker had access to the password, knew about this alleged
workaround, or otherw ise accessed the information in the hidden data cells.
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(iii)
As his final evidence of pretext, M r. Hinds points out that the spreadsheet
did not include three CCTTE employees – two who were retained in other
positions and one w ho was discharged – even though their CCTTE jobs, like M r.
Hinds’s, were eliminated in the RIF. Although he does not expand on this point,
as best we can tell M r. Hinds seems to be implying that the exclusion of these
employees from the spreadsheet was inconsistent with Sprint’s assertion that it
created the spreadsheet to identify employees in groups impacted by the RIF.
Again, however, no material inconsistency is apparent from the record
before us. Sprint employees uniformly testified that they created multiple
spreadsheets focused on different skill sets; M r. Hinds, for example, was included
on the spreadsheet listing employees involved in “infrastructure support,” as was
M r. Smith, the retained CCTTE employee who ultimately filled the open position
for w hich M r. Hinds w as considered. M r. Hinds has come forward with no facts
suggesting that the three CCTTE employees not found on the “infrastructure
support” spreadsheet could not be found on other spreadsheets appropriate to their
job functions, or that the “infrastructure support” spreadsheet was incomplete in
any other way. In fact, M r. Quirk testified that he was involved in completing
separate spreadsheets that did include each of the other CCTTE employees, and
M s. Fields testified that she verbally provided evaluations of all the CCTTE
- 26 -
employees while M r. Quirk and Jeff Lentz typed the information into the various
spreadsheets. 1 1
***
At the end of the day, Sprint’s proffered nondiscriminatory explanation of
its conduct – namely, that it terminated M r. Hinds because it eliminated his entire
group in the RIF and could find him no suitable replacement job elsewhere in the
company, but retained seven younger non-CCTTE employees in M r. Hinds’s same
pay grade because it did not eliminate their positions – is undermined by no
credible evidence of pretext. That is, even when viewed through the prism of our
summary judgment lens, M r. Hinds’s arguments about the candidate selection
spreadsheet simply do not cast sufficient doubt on Sprint’s explanation of its
conduct that a rational factfinder could conclude it unworthy of belief.
B
Turning to his ADEA retaliation claim, M r. Hinds alleges that Sprint
terminated his employment because he complained of age discrimination, in
violation of the ADEA’s prohibition on discriminating against an employee who
11
Even if one could somehow reasonably look at the “infrastructure
support” spreadsheet in isolation, the fact remains that the other discharged
CCTTE employee not listed on that particular spreadsheet was younger than M r.
Hinds and the two retained CCTTE employees not listed on that particular
spreadsheet were older than M r. Hinds; accordingly, their presence or absence on
that single spreadsheet does not suggest age discrimination.
- 27 -
“has opposed any practice made unlawful” by the statute. 29 U.S.C. § 623(d).
Because M r. Hinds admits he lacks direct evidence of retaliation, the M cDonnell
Douglas burden-shifting scheme again pertains. This time, however, our analysis
begins and ends at the first M cDonnell Douglas step because M r. Hinds fails to
establish a prima facie case of retaliation. 1 2 A prima facie case of retaliation
requires the plaintiff to show that (1) he or she engaged in protected opposition to
discrimination, (2) a reasonable employee would have considered the challenged
employment action materially adverse, and (3) a causal connection existed
12
Some may question whether we should pause to assess the existence of a
prima facie case when, at summary judgment, an employer puts forth a
nondiscriminatory reason for its adverse employment action. See, e.g., Wells v.
Colo. Dep’t of Transp., 325 F.3d 1205, 1225-26 (10th Cir. 2003) (Hartz, J.,
writing separately); Brady v. O ffice of the Sergeant at Arms, --- F.3d ---, 2008 W L
819989 (D.C. Cir. 2008). Although w e readily concede that the prima facie case
requirement may sometimes prove a sideshow to the main action of pretext, this
court has indicated that it reserves the right to undertake each step of the Supreme
Court’s M cDonnell Douglas framew ork in analyzing discrimination and
retaliation claims on summary judgment, and has not infrequently dismissed such
claims for failure to establish a prima facie case. See Hysten v. Burlington N. &
Santa Fe Ry. Co., 296 F.3d 1177, 1183 (10th Cir. 2002) (concluding that plaintiff
failed to make a prima facie case of retaliation); Kendrick v. Penske Transp.
Servs., Inc., 220 F.3d 1220, 1226 (10th Cir. 2000) (emphasizing that, although the
M cDonnell Douglas “sequential analytical model” drops out after a trial on the
merits, it applies on summary judgment). And, so long as M cDonnell Douglas
remains the law governing our summary judgment analysis, it seems to us that if
an employee fails to present even the limited quantum of evidence necessary to
raise a prima facie inference that his or her protected activity led to an adverse
employment action, it can become pointless to go through the motions of the
remainder of the M cDonnell Douglas framew ork to determine that unlawful
retaliation was not at play.
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betw een the protected activity and the materially adverse action. See Montes, 497
F.3d at 1176. Before us, only the first and third elements are in dispute; Sprint
does not, and could not, contest the intermediate question whether a reasonable
employee would find the termination of his or her employment to be materially
adverse.
1
W ith respect to the first element, M r. Hinds asserts that he engaged in five
instances of protected opposition to discrimination: (i) the June 2003 meeting
with M r. Joyce in human resources in w hich M r. Hinds complained about M r.
Roberson’s promotion to W FM manager and asked, among other things, “could
this have been age discrimination”; (ii) M r. Hinds’s June 2003 e-mail to Sprint’s
CEO, M r. Forsee, criticizing Sprint’s internal politics, new performance
evaluation system, and management philosophy, and commenting that he is older
than many of his managers; (iii) the November 2003 e-mail to M r. Joyce in which
M r. Hinds stated that his negative feedback about Sprint management had
triggered retaliation; (iv) the PowerPoint presentation, which M r. Hinds allegedly
sent to M r. Joyce and others in human resources and management in fall 2003;
and (v) the January 2004 e-mail to M r. Joyce, M r. Forsee, and M r. Kissinger, the
head of Sprint human resources, complaining about M r. Hinds’s “high
maintenance” performance review.
- 29 -
In response, Sprint argues that M r. Hinds did not engage in protected
opposition because his generalized employment complaints in the e-mails and
Pow erPoint did not complain of age discrimination or retaliation based on
previous complaints of age discrimination, and because his question to M r. Joyce
was not sufficiently detailed opposition to age discrimination to constitute
protected activity.
W e agree that the November 2003 and January 2004 e-mails (items iii and v
from M r. Hinds’s list above) are not examples of protected opposition. In the
November 2003 e-mail, M r. Hinds states that he feels retaliated against for giving
negative evaluations of managers. In the January 2004 e-mail, he indicates that
he is upset with the evaluation labeling him “high maintenance” for requiring
high-level management and human resources time critiquing Sprint management
paradigms and internal politics. Nowhere in either e-mail does M r. Hinds
mention or even allude to age or age discrimination. Indeed, at his deposition,
M r. Hinds himself admitted that his November 2003 e-mail did not reference age
discrimination or seek to complain about age discrimination. Although no magic
words are required, to qualify as protected opposition the employee must convey
to the employer his or her concern that the employer has engaged in a practice
- 30 -
made unlawful by the ADEA. 1 3 General complaints about company management
and one’s own negative performance evaluation will not suffice. 1 4
The remaining instances of alleged protected opposition – the June 2003
meeting with M r. Joyce, the June 2003 e-mail to M r. Forsee, and the PowerPoint
presentation (items i, ii, and iv from above) – each at least mentions age or
discrimination. W e need not resolve definitively whether these constituted
protected activities, however, because the retaliation claim based on them clearly
fails on the causal connection element.
2
To establish the requisite causal connection between his protected conduct
and termination, M r. Hinds must show that Sprint was motivated to terminate his
employment by a desire to retaliate for his protected activity. See Wells v. Colo.
Dep’t of Transp., 325 F.3d 1205, 1218 (10th Cir. 2003). As a prerequisite to this
13
Allen v. Denver Pub. Sch. Bd., 928 F.2d 978, 985 (10th Cir. 1991),
overruled on other grounds by Kendrick v. Penske Transp. Servs., Inc., 220 F.3d
1220, 1228 (10th Cir. 2000); see generally Anderson v. Acad. Sch. Dist. 20, 122
F. App’x 912, 916 (10th Cir. 2004) (“[A] vague reference to discrimination and
harassment without any indication that this misconduct was motivated by [age]
does not constitute protected activity and will not support a retaliation claim.”).
14
See, e.g., Coutu v. M artin County Bd. of County Com m’rs, 47 F.3d 1068,
1074 (11th Cir. 1995) (holding that employee’s grievance about performance
evaluation, which was not based on unlaw ful discrimination, did not constitute
statutorily protected activity); Ashkin v. Time Warner Cable Corp., 52 F.3d 140,
143-44 (7th Cir. 1995) (concluding that a complaint about management style,
which does not mention unlawful harassment or discrimination, is not protected
opposition).
- 31 -
showing, M r. Hinds must first come forward with evidence from which a
reasonable factfinder could conclude that those who decided to fire him had
knowledge of his protected activity. See Montes, 497 F.3d at 1176 (“To satisfy
[the causal connection] element, a plaintiff must show that the individual who
took adverse action against [him or her] knew of the employee’s protected
activity.” (quotation omitted)).
Regarding his Pow erPoint presentation (item iv), M r. Hinds has presented
no evidence that any decisionmaker at Sprint, or anyone aside from M r. Joyce in
human resources, received the presentation. To be sure, in his complaint to the
Equal Employment Opportunity Commission, M r. Hinds alleged that he sent the
Pow erPoint presentation to a number of Sprint managers and human resources
personnel on some unknown date. But we are now on summary judgment where
facts matter and M r. Hinds does not point to any facts in the record before us
supporting this allegation – no e-mail, no affidavit or deposition testimony by him
or others, no other form of competent evidence indicating that anyone besides M r.
Joyce saw the PowerPoint. Indeed, in his motion to reconsider, M r. Hinds
represented to the district court only that he sent the presentation to M r. Joyce in
November 2003. In turn, M r. Joyce’s (uncontested) testimony nowhere hints that
he shared the PowerPoint or even the fact of its existence with anyone else at
Sprint. This is significant because M r. Joyce is not alleged to have taken any part
- 32 -
in the decision to discharge M r. Hinds, and, even accepting as true the only
evidence M r. Hinds developed in and cited to the district court regarding the
dissemination of the PowerPoint presentation, no person involved in his
termination decision received or knew of it.
The only remaining allegedly protected activities are M r. Hinds’s June 2003
conversation with M r. Joyce and his June 2003 e-mail to M r. Forsee (items i and
ii). M r. Hinds argues that we should infer retaliatory motive from the timing of
his discharge in relation to these events. And, to be sure, we may infer retaliatory
motive from a close temporal proximity between an employee’s protected conduct
and an employer’s adverse employment action. Williams v. W.D. Sports, N.M .,
Inc., 497 F.3d 1079, 1091 (10th Cir. 2007). But unless the termination is very
close in time indeed to the protected activity, we have held that a plaintiff cannot
rely on temporal proximity alone and must come forward with additional evidence
to establish causation. Id.; see Anderson v. Coors Brewing Co., 181 F.3d 1171,
1179 (10th Cir. 1999). M ore specifically, we have held that a one-and-a-half-
month period may suffice to establish causation on a prima facie basis, but a
three-month period, standing alone, will not suffice. See Anderson, 181 F.3d at
1179.
Here, Sprint discharged M r. Hinds eleven months after his meeting with
M r. Joyce and e-mail to M r. Forsee, a time span too extended to infer retaliatory
- 33 -
motive under our precedent. M r. Hinds seeks to avoid this conclusion by
suggesting that he began experiencing adverse employment actions from his
protected activity when he received a negative review in September 2003, and that
similar adverse employment actions continued through his eventual termination.
In aid of this argument, he points to our decision in M arx v. Schnuck M kts., Inc.,
76 F.3d 324, 329 (10th Cir. 1996), in which we explained that a “pattern of
retaliatory conduct [that] begins soon after the [protected activity] and only
culminates later in actual discharge” may sometimes provide temporal proximity
sufficient to infer retaliatory motive and preclude summary judgment. The
difficulty with such an argument in this case is that over three months elapsed
between M r. Hinds’s June 2003 conversation with M r. Joyce and e-mail to M r.
Forsee and the September 2003 performance rating he cites as the first adverse
action in his alleged pattern of retaliation. And under our case law, a “three-
month period of time between [the] protected activity” and this first alleged
instance of retaliation is “insufficient to establish a causal connection” as a matter
of law. Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997); see
Piercy v. M aketa, 480 F.3d 1192, 1198 (10th Cir. 2007) (acknowledging that an
adverse employment action occurring three months after the protected activity
cannot, standing alone, demonstrate causation); Hysten v. Burlington N. & Santa
Fe Ry. Co., 296 F.3d 1177, 1183-84 (10th Cir. 2002) (concluding that a period of
- 34 -
“[a]lmost three months” between the protected activity and the alleged retaliatory
act does not permit an inference of causation). 1 5
* * *
As did the district court before us, we conclude that M r. Hinds has failed to
establish a triable question of pretext about the reasons for his discharge, and that
he has failed to present evidence from which a reasonable jury could infer a
retaliatory motive for his termination.
Affirmed.
15
Neither does M r. Hinds present us with any special circumstances or any
arguments concerning why this particular gap in time might be sufficient when it
otherw ise would not. See, e.g., Wells, 325 F.3d at 1216-17 (holding that,
although a five-month gap generally does not establish causation, because the
plaintiff w ent on leave two days after her complaint and suffered the adverse
action seven days after returning to work— five months after the complaint— a
jury could infer retaliation from the timing of the events). To be sure, seeking to
identify additional evidence of causation beyond temporal proximity, M r. Hinds
again points us to the candidate selection spreadsheet, repeating his three
arguments about its meaning. But, as we have already explained in the course of
examining M r. Hinds’s age discrimination claim, these arguments do not cast
doubt on Sprint’s proffered age-neutral reason for his termination, namely the
elimination of the CCTTE group in the RIF. See supra Part II.A.3. By necessity
it follows that they do not suggest a causal connection between M r. Hinds’s
complaint of age discrimination and his termination.
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