523 F.3d 1187 (10th Cir. 2008), 07-3027, Hinds v. Sprint/United Mgt. Co.

Docket Nº:07-3027.
Citation:523 F.3d 1187
Party Name:Albert HINDS, Plaintiff-Appellant, v. SPRINT/UNITED MANAGEMENT COMPANY and Sprint Corporation, Defendants-Appellees.
Case Date:April 22, 2008
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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523 F.3d 1187 (10th Cir. 2008)

Albert HINDS, Plaintiff-Appellant,


SPRINT/UNITED MANAGEMENT COMPANY and Sprint Corporation, Defendants-Appellees.

No. 07-3027.

United States Court of Appeals, Tenth Circuit.

April 22, 2008

Appeal from the United States District Court for the District of Kansas D.C. No. 05-CV-2362-KHV.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Dennis E. Egan of The Popham Law Firm, P.C., Kansas City, Missouri, for Plaintiff-Appellant.

Joseph H. Knittig (Paul D. Seyferth with him on the brief) of Seyferth Knittig & Blumenthal, LLC, Kansas City, Missouri, for Defendants-Appellees.

Before McCONNELL, BALDOCK, and GORSUCH, Circuit Judges.

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GORSUCH, Circuit Judge.

Sprint/United Management Company and Sprint Corporation (collectively, "Sprint") discharged Albert Hinds as part of a reduction in force in which his entire department was eliminated. Mr. 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 Mr. 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.


While this case centers on Mr. 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 Mr. Hinds's relationship with Sprint.


Mr. 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 Mr. 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, Mr. Hinds accepted a position as a project manager on Sprint's newly-created Workforce Management Team ("WFM"), a position with a Sprint pay grade of 77, and, several months later, in May 2002, Sprint promoted Mr. Hinds to a project manager position with a higher pay grade of 78. As a project manager in the WFM group, Mr. Hinds bore responsibility for the operation of several Sprint call centers.1

Sometime after this latest promotion, things began to change for Mr. Hinds. Ted Smith, Mr. Hinds's immediate supervisor in the WFM group, became concerned that, while very competent technically, Mr. Hinds had developed certain communication problems in dealing with his peers, customers, and supervisors. Mr. Smith also believed Mr. Hinds was not adapting to the process of negotiating with the call centers for which he was responsible. In mid-2002, Mr. Smith provided Mr. Hinds with a performance evaluation that reflected these concerns, giving Mr. Hinds the next-to-lowest performance rating in ten different areas of assessment. In response, Mr. Hinds acknowledged he had communication challenges with his peers and supervisor.

A few months later, David Roberson, who also worked in the WFM group, replaced Mr. Smith as Mr. Hinds's supervisor. Mr. Roberson had been hired into the WFM group at its inception as a level 78 employee, a level above Mr. Hinds at the time, but a level below his own prior job elsewhere in Sprint. At the time he replaced Mr. Smith, Mr. Roberson was 42 years old, compared to Mr. Hinds's 48, though he had worked for Sprint a year longer than Mr. Hinds. Shortly after his promotion within WFM, Mr. Roberson and Krystal Barr, the director with responsibility for WFM, began receiving complaints from several of Mr. 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

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management without first trying to work with his peers and follow Sprint's chain of authority. Jim Curran, a Sprint vice president to whom Mr. Hinds would directly bring low-level problems, told Ms. Barr to make sure Mr. Hinds shared his ideas and criticism with his peers first and worked through issues with them constructively as a team when possible. Although Ms. Barr communicated this to Mr. 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. Order 12/12/06 at 8.


In May 2003, Mr. Hinds wrote an e-mail to Rich Joyce in human resources complaining about Mr. Roberson's appointment to the WFM supervisory position, and noting that he had more WFM experience than Mr. Roberson, as well as an advanced business degree. In June 2003, Mr. Hinds followed up by meeting personally with Mr. Joyce and asking Mr. Joyce, among other things, "could this have been age discrimination?" Aplt. App. at 136.

The next day, Mr. 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. Mr. Hinds later testified at his deposition that the purpose of this message was not to complain of age discrimination but to make Mr. Forsee aware of "the challenges that [he] had and that others were 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 were assigned an overall rating in addition to ratings in particular categories, as had previously been the case.2 Many employees, including Mr. Hinds, apparently were not pleased with the new performance evaluation system.

In September 2003, Mr. Roberson prepared a scheduled performance evaluation for Mr. Hinds in which he rated Mr. Hinds below average in several categories and assigned him an overall rating of "less effective," the lowest possible rating. Mr. Roberson described Mr. Hinds as "high maintenance," requiring considerable high-level management and human resources time and attention on issues Mr. Hinds was expected to handle with his call centers and peers without such assistance. Aplt. App. at 328.


Toward the end of 2003, Sprint underwent a company-wide reorganization in which some employees in WFM 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. Marian Fields was the CCTTE manager and Joe Modica was the director responsible for the group. Ms. Barr recommended Mr. Hinds to Mr. Modica because she believed a strategic planning position would suit his technical strengths and play away from his perceived interpersonal skill weaknesses. Mr. Hinds accepted the position in CCTTE, a

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pay grade 77 position, one pay grade below his prior WFM post. Four other employees also joined CCTTE, all at pay grade 77; three were older and one younger than Mr. Hinds.

Around this same time in November 2003, Mr. Hinds sent another e-mail to Mr. Joyce in human relations. This time, Mr. Hinds asserted that his complaints about Sprint management, including the promotion of Mr. 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. Mr. Hinds alleges he also sent a Power Point 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 Mr. Hinds believed Mr. 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 went on to state that Mr. Hinds also believed he was "downgraded a band level and moved out of WFM vs. being promoted to the WFM senior manager position [as] an act of retaliation." Id.

In January 2004, Mr. Hinds again e-mailed Mr. Joyce in human relations, this time with a copy to Mr. Forsee and James Kissinger, the head of human relations for the entire company. In this e-mail, Mr. Hinds complained about Mr. Roberson's performance review deeming him "high maintenance" for consuming high-level management and human resources time. In response, Mr. Kissinger wrote Mr. Joyce to say he remembered "frequent escalated e-mails from [Mr. 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 uncommon for him - -and not necessarily appropriate." Id. In a follow-up e-mail to Mr. Joyce, Mr. Kissinger relayed a similar experience with another employee who had escalation problems, was put on warning, and was ultimately fired.


In May 2004, Sprint undertook another reorganization and RIF. This time, the CCTTE group was eliminated. In connection with the RIF, various managers, including Mr. Modica, held a full-day meeting to determine, among other things, whether alternative employment...

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