Garrett v. Hewlett Packard Co.

• Decision Date: 25 September 2002
• Docket Number: No. 01-1022.,01-1022.
• Citation: 305 F.3d 1210
• Parties: Terry N. GARRETT, Plaintiff-Appellant, v. HEWLETT-PACKARD COMPANY, a California company authorized to do business in the State of Colorado, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

305 F.3d 1210

Terry N. GARRETT, Plaintiff-Appellant, v. HEWLETT-PACKARD COMPANY, a California company authorized to do business in the State of Colorado, Defendant-Appellee.

No. 01-1022.

United States Court of Appeals, Tenth Circuit.

September 25, 2002.

COPYRIGHT MATERIAL OMITTED

John W. Davis, Washington, DC, for Plaintiff-Appellant.

Jessica Lee (Dennis A. Gladwell with her on the brief) of Gibson, Dunn & Crutcher LLP, Denver, CO, for Defendant-Appellee.

Before SEYMOUR, McWILLIAMS and GIBSON,^* Circuit Judges.

SEYMOUR, Circuit Judge.

Plaintiff Terry Garrett brought the present action against his former employer, Hewlett-Packard (HP), alleging race and age discrimination in violation of Title VII, 42 U.S.C. §§ 2000e et seq., and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq. Hewlett-Packard filed a motion seeking summary judgment on all claims. The district court granted the motion except as to Mr. Garrett's claim that the company failed to raise his pay for discriminatory reasons, which the parties subsequently settled. Mr. Garrett appeals, asserting the district court erred in granting summary judgment on his claims relating to disparate treatment, retaliation, and constructive discharge. For the reasons set out below, we reverse in part and affirm in part.

I

In setting forth the facts, we view the evidence in the light most favorable to the non-moving party, as we must when reviewing a grant of summary judgment. See Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1359 (10th Cir.1997) (citing Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir.1996)). We include in our consideration information set out in the nonmovant's affidavit if that information is "based on personal knowledge and set[s] forth facts that would be admissible in evidence." Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir.1995). We do not consider "conclusory and self-serving affidavits." Id.

Terry Garrett is an African-American man who was over forty years of age when he left HP. He joined HP in 1972 as a computer engineer.¹ After working for a few years at the company's California facilities, Mr. Garrett transferred to HP's Loveland, Colorado plant. Throughout his tenure at HP, Mr. Garrett's performance was evaluated regularly by his supervisors. These evaluations were quite consistent in their substantive contents. Supervisors described Mr. Garrett as possessing strengths in the technical arena, a fast learner, and a hard-working, dedicated and dependable employee. Evaluators consistently praised his ease at acquiring new knowledge and adopting new skill sets. He was described as a team player who balanced technical and social interactions well. He moved between production and development teams easily, as he did between research and customer interactions. By all accounts, Mr. Garrett's contributions to his projects and the corporation were highly valued.

Evaluations were similarly consistent in their critiques of Mr. Garrett's performance. From the commencement of his tenure, Mr. Garrett displayed a tendency to overanalyze problems. His modus operandi appears to have involved checking all possible avenues for a problem prior to settling on a solution and moving on. Supervisors commented that Mr. Garrett needed to set job priorities for more efficient use of time, and that he overplanned.

Supervisors tended to recognize that the qualities critiqued were both a strength and a weakness. Mr. Garrett's exhaustive approach made his work more reliable, but results were slower in coming. Mr. Garrett's 1989 evaluation offers an example of this. The evaluator praised Mr. Garrett in the "Quality" category, commenting, "Terry is very thorough and strives for this in everything he does." Aplt.App., vol. 1 at 118. In the "Productivity" category, however, the evaluator commented, "Sometimes Terry's thoroughness and the miscommunication of objectives ... can hurt Terry's productivity." Id. at 119. Despite such critiques, Mr. Garrett's reviews were quite positive. From 1983, when HP's evaluation forms began including rank, until 1985, Mr. Garrett was ranked as "good."² From 1986 until 1990 his rank was "very good."

Beginning in 1990, however, Mr. Garrett's evaluations were increasingly negative. At his April 1990 evaluation, Mr. Garrett was ranked as "very good." Id. at 134. Six months later, his ranking dropped from "very good" to "good" and he was transferred to a different project. Id. at 138. According to the transfer evaluation, the change in rank was a result of the fact that Mr. Garrett had not accomplished as much as expected in the project to which he had been assigned. The evaluation also cited the "increasing talent" of new people in the organization as a reason for his demoted rank. Id. While an employee's skills might not always fit the needs of a particular project, and changes in the makeup of the engineering staff could make Mr. Garrett's ranking in relation to his co-workers drop, the evaluation's negative tone is new. Specifically, the memorandum suggests that Mr. Garrett "look at other possible career paths where he can take advantage of his skills." Id. His supervisor offered no explanation as to why managers believed Mr. Garrett should consider leaving a field in which he had performed well for nearly two decades.

On April 9, 1990, employees at the Loveland site formed, with HP's endorsement, a "grassroots" group called Resource Awareness Development and Diversity (RADD), an internal diversity program aimed at promoting the hiring of people of color and fostering relationships with minority firms. Mr. Garrett took "a `pioneering' role" in the group, according to one HP manager. Id. at 164. He was very active in the formation of the group and "contributed greatly to its purpose and direction." Id. at 165. He regularly and repeatedly encouraged supervisors to attend RADD meetings, although it appears none of his supervisors ever did so. Mr. Garrett's active involvement in RADD continued throughout the period at issue in this suit until he resigned from HP in 1994.

The period following Mr. Garrett's engagement in diversity actions at HP coincides with the distinct change in management attitudes towards Mr. Garrett. Mr. Garrett claims that following the creation of RADD, his supervisors became increasingly critical of his work, as his evaluations reflect. He confronted his supervisor, John Bidwell, about what he considered unequal treatment. When attempts to solve the problem appeared to be fruitless, Mr. Garrett took his complaints to higherups.

In September 1990, Mr. Garrett met with division managers seeking a transfer away from Mr. Bidwell's supervision. No such transfer was made at that time. As mentioned above, the following month Mr. Garrett's ranking was downgraded and he was transferred to a new project within the company. Evaluations from his new supervisor, Chuck Heller, continued to exhibit a negative tone in marked contrast to those in Mr. Garrett's preceding two decades with HP. In April 1991, Mr. Heller criticized Mr. Garrett's failure to acclimate himself to the new project quickly enough his attitude in facing problems, and his speed at writing code. However, Mr. Heller had apparently done little to introduce Mr. Garrett to, or train him for, the new project. Mr. Garrett described Mr. Heller's attitude during evaluations as "one of arrogance, one of trying to intimidate." Id. at 240. Mr. Heller was, according to Mr. Garrett, hyper-critical of Mr. Garrett's work. Despite the difficult relationship, Mr. Garrett continued to encourage Mr. Heller to participate in RADD-organized diversity activities.

In 1992, Mr. Garrett's ranking was lowered once more, this time to "action needed" status. Mr. Garrett's drop in status coincided with his participation in the first ever African-American celebration at the Loveland site, an event he worked very hard to have management attend. Although his rank was downgraded in February, Mr. Garrett was not informed of his drop in ranking until the 1992 review, which was prepared in late April and signed in June. When he requested an explanation of the change in status, Mr. Heller allegedly offered no more than that Mr. Garrett "fell through the cracks." Aplt.App., vol. 2 at 299. Following that review, Mr. Garrett sought assistance from Division Manager George Sparks. Mr. Sparks took no action until August 1992, when he transferred Mr. Garrett to yet another project under the supervision of Calvin Erickson.

Mr. Garrett's relationship with Mr. Erickson showed improvement over those with his two previous supervisors. Again, however, Mr. Erickson offered Mr. Garrett little guidance or supervision. More importantly, Mr. Garrett remained in "action needed" status. In May 1993, Mr. Garrett took his concerns to the Loveland Personnel Manager, Shari Vines, as well as to Larry DesJardin, a supervisor of Mr. Erickson. Mr. Garrett communicated his frustration at being left in "action needed" status, the failure of management to evaluate his performance fairly, and the need for a more supportive environment for minority employees.

In June 1993, nearly a year after the transfer, Mr. Erickson evaluated Mr. Garrett. The evaluation abandoned the harsh tone used by supervisors since 1990 and raised Mr. Garrett's rank back to "band 2" (equivalent to "good"). Id., vol. 1 at 177. All told, Mr. Garrett spent 15 months in "action needed" status, three months longer than HP policy allows. Id., vol. 2 at 300.

Mr. Garrett continued to face obstacles in his work, however. Mr. Garrett's requests for a computer with greater capacity and other work equipment similar to those provided to other engineers were refused. He often did not have access to materials necessary for completing projects rapidly and his performance suffered as a result. Throughout this period, Mr. Garrett's activities on behalf of RADD continued. In September 1993, when Mr. Garrett spoke with Mr....