*1 Sonya HAAS, Appellant, SERVICES, INC., Appellee.
KELLY
No. 04-2381. Appeals,
United States Court of
Eighth Circuit.
Submitted: Jan. May
Filed:
nications between Schuster and man- agement that Haas believes indicated a plan to terminate her. Haas maintains that Schuster created tension associated with immediately almost City. Schuster’s transfer to Specifi- Kansas cally, cites a note Schuster wrote and Hanson, George argued, City, A. Kansas placed Haas’s file after Haas compli- (Rachel Schwartz, Missouri E. Kansas mented clothing. Schuster her The brief), City, appellant. Missouri on the for suggested note read that Haas Perkins, City, Kathy argued, Kansas go should to a sales call ... “in one of Missouri, for appellee. short [her] skirts.” Haas also accuses creating guidelines Schuster of new sales MELLOY, SMITH, Before applicable only In early January to Haas. COLLOTON, Judges. Circuit 2002, Schuster created a document entitled SMITH, Judge. Circuit activity “Sales Team and documentation (“the guidelines City” New claim Sonya Haas filed this —Kansas Guidelines”). According to the New she was crimination retaliation after approved by Kelly’s were not job with Guidelines terminated her Ser- vices, corporate office and the New (“Kelly”). appeals Inc. Haas now Guidelines only applied City to the In summary Kelly. Kansas office. judgment We addition, summary age- only employee subject to the judgment affirm as to the claim, Guidelines, summary New other than but reverse Schuster her- self, claim for retaliation. was Haas. Haas maintains was a manager sales the time the New Background I. created, Guidelines were but under the New Guidelines Haas was treated as began working in 1997. position key she held the lesser Initially, Kelly key Haas as a account hired manager. account The New Guidelines manager, promoted but over time her to Haas to have million $1 In position manager. of sales new revenue 2002. Haas characterized promoted manager, to branch goal as unrealistic. revenue management had and sales re- where she (“Wessel”) sponsibilities. Diann Wessel January eleven busi- manager assumed the duties of district days ness after the Guidelines took New City in or about 2001. Kansas district effect, Kelly’s human Schuster contacted (“Schuster”) Barbara Schuster was later department regarding placing resources City hired the Kansas office. performance improvement plan Haas on a prac- Schuster’s transfer had the (“PIP”). According Kelly’s policy, tical Haas. Prior demoting effect of PIP an un- purpose provide of a arrival, directly reported derperforming employee with a management all to Wessel and attended opportunity improve and continue em- meetings. committee Schuster assumed January ployment. On management previ- the branch office role manager, Lanway human Laura resources ously performed by Haas and became (“Lanway”), with two provided Schuster supervisor. Haas’s direct sample PIP template documents: a usually wording template. The PIP con-
In claim of discrimi- support of her nation, manager to sample tained a memo from Haas cites various written commu- retirement; performance my extremely I vest in it is employee explaining the counseling performance improve- important given and a to me that I be a fair (“Action Plan”). plan any ment action The opportunity perceived to correct important component Action Plan is an following I look forward to problems. *3 employee PIP process so a up you having with candid conver- plan of action is to knows “what the meet person. about these issues in sation standards, performance change behavior Kelly responded No one at to Haas’s mem- or achieve desired results.” However, up the PIP itself set orandum. 28, 2002, January On Wessel sent Schus- follow-up February a review date for following ter the e-mail Haas’s 2002. [Moskus, “Terry supervi- PIP: Wessel’s PIP, Because received the sor,] going [Lanway] is over to tell Laura bonus, eligible quarter for a fourth today. to call us before she leaves She Kelly’s “Employees bonus states: today. wants PIP [the delivered Haas] on counseling leave of absence or on as of help making necessary It will us in paid the date the is eligible bonus are not Haas, staffing reductions.” payment.” to receive that bonus Accord- Kelly’s policy this e-mail was at odds with Williams, ing to a customer Cari of providing allegedly underperforming employee years age, service under 30 im- employee genuine opportunity a received a bonus even she was prove and is evidence that Haas being was ineligible for a bonus because she was on Moreover, up set 'for termination. accord- maternity leave. January ing to 2002 PIP February On Haas wrote by drafted for Haas was not in Wessel, letter to which stated: compliance Kelly’s policies. I spent my have some time investigating PIP responded writing to the on legal rights, and have come to under- February In response, 2002. stand that is unlawful for to take raised her concerns of (1) against adverse action me because of and stated: (2) my age my to avoid retirement way which these issues [ T]he have vesting that occur upon my year will five raised, ‘spin’ you been and the unfair anniversary September I 2002. be- facts, put suspect lead me to may both of these motivations lieve I being ‘setup’ am for a termination. way being underlie the I am treated. wonder whether our difference Unfortunately, I morning was told this me, you causes to be uncomfortable with that Kelly Elsa Sanders has no em- and makes direct communication diffi handbook, ployee and that you. cult for You told me this was not a concerns are handled on a ‘case case ‘write-up’ but the last 6 paragraphs of basis.’ I do not know where to direct your memo look like were cut and my complaint, but copy have decided to pasted out of a Human Resources manu Lanway Ms. in Human Resources to al. You a ‘program’ ‘per reference my make sure concerns are taken seri- objectives’ formance nothing spec is ously. your At earliest convenience ified or laid If I being out detail. am please provide response in writing to put on ‘probation,’ some sort of I believe memo, both this I provided the one my years of experience and commitment February explana entitles me to á clear tion of going my employ Kelly’s managers what is on with human resources ad- ment. I have 7 months left mit memorandum contained a protected complaint direct and message received a from Schuster on her crimination. received com- Wessel answering home machine requesting that plaint Thursday, discrimination on she return to the office before p.m. 5:00 day the same she Because it already p.m. 5:00 complaint, received Haas’s sent Wessel the when Haas message, received the Haas did following e-mail to hu- director of office, not return to the district ñor did she resources, man Craig Boerman: “Since attempt to call the office. Haas does not [Lanway] traveling Laura I sent a fax account for period the two hour between copy you Sonya letter received from when she left the doctor’s office and when today. I’d like to schedule a confer- she listened to the message voice mail you ence call with and Barbara [Schuster] her home. *4 to next steps regarding discuss Son- [the] Kelly’s human representative, resources ya’s employment.” continued The discus- (“Verrier”), Elsa Verrier spoke with Wes- sion Haas’s continued employ- sel and February Schuster on 22. Wessel ment did not occur until day. the next and Schuster told that Haas had Verrier Haas was directed to meet with Schuster left the office leaving without contact infor- and on the Thursday, Wessel afternoon of mation and that Schuster and Wessel had February 2002. In that meeting, Wes- to contact Kelly’s age sel informed Haas of discrimi- her several tried times. The policy. nation parties dispute Wessel told Haas that timing the phone call 28th,” “things good did not look for the Haas, with According Verrier. to Wessel date she was to a follow-up meeting have and to failed inform Schuster Verrier Haas, According to discuss her PIP. to had, fact, Haas returned her manager’s meeting February after the on phone calls. Verrier instructed them to suggested that Haas quit. should first have a conversation Haas and reportedly Haas told Schuster that she determine whether a legitimate she had no of quitting. had intention leaving reason for ifOnly office. 22, 2002, February On reported to did not legitimate explanation have a for work, then left in order to make sales her give whereabouts would Verrier au- According calls. to she had a doc- thority to terminate Haas. appointment tor’s scheduled pan. for 1:00 Saturday, that afternoon and thus made sales calls stated, Lanway faxed a memo to for several hours before then. Haas re- part: just turned a call from Schuster here, Something very wrong is going p.m. 1:00 and Schuster informed Haas that help and I need guidance some message her doctor left a stating that the you, or else in someone the Human Re- doctor would not be available until later in First, [department. sources is obvi- the afternoon. Haas informed Schuster ous that Diann [Wessel] Barbara already office, that she was at the doctor’s using are the fact that I [Schuster] try stay and that she would to see an HR complaint made as a reason to
whether one of the practitioners nurse honestly I illegiti- fire me. believe that could see her. Haas’s visit with the doctor perform- mate reasons were behind the p.m. concluded around 3:00 Haas then ance memo Barbara sent me [Schuster] office, called the but neither Schuster nor January I being and now am Wessel answered. punished for trying raise these issues message explaining left a that she was not in my two recent memos. Even feeling well and would take the remainder of the afternoon off as sick time. Haas Elsa Sanders told me there [Verrier] court also held crimination. The district employees, and no manual for
was present a ‘case evi- are handled on that Haas’s failed because that situations basis, there must be some jury case’ could find that from which dence are protects employees who policy which pro- of her terminated because to the bring their concerns trying to termi- activity timing and the of her tected Finally, I management. attention of jury create a nation not sufficient to my about to reiterate concerns need law claims remaining state issue. my I raised earlier conversion, assault, battery, outrageous re- Although Diann [Wessel] memos. conduct, were privacy and invasion of re- being line peated company about Haas now seeks manded to state court. this was ‘equal opportunity employer,’ reversal service, I think she or just lip and don’t Kelly. understand what Barbara [Schuster] hoping that means. I know are II. Discussion up enough quit, I fed get grant review the or denial of sum if We actually asked me Barbara [Schuster] novo, applying the same mary judgment after the de that is what wanted to do ‘No,’ *5 may I meeting. I told her and the district court and standard as day make it clear from one that tried to grounds supported affirm on the record. through any problems Rosemount, I want to work City 104 Be chtold misunderstandings. hope you will be (8th Cir.1997). 1062, Summary 1068 F.3d able to become involved this situation appropriate where the record judgment before it is too late. any that no as to shows issue moving fact and that the material exists your opportu- Please contact me at first judgment as a matter party is entitled to nity. Dorsey of law. v. Pinnacle Automation 25, 2002, Monday, February Wessel (8th Cir.2002). Co., 830, A 278 F.3d 834 at and Schuster terminated Haas. No one may merely point unsup plaintiff her com- contacted self-serving allegations, but must ported ter- plaint age discrimination after her allegations substantiate her with sufficient immediately mination. permit evidence that would probative termination, Barbara her in her favor. v. Int’l Bus. finding Wilson duties; later, job her and assumed (8th 237, 241 Corp., Mach. 62 F.3d Cir. position Nooney, filled Michael was 1995). “Only disputes facts that over Williams, Jones, Cindy Peter might affect the outcome of the suit under younger were all Haas. governing properly preclude law will age Haas filed this discrimination action entry summary judgment.” Wells Age in Missouri state court under both the Fette, Leasing, LMT Fargo Fin. Inc. v. Employment Discrimination Act (8th Cir.2004) Inc., 852, 382 F.3d 856 (“ADEA”) Rights and the Missouri Human Inc., Liberty Lobby, (quoting Anderson v. Act. removed the action to the Unit- 242, 248, 2505, 91 477 U.S. 106 S.Ct. ed for the States District Court Western (1986)). However, re L.Ed.2d 202 “[w]e District of Missouri. The district court main mindful granted- summary judgment granted should seldom be the context of age on Haas’s claims of discrimina- actions, such actions are employment as tion and retaliation. The district court inherently Mayer fact based.” v. Nextel could held that Haas not come forward (8th 803, probative Corp., with sufficient of dis- 806 Cir. evidence West
1035
2003)
Corp., presumption of unlawful
(citing Keathley v. Ameritech
discrimination.1
Cir.1999)).
915,
Mayer,
F.3d
919
F.3d at
(citing
187
318
807
Kneibert v.
Mich., Inc.,
Newspapers,
Thomson
129
Age
A.
Discrimination Claim
(8th Cir.1997)).
F.3d
451-52
Conse-
employer
ADEA
prohibits
The
and,
quently, Kelly
was
accord-
terminating an
because of
court,
ing to the district
produce
did
evi-
29
employee’s
age.
U.S.C.
a legitimate, nondiscriminatory
dence of
623(a)(1).
presented
§
no direct evi
terminating
Mayer,
reason for
Haas.
discrimination,
dence of intentional
(citing
F.3d at 807
v. Sanderson
Reeves
rather based her claim on circumstan
Prods., Inc.,
Plumbing
530 U.S.
result,
apply
tial evidence. As
we
(2000)).
S.Ct.
L.Ed.2d 105
Douglas analytical framework.
McDonnell
produc-
Because
met its burden of
806-07;
Mayer, 318 F.3d at
see
tion,
presumption
of unlawful discrimi-
Green,
Corp. v.
Douglas
McDonnell
disappeared,
nation
and Haas had to show
802-04, 93
U.S.
S.Ct.
Kelly’s
pre-
reason for termination was a
(1973). The familiar McDon
L.Ed.2d 668
text
intentional
discrimination.
Douglas three-part burden-shifting
nell
Mayer,
facts demonstrate B. Retaliation Claim and Haas. Haas and tween Schuster clashed, appeals the district Haas’s evidence does but court’s on her grant not relate this tension to Haas’s claim of retaliation. A claim for retaliation age-based part discrimination on the discrimination, Schuster, anyone Kelly. upon age not Wessel or else is based taken argument, upon employer’s At oral counsel for Haas con instead an actions makes a claim punish ceded that evidence of dis prima belief that of discrimination. “To establish crimination was Haas’s “Evidence, retaliation, ... must against [Haas] discriminated her. facie case of participated protected show that she in a are issues of fact as to whether Haas was ... activity, [Kelly] took em- adverse given an opportunity explain why her, ployment against action and that- a failed to call or return to work. Wessel’s [causal] connection exists between the authority to fire Haas was two.” Hosp., Herrero v. St. Louis Univ. conditioned on Haas receiving such an op- (8th Cir.1997). 481, 109 F.3d Neither portunity. Finally, there is also evidence party disputes that complaints Haas’s stat- in the record that the decision fire Haas ing her possible age concerns about dis- occurred before she filed her claims of crimination protected constituted activities discrimination. Given these substantial employ- took an adverse disputes, factual we hold and ma- However, ment action against her. terial factual issues remain for a jury to parties disagree whether there is a causal Summary resolve. in favor of connection complaints between Haas’s of Kelly on the issue of retaliation was there- age discrimination and her termination. n improper. fore Missouri, Colder v. TCI Cablevision of Inc., (8th Cir.2002). 723, 298 F.3d III. Conclusion heavily upon relies the tem Summary judgment in favor of poral protected connection between her Haas’s discrimination claim is af- conduct and her termination. The timing Summary judgment firmed. in favor of not, of Haas’s termination alone does aas Kelly on Haas’s retaliation claim is re- law, matter of carry her burden. haveWe versed. The case is remanded to the dis- repeatedly that “[generally, stated more trict court for proceedings. further temporal connection ... present a genuine factual issue on retali COLLOTON, Judge, Circuit concurring ation ... recent cases have ... [and] made part and dissenting part. clear a ‘mere coincidence timing’ I agree that the correctly district court rarely can be sufficient to establish a sub granted summary judgment retaliatory missible case of discharge.” Services, Inc., Sonya as to Kipp v. Highway Missouri and Transp. alleging age claim discrimination. I also Comm’n, (8th Cir.2002); 280 F.3d believe the district court was correct to Sieben, see also Feltmann v. 108 F.3d grant summary judgment on Haas’s claim (8th Cir.1997); Nelson v. Penney J.C. alleging unlawful protected retaliation for Co., Inc., 75 F.3d 346-47 Cir. activity, and I would judg- thus affirm the 1996); Co., Cram v. Lamson and Sessions ment of the district court. (8th Cir.1995). However, the timing of the termination can rightly be close The court explains that the mere enough to establish causation temporal connection between Haas’s com- *8 facie case. County, Peterson v. Scott 406 plaint of age discrimination and her termi- (8th Cir.2005). F.3d 525 by Kelly nation Services is insufficient to a establish submissible case of unlawful Kelly contends it terminated Haas be- retaliation employer. general That insubordinately cause she acted by not re- particularly important rule is in a case like turning to work when so instructed which one, Kelly this where had identi- Services meeting. caused Haas to miss a Despite stance, underperforming fied Haas as an Kelly agrees employ- disputed that is ee, placed whether her on a Im- required telephone Haas was Performance or provement return to the office after Plan a step potential her doctor’s toward Moreover, appointment termination, concluded. essentially there before Haas creat- Cir.2000). no evidence The court identifies by making what temporal proximity ed the inference. support this additional claim of agrees court is a meritless temporal If rule on discrimination. factual material The second asserted otherwise, a sub- then were proximity op- an given Haas was dispute —whether verge termi- on the of employee, standard why she failed to call portunity explain could effec- poor performance, nation for from a similar return to work—suffers or discharge tively inhibit a well-deserved no evi- deficiency. produced Haas has com- merely by filing a discrimination Kelly testimony of dence to contradict the Co., Elec. v. Gen. plaint. Mesnick Cf. that acted on the supervisors Services Cir.1991). (1st F.2d returned that Haas should have belief holds The court nonetheless telephone calls at some their numerous claim of jury to a trial on her entitled the weekend Friday or over time factu- because of three unlawful retaliation or home calling supervisor’s phone a cell termination, concerning her disputes al to do as she had been instructed phone, was based on Kelly which Services asserts problem. previous communication after and insubordination. poor performance Kelly supervisors if the And even Services re- dispute first The company knowingly fail to follow —whether did to the office telephone or return quired pro- the court they terminated when on Febru- appointment after her doctor’s in to this contention re- vides the answer jury trial if the ary might warrant 22— comparable argument with jecting Haas’s Kelly Ser- before us was whether question claim of discrimination: respect to her by Haas established insubordination vices run “Kelly certainly ‘can choose how to its Kelly asserts February Services business,’ including not to follow its own a cell given phone that Haas had been of policies regarding termination personnel of a phone number and a home number handling claims of discrim- or to contact her supervisor and instructions ination, unlawfully as it does not long ‘as ” directly any requests time off doing so.’ Ante at 1036 discriminate arrivals, failure to do late and that Haas’s Corp., Nextel (quoting Mayer v. West receiving days for more than two so Cir.2003)). F.3d February messages Services on dispute— final material The asserted 22 constituted insubordination. that there is “evidence the record to return claims that she was occurred before the decision to fire Haas did not receive telephone calls because she she filed her claims discrimination”— p.m. on a Fri- messages until after claim. If support does not Haas’s question re- day. Even were this narrow had decided to terminate Haas Services the fact that she favor solved discrimina- complained could might reasonably have believed she tion, then decision to fire Haas obvi- returning telephone avoid calls over ously was not made in retaliation for prove weekend does not tend complaint later discrimina- retaliatory acted with a motive. Services tion. Proof that Haas’s termination was retaliation, Haas must prove To unlawful might demonstrate that she predetermined minimum not show at a really as a result of insubor- was not fired finding that Haas was Services erred it would not dination on *9 insubordinate, employees but that the a claim of retaliation. support unlawful really believe that terminated her did not evidence, scant other v. The record shows Scroggins Haas was insubordinate. Minn., temporal proximity between Univ. of complaint meritless termination, support prima America,
and her UNITED STATES Appellee, retaliatory facie case unlawful dis- court, charge. agree with the district moreover, that even the exis- assuming CLARK, Appellant. Alfred case, James
tence of a facie Haas has not presented evidence tends to establish No. 04-1882. that the employer’s stated reasons for ter- minating Haas were false pre- both and a United States of Appeals, Court illegal text for retaliation. As the district Eighth Circuit. rejecting court observed in alleged Submitted: Dec.
putes of material fact advanced response to motion summary judg- May Filed: ment:
Several of these matters have no bear-
ing creating a jury question on the animus, retaliatory and, fact,
issue
only relate to retaliation because Haas they
contends are related retaliation.
Compare Mayer v.
Corp.,
Nextel West
(“Evidence,
supra,
contentions, summary avoids judg-
ment.”). instance, For contends
that Wessel and retaliatory strong
motive was so could not
even wait until the scheduled PIP re-
view date of get rid of
Haas. While is true that Haas was prior
terminated to February suggests
evidence oc- termination
curred when it did because of Haas’
insubordination. There is no evidence suggest that the date of termination up” “moved illegal because of retali-
ation. reasons,
For these I would affirm the court, of the district and I re-
spectfully dissent from the court’s decision
to remand the case for proceed- further
ings.