SMITH, Circuit Judge.
Sonya Haas filed this claim for age discrimination and retaliation after she was terminated from her job with Kelly Services, Inc. ("Kelly"). Haas now appeals summary judgment in favor of Kelly. We affirm summary judgment as to the age-discrimination claim, but reverse summary judgment on the claim for retaliation.
Haas began working with Kelly in 1997. Initially, Kelly hired Haas as a key account manager, but over time promoted her to the position of sales manager. In 2001, Haas was promoted to branch manager, where she had management and sales responsibilities. Diann Wessel ("Wessel") assumed the duties of district manager of the Kansas City district in or about 2001. Barbara Schuster ("Schuster") was later hired in the Kansas City office. According to Haas, Schuster's transfer had the practical effect of demoting Haas. Prior to Schuster's arrival, Haas reported directly to Wessel and attended all management committee meetings. Schuster assumed the branch office management role previously performed by Haas and became Haas's direct supervisor.
In support of her claim of age discrimination, Haas cites various written communications between Schuster and Kelly management that Haas believes indicated a plan to terminate her. Haas maintains that Schuster created tension associated with Haas's age almost immediately after Schuster's transfer to Kansas City. Specifically, Haas cites a note Schuster wrote and placed in Haas's file after Haas complimented Schuster on her clothing. The note read that Haas suggested Schuster should go to a sales call "in one of ... [her] short skirts." Haas also accuses Schuster of creating new sales guidelines applicable only to Haas. In early January 2002, Schuster created a document entitled "Sales Team activity and documentation guidelines — Kansas City" ("the New Guidelines"). According to Haas, the New Guidelines were not approved by Kelly's corporate office and the New Guidelines only applied to the Kansas City office. In addition, the only employee subject to the New Guidelines, other than Schuster herself, was Haas. Haas maintains that she was a sales manager at the time the New Guidelines were created, but under the New Guidelines Haas was treated as though she held the lesser position of key account manager. The New Guidelines also required Haas to have $1 million in new revenue in 2002. Haas characterized this revenue goal as unrealistic.
On January 16, 2002, only eleven business days after the New Guidelines took effect, Schuster contacted Kelly's human resources department regarding placing Haas on a performance improvement plan ("PIP"). According to Kelly's policy, the purpose of a PIP was to provide an underperforming employee with a genuine opportunity to improve and continue employment. On January 18, 2002, Kelly's human resources manager, Laura Lanway ("Lanway"), provided Schuster with two documents: a PIP template and a sample wording template. The PIP usually contained a sample memo from manager to
On January 28, 2002, Wessel sent Schuster the following e-mail regarding Haas's PIP: "Terry [Moskus, Wessel's supervisor,] is going over to tell Laura [Lanway] to call us before she leaves today. She wants [the PIP delivered to Haas] today. It will help us in making the necessary staffing reductions." According to Haas, this e-mail was at odds with Kelly's policy of providing an allegedly underperforming employee a genuine opportunity to improve and is evidence that Haas was being set up for termination. Moreover, according to Haas, the January 28, 2002 PIP drafted by Schuster for Haas was not in compliance with Kelly's policies.
Haas responded in writing to the PIP on February 8, 2002. In that response, Haas raised her concerns of age discrimination and stated:
No one at Kelly responded to Haas's memorandum. However, the PIP itself set up a follow-up review date for February 28, 2002.
Because she received the PIP, Haas was not eligible for a fourth quarter bonus, as Kelly's bonus policy states: "Employees on leave of absence or on counseling as of the date the bonus is paid are not eligible to receive that bonus payment." According to Haas, Cari Williams, a customer service employee under 30 years of age, received a bonus even though she was ineligible for a bonus because she was on maternity leave.
On February 20, 2002, Haas wrote a letter to Wessel, which stated:
Kelly's human resources managers admit that this memorandum contained a
On February 22, 2002, Haas reported to work, but then left in order to make sales calls. According to Haas, she had a doctor's appointment scheduled for 1:00 p.m. that afternoon and thus made sales calls for several hours before then. Haas returned a call from Schuster just before 1:00 p.m. and Schuster informed Haas that her doctor left a message stating that the doctor would not be available until later in the afternoon. Haas informed Schuster that she was already at the doctor's office, and that she would try to stay to see whether one of the nurse practitioners could see her. Haas's visit with the doctor concluded around 3:00 p.m. Haas then called the office, but neither Schuster nor Wessel answered. According to Haas, she left a message explaining that she was not feeling well and would take the remainder of the afternoon off as sick time. Haas received a message from Schuster on her home answering machine requesting that she return to the office before 5:00 p.m. Because it was already after 5:00 p.m. when Haas received the message, Haas did not return to the district office, nor did she attempt to call the office. Haas does not account for the two hour period between when she left the doctor's office and when she listened to the voice mail message at her home.
Kelly's human resources representative, Elsa Verrier ("Verrier"), spoke with Wessel and Schuster on February 22. Wessel and Schuster told Verrier that Haas had left the office without leaving contact information and that Schuster and Wessel had tried to contact her several times. The parties dispute the timing of the phone call with Verrier. According to Haas, Wessel and Schuster failed to inform Verrier that Haas had, in fact, returned her manager's phone calls. Verrier instructed them to first have a conversation with Haas and determine whether she had a legitimate reason for leaving the office. Only if Haas did not have a legitimate explanation for her whereabouts would Verrier give authority to terminate Haas.
On Saturday, February 23, 2002, Haas faxed a memo to Lanway that stated, in part:
Please contact me at your first opportunity.
On Monday, February 25, 2002, Wessel and Schuster terminated Haas. No one at Kelly contacted Haas regarding her complaint of age discrimination after her termination. According to Haas, immediately after her termination, Barbara Schuster assumed her job duties; and later, Haas's position was filled by Michael Nooney, Cindy Williams, and Peter Jones, who were all younger than Haas.
Haas filed this age discrimination action in Missouri state court under both the Age Discrimination in Employment Act ("ADEA") and the Missouri Human Rights Act. Kelly removed the action to the United States District Court for the Western District of Missouri. The district court granted summary judgment in favor of Kelly on Haas's claims of age discrimination and retaliation. The district court held that Haas could not come forward with sufficient probative evidence of discrimination. The district court also held that Haas's failed because to present evidence from which a jury could find that Haas was terminated because of her protected activity and the timing of her termination was not sufficient to create a jury issue. Haas's remaining state law claims for assault, battery, conversion, outrageous conduct, and invasion of privacy were remanded to state court. Haas now seeks reversal of summary judgment in favor of Kelly.
We review the grant or denial of summary judgment de novo, applying the same standard as the district court and may affirm on grounds supported by the record. Bechtold v. City of Rosemount, 104 F.3d 1062, 1068 (8th Cir.1997). Summary judgment is appropriate where the record shows that no genuine issue as to any material fact exists and that the moving party is entitled to judgment as a matter of law. Dorsey v. Pinnacle Automation Co., 278 F.3d 830, 834 (8th Cir.2002). A plaintiff may not merely point to unsupported self-serving allegations, but must substantiate her allegations with sufficient probative evidence that would permit a finding in her favor. Wilson v. Int'l Bus. Mach. Corp., 62 F.3d 237, 241 (8th Cir.1995). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Wells Fargo Fin. Leasing, Inc. v. LMT Fette, Inc., 382 F.3d 852, 856 (8th Cir.2004) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). However, "[w]e remain mindful that summary judgment should seldom be granted in the context of employment actions, as such actions are inherently fact based." Mayer v. Nextel West Corp., 318 F.3d 803, 806 (8th Cir.
A. Age Discrimination Claim
The ADEA prohibits an employer from terminating an employee because of the employee's age. 29 U.S.C. § 623(a)(1). Haas presented no direct evidence of intentional age discrimination, but rather based her claim on circumstantial evidence. As a result, we apply the McDonnell Douglas analytical framework. Mayer, 318 F.3d at 806-07; see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The familiar McDonnell Douglas three-part burden-shifting framework requires that Haas establish a prima facie case of age discrimination. Specifically, Haas must show that: (1) she was at least 40 years old, (2) she was terminated, (3) she was meeting Kelly's reasonable expectations at the time of her termination, and (4) she was replaced by someone substantially younger. See Mayer, 318 F.3d at 807 (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817).
The district court found Haas stated a prima facie case thus creating a rebuttable presumption of unlawful discrimination.
At this stage, Haas "can avoid summary judgment only if the evidence considered in its entirety (1) created a fact issue as to whether Kelly's proffered reasons are pretextual and (2) created a reasonable inference that age was a determinative factor in the adverse employment decision." Rothmeier v. Inv. Advisers, Inc., 85 F.3d 1328, 1336-37 (8th Cir.1996) (emphasis added). The "sole remaining issue [is] discrimination vel non." Reeves, 530
The district court ruled that Kelly articulated a legitimate, nondiscriminatory reason for terminating Haas and that Haas could not show the reason was pretextual for a true intent to discriminate on the basis of age. We agree with the district court that Haas has not created a factual dispute that Kelly based her termination upon a prohibited motive of age discrimination.
Haas has attempted to prove her age discrimination case by weaving an intricate factual web. To show discrimination, Haas focused on a note written and put into Haas's file by Schuster. The note made reference to a conversation between Haas and Schuster, whereby Haas suggested that Schuster go to a sales call "in one of ... [her] short skirts." Haas also argues that Schuster failed to treat Haas in a manner consistent with Haas's title and failed to pay her a bonus because she was on a PIP, while another younger employee who was on maternity leave was paid a bonus. According to Haas, these facts demonstrate age-related tension between Schuster and Haas. Haas and Schuster clashed, but Haas's evidence does not relate this tension to Haas's age or to age-based discrimination on the part of Schuster, Wessel or anyone else at Kelly. At oral argument, counsel for Haas conceded that the only evidence of age discrimination was Haas's belief that Kelly discriminated against her. "Evidence, not contentions, avoids summary judgment." Mayer, 318 F.3d at 809.
In addition to Schuster's note, Haas points to Kelly's failure to provide Haas with a Performance Action Plan after she received the PIP, failure to properly discuss the events leading to Haas's act of insubordination before terminating her on February 25, 2002, failure to discuss or investigate Haas's claims of age discrimination, and failure to inform Kelly's human resources department of Haas's claims of discrimination before terminating Haas. Haas maintains that these failures to follow company policy further support her claim that Kelly's reasons for terminating Haas were illegitimate and that Haas's firing was not routine, but in fact intentional age discrimination. We do not "sit as a super-personnel department ... [and] second-guess  ... business decisions." Mayer, 318 F.3d at 810. Kelly "can certainly choose how to run its business," including not to follow its own personnel policies regarding termination of an employee or handling claims of discrimination, "as long as it does not unlawfully discriminate in doing so." Id. There is no evidence creating a reasonable inference that age was a determinative factor in Haas's termination. The fact that Kelly may have failed to follow human resources policy does not create such an inference. We affirm the district court's summary judgment order on Haas's age-discrimination claim.
B. Retaliation Claim
Haas also appeals the district court's grant of summary judgment on her claim of retaliation. A claim for retaliation is not based upon age discrimination, but instead upon an employer's actions taken to punish an employee who makes a claim of discrimination. "To establish a prima facie case of retaliation, ... [Haas] must
Haas relies heavily upon the temporal connection between her protected conduct and her termination. The timing of Haas's termination alone does not, as a matter of law, carry her burden. We have repeatedly stated that "[g]enerally, more than a temporal connection ... is required to present a genuine factual issue on retaliation ... [and] recent cases have ... made clear that a `mere coincidence of timing' can rarely be sufficient to establish a submissible case of retaliatory discharge." Kipp v. Missouri Highway and Transp. Comm'n, 280 F.3d 893, 897 (8th Cir.2002); see also Feltmann v. Sieben, 108 F.3d 970, 977 (8th Cir.1997); Nelson v. J.C. Penney Co., Inc., 75 F.3d 343, 346-47 (8th Cir.1996); Cram v. Lamson and Sessions Co., 49 F.3d 466, 474 (8th Cir.1995). However, the timing of the termination can be close enough to establish causation in a prima facie case. Peterson v. Scott County, 406 F.3d 515, 525 (8th Cir.2005).
Kelly contends it terminated Haas because she acted insubordinately by not returning to work when so instructed which caused Haas to miss a meeting. Despite this stance, Kelly agrees that it is disputed whether Haas was required to telephone or return to the office after her doctor's appointment concluded. Moreover, there are issues of fact as to whether Haas was given an opportunity to explain why she failed to call or return to work. Wessel's and Schuster's authority to fire Haas was conditioned on Haas receiving such an opportunity. Finally, there is also evidence in the record that the decision to fire Haas occurred before she filed her claims of discrimination. Given these substantial factual disputes, we hold genuine and material factual issues remain for a jury to resolve. Summary judgment in favor of Kelly on the issue of retaliation was therefore improper.
Summary judgment in favor of Kelly on Haas's age discrimination claim is affirmed. Summary judgment in favor of Kelly on Haas's retaliation claim is reversed. The case is remanded to the district court for further proceedings.
COLLOTON, Circuit Judge, concurring in part and dissenting in part.
I agree that the district court correctly granted summary judgment in favor of Kelly Services, Inc., as to Sonya Haas's claim alleging age discrimination. I also believe the district court was correct to grant summary judgment on Haas's claim alleging unlawful retaliation for protected activity, and I would thus affirm the judgment of the district court.
The court rightly explains that the mere temporal connection between Haas's complaint of age discrimination and her termination by Kelly Services is insufficient to establish a submissible case of unlawful retaliation by the employer. That general rule is particularly important in a case like this one, where Kelly Services had identified Haas as an underperforming employee, and placed her on a Performance Improvement Plan as a step toward potential termination, before Haas essentially created
The court nonetheless holds that Haas is entitled to a jury trial on her claim of unlawful retaliation because of three factual disputes concerning her termination, which Kelly Services asserts was based on poor performance and insubordination. The first dispute — whether Haas was required to telephone or return to the office after her doctor's appointment on February 22 — might warrant a jury trial if the question before us was whether Kelly Services established insubordination by Haas on February 22. Kelly Services asserts that Haas had been given a cell phone number and a home phone number of a supervisor and instructions to contact her directly regarding any time off requests or late arrivals, and that Haas's failure to do so for more than two days after receiving messages from Kelly Services on February 22 constituted insubordination. Haas claims that she was not required to return telephone calls because she did not receive the messages until after 5 p.m. on a Friday. Even were this narrow question resolved in favor of Haas, the fact that she might reasonably have believed she could avoid returning telephone calls over a weekend does not tend to prove that Kelly Services acted with a retaliatory motive. To prove unlawful retaliation, Haas must show at a minimum not only that Kelly Services erred in finding that Haas was insubordinate, but that the employees who terminated her did not really believe that Haas was insubordinate. Scroggins v. Univ. of Minn., 221 F.3d 1042, 1045 (8th Cir.2000). The court identifies no evidence to support this additional inference.
The second asserted material factual dispute — whether Haas was given an opportunity to explain why she failed to call or return to work — suffers from a similar deficiency. Haas has produced no evidence to contradict the testimony of Kelly Services supervisors that they acted on the belief that Haas should have returned their numerous telephone calls at some time on Friday or over the weekend by calling a supervisor's cell phone or home phone, as she had been instructed to do after a previous communication problem. And even if the Kelly Services supervisors did knowingly fail to follow company policy when they terminated Haas, the court provides the answer to this contention in rejecting Haas's comparable argument with respect to her claim of age discrimination: "Kelly `can certainly choose how to run its business,' including not to follow its own personnel policies regarding termination of an employee or handling claims of discrimination, `as long as it does not unlawfully discriminate in doing so.'" Ante at 1036 (quoting Mayer v. Nextel West Corp., 318 F.3d 803, 810 (8th Cir.2003)).
The final asserted material dispute — that there is "evidence in the record that the decision to fire Haas occurred before she filed her claims of discrimination" — does not support Haas's claim. If Kelly Services had decided to terminate Haas before Haas complained of age discrimination, then the decision to fire Haas obviously was not made in retaliation for Haas's later complaint of age discrimination. Proof that Haas's termination was predetermined might demonstrate that she was not really fired as a result of insubordination on February 22, but it would not support a claim of unlawful retaliation.
The record shows scant evidence, other than temporal proximity between Haas's
For these reasons, I would affirm the judgment of the district court, and I respectfully dissent from the court's decision to remand the case for further proceedings.
Kelly also argues that the district court erred in failing to rule in its favor on the issue of whether Haas was replaced by someone substantially younger. Again, there are genuine issues of material fact on this issue. For example, Haas argues that she was replaced by Michael Nooney, Cindy Williams, and Peter Jones, who were all substantially younger than her. Kelly, on the other hand, argues that Schuster, who is younger than Haas, and Wessel, who is the same age as Haas, performed her duties before anyone else was hired. The district court did not err in denying summary judgment in Kelly's favor on this issue.