Haas v. Kelly Services, Inc.

• Citation: 409 F.3d 1030
• Decision Date: 26 May 2005
• Docket Number: No. 04-2381.,04-2381.
• Parties: Sonya HAAS, Appellant, v. KELLY SERVICES, INC., Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1030

409 F.3d 1030

Sonya HAAS, Appellant, v. KELLY SERVICES, INC., Appellee.

No. 04-2381.

United States Court of Appeals, Eighth Circuit.

Submitted: January 11, 2005.

Filed: May 26, 2005.

George A. Hanson, argued, Kansas City, Missouri (Rachel E. Schwartz, Kansas City, Missouri on the brief), for appellant.

Kathy Perkins, argued, Kansas City, Missouri, for appellee.

Before MELLOY, SMITH, and COLLOTON, Circuit Judges.

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.

I. Background

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 employee explaining the performance counseling and a performance improvement action plan ("Action Plan"). The Action Plan is an important component of the PIP process so that the employee knows "what the plan of action is to meet performance standards, change behavior or achieve desired results."

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:

[T]he way in which these issues have been raised, and the unfair `spin' you have put on the facts, lead me to suspect I am being `setup' for a termination. I wonder whether our age difference causes you to be uncomfortable with me, and makes direct communication difficult for you. You told me this was not a `write-up' but the last 6 paragraphs of your memo look like they were cut and pasted out of a Human Resources manual. You reference a `program' and `performance objectives' but nothing is specified or laid out in detail. If I am being put on some sort of `probation,' I believe my years of experience and commitment to Kelly entitles me to a clear explanation of what is going on with my employment. I have only 7 months left before I vest in my retirement; it is extremely important to me that I be given a fair opportunity to correct any perceived problems. I look forward to following up with you and having a candid conversation about these issues in person.

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:

I have spent some time investigating my legal rights, and have come to understand that it is unlawful for Kelly to take adverse action against me because of (1) my age or (2) to avoid my retirement vesting that will occur upon my five year anniversary in September 2002. I believe that both of these motivations may underlie the way I am being treated. Unfortunately, I was told this morning by Elsa Sanders that Kelly has no employee handbook, and that employee concerns are handled on a `case by case basis.' I do not know where to direct my complaint, but have decided to copy Ms. Lanway in Human Resources to make sure my concerns are taken seriously. At your earliest convenience please provide a response in writing to both this memo, and the one I provided on February 8.

Kelly's human resources managers admit that this memorandum contained a direct and protected complaint of age discrimination. Wessel received Haas's complaint of age discrimination on Thursday, February 21, 2002. On the same day she received Haas's complaint, Wessel sent the following e-mail to Kelly's director of human resources, Craig Boerman: "Since Laura [Lanway] is traveling I sent a fax copy to you of a letter received from Sonya Haas today. I'd like to schedule a conference call with you and Barbara [Schuster] to discuss [the] next steps regarding Sonya's continued employment." The discussion regarding Haas's continued employment did not occur until the next day. Haas was directed to meet with Schuster and Wessel on the afternoon of Thursday, February 21, 2002. In that meeting, Wessel informed Haas of Kelly's age discrimination policy. Wessel also told Haas that "things did not look good for the 28th," the date she was to have a follow-up meeting to discuss her PIP. According to Haas, after the meeting on February 21, 2002, Schuster suggested that Haas should quit. Haas reportedly told Schuster that she had no intention of quitting.

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...