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 creat*1038ed the temporal proximity by making what the court agrees is a meritless claim of age discrimination. If the rule on temporal proximity were otherwise, then a substandard employee, on the verge of termination for poor performance, could effectively inhibit a well-deserved discharge merely by filing a discrimination complaint. Cf. Mesnick v. Gen. Elec. Co., 950 F.2d 816, 828 (1st Cir.1991).
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 *1039meritless complaint of age discrimination and her termination, to support a prima facie case of unlawful retaliatory discharge. I agree with the district court, moreover, that even assuming the existence of a prima facie case, Haas has not presented evidence that tends to establish that the employer’s stated reasons for terminating Haas were both false and a pretext for illegal retaliation. As the district court observed in rejecting the alleged disputes of material fact advanced by Haas in response to the motion for summary judgment:
Several of these matters have no bearing on creating a jury question on the issue of retaliatory animus, and, in fact, only relate to retaliation because Haas contends they are related to retaliation. Compare Mayer v. Nextel West Corp., supra, 318 F.3d at 809 (“Evidence, not contentions, avoids summary judgment.”). For instance, Haas contends that Wessel and Schuster’s retaliatory motive was so strong that they could not even wait until the scheduled PIP review date of February 28 to get rid of Haas. While it is true that Haas was terminated prior to February 28, the evidence suggests that termination occurred when it did because of Haas’ insubordination. There is no evidence to suggest that the date of termination was “moved up” because of illegal retaliation.
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.