           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                        September 16, 2009

                                       No. 08-11196                    Charles R. Fulbruge III
                                                                               Clerk

EFRAIN CERVANTEZ

                                                   Plaintiff - Appellant
v.

KMGP SERVICES COMPANY INC.

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:07-CV-165


Before WIENER, GARZA, and ELROD, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Efrain Cervantez sued his former employer Defendant-
Appellee KMGP Services Company Inc. (“KMGP”), alleging that it fired him
because of his age, in violation of the Age Discrimination in Employment Act of
1967 (“ADEA”), 29 U.S.C. § 621 et seq. The district court granted summary
judgment in favor of KMGP after concluding that Cervantez had failed to
establish a genuine issue of material fact that would call into question KMGP’s
legitimate, nondiscriminatory reason for discharge — that his computer User ID

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                      No. 08-11196

and password had been used to access pornographic websites from one of
KMGP’s shared computers. Holding that the district court correctly determined
that Cervantez had failed to establish a genuine issue of material fact, we affirm.
                         I. FACTS AND PROCEEDINGS
      Until he was fired in November 2006, Cervantez had worked as a field
operator at KMGP’s Scurry Area Canyon Reef Oil Companies (“SACROC”) Unit
oil field in Scurry County, Texas. Beginning in 1975, Cervantez worked for
various owners and operators at the SACROC Unit, and he was hired by KMGP 1
in 2000 when it acquired the unit.
      In June 2000, Cervantez attended a KMGP new-hire orientation during
which he received the company’s policy manual and Information Security User
Policy (“ISUP”).
      The ISUP states in relevant part:
      Violation of this policy may result in disciplinary action, including
      possible termination, and/or legal action.
      ....
      [I]ndecent, profane, obscene, intimidating, or unlawful material may
      not be sent or downloaded by any form of electronic means or
      displayed on or stored in the Company’s computers or printed.
      ....
      System Users are responsible for safeguarding their passwords for
      each system. Individual passwords should not be printed, stored
      on-line, or given to others. System Users are responsible for all
      transactions made using their passwords.
      Cervantez signed an acknowledgment of KMGP’s ISUP, confirming that
he “underst[ood] that failure to comply with this Policy may result in
disciplinary action, which may include termination of [his] employment.”
      KMGP also maintains additional policies relating to its employees’
computer usage.        For example, the policy titled “The Workplace” informs
employees that the “Internet and other communications systems are to be used

      1
          KMGP is a subsidiary of Kinder Morgan, Inc.

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                                 No. 08-11196

for business purposes only. . . . Improper use of Companies’ communication
services and equipment may result in disciplinary action up to and including
termination.”
      KMGP provides a shared computer in the SACROC Unit’s break room
which can be accessed by the unit’s 200 employees. Brian Spence, a KMGP
employee charged with ensuring that all SACROC Unit computers run properly,
testified that in November 2006 he checked the break-room computer for
possible viruses. Spence stated that he uncovered a large number of “cookies”
indicating that Cervantez’s User ID and password had been used to access
pornographic websites. Spence testified that he did not know Cervantez.
      Mary Ann Long, the former director of human resources for Kinder
Morgan, Inc., then received notice that Cervantez’s User ID and password had
been used to access pornographic websites from a KMGP computer. According
to Long, she instructed Bradley Lewis, the human resources representative with
responsibility over a region that includes the SACROC Unit, to determine, inter
alia, whether Cervantez had been at work on August 22 and 23, 2006, two dates
on which his User ID was used to access hundreds of prohibited websites. Lewis
claims that, as instructed, he confirmed that Cervantez worked on both dates.
According to KMGP, Lewis recommended that Cervantez be terminated and
Long agreed.
      In late November 2006, Lewis advised Cervantez that he was being fired
because his User ID and password had been used on August 22 and 23 to access
pornographic websites, which Cervantez denies having visited. Lewis possessed
a log detailing the websites allegedly visited, but, at that time, he prohibited
Cervantez from seeing it.
      KMGP replaced Cervantez with Paul Navarete, who was 43 years old and
had been employed at KMGP for five to six months. Cervantez, who was then



                                       3
                                       No. 08-11196

57 years old, offered no initial indication that he believed he was discharged
because of his age.
       Cervantez applied for unemployment compensation from the Texas
Workforce Commission (“TWC”). During the TWC proceedings, Cervantez had
access for the first time to the log of websites allegedly visited with his User ID
and password.        According to Cervantez, in addition to showing access to
inappropriate websites at times when he was at work on August 22 and 23, the
log includes many entries for the evening of August 23, long after his shift had
ended. As the initial log did not contain Cervantez’s name or other identifying
information, the TWC hearing officer requested the production of documents
that would associate Cervantez’s User ID and password with the log. KMGP
thus produced a second, more comprehensive log that specifically identified
Cervantez.2 The second log showed attempts to access prohibited websites on
many other dates, including dates when Cervantez did not work. Even though
both logs contain information about times when Cervantez was not at work, they
also list websites that were accessed when he was present.
       In August 2007, Cervantez filed the instant suit in district court, alleging
that KMGP had fired him because of his age in violation of the ADEA. In
December 2008, the district court granted KMGP’s motion for summary
judgment. This appeal followed.




       2
         Cervantez construes the record as establishing that Spence conceded that KMGP
“manually,” i.e., arbitrarily, added Cervantez’s name to the list. In fact, the record confirms
that Spence merely used the word “manually” in the context of instructing software to print
the user’s name, that of Cervantez, on the log.

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                                        No. 08-11196

                                       II. ANALYSIS
A.     Standard of Review
       We review de novo a district court’s grant of summary judgment.3
“Summary judgment is appropriate if the record, taken as a whole, ‘show[s] that
there is no genuine issue as to any material fact and that the movant is entitled
to judgment as a matter of law.’” 4 “On a motion for summary judgment, the
court must view the facts in the light most favorable to the non-moving party
and draw all reasonable inferences in its favor.”5
B.     ADEA Framework
       Under the ADEA, it is unlawful for an employer to discharge an employee
“because of such individual’s age.”6 To establish an ADEA claim, “[a] plaintiff
must prove by a preponderance of the evidence (which may be direct or
circumstantial), that age was the ‘but-for’ cause of the challenged employer
decision.” 7
       As Cervantez’s ADEA claim is based on circumstantial evidence, the
burden-shifting framework of McDonnell Douglas Corp. v. Green applies.8 Under

       3
        Alaska Elec. Pension Fund v. Flowserve Corp., 572 F.3d 221, 227 (5th Cir. 2009) (per
curiam).
       4
         Thermacor Process, L.P. v. BASF Corp., 567 F.3d 736, 740 (5th Cir. 2009) (per
curiam) (quoting FED . R. CIV . P. 56(c)).
       5
           Deville v. Marcantel, 567 F.3d 156, 163–64 (5th Cir. 2009) (per curiam).
       6
           29 U.S.C. § 623(a).
       7
        Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2351 (2009). The Supreme Court’s
recent decision in Gross rejected the application of Title VII’s “motivating factor” standard to
ADEA mixed-motive cases. See id. at 2349–51. That holding has no affect on today’s analysis
because, on appeal, Cervantez did not advance a motivating-factor theory.
       8
         Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896–97 (5th Cir. 2002) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)); see Cheatham v. Allstate Ins.
Co., 465 F.3d 578, 582 (5th Cir. 2006) (per curiam) (referring to this circuit’s burden-shifting
standard for ADEA claims as “well-settled”). But see Gross, 129 S. Ct. at 2349 n.2 (“[T]he
Court has not definitively decided whether the evidentiary framework of McDonnell

                                               5
                                            No. 08-11196

this standard, the employee must first establish a prima facie case of
discrimination.9 A prima facie case requires that the employee prove that he (1)
belongs to the protected group of persons over the age of forty; (2) was qualified
for his position; (3) was discharged; and (4) was replaced with someone younger
or outside the protected group.10
          The burden then shifts to the employer to produce evidence that the
employee was discharged “for a legitimate, nondiscriminatory reason. This
burden is one of production, not persuasion; it can involve no credibility
assessment.” 11 If the employer is able to meet this burden, “the McDonnell
Douglas framework — with its presumptions and burdens — disappear[s], and
the sole remaining issue [is] discrimination vel non.” 12
          [T]he ultimate burden of persuading the trier of fact that the
          defendant intentionally discriminated against the plaintiff remains
          at all times with the plaintiff. And in attempting to satisfy this
          burden, the plaintiff — once the employer produces sufficient
          evidence to support a nondiscriminatory explanation for its decision
          — must be afforded the opportunity to prove by a preponderance of
          the evidence that the legitimate reasons offered by the defendant
          were not its true reasons, but were a pretext for discrimination.
          That is, the plaintiff may attempt to establish that he was the
          victim of intentional discrimination by showing that the employer’s
          proffered explanation is unworthy of credence.13



Douglas . . . , utilized in Title VII cases is appropriate in the ADEA context.”).
          9
              Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).
          10
         Sandstad, 309 F.3d at 897; see 29 U.S.C. § 631 (applying the ADEA only to
individuals at least forty years old).
          11
        Reeves, 530 U.S. at 142 (internal quotation marks and citation omitted); see
Sandstad, 309 F.3d at 897.
          12
               Reeves, 530 U.S. at 142–43 (internal quotation marks and citation omitted).
          13
               Id. at 143 (internal quotation marks and citations omitted); see Sandstad, 309 F.3d
at 897.

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                                        No. 08-11196

“The issue at the pretext stage is whether [the defendant’s] reason, even if
incorrect, was the real reason for [the plaintiff’s] termination.” 14 Courts “‘do not
try . . . the validity of good faith beliefs as to an employee’s competence. Motive
is the issue.’”15
       [Yet,] [e]vidence demonstrating the falsity of the defendant’s
       explanation . . . is likely to support an inference of discrimination
       even without further evidence of defendant’s true motive. Thus, the
       plaintiff can survive summary judgment by producing evidence that
       creates a jury issue as to the employer’s discriminatory animus or
       the falsity of the employer’s legitimate nondiscriminatory
       explanation.16
C.     Cervantez Failed to Establish a Genuine Issue of Material Fact
       KMGP concedes that Cervantez has set forth a prima facie case under the
McDonnell Douglas framework. We therefore begin our analysis by observing
that KMGP’s proffered reason for firing Cervantez — violation of its computer-
use policy — constitutes a legitimate, nondiscriminatory reason for Cervantez’s
discharge.17 The McDonnell Douglas burden-shifting thus evaporates, and we
inquire whether Cervantez has shown the existence of a genuine issue of
material fact on age discrimination. Cervantez asserts that the district court
erred in three ways: (1) Its decision strayed from binding precedent by applying


       14
          Sandstad, 309 F.3d at 899; see Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091
(5th Cir. 1995) (“The question is not whether an employer made an erroneous decision; it is
whether the decision was made with discriminatory motive.”).
       15
          Mayberry, 55 F.3d at 1091 (quoting Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th
Cir. 1991)); see Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1508 (5th Cir. 1988) (“The
ADEA cannot protect older employees from erroneous or even arbitrary personnel decisions,
but only from decisions which are unlawfully motivated. Even if the trier of fact chose to
believe an employee’s assessment of his performance rather than the employer’s, that choice
alone would not lead to a conclusion that the employer’s version is a pretext for age
discrimination.” (citation omitted)).
       16
            Sandstad, 309 F.3d at 897 (citing Reeves, 530 U.S. at 147–48).
       17
       See Twymon v. Wells Fargo & Co., 462 F.3d 925, 935 (8th Cir. 2006) (“[V]iolating a
company policy is a legitimate, non-discriminatory rationale for terminating an employee.”).

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                                         No. 08-11196

an erroneously high burden of proof; (2) it failed to recognize an issue of material
fact among KMGP’s alleged inconsistencies; and (3) it improperly discounted the
significance of a KMGP manager’s discriminatory comment. We reject each of
Cervantez’s points of error and determine, in our de novo review, that KMGP is
entitled to summary judgment.
       First, the district court applied the correct law. The Supreme Court’s
decision in Reeves v. Sanderson Plumbing Products, Inc. makes clear that “‘a
plaintiff’s prima facie case, combined with sufficient evidence to find that the
employer’s asserted justification is false, may permit the trier of fact to conclude
that the employer unlawfully discriminated.’” 18 Cervantez is correct that Reeves
rejected the higher standard of “pretext plus,” which “require[d] a plaintiff not
only to disprove an employer’s proffered reasons for the discrimination but also
to introduce additional evidence of discrimination.” 19 Review of the district
court’s opinion and of the entire record makes clear, however, that the court’s
holding was a product of the law as it stands post-Reeves. For example the
district court applied valid law in determining that Cervantez “has failed to
come forward with summary judgment evidence to create a genuine issue of
material fact that Defendant’s ‘stated grounds for his termination were
unworthy of credence.’” (quoting our opinion in Keelan v. Majesco Software,
Inc.).20 In any event, we apply the correct standard in today’s de novo review.
Additionally, we emphasize — contrary to Cervantez’s argument — that a fired




       18
         Ratliff v. City of Gainesville, 256 F.3d 355, 361 & n.9 (5th Cir. 2001) (quoting Reeves,
530 U.S. at 148).
       19
            Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568, 574 & n.4 (5th Cir. 2004).
       20
            407 F.3d 332, 345 (5th Cir. 2005) (citing Reeves, 530 U.S. at 143).

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                                       No. 08-11196

employee’s actual innocence of his employer’s proffered accusation is irrelevant
as long as the employer reasonably believed it and acted on it in good faith.21
      Second, KMGP’s purported inconsistencies, considered in toto, do not
create a genuine issue of material fact.            Briefly, (1) the mere existence of
KMGP’s second, more comprehensive log — which it produced for the TWC
proceedings months after Cervantez’s discharge — does not establish a disputed
material fact regarding the truth or falsity of KMGP’s stated ground for this
firing; (2) it is not significant with whom Lewis confirmed Cervantez’s presence
at the SACROC Unit on August 22 or 23, or even whether Lewis confirmed it at
all; (3) considering that Lewis told Cervantez that he was being discharged
because his User ID and password had been used to access prohibited
websites — the same reason KMGP advanced in the district court and on
appeal — Lewis’s statement that he thought Cervantez had accessed the
prohibited websites personally is immaterial; and (4) it is not material whether
Lewis actually made the final decision to fire Cervantez or Long made it based
on Lewis’s recommendation.
      Third, the district court committed no error in disregarding a KMGP
manager’s allegedly discriminatory comment as a stray remark (if indeed, it was
even discriminatory).        According to Cervantez, in 2002 or 2003, his then-
supervisor, Gary Norwood, told him that a member of KMGP’s “top
management,” Pete Hagist, had said that KMGP would be expanding and “was
going to start hiring young people.” It is true that a discriminatory comment
may be probative of discrimination “even where [it] is not in the direct context
of the termination and even if uttered by one other than the formal decision
maker, provided that the individual is in a position to influence the decision.”22

      21
           See Waggoner v. City of Garland, 987 F.2d 1160, 1165 (5th Cir. 1993).
      22
          Palasota v. Haggar Clothing Co., 342 F.3d 569, 578 (5th Cir. 2003) (per curiam)
(citations and footnote omitted).

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                                        No. 08-11196

Yet, a comment is not evidence of discrimination if it is the sole proof of pretext,23
or if it is not made in temporal proximity to the adverse employment decision.24
There are at least three reasons why Hagist’s alleged comment fails to defeat
KMGP’s motion for summary judgment: (1) The passage of three to four years
between the comment and Cervantez’s discharge is beyond the time frame
relevant to his claim;25 (2) no reasonable factfinder could determine that Hagist,
who left KMGP eighteen months before Cervantez’s discharge, was “in a position
to influence the decision” to terminate him;26 and (3) as the only evidence of
pretext, Hagist’s stray remark is not probative of discriminatory intent.27
                                   III. CONCLUSION
      We affirm the district court’s grant of summary judgment in favor of
KMGP because Cervantez failed to demonstrate the presence of a disputed issue
of material fact.
AFFIRMED.




      23
           Id. at 577.
      24
           Jenkins v. Methodist Hosps. of Dallas, Inc., 478 F.3d 255, 261 (5th Cir. 2007).
      25
          See Patel v. Midland Mem’l Hosp. & Med. Ctr., 298 F.3d 333, 344 (5th Cir. 2002)
(rejecting comments made two or more years before a doctor’s suspension); Brown v. CSC
Logic, Inc., 82 F.3d 651, 656 (5th Cir. 1996) (discounting a comment made sixteen months
before an employee’s discharge).
      26
           See Palasota, 342 F.3d at 578.
      27
         See id. at 577. It is even unclear whether the substance of the alleged remark
supports Cervantez’s claim. A plan to expand the SACROC Unit and to hire young people is
not necessarily analogous to a plan to replace older people with younger personnel.
Cervantez’s theory nevertheless alleges discriminatory firing without mentioning
discriminatory expansionist hiring.

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