      Case: 13-11358     Document: 00512991646     Page: 1   Date Filed: 04/02/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-11358                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
JERRELL P. SQUYRES,                                                   April 2, 2015
                                                                    Lyle W. Cayce
                Plaintiff - Appellant                                    Clerk

v.

THE HEICO COMPANIES, L.L.C.; S-LINE CORPORATION, L.L.C.; ANCRA
INTERNATIONAL, L.L.C.,

                Defendants - Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas


Before STEWART, Chief Judge, and JONES and HIGGINSON, Circuit
Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
          Jerrell P. Squyres sued his former employer, The Heico Companies and
its subsidiaries, for violations of the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq., and the Texas Commission on Human Rights
Act (“TCHRA”), Tex. Lab. Code Ann. § 21.001 et seq. The district court granted
summary judgment in favor of the companies. We affirm.
                          FACTS AND PROCEEDINGS
     I.     Squyres’s Employment History
          Squyres was formerly the president and sole owner of JPS Corporation,
which manufactured and sold fleet transportation products under the brand
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                                 No. 13-11358
“S-Line.” In 2007, Squyres began to negotiate the sale of JPS and its
subsidiaries to Ancra International. The parties reached an agreement on
October 22, 2008, and Heico Holding (Ancra’s parent company) created S-Line
Corporation to purchase JPS’s assets under an Asset Purchase Agreement.
Steve Frediani, President and CEO of Ancra, also became President and CEO
of S-Line.
      As partial consideration for selling JPS, Squyres entered into a three-
year Employment Agreement with S-Line with an annual salary of $400,000.
Under the Employment Agreement, Squyres would serve as S-Line’s Vice
President of Sales and Marketing for three years, with automatic one-year
extensions thereafter unless one of the parties gave timely notice of its
intention not to extend the Agreement.
      In 2011, a few months before Squyres’s Employment Agreement was set
to expire, Squyres remarked to Mark Daugherty, a Human Resources
representative at Ancra, that Squyres would like to keep working at S-Line
until he was ninety. Daugherty did not convey that information to Frediani or
to anyone else at the company. When management was discussing Squyres’s
employment, however, Daugherty did explain that he had met with Squyres
and that Squyres had expressed interest in continuing to work for the
company.
      Frediani ultimately decided not to renew Squyres’s Employment
Agreement when it expired in October 2011. In an affidavit, Frediani stated
that he had never intended to renew the Agreement because it was simply
consideration for the sale of Squyres’s business. Frediani was also unhappy
with Squyres’s job performance. According to Frediani, S-Line had received
less value from Squyres’s sales activities than it had expected, Squyres resisted
reporting his hours and business activities, Squyres’s business-related
expenses were not consistent with company policy, and Squyres spent too much
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work time at social and sporting events. On September 22, 2011, Frediani
presented Squyres with written notice that S-Line would not renew his
Employment Agreement. At that time, Squyres was seventy.
      Frediani, however, also believed that “S-Line could derive some value
from the contacts Squyres had in the industry if S-Line had a more favorable
agreement in place.” In his deposition, Frediani elaborated that he did not
intend to “fire” Squyres; instead, he “tried to put something together with
[Squyres].” Along with the notice that S-Line wished to terminate the
Employment Agreement, Frediani also proposed that Squyres continue
working for S-Line and Ancra as an “Independent Sales Representative.” In
this new position, Squyres would have received a reduced salary of $120,000,
as well as additional incentives and commissions. Although no other S-Line
employee had a written employment contract, Squyres was not given an option
to continue as an at-will employee.
      Squyres did not immediately accept S-Line’s new proposal. Instead, he
tried to clarify and negotiate its terms. S-Line submitted its “best and final
proposal” to Squyres on September 28, with a request that Squyres respond to
the proposal by the end of the day on September 29. Squyres, however, did not
accept or reject the proposal and continued to negotiate throughout the day on
September 30. Finally, on September 30, Frediani retracted the proposal.
Frediani’s final email to Squyres stated: “It has become clear today that Ancra
is unable to provide you with an employment agreement that meets your
needs. I am retracting the offer submitted earlier today, September 30.” When
asked at his deposition why S-Line “terminated” Squyres’s employment,
Frediani offered the following explanation: “Well, as I said previously, he was
never terminated. We had this Employment Agreement. The Employment
Agreement ended on October 22nd. We tried to reach agreement on some form


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of employment going forward beyond the agreement. We failed to reach that
agreement, and that was the status.”
         After his Employment Agreement ended on October 22, 2011, Squyres
was no longer employed at S-Line.
   II.       Proceedings in the District Court
         In July 2012, Squyres filed an employment-discrimination action against
Defendants–Appellees Heico, S-Line, and Ancra (“Appellees”) in the Northern
District of Texas, asserting claims under the ADEA and the TCHRA. 1
Appellees moved to dismiss Squyres’s complaint. 2 On September 18, 2012, in
his response to Appellees’ motion, Squyres raised the possibility of amending
his complaint to “ple[a]d quantum meruit and/or fraudulent misrepresentation
claims” instead. On October 31, 2012, the district court granted in part and
denied in part Appellees’ motion to dismiss and entered a scheduling order that
set a discovery deadline of June 21, 2013. At that point, the discovery deadline
was nearly eight months away.
         After the district court entered the scheduling order, Squyres filed his
second amended complaint, re-pleading the age-discrimination claims.
Appellees filed another motion to dismiss, but this time, the district court
denied Appellees’ motion. Appellees answered the second amended complaint
on January 8, 2013.
         When Appellees filed their answer, five months still remained before the
June discovery deadline. Appellees contend that they served Squyres with
interrogatories, document requests, and requests for admission on February



         Squyres also alleged a state-law breach-of-contract claim, which he later withdrew.
         1
         2Appellees argued that only S-Line—but not Heico or Ancra—was Squyres’s
employer. The district court never resolved this issue. The district court ultimately granted
summary judgment on Squyres’s age-discrimination claims for failure to prove pretext,
without deciding whether all three entities were a single, integrated enterprise that could all
be treated as Squyres’s employer. Neither party raises this issue on appeal.
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20, 2013. Squyres did not respond to these requests until April 30, 2013.
Squyres also did not contact Appellees’ counsel about scheduling depositions
until May 22, 2013.
      Three days later, one of Squyres’s attorneys, Yona Rozen, broke her
ankle. Because of this injury, Squyres filed a motion for a continuance asking
the district court to extend all pending deadlines in the case by four months.
When Squyres filed this motion on June 11, the parties had not yet scheduled
mediation (even though the mediation deadline was three days away), and the
parties also had not agreed on a deposition schedule (even though the discovery
deadline was ten days away). In his motion, Squyres admitted that the parties
had agreed to delay discovery, pending resolution of the issues raised by
Appellees’ second motion to dismiss.
      The district court denied Squyres’s request for a fourth-month
continuance, granting a one-month extension instead. The district court noted
that “the parties’ last-minute attempt” to meet the discovery deadline was
“self-imposed,” and that even under their agreement to postpone discovery, the
parties still had six months to meet the discovery deadline when the district
court denied the second motion to dismiss in December 2012.
      Next, in mid-June, Appellees approached Squyres’s counsel to ask
whether Squyres would oppose a motion for leave to amend Appellees’ answer.
In a quid pro quo agreement reached over email, Squyres agreed not to oppose
Appellees motion so long as Appellees would not oppose a motion for leave to
amend Squyres’s complaint “in the event something comes up in the course of
depositions which causes [Squyres] to feel the need to amend the complaint.”
Appellees then filed an unopposed motion for leave to amend their answer,
adding a defense under the Texas Statute of Frauds. The district court granted
the motion.


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      In late July, the parties filed a joint motion to extend the scheduling
order deadlines and to continue the trial, but the district court denied the
motion based on the “long period of time in which the parties have had to
arrange discovery.” The district court emphasized that “[t]he time has come for
the parties and their counsel to be held accountable for the deadlines issued by
this Court nine months ago.”
      Appellees then filed a motion for summary judgment. Before responding
to the motion, Squyres deposed four executive officers from S-Line on August
15 and 16. Squyres’s response brief was originally due on August 19, but the
district court granted an extension until August 26. In that order, the district
court warned the parties that it would not grant additional extensions “absent
exigent circumstances not arising from the parties’ conduct.”
      Despite this warning, Squyres requested leave to amend his complaint
on August 22. Squyres’s counsel had deposed Frediani on August 16, and in
response to this deposition, Squyres sought to add a fraud claim and drop his
breach-of-contract claim. Squyres filed his motion to amend unopposed, citing
the earlier quid pro quo agreement. Appellees, however, filed a response in
opposition to Squyres’s motion, admitting the quid pro quo agreement, but
arguing that Squyres had not sought amendment in a reasonable time after
their June agreement and that “the circumstances ha[d] changed since that
discussion in June.” The district court ultimately denied Squyres’s motion.
      On November 13, 2013, the district court granted summary judgment in
favor of Appellees on the state and federal age-discrimination claims. This
appeal timely followed. Squyres appeals from the district court’s grant of
summary judgment, its denials of the two continuance motions, and its denial
of Squyres’s motion for leave to amend.




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                                 DISCUSSION
   I.      ADEA & TCHRA Claims
           A. Standard of Review
        This court reviews a district court’s grant of summary judgment de novo,
applying the same standards as the district court. Rogers v. Bromac Title
Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014). Summary judgment is
appropriate “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). This court “resolve[s] factual controversies in favor of the
nonmoving party, but only where there is an actual controversy, that is, when
both parties have submitted evidence of contradictory facts.” Antoine v. First
Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013) (internal quotation marks and
citation omitted).
           B. McDonnell Douglas Framework
        The district court granted summary judgment to Appellees on Squyres’s
ADEA and TCHRA claims. Because Squyres relies solely on circumstantial
evidence, this court evaluates both claims under the three-step, burden-
shifting framework announced in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802–04 (1973). See Miller v. Raytheon Co., 716 F.3d 138, 144 (5th Cir.
2013); Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex.
2012). Under this framework, the employee must first establish a prima facie
case of age discrimination. Miller, 716 F.3d at 144. If the employee meets his
initial burden, the burden of production shifts to his employer to articulate a
legitimate, nondiscriminatory reason for the challenged employment decision.
Id. At this stage, the employer’s burden is one of “production, not persuasion,”
and “involve[s] no credibility assessment.” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 142 (2000) (internal quotation marks and citation
omitted). If the employer is able to articulate a reason, “the presumption raised
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                                No. 13-11358
by the prima facie case is rebutted and drops from the case.” St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (quoting Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 255 & n.10 (1981)) (internal quotation marks omitted).
      The third step of the McDonnell Douglas analysis involves a different
causation inquiry under the ADEA and the TCHRA. See Reed v. Neopost USA,
Inc., 701 F.3d 434, 440 (5th Cir. 2012). Under the ADEA, the employee must
“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.” Reeves, 530 U.S. at 143 (quoting Burdine, 450 U.S. at 253)
(internal quotation marks omitted). An employee can show pretext “either
through evidence of disparate treatment or by showing that the employer’s
proffered explanation is false or unworthy of credence.” Moss v. BMC Software,
Inc., 610 F.3d 917, 922 (5th Cir. 2010) (internal quotation marks and citation
omitted). In the end, under the ADEA, the employee has the burden of
persuasion to establish “that age was [a] ‘but-for’ cause of the employer’s
adverse decision.” Burrage v. United States, 134 S. Ct. 881, 889 (2014)
(alteration in original) (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167,
176 (2009)); Reed, 701 F.3d at 440.
      Under the TCHRA, in contrast, the employee can succeed at this third
step by showing “either (1) the reason stated by the employer was a pretext for
discrimination, or (2) the defendant’s reason, while true, was only one reason
for its conduct and discrimination is another motivating factor (‘mixed
motive’).” Reed, 701 F.3d at 439–40 (quoting Michael v. City of Dallas, 314
S.W.3d 687, 691 (Tex. App. 2010)) (internal quotation marks omitted); see also
Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 480 (Tex. 2001).
      i.    Legitimate, Nondiscriminatory Reason
      The district court “assume[d] without deciding that Squyres . . . made
out a prima facie case of age discrimination.” We likewise make the same
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assumption. 3 The burden of production then shifted to Appellees to articulate
a legitimate, nondiscriminatory reason for the challenged employment
decision. Miller, 716 F.3d at 144. Appellees made three decisions related to
Squyres’s employment: (1) they decided not to renew Squyres’s Employment
Agreement; (2) they decided to offer Squyres a new position as an Independent
Sales Representative instead; and (3) they decided to withdraw that offer.
       Appellees articulated legitimate, nondiscriminatory reasons for each of
their employment decisions. Their reasons for the first and second decisions
overlapped: Squyres’s Agreement was not economically feasible, especially in
light of his disappointing job performance. Appellees therefore offered him a
new position that they believed better reflected his performance. Frediani also
explained that they offered him a position as a contract employee because S-
Line’s sales personnel were paid a “flat salary” and Squyres, in contrast, had
“asked for and wanted commissions.” Finally, Appellees rescinded the offer for
a new position because Squyres did not accept or reject the offer before the
deadline that Frediani set. Appellees submitted admissible evidence
supporting each of these reasons: Frediani’s affidavit and deposition
testimony, other employees’ deposition testimony (including Squyres’s), and
also supporting emails and documents. 4 They therefore met their burden of
production to articulate legitimate, nondiscriminatory reasons for their
employment decisions. See Reeves, 530 U.S. at 142 (explaining that this



       3 In the district court, the parties debated whether Squyres suffered an adverse
employment action. Squyres argued that he was fired. Appellees, however, argued that
Squyres’s employment contract simply was not renewed and expired on its own terms.
Because we can resolve this appeal on pretext grounds, we decline to resolve whether Squyres
suffered an adverse employment action.
       4 As a result, this case is distinguishable from Patrick v. Ridge, 394 F.3d 311 (5th Cir.

2004), which Squyres relies on in his briefs. In Patrick, there was “no evidence in the
summary judgment record clarif[ying] or expand[ing] on” the employer’s reason for
terminating the plaintiff. Id. at 316 (recognizing that the employer “produced no specifics”).
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analysis “can involve no credibility determination” (quoting St. Mary’s, 509
U.S. at 509)); Amburgey v. Corhart Refractories Corp., 936 F.2d 805, 813 (5th
Cir. 1991) (noting that this “rebuttal is as easily made as the prima facie case”).
       On appeal, Squyres challenges this conclusion for four reasons. First,
Squyres argues that the district court misinterpreted Frediani’s summary
judgment affidavit as providing an explanation of why Frediani decided not to
renew Squyres’s Employment Agreement, instead of providing reasons why
the company was unhappy with Squyres’s job performance. The affidavit,
however, provides reasons for both issues, and these reasons are not mutually
exclusive.
       Second, Squyres contends that Appellees are foreclosed from arguing
that they had legitimate, nondiscriminatory reasons for ending his
employment because Appellees also argued that they did not “terminate”
Squyres’s employment. Appellees, however, made these arguments in the
alternative. They first argued that Squyres failed to establish the first element
of the prima facie case (that is, that he suffered an adverse employment action),
and,   in    the   alternative,   they   argued   that   they   had    legitimate,
nondiscriminatory reasons for terminating Squyres’s employment. These types
of alternative arguments are permissible, and this court routinely considers
them. See, e.g., E.E.O.C. v. Boh Bros. Constr. Co., 731 F.3d 444, 462 (5th Cir.
2013) (en banc).
       Next, Squyres similarly argues that Frediani testified in his deposition
that he had “no reason” to terminate Squyres’s employment. Again, this
argument confuses Appellees’ arguments on the prima facie case and their
alternative arguments related to their legitimate, nondiscriminatory reasons
for their employment decisions. During Frediani’s deposition, counsel asked
Frediani: “What was the reason that Mr. Squyres was terminated by S-Line,
LLC?” Frediani responded: “Well, as I said previously, he was never
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terminated.” As a follow-up question, counsel asked: “I’m trying to . . . ask you
whether you were about to fire him anyway . . . .” Frediani then responded that
had he been about to fire Squyres, he would not have proposed the consulting
agreement. Read in full, this exchange confirms that Frediani was defending
his position, for purposes of the prima facie case, that Squyres was never fired.
That the district court later concluded that Appellees’ actions might, in fact,
constitute an adverse employment action does not preclude Appellees’
alternative argument that they had legitimate, nondiscriminatory reasons for
taking these actions.
      Finally, Squyres rejects Appellees’ identification of the three related
employment decisions as the challenged employment actions. Instead, Squyres
argues that the district court should have evaluated Appellees’ reasons for the
ultimate “termination” decision. Squyres appears to argue that the district
court erroneously focused on Appellees’ reasons for making the independent
contractor offer, instead of their reasons for not allowing Squyres to become an
at-will employee without a written contract. Appellees, however, did provide a
reason for that decision. As Frediani explained, he offered the independent
contractor position to Squyres because he believed it was consistent with what
Squyres wanted. Moreover, it is not clear how Squyres could have seamlessly
made a transition from his employment under the Agreement (which was
expiring) to some new form of employment (whether as an at-will employee or
as an independent contractor, with or without a written contract) without first
negotiating the terms of his new employment with Appellees. When the parties
could not agree on the terms of a new arrangement, Appellees withdrew their
offer. The court thus concludes that Appellees articulated legitimate,
nondiscriminatory reasons for terminating Squyres’s employment.




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       ii.    Pretext
       This appeal therefore turns on whether there was a genuine issue of
material fact on pretext. Squyres again identifies four problems with the
district court’s pretext analysis, but all of them miss the mark. 5 Squyres first
argues that the district court erred when it rejected Squyres’s argument that
Appellees failed to provide him a reason for terminating his employment. But
Frediani did provide a reason. As Frediani explained in an email to Squyres,
“It has become clear today that Ancra is unable to provide you with an
employment agreement that meets your needs. I am retracting the offer
submitted earlier today, September 30.” Moreover, even if Appellees failed to
give Squyres a reason for their decision not to renew his Employment
Agreement or not to offer him an at-will employment position, Squyres can
point to no evidence in the record suggesting that he ever asked for these
reasons or to any case law requiring an employer to voluntarily state a reason
for its termination decision. 6
       Next, Squyres asserts that the district court erred by discounting
Appellees’ shifting and inconsistent reasons for terminating Squyres’s
employment.       Squyres      further     argues     that,    when      reviewing      these



       5 The AARP presents two additional arguments in its amicus brief supporting
Squyres. First, the AARP argues that the district court “failed to analyze” the evidence “under
the separate standards to the ADEA and TCHRA.” Second, the AARP argues that the
Supreme Court’s decision in Burrage v. United States, 134 S. Ct. 881 (2014), lightened
Squyres’s burden of raising a genuine issue of fact by requiring him to prove only that his
age was “a” but-for cause of Appellees’ actions, as opposed to “the” but-for cause. Because
Squyres failed to raise these arguments in his opening brief, we will not consider these
arguments. See Christopher M. ex rel. Laveta McA. v. Corpus Christi Indep. Sch. Dist., 933
F.2d 1285, 1293 (5th Cir. 1991) (“Absent exceptional circumstances, an issue waived by
appellant cannot be raised by amicus curiae.”).
       6 The cases that Squyres does cite do not support his argument. See Mock v. Bell

Helicopter Textron, Inc., 196 F. App’x 773, 774 (11th Cir. 2006) (per curiam); Gee v. Principi,
289 F.3d 342, 348 (5th Cir. 2002). Unlike the plaintiffs in both of these cases, Squyres does
not contend that he ever asked Frediani why the company chose not to renew his
Employment Agreement.
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inconsistencies, the district court improperly drew inferences in favor of
Appellees. Generally, “an employer’s inconsistent explanations for its
employment decisions at different times permits a jury to infer that the
employer’s proffered reasons are pretextual.” Burrell v. Dr. Pepper/Seven Up
Bottling Grp., Inc., 482 F.3d 408, 412 n.11 (5th Cir. 2007) (citing Gee, 289 F.3d
at 347–48). And although the court must resolve factual controversies in favor
of Squyres, that obligation only applies when “there is an actual controversy.”
Antoine, 713 F.3d at 830 (internal quotation marks and citation omitted).
      Here, when the alleged inconsistent statements are considered in their
full context, the inconsistencies disappear. For example, Squyres highlights an
apparent inconsistency in Frediani’s reasons for terminating Squyres’s
employment, pointing both to Frediani’s unhappiness with Squyres’s
performance and Squyres’s failure to accept or reject the independent
contractor proposal by the deadline. These reasons are not inconsistent
because they explain different decisions: Frediani articulated one reason for
not renewing the Agreement (unhappiness) and another for rescinding the
independent contractor proposal (tardiness in replying).
      As the district court recognized, the only possible inconsistency is
between Frediani’s deposition testimony and his affidavit. Frediani stated in
his affidavit that he “was unhappy with Squyres’s job performance,” but later
testified in his deposition that he was not “disappointed at something [Squyres]
was doing.” Again, however, this alleged inconsistency disappears when
considering the statements in their full context and considering exactly which
employment decision Frediani was explaining. Frediani spoke of his
“unhappiness” with Squyres’s job performance when explaining why the
company decided not to renew Squyres’s Employment Agreement. Frediani’s
statement that he was not disappointed with Squyres arose in a different
context. Then, Frediani was explaining why he did not fire Squyres when the
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Agreement expired and instead offered him a different position—a decision
related to, but different from, his decision not to renew the Agreement. This
deposition testimony is consistent with Frediani’s statement in his affidavit
that he offered Squyres the independent contractor position because Frediani
“believed S-Line could derive some value from the contacts Squyres had in the
industry if S-Line had a more favorable agreement in place.” Because Frediani
provided these reasons to explain two different actions, these statements are
not inconsistent and therefore do not raise a genuine issue of fact on pretext.
      Squyres next argues that the district court erred in rejecting his
argument that because all other Ancra and S-Line employees were at-will
employees without written employment contracts, his employment should not
have ended when his Employment Agreement expired. In other words, Squyres
believes that he should have automatically been allowed to continue working
for Appellees without a written employment contract. Squyres’s unique
employment situation, however, makes this argument unpersuasive. Because
of his Employment Agreement, Squyres was unlike other S-Line and Ancra
employees to begin with: no other employee had a written employment
contract. Squyres was initially hired and paid a high salary to compensate him
for the sale of his business to S-Line. The Agreement did not guarantee
renewal, and it did not guarantee any form of employment beyond the initial
three-year term. Appellees therefore were not obligated to maintain Squyres’s
employment after the Agreement expired, and Squyres had no right to
continue in his Vice President position. In short, because Squyres’s
employment began unlike any other employees’, it is not evidence of pretext
that it ended differently as well.
      Squyres also does not explain what the terms of his employment would
or should have been had Appellees simply allowed him to continue working
after his Agreement expired. It is unclear how much he would have been paid,
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what his responsibilities would have been, and whether he would have received
commissions. Squyres and Appellees were not able to agree on these key
employment terms, regardless of Squyres’s job title or whether an agreement
was put in writing. As Frediani wrote to Squyres, it became clear “that Ancra
[was] unable to provide [Squyres] with an employment agreement that [met]
[Squyres’s needs].” Because Squyres does not dispute that he could not reach
an agreement with Appellees, even after several days of negotiations, this
argument fails to raise a genuine issue of fact over pretext.
      As final evidence of pretext, Squyres points to two sets of stray remarks:
one remark that Squyres himself made, and another set of remarks that
colleagues made. First, because of its close temporal proximity to Frediani’s
employment decision, Squyres contends that his comment to Daugherty in
Human Resources that he planned to work until ninety is evidence of pretext.
But it is unclear how Squyres’s own statement could serve as evidence that his
employer discriminated against him because of his age. Squyres’s comment, at
most, demonstrated that Daugherty knew how old Squyres was. It does not
demonstrate that Daugherty harbored age-based animus against Squyres.
Moreover, Daugherty did not make the decisions related to Squyres’s
employment, and there is no evidence that Daugherty communicated this
comment to Frediani (the ultimate decisionmaker) or any other S-Line
employees. It is true that Daugherty was at a meeting with Frediani where
they discussed Squyres’s employment. But Daugherty testified that he did not
convey Squyres’s comment about his age; instead, he only told Frediani that
Squyres had “expressed an interest in continuing to work with us.” With no
evidence that Daugherty ever conveyed Squyres’s age-based statement to any
other employee, it is not evidence of pretext.
      Next, Squyres also argues that the district court erred in discounting his
coworkers’ “old guy” comments as evidence of pretext. According to Squyres,
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                                       No. 13-11358
Paul Delaney used to call Squyres “old guy.” Similarly, Ralph Abato would
occasionally call Squyres an “old man” in response to Squyres’s calling Abato
a “young guy[].” 7 This argument also fails. The district court properly analyzed
this argument under the standard that this court articulated in Russell v.
McKinney Hosp. Venture, 235 F.3d 219, 226 (5th Cir. 2000). 8 Under Russell,
when an employee offers workplace comments as circumstantial evidence of
age discrimination, the court applies a flexible two-part test, under which the
comments must show: “(1) discriminatory animus (2) on the part of a person
that is either primarily responsible for the challenged employment action or by
a person with influence or leverage over the relevant decisionmaker.” Reed,
701 F.3d at 441; see also Laxton v. Gap Inc., 333 F.3d 572, 583 (5th Cir. 2003).
Squyres fails to meet the first element.
       A reasonable jury could not conclude that Squyres’s coworkers’
comments demonstrated discriminatory animus. Squyres emphasized that
these comments were sporadic and that he did not find them offensive. More
importantly, Squyres also testified that he knew that Delaney and Abato were
“pushing for [Squyres] to stay with the company,” undercutting his argument
that the two men discriminated against him. Indeed, as another employee
testified, both men vouched for Squyres, explaining that they believed Squyres



       7  Paul Delaney was the Director of Consumer Products at Ancra, and Ralph Abato
was the Vice President of Sales and Marketing at Ancra.
        8 Although it has cited Russell, the Texas Supreme Court has not expressly adopted

the two-part Russell test. See Reed, 701 F.3d at 442 n.6. Citing Fifth Circuit law, it has held
that “[s]tray remarks, remote in time from [the employee’s] termination, and not made by
anyone directly connected with the [employment] decisions, are not enough to raise a fact
question about whether [the employer’s] reason for terminating [the employee] was
pretextual.” M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 25 (Tex. 2000)
(per curiam) (citing Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41–42 (5th Cir. 1996);
Waggoner v. City of Garland, Tex., 987 F.2d 1160, 1166 (5th Cir. 1993)). Because Texas courts
have consistently looked to federal case law in interpreting the TCHRA, this court has
applied the Russell standard when analyzing TCHRA claims. See Reed, 701 F.3d at 441–42
& n.6.
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                                   No. 13-11358
added value to the company. Given the full context of these comments, they do
not suggest age-based animus. Compare Reed, 701 F.3d at 441–42 (holding
that stray remarks were not evidence of age animus in part because they were
“sporadic”), and Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 900 (5th Cir.
2002) (holding that a similar “old guy” comment, made in response to a “young
guy” comment, was not evidence of discriminatory animus), with Russell, 235
F.3d at 226 (holding that an “old bitch” comment was evidence of
discriminatory animus when it was made so frequently that the plaintiff had
to wear earplugs and when the comments continued even after the plaintiff
confronted the employee about what he was saying).
         In conclusion, because Squyres has failed to meet his burden of raising a
genuine issue of fact on pretext, the district court did not err in granting
summary judgment in favor of Appellees.
   II.      Discovery Motions
            A. Standard of Review
         This court applies the same standard of review when analyzing all three
case-management orders that Squyres challenges on appeal: the district
court’s denial of two continuance motions and its denial of Squyres’s motion for
leave to amend his complaint. This court reviews all three orders for abuse of
discretion. See Leal, 731 F.3d at 417 (motion to amend); HC Gun & Knife
Shows, Inc. v. City of Houston, 201 F.3d 544, 549–50 (5th Cir. 2000) (motion
for continuance). Under Federal Rule of Civil Procedure 16(b)(4), “[a]
[scheduling order] may be modified only for good cause and with the judge’s
consent.” To show good cause, the party seeking to modify the scheduling order
has the burden of showing “that the deadlines cannot reasonably be met
despite the diligence of the party needing the extension.” Filgueira v. US Bank
Nat’l Ass’n, 734 F.3d 420, 422 (5th Cir. 2013) (per curiam) (internal quotation
marks and citation omitted). There are four relevant factors to consider when
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                                  No. 13-11358
determining whether there is good cause under Rule 16(b)(4): “(1) the
explanation for the failure to timely [comply with the scheduling order]; (2) the
importance of the [modification]; (3) potential prejudice in allowing the
[modification]; and (4) the availability of a continuance to cure such prejudice.”
Meaux Surface Protection, Inc. v. Fogleman, 607 F.3d 161, 167 (5th Cir. 2010)
(internal quotation marks and citation omitted).
      Rule 16(b) also governs Squyres’s motion for leave to amend. Although,
Rule 15(a) of the Federal Rules of Civil Procedure ordinarily governs the
amendment of pleadings, “Rule 16(b) governs the amendment of pleadings
after a scheduling order’s deadline to amend has expired.” Filgueira, 734 F.3d
at 422 (internal quotation marks and citation omitted). “If a party shows good
cause for missing the deadline, then the more liberal standard of Rule 15(a)
will apply to the district court’s denial of leave to amend.” Id. (internal
quotation marks and citation omitted).
           B. Continuance Motions
      On appeal, Squyres challenges the district court’s denial of two
continuance motions. Squyres filed his first continuance request on June 11,
2013, merely ten days before the original discovery deadline of June 21.
Because Squyres requested the continuance, it was his burden to establish
good cause. Id. Squyres only presented two reasons to the district court to
justify his request: his lawyer’s ankle injury and the parties’ agreement to
delay discovery pending the district court’s resolution of Appellees’ motion to
dismiss.
      The district court’s denial of this first continuance motion was not an
abuse of discretion. In its order denying the motion, the district court did not
comment on the ankle injury. It is hard to see how this was an error. By
Squyres’s own admission, his lawyer broke her ankle on May 25, after
Squyres’s delayed May 22 request to schedule depositions. Thus, the ankle
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                                  No. 13-11358
injury does not account for Squyres’s delay in initiating deposition discovery.
The only explanation, then, for the delay in conducting discovery between the
October 31, 2012 scheduling order and Squyres’s May 22, 2013 deposition
request is the parties’ “self-imposed” agreement to delay discovery. The district
court reasonably rejected this reason. The district court ruled on Appellees’
motion to dismiss on December 18, 2012, leaving the parties six months to
finish discovery, even under their own agreed-upon plan. Squyres’s
continuance motion made no attempt to explain why he then waited five
months to schedule depositions, and the district court was therefore well
within the bounds of its discretion in denying Squyres’s first continuance
motion. See Reliance Ins. Co. v. La. Land & Exploration Co., 110 F.3d 253, 257
(5th Cir. 1997) (finding no abuse of discretion when the plaintiff “offered no
justification for its delay”).
      The district court also did not abuse its discretion when it denied the
second continuance motion. The parties jointly filed this motion on July 29,
2013, one week after discovery had closed under the new July 21 deadline. The
district court swiftly denied this motion, again reiterating that the parties’
delay in conducting discovery was self-imposed. The district court also
explained that the parties’ other excuses—pre-paid vacations, the July 4th
holiday, a July trial in another case, the lawyer’s broken ankle, and a family
medical issue—did not justify the relief that the parties’ requested. Moreover,
on appeal, Squyres does not point to any deadline that either party missed.
What’s more, Squyres never filed a Rule 56(d) motion in response to Appellees’
motion for summary judgment, and he has not identified any discovery that he




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                                       No. 13-11358
was unable to take. 9 Hindsight therefore reinforces that the district court did
not abuse its discretion in denying the second continuance motion.
           C. Motion for Leave to Amend
       Finally, Squyres sought leave to amend his complaint on August 22,
2013. By that time, the December 31, 2012 deadline to amend pleadings had
long since passed. Therefore, because Squyres sought to amend his pleadings
after the deadline set in the scheduling order, Squyres had to satisfy Rule
16(b)’s standard and again demonstrate that he could not reasonably have met
this deadline despite exercising diligence. Filgueira, 734 F.3d at 422. Citing
both Rule 16 and Rule 15, the district court denied Squyres’s motion,
concluding that Squyres had failed “to show that a third amended complaint
should be permitted at this stage in the litigation.”
       Squyres fails to show good cause for his delay. Squyres’s only reason for
failing to amend his complaint sooner is that he did not have the basis to allege
a fraud claim until after he had deposed Frediani in mid-August 2013. Squyres,
however, had informed the district court back in September 2012 that there
was a possibility he would amend his complaint to include a fraudulent
misrepresentation claim. Despite this knowledge, Squyres then waited almost
a year to seek leave to amend his complaint. See E.E.O.C. v. Serv. Temps Inc.,
679 F.3d 323, 334 (5th Cir. 2012) (affirming that the district court had acted
within its discretion in denying leave to amend because the plaintiff’s
“reasonable suspicion” of a potential claim “accent[ed] [the plaintiff’s] inability
to explain the delay” in asking for leave to amend). Even assuming that it was
reasonable for Squyres to delay amending his complaint until after he had
deposed Frediani, his delay in scheduling Frediani’s deposition was self-



       9Appellees’ employees even agreed to, and did, sit for their depositions after the July
21 discovery deadline had passed.
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                                 No. 13-11358
imposed, as discussed above. See Lozano v. Ocwen Fed. Bank, FSB, 489 F.3d
636, 644 (5th Cir. 2007) (affirming the district court’s denial of leave to amend
under Rule 15 because the plaintiffs “had been aware of the factual
underpinnings of the [new] fraud claim for some time, and . . . they had not
been diligent in pursuing the claim”).
      In addition to failing to explain his delay (both in seeking leave to amend
and in scheduling Frediani’s deposition), Squyres also fails to demonstrate that
the amendment would have caused no prejudice to Appellees. Because
Appellees had sought no discovery related to Squyres’s fraud claim, allowing
amendment would have imposed additional discovery costs. Moreover,
Appellees had already filed their summary judgment motion by the time
Squyres sought leave to amend. Thus, not only would the district court have
needed to reopen discovery, but it also would have needed to allow another
round of dispositive motions. See Parish v. Frazier, 195 F.3d 761, 764 (5th Cir.
1999) (per curiam) (noting that this court, even under the more liberal Rule 15
standard, “more carefully scrutinize[s] a party’s attempt to raise new theories
of recovery by amendment when the opposing party has filed a motion for
summary judgment”).
      Squyres’s final argument is that the district court abused its discretion
because it ignored his quid pro quo agreement with Appellees. This argument
does not help Squyres. For one, the district court was not bound by the parties’
agreement and instead had “broad discretion to preserve the integrity and
purpose of the pretrial order.” S&W Enters., L.L.C. v. SouthTrust Bank of Ala.,
NA, 315 F.3d 533, 535 (5th Cir. 2003) (internal quotation marks and citation
omitted); see also Fed. R. Civ. P. 16(b)(4) (stating that a scheduling order “may
be modified only for good cause and with the judge’s consent” (emphasis
added)). Next, it was also not an abuse of discretion for the district court to
grant Appellees’ motion to amend their answer, but to deny Squyres’s motion
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                                  No. 13-11358
to amend his complaint. Although the deadline to amend the pleadings had
also already passed when Appellees filed their motion for leave to amend,
Appellees had not yet filed their summary judgment motion and discovery had
not yet closed under the new July 21 deadline. Squyres, on the other hand, did
not file his motion until the end of August, after discovery had closed, after
Appellees had filed their motion for summary judgment, and just two days
before Squyres’s response to the summary judgment motion was due. It was
therefore not an abuse of discretion for the district court to conclude that
Squyres’s motion came too late in the litigation.
      In sum, the district court acted within its discretion when it denied the
three motions to modify the scheduling order that Squyres challenges on
appeal.
                               CONCLUSION
      For these reasons, we AFFIRM the district court’s grant of summary
judgment in favor of Appellees.




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                                 No. 13-11358
JONES, Circuit Judge, concurring:
      I am pleased to concur in Judge Higginson’s opinion, which follows the
district court’s approach in holding that Squyres could not raise a genuine,
material fact issue that his separation from the company was motivated by age
discrimination. There is an easier path to this outcome, however. There is no
genuine, material disputed issue that Squyres had any right to further
employment by the Appellees when his three-year consulting contract expired
by its own terms. The panel opinion accurately explains that the parties’
relationship here was unique. Squyres had the only employment agreement
in the company because it was part of the lucrative transaction in which he
sold his business to S-Line. The Agreement guaranteed neither renewal nor
extension of any kind after its three-year term of employment. Consequently,
as Judge Higginson’s opinion notes, Appellees were not obliged to retain
Squyres on the payroll, and he had no right to continue in his position. When
the employment agreement terminated, Squyres did not suffer a material
adverse employment action, i.e. a discharge. Berquist v. Washington Mut.
Bank, 500 F.3d 344, 349 (5th Cir. 2007). Because of this deficiency, Squyres
could not assert a prima facie case of discrimination.
      That the Appellees here chose to negotiate with Squyres over potentially
different, or lesser, employment following the end of the employment
agreement gives Squyres no additional legal rights. We are cited to no decision
holding that Title VII or the TCHRA may become a device to extend a bona
fide employment contract beyond its fixed term. This is not a case of alleged
failure to hire (or rehire) for discriminatory reasons; Squyres makes no claim
that the company intended to hire someone else for his special position. This
case also raises no inference of a pattern of selective, arguably discriminatory
application of employment contracts. In sum, the interests of judicial efficiency
and minimizing litigation costs would have been best served by a trial court
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                                No. 13-11358
ruling that the expiration of Squyres’s employment agreement eliminated his
antidiscrimination claims. I do not understand Judge Higginson’s opinion to
reject my conclusion, but only to rule on the factually more complex basis that
Squyres failed to show pretext in the Appellees’ reasons why they did not reach
a deal with him for further employment.




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