     Case: 14-20241   Document: 00513117616        Page: 1   Date Filed: 07/16/2015




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


                                 No. 14-20241                                 FILED
                                                                          July 16, 2015
                                                                         Lyle W. Cayce
MAURICE R. GOUDEAU,                                                           Clerk

                                              Plaintiff – Appellant,
v.

NATIONAL OILWELL VARCO, L.P.,

                                              Defendant – Appellee.



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


Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:
      Maurice Goudeau appeals the district court’s summary judgment
dismissal of his age discrimination and retaliation claims. For the reasons that
follow, we affirm the dismissal of the retaliation claim but reverse the
dismissal of the discrimination claim.
                                         I.
      The following background construes factual disputes in favor of Goudeau
as courts must when the opposing party has moved for summary judgment.
      Goudeau began his career in 1993 as a mechanic and millwright at
ReedHycalog. He was promoted through the ranks and obtained the position
of maintenance supervisor, a post he held when ReedHycalog was acquired by
National Oilwell Varco (NOV) in 2008. Goudeau continued to be employed as
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                                 No. 14-20241
a maintenance supervisor at NOV’s Conroe, Texas facility until he was
terminated in 2011 at the age of fifty-seven.
      At NOV, Goudeau first worked under a supervisor named Tim Taylor.
During that time, Goudeau had no disciplinary problems.          In August or
September 2010, Mike Perkins became Goudeau’s supervisor. On one occasion,
when they stepped outside to smoke, Perkins told Goudeau that “there sure
are a lot of old farts around here,” and asked Goudeau about his job duties. In
the same exchange, Perkins inquired about the ages of two older employees
whom he also supervised, Joe Jett and Bill Fisher, and how long they had been
working for NOV. Perkins then said that he planned to fire both Jett and
Fisher.
      Goudeau complained to Human Resources (HR) about Perkins’s “old
farts” comment and about the plan to fire the older workers. Although the HR
representative told Goudeau a meeting would be arranged with Perkins, it is
unclear if HR ever actually discussed the allegations with Perkins. In any
case, following the HR complaint, Perkins stopped socializing with Goudeau,
reduced Goudeau’s managerial authority, and “really turned the heat up on
[him].” Perkins also continued to make ageist remarks. On a number of
occasions, Perkins asked if the facility’s smoking area was “where the old
people meet.”   Perkins also once remarked that Goudeau wore “old man
clothes.” Goudeau contends that Perkins also referred to Goudeau as an “old
fart.” Goudeau does not recall the exact dates when Perkins made the various
ageist comments described above, other than that they were all made
sometime between August/September 2010, when Perkins became Goudeau’s
supervisor, and January 2011, when Goudeau received his first disciplinary
write-up.
      Perkins issued Goudeau that “First Warning” for ignoring a direct
request to complete a task. It was the first disciplinary action of Goudeau’s
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                                   No. 14-20241
eighteen-year career with NOV and its predecessor. Goudeau signed the write-
up, but filed written objections to the substance of the allegations and
complained to HR that the write-up was a retaliatory measure for opposing
Perkins’s plan to fire Jett and Fisher. In March 2011, Goudeau received his
first annual performance review from Perkins and was given a below-standard
rating. Goudeau again complained to HR that the poor review was retaliation,
and filed a written statement disputing the deficiencies listed in the review.
      The remaining documents in Goudeau’s personnel file consist of four
write-ups—three are dated July 2011 and one is dated August 2011. Goudeau
maintains that he not was presented with these four write-ups until the
meeting on August 11 when he was terminated. The three July write-ups
include: a “Second Warning,” for failing to get machines repaired and costing
the plant unnecessarily; a “Third Warning,” for failing to perform a monthly
inspection of fire extinguishers; and a “Final Warning” for failing to commence
an assigned project. Each of these write-ups was signed by Perkins and HR on
July 15, 2011, even though the violations described in each write-up occurred
on different dates. The “Second Warning” involved a violation that occurred
on June 26, 2011. The “Third Warning” described a violation that occurred on
July 12, 2011. The “Final Warning” detailed a violation that occurred on July
14, 2011.   None contains Goudeau’s signature, even though there is an
“acknowledgement of receipt of warning” section with a line for “employee
signature.” Moreover, Goudeau contends that the infractions described in the
write-ups did not involve tasks within his job duties. The personnel file also
contains a fifth write-up— a second “Final Warning,” dated August 10, 2011,
for failing to complete a task requested by Perkins on August 9, 2011. This
write-up contains no signatures.




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                                       No. 14-20241
       At the August 11 meeting at which Goudeau contends he first saw these
written warnings, 1 Perkins terminated Goudeau’s employment citing poor job
performance and insubordination. Goudeau was not replaced; his duties were
instead absorbed by existing employees. At some point after the “old farts”
discussion, Perkins also terminated Fisher due to performance problems. Jett,
meanwhile, was terminated by HR after failing a random alcohol test.
       Goudeau brought suit asserting claims of age discrimination and
retaliation in violation 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. §§ 21.051, 21.055. ROA. 22–28. The district
court granted summary judgment in favor of NOV on both claims. Goudeau
timely appealed.
                                              II.
       We review a grant of summary judgment de novo. Reed v. Neopost USA,
Inc., 701 F.3d 434, 438 (5th Cir. 2012). In doing so, we “draw all reasonable
inferences in favor of the nonmoving party, and avoid credibility
determinations and weighing of the evidence.” Sandstad v. CB Richard Ellis,
Inc., 309 F.3d 893, 896 (5th Cir. 2002) (citing Reeves v. Sanderson Plumbing
Prods. Inc., 530 U.S. 133, 150 (2000)).




       1   Goudeau’s testimony is inconsistent concerning whether Perkins had orally
communicated the performance problems discussed in these warnings prior to the day of his
termination. Goudeau concedes that Perkins talked to him about the incidents alleged in the
second write-up, and fourth write-up (i.e., the first “Final Warning”). But in another part of
the record, Goudeau appears to concede that Perkins discussed the incidents contained in all
of the write-ups with him in “passing” before his termination. Inconsistent with this position
is Goudeau’s claim elsewhere in the record that, “Because [he] was unaware of these issues
prior to [his] termination, [he] was not given the opportunity to improve or correct the alleged
performance problems.”
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                                      No. 14-20241
                                             A.
       The ADEA and the TCHRA both prohibit an employer from discharging
an employee on account of that employee’s age. 2 See 29 U.S.C. § 623(a)(1);
Tex. Lab. Code Ann. § 21.051. Because “there will seldom be eyewitness
testimony as to the employer’s mental processes,” Reeves, 530 U.S. at 141
(citation and quotation marks omitted), claims brought under these laws
typically rely on circumstantial evidence that is evaluated under the burden-
shifting framework first articulated in McDonnell Douglas for Title VII claims
of employment discrimination. See Bienkowski v. Am. Airlines, Inc., 851 F.2d
1503, 1504–05 (5th Cir. 1988) (citing McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973)). “Under McDonnell Douglas, a plaintiff must first establish a
prima facie case of age discrimination by showing that (1) he was discharged;
(2) he was qualified for the position; (3) he was within the protected class at
the time of discharge; and (4) he was either i) replaced by someone outside the
protected class, ii) replaced by someone younger, or iii) otherwise discharged
because of his age.” Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir.
2005) (citation and quotation marks omitted). If the plaintiff successfully
makes out a prima facie case, the burden shifts to the employer to articulate a
legitimate, nondiscriminatory reason for the termination. Id.
       Only at the third and final “pretext” stage of this analysis do the federal
and state laws provide different standards. Squyres v. Heico Cos., L.L.C., 782
F.3d 224, 231 (5th Cir. 2015) (“The third step of the McDonnell Douglas
analysis involves a different causation inquiry under the ADEA and the



       2 The analytical framework for Goudeau’s ADEA claim applies equally to his TCHRA
claim, except when otherwise noted. See NME Hospitals, Inc. v. Rennels, 994 S.W.2d 142,
144 (Tex. 1999) (“The [TCHRA] purports to correlate state law with federal law in the area
of discrimination in employment . . . Thus, in light of the Legislature's express purpose, we
look to analogous federal precedent for guidance when interpreting the Texas Act.” (citations
and quotation marks omitted)).
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                                  No. 14-20241
TCHRA.” (citing Reed, 701 F.3d at 440)). “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.’” Squyres, 782 F.3d at 231 (quoting Reeves, 530 U.S. at 143).
The ADEA thus requires a showing of “but-for” causation. See Squyres, 782
F.3d at 231 (citations omitted).     The TCHRA requires a less demanding
showing as a plaintiff can prove discrimination at the third stage by
establishing that “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.” Reed,
701 F.3d at 439–40 (quoting Michael v. City of Dallas, 314 S.W.3d 687, 691
(Tex. App.—Dallas 2010, no pet.)); see also Quantum Chem. Corp. v. Toennies,
47 S.W.3d 473, 480 (Tex. 2001).
      Although the district court found that Goudeau established a prima facie
case of age discrimination, we begin with that issue because NOV challenges
that finding and we may uphold a grant of summary judgment on an
alternative ground raised below and supported by the record. See Rogers v.
Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014). The first three
elements of Goudeau’s prima facie case are undisputed: Goudeau was qualified
for the position and older than 40 when he was discharged. See 29 U.S.C.
§ 631(a). Goudeau contends that the ageist comments satisfy the fourth prima
facie element—that he was “otherwise discharged because of his age.” NOV
counters that the remarks Goudeau attributes to Perkins are insufficient
under the four-part “stray remarks” test articulated in Brown v. CSC Logic,
Inc., 82 F.3d 651, 655 (5th Cir. 1996).     This issue requires us to again
emphasize the two different contexts in which we evaluate so-called “stray
remarks” evincing discrimination. See Reed, 701 F.3d at 441 n.5 (recognizing


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                                 No. 14-20241
that “this court’s application of this distinction has been somewhat messy,
complicating matters for district courts”).
      The CSC Logic test that NOV invokes requires that any ageist remark
be proximate in time to the terminations, made by an individual with authority
over the employment decision, and related to the challenged decision. 82 F.3d
at 655. That more demanding test applies, however, only when the remarks
are being used as direct evidence of discrimination. Reed, 701 F.3d at 441
(explaining that CSC Logic test applies only to comments offered as direct
evidence of discrimination). Such a case is analyzed outside the more common
McDonnell-Douglas framework, as the comments are being relied on to prove
the entire case of discrimination. We thus allow such comments to defeat
summary judgment—that is to serve as sufficient evidence that by itself would
allow a jury to find discriminatory motive—only if they are not stray, but
instead are tied to the adverse employment action at issue both in terms of
when and by whom they were made. See Jackson v. Cal-W. Packaging Corp.,
602 F.3d 374, 380 (5th Cir. 2010) (stating, in analyzing “old, gray-haired fart”
remark offered as direct evidence of age discrimination, that “[c]omments that
do not meet [CSC Logic’s] criteria are considered ‘stray remarks,’ and standing
alone, are insufficient to defeat summary judgment”) (citations omitted).
      In a circumstantial case like this one, in which the discriminatory
remarks are just one ingredient in the overall evidentiary mix, we consider the
remarks under a “more flexible” standard. See Reed, 701 F.3d at 441 (citing
Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226 (5th Cir.2000)). To be
relevant evidence considered as part of a broader circumstantial case, “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.’” Squyres,
782 F.3d at 236 (quoting Reed, 701 F.3d at 441). The district court properly
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                                       No. 14-20241
found that comments allegedly made by Goudeau’s supervisor about, among
other things, “old farts” and Goudeau wearing “old man clothes” easily meet
this less stringent standard. 3 See, e.g., Rachid v. Jack In The Box, Inc., 376
F.3d 305, 313 (5th Cir. 2004) (finding ADEA plaintiff “easily establishe[d] a
prima facie case” when terminating supervisor had made ageist comments
about plaintiff and plaintiff had complained to human resources about the
comments); see also Machinchick, 398 F.3d at 353 (finding that “age
stereotyping remarks” made by terminating supervisor to plaintiff supported
inference of age discrimination at prima facie stage). And the comments are
not the only evidence Goudeau can point to in support of showing that he was
discharged because of age. Perkins also terminated one of the two “old fart”
coworkers whom he allegedly told Goudeau he was going to fire after asking
about their age; the second “old fart” was terminated by HR for failing an
alcohol test.
       We therefore conclude that Goudeau has satisfied his initial burden.
NOV has also satisfied its burden of production in identifying two
nondiscriminatory reasons for the termination—poor performance and
insubordination.      The age discriminations claims thus come down to the
pretext question which is the stage at which the district court found Goudeau’s
evidence insufficient.
       At this step of the McDonnell Douglas analysis, an ADEA plaintiff must
prove “that the legitimate reasons offered by the defendant were not its true
reasons, but were a pretext for discrimination.” Squyres, 782 F.3d at 231



       3Although the Texas Supreme Court has not spoken on the issue, we have recently
concluded that “because Texas courts consistently look to federal case law in interpreting the
TCHRA,” the state courts would likely follow the two-part Russell test for considering
discriminatory remarks in circumstantial cases. Reed, 701 F.3d at 442 n.6; see also Squyres,
782 F.3d at 238 n.8 (noting same and applying Russell to ageist comments offered as
circumstantial evidence in TCHRA claim).
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(quoting Reeves, 530 U.S. at 143). “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.’” Reeves, 530
U.S. at 143 (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981)); see also Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010).
As the district court noted, “[t]he issue at the pretext stage is whether [the
employer’s] reason, even if incorrect, was the real reason for [the plaintiff’s]
termination.” Sandstad, 309 F.3d at 899. “[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.” Reeves, 530 U.S. at 147–48.
      Goudeau seeks to undermine the genuineness of NOV’s explanations on
two fronts.   First, he contends that the warnings he was given involved
infractions related to tasks not within his job duties. For example, with respect
to the second warning for failing to get machines repaired, and the third
warning for failing to perform a monthly fire extinguisher inspection, Goudeau
claims these were not tasks within his job duties but were the responsibilities
of other managers. Second, he argues that the fact he was not given the four
written warnings until the day he was fired, even though they related to events
occurring on different dates before that meeting, shows that these infractions
were just an attempt to conceal the discriminatory motivation.
      We are convinced that the doubts that Goudeau has raised about the
warnings, combined with the ageist comments that are potentially
corroborated by the firing of both Goudeau and Fisher, would allow a jury to
conclude that age was the reason for the termination. See Russell, 235 F.3d at
224 (holding that evidence that plaintiff “was not given a formal oral warning,
a written warning, or a ‘corrective action plan,’ all of which are required by [the
employer’s] own internal procedures” prior to being terminated, among other
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                                  No. 14-20241
evidence, was sufficient to create jury issue on pretext); Laxton v. Gap Inc., 333
F.3d 572, 581 (5th Cir. 2003) (holding, in a Title VII pregnancy discrimination
case, that evidence was sufficient to create jury issue on pretext when, among
other things, plaintiff’s “supervisors never gave [the plaintiff] the chance to
explain her conduct or improve it” prior to terminating her and noting that
“[h]ad [the employer] bothered to do so, progress might have been made”). The
district court did not consider as pretext evidence the ageist comments it found
sufficient to establish a prima facie case. The Supreme Court has instructed,
however, that the strength of the prima facie evidence may also be considered
at the pretext stage, see Reeves, 530 U.S. at 148, and we have more directly
held that comments showing discriminatory animus are part of the analysis at
this stage. See, e.g., Russell, 235 F.3d at 225 n.9 (noting that remarks by a
supervisor showing discriminatory animus may “be utilized by a plaintiff to
demonstrate pretext”). This makes sense as the pretext inquiry is asking the
ultimate question whether a jury could find that discrimination caused the
termination. See Reeves, 530 U.S. at 142–43.
      NOV responds to the questions surrounding the written warnings by
correctly pointing out that the law does not require warnings; it could have
fired an at-will employee like Goudeau for his first infraction or without any
cause, so long as there was no discriminatory motive. We have recognized,
however, that when an employer opts to have a disciplinary system that
involves warnings, failure to follow that system may give rise to inferences of
pretext. See Machinchick, 398 F.3d at 354 n.29 (noting that even the non-
mandatory nature of a progressive discipline plan did “not eliminate the
inference of pretext raised by [the] failure to follow an internal company policy
specifically stating that it should be ‘followed in most circumstances’”); cf.Feist
v. Louisiana, Dep’t of Justice, Office of the Atty. Gen., 730 F.3d 450, 454–55 (5th
Cir. 2013) (noting that relevant evidence for establishing prima facie
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                                     No. 14-20241
retaliation case “may include . . . an employer’s departure from typical policies
and procedures”). And Goudeau’s evidence bears more directly on pretext than
a failure to follow steps in a progressive discipline policy; he contends that the
employer manufactured steps in the disciplinary policy by issuing written
warnings to paper his file after it had decided to fire him.               If Goudeau’s
testimony that he never saw the warnings until he was terminated is believed,
and we must believe it at this stage, 4 the very purpose of the warnings—
presumably to warn so that an employee may take corrective steps to avoid
losing his job—is undermined and thus may give rise to an inference of pretext.
      At the end of the day, the pretext inquiry asks whether there is sufficient
evidence “demonstrating the falsity of the employer’s explanation, taken
together with the prima facie case,” to allow the jury to find that discrimination
was the but-for cause of the termination. See Sandstad, 309 F.3d at 897.
Perhaps the best way to answer that question is by considering a succinct
summation that Goudeau’s lawyer could make at trial based on the evidence
presented at the summary judgment stage:
            Mr. Goudeau’s new boss repeatedly made negative
      comments about old people. He said Goudeau wore “old man
      clothes,” called him an “old fart,” and said a smoking area was
      “where the old people meet.” The supervisor also made a comment
      that “there sure are a lot of old farts around here” during a
      conversation in which he asked Goudeau about the ages of two
      other employees. After hearing their ages, he said he was going to
      fire them. The boss followed through on that statement and
      ultimately fired two of the three “old farts,” including Mr.
      Goudeau. He couldn’t fire the third only because he left the
      company for another reason.
            NOV says that it fired Goudeau because of his poor
      performance. Those complaints about Goudeau only started with
      this new boss after 18 years of a solid work record with the


      4There is also corroborating evidence given that his signature does not appear in the
employee acknowledgement section of any of the forms.
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                                  No. 14-20241
      company. The final four warnings involved duties that were not
      Goudeau’s responsibility. And those written warnings sure are
      suspicious because Goudeau never received them prior to being
      fired—what’s the point of that kind of warning—and three of them
      were signed by his supervisor on the same date even though the
      infractions supposedly happened on different days.


NOV would no doubt offer a compelling closing argument in response. It
vigorously disputes Goudeau’s testimony concerning both the ageist comments
and the warnings. And a jury may well disbelieve Goudeau’s testimony on all
these points or find that there are innocent explanations for the problems with
the warnings that he identifies. But given the summary judgment stage at
which we must credit Goudeau’s testimony and find inferences in his favor, we
conclude that the evidence he has identified is sufficient to allow a finding that
age discrimination was the cause of his termination in violation of the ADEA.
That necessarily means the evidence meets the lesser “motivating factor”
standard under Texas law.
                                            B.
      We reach a different result with respect to the retaliation claim. The
ADEA’s antiretaliation provision prohibits an employer from discriminating
against an employee for opposing an unlawful practice or asserting a charge,
testifying, assisting, or participating in an ADEA proceeding or investigation.
29 U.S.C. § 623(d).     The TCHRA similarly prohibits retaliation for such
conduct. Tex. Lab. Code Ann. § 21.055. “The analytical framework for a
retaliation claim is the same as that used in the employment discrimination
context.” Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001). To
establish a prima facie retaliation case, a plaintiff must show that “1) he
engaged in protected activity; (2) he suffered an adverse employment decision;
and (3) a causal link exists between the protected activity and the adverse
employment decision.” Id.
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                                    No. 14-20241
      Goudeau alleges that Perkins fired him in retaliation for Goudeau
reporting the “old fart” comments to HR. 5 We agree with the district court that
Goudeau is unable to establish the causal link in light of the temporal gap of
8–10 months between Goudeau’s complaint to HR and the adverse employment
action (Goudeau’s termination) and the absence of evidence that Perkins even
knew of the complaint to HR about the “old farts” comment.
      We therefore AFFIRM in part and REVERSE in part the judgment of
the district court and REMAND for further proceedings.




      5   Goudeau does not recall the exact date when he lodged his complaint with HR
regarding Perkins’s “old farts” comment, only that it was sometime before he received his
first write-up in January 2011.
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