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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-11196

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 DefendantAppellee 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

United States Court of Appeals

Fifth Circuit

F I L E D

September 16, 2009

Charles R. Fulbruge III

Clerk
No. 08-11196

 KMGP is a subsidiary of Kinder Morgan, Inc. 1

2

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 KMGP1

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
No. 08-11196

3

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
No. 08-11196

 Cervantez construes the record as establishing that Spence conceded that KMGP 2

“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.

4

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. The second log showed attempts to access prohibited websites on 2

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.
No. 08-11196

Alaska Elec. Pension Fund v. Flowserve Corp., 572 F.3d 221, 227 (5th Cir. 2009) (per 3

curiam).

 Thermacor Process, L.P. v. BASF Corp., 567 F.3d 736, 740 (5th Cir. 2009) (per 4

curiam) (quoting FED. R. CIV. P. 56(c)).

Deville v. Marcantel, 567 F.3d 156, 163–64 (5th Cir. 2009) (per curiam). 5

 29 U.S.C. § 623(a). 6

Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2351 (2009). The Supreme Court’s 7

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.

Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896–97 (5th Cir. 2002) (citing 8

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

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.’” “On a motion for summary judgment, the 4

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.” To establish an ADEA claim, “[a] plaintiff 6

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. Under 8
No. 08-11196

Douglas . . . , utilized in Title VII cases is appropriate in the ADEA context.”). 

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). 9

Sandstad, 309 F.3d at 897; see 29 U.S.C. § 631 (applying the ADEA only to 10

individuals at least forty years old).

Reeves, 530 U.S. at 142 (internal quotation marks and citation omitted); see 11

Sandstad, 309 F.3d at 897.

Reeves, 530 U.S. at 142–43 (internal quotation marks and citation omitted). 12

Id. at 143 (internal quotation marks and citations omitted); see Sandstad, 309 F.3d 13

at 897.

6

this standard, the employee must first establish a prima facie case of

discrimination. A prima facie case requires that the employee prove that he (1) 9

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.” If the employer is able to meet this burden, “the McDonnell 11

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
No. 08-11196

Sandstad, 309 F.3d at 899; see Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 14

(5th Cir. 1995) (“The question is not whether an employer made an erroneous decision; it is

whether the decision was made with discriminatory motive.”).

 Mayberry, 55 F.3d at 1091 (quoting Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th

15

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)).

Sandstad, 309 F.3d at 897 (citing Reeves, 530 U.S. at 147–48). 16

See Twymon v. Wells Fargo & Co., 462 F.3d 925, 935 (8th Cir. 2006) (“[V]iolating a 17

company policy is a legitimate, non-discriminatory rationale for terminating an employee.”).

7

“The issue at the pretext stage is whether [the defendant’s] reason, even if

incorrect, was the real reason for [the plaintiff’s] termination.” Courts “‘do not 14

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 computeruse policy — constitutes a legitimate, nondiscriminatory reason for Cervantez’s

discharge. The McDonnell Douglas burden-shifting thus evaporates, and we 17

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
No. 08-11196

Ratliff v. City of Gainesville, 256 F.3d 355, 361 & n.9 (5th Cir. 2001) (quoting Reeves,

18

530 U.S. at 148).

Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568, 574 & n.4 (5th Cir. 2004). 19

 407 F.3d 332, 345 (5th Cir. 2005) (citing Reeves, 530 U.S. at 143). 20

8

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.’” Cervantez is correct that Reeves

18

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.” Review of the district 19

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.). In any event, we apply the correct standard in today’s de novo review.

20

Additionally, we emphasize — contrary to Cervantez’s argument — that a fired
No. 08-11196

See Waggoner v. City of Garland, 987 F.2d 1160, 1165 (5th Cir. 1993). 21

Palasota v. Haggar Clothing Co., 342 F.3d 569, 578 (5th Cir. 2003) (per curiam) 22

(citations and footnote omitted). 

9

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 thensupervisor, 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
No. 08-11196

Id. at 577. 23

Jenkins v. Methodist Hosps. of Dallas, Inc., 478 F.3d 255, 261 (5th Cir. 2007). 24

See Patel v. Midland Mem’l Hosp. & Med. Ctr., 298 F.3d 333, 344 (5th Cir. 2002) 25

(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).

See Palasota, 342 F.3d at 578. 26

See id. at 577. It is even unclear whether the substance of the alleged remark 27

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. 

10

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; (2) no reasonable factfinder could determine that Hagist, 25

who left KMGP eighteen months before Cervantez’s discharge, was “in a position

to influence the decision” to terminate him; and (3) as the only evidence of 26

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.