IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-40691

PAUL A. TAGLIABUE, JR., 

 Plaintiff - Appellant

v.

ORKIN, L.L.C., doing business as Orkin Pest Control, 

 Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 6:17-CV-13

Before DAVIS, HO, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

Paul Tagliabue, Jr., appeals the district court’s summary judgment in 

favor of his former employer, Orkin, L.L.C., dismissing his age discrimination 

claim. Tagliabue alleges that Orkin unlawfully discriminated against him by

forcing him to retire early because of his age, which he maintains is equivalent 

to being discharged in violation of the Age Discrimination in Employment Act, 

29 U.S.C. § 621, et seq. On appeal, he asserts that the district court erroneously

concluded that he did not establish a prima facie case of age discrimination. 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

December 13, 2019

Lyle W. Cayce

Clerk

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Tagliabue also maintains that he produced sufficient evidence to rebut Orkin’s 

proffered justification as pretext and to overcome summary judgment.

Assuming arguendo Tagliabue established a prima facie case, we AFFIRM 

because he failed to raise a genuine issue of material fact as to pretext.

I.

Tagliabue was employed by Orkin, L.L.C., doing business as Orkin Pest 

Control, as branch manager of the Victoria, Texas branch beginning in 1993 

until his alleged forced retirement in 2015. Tagliabue asserts he never 

indicated—and never put in writing—a definite date for his retirement and 

intended to stay several more years to train his replacement. On January 30, 

2015, however, John White, Orkin’s regional manager and Tagliabue’s 

supervisor,1 called Tagliabue and told him he had “his stuff taken care of” and 

he “could leave.” Tagliabue was paid through March 31, 2015, which included

his requested unaccrued vacation time—an exception to Orkin’s policy against 

such compensation. Tagliabue was age 67 at the time of the challenged 

employment decision. 

On March 7, 2017, Tagliabue sued his former employer, Orkin, L.L.C., 

for age discrimination under the Age Discrimination in Employment Act 

(ADEA), alleging that he was unlawfully discharged, i.e., forced to retire early,

because of his age. Orkin moved for summary judgment asserting that because 

Tagliabue voluntarily retired, he was not subject to an adverse employment 

action and failed to establish a prima facie case of age discrimination.

Alternatively, Orkin argued that Tagliabue could not rebut Orkin’s legitimate, 

non-discriminatory explanation that it held Tagliabue to his proposed 

retirement date. Tagliabue opposed the motion. 

 

1 White was Tagliabue’s direct supervisor from 2008–2015. 

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The district court granted Orkin’s motion for summary judgment, 

dismissing Tagliabue’s ADEA claim.2 The district court held that Tagliabue

failed to establish a prima facie case of age discrimination because he could not 

establish that he was discharged from his employment. The district court 

further held that the undisputed evidence showed that Tagliabue intended to 

retire and cooperated in the retirement process. Because it concluded that 

Tagliabue did not make a prima facie case of age discrimination, the district 

court did not fully address whether Tagliabue rebutted Orkin’s purported 

justification for its employment decision. The district court’s discussion is 

limited to its rejection of Tagliabue’s reliance on White’s “stray remarks” to 

assert that age was the basis for his termination. Tagliabue timely appealed. 

On appeal, Tagliabue asserts that the district court improperly granted 

summary judgment based on its erroneous finding that he was not subject to

an adverse employment action because he retired voluntarily. Instead, 

Tagliabue maintains that he established a prima facie case of age 

discrimination because he was forced to retire early, which he claims is 

equivalent to discharge. Tagliabue relies on evidence that he never put a 

retirement date in writing, as well as his testimony that he never set a specific 

date for his retirement and intended to work until his replacement, Janie 

Klare, was fully trained. Tagliabue also argues that Orkin deviated from its 

procedure by not allowing Tagliabue to finish training Klare, which he 

estimated could take three to four years. 

Tagliabue insists that Orkin forced him to retire on January 30, 2015, 

despite his request to work until at least August when his wife was eligible for 

Medicare. Tagliabue relies, in part, on his own testimony that Orkin 

 

2 Tagliabue also asserted a claim for violation of the Older Workers Benefit Protection 

Act, which was summarily dismissed by the district court. Tagliabue does not challenge this 

ruling on appeal.

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unilaterally set his retirement date. Additionally, Tagliabue cites testimony 

from the depositions of his former co-workers, Kenneth Moore and Janie Klare,

to support his assertions that he never set a retirement date and wanted to 

work several more years. Moore, a pest-control technician, remembered White 

saying, “Time to get out with the old and in with the new generation.” Notably, 

Moore estimated that White made this comment over a year before the 

challenged employment decision. Moore also stated that he was surprised 

when Tagliabue retired and that it was his understanding that Tagliabue 

wanted to stay another two or three years.

Klare testified that after her branch manager training meeting in

December 2014, White stated that Tagliabue was not going to “put a 

retirement date in stone, and that he was going to have to make it effective in 

January.” Moreover, according to Klare, Tagliabue was “kind of shocked” when 

he received White’s phone call, and he stated, “Well, it looks look I’m retiring.” 

Tagliabue argues there remains a fact issue regarding whether he 

voluntarily retired or was terminated. Additionally, Tagliabue maintains that 

he produced both circumstantial and direct evidence that Orkin was motivated 

by age-discriminatory animus, which he claims is sufficient evidence to rebut 

Orkin’s proffered justification as pretext and to overcome summary judgment. 

Tagliabue argues that a jury could conclude that Orkin’s reason is not worthy 

of credence based on his testimony that he never set a retirement date and 

Klare’s testimony suggesting that White, rather than Tagliabue, selected the 

January 2015 retirement date. Tagliabue points to age-related remarks 

purportedly made by White and Orkin’s failure to follow its usual retirement 

procedure of fully training his successor, Klare, as additional circumstantial 

evidence of Orkin’s unlawful discrimination. 

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II.

We review a summary judgment de novo. Goudeau v. Nat’l Oilwell Varco, 

L.P., 793 F.3d 470, 474 (5th Cir. 2015). Summary judgment is proper when

“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). “An issue of material fact 

is genuine if a reasonable jury could return a verdict for the nonmovant.” 

Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 377 (5th Cir. 2010)

(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The movant 

is entitled to summary judgment if “the nonmoving party has failed to make a 

sufficient showing on an essential element of [his] case with respect to which 

[he] has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 

We “draw all reasonable inferences in favor of the nonmoving party, and 

avoid credibility determinations and weighing of the evidence.” Goudeau, 793 

F.3d at 474. Nevertheless, “a party cannot defeat summary judgment with 

conclusory allegations, unsubstantiated assertions, or ‘only a scintilla of 

evidence.’” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 

2007) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).

We may “affirm summary judgment on any ground supported by the record, 

even if it is different from that relied on by the district court.” Moss v. BMC 

Software, Inc., 610 F.3d 917, 928 (5th Cir. 2010).

III. 

Under the ADEA, it is unlawful for an employer “to discharge any 

individual or otherwise discriminate against any individual with respect to his 

compensation, terms, conditions, or privileges of employment, because of such 

individual’s age.” 29 U.S.C. § 623(a)(1). Ultimately, to establish an ADEA 

claim, the plaintiff must prove “that age was the ‘but-for’ cause of the 

challenged employer decision.” Moss, 610 F.3d at 922 (quoting Gross v. FBL 

Fin. Servs., Inc., 557 U.S. 167, 178 (2009)). Claims of employment 

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discrimination under the ADEA can be proven through direct evidence,

circumstantial evidence, or both. Jackson, 602 F.3d at 377.

Because Tagliabue relies on circumstantial evidence of discrimination, 

we apply the three-step, burden-shifting framework set forth in McDonnell 

Douglas Corp. v. Green, 411 U.S. 792 (1973).3 Goudeau, 793 F.3d at 474. To 

survive summary judgment under this framework, the plaintiff must first 

present evidence of a prima facie case of age discrimination. Id. To establish a 

prima facie case of age discrimination under the ADEA, Tagliabue must show 

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,4 or iii) otherwise discharged because of his age.” Berquist v. Wash. 

Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007). The parties only dispute the first 

 

3 On appeal, Tagliabue cites to a single comment purportedly made by White as direct 

evidence of discrimination. In her deposition, Klare testified that in December 2014 White 

said, “Paul is never gonna leave, and I’m going to have to set the [retirement] date or I’m 

going to have to tell him when to leave,” and that White made a reference to January, which 

was the following month.

White’s alleged comment is not direct evidence of discrimination because it is not 

clearly age related and does not otherwise show discriminatory animus. See Moss, 610 F.3d 

at 929 (explaining that comments are direct evidence of age discrimination only if they satisfy 

four criteria, one of which requires that the remark be age related); see also Leibforth v. 

Belvidere Nat’l Bank, 337 F.3d 931, 934 (7th Cir. 2003) (finding a similar statement, namely 

that “it was in the Bank’s best interest to set Leibforth’s retirement date because she refused 

to do so,” insufficient to show that the Bank’s actions were based on prohibited animus, and 

thus not direct evidence of discrimination). “There is a link between retirement and age, but 

it is not a necessary one.” Martin v. Bayland Inc., 181 F. App’x 422, 424 (5th Cir. 2006)

(holding that the plaintiff did not present direct evidence of discriminatory animus because 

the owner’s comment that it was time for him to retire “requires one to infer that he was fired 

because of his age”). Because this remark is not so “direct and unambiguous” that a jury could 

“conclude without any inferences or presumptions” that age was an impermissible factor in

the decision to terminate the employee, it cannot be considered direct evidence of 

discrimination. EEOC v. Tex. Instruments Inc., 100 F.3d 1173, 1181 (5th Cir. 1996); see also 

Sandstad, 309 F.3d at 897–98 (“If an inference is required for the evidence to be probative as 

to [the employer’s] discriminatory animus in firing [the employee], the evidence is 

circumstantial, not direct.”). 4 Tagliabue’s replacement, Janie Klare, was 52. 

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element of Tagliabue’s initial prima facie burden—whether Tagliabue was 

discharged or otherwise suffered an adverse employment action. 

An employer’s decision to discharge a protected employee on the basis of 

age is explicitly prohibited under the ADEA. See 29 U.S.C. § 623(a)(1). 

Conversely, an employee’s voluntary retirement—outside of a claim of

constructive discharge5—is generally not an adverse employment action. Cf.

McCoy v. City of Shreveport, 492 F.3d 551, 557–59 (5th Cir. 2007) (holding that

the plaintiff did not suffer a legally actionable adverse employment action

necessary for her discrimination claim because the summary judgment 

evidence showed that she retired voluntarily, not as the result of a constructive 

discharge); see also Hinojosa v. CCA Props. of Am., LLC, 400 F. App’x 920, 922

(5th Cir. 2010); Woods v. Sheldon Indep. Sch. Dist., 232 F. App’x 385, 388 (5th 

Cir. 2007). The instant dispute falls somewhere in between this obvious 

delineation: Tagliabue contends that Orkin forced him to retire early, which 

he asserts is the equivalent of actual discharge.

If the plaintiff establishes a prima facie case, the burden shifts to the 

defendant to offer a legitimate, nondiscriminatory reason for the adverse 

 

5 Courts commonly apply a constructive discharge analysis to determine whether 

retirement constitutes an adverse employment action. See, e.g., McCann v. Litton Sys., Inc., 

986 F.2d 946, 950–51 (5th Cir. 1993); Tyler v. Union Oil Co. of Cal., 304 F.3d 379, 394 (5th 

Cir. 2002); Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir. 2000) (“When an employee 

resigns, he may satisfy the discharge requirement by proving constructive discharge.”); see 

also Allovio v. Holder, 923 F. Supp. 2d 151, 158 (D.D.C. 2013) (quoting Aliotta v. Bair, 614 

F.3d 556, 566 (D.C. Cir. 2010)) (“‘Resignations or retirements are presumed voluntary’ unless 

an employee can show that a ‘reasonable person in the employee’s position would have felt 

compelled to resign under the circumstances.’”); Honor v. Booz-Allen & Hamilton, Inc., 383 

F.3d 180, 186 (4th Cir. 2004) (explaining that unless there is a claim for constructive 

discharge, voluntary resignation does not constitute adverse employment action); Harris v. 

Ashcroft, 74 F. App’x 669, 672 (7th Cir. 2003) (“Encouraging an employee to retire can amount 

to an adverse employment action, but as with other constructive discharges, there must be 

evidence that a reasonable employee would not feel free to ignore the suggestion.”). However, 

this case is unique because Tagliabue does not allege constructive discharge, rather he 

asserts that he was actually discharged. 

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employment action taken. Goudeau, 793 F.3d at 474. The third and final 

“pretext stage of this analysis” requires that the employee “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.” Id.

(internal quotation marks and citation omitted). Tagliabue additionally 

challenges the adverse summary judgment at the pretext stage, arguing that 

he produced sufficient evidence that Orkin’s justification is false, as well as 

evidence that the decisionmaker made ageist comments and did not follow 

usual procedure. 

IV.

We are skeptical that Tagliabue can show that he was discharged or 

otherwise suffered an adverse employment action—an essential element of his 

prima facie case. See Hamilton v. Grocers Supply Co., Inc., 986 F.2d 97, 98 (5th 

Cir. 1993); see also Anthony v. Donahoe, 460 F. App’x 399, 404 (5th Cir. 2012).6

However, because “a prima facie case is fairly easily made out,” Amburgey v. 

Corhart Refractories Corp., 936 F.2d 805, 812 (5th Cir. 1991), we will assume 

without deciding that Tagliabue cleared the relatively low hurdle of 

establishing a prima facie case.7 

Nevertheless, resolving this disputed fact in Tagliabue’s favor and 

assuming arguendo Tagliabue established a prima facie case, summary 

judgment in favor of Orkin was proper at the pretext stage of the burdenshifting analysis. See Malcolm v. Vicksburg Warren Sch. Dist. Bd. of Trs., 709 

F. App’x 243, 249 (5th Cir. 2017). Once Tagliabue makes a prima face showing, 

the burden of production shifts to Orkin to identify a legitimate, 

 

6 See also Squyres v. Heico Cos., L.L.C., 782 F.3d 224, 239 (5th Cir. 2015) (Jones, J., 

concurring). 7 Because we resolve this appeal on pretext grounds, we decline to resolve whether 

Tagliabue suffered an adverse employment action.

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nondiscriminatory reason for its decision. Goudeau, 793 F.3d at 474.

Emphasizing that Tagliabue voluntarily retired, Orkin maintains that it was 

justified in holding Tagliabue to his proposed retirement date because it had 

invested resources into Tagliabue’s planned retirement and succession plan.8

Because Tagliabue does not dispute that Orkin met its burden of 

production, the burden shifts back to Tagliabue to prove by a preponderance of 

the evidence that Orkin’s proffered explanation is “not its true reason[], but 

[is] a pretext for discrimination” or otherwise offer evidence that is probative 

of intentional discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 

U.S. 133, 143 (2000); see also Price v. Fed. Express Corp., 283 F.3d 715, 720 

(5th Cir. 2002) (“On summary judgment, in this third step, the plaintiff must 

substantiate his claim of pretext through evidence demonstrating that 

discrimination lay at the heart of the employer’s decision.”). To show that the 

employer’s rationale is merely a pretext for discrimination, the plaintiff must 

put forward “substantial evidence” to “rebut[] each of the nondiscriminatory 

reasons the employer articulates.” Wallace v. Methodist Hosp. Sys., 271 F.3d 

212, 220 (5th Cir. 2001). “In determining whether [Tagliabue’s] rebuttal 

precludes summary judgment, ‘the question is whether [Tagliabue] has shown 

that there is a genuine issue of material fact as to whether [Orkin’s] reason 

was pretextual.’” Moss, 610 F.3d at 922 (quoting Jackson, 602 F.3d at 378–79).

“Proof that the defendant’s explanation is unworthy of credence . . . may 

be quite persuasive [circumstantial evidence] . . . [because] [i]n appropriate 

 

8 While recognizing that the employer’s burden at this stage is not an entirely de 

minimus one, Tagliabue does not contend that Orkin failed to meet its burden of production 

with regard to this asserted justification, and we will not address any such claim sua sponte. 

See Stennett v. Tupelo Pub. Sch. Dist., 619 F. App’x 310, 315 n.3 (5th Cir. 2015). Tagliabue, 

however, argues that Orkin failed to articulate a legitimate, nondiscriminatory reason for 

advancing Tagliabue’s retirement date and did not produce admissible evidence that such a 

reason was justified. We need not reach this alternative argument. 

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circumstances, the trier of fact can reasonably infer from the falsity of the 

explanation that the employer is dissembling to cover up a discriminatory 

purpose.” Reeves, 530 U.S. at 147. Evidence demonstrating that the employer’s 

explanation is false or unworthy of credence, taken together with the plaintiff’s 

prima facie case, is “likely to support an inference of discrimination even 

without further evidence of defendant’s true motive.” Sandstad v. CB Richard 

Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002). “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.” Id.

The burden of persuasion remains on Tagliabue to show that Orkin 

intentionally discriminated against him, Reeves, 530 U.S. at 143, which at the 

pretext stage of the McDonnell Douglas analysis under the ADEA requires a 

showing “that age was [a] ‘but-for’ cause of the employer’s adverse decision.”

Squyres v. Heico Cos., L.L.C., 782 F.3d 224, 231 (5th Cir. 2015) (quoting 

Burrage v. United States, 571 U.S. 204, 213 (2014)). 

If not at the prima facie stage, Tagliabue’s ADEA claim fails at the 

pretext stage of the analysis. Tagliabue has not produced sufficient evidence to 

establish a genuine fact issue as to whether Orkin’s proffered reason was

pretext for discrimination or otherwise that age was the reason for his 

separation from Orkin. Assuming Orkin carried its burden of production, 

Tagliabue argues that a jury could conclude that Orkin’s reason is not worthy 

of credence based on his testimony that he never set a retirement date and 

Klare’s testimony suggesting that White rather than Tagliabue selected the 

January 2015 retirement date. Tagliabue points to White’s purported agerelated remarks and Orkin’s failure to follow its usual retirement procedure of 

fully training his successor, Klare, as additional circumstantial evidence of 

Orkin’s unlawful discrimination. 

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The record evidence does not support a finding of pretext on any of the 

grounds asserted by Tagliabue. “The issue at the pretext stage is whether the 

employer’s reason, even if incorrect, was the real reason for the plaintiff’s 

termination.” Goudeau, 793 F.3d at 476 (quoting Sandstad, 309 F.3d at 899). 

The evidence in the record supports Orkin’s proffered justification that 

Tagliabue’s termination was a result of his voluntary retirement. Although 

Tagliabue never put a retirement date in writing, the overwhelming, 

uncontradicted evidence shows that Tagliabue expressed to White an intent to 

retire and actively participated in the furtherance of his upcoming retirement. 

According to Tagliabue, in September 2009, during a discussion about 

revenue growth and in response to White’s concerns about complacency, 

Tagliabue told White that he would give 110% until he retired, which “at the 

earliest” would be in “four years and three months” (December 2013), when his 

benefits vested. Tagliabue also concedes that in 2014 he discussed with White 

that he was planning to retire. Tagliabue himself recommended to White that 

Janie Klare, Orkin’s administrative manager, succeed him as the Victoria 

branch manager. 

Tagliabue initially approached Klare in early 2013 about her becoming 

the Victoria branch manager when he retired, informing her that his plan was 

to retire in 2014: Tagliabue initially mentioned retiring either March 2014 or 

April 2014, a date that was moved back to June 2014 and then again to 

September 2014. While recognizing that the parties dispute whether Tagliabue 

or White was responsible for delaying the date, it is undisputed that 

Tagliabue’s retirement was postponed at least three times and his last day was 

over a year after the timeframe in which he asserted he would be amenable to 

retiring. 

Per Tagliabue’s recommendation, Orkin selected Klare to succeed 

Tagliabue as branch manager. White scheduled Klare’s Helms evaluation in 

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July 2013, a prerequisite to her management training.9 Over the next few 

months, White, Tagliabue, and Klare continued to meet and discuss 

Tagliabue’s retirement and Klare’s new role. In January 2014, Klare was 

officially placed in the branch manager trainee program. Of particular 

importance, during a staff meeting on January 28, 2014, Tagliabue announced

his retirement to his branch employees and informed them that Klare was in 

training and would succeed him when he retired.10 This undisputed evidence 

not only corroborates Tagliabue’s upcoming retirement, but also demonstrates 

that Tagliabue’s retirement was a collaborative process between Tagliabue and 

Orkin. 

Klare testified that by the end of 2014 Tagliabue’s retirement date was 

set for January 2015. Around this same time, Tagliabue requested that Orkin 

approve additional, unaccrued vacation and sick time. Tagliabue’s last day at 

work was January 30, 2015—thirteen months after Klare was promoted to 

branch manager trainee. That day, White called Tagliabue around lunchtime 

to notify him that he received authorization on Tagliabue’s requested vacation 

pay and that “he could leave.” This statement cannot be reasonably construed 

as evidence that Tagliabue was forced to retire. To the contrary, Tagliabue 

admits that no one at Orkin ever told him he was fired or terminated.

Moreover, after receiving White’s phone call, Tagliabue left the office without 

further inquiry or objection. See Hinojosa, 400 F. App’x at 923–24 (“[B]efore 

agreeing to retire . . . a reasonable employee would have questioned his 

superiors about their intentions.”). 

 

9 Orkin administers a “Helms Evaluation” to determine whether the prospective 

trainee is qualified for management training.

10 Although Tagliabue did not announce a specific date at this meeting, his retirement 

announcement was over a year prior to the date he officially retired from Orkin.

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Additionally, despite his intimate knowledge of the reporting process,

Tagliabue never complained to White, human resources, or any Orkin 

administrative personnel about being forced to retire.11 Although it was 

contrary to company policy, Orkin obliged Tagliabue’s request to receive 

payment for accrued and unaccrued vacation days and sick time. Tagliabue 

called Larry Black in Orkin’s Human Resource Department to thank him for 

approving his request for additional vacation pay without any mention of his 

dissatisfaction with his retirement. Tagliabue officially retired from Orkin on 

March 31, 2015. Tagliabue and White had lunch the following day.

Even when read in the light most favorable to Tagliabue, the record 

evidence shows that Tagliabue communicated his intention to retire and 

participated in the preparation of his imminent retirement. Tagliabue’s only 

contravention of that evidence comes from his own bare assertions that he 

never set a retirement date and was forced to retire because of his age. Cf. 

Caldwell v. KHOU-TV, 850 F.3d 237, 244 (5th Cir. 2017) (recognizing that the 

plaintiff presented evidence other than his own assertions in support of his 

arguments, which together raised a genuine issue of material fact as to 

whether the reasons the defendants gave for terminating him were pretextual). 

“Though [Tagliabue] now asserts that [he] never had any intention of retiring, 

the relevant question for purposes of our pretext analysis is whether [Orkin] 

honestly believed that [he] did, and [Tagliabue] presented no evidence showing 

that was not the case.” Leibforth v. Belvidere Nat’l Bank, 337 F.3d 931, 933–34 

(7th Cir. 2003).

 

11 Tagliabue received information regarding Orkin’s discrimination and harassment 

policies. Additionally, as branch manager, Tagliabue was responsible for disseminating 

Orkin’s policies to new and existing employees and reporting complaints of discrimination or 

harassment. During his 22 years as branch manager, Tagliabue never received any 

discrimination or harassment complaints from his employees.

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Tagliabue’s reliance on Klare’s testimony likewise falls short of creating

a genuine fact issue as to whether Orkin’s proffered reason is not its true 

reason, but is a pretext for discrimination. See Squyres, 782 F.3d at 231.

Tagliabue heavily relies on Klare’s testimony that, after her December 2014 

branch manager training meeting, White stated that Tagliabue was not going 

to “put a retirement date in stone, and that he was going to have to make it 

effective in January.” He argues that this comment is direct evidence that 

Orkin’s proffered justification is false. We disagree. Klare’s testimony must be 

considered in context and in conjunction with the record “taken as a whole,” 

which includes the aforementioned, uncontroverted evidence of Tagliabue’s 

announced voluntary retirement. See Reeves, 530 U.S. at 150. Further, as 

discussed supra, this comment does not demonstrate discriminatory intent, 

nor is it probative of Orkin’s true motivation for terminating Tagliabue.

Tagliabue does not offer evidence that Orkin forced him to retire or 

terminated him. Instead, his actions before and after his last day dictate a 

contrary finding. See Jackson, 602 F.3d at 379 n.22 (citing Vais Arms, Inc. v. 

Vais, 383 F.3d 287, 294 (5th Cir. 2004) (concluding that self-serving statements 

were insufficient to overcome summary judgment, particularly when faced 

with “overwhelming evidence” in opposition)). This is insufficient to rebut

Orkin’s proffered reason that Tagliabue’s termination was a result of his 

voluntary retirement. See Molnar v. Ebasco Constructors, Inc., 986 F.2d 115, 

119 (5th Cir. 1993) (“[T]estimony by an employee regarding his subjective 

belief that his termination resulted from age discrimination is insufficient to 

make an issue for the jury in the face of proof showing an adequate, 

nondiscriminatory reason for his release.”).

Additionally, Tagliabue seeks to undermine the genuineness of Orkin’s 

purported justification by arguing that Klare’s training could not have been an 

expended resource justifying Orkin’s decision because Tagliabue’s departure 

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before completing Klare’s training left the branch in a “chaotic, hell-like 

situation.” This argument is equally unavailing. Importantly, Tagliabue does 

not rebut—or even address—the resources Orkin identifies as having 

expended in preparation for Tagliabue’s retirement, including the succession 

meetings between White, Klare, and Tagliabue; sending Klare to Austin, Texas 

to complete the Helms evaluation; Klare’s salary increase; and granting 

Tagliabue’s request for final vacation and sick time. In sum, Tagliabue has 

failed to produce evidence from which a reasonable factfinder could conclude 

that Orkin’s proffered reason is false. See Price, 283 F.3d at 722. 

Tagliabue’s remaining allegations of pretext or attempts to show Orkin’s 

discriminatory animus are equally insufficient to defeat summary judgment. 

Tagliabue asserts that terminating him prior to the completion of training his 

replacement contravened Orkin’s policy.12 Tagliabue expected to stay with the 

company until Klare was fully trained, which he speculated would take three 

to four years. However, Tagliabue does not refer to any record evidence that 

such an open-ended training policy existed.13 Furthermore, Tagliabue’s last 

day at work was January 30, 2015—some thirteen months after Klare was 

promoted to branch manager trainee. Moreover, mere deviations from 

standard procedure do not show pretext or improper discrimination unless the 

plaintiff can connect the departure from procedure to a discriminatory motive. 

See McMichael v. Transocean Offshore Deepwater Drilling, Inc., 934 F.3d 447, 

459–60 (5th Cir. 2019). 

Finally, absent other evidence probative of pretext, Tagliabue’s reliance 

on comments allegedly made by White years prior to the challenged 

 

12 Klare completed her branch manager training in November 2015. 

13 Tagliabue does not cite to any written policy, or any evidence whatsoever, as to the 

expected length of Orkin’s training program, or why it would take three to four years to 

complete. 

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employment decision is insufficient, standing alone, to defeat summary 

judgment. Jackson, 602 F.3d at 380; cf. Ng-A-Mann v. Sears, Roebuck & Co., 

627 F. App’x 339, 342 (5th Cir. 2015) (reasoning that while remarks offered as 

circumstantial evidence do not directly evidence discriminatory intent, they

can “compound other evidence that a proffered nondiscriminatory reason for 

terminating an employee was pretextual”) (emphasis added). 

According to Tagliabue, White made several “ageist remarks” to 

Tagliabue that he contemporaneously memorialized in writing. Tagliabue 

alleges that in September 2009, White, Tagliabue’s direct supervisor, made a 

comment about Tagliabue becoming “complacent because [he] was getting 

older and closer to retirement.” Additionally, Tagliabue asserts that White 

made statements suggesting that Tagliabue was friends with Paul Revere

(May 2011); and asking if Tagliabue is “still awake” or if he is “still with us” 

stating that he “thought older people already went home” (May 2010 and 

February 2013). 

Although not direct evidence of discrimination, White’s remarks are

relevant evidence to be considered as part of a broader circumstantial case of 

age discrimination. Goudeau, 793 F.3d at 476; see also Machinchick v. PB 

Power, Inc., 398 F.3d 345, 353 (5th Cir. 2005) (“We have found that purely 

indirect references about an employee’s age, such as comments that an 

employee needed to look ‘sharp’ if he were going to seek a new job, and that he 

was unwilling and unable to ‘adapt’ to change, can support an inference of age 

discrimination.”). However, we have repeatedly held that stray remarks14

 

14 Comments rise above the level of stray remarks and are “sufficient evidence of age 

discrimination” if they are: “1) age related, 2) proximate in time to the employment decision, 

3) made by an individual with authority over the employment decision at issue, and 4) related 

to the employment decision at issue.” Moss, 610 F.3d at 929. “Comments that do not meet 

these criteria . . ., standing alone, are insufficient to defeat summary judgment.” Jackson, 

602 F.3d at 380. 

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cannot be the sole proof of age discrimination. See, e.g., Moss, 610 F.3d at 929;

Goudeau, 793 F.3d at 477; Kelly v. Costco Wholesale Corp., 632 F. App’x 779, 

783 (5th Cir. 2015).15 Aside from these comments, Tagliabue provides no other 

evidence to support his claim that he was discharged because of his age. 

Because White’s alleged comments are not proximate in time to Tagliabue’s 

retirement (he made them years prior) and are not related to the disputed 

employment action, they are—without additional evidence of age 

discrimination—insufficient to defeat summary judgment.16 See Jackson, 602 

F.3d at 380.

Nor are White’s comments in combination with Tagliabue’s conclusory 

assertions that he never set a retirement date and did not intend to retire for 

several more years sufficient to establish a genuine dispute of material fact as 

to pretext. See Jackson, 602 F.3d at 380; see also Douglass v. United Servs. 

Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc) (“[C]onclusory 

allegations, speculation, and unsubstantiated assertions are inadequate to 

satisfy the nonmovant’s burden.”). Therefore, we cannot conclude that there is 

a triable issue of fact as to whether Orkin discriminated against Tagliabue 

based on age. Jackson, 602 F.3d at 381; see also Goudeau, 793 F.3d at 478 

(“[T]he pretext inquiry asks whether there is sufficient evidence demonstrating 

 

15 See also Palasota v. Haggar Clothing Co., 342 F.3d 569, 577 (5th Cir. 2003) (“After 

Reeves, . . . so long as remarks are not the only evidence of pretext, they are probative of 

discriminatory intent.”); Reed v. Neopost USA, Inc., 701 F.3d 434, 441 (5th Cir. 2012) (“Where 

a plaintiff offers remarks as circumstantial evidence alongside other alleged discriminatory 

conduct, . . . we apply a more flexible two-part test.”) (citation omitted); Cervantez v. KMGP 

Servs. Co. Inc., 349 F. App’x 4, 10–11 (5th Cir. 2009) (“[A] comment is not evidence of 

discrimination if it is the sole proof of pretext.”); Bugos v. Ricoh Corp., No. 07-20757, 2008 

WL 3876548, at *6 (5th Cir. Aug. 21, 2008) (“Because Brown’s workplace comments are the 

only circumstantial evidence of pretext, and, standing alone, they are not probative, we affirm 

the district court’s grant of summary judgment.”).

16 Additionally, White’s inclusion in the protected class (age 54 at the time of the 

challenged employment decision) weighs against a finding of discriminatory animus. 

McMichael, 934 F.3d at 460 (citing Kelly, 632 F. App’x at 783). 

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the falsity of the employer’s explanation, taken together with the prima facie 

case, to allow the jury to find that discrimination was [a] but-for cause of the 

termination.”).

Accordingly, because Tagliabue failed to present sufficient evidence from 

which a reasonable factfinder could conclude that Orkin’s proffered reason is 

pretext for age discrimination, we AFFIRM the district court’s summary 

judgment in favor of Orkin. 

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