IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-20241

MAURICE R. GOUDEAU,

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 

United States Court of Appeals

Fifth Circuit

FILED

July 16, 2015

Lyle W. Cayce

Clerk

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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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eighteen-year career with NOV and its predecessor. Goudeau signed the writeup, 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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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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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 burdenshifting 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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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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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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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 

 

3 Although 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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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 nonmandatory 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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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 

 

4 There 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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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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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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