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.
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 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
Perkins issued Goudeau that "First Warning" for ignoring a direct request to complete a task. It was the first disciplinary action of Goudeau's 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.
At the August 11 meeting at which Goudeau contends he first saw these written warnings,
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.
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, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)).
The ADEA and the TCHRA both prohibit an employer from discharging an employee on account of that employee's age.
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 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, 120 S.Ct. 2097).
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 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
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 (quoting Reeves, 530 U.S. at 143, 120 S.Ct. 2097). "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, 120 S.Ct. 2097 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (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, 120 S.Ct. 2097.
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
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 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, 120 S.Ct. 2097, 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, 120 S.Ct. 2097.
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 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,
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.
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.
Goudeau alleges that Perkins fired him in retaliation for Goudeau reporting
We therefore AFFIRM in part and REVERSE in part the judgment of the district court and REMAND for further proceedings.