Paul Tagliabue, Jr. v. Orkin, L.L.C. ( 2019 )

Case: 18-40691 Document: 00515236414 Page: 1 Date Filed: 12/13/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-40691 December 13, 2019
Lyle W. Cayce
PAUL A. TAGLIABUE, JR., Clerk
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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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.
2
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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
2Tagliabue 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.
3
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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.
4
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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.
6
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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 discharge 5—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 burden-
shifting 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
8While 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 age-
related 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.
10
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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
12Klare completed her branch manager training in November 2015.
13Tagliabue 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.
15
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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 remarks 14
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.
16
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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).
17
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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.
18