Jerrell Squyres v. Heico Companies, L.L.C.

Case: 13-11358 Document: 00512991646 Page: 1 Date Filed: 04/02/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-11358 United States Court of Appeals

Fifth Circuit

FILED

JERRELL P. SQUYRES, April 2, 2015

Lyle W. Cayce

Plaintiff - Appellant Clerk

v.

THE HEICO COMPANIES, L.L.C.; S-LINE CORPORATION, L.L.C.; ANCRA

INTERNATIONAL, L.L.C.,

Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Texas

Before STEWART, Chief Judge, and JONES and HIGGINSON, Circuit

Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Jerrell P. Squyres sued his former employer, The Heico Companies and

its subsidiaries, for violations 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. § 21.001 et seq. The district court granted

summary judgment in favor of the companies. We affirm.

FACTS AND PROCEEDINGS

I. Squyres’s Employment History

Squyres was formerly the president and sole owner of JPS Corporation,

which manufactured and sold fleet transportation products under the brand

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“S-Line.” In 2007, Squyres began to negotiate the sale of JPS and its

subsidiaries to Ancra International. The parties reached an agreement on

October 22, 2008, and Heico Holding (Ancra’s parent company) created S-Line

Corporation to purchase JPS’s assets under an Asset Purchase Agreement.

Steve Frediani, President and CEO of Ancra, also became President and CEO

of S-Line.

As partial consideration for selling JPS, Squyres entered into a three-

year Employment Agreement with S-Line with an annual salary of $400,000.

Under the Employment Agreement, Squyres would serve as S-Line’s Vice

President of Sales and Marketing for three years, with automatic one-year

extensions thereafter unless one of the parties gave timely notice of its

intention not to extend the Agreement.

In 2011, a few months before Squyres’s Employment Agreement was set

to expire, Squyres remarked to Mark Daugherty, a Human Resources

representative at Ancra, that Squyres would like to keep working at S-Line

until he was ninety. Daugherty did not convey that information to Frediani or

to anyone else at the company. When management was discussing Squyres’s

employment, however, Daugherty did explain that he had met with Squyres

and that Squyres had expressed interest in continuing to work for the

company.

Frediani ultimately decided not to renew Squyres’s Employment

Agreement when it expired in October 2011. In an affidavit, Frediani stated

that he had never intended to renew the Agreement because it was simply

consideration for the sale of Squyres’s business. Frediani was also unhappy

with Squyres’s job performance. According to Frediani, S-Line had received

less value from Squyres’s sales activities than it had expected, Squyres resisted

reporting his hours and business activities, Squyres’s business-related

expenses were not consistent with company policy, and Squyres spent too much

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work time at social and sporting events. On September 22, 2011, Frediani

presented Squyres with written notice that S-Line would not renew his

Employment Agreement. At that time, Squyres was seventy.

Frediani, however, also believed that “S-Line could derive some value

from the contacts Squyres had in the industry if S-Line had a more favorable

agreement in place.” In his deposition, Frediani elaborated that he did not

intend to “fire” Squyres; instead, he “tried to put something together with

[Squyres].” Along with the notice that S-Line wished to terminate the

Employment Agreement, Frediani also proposed that Squyres continue

working for S-Line and Ancra as an “Independent Sales Representative.” In

this new position, Squyres would have received a reduced salary of $120,000,

as well as additional incentives and commissions. Although no other S-Line

employee had a written employment contract, Squyres was not given an option

to continue as an at-will employee.

Squyres did not immediately accept S-Line’s new proposal. Instead, he

tried to clarify and negotiate its terms. S-Line submitted its “best and final

proposal” to Squyres on September 28, with a request that Squyres respond to

the proposal by the end of the day on September 29. Squyres, however, did not

accept or reject the proposal and continued to negotiate throughout the day on

September 30. Finally, on September 30, Frediani retracted the proposal.

Frediani’s final email to Squyres stated: “It has become clear today that Ancra

is unable to provide you with an employment agreement that meets your

needs. I am retracting the offer submitted earlier today, September 30.” When

asked at his deposition why S-Line “terminated” Squyres’s employment,

Frediani offered the following explanation: “Well, as I said previously, he was

never terminated. We had this Employment Agreement. The Employment

Agreement ended on October 22nd. We tried to reach agreement on some form

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of employment going forward beyond the agreement. We failed to reach that

agreement, and that was the status.”

After his Employment Agreement ended on October 22, 2011, Squyres

was no longer employed at S-Line.

II. Proceedings in the District Court

In July 2012, Squyres filed an employment-discrimination action against

Defendants–Appellees Heico, S-Line, and Ancra (“Appellees”) in the Northern

District of Texas, asserting claims under the ADEA and the TCHRA. 1

Appellees moved to dismiss Squyres’s complaint. 2 On September 18, 2012, in

his response to Appellees’ motion, Squyres raised the possibility of amending

his complaint to “ple[a]d quantum meruit and/or fraudulent misrepresentation

claims” instead. On October 31, 2012, the district court granted in part and

denied in part Appellees’ motion to dismiss and entered a scheduling order that

set a discovery deadline of June 21, 2013. At that point, the discovery deadline

was nearly eight months away.

After the district court entered the scheduling order, Squyres filed his

second amended complaint, re-pleading the age-discrimination claims.

Appellees filed another motion to dismiss, but this time, the district court

denied Appellees’ motion. Appellees answered the second amended complaint

on January 8, 2013.

When Appellees filed their answer, five months still remained before the

June discovery deadline. Appellees contend that they served Squyres with

interrogatories, document requests, and requests for admission on February

Squyres also alleged a state-law breach-of-contract claim, which he later withdrew.

1

2Appellees argued that only S-Line—but not Heico or Ancra—was Squyres’s

employer. The district court never resolved this issue. The district court ultimately granted

summary judgment on Squyres’s age-discrimination claims for failure to prove pretext,

without deciding whether all three entities were a single, integrated enterprise that could all

be treated as Squyres’s employer. Neither party raises this issue on appeal.

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20, 2013. Squyres did not respond to these requests until April 30, 2013.

Squyres also did not contact Appellees’ counsel about scheduling depositions

until May 22, 2013.

Three days later, one of Squyres’s attorneys, Yona Rozen, broke her

ankle. Because of this injury, Squyres filed a motion for a continuance asking

the district court to extend all pending deadlines in the case by four months.

When Squyres filed this motion on June 11, the parties had not yet scheduled

mediation (even though the mediation deadline was three days away), and the

parties also had not agreed on a deposition schedule (even though the discovery

deadline was ten days away). In his motion, Squyres admitted that the parties

had agreed to delay discovery, pending resolution of the issues raised by

Appellees’ second motion to dismiss.

The district court denied Squyres’s request for a fourth-month

continuance, granting a one-month extension instead. The district court noted

that “the parties’ last-minute attempt” to meet the discovery deadline was

“self-imposed,” and that even under their agreement to postpone discovery, the

parties still had six months to meet the discovery deadline when the district

court denied the second motion to dismiss in December 2012.

Next, in mid-June, Appellees approached Squyres’s counsel to ask

whether Squyres would oppose a motion for leave to amend Appellees’ answer.

In a quid pro quo agreement reached over email, Squyres agreed not to oppose

Appellees motion so long as Appellees would not oppose a motion for leave to

amend Squyres’s complaint “in the event something comes up in the course of

depositions which causes [Squyres] to feel the need to amend the complaint.”

Appellees then filed an unopposed motion for leave to amend their answer,

adding a defense under the Texas Statute of Frauds. The district court granted

the motion.

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In late July, the parties filed a joint motion to extend the scheduling

order deadlines and to continue the trial, but the district court denied the

motion based on the “long period of time in which the parties have had to

arrange discovery.” The district court emphasized that “[t]he time has come for

the parties and their counsel to be held accountable for the deadlines issued by

this Court nine months ago.”

Appellees then filed a motion for summary judgment. Before responding

to the motion, Squyres deposed four executive officers from S-Line on August

15 and 16. Squyres’s response brief was originally due on August 19, but the

district court granted an extension until August 26. In that order, the district

court warned the parties that it would not grant additional extensions “absent

exigent circumstances not arising from the parties’ conduct.”

Despite this warning, Squyres requested leave to amend his complaint

on August 22. Squyres’s counsel had deposed Frediani on August 16, and in

response to this deposition, Squyres sought to add a fraud claim and drop his

breach-of-contract claim. Squyres filed his motion to amend unopposed, citing

the earlier quid pro quo agreement. Appellees, however, filed a response in

opposition to Squyres’s motion, admitting the quid pro quo agreement, but

arguing that Squyres had not sought amendment in a reasonable time after

their June agreement and that “the circumstances ha[d] changed since that

discussion in June.” The district court ultimately denied Squyres’s motion.

On November 13, 2013, the district court granted summary judgment in

favor of Appellees on the state and federal age-discrimination claims. This

appeal timely followed. Squyres appeals from the district court’s grant of

summary judgment, its denials of the two continuance motions, and its denial

of Squyres’s motion for leave to amend.

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DISCUSSION

I. ADEA & TCHRA Claims

A. Standard of Review

This court reviews a district court’s grant of summary judgment de novo,

applying the same standards as the district court. Rogers v. Bromac Title

Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014). Summary judgment is

appropriate “if the movant shows that 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). This court “resolve[s] factual controversies in favor of the

nonmoving party, but only where there is an actual controversy, that is, when

both parties have submitted evidence of contradictory facts.” Antoine v. First

Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013) (internal quotation marks and

citation omitted).

B. McDonnell Douglas Framework

The district court granted summary judgment to Appellees on Squyres’s

ADEA and TCHRA claims. Because Squyres relies solely on circumstantial

evidence, this court evaluates both claims under the three-step, burden-

shifting framework announced in McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802–04 (1973). See Miller v. Raytheon Co., 716 F.3d 138, 144 (5th Cir.

2013); Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex.

2012). Under this framework, the employee must first establish a prima facie

case of age discrimination. Miller, 716 F.3d at 144. If the employee meets his

initial burden, the burden of production shifts to his employer to articulate a

legitimate, nondiscriminatory reason for the challenged employment decision.

Id. At this stage, the employer’s burden is one of “production, not persuasion,”

and “involve[s] no credibility assessment.” Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 142 (2000) (internal quotation marks and citation

omitted). If the employer is able to articulate a reason, “the presumption raised

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by the prima facie case is rebutted and drops from the case.” St. Mary’s Honor

Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (quoting Tex. Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 255 & n.10 (1981)) (internal quotation marks omitted).

The third step of the McDonnell Douglas analysis involves a different

causation inquiry under the ADEA and the TCHRA. See Reed v. Neopost USA,

Inc., 701 F.3d 434, 440 (5th Cir. 2012). 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.” Reeves, 530 U.S. at 143 (quoting Burdine, 450 U.S. at 253)

(internal quotation marks omitted). An employee can show pretext “either

through evidence of disparate treatment or by showing that the employer’s

proffered explanation is false or unworthy of credence.” Moss v. BMC Software,

Inc., 610 F.3d 917, 922 (5th Cir. 2010) (internal quotation marks and citation

omitted). In the end, under the ADEA, the employee has the burden of

persuasion to establish “that age was [a] ‘but-for’ cause of the employer’s

adverse decision.” Burrage v. United States, 134 S. Ct. 881, 889 (2014)

(alteration in original) (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167,

176 (2009)); Reed, 701 F.3d at 440.

Under the TCHRA, in contrast, the employee can succeed at this third

step by showing “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 (‘mixed

motive’).” Reed, 701 F.3d at 439–40 (quoting Michael v. City of Dallas, 314

S.W.3d 687, 691 (Tex. App. 2010)) (internal quotation marks omitted); see also

Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 480 (Tex. 2001).

i. Legitimate, Nondiscriminatory Reason

The district court “assume[d] without deciding that Squyres . . . made

out a prima facie case of age discrimination.” We likewise make the same

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assumption. 3 The burden of production then shifted to Appellees to articulate

a legitimate, nondiscriminatory reason for the challenged employment

decision. Miller, 716 F.3d at 144. Appellees made three decisions related to

Squyres’s employment: (1) they decided not to renew Squyres’s Employment

Agreement; (2) they decided to offer Squyres a new position as an Independent

Sales Representative instead; and (3) they decided to withdraw that offer.

Appellees articulated legitimate, nondiscriminatory reasons for each of

their employment decisions. Their reasons for the first and second decisions

overlapped: Squyres’s Agreement was not economically feasible, especially in

light of his disappointing job performance. Appellees therefore offered him a

new position that they believed better reflected his performance. Frediani also

explained that they offered him a position as a contract employee because S-

Line’s sales personnel were paid a “flat salary” and Squyres, in contrast, had

“asked for and wanted commissions.” Finally, Appellees rescinded the offer for

a new position because Squyres did not accept or reject the offer before the

deadline that Frediani set. Appellees submitted admissible evidence

supporting each of these reasons: Frediani’s affidavit and deposition

testimony, other employees’ deposition testimony (including Squyres’s), and

also supporting emails and documents. 4 They therefore met their burden of

production to articulate legitimate, nondiscriminatory reasons for their

employment decisions. See Reeves, 530 U.S. at 142 (explaining that this

3 In the district court, the parties debated whether Squyres suffered an adverse

employment action. Squyres argued that he was fired. Appellees, however, argued that

Squyres’s employment contract simply was not renewed and expired on its own terms.

Because we can resolve this appeal on pretext grounds, we decline to resolve whether Squyres

suffered an adverse employment action.

4 As a result, this case is distinguishable from Patrick v. Ridge, 394 F.3d 311 (5th Cir.

2004), which Squyres relies on in his briefs. In Patrick, there was “no evidence in the

summary judgment record clarif[ying] or expand[ing] on” the employer’s reason for

terminating the plaintiff. Id. at 316 (recognizing that the employer “produced no specifics”).

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analysis “can involve no credibility determination” (quoting St. Mary’s, 509

U.S. at 509)); Amburgey v. Corhart Refractories Corp., 936 F.2d 805, 813 (5th

Cir. 1991) (noting that this “rebuttal is as easily made as the prima facie case”).

On appeal, Squyres challenges this conclusion for four reasons. First,

Squyres argues that the district court misinterpreted Frediani’s summary

judgment affidavit as providing an explanation of why Frediani decided not to

renew Squyres’s Employment Agreement, instead of providing reasons why

the company was unhappy with Squyres’s job performance. The affidavit,

however, provides reasons for both issues, and these reasons are not mutually

exclusive.

Second, Squyres contends that Appellees are foreclosed from arguing

that they had legitimate, nondiscriminatory reasons for ending his

employment because Appellees also argued that they did not “terminate”

Squyres’s employment. Appellees, however, made these arguments in the

alternative. They first argued that Squyres failed to establish the first element

of the prima facie case (that is, that he suffered an adverse employment action),

and, in the alternative, they argued that they had legitimate,

nondiscriminatory reasons for terminating Squyres’s employment. These types

of alternative arguments are permissible, and this court routinely considers

them. See, e.g., E.E.O.C. v. Boh Bros. Constr. Co., 731 F.3d 444, 462 (5th Cir.

2013) (en banc).

Next, Squyres similarly argues that Frediani testified in his deposition

that he had “no reason” to terminate Squyres’s employment. Again, this

argument confuses Appellees’ arguments on the prima facie case and their

alternative arguments related to their legitimate, nondiscriminatory reasons

for their employment decisions. During Frediani’s deposition, counsel asked

Frediani: “What was the reason that Mr. Squyres was terminated by S-Line,

LLC?” Frediani responded: “Well, as I said previously, he was never

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terminated.” As a follow-up question, counsel asked: “I’m trying to . . . ask you

whether you were about to fire him anyway . . . .” Frediani then responded that

had he been about to fire Squyres, he would not have proposed the consulting

agreement. Read in full, this exchange confirms that Frediani was defending

his position, for purposes of the prima facie case, that Squyres was never fired.

That the district court later concluded that Appellees’ actions might, in fact,

constitute an adverse employment action does not preclude Appellees’

alternative argument that they had legitimate, nondiscriminatory reasons for

taking these actions.

Finally, Squyres rejects Appellees’ identification of the three related

employment decisions as the challenged employment actions. Instead, Squyres

argues that the district court should have evaluated Appellees’ reasons for the

ultimate “termination” decision. Squyres appears to argue that the district

court erroneously focused on Appellees’ reasons for making the independent

contractor offer, instead of their reasons for not allowing Squyres to become an

at-will employee without a written contract. Appellees, however, did provide a

reason for that decision. As Frediani explained, he offered the independent

contractor position to Squyres because he believed it was consistent with what

Squyres wanted. Moreover, it is not clear how Squyres could have seamlessly

made a transition from his employment under the Agreement (which was

expiring) to some new form of employment (whether as an at-will employee or

as an independent contractor, with or without a written contract) without first

negotiating the terms of his new employment with Appellees. When the parties

could not agree on the terms of a new arrangement, Appellees withdrew their

offer. The court thus concludes that Appellees articulated legitimate,

nondiscriminatory reasons for terminating Squyres’s employment.

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ii. Pretext

This appeal therefore turns on whether there was a genuine issue of

material fact on pretext. Squyres again identifies four problems with the

district court’s pretext analysis, but all of them miss the mark. 5 Squyres first

argues that the district court erred when it rejected Squyres’s argument that

Appellees failed to provide him a reason for terminating his employment. But

Frediani did provide a reason. As Frediani explained in an email to Squyres,

“It has become clear today that Ancra is unable to provide you with an

employment agreement that meets your needs. I am retracting the offer

submitted earlier today, September 30.” Moreover, even if Appellees failed to

give Squyres a reason for their decision not to renew his Employment

Agreement or not to offer him an at-will employment position, Squyres can

point to no evidence in the record suggesting that he ever asked for these

reasons or to any case law requiring an employer to voluntarily state a reason

for its termination decision. 6

Next, Squyres asserts that the district court erred by discounting

Appellees’ shifting and inconsistent reasons for terminating Squyres’s

employment. Squyres further argues that, when reviewing these

5 The AARP presents two additional arguments in its amicus brief supporting

Squyres. First, the AARP argues that the district court “failed to analyze” the evidence “under

the separate standards to the ADEA and TCHRA.” Second, the AARP argues that the

Supreme Court’s decision in Burrage v. United States, 134 S. Ct. 881 (2014), lightened

Squyres’s burden of raising a genuine issue of fact by requiring him to prove only that his

age was “a” but-for cause of Appellees’ actions, as opposed to “the” but-for cause. Because

Squyres failed to raise these arguments in his opening brief, we will not consider these

arguments. See Christopher M. ex rel. Laveta McA. v. Corpus Christi Indep. Sch. Dist., 933

F.2d 1285, 1293 (5th Cir. 1991) (“Absent exceptional circumstances, an issue waived by

appellant cannot be raised by amicus curiae.”).

6 The cases that Squyres does cite do not support his argument. See Mock v. Bell

Helicopter Textron, Inc., 196 F. App’x 773, 774 (11th Cir. 2006) (per curiam); Gee v. Principi,

289 F.3d 342, 348 (5th Cir. 2002). Unlike the plaintiffs in both of these cases, Squyres does

not contend that he ever asked Frediani why the company chose not to renew his

Employment Agreement.

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inconsistencies, the district court improperly drew inferences in favor of

Appellees. Generally, “an employer’s inconsistent explanations for its

employment decisions at different times permits a jury to infer that the

employer’s proffered reasons are pretextual.” Burrell v. Dr. Pepper/Seven Up

Bottling Grp., Inc., 482 F.3d 408, 412 n.11 (5th Cir. 2007) (citing Gee, 289 F.3d

at 347–48). And although the court must resolve factual controversies in favor

of Squyres, that obligation only applies when “there is an actual controversy.”

Antoine, 713 F.3d at 830 (internal quotation marks and citation omitted).

Here, when the alleged inconsistent statements are considered in their

full context, the inconsistencies disappear. For example, Squyres highlights an

apparent inconsistency in Frediani’s reasons for terminating Squyres’s

employment, pointing both to Frediani’s unhappiness with Squyres’s

performance and Squyres’s failure to accept or reject the independent

contractor proposal by the deadline. These reasons are not inconsistent

because they explain different decisions: Frediani articulated one reason for

not renewing the Agreement (unhappiness) and another for rescinding the

independent contractor proposal (tardiness in replying).

As the district court recognized, the only possible inconsistency is

between Frediani’s deposition testimony and his affidavit. Frediani stated in

his affidavit that he “was unhappy with Squyres’s job performance,” but later

testified in his deposition that he was not “disappointed at something [Squyres]

was doing.” Again, however, this alleged inconsistency disappears when

considering the statements in their full context and considering exactly which

employment decision Frediani was explaining. Frediani spoke of his

“unhappiness” with Squyres’s job performance when explaining why the

company decided not to renew Squyres’s Employment Agreement. Frediani’s

statement that he was not disappointed with Squyres arose in a different

context. Then, Frediani was explaining why he did not fire Squyres when the

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Agreement expired and instead offered him a different position—a decision

related to, but different from, his decision not to renew the Agreement. This

deposition testimony is consistent with Frediani’s statement in his affidavit

that he offered Squyres the independent contractor position because Frediani

“believed S-Line could derive some value from the contacts Squyres had in the

industry if S-Line had a more favorable agreement in place.” Because Frediani

provided these reasons to explain two different actions, these statements are

not inconsistent and therefore do not raise a genuine issue of fact on pretext.

Squyres next argues that the district court erred in rejecting his

argument that because all other Ancra and S-Line employees were at-will

employees without written employment contracts, his employment should not

have ended when his Employment Agreement expired. In other words, Squyres

believes that he should have automatically been allowed to continue working

for Appellees without a written employment contract. Squyres’s unique

employment situation, however, makes this argument unpersuasive. Because

of his Employment Agreement, Squyres was unlike other S-Line and Ancra

employees to begin with: no other employee had a written employment

contract. Squyres was initially hired and paid a high salary to compensate him

for the sale of his business to S-Line. The Agreement did not guarantee

renewal, and it did not guarantee any form of employment beyond the initial

three-year term. Appellees therefore were not obligated to maintain Squyres’s

employment after the Agreement expired, and Squyres had no right to

continue in his Vice President position. In short, because Squyres’s

employment began unlike any other employees’, it is not evidence of pretext

that it ended differently as well.

Squyres also does not explain what the terms of his employment would

or should have been had Appellees simply allowed him to continue working

after his Agreement expired. It is unclear how much he would have been paid,

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what his responsibilities would have been, and whether he would have received

commissions. Squyres and Appellees were not able to agree on these key

employment terms, regardless of Squyres’s job title or whether an agreement

was put in writing. As Frediani wrote to Squyres, it became clear “that Ancra

[was] unable to provide [Squyres] with an employment agreement that [met]

[Squyres’s needs].” Because Squyres does not dispute that he could not reach

an agreement with Appellees, even after several days of negotiations, this

argument fails to raise a genuine issue of fact over pretext.

As final evidence of pretext, Squyres points to two sets of stray remarks:

one remark that Squyres himself made, and another set of remarks that

colleagues made. First, because of its close temporal proximity to Frediani’s

employment decision, Squyres contends that his comment to Daugherty in

Human Resources that he planned to work until ninety is evidence of pretext.

But it is unclear how Squyres’s own statement could serve as evidence that his

employer discriminated against him because of his age. Squyres’s comment, at

most, demonstrated that Daugherty knew how old Squyres was. It does not

demonstrate that Daugherty harbored age-based animus against Squyres.

Moreover, Daugherty did not make the decisions related to Squyres’s

employment, and there is no evidence that Daugherty communicated this

comment to Frediani (the ultimate decisionmaker) or any other S-Line

employees. It is true that Daugherty was at a meeting with Frediani where

they discussed Squyres’s employment. But Daugherty testified that he did not

convey Squyres’s comment about his age; instead, he only told Frediani that

Squyres had “expressed an interest in continuing to work with us.” With no

evidence that Daugherty ever conveyed Squyres’s age-based statement to any

other employee, it is not evidence of pretext.

Next, Squyres also argues that the district court erred in discounting his

coworkers’ “old guy” comments as evidence of pretext. According to Squyres,

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Paul Delaney used to call Squyres “old guy.” Similarly, Ralph Abato would

occasionally call Squyres an “old man” in response to Squyres’s calling Abato

a “young guy[].” 7 This argument also fails. The district court properly analyzed

this argument under the standard that this court articulated in Russell v.

McKinney Hosp. Venture, 235 F.3d 219, 226 (5th Cir. 2000). 8 Under Russell,

when an employee offers workplace comments as circumstantial evidence of

age discrimination, the court applies a flexible two-part test, under which 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.” Reed,

701 F.3d at 441; see also Laxton v. Gap Inc., 333 F.3d 572, 583 (5th Cir. 2003).

Squyres fails to meet the first element.

A reasonable jury could not conclude that Squyres’s coworkers’

comments demonstrated discriminatory animus. Squyres emphasized that

these comments were sporadic and that he did not find them offensive. More

importantly, Squyres also testified that he knew that Delaney and Abato were

“pushing for [Squyres] to stay with the company,” undercutting his argument

that the two men discriminated against him. Indeed, as another employee

testified, both men vouched for Squyres, explaining that they believed Squyres

7 Paul Delaney was the Director of Consumer Products at Ancra, and Ralph Abato

was the Vice President of Sales and Marketing at Ancra.

8 Although it has cited Russell, the Texas Supreme Court has not expressly adopted

the two-part Russell test. See Reed, 701 F.3d at 442 n.6. Citing Fifth Circuit law, it has held

that “[s]tray remarks, remote in time from [the employee’s] termination, and not made by

anyone directly connected with the [employment] decisions, are not enough to raise a fact

question about whether [the employer’s] reason for terminating [the employee] was

pretextual.” M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 25 (Tex. 2000)

(per curiam) (citing Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41–42 (5th Cir. 1996);

Waggoner v. City of Garland, Tex., 987 F.2d 1160, 1166 (5th Cir. 1993)). Because Texas courts

have consistently looked to federal case law in interpreting the TCHRA, this court has

applied the Russell standard when analyzing TCHRA claims. See Reed, 701 F.3d at 441–42

& n.6.

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added value to the company. Given the full context of these comments, they do

not suggest age-based animus. Compare Reed, 701 F.3d at 441–42 (holding

that stray remarks were not evidence of age animus in part because they were

“sporadic”), and Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 900 (5th Cir.

2002) (holding that a similar “old guy” comment, made in response to a “young

guy” comment, was not evidence of discriminatory animus), with Russell, 235

F.3d at 226 (holding that an “old bitch” comment was evidence of

discriminatory animus when it was made so frequently that the plaintiff had

to wear earplugs and when the comments continued even after the plaintiff

confronted the employee about what he was saying).

In conclusion, because Squyres has failed to meet his burden of raising a

genuine issue of fact on pretext, the district court did not err in granting

summary judgment in favor of Appellees.

II. Discovery Motions

A. Standard of Review

This court applies the same standard of review when analyzing all three

case-management orders that Squyres challenges on appeal: the district

court’s denial of two continuance motions and its denial of Squyres’s motion for

leave to amend his complaint. This court reviews all three orders for abuse of

discretion. See Leal, 731 F.3d at 417 (motion to amend); HC Gun & Knife

Shows, Inc. v. City of Houston, 201 F.3d 544, 549–50 (5th Cir. 2000) (motion

for continuance). Under Federal Rule of Civil Procedure 16(b)(4), “[a]

[scheduling order] may be modified only for good cause and with the judge’s

consent.” To show good cause, the party seeking to modify the scheduling order

has the burden of showing “that the deadlines cannot reasonably be met

despite the diligence of the party needing the extension.” Filgueira v. US Bank

Nat’l Ass’n, 734 F.3d 420, 422 (5th Cir. 2013) (per curiam) (internal quotation

marks and citation omitted). There are four relevant factors to consider when

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determining whether there is good cause under Rule 16(b)(4): “(1) the

explanation for the failure to timely [comply with the scheduling order]; (2) the

importance of the [modification]; (3) potential prejudice in allowing the

[modification]; and (4) the availability of a continuance to cure such prejudice.”

Meaux Surface Protection, Inc. v. Fogleman, 607 F.3d 161, 167 (5th Cir. 2010)

(internal quotation marks and citation omitted).

Rule 16(b) also governs Squyres’s motion for leave to amend. Although,

Rule 15(a) of the Federal Rules of Civil Procedure ordinarily governs the

amendment of pleadings, “Rule 16(b) governs the amendment of pleadings

after a scheduling order’s deadline to amend has expired.” Filgueira, 734 F.3d

at 422 (internal quotation marks and citation omitted). “If a party shows good

cause for missing the deadline, then the more liberal standard of Rule 15(a)

will apply to the district court’s denial of leave to amend.” Id. (internal

quotation marks and citation omitted).

B. Continuance Motions

On appeal, Squyres challenges the district court’s denial of two

continuance motions. Squyres filed his first continuance request on June 11,

2013, merely ten days before the original discovery deadline of June 21.

Because Squyres requested the continuance, it was his burden to establish

good cause. Id. Squyres only presented two reasons to the district court to

justify his request: his lawyer’s ankle injury and the parties’ agreement to

delay discovery pending the district court’s resolution of Appellees’ motion to

dismiss.

The district court’s denial of this first continuance motion was not an

abuse of discretion. In its order denying the motion, the district court did not

comment on the ankle injury. It is hard to see how this was an error. By

Squyres’s own admission, his lawyer broke her ankle on May 25, after

Squyres’s delayed May 22 request to schedule depositions. Thus, the ankle

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injury does not account for Squyres’s delay in initiating deposition discovery.

The only explanation, then, for the delay in conducting discovery between the

October 31, 2012 scheduling order and Squyres’s May 22, 2013 deposition

request is the parties’ “self-imposed” agreement to delay discovery. The district

court reasonably rejected this reason. The district court ruled on Appellees’

motion to dismiss on December 18, 2012, leaving the parties six months to

finish discovery, even under their own agreed-upon plan. Squyres’s

continuance motion made no attempt to explain why he then waited five

months to schedule depositions, and the district court was therefore well

within the bounds of its discretion in denying Squyres’s first continuance

motion. See Reliance Ins. Co. v. La. Land & Exploration Co., 110 F.3d 253, 257

(5th Cir. 1997) (finding no abuse of discretion when the plaintiff “offered no

justification for its delay”).

The district court also did not abuse its discretion when it denied the

second continuance motion. The parties jointly filed this motion on July 29,

2013, one week after discovery had closed under the new July 21 deadline. The

district court swiftly denied this motion, again reiterating that the parties’

delay in conducting discovery was self-imposed. The district court also

explained that the parties’ other excuses—pre-paid vacations, the July 4th

holiday, a July trial in another case, the lawyer’s broken ankle, and a family

medical issue—did not justify the relief that the parties’ requested. Moreover,

on appeal, Squyres does not point to any deadline that either party missed.

What’s more, Squyres never filed a Rule 56(d) motion in response to Appellees’

motion for summary judgment, and he has not identified any discovery that he

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was unable to take. 9 Hindsight therefore reinforces that the district court did

not abuse its discretion in denying the second continuance motion.

C. Motion for Leave to Amend

Finally, Squyres sought leave to amend his complaint on August 22,

2013. By that time, the December 31, 2012 deadline to amend pleadings had

long since passed. Therefore, because Squyres sought to amend his pleadings

after the deadline set in the scheduling order, Squyres had to satisfy Rule

16(b)’s standard and again demonstrate that he could not reasonably have met

this deadline despite exercising diligence. Filgueira, 734 F.3d at 422. Citing

both Rule 16 and Rule 15, the district court denied Squyres’s motion,

concluding that Squyres had failed “to show that a third amended complaint

should be permitted at this stage in the litigation.”

Squyres fails to show good cause for his delay. Squyres’s only reason for

failing to amend his complaint sooner is that he did not have the basis to allege

a fraud claim until after he had deposed Frediani in mid-August 2013. Squyres,

however, had informed the district court back in September 2012 that there

was a possibility he would amend his complaint to include a fraudulent

misrepresentation claim. Despite this knowledge, Squyres then waited almost

a year to seek leave to amend his complaint. See E.E.O.C. v. Serv. Temps Inc.,

679 F.3d 323, 334 (5th Cir. 2012) (affirming that the district court had acted

within its discretion in denying leave to amend because the plaintiff’s

“reasonable suspicion” of a potential claim “accent[ed] [the plaintiff’s] inability

to explain the delay” in asking for leave to amend). Even assuming that it was

reasonable for Squyres to delay amending his complaint until after he had

deposed Frediani, his delay in scheduling Frediani’s deposition was self-

9Appellees’ employees even agreed to, and did, sit for their depositions after the July

21 discovery deadline had passed.

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imposed, as discussed above. See Lozano v. Ocwen Fed. Bank, FSB, 489 F.3d

636, 644 (5th Cir. 2007) (affirming the district court’s denial of leave to amend

under Rule 15 because the plaintiffs “had been aware of the factual

underpinnings of the [new] fraud claim for some time, and . . . they had not

been diligent in pursuing the claim”).

In addition to failing to explain his delay (both in seeking leave to amend

and in scheduling Frediani’s deposition), Squyres also fails to demonstrate that

the amendment would have caused no prejudice to Appellees. Because

Appellees had sought no discovery related to Squyres’s fraud claim, allowing

amendment would have imposed additional discovery costs. Moreover,

Appellees had already filed their summary judgment motion by the time

Squyres sought leave to amend. Thus, not only would the district court have

needed to reopen discovery, but it also would have needed to allow another

round of dispositive motions. See Parish v. Frazier, 195 F.3d 761, 764 (5th Cir.

1999) (per curiam) (noting that this court, even under the more liberal Rule 15

standard, “more carefully scrutinize[s] a party’s attempt to raise new theories

of recovery by amendment when the opposing party has filed a motion for

summary judgment”).

Squyres’s final argument is that the district court abused its discretion

because it ignored his quid pro quo agreement with Appellees. This argument

does not help Squyres. For one, the district court was not bound by the parties’

agreement and instead had “broad discretion to preserve the integrity and

purpose of the pretrial order.” S&W Enters., L.L.C. v. SouthTrust Bank of Ala.,

NA, 315 F.3d 533, 535 (5th Cir. 2003) (internal quotation marks and citation

omitted); see also Fed. R. Civ. P. 16(b)(4) (stating that a scheduling order “may

be modified only for good cause and with the judge’s consent” (emphasis

added)). Next, it was also not an abuse of discretion for the district court to

grant Appellees’ motion to amend their answer, but to deny Squyres’s motion

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to amend his complaint. Although the deadline to amend the pleadings had

also already passed when Appellees filed their motion for leave to amend,

Appellees had not yet filed their summary judgment motion and discovery had

not yet closed under the new July 21 deadline. Squyres, on the other hand, did

not file his motion until the end of August, after discovery had closed, after

Appellees had filed their motion for summary judgment, and just two days

before Squyres’s response to the summary judgment motion was due. It was

therefore not an abuse of discretion for the district court to conclude that

Squyres’s motion came too late in the litigation.

In sum, the district court acted within its discretion when it denied the

three motions to modify the scheduling order that Squyres challenges on

appeal.

CONCLUSION

For these reasons, we AFFIRM the district court’s grant of summary

judgment in favor of Appellees.

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JONES, Circuit Judge, concurring:

I am pleased to concur in Judge Higginson’s opinion, which follows the

district court’s approach in holding that Squyres could not raise a genuine,

material fact issue that his separation from the company was motivated by age

discrimination. There is an easier path to this outcome, however. There is no

genuine, material disputed issue that Squyres had any right to further

employment by the Appellees when his three-year consulting contract expired

by its own terms. The panel opinion accurately explains that the parties’

relationship here was unique. Squyres had the only employment agreement

in the company because it was part of the lucrative transaction in which he

sold his business to S-Line. The Agreement guaranteed neither renewal nor

extension of any kind after its three-year term of employment. Consequently,

as Judge Higginson’s opinion notes, Appellees were not obliged to retain

Squyres on the payroll, and he had no right to continue in his position. When

the employment agreement terminated, Squyres did not suffer a material

adverse employment action, i.e. a discharge. Berquist v. Washington Mut.

Bank, 500 F.3d 344, 349 (5th Cir. 2007). Because of this deficiency, Squyres

could not assert a prima facie case of discrimination.

That the Appellees here chose to negotiate with Squyres over potentially

different, or lesser, employment following the end of the employment

agreement gives Squyres no additional legal rights. We are cited to no decision

holding that Title VII or the TCHRA may become a device to extend a bona

fide employment contract beyond its fixed term. This is not a case of alleged

failure to hire (or rehire) for discriminatory reasons; Squyres makes no claim

that the company intended to hire someone else for his special position. This

case also raises no inference of a pattern of selective, arguably discriminatory

application of employment contracts. In sum, the interests of judicial efficiency

and minimizing litigation costs would have been best served by a trial court

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ruling that the expiration of Squyres’s employment agreement eliminated his

antidiscrimination claims. I do not understand Judge Higginson’s opinion to

reject my conclusion, but only to rule on the factually more complex basis that

Squyres failed to show pretext in the Appellees’ reasons why they did not reach

a deal with him for further employment.

24