Goudeau v. National Oilwell Varco, L.P.
Filing
44
MEMORANDUM OPINION AND ORDER granting 26 National Oilwell Varco, L.P.'s MOTION for Summary Judgment . (Signed by Judge Kenneth M. Hoyt) Parties notified.(chorace)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MAURICE R. GOUDEAU,
Plaintiff,
VS.
NATIONAL OILWELL VARCO, L.P.,
Defendant.
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CIVIL ACTION NO. 4:12-CV-3332
MEMORANDUM OPINION AND ORDER
I.
INTRODUCTION
Pending before the Court is the defendant’s, National Oilwell Varco, L.P. (“NOV”),
motion for summary judgment (Docket No. 26) pursuant to Rule 56 of the Federal Rules of Civil
Procedure. The plaintiff, Maurice Goudeau, has filed a response (Docket No. 27) and NOV has
replied (Docket No. 29).1 Having reviewed the parties’ submissions, the record and the
applicable law, the Court finds and concludes as follows.
II.
FACTUAL BACKGROUND
National Oilwell Varco designs, manufactures and sells equipment and components used
in oil and gas drilling and production. It also provides oilfield inspection and supply chain
integration services to the upstream oil and gas industry. Maurice Goudeau began his career with
ReedHycalog in 1993. NOV acquired ReedHycalog in April 2008, and Goudeau continued to be
employed by NOV as a maintenance supervisor until his termination in August 2011.
Mike Perkins became Goudeau’s supervisor in August or September of 2010. Shortly
thereafter, Perkins began making ageist comments to Goudeau. One such comment, “there sure
are a lot of old farts around here,” was made during a conversation in which Perkins inquired
1
Goudeau petitioned for leave to file a surreply (Docket No. 30), but the motion was denied (Docket No. 32).
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about two older employees, Joe Jett and Bill Fisher. Perkins asked about their ages, how long
they had been working for the company, and confided in Goudeau that he planned to fire both
Jett and Fisher.
Goudeau, believing that Perkins planned to terminate the employees because of their age,
voiced his opposition to the scheme. Immediately upon Goudeau objecting to the plan, Perkins
attitude toward Goudeau changed. Goudeau complained to Human Resources (HR) about
Perkins’ comment and intention to fire older workers because of their age. HR told him that it
would question Perkins about the situation.
After the complaint, Perkins made other age-related comments to and about Goudeau,
including referring to the designated smoking area as “where the old people meet” and chiding
that Goudeau “does own a pair of jeans, he’s not wearing them old man clothes that he always
wears.” In addition, Perkins took steps to marginalize Goudeau’s managerial responsibilities.
In January 2011, Perkins issued Goudeau a disciplinary write-up for insubordination.
Specifically, Goudeau ignored a direct request to transfer a piece of equipment and Perkins had
to do it himself. Goudeau again complained to HR and explained that the write-up was a
retaliatory measure for Goudeau’s opposition to Perkins’ discriminatory plan to terminate older
employees. Goudeau also expressed his disagreement with claim of insubordination described in
the write-up. HR informed him that it would investigate his allegation. Perkins later commented
to Goudeau that it was not necessary to complain to HR because he never intended to make the
write-up part of Goudeau’s personnel file.
In March of that same year, Goudeau received his first performance review from Perkins.
He was given an overall rating of “below standard performance.” Perkins noted specific
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deficiencies in Goudeau’s performance2 and indicated that immediate improvement in all areas
was required. Goudeau, in his subsequent complaint to HR, contested the deficiencies outlined in
the review. He further reiterated that Perkins was retaliating against him for his pervious
complaint. Perkins later approached Goudeau and again said that it was unnecessary to go to HR
because they “could have settled this in-house.” Goudeau responded that he thought the review
was motivated by age discrimination and retaliation. Perkins did not respond.
Over the course of the next several months, Goudeau was issued four additional
disciplinary write-ups. The issues outlined in each disciplinary report were similar to the
deficiencies outlined in his March performance review. On August 11, 2011, Goudeau was
summoned to a meeting with Perkins and HR. During that meeting, he was informed he was
being terminated for substandard performance, including insubordination.
Goudeau filed his first amended complaint in January 2013, alleging discrimination and
retaliation in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.,
and the Texas Commission on Human Rights Act, Tex. Lab. Code Ann. §§ 21.051, 21.055.
Discovery has concluded and docket call is set for April 7, 2014.
2
Those deficiencies were as follows: “1. Goudeau needs to improve his follow up and on-time delivery of tasks
assigned to him; 2. quantity of output of work is a major deficiency in Goudeau’s daily routines; 3. use of resources
is an issue because of the quality of the vendors used which has caused major costs to the company; 4. Goudeau
does not work well with the team and needs to improve immediately; and 5. customer impact is an issue because of
the lack of follow up on issues.”
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III.
CONTENTIONS OF THE PARTIES
A.
NOV’s Contentions3
NOV argues that Goudeau’s age discrimination claims fail because he cannot establish
his prima facie case, i.e., he cannot demonstrate that his age was a motivating factor in his
discharge.4 Specifically, NOV argues that any stray remarks made by Perkins were not
sufficiently proximate in time or in any way related to Goudeau’s discharge. Moreover, NOV
contends, even if Goudeau could establish a prima facie case of age discrimination, it has put
forth evidence that Goudeau was terminated because of his poor performance and repeated acts
of insubordination—a legitimate, nondiscriminatory reason to fire an employee. Additionally,
NOV argues that Goudeau cannot demonstrate that its proffered reason for terminating him is
pretext for a discriminatory motive.
NOV also contends that Goudeau’s retaliation claims fail because he cannot make out his
prima facie case. Specifically, NOV arguess that Goudeau cannot demonstrate that he engaged in
any protected activity, and even assuming that he engaged in protected activity, there is no causal
connection between that activity and his discharge.
B.
Goudeau’s Contentions
Goudeau argues that NOV has failed to demonstrate the absence of disputed fact issues
and therefore has not met its burden in moving for summary judgment. He maintains that Perkins
made numerous age-related comments between August 2010 and January 2011. Goudeau
3
NOV argues that the affidavit Goudeau submitted in connection with his reply brief is a “sham” and should not be
considered by the Court in ruling on the motion for summary judgment. See Axxiom Mfg., Inc. v. McCoy
Investments, Inc., 846 F.Supp.2d 732, 749 (S.D. Tex. 2012) (Rosenthal, J.) (explaining that the Fifth Circuit
recognizes the sham affidavit rule, which “stands for the proposition that a nonmoving party may not manufacture a
dispute of fact merely to defeat a motion for summary judgment.”). Upon reviewing Goudeau’s deposition
testimony and the affidavit, the Court finds that the affidavit does not directly contradict any material statements in
the deposition. Accordingly, the Court concludes that the affidavit does not constitute a “sham” and will consider it
in ruling on the motion.
4
As discussed below, there are slightly different burdens under the Age Discrimination in Employment Act and the
Texas Commission on Human Rights Act.
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received his first disciplinary write-up in January 2011, and was terminated in August of that
same year. He claims that his relationship with Perkins changed after he disagreed with Perkins
alleged plan to fire older employees generally, and two employees specifically. Goudeau
contends that these facts are enough to meet his prima facie burden. Furthermore, he claims the
write-ups he was issued were part of Perkins’ scheme to fire him for his age and, thus,
demonstrate that NOV’s purported reason for his termination is, in fact, pretextual.
Goudeau also argues that he has met his burden to establish a prima facie case of
retaliation. He contends that his complaints to HR constitute protected activity. Goudeau
maintains that HR informed Perkins of the complaints and that they were the impetus for his
subsequent write-ups and eventual termination.
IV.
STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure authorizes summary judgment against a
party who fails to make a sufficient showing of the existence of an element essential to the
party’s case and on which that party bears the burden at trial. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). The
movant bears the initial burden of “informing the Court of the basis of its motion” and
identifying those portions of the record “which it believes demonstrate the absence of a genuine
issue of material fact.” Celotex, 477 U.S. at 323; see also Martinez v. Schlumber, Ltd., 338 F.3d
407, 411 (5th Cir. 2003). Summary judgment is appropriate where “the pleadings, the discovery
and disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(c).
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If the movant meets its burden, the burden then shifts to the nonmovant to “go beyond the
pleadings and designate specific facts showing that there is a genuine issue for trial.” Stults v.
Conoco, Inc., 76 F.3d 651, 656 (5th Cir. 1996) (quoting Tubacex, Inc. v. M/V Risan, 45 F.3d 951,
954 (5th Cir. 1995); Little, 37 F.3d at 1075). “To meet this burden, the nonmovant must ‘identify
specific evidence in the record and articulate the ‘precise manner’ in which that evidence
support[s] [its] claim[s].’” Id. (quoting Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.), cert.
denied, 513 U.S. 871 (1994)). It may not satisfy its burden “with some metaphysical doubt as to
the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla
of evidence.” Little, 37 F.3d at 1075 (internal quotation marks and citations omitted). Instead, it
“must set forth specific facts showing the existence of a ‘genuine’ issue concerning every
essential component of its case.” American Eagle Airlines, Inc. v. Air Line Pilots Ass’n, Intern.,
343 F.3d 401, 405 (5th Cir. 2003) (citing Morris v. Covan World Wide Moving, Inc., 144 F.3d
377, 380 (5th Cir. 1998)).
“A fact is material only if its resolution would affect the outcome of the action . . . and an
issue is genuine only ‘if the evidence is sufficient for a reasonable jury to return a verdict for the
[nonmovant].’” Wiley v. State Farm Fire and Cas. Co., 585 F.3d 206, 210 (5th Cir. 2009)
(internal citations omitted). When determining whether a genuine issue of material fact has been
established, a reviewing court is required to construe “all facts and inferences . . . in the light
most favorable to the [nonmovant].” Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536,
540 (5th Cir. 2005) (citing Armstrong v. Am. Home Shield Corp., 333 F.3d 566, 568 (5th Cir.
2003)). Likewise, all “factual controversies [are to be resolved] in favor of the [nonmovant], but
only where there is an actual controversy, that is, when both parties have submitted evidence of
contradictory facts.” Boudreaux, 402 F.3d at 540 (citing Little, 37 F.3d at 1075 (emphasis
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omitted)). Nonetheless, a reviewing court is not permitted to “weigh the evidence or evaluate the
credibility of witnesses.” Boudreaux, 402 F.3d at 540 (quoting Morris, 144 F.3d at 380). Thus,
“[t]he appropriate inquiry [on summary judgment] is ‘whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.’” Septimus v. Univ. of Hous., 399 F.3d 601, 609 (5th Cir. 2005)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, (1986)).
V.
ANALYSIS AND DISCUSSION
A.
Discrimination Claims
i.
The Age Discrimination in Employment Act (“ADEA”) prohibits employers from
terminating or otherwise discriminating against any individual regarding compensation or the
terms, conditions, or privileges of employment because of age. 29 U.S.C. § 623(a)(1). The Texas
Commission on Human Rights Act (“TCHRA”) similarly prohibits employment discrimination
based on age. Tex. Lab. Code Ann. § 21.051. Discrimination under the ADEA and TCHRA may
be proven through either direct or circumstantial evidence. Jackson v. Cal-Western Packaging
Corp., 602 F.3d 374, 377 (5th Cir. 2010) (citing Sandstad v. CB Richard Ellis, Inc., 309 F.3d
893, 896 (5th Cir. 2002)); Machinchick v. PB Power, Inc., 398 F.3d 345, 356 (5th Cir. 2005).
The Fifth Circuit has held that in cases where no direct evidence5 of discriminatory animus has
been produced, proof by means of circumstantial evidence6 must be evaluated using the burdenshifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
5
“Direct evidence is evidence that, if believed, proves the fact of discriminatory animus without inference or
presumption.” Sandstad, 309 F.3d at 897 (citing Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1217 (5th Cir. 1995)).
6
“If an inference is required for the evidence to be probative as to an employer’s discriminatory animus in
terminating the former employee, the evidence is circumstantial, not direct.” Id. at 897-98.
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Sandstad, 309 F.3d at 896; Machinchick, 398 F.3d at 356 (5th Cir. 2005) (citing Wal-Mart
Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003)).
Under this framework, the plaintiff must first establish a prima facie case of age
discrimination, and, if successful, the burden shifts to the employer to produce evidence that the
plaintiff was discharged for a nondiscriminatory reason. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 142-43 (2000); see also Jackson, 602 F.3d at 378. If the employer meets its
burden, the plaintiff must then show that the reason provided was a pretext for discrimination.
Jackson, 602 F.3d at 378. “Although intermediate evidentiary burdens shift back and forth under
this framework, ‘[t]he ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all times with the plaintiff.’” Reeves,
530 U.S. at 143 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981)). Thus, the plaintiff “can avoid summary judgment if the evidence, taken as a whole: (1)
creates a fact issue as to whether each of the employer’s stated reasons was not what actually
motivated the employer, and (2) creates a reasonable inference that [age was the but-for] factor
in the actions of which plaintiff complains.” Grimes v. Tex. Dep’t of Mental Health and Mental
Retardation, 102 F.3d 137, 141 (5th Cir. 1996); see also Gross v. FBL Fin. Servs. Inc., 557 U.S.
167, 177 (2009). Under the TCHRA, the plaintiff only need show that age was “a motivating
factor” for the adverse employment action. Machinchick, 398 F.3d at 356 (citing Quantum
Chemical Corp. v. Toennies, 47 S.W.3d 473, 481 (Tex. 2001)).
ii.
To establish a prima facie case of age discrimination, the plaintiff must demonstrate 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
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class, ii) replaced by someone younger, or iii) otherwise discharged because of his age.” Jackson,
602 F.3d at 378 (quoting Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007).
The parties do not dispute that the first three elements of Goudeau’s prima facie case are
satisfied. Nor do they dispute that Goudeau was not replaced—his job duties were absorbed by
the existing workers at NOV. The parties do contest whether Goudeau was “otherwise
discharged because of his age.” Goudeau relies on age-related comments made by Perkins to
establish that he was terminated because of his age.
It is well-settled in this circuit that stray remarks are not indicative of discrimination. See
Moss v. BMC Software, Inc., 610 F.3d 917, 929 (5th Cir. 2010). “In order for an age-based
comment to be probative of an employer’s discriminatory intent, it must be direct and
unambiguous, allowing a reasonable jury to conclude without any inferences or presumptions
that age was an impermissible factor in the decision to terminate the employee.” Id. (quoting
EEOC v. Texas Instruments, Inc., 100 F.3d 1173, 1181 (5th Cir. 1996)). Remarks may serve as
sufficient evidence of age discrimination only if they are: (1) age-related, (2) proximate in time
to the employment decision at issue, (3) made by an individual with authority over that
employment decision, and (4) related to that employment decision. Jackson, 602 F.3d at 380.
The parties dispute whether Perkins’ remarks were sufficiently close in time to Goudeau’s
termination or related to the termination.
Although both parties have briefed the Court with the presumption that McDonnell
Douglas and the four-part stray remarks test applies, that is not the case.7 The test NOV
proposes, and that Goudeau adopts, determines whether a remark constitutes direct evidence of
7
“In evaluating federal discrimination claims, this court has distinguished between workplace comments presented
as direct evidence of discrimination and those presented as additional (i.e., circumstantial) evidence in the course of
a McDonnell Douglas analysis.” Reed v. Neopost USA, Inc., 701 F.3d 434, 441 (5th Cir. 2012) (citing Brown v. CSC
Logic, Inc., 82 F.3d 651, 655 (5th Cir. 1996)).
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discriminatory intent. See Reed v. Neopost USA, Inc., 701 F.3d 434, 441 (“Where a plaintiff
offers remarks as direct evidence, we apply a four-part test to determine whether they are
sufficient to overcome summary judgment.”). If the “plaintiff produces direct evidence of
discrimination, the McDonnell Douglas [framework] is inapplicable.” Rachid v. Jack In The Box,
376 F.3d 305, 309 (5th Cir. 2004). On the other hand, if the discriminatory remarks were offered
as circumstantial evidence, McDonnell Douglas would be applicable and a more flexible twopart stray remarks test would apply. Reed, 701 F.3d at 441.
Goudeau has not presented Perkins’ comments as additional evidence of discriminatory
animus; rather, that is his only evidence of discrimination. However, Goudeau has expressly
chosen to pursue his claims under the McDonnell Douglas framework. The Court is of the
opinion that Perkins’ alleged comments could only constitute circumstantial evidence, as
inferences are required to reach the ultimate conclusion of discriminatory animus. Cf. Obasogie
v. Harris Cnty. Hosp. Dist., 2013 WL 6916246, at *4 (S.D. Tex. 2013) (Ellison, J.). Therefore,
the Court will evaluate his claims under the McDonnell Douglas rubric, but utilize the flexible
two-part test.
iii.
When comments are offered as circumstantial evidence in the context of the McDonnell
Douglas analysis, the plaintiff must establish “(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 (citing
Laxton, 333 F.3d at 583). The Court is satisfied that the comments attributed to Perkins satisfy
this standard. The statements are at least arguably disparaging and it is undisputed that Perkins
made the decision to terminate Goudeau. Indeed, in similar circumstances, the Fifth Circuit has
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held that ageist remarks “easily establish[]” the fourth element of a prima facie case. Rachid, 376
F.3d at 313.
Having found that Goudeau has established his prima facie case, the burden now shifts to
NOV to articulate a legitimate, nondiscriminatory reason for Goudeau’s termination. “This
burden is one of production, not persuasion.” Reeves, 530 U.S. at 142. NOV asserts that it
discharged Goudeau because of poor performance and insubordination. Specifically, Goudeau
was terminated for ignoring direct requests to complete tasks or otherwise failing to finish
projects in a timely, cost-effective manner. NOV supports these assertions with emails and other
documentary evidence. Accordingly, NOV has satisfied its burden to produce evidence that
demonstrates its reason for firing Goudeau was valid.
The Court is not satisfied that Goudeau has demonstrated that NOV’s reason for
terminating him is pretextual. Goudeau contends that he has presented evidence establishing
pretext. This evidence consists of Goudeau’s own testimony that Perkins had a plan to lay the
foundation to terminate him, his claim that the write-ups were not credible, and the dispute as to
when and whether he was given any of the write-ups after his performance review in March
2011. A plaintiff’s “good faith belief that his age motivated his employer’s action” is not
sufficient to create a fact issue regarding pretext. Little v. Republic Refining Co., Ltd., 924 F.2d
93, 96 (5th Cir. 1991). Similarly, a plaintiff’s disagreement with his employer’s evaluation of his
performance does not create an issue of fact. Sandstad, 309 F.3d at 899. Moreover, as long as
Perkins reasonably believed that Goudeau’s performance was deficient and acted on it in good
faith, the dispute as to when and whether Goudeau was issued write-ups does not evidence
pretext. See Waggoner v. City of Garland, Tex., 987 F.2d 1160, 1165-66 (5th Cir. 1993). That
factual dispute, standing alone, is not probative of whether Perkins’ belief was reasonably held.
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Because Goudeau has not carried his burden under McDonnell Douglas, the Court grants
NOV summary judgment on his ADEA and TCHRA discrimination claims.8
B.
Retaliation Claims
The ADEA’s anti-retaliation 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 also
prohibits retaliation for such conduct. Tex. Lab. Code Ann. § 21.055. To establish a prima facie
claim of retaliation under the ADEA or the TCHRA, the plaintiff must establish that: (1) he
engaged in protected activity; (2) an adverse employment action occurred; and (3) a causal link
exists between the protected activity and the adverse employment action. Holtzclaw v. DSC
Comm’ns Corp., 255 F.3d 254, 259 (5th Cir. 2001); Pineda v. United Parcel Serv., Inc., 360 F.3d
483, 487 (5th Cir. 2004). The burden-shifting structure applicable to ADEA and TCHRA
discrimination claims, as originally set forth for Title VII claims in McDonnell Douglas, is also
applicable to retaliation claims under both statutes. Id.
The parties dispute whether Goudeau engaged in any protected activity. They also
dispute whether a causal link exists between any such protected activity and Goudeau’s
termination. The Court finds that Goudeau’s complaint to HR that Perkins was retaliating against
him for his prior complaint and because of his age is protected activity. The complaint clearly
asserted rights protected by the ADEA and TCHRA and called for their protection. See Kasten v.
Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1335 (2011).
It is equally clear, however, that no causal connection exists between Goudeau’s
protected activity and his termination. Goudeau asserts that both he and HR informed Perkins
8
Although the plaintiff’s burden under TCHRA burden is less onerous—only requiring age to be a motivating
factor, as opposed to but-for causation—the Court finds that Goudeau has failed to carry his burden under state law
as well.
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about his complaints in January—seven months prior to his termination. The Fifth Circuit has
found that the causal link element “is satisfied when the plaintiff shows that the employment
decision and his protected activity were not wholly unrelated.” Medina v. Ramsey Steel Co., Inc.,
238 F.3d 674, 684 (5th Cir. 2001) (holding that “not wholly unrelated” standard satisfied when
supervisor indisputably knew of complaint and fired complaining employee seven weeks later)
(internal quotation omitted). The case at bar is not on all fours with Medina. Here, the only
evidence that Perkins knew of Goudeau’s complaint is Goudeau’s testimony to that effect.
Furthermore, seven months—not seven weeks—elapsed between Perkins being informed of the
complaint and taking the adverse employment action. Although the Court construes all facts and
inferences in the nonmovant’s favor, the causal link in this instance, to the extent it exists at all,
is too tenuous to establish a prima facie case.
Even assuming Goudeau has established a prima facie case of retaliation, NOV has, as
previously discussed, put forth evidence demonstrating its legitimate, nondiscriminatory reason
for firing Goudeau. In his reply, Goudeau has not put forth any evidence or argument, specific to
the retaliation claim, evidencing pretext. Because he has not “reveal[ed] ‘a conflict in substantial
evidence on the ultimate issue of retaliation,’” the Court grants NOV summary judgment on
those claims. Id. at 685.
VI.
CONCLUSION
For the foregoing reasons, the Court GRANTS NOV’s motion for summary judgment in
its entirety.
SIGNED on this 28th day of March, 2014.
___________________________________
Kenneth M. Hoyt
United States District Judge
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