* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

F I L E D

United States Court of Appeals

Tenth Circuit

FEB 4 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ROBERT L. BROWN,

Plaintiff-Appellant,

v.

SEARS, ROEBUCK AND

COMPANY, a Corporation,

Defendant-Appellee.

No. 97-6150

(D.C. No. 96-CV-329)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before BRORBY, BARRETT, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.
1 Plaintiff does not appeal the district court’s earlier dismissal of his

purported disparate impact claim under the ADEA, his pension fraud claim, and

his claim under the Americans with Disabilities Act. Nor does he challenge the

district court’s decision, upon granting summary judgment, to dismiss his state

law claims without prejudice.

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Plaintiff Robert L. Brown appeals the district court’s order granting

summary judgment in favor of defendant Sears, Roebuck & Company, on his

disparate treatment claim under the Age Discrimination in Employment Act

(ADEA), 29 U.S.C.A. §§ 621-634.1 We exercise jurisdiction pursuant to

28 U.S.C.A. § 1291 and affirm.

Plaintiff was employed by defendant as an appliance salesperson from 1968

until December 1973, and again from September 1975 until he took early

retirement in 1993. Following his retirement, in the late fall of 1993, plaintiff

was rehired by defendant to work part-time. On June 12, 1995, when he was 57

years old, plaintiff was discharged. Plaintiff alleges that he was discharged

because of his age pursuant to a “corporate policy to get rid of older employees.” 

Appellant’s Br. at 4. Defendant maintains that plaintiff was discharged as a result

of an investigation which revealed that he was falsifying certain sales records so

as to overstate his sales performance. Five other employees were also discharged

as a result of the investigation. All but one were over 40.

We review a summary judgment decision de novo, viewing the record in the

light most favorable to the nonmoving party. See Cone v. Longmont United
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Hosp. Ass’n, 14 F.3d 526, 527-28 (10th Cir. 1994). Summary judgment is

appropriate only if there are no genuinely disputed issues of material fact and the

moving party is entitled to judgment as a matter of law. Id.

To establish a prima facie case of age discrimination under the framework

set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), an

ADEA plaintiff must ordinarily demonstrate that (1) he was within the protected

class; (2) he was doing satisfactory work; (3) he was discharged in spite of the

adequacy of his work; and (4) a younger person replaced him. See Greene v.

Safeway Stores, Inc., 98 F.3d 554, 558 (10th Cir. 1996). In this case, the district

court found that plaintiff failed to establish a prima facie case because he failed

to present any evidence that he was replaced by a younger person. Relying on

O’Connor v. Consolidated Coin Caterers Corp., 116 S. Ct. 1307, 1310 (1996)

(where the Fourth Circuit’s requirement to show replacement by a worker under

40 was rejected), and Greene, 98 F.3d at 558-60 (where the defendant’s judgment

as a matter of law was reversed, notwithstanding the plaintiff’s replacement by an

older worker), plaintiff contends on appeal that the failure to show replacement

by a younger worker is no longer fatal to a prima facie case. In Greene (which

acknowledged and discussed O’Connor), however, we specifically declined to

reach “the issue whether this Circuit allows a plaintiff in an ‘extraordinary’

situation to present a prima facie case through the McDonnell Douglas burden
-4-

shifting approach even though the plaintiff fails to satisfy one or more of the

prongs.” Greene, 98 F.3d at 560. Rather, we held that the plaintiff there

“presented a submissable case of discrimination based on direct and

circumstantial evidence without relying on the McDonnell Douglas test.” Id.

In this case, as in Greene, we find it unnecessary to reach the potential

legal issue raised by plaintiff’s failure to satisfy the fourth prong of the prima

facie case. See Griffin v. Davies, 929 F.2d 550, 554 (10th Cir. 1991) (“We will

not undertake to decide issues that do not affect the outcome of a dispute.”). The

establishment of a prima facie case simply gives rise to a presumption of unlawful

discrimination, which disappears when a defendant produces evidence of a

legitimate, nondiscriminatory reason for its action, see Greene, 98 F.3d at 558, as

defendant did here. At the summary judgment stage, it is then the plaintiff’s

responsibility to show that there is a genuine dispute of material fact as to

whether age was a determinative factor in the defendant’s decision, or whether

the defendant’s explanation for its action was merely pretext. See Cone, 14 F.3d

at 529. We agree with the district court’s conclusion that in his case, plaintiff has

failed to meet his burden of discrediting defendant’s legitimate reason for

terminating him.

Plaintiff challenges this conclusion on appeal, relying exclusively on two

remarks made by the store manager to Danny O’Shields, one of the other
2 One of the remarks was to the effect that Mr. O’Shields was “making good

money for a man [his] age.” Appellant’s App. at 23. The other was to the effect

that Mr. O’Shields was “getting a little gray on top there.” Id. at 24.

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employees terminated as a result of the investigation.2 He contends that the

district court improperly characterized these remarks as “stray remarks by [a] nondecision-maker[].” Appellant’s Br. at 6 (quotation omitted). We disagree. Agerelated comments may support an inference of age discrimination if the plaintiff

demonstrates a nexus between the allegedly discriminatory statements and the

adverse employment action. Cone, 14 F.3d at 531. Here, plaintiff has made no

such demonstration. The remarks were not made to or about plaintiff. Although

they were made to another employee who was terminated at the same time, the

remarks do not appear to have been in any way related to either the investigation

or the subsequent terminations. Furthermore, plaintiff’s arguments to the contrary

notwithstanding, the undisputed evidence in this record indicates that the store

manager was not involved in the decision to terminate plaintiff or the others.

The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED.

Entered for the Court

Wade Brorby 

Circuit Judge