* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 Plaintiff does not appeal the district court’s earl ier dismissal of his

purported disparate impact claim under the ADEA, hi s pension fraud claim, and his claim under the Americans with Disabilities Act . Nor does he challenge the district court’s decision, upon granting summary ju dgment, to dismiss his state law claims without prejudice. -2- Plaintiff Robert L. Brown appeals the district court’s order granting summary judgment in favor of defendant Sears, Roebu ck & Company, on his disparate treatment claim under the Age Discriminat ion 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 Jun e 12, 1995, when he was 57 years old, plaintiff was discharged. Plaintiff all eges 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 pla intiff was discharged as a result of an investigation which revealed that he was fals ifying 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, view ing the record in the light most favorable to the nonmoving party. See Cone v. Longmont United-3-

Hosp. Ass’n , 14 F.3d 526, 527-28 (10th Cir. 1994). Summary ju dgment is appropriate only if there are no genuinely disputedissues 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 discriminati on 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 w as discharged in spite of the adequacy of his work; and (4) a younger person repl aced 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 pr ima facie case because he failed to present any evidence that he was replaced by a y ounger person. Relying on O’Connor v. Consolidated Coin Caterers Corp. , 116 S. Ct. 1307, 1310 (1996) (where the Fourth Circuit’s requirement to show rep lacement 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 th e plaintiff’s replacement by an older worker), plaintiff contends on appeal that th e failure to show replacement by a younger worker is no longer fatal to a prima f acie case. In Greene (which acknowledged and discussed O’Connor ), however, we specifically declined to reach “the issue whether this Circuit allows a plai ntiff in an ‘extraordinary’ situation to present a prima facie case through the McDonnell Douglas burden-4-

shifting approach even though the plaintiff fails t o satisfy one or more of the prongs.” Greene , 98 F.3d at 560. Rather, we held that the plainti ff there “presented a submissable case of discrimination bas ed on direct and circumstantial evidence without relying on the McDo nnell 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 satisf y 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 ri se to a presumption of unlawful discrimination, which disappears when a defendant p roduces 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 disp ute of material fact as to whether age was a determinative factor in the defen dant’s decision, or whether the defendant’s explanation for its action was mere ly pretext. See Cone , 14 F.3d at 529. We agree with the district court’s conclus ion 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, rel ying exclusively on two remarks made by the store manager to Danny O’Shield s, one of the other2 One of the remarks was to the effect that Mr. O’Shi elds 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 to p there.” Id. at 24. -5- employees terminated as a result of the investigati on. 2He contends that the district court improperly characterized these remarks as “stray remarks by [a] nondecision-maker[].” Appellant’s Br. at 6 (quotationomitted). We disagree. Agerelated comments may support an inference of age di scrimination if the plaintiff demonstrates a nexus between the allegedly discrimi natory 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 o r about plaintiff. Although they were made to another employee who was terminat ed at the same time, the remarks do not appear to have been in any way relat ed to either the investigation or the subsequent terminations. Furthermore, plaintiff’s arguments to the contrary notwithstanding, the undisputed evidence in this re cord 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 fo r the Western District of Oklahoma is AFFIRMED. Entered for the Court
Wade Brorby Circuit Judge