F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 4 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ROBERT L. BROWN,
Plaintiff-Appellant,
v. No. 97-6150
(D.C. No. 96-CV-329)
SEARS, ROEBUCK AND (W.D. Okla.)
COMPANY, a Corporation,
Defendant-Appellee.
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.
*
This order and judgment is not binding precedent, except under the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.
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
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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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
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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
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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] non-
decision-maker[].” Appellant’s Br. at 6 (quotation omitted). We disagree. Age-
related 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
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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