IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________________

No. 99-60342 Summary Calendar __________________________

PERRIN HURDLE,

Plaintiff-Appellant,

versus

SEARS, ROEBUCK & COMPANY,

Defendant-Appellee.

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Appeal from the United States District Court for the Southern District of Mississippi (95-CV-247-BrR) _____________________________________________

October 27, 1999

Before POLITZ, JONES, and WIENER, Circuit Judges.

Per Curiam*

In this appeal from the dismissal of his employment

discrimination suit, asserted under the Age Discrimination in

Employment Act (“ADEA”),

et. seq., Plaintiff-

Appellant Perrin Hurdle asks us to reverse the district court’s

grant of summary judgment in favor of Defendant-Appellee Sears,

Roebuck & Company. Hurdle complains that the district court

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. erred in concluding that he failed to allege facts sufficient to

make out a prima facie case of age discrimination.

The Supreme Court’s decision in Hazen Paper Company v.

Biggins,

(1993), controls this case. Whether the

court applies the age discrimination test applicable to

individual employee discharges, see Price v. Marathon Cheese

Corp.,

(5th Cir. 1997), or the one

applicable to reductions in force, see Woodhouse v. Magnolia

Hosp.,

(5th Cir. 1996), Hurdle bears the burden

of producing evidence that he was discriminated against because

of his age. The essence of Hurdle’s complaint is that he was

discharged because his pension benefits were about to vest. The

Supreme Court explicitly stated in Hazen Paper, however, that “a

decision by [a] company to fire an older employee solely because

he... is <close to vesting’ would not constitute discriminatory

treatment on the basis of age.”

. Such conduct

may be actionable under other substantive laws, such as ERISA,

but it does not involve the inaccurate and stigmatizing

stereotyping that is the essence of an ADEA claim. Id at 611-12.

Hurdle does not point to any other evidence that would

support the inference that he was discriminated against because

of his age. The new management position created by Sears,

Roebuck & Co.’s restructuring and reorganization, a position to

which Hurdle argues he was entitled, was filled by a 57-year old

employee who was 9 years older than the 48-year old Hurdle. Hurdle simply has presented no evidence that he was discriminated

against because of his age. As such, the decision of the

district court must be

AFFIRMED.