Young v. 7-Eleven, Inc. , 170 F. App'x 302 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT February 15, 2006
Charles R. Fulbruge III
Clerk
No. 05-50400
Summary Calendar
DARRYL YOUNG
Plaintiff-Appellant,
versus
7-ELEVEN, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas
(1:04-CV-434)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Darryl Young appeals, pro se, the summary judgment awarded 7-
Eleven, Inc. Young claimed 7-Eleven, his former employer, violated
(1) Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,
and (2) 42 U.S.C. § 1981, by terminating him based on his race.
Young began working at 7-Eleven in July 2002 as a sales
associate; he became a store manager on 1 June 2003 and held that
position until he was fired, after the company concluded he filled
out false accounting forms and failed to timely report a cash
*
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this opinion should not be published and is not precedent except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.
shortage of over $2,100 at his store (Young was not fired for
taking the money).
After being fired, Young filed this action on 8 July 2004.
Young and 7-Eleven filed cross-motions for summary judgment. 7-
Eleven’s motion was granted. Young moved for a new trial. The
district court treated the motion as a Rule 59(e) motion, denying
it on 21 April 2005.
A summary judgment is reviewed de novo under Federal Rule of
Civil Procedure 56, using the same standard as the district court.
See, e.g., Baton Rouge Oil & Chem. Workers Union v. ExxonMobil
Corp., 289 F.3d 373, 376 (5th Cir. 2002). Such judgment is proper
if "the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law". FED.
R. CIV. P. 56(c). Evidence is construed in the light most favorable
to the non-movant. E.g., Kee v. City of Rowlett, 247 F.3d 206, 210
(5th Cir.), cert. denied, 534 U.S. 892 (2001). If a plaintiff
fails to prove an essential element of his claim, summary judgment
must be granted. E.g., Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). The non-movant may not rest on the pleadings, but
rather must provide specific facts showing the existence of a
genuine issue for trial. E.g., Ragas v. Tenn. Gas Pipeline Co.,
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136 F.3d 455, 458 (5th Cir. 1998). Young fails to demonstrate a
genuine issue of material fact.
The proof required to establish violations of Title VII and
§ 1981 is identical; therefore, we will analyze both claims
together. Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 403
n.2 (5th Cir. 1999). In the absence of direct evidence of
discrimination, Young has to first establish a prima facie case of
discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 142 (2000). To do so, Young has to show he: “(1) is a
member of a protected class; (2) was qualified for [his] position;
(3) was subject to an adverse employment action; and (4) was
replaced by someone outside the protected class, or, in the case of
disparate treatment, [] that others similarly situated were treated
more favorably”. Okoye v. Univ. of Tex. Houston Health Sci. Ctr.,
245 F.3d 507, 512-13 (5th Cir. 2001) (internal quotation omitted).
If a prima facie case is established, 7-Eleven must demonstrate
legitimate, non-discriminatory reasons for the termination.
Shackelford, 190 F.3d at 404. If so, the burden returns to Young
to prove 7-Eleven’s stated reasons are pretext for racial
discrimination. Id. As the district court held, Young failed to
establish a prima facie case of discrimination.
First, he offered no evidence of the race of the person who
replaced him. Second, he offered no evidence supporting his claim
that he was blamed for the cash shortage simply because he was the
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only black manager with access to the money; 7-Eleven demonstrates
that multiple employees believed Young improperly accounted for the
missing money. Young’s final claim is that, unlike other managers
who faced cash shortages, he did not get the benefit of a
progressive discipline plan. Even if Young could show those
employees engaged in similar violations, he offers no proof of
their race. Therefore, those alleged differences in treatment do
not establish a prima facie case. Accordingly, Young offers no
evidence demonstrating that his race had anything to do with his
termination. Because he fails to establish a prima facie case of
racial discrimination, we need not proceed in the burden shifting
analysis.
7-Eleven requests attorneys’ fees concerning this appeal, but
does not make a specific request as to the amount. Young does not
reply. Pursuant to 42 U.S.C. § 2000e-5(k), we have discretion to
award fees. The district court awarded 7-Eleven such fees for
proceedings in that court. Likewise, attorneys’ fees are awarded
7-Eleven for this appeal and the matter is remanded to the district
court to assess the proper amount. See Arenson v. Southern Univ.
Law Ctr., 53 F.3d 80 (5th Cir. 1995).
JUDGMENT AFFIRMED; REMANDED TO ASSESS ATTORNEY’S FEES
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