United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 17, 2004
Charles R. Fulbruge III
Clerk
No. 04-30515
Summary Calendar
LAVELL JOHNSON,
Plaintiff-Appellant,
versus
FRED’S STORES OF TENNESSEE, INC.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Louisiana
(6:01-CV-1457)
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Lavell Johnson, a black male proceeding
pro se, appeals from the district court’s April 22, 2004 order
denying his motion under Federal Rule of Civil Procedure 59(e) for
reconsideration of that court’s summary judgment entered March 15,
2004 which dismissed Johnson’s action with prejudice. The district
court’s March 2004 summary judgment and April 2004 order denying
reconsideration concluded the district court proceedings on this
matter, which had commenced in August 2001 when Johnson filed suit
*
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this opinion should not be published and is not precedent except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.
in district court against his former employer, Defendant-Appellee
Fred’s Stores of Tennessee, Inc. (“Fred’s”). In that suit Johnson
claimed that he had suffered adverse employment actions, i.e.,
disparate compensation, termination of employment, and denial of
constitutional due process, all alleged to have resulted from his
employer’s racial discrimination.
We have carefully reviewed the extensive record on appeal,
including the district court’s dispositive rulings and judgments,
as well as the appellate briefs of the parties. As a result, we
are satisfied that the district court’s grant of summary judgment
dismissing Johnson’s action with prejudice and its order denying
rehearing are correct, largely for the reasons given by the court
in its Memorandum Ruling of March 14, 2004 and its Order of April
22, 2004.
Even accepting, as did the district court and Fred’s, that
Johnson made out a prima facie case of racial discrimination in
Fred’s termination of his employment, Johnson’s extensive filings
and the summary judgment evidence that he submitted both before and
after the district court denied Fred’s original motion for summary
judgment, viewed in the light most favorable to Johnson, fails to
demonstrate that Fred’s legitimate, non-discriminatory reasons for
firing Johnson are pretext. As this is painstakingly set forth and
fully analyzed in the district court’s Memorandum Ruling, we need
not rehash it in detail. It suffices that Johnson’s subjective
beliefs and unsupported conclusional assertions fail to satisfy his
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burden of demonstrating pretext or even establishing the existence
of a genuine dispute of material facts regarding pretext.
As for Johnson’s claim that he was paid substantially less
than similarly situated white store managers, we conclude that he
failed even to make a prima facie case of actionably disparate
compensation, whether race based or objectively analyzed. The
undisputed summary judgment evidence establishes no significant
disparity between Johnson’s compensation and that of white managers
situated essentially identically to him; and Johnson has again
failed to demonstrate the existence of any genuine disputes of
material fact regarding this claim. On the contrary, his evidence
demonstrates that Fred’s takes into account numerous factors when
determining compensation for managers of differently located and
differently situated stores, and that greater compensation paid to
other managers —— both black and white —— is legitimately explained
by Fred’s on a non-racial basis, free of any probative evidence of
racial discrimination or animus.
Finally, Johnson’s effort to advance a constitutional claim of
a due process violation under § 1983 widely misses the mark. An
employee in the private sector cannot make out a due process
violation against an employer in the private sector in the absence
of evidence that the employer’s acts are somehow attributable to
government. Johnson has not —— because he cannot —— present any
evidence of nexus between the acts of his former employer and any
governmental unit or agency —— federal, state, or local.
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In conclusion, we affirm the district court’s summary judgment
dismissing Johnson’s action with prejudice for essentially the same
reasons set forth in that court’s Memorandum Ruling, and we affirm
its order denying Johnson’s motion for reconsideration, also for
the reasons set forth in its Order.
AFFIRMED.
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