* Pursuant to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

September 5, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-30262

Summary Calendar

DAVID DEROUEN, SR.,

Plaintiff-Appellant,

versus

SHONEYS, INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 01-CV-785

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM: *

From 1999 until 2000, Plaintiff-Ap pellant David DeRouen, an

African American, was employed as a Restaurant Supervisor at a

Shoney’s location in Lafayette, Louisiana. In the summer of 2000,

Shoney’s underwent an interna l restructuring of its restaurants’

management staff. As a result, a number of employees, Caucasian

and African American, were demoted from their positions. Shoney’s

completely eliminated the Restaurant Supervisor position, along1 See McDonnell-Douglas Corp. v. Green

, 4 11 U.S. 792, 802-05

(1973).

2 A lthough DeRouen argued that he was demoted on August 7,

2000, and that white employees remained in the position of

Restaurant Supervisor after that date, the evidence he submitted to

2 w ith the Director of Operations and Dining Room Supervisor

positions. Because it eliminated DeRouen’s position of Restaurant

Supervisor, Shoney’s gave DeRouen the title of Cashier/Counter, but

his rate of pay remained the same. DeRouen remained employed in

that position until Shoney’s closed the restaurant and laid off all

of the employees. Also during the restructuring, Shoney’s promoted

Harold Albarado, a white male, to the Assistant Restaurant Manager

position, a position for which DeRouen had expressed interest.

DeRouen brought suit alleging employment discrimination on

acc ount of his demotion from Restaurant Supervisor to

Cashier/Counter and in Shoney’s refusal to promote DeRouen to

Assistant Restaurant Manager. The district court granted summary

judgment in favor of Shoney’s, concluding that, even assuming

DeRouen could make out a prima facie cas e of discrimination,

Shoney’s provided legitimate nondiscriminatory reasons for the

complained-of employment actions and DeRouen pointed to no

competent evidence challenging those reasons. 1 The district court

determined that the undisputed evidence showed that DeRouen’s title

change was due to a restructuring of management positions, and that

no employees held the title of Restaurant Supervisor after the

restr ucturing because the position had been eliminated. 2 Itthe district court showed that he, along with all of the other

Restaurant Supervisors to which he pointed, remained in that

position until September 18, 2000, at which time they were placed

in different positions or were terminated.

3 DeRouen’s complaint appears to be two-part. The first part

was type-written by DeRouen, while the second-part is composed of

a complaint form provided to him by the dis trict court on which

DeRouen hand-wrote certain allegations.

3 further reas oned that DeRouen had not challenged Shoney’s

explanation that it promoted Albarado ins tead of DeRouen because

Albarado had significantly more restaurant experience than DeRouen

and had better performance reviews. Reviewing the district court’s

decision de novo

, we find that summary judgment as to DeRouen’s

demotion and promotion claims was appropriate. DeRouen submitted

no evidence that Shoney’s proffered nondiscriminatory reasons for

its employment actions were pretext for discrimination. Therefore,

we affirm the district court’s grant of summary judgment on these

claims.

DeRouen also asserts th at he brought a wage discrimination

claim and that the district court failed to address his arguments

on that claim in its summary judgment decision. Shoney’s argues

that DeRouen did not include such a cla im in his complaint. The

district court did not speak to this issue in its order. We vacate

the judgment as it relates to any wage discrimination claim that

DeRouen may have brought and remand the case to the district court

so that it may consider whether DeRouen adequately pleaded such a

claim in his complaint 3 and whether the evidence DeRouen presented4

in support of the claim in his response to Shoney’s summary

judgment motion creates a genuine issue of material fact as to the

claim.

AFFIRMED in part; VACATED in part; and REMANDED.