UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL M. ASUNCION,
Plaintiff-Appellant,

v.                                                                    No. 96-2702

SOUTHLAND CORPORATION,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CA-95-3165-MJG)

Submitted: January 13, 1998

Decided: February 23, 1998

Before HALL and WILKINS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Charles Mentzer, Baltimore, Maryland, for Appellant. Michael F.
Marino, Eric A. Welter, REED, SMITH, SHAW & MCCLAY,
McLean, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Michael M. Asuncion appeals from the district court's order grant-
ing summary judgment in favor of the Defendant and dismissing his
employment discrimination action alleging violations of Title VII of
the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000e to 2000e-16
(West 1994 & Supp. 1997). We affirm.

Asuncion, an Asian male, was employed from 1982 to 1993 as a
part-time store clerk and then store manager by Southland Corpora-
tion.* In October 1992, Asuncion managed a "7-Eleven" store in
Rockville, Maryland. In September and October 1993, surveys of the
registers at Asuncion's store revealed two cash shortages totaling
$101.27. Asuncion notified his Field Consultant, Donald Driver, of
the cash shortages and told Driver that he believed Kwame Kuffor,
an employee, was responsible for the cash shortages. Driver
instructed Asuncion to investigate the shortages and to interview Kuf-
for. Asuncion met with Kuffor to discuss the shortages and suggested
to Kuffor that he go home and check his smock pockets for the miss-
ing money.

Following the interview, Kuffor notified Asuncion that he had
found the money and returned $150 along with a letter of resignation.
In November 1993, Market Manager Russ Ritenour fired Asuncion
for violating Southland's company policy against requiring store
employees to pay back cash register shortages. Asuncion filed a
grievance with the Montgomery County Commission on Human
Relations and with the Equal Employment Opportunity Commission
("EEOC"). Asuncion received a right to sue letter from the EEOC in
August 1995. In September 1995, Asuncion filed suit in the Circuit
Court of Maryland for Montgomery County, which was later removed
to the district court. Asuncion alleged: (1) discrimination based on
race and national origin in violation of Title VII, and
(2) discrimination based on race and national origin in violation of
_________________________________________________________________
*Southland Corporation operates convenience stores under the names
"7-Eleven" and "High's."

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the Montgomery County Human Relations Act. The Defendant filed
a motion for summary judgment, which the district court granted.

On appeal, Asuncion asserts that the district court erred in granting
summary judgment to the Defendant because the Defendant wrong-
fully discharged him because of his race. To establish a claim of
employment discrimination, Asuncion must show that: (1) he is a
member of a protected class; (2) he was qualified for the job and that
his job performance was satisfactory; (3) in spite of his qualifica-
tions, he was fired; and (4) he was replaced by someone outside the
protected class. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507
(1993). Once a prima facie case is established, the burden shifts to the
defendant to produce evidence that shows a legitimate, nondiscrimi-
natory reason for their actions. See Texas Dep't of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981). If the defendant meets this bur-
den, the burden then shifts back to the plaintiff to show that the reason
proffered by the defendant was false and that race was the real reason
for the adverse action. See St. Mary's Honor Ctr., 509 U.S. at 514-15.

Our review of the record and the district court's opinion discloses
that this appeal is without merit. Although Asuncion established the
first three elements of the prima facie case, he failed to establish that
he was replaced by an individual not within the protected class. After
Asuncion's termination, his position was temporarily filled by a Cau-
casian female Field Consultant Trainee. Ultimately, however, Asun-
cion's position was filled by an Asian male.

In addition, Southland articulated a legitimate, nondiscriminatory
reason for firing Asuncion: that Ritenour, the market manager who
made the decision to terminate Asuncion, reasonably believed that
Asuncion required an employee to pay back cash register shortages
in violation of Southland's company policy against such practices.
Asuncion failed to show that Southland's explanation was actually a
pretext for a discriminatory motive. See St. Mary's Honor Ctr., 509
U.S. at 511; Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1316-17 (4th
Cir. 1993). The only evidence that Asuncion proffers is his assertion
that he did not force Kuffor to pay back the cash shortages. This is
not sufficient to establish a genuine issue of material fact as to what
Ritenour believed and acted upon when terminating Asuncion. See
Billups v. Methodist Hosp. of Chicago, 922 F.2d 1300, 1304 (7th Cir.

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1991). The record establishes that after an independent investigation,
it was recommended that Asuncion be terminated for accepting
money from an employee for cash shortages. Asuncion failed to
establish this explanation was pretextual.

Accordingly, we affirm the district court's order. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.

AFFIRMED

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