                                                       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.

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                          (6:01-CV-1457)
                       --------------------

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this opinion should not be published and is not precedent except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

                                2
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.

                                   3
     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.




                                4
