                                                     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this opinion should not be published and is not precedent except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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