                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                              September 5, 2003
                         FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk

                             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-Appellant 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 internal 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, along


     *
      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this opinion should not be published and is not precedent except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.
with       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

account          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 case 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

restructuring           because     the    position    had    been     eliminated.2     It

       1
       See McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-05
(1973).
       2
       Although 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

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further   reasoned   that   DeRouen   had   not   challenged   Shoney’s

explanation that it promoted Albarado instead 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 that 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 claim 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 complaint3 and whether the evidence DeRouen presented



the 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 district court on which
DeRouen hand-wrote certain allegations.

                                  3
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.




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