                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS           May 17, 2006
                        FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                        ))))))))))))))))))))))))))               Clerk

                             No. 05-30238
                          (Summary Calendar)

                        ))))))))))))))))))))))))))

JANA L. LANDRY,

                  Plaintiff–Appellant,

     v.

JOHN E. POTTER, Postmaster General,

                  Defendant–Appellee.


           Appeal from the United States District Court
               for the Middle District of Louisiana
                       USDC No. 3:02-CV-1053



Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Plaintiff Jana L. Landry appeals the district court’s grant

of Defendant John E. Potter’s motion for summary judgment on her

claims that her former employer, the United States Postal Service

(“Postal Service”), discriminated against her on the basis of

race, gender, age and pregnancy under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e to e-17, the Age



     *
       Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621–634,

and the Pregnancy Discrimination Act of 1978, 42 U.S.C. §

2000e(k), when it refused to reinstate her following her

voluntary resignation.   Potter contends that Landry was not

reinstated because her safety and attendance records did not meet

reinstatement standards.

     On January 27, 2005, the district court found that Landry

had not established a prima facie case of discrimination because

she did not show that others similarly situated were treated more

favorably, stating:

     Although the Plaintiff has cited some statistics,
     primarily it appears that the statistics relied upon by
     the Plaintiff are that the postal records indicate that
     10 out of 12 people who were hired by the postal manager,
     in this case Mr. Edlin [sic], are reinstated, 10 out of
     12 are African American, nine out of 12 were under the
     age of 40, and seven out of the 12 were male. However,
     those statistics alone did not indicated that these
     people were in anyway similarly situated to the Plaintiff
     in that there’s no indication as to what the safety
     record that these people had, nor is there any evidence
     as to the attendance record that these people had prior
     to their termination and reinstatement. So there’s no
     evidence that these people cited by the Plaintiff were
     similarly situated to the Plaintiff.

     The district court entered final judgment and Landry timely

appealed.   Pro se, Landry claims that the district court erred in

granting summary judgment because the Postal Service allegedly

failed to produce discoverable information.   Landry explains that

she would have included the discoverable information in her

opposition to the Postal Service’s motion for summary judgment



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had it been produced.

     Landry’s argument was not presented to the district court

when the Postal Service moved for summary judgment.    “Arguments

not raised in the district court cannot be asserted for the first

time on appeal.”   Greenberg v. Crossroads Sys., Inc., 364 F.3d

657, 669 (5th Cir. 2004); see FDIC v. Mijalis, 15 F.3d 1314, 1327

(5th Cir. 1994)(“If an argument is not raised to such a degree

that the district court has an opportunity to rule on it, we will

not address it on appeal.”).   Landry cannot assert her argument.

     Landry also argues that the “bare statistics” she provided

were sufficient to show she was treated differently than those

with whom she was similarly situated.    We review the district

court’s grant of summary judgment de novo.     Pegram v. Honeywell,

Inc., 361 F.3d 272, 278 (5th Cir. 2004).    In this case, there is

no direct evidence of discrimination; Landry must therefore

establish a prima facie case of discrimination.     See Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)(“[I]n

discriminatory treatment cases . . . .[f]irst the plaintiff must

establish a prima facie case of discrimination.”).    To make her

prima facie case, Landry must show she “(1) is a member of a

protected class; (2) was qualified for her position; (3) was

subject to an adverse employment action; and (4) . . . in the

case of disparate treatment, show[] that others similarly

situated were treated more favorably.”     Okoye v. Univ. of Tex.


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Houston Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir.

2001)(internal quotation omitted).1

     The district court found Landry had not shown that the

Postal Service treated those similarly situated to Landry more

favorably.   There is no evidence in the record of the attendance

and safety records of any person hired by the Postal Service, let

alone evidence showing their records were similar to Landry’s.

To establish a claim of disparate treatment, Landry must show

that the Postal Service gave preferential treatment to employees

or applicants who were under “‘nearly identical’ circumstances.”

Wyvill v. United Companies Life Ins. Co., 212 F.3d 296, 304-05

(5th Cir. 2000).   The bare statistics Landry provides regarding

the age, gender, and race of those hired by the Postal Service

are insufficient to show others similarly situated were treated

more favorably, and the judgment of the district court is

AFFIRMED.




     1
       Although Landry raises four different federal
discrimination claims, the requirements for establishing a prima
facie case of employment discrimination are identical for each
claim. See Reeves, 530 U.S. at 142-43; St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 506 n.1 (1993); Laxton v. Gap Inc., 333 F.3d
572, 578 (5th Cir. 2003)(“A claim brought under the [Pregnancy
Discrimination Act] is analyzed like any other Title VII
discrimination claim.”).

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