                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 13, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 03-10960
                         Summary Calendar



JOHNNA E. BURTON,

                                    Plaintiff-Appellant,

versus

BUCKNER CHILDREN AND FAMILY SERVICES, INC.,

                                    Defendant-Appellee.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 3:02-CV-415-P
                      --------------------

Before REAVLEY, JONES and PRADO, Circuit Judges.

PER CURIAM:*

     Buckner Children and Family Services, Inc. (Buckner) hired

Johnna Burton (Burton) as a special events coordinator in 1995

and fired her in 2000.   Burton, who was more than 40 years old

when she was fired, filed suit in a Texas court against Buckner

alleging age discrimination under the Texas Commission on Human

Rights Act (TCHRA) and retaliation for using leave under the

federal Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq.



     *
        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that this opinion should not be published and is not precedent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.
                           No. 03-10960
                                -2-

Buckner removed the case to federal court on grounds that the

FMLA claims presented a federal question.     28 U.S.C. § 1331.

     The district court granted summary judgment for Buckner on

grounds that Burton was fired for a legitimate nondiscriminatory

reason and not because of age discrimination or in retaliation

for her exercise of her FMLA rights.     The court reasoned that

Burton’s attempts to contest Buckner’s summary judgment evidence

concerning age discrimination were vague and without foundation.

The court also concluded that Burton failed to establish a prima

facie case of retaliation under the FMLA, and that even if she

had, Buckner had established a legitimate nonretaliatory reason

for dismissing her.   We affirm.

     “Summary judgment is reviewed de novo, under the same

standards the district court applies.”     Amburgey v. Corhart

Refractories Corp., 936 F.2d 805, 809 (5th Cir. 1991).      Summary

judgment is proper when, viewing the evidence in the light most

favorable to the non-movant, “‘there is no genuine issue as to

any material fact and . . . the moving party is entitled to

judgment as a matter of law.’”     Id. (quoting FED. R. CIV. P.

56(c)).   We agree with the district court that Burton’s

conclusional allegations and speculation were insufficient to

establish a genuinely contested issue of material fact.      See

Michaels v. Avitech, Inc., 202 F.3d 746, 754-55 (5th Cir. 2000).
                            No. 03-10960
                                 -3-

     Buchner supported its motion for summary judgment with

affidavits and documents indicating that Burton was dismissed for

inadequate performance.

     Burton’s allegations of discrepancies in Buckner’s summary

judgment evidence were either unsupported by the record or so

trivial as to be immaterial.    See Michaels, 202 F.3d at 754-55

(mere conclusions and speculation inadequate to defeat summary

judgment motion); see also Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 148 (2000) (noting that “employer would be

entitled to judgment as a matter of law [if] plaintiff created

only a weak issue of fact as to whether the employer’s reason was

untrue and there was abundant and uncontroverted independent

evidence that no discrimination had occurred”); Moore v. Eli

Lilly & Co., 990 F.2d 812, 815-16 (5th Cir. 1993) (plaintiff must

do more than cast superficial doubt on employer’s proffered

reason for dismissal).    Summary judgment was proper on the age-

discrimination claims.

     To support her claims of discrimination for exercising her

rights under the FMLA, Burton was required to show initially that

“(1) she was protected under the FMLA; (2) she suffered an

adverse employment decision; and either (3a) that she was treated

less favorably than an employee who had not requested leave under

the FMLA; or (3b) the adverse decision was made because she took

FMLA leave.”   Hunt v. Rapides Healthcare Sys. L.L.C., 277 F.3d

757, 768 (5th Cir. 2001).   As noted by the district court, Burton
                           No. 03-10960
                                -4-

pointed to no summary judgment evidence that “she was treated

less favorably than an employee who had not requested leave under

the FMLA; or [that] the adverse decision was made because she

took FMLA leave.”   Hunt, 277 F.3d at 768.   Her references to the

treatment of fellow employee JoAnn Cole did not show either that

Cole had never used FMLA leave or that Cole’s infraction was

“nearly identical” to the infractions for which Burton was

dismissed.   See Wallace v. Methodist Hosp. System, 271 F.3d 212,

220-21 (5th Cir. 2001) (compared employee’s conduct must be

“nearly identical” to plaintiff’s).   Burton therefore did not

make a prima facie case of discrimination under the FMLA.

     Even had Burton made a prima facie case, her claim would

fail because she did not create a genuinely contested issue of

material fact with respect to Buckner’s legitimate,

non-discriminatory reason for dismissing her.    See Michaels v.

Avitech, Inc., 202 F.3d at 754-55; Moore, 990 F.2d at 815-16.

Summary judgment was proper on the FMLA claim.

     AFFIRMED.
