                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                    UNITED STATES COURT OF APPEALS
                                                             August 11, 2006
                        FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk


                               05-20998
                           Summary Calendar



     VIVIAN MCKINNEY,

                                        Plaintiff-Appellant,

                                  v.

     JB HUNT TRANSPORT INC.,
     also known as JB Hunt Transport Services, Inc.,

                                        Defendant-Appellee.



         Appeal from the United States District Court for the
                  Southern District of Texas, Houston
                              4:03-CV-5545



Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     This is an appeal from a summary judgment granted in favor of

JB Hunt Transport, Inc., and against Vivian McKinney, who brought

claims of gender and race discrimination under Texas Commission on

Human Rights Act.     Tex. Lab. Code Ann. § 21.051 (Vernon 1996).

McKinney challenges the summary judgment, arguing that she raised

a material fact issue with respect to her claims.    We disagree.

     *
       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this opinion should not be published and is not precedent except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.
     McKinney’s principal argument is that she received disparate

treatment compared to that received by another supervisor, James

Welch, who was suspended for three days and not terminated for his

violation of company policy.   Her argument that she is similarly

situated to her co-worker fails because the record reveals that

Welch and McKinney were not similarly situated and certainly not

“nearly identical” as required by our precedent.     Perez v. Tex.

Dep’t of Crim. Justice, 395 F.2d 206, 213 (5th Cir. 2004) (citing

Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991).

Indeed, McKinney had numerous complaints lodged against her and a

number of instances of unprofessional conduct that were not common

to her co-worker, who she contends was similarly situated.

     Moreover, McKinney falls woefully short of providing evidence

to show that the various legitimate reasons advanced for her

termination were pretext for discrimination. Additionally, we note

that McKinney did not advance a mixed-motive theory in the district

court and none can be advanced for the first time here on appeal.

In any event, she fails to raise a fact issue that discrimination

for either race or gender was the cause or motivating factor for

her termination.   The judgment is affirmed essentially for the

reasons given by the district court in its order signed August 10,

2005.

     In conclusion, we have read the briefs and reviewed the record

and find that her arguments have no merit.    AFFIRMED.


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