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)
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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that this opinion should not be published and is not precedent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
2
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.
3
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.”).
4