Summary Calendar VIVIAN MCKINNEY v. Jb Hunt Transport Inc., also known as JB Hunt Transport Services, Inc.

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
August 11, 2006
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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.

-- 1 of 2 --

2
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.

-- 2 of 2 --