United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 19, 2004
_______________________ Charles R. Fulbruge III
Clerk
No. 04-50272
Summary Calendar
_______________________
ROSEMARY ANN KNIGHT,
Plaintiff - Appellant,
versus
DONALD H. RUMSFELD, SECRETARY, DEPARTMENT OF DEFENSE,
DOD DeCA (DEFENSE COMMISSARY AGENCY) AGENCY,
Defendant - Appellee.
Appeal from the United States District Court
For the Western District of Texas
San Antonio Division
No. SA-03-CV-1114
Before JONES, BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
Rosemary Knight, pro se, filed suit against her employer
alleging sexual discrimination and retaliation in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq. The defendant filed a motion for summary judgment,
which the district court ultimately granted. We affirm.
*
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opinion should not be published and is not precedent except under the limited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.
Knight was hired by the defendant, in December 2000, as
a wage-grade store worker in the commissary at Randolph Air Force
Base. She served under a temporary appointment subject to a one
year probationary period, which allowed the defendant to terminate
her at any time without the use of more stringent procedures.
Defendant has a “zero tolerance” policy on sexual harassment.
According to Knight, another store worker, Alvis
Cleveland, began making sexually explicit comments to her during
work. The summary judgment evidence also shows that several other
employees, who witnessed the exchanges between Knight and
Cleveland, testified that Knight enjoyed the attention and flirted
with Cleveland. On January 23, 2001, Knight informed her
supervisor, Gayle McGrath, that Cleveland was sexually harassing
her. In her written statement, however, Knight admitted that she,
too, had “said things wrong” at times. McGrath also obtained a
statement from Cleveland, who stated that he and Knight made the
comments to each other but that “maybe he had done things that were
wrong.”
On January 24, 2001, McGrath forwarded both statements to
the Personnel Department with a recommendation that both Knight and
Cleveland be terminated due to their admissions of participating in
conversations of a sexual nature. On February 1, 2001, termination
papers for both Knight and Cleveland were forwarded to McGrath.
The stated reason for termination was conduct unbecoming a federal
employee. Knight was given her termination letter on February 1.
2
However, because Cleveland was out sick from February 1 through
February 7, he was not given his termination letter until
February 8, 2001, when he returned to work.
Knight asserts that she was terminated because of her sex
and in retaliation for her complaint of sexual harassment. The
defendant argues that Knight was terminated because of the
Department’s “zero tolerance” policy in conjunction with her own
admission of wrongdoing. The district court granted the
defendant’s motion for summary judgment.
We review the district court’s grant of summary judgment
de novo. BP Oil Intern., Ltd. v. Empresa Estatal Petoleos de
Ecuador, 332 F.3d 333, 336 (5th Cir. 2003). Summary judgment is
only proper where “there is no genuine issue as to any material
fact and the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c). Additionally, all inferences from
the record must be drawn in the light most favorable to the non-
movant. Matshusita Elec. Indus. Co. v. Zenith Radio Co., 475 U.S.
574, 587-88 (1986).
To establish a prima facie case of sex discrimination
under Title VII, a plaintiff must show “(1) she was a member of a
protected class, (2) she was qualified for the position she lost,
(3) she suffered an adverse employment action, and (4) that others
similarly situated were more favorably treated.” Urbano v.
Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998). The
burden then shifts to the employer to articulate a legitimate, non-
3
discriminatory reason for the employment action. Knight asserts
that the district court employed the incorrect legal standard when
evaluating her case. Specifically, Knight argues that she has
direct evidence of retaliation, as evidenced by the fact that she
was terminated after she filed her sexual harassment complaint.
Knight’s argument on this point is unavailing. McGrath’s legiti-
mate, nondiscriminatory reason for terminating Knight was that she
admitted, in her statement, to wrongdoing. This is not direct
evidence of discrimination. Id. In this case, Knight has failed
to make a prima facie case of sex discrimination. She has produced
no evidence that others similarly situated were treated more
favorably. In fact, both Knight and Cleveland, a male, were
terminated, evincing their equal treatment under the defendant’s
policy.1
Knight established a prima facie case of retaliation
under Title VII. However, where the defendant offers a legitimate,
nondiscriminatory reason for the adverse employment action, the
burden shifts to the plaintiff to show that the reason offered is
pretext for unlawful retaliation. Byers v. Dallas Morning News,
Inc., 209 F.3d 419, 427 (5th Cir. 2000). The defendant’s summary
judgment evidence shows that Knight was terminated for violating
1
Knight argues that Cleveland was treated more favorably because he
was fired one week after Knight. This argument lacks merit. Both Knight’s and
Cleveland’s termination papers were prepared on the same day. Cleveland did not
receive his until one week after Knight because he was out sick until February 8,
2001.
4
the department’s “zero tolerance” policy. Indeed, Knight admitted
in a written statement to McGrath that she made inappropriate
comments of a sexual nature. Knight also asserts that the district
court made improper credibility determinations regarding the
defendant’s witnesses. The record contradicts this assertion, as
it shows that the court relied on Knight’s own written statement.
Thus, the burden shifts to Knight to show that the
defendant’s reason is pretextual. Knight has offered no evidence
other than her own bare assertions to show that the defendant’s
stated reason for her termination was pretextual. See Freeman v.
Tex. Dep’t of Criminal Justice, 369 F.3d 854, 860 (5th Cir. 2004)
(conclusory allegations and unsubstantiated assertions insufficient
to create a genuine issue of material fact). The district court’s
grant of summary judgment in favor of the defendant is AFFIRMED.
AFFIRMED.
5