                                                             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opinion should not be published and is not precedent except under the limited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.




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