          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                    FILED
                                                                November 20, 2008
                                 No. 08-10383
                               Summary Calendar                Charles R. Fulbruge III
                                                                       Clerk

MERCY A. JUSUF

                                             Plaintiff-Appellant

v.

SOUTHWEST AIRLINES CO.

                                             Defendant-Appellee


                 Appeal from the United States District Court
                      for the Northern District of Texas
                            USDC No. 3:06-cv-1958


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Plaintiff-Appellant Mercy A. Jusuf (“Jusuf”), an American citizen
originally from Indonesia, filed suit against Southwest Airlines Company
(“Southwest”) alleging employment discrimination based on national origin and
retaliation in violation of Title VII, 42 U.S.C. § 2000e. The district court granted
Southwest’s motion for summary judgment, and Jusuf filed this appeal. 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should not be published and is not precedent except under the limited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.
                                   No. 08-10383

            I. FACTUAL AND PROCEDURAL BACKGROUND
      On August 14, 1997, Southwest hired Jusuf as a customer service agent at
Love Field Airport in Dallas, Texas. Upon hire, Jusuf signed a document
acknowledging the duties and responsibility of Southwest personnel.             The
document included a responsibility to support Southwest and its policies to
Southwest’s customers. One of Southwest’s policies is to require customers who
wish to travel stand-by on restricted fare tickets to pay an upgrade fee. Jusuf
also signed, on at least eight occasions, Southwest’s Basic Rules of Conduct.
Southwest’s Basic Rules of Conduct include a prohibition against accepting
gratuities, specifically stating that “it is improper for any employee to ask for or
accept money, or any other gratuity from any person or Customer for services
rendered. . . . Violation of this rule will subject an employee to discipline, up to
and including dismissal.” At a deposition, Jusuf admitted to knowing that it was
against Southwest’s policy to accept gratuities from customers and to waive an
upgrade fee.
      During Jusuf’s tenure at Southwest, she progressed through the ranks
until she was promoted to the position of Customer Service Supervisor. In
November 2004, another Southwest Customer Service Supervisor, Amanda
Pfeifer, approached a Dallas Customer Service Manager, Lulu Pena-Martinez,
and reported that (1) Dr. Robert Andrews, a frequent Southwest customer,
requested a free upgrade and became upset when Pfeifer would not waive the
upgrade fee, (2) Dr. Andrews requested to speak with Jusuf when Pfeifer
refused to waive the fee, and (3) Jusuf accepted a Christmas card that contained
$100 from Dr. Andrews.
      Pena-Martinez researched Dr. Andrews flight history on Southwest’s
internal computer information system. Pena-Martinez determined that on at
least twelve occasions, Dr. Andrews booked a ticket on the latest, cheapest flight
from Dallas to Houston and was given a free upgrade to an earlier, more
expensive flight by Jusuf. After checking the flight history for the suspect flights,

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Pena-Martinez reported Jusuf’s apparent preferential treatment of Dr. Andrews
to Bruce Ryan, the Station Manager, and Gwen Thalley, a fellow Customer
Service Manager.    The upgrades cost Southwest revenue of approximately
$645.00.
      On January 26, 2005, Pena-Martinez and Thalley met with Jusuf and
questioned her about accepting gratuities and informed her that they had
discovered twelve improper upgrades. In March 2005, Jusuf met with Ryan to
discuss these issues. In April 2005, Jusuf met with Ryan and a member of
Southwest’s Corporate Security Department, Frank Garcia. On April 26, 2005,
Jusuf handwrote a letter accepting responsibility for her actions and asserting
that her intention was not to steal from the company.
      Art Allison, the Regional Director of Ground Operations in Dallas, then
independently reviewed the computer research compiled by Pena-Martinez and
determined that Jusuf waived the upgrade fees without good reason. Allison was
also informed that Jusuf admitted, verbally and in writing, to waiving upgrade
fees improperly and accepting gratuities. Allison suspended Jusuf without pay.
      Allison directed Pena-Martinez to conduct an investigation into the conduct
of all Dallas-Love Field supervisors using the same research system that
confirmed the improper upgrades by Jusuf. Pena-Martinez determined that
another supervisor, Chris Kuntz (a white, American male), also waived upgrade
fees for Dr. Andrews without justification. The research did not reveal any other
Dallas supervisors who had waived upgrade fees without justification.
      On May 20, 2005, Southwest, acting on a final decision made by Allison,
terminated Jusuf and Kuntz for (1) waiving upgrade fees and (2) accepting
gratuities in violation of Southwest’s Basic Rules of Conduct and company
policies.
      On June 13, 2005, Jusuf attended an exit interview with Willie Edwards
and Greg Wells, then Senior Director and Vice President, respectively, of the
Ground Operations Department at Southwest. During the exit interview, Jusuf

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told Edwards and Wells that she felt as if she was discriminated against because
she was a woman, although Jusuf does not remember if she also told them she
felt discriminated against because of her national origin. After the meeting,
Edwards and Wells conducted a review of Jusuf’s situation. Southwest confirmed
its determination that Jusuf violated policies and upheld the termination.
      Jusuf filed a charge of employment discrimination against Southwest with
the Equal Employment Opportunity Commission. On July 25, 2006, Jusuf
received a “Notice of Right to Sue” letter, entitling her to institute a civil action
within ninety days of the date of the receipt of the notice. On October 23, 2006,
Jusuf filed the instant case in the Northern District of Texas alleging national
origin discrimination and retaliation in violation of Title VII. On December 11,
2007, Southwest filed a motion for summary judgment. On March 26, 2008, the
district court granted summary judgment in favor of Southwest on all of Jusuf’s
claims. Jusuf appealed.
                                  II. ANALYSIS
A. Standard of Review
      This Court reviews the district court’s grant of summary judgment de novo,
applying the same legal standard as the district court in the first instance.
Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (citation
omitted). Summary judgment is proper when “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(c). In making a determination as to whether
there is a genuine issue of material fact, this Court considers all of the evidence
in the record but refrains from making credibility determinations or weighing the
evidence. Turner, 476 F.3d at 343 (citation omitted). We draw all reasonable
inferences in favor of the nonmoving party, but “a party cannot defeat summary
judgment with conclusory allegations, unsubstantiated assertions, or ‘only a
scintilla of evidence.’” Id. (citations omitted). “Summary judgment is appropriate

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if a reasonable jury could not return a verdict for the nonmoving party.” Id.
(citation omitted).
B. Jusuf’s National Origin Discrimination Claim
      Under Title VII it is “an unlawful employment practice for an employer .
. . to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1). Jusuf has not provided direct evidence of
discrimination, therefore, her Title VII claim based on circumstantial evidence
is analyzed under the burden-shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See Turner, 476 F.3d at 345.
      Jusuf must first establish a prima facie case of discrimination by
establishing that she (1) is a member of a protected class, (2) was subjected to an
adverse employment action, (3) was qualified for her position, and (4) that others
similarly situated were treated more favorably.        See Septimus v. Univ. of
Houston, 399 F.3d 601, 609 (5th Cir. 2005).
      Jusuf fails to establish a prima facie case of discrimination. Jusuf is a
member of a protected class–she is Asian-American and originally from
Indonesia. Jusuf was subjected to an adverse employment action–she was
terminated. The parties do not dispute whether Jusuf was qualified for her
position. Jusuf, however, fails to demonstrate that others similarly situated were
treated more favorably.
      Jusuf alleges that she was terminated while other white employees were
treated more favorably. To prove her prima facie case, Jusuf must demonstrate
that Southwest gave preferential treatment to a white employee under “‘nearly
identical circumstances’; [sic] that is, ‘that the misconduct for which [Jusuf] was
discharged was nearly identical to that engaged in by . . . [other white]
employees.’” Okoye v. Univ. of Tex. Houston Health Science Ctr., 245 F.3d 507,
514 (5th Cir. 2001). For conduct to be nearly identical, the individual given

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preferential treatment needs to have engaged in similar conduct to Jusuf (i.e.,
accepted gratuities and improperly waived upgrade fees), and must have the
same supervisors as Jusuf. See Wyvill v. United Cos. Life Ins. Co., 212 F.3d 296,
305 (5th Cir. 2000). Southwest must also be aware of the alleged misconduct of
the other employee. See Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 221 (5th
Cir. 2001).
      Jusuf alleged that (1) Steve Holland, another Customer Service Supervisor
at the same station, frequently waived upgrade fees for a customer, (2) other
Southwest employees at the Dallas station received gratuities from Dr. Andrews,
(3) a Southwest agent at a different location received passes for a Lou Diamond
Phillips stage performance, (4) Julie Boston, a Houston employee, also accepted
gratuities from and waived upgrade fees for Dr. Andrews, (5) Southwest
employees at a different location received gift baskets from two customers, (6) two
Southwest employees at the Dallas location were involved in an extramarital
affair, and (7) another employee told Jusuf that a Southwest employee, S.B.
Stone, violated Southwest’s sexual harassment policies.
      Claims (2)-(7) of Jusuf’s allegations fail because the individuals are not
similarly situated to Jusuf. The employees in claims (2), (3), (5), (6), and (7) did
not accept gratuities and waive upgrade fees. Claim (4) fails because Boston had
different supervisors than Jusuf. See Wyvill, 212 F.3d at 305.
      Claim (1) alleges that Holland, a white Southwest employee, who reported
to the same supervisors as Jusuf, accepted gratuities from customers and waived
upgrade fees. Specifically, Jusuf alleges that Holland received Nascar tickets as
a gratuity from a customer, and that Holland repeatedly waived upgrade fees for
the customer.    At Jusuf’s deposition, however, she testified that she only
witnessed Holland waive an upgrade fair for the customer on one occasion. In
addition, Jusuf testified that she did not report the infraction to her supervisors
and that she had no reason to believe that Ryan or Allison were aware of
Holland’s actions. Finally, Jusuf fails to provide any evidentiary support for her

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claim that Holland repeatedly waived upgrade fees for a customer whom he
received gratuities from, or that if this did occur, that Southwest was aware of
Holland’s infraction.1 Thus, Holland is not similarly situated.
      Jusuf fails to demonstrate a prima facie case of national original
discrimination, and we AFFIRM the district court’s grant of Southwest’s motion
for summary judgment based on Jusuf’s national origin discrimination claim.
C. Jusuf’s Retaliation Claim
      The McDonnell Douglas burden-shifting framework also applies to Jusuf’s
unlawful retaliation claim. Turner, 476 F.3d at 348 (citation omitted). Jusuf
must demonstrate a prima facie case of retaliation by showing that: “(1) she
engaged in protected activity; (2) an adverse employment action occurred; and (3)
a causal link exists between the protected activity and the adverse employment
action.” Id. (citation omitted). Under Title VII, an employee engages in protected
activity if she opposes “any practice made an unlawful employment practice
under” 42 U.S.C. § 2000e-3(a).
      Jusuf confirmed an alleged affair between a supervisor and subordinate
that violated Southwest policy. Jusuf stated that she and Kuntz were treated
unfairly because of their involvement in reporting the affair.       This Court,
however, has expressly held that discrimination based on an employee’s
knowledge of an affair between two co-workers fails to form the basis of a Title
VII claim. See Ellert v. Univ. of Tex., 52 F.3d 543, 546 (5th Cir. 1995). Jusuf,
therefore, did not engage in protected activity and her retaliation claim fails.
                              IV. CONCLUSION
      For the foregoing reasons, the district court's grant of Southwest's motion
for summary judgment is AFFIRMED.


      1
       Southwest conducted an independent review of Southwest's records and
determined that only one other Customer Service Supervisor, Kuntz,
consistently waived upgrade fees. Kuntz, a white male employee, was
terminated on the same day as Jusuf.

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