               Not For Publication in West's Federal Reporter
              Citation Limited Pursuant to 1st Cir. Loc. R. 32.3


        United States Court of Appeals
                       For the First Circuit

No. 06-1046

                          AMELIA DE JESÚS,
                       Plaintiff, Appellant,

                                     v.

              JOHN E. POTTER, POSTMASTER GENERAL,
                 UNITED STATES POSTAL SERVICE,
                      Defendant, Appellee.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF PUERTO RICO
       [Hon. José Antonio Fusté, U.S. District Judge]


                                  Before

                    Torruella, Circuit Judge,
                 Baldock * , Senior Circuit Judge,
                   and Howard, Circuit Judge.


     Nora Vargas-Acosta, with whom Adalina De Jesús-Morales
and De Jesús, Hey & Vargas was on brief, for appellant.
     David G. Karro, Attorney, United States Postal Service,
with whom Isabel Muñoz-Acosta, Assistant United States
Attorney,   Rosa  Emilia   Rodríguez-Vélez,   United  States
Attorney, and Miguel A. Fernández, Assistant United States
Attorney, Chief, Civil Division, was on brief, for appellee.



                          December 27, 2006




*
    Of the Tenth Circuit, sitting by designation.
              Baldock, Senior Circuit Judge.            Plaintiff Amelia de

Jesús sued her employer Defendant John E. Potter, in his

official capacity as Postmaster General of the United States

of America, for discrimination and retaliation under Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et

seq.     The district court granted summary judgment in favor

of Defendant and Plaintiff appealed.                   We have jurisdiction

pursuant to 28 U.S.C. § 1291.               For the reasons that follow

we affirm in part, vacate in part, and remand for further

consideration.

                                      I.

              On an appeal from the grant of summary judgment, we

view the facts in the light most favorable to the nonmoving

party.     See Feeney v. Correctional Medical Services, Inc.,

464 F.3d 158, 161 (1st Cir. 2006).                   We recite the facts as

found    by   the   district      court   and   supported      by     the   record

adding a few undisputed details gleaned from the record.

              Plaintiff is a Hispanic woman, born in New York to

Puerto Rican parents.             Plaintiff has been a United States

Postal Service employee from May 1981 through the present

date.     During     the   time    relevant     to    this    case,    Plaintiff

worked at the Postal Service Air Mail Facility in Carolina,

Puerto    Rico      (the   Caribbean        Branch),     as    Transportation

Contracts Manager of the Caribbean district.                        Since 2000,


                                      -2-
Plaintiff’s position has been classified as EAS Level 25. 1

The Caribbean Branch office is part of the New York Metro

Area    Distribution          Networks     Office   (“NY    Metro      DNO”).      NY

Metro DNO is divided into two sectors: Networks functions

and Transportation Contracts functions.                     Plaintiff reports

to Postal Service Headquarters in Washington D.C. and also

to her supervisor, Stuart Gossoff, at the NY Metro DNO, who

among    other       things,      is    responsible       for    overseeing       the

Networks and Transportation Contracts functions of the                             NY

Metro DNO.          Plaintiff is the only female manager out of

twelve       DNO   managers       nationwide.        She    is    one    of     three

managers in the NY Metro DNO.

              In her capacity as Transportation Contracts Manager

of     the     Caribbean        district,        Plaintiff       is     officially

responsible for Transportation Contracts functions work.                           In

addition, because she is physically present in the Caribbean

Branch       office,      she   has     been    responsible      for    day-to-day

management         of   the     Networks       function    for   the     Caribbean

district.          She has two counterparts in the NY Metro DNO:

Mark    Stein,      who   works    on    Networks    and   is    officially       the

Networks supervisor for the Caribbean district, and Héctor

Martínez, who works on Transportation Contracts.


1
   EAS refers to the Executive and Administrative System of
pay and grade. The higher the EAS level, the higher the pay
range and grade.

                                          -3-
            In    April   2003,    the   Postal   Service    instituted    a

nationwide       Area   Office     Distribution   Networks     Realignment

Program.         The    realignment      only   affected     the    Networks

functions of the DNOs. 2            The realignment created four new

positions of Senior Networks Operations Analyst EAS Level

23,   and   fourteen      Senior    Networks    Operations    Analyst    EAS

Level 21 to be allocated to the NY Metro DNO.                      Stein was

in charge of selecting employees to fill these positions.

Stein instructed Networks functions employees ranked lower

than EAS 21 to apply for the new positions.                  The Caribbean

Branch office had two such employees: Jorge Antongiorgi and

Felix Torres.

            Plaintiff learned Stein announced at a meeting that

none of the EAS Level 21 or 23 positions would be assigned

to the Caribbean Branch office. 3           Plaintiff contacted Gossoff

to express her discontent.           Plaintiff complained about being

excluded from participating in the decision concerning the

distribution of the newly created positions as well as the

selection of employees to fill those positions.                    Plaintiff


2
   The realignment plan left unaffected staffing conditions
on the Contracts functions.
3
   Antongiorgi applied and was granted an interview for a
EAS 21 position.      During the interview, Stein asked
Antongiorgi whether if selected for the position he would be
willing to relocate to New York.   Antongiorgi expressed an
unwillingness to relocate and, consequently, was not offered
the position.

                                      -4-
also expressed her disagreement with the decision not to

assign    any    of       the   new    positions    to    the    Caribbean     Branch

office.     Plaintiff told Gossoff she believed the actions

were discriminatory.                  Gossoff informed Plaintiff that the

nature of the Caribbean district operations, including the

volume of mail distributed in the                   Caribbean and the type of

Networks Transportation, did not warrant any EAS Level 21 or

23   positions        when      comparing     those   factors      with   New    York

operations.           Contemporaneously,            Plaintiff      complained      to

Gossoff about allegedly derogatory statements he had made

and that other managers had made in his presence concerning

members of the Caribbean Branch office.

            According           to    Plaintiff, prior to         the   April    2003

realignment, Plaintiff supervised three employees: Torres,

an EAS Level 19 Networks Specialist; Antongiorgi, who was

also   an   EAS       Level      19    Networks     Specialist      but   did    some

Contracts work; and Concepción González, an EAS Level 19

Contracts Specialists.                It is undisputed the Senior Networks

Operation Analyst EAS Level 23 positions were created so

that the EAS Level 25 area networks office managers would

not have to directly oversee EAS Level 21 and EAS Level 19

employees       on    a    day-to-day      basis.        After   the    realignment

Torres    and    Antongiorgi           were   assigned     to    report   to    Danny

Farino, an EAS Level 23 Senior Networks Analyst in the New


                                           -5-
York Metro DNO.        Nevertheless, Plaintiff’s day-to-day duties

and responsibilities over these Networks function employees

were    left    unaffected.           Even    though      on    paper    the   two

employees      were    under    Farino’s      supervision,         according    to

Plaintiff,      they    still    reported        to    her.       Following    the

implementations of the realignment, however, Torres retired.

At Plaintiff’s request, Torres’s position was converted into

a Contracts position now occupied by Noemí Carrión.                       Carrión

and González work directly under Plaintiff’s supervision.

            After exhausting all her administrative remedies,

Plaintiff       brought        this      action         claiming        Defendant

discriminated against her on account of her sex and national

origin in violation of Title VII by (1) excluding her from

an important managerial decision, (2) removing members of

her staff from under her supervision, (3) failing to assign

newly created positions to the Caribbean Branch Office, and

(4) making and tolerating derogatory comments alluding to

her    national    origin.           Plaintiff    also        claimed   Defendant

retaliated        against       her      after         she      complained      of

discrimination by ceasing to communicate directly with her.

Following the conclusion of discovery, Defendant moved for

summary    judgment.           The    district        court    granted   summary

judgment to Defendant on all claims concluding Plaintiff did

not suffer an adverse employment action.


                                        -6-
                                        II.

              We review the district court order granting summary

judgment de novo.           See Thore v. Howe, 466 F.3d 173, 178 (1st

Cir. 2006).         The purpose of summary judgment is to pierce

the pleadings and assess the proof to determine if there is

a genuine need for trial.              Thus, summary judgment is proper

“if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as

a    matter    of   law.”      Fed.     R.    Civ.   P.    56(c).      To     overcome

summary       judgment,     the   nonmoving      party         must   rebut    such    a

showing by presenting sufficient evidence from which a jury

could reasonably find in its favor.                   Davric Maine Corp. v.

Rancourt, 216 F.3d 143, 147 (1st Cir. 2000).

                                         A.

              Title VII makes it unlawful for a federal employer

to   discriminate       against    an    employee         on    the   basis    of   the

employee’s “sex, or national origin.”                          42 U.S.C. § 2000e-

16(a).         Absent     direct      evidence       of    discrimination,            an

employee may proceed to prove her case using the McDonnell

Douglas burden-shifting framework.                    See McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973).                      Under this well-known

analytical framework, an employee has the initial burden of


                                        -7-
coming forward with sufficient evidence to establish a prima

facie case of discrimination.                       To do so, an employee must

show, among other things, she suffered an adverse employment

action.         See    Santiago-Ramos           v.    Centennial         P.R.     Wireless

Corp., 217 F.3d 46, 54 (1st Cir. 2000) (sex discrimination);

Feliciano de la Cruz v. El Conquistador Resort and Country

Club,     218    F.3d      1,    5    (1st     Cir.       2000)    (national           origin

discrimination).             Generally, an adverse employment action

involves a discrete change in the terms and conditions of

employment,       such      as   “hiring,       firing,      failing         to    promote,

reassignment with significantly different responsibilities,

or   a   decision       causing         significant         change      in     benefits.”

Burlington       Indus.,         Inc.    v.     Ellerth,         524    U.S.      742,    761

(1998); accord Gu v. Boston Police Dep’t, 312 F.3d 6, 14

(1st Cir. 2002) (“To be adverse, an action must materially

change     the        conditions        of      plaintiffs’            employ.”).           A

materially adverse change in the terms and conditions of

employment        “must          be     more        disruptive          than       a     mere

inconvenience         or    an    alteration         of    job    responsibilities.”

Marrero v. Goya of P.R., 304 F.3d 7, 23 (1st Cir. 2002).

            Plaintiff argues she suffered the following adverse

employment actions: (1) Defendant excluded her from a major

managerial       decision,        (2)    Defendant         removed       two      employees

from     under   her       supervision,        and    (3)    Defendant          failed     to


                                              -8-
assign any EAS Level 21 and 23 positions to the Caribbean

Branch office.          After reviewing the record before us, we

agree Plaintiff did not suffer an adverse employment action.

Plaintiff    presented       no     evidence         the    allegedly       adverse

employment       actions    materially          changed        the     terms       and

conditions of her employment.

            Plaintiff’s exclusion from one managerial decision

is insufficient to constitute a material change in the terms

and conditions of her employment.                    See Gu, 312 F.3d at 14;

see also Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 169

(3d Cir. 2001) (concluding exclusion from committees, hiring

decisions, a single staff meeting, and a single supervisor

seminar     insufficiently         severe       to     alter    conditions          of

employments so as to make employment unbearable).                                As we

noted elsewhere, “if an employee finds herself . . . without

a voice in major decisions, this could constitute an adverse

employment action.”         Gu, 312 F.3d at 14 (emphasis added).

Plaintiff,       however,       presented        no        evidence        she     was

subsequently excluded from other managerial decisions.                            More

importantly, Plaintiff presented no evidence the terms and

conditions of her employment included a right to participate

in the decision.           The record reflects that at all times

relevant    to   this    case     Stein   was    officially          the   Networks

functions supervisor of the Caribbean district and, as such,


                                      -9-
responsible for the Networks employees in the NY Metro DNO.

While Plaintiff’s physical presence in Puerto Rico allowed

her   to   exert    some    supervisory          authority    over    Networks

functions    employees      in    the    Caribbean    Branch       office,   the

realignment of the Networks functions of the NY Metro DNO

(including the Caribbean district) involved matters beyond

day-to-day    management         that    fell    outside     the   purview    of

Plaintiff’s duties and responsibilities.

            Plaintiff also did not suffer an adverse employment

action as a result of Farino’s new supervisory role over

Antongiorgi and Torres.            Plaintiff alleges she lost direct

supervisory authority over these employees as a result of

the realignment, but as explained, Stein, not Plaintiff, was

the official supervisor of the Networks employees in the

Caribbean Branch.        It is undisputed that while Farino became

Antongiorgi       and   Torres’s        official    supervisor,      Plaintiff

maintained    her       day-to-day       supervisory       role    over   these

employees after the realignment took effect.                  Therefore, the

status quo remained unaffected.                 See id. (noting that only

a dramatic decrease in supervisory authority may constitute

an adverse employment action).                 Moreover, shortly after the

realignment, Torres retired and at Plaintiff’s request his

position    was    converted      into    a    Contracts     position,    which

Carrión currently occupies.              Thus, as things currently stand


                                        -10-
Plaintiff officially supervises two Contracts employees, one

more employee under her official supervision than she did

prior to the realignment.

            Plaintiff        also      argued          she    suffered          an     adverse

employment      action       as   a   result        of      Defendant’s         failure        to

assign the higher level position to the Caribbean Branch

office    because       according           to     Plaintiff,         “the       number        of

employees assigned to supervise are criteria considered in

qualifying       candidates           for    promotions[.]”                     Title        VII,

however, does not guarantee a promotion.                             “Congress did not

intend    by    Title    VII,     however,          to      guarantee       a    job    [or     a

promotion] to every person regardless of qualifications.                                       In

short, the Act does not command that any person be hired [or

promoted]      simply    because        he       was     formerly     the       subject        of

discrimination,         or   because        he     is    a   member     of      a    minority

group.”        McDonnell-Douglas                 Corp.,      411     U.S.       at     800-01.

Moreover,       Plaintiff         presented            no    evidence           Defendant’s

failure    to    assign       the      newly       created         positions           to     the

Caribbean       Branch       office     diminished             her    chances           to     be

promoted.       See Serna v. City of San Antonio, 244 F.3d 479,

(5th Cir. 2001) (finding no adverse employment action where

the plaintiff presented no objective evidence his chances

for promotion were reduced by employer’s act).                                   To prevail

on summary judgment the nonmoving party must do more than


                                            -11-
rest    upon    merely      “conclusory        allegations,     improbable

inferences,    and    unsupported      speculations.”         Quiñones     v.

Buick, 436 F.3d 284, 289 (1st Cir. 2006).

           After the realignment was implemented, Plaintiff

was still employed as Transportation Contracts Manager of

the    Caribbean     district,   her     EAS    ranking   and      pay   were

unaffected,    and    her   supervisory    authority      and   day-to-day

managerial duties and responsibilities remained the same.

Therefore,     the   district    court    did     not   err   in   granting

summary judgment to Defendant on Plaintiff’s Title VII claim

of discrimination. 4


4
   In addition to Plaintiff’s disparate treatment claim,
Plaintiff also brought a disparate impact claim alleging
Defendant’s practice as it relates to excluding the
Caribbean Branch from being assigned EAS Level 21 and 23
positions   constitutes   national   origin  discrimination.
According to Plaintiff, Stein’s decision to exclude “Puerto
Rico from higher grade levels, has an adverse impact on all
the employees of the Caribbean Branch . . . in terms of
their professional advancements and development[,]” and on
Plaintiff in terms of “her career development[.]”
     Plaintiff’s disparate impact claim fails for two
reasons. As discussed, Plaintiff presented no evidence she
was not promoted as a result of Defendant’s decision not to
assign the newly created positions to the Caribbean Branch.
Plaintiff’s claim also fails insofar as she attempts to step
into the shoes of the Caribbean employees who were allegedly
discriminated against as a result of Defendant’s act.
Plaintiff lacks standing to bring a claim on behalf of the
Caribbean employees allegedly affected by Defendant’s act.
To have standing, a plaintiff must allege some personal
injury   fairly  traceable   to  the  defendant’s  allegedly
unlawful conduct, which she has not done here. See Baena v.
KPMG LLP, 453 F.3d 1, 4 (1st Cir. 2006) (citing Valley Forge
Christian Coll. v. Americans United for Separation of Church
                                              (continued...)

                                  -12-
                                          B.

             As part of her claim of discrimination, Plaintiff

also alleged she suffered an adverse employment action when

Gossoff      made    derogatory          comments       and    tolerated       other

employees      who        made    derogatory        comments        alluding      to

Plaintiff’s national origin. The district court correctly

recognized     that       traditionally         these     allegations     are    put

forward as a hostile work environment claim.                      Discrimination

based on sex or national origin that creates a hostile work

environment     violates         Title    VII.      See    Harris    v.   Forklift

Sys., Inc., 510 U.S. 17, 21 (1993).                       Plaintiff makes the

following allegations of derogatory language: (1) Gossoff

once   referred      to    the    Caribbean      Branch       employees   as    “you

people,” (2) Stein once stated in reference to mail coming

from Puerto Rico as mail “coming off of the banana boat,”

and (3) a NY Metro employee once stated the employees in

Puerto Rico were like blind musicians Ray Charles and José

Feliciano.

             Assuming discriminatory animus toward Puerto Ricans

was    the     motivation          for     these        comments,     they       are

insufficient, as a matter of law, to create a hostile work

environment.          “[S]imple      teasing,       offhand       comments,      and


4
   (...continued)
and State, Inc., 454 U.S. 464, 472 (1982)).      Therefore,
Plaintiff cannot prevail on her disparate impact claim.

                                         -13-
isolated       incidents      (unless       extremely      serious)      will      not

amount to discriminatory changes in the terms and conditions

of employment.” Faragher v. City of Boca Raton, 524 U.S.

775,     787-88      (1998).          A    working      environment        must     be

“permeated with discriminatory intimidation, ridicule, and

insult that is sufficiently severe or pervasive to alter the

terms     and     conditions      of        victim’s      employment”       to      be

actionable under Title VII.                  Id.       at 21.     Therefore, the

district court did not err in finding the alleged derogatory

remarks could not establish a hostile work environment.

                                           C.

            Plaintiff also brought a claim under Title VII for

retaliation alleging that after she complained to Gossoff,

he stopped communicating directly with her.                         According to

Plaintiff,        Gossoff      began       communicating         with    Plaintiff

through employees ranked lower than her.                       The district court

found Plaintiff’s alleged retaliatory act did not rise to

the    level    of     an   adverse       employment     action.        While     this

appeal    was     pending,     however,          the   Supreme     Court    decided

Burlington N. & Santa Fe Ry. Co. v. White, 548 __ U.S. __,

126 S. Ct. 2405 (2006), changing the legal standard to be

applied to claims of retaliation brought under Title VII.

We    express     no    opinion   as       to    how    this    issue   should      be

resolved.       We think it proper to allow the district court to


                                          -14-
first   address     this     issue      in   light    of     Burlington.

Accordingly,   we   remand   to   the    district    court   Plaintiff’s

Title VII retaliation claim. 5

         Affirmed in Part, Vacated in Part, and Remanded in

Part.




5
   Plaintiff also argues the alleged acts of discrimination
discussed above are also acts of retaliation because in 1997
she engaged in protected activity by filing a complaint of
discrimination against the Postal Service.          We find
Plaintiff’s argument unpersuasive. All the alleged acts of
discrimination occurred in 2003.     Plaintiff presented no
evidence of a     casual connection between the adverse
employment actions in 2003 and the protected activity in
1997, nor can we reasonably infer any such evidence.    See,
e.g., Centro Medico del Turabo, Inc. v. Feliciano de
Melecio, 406 F.3d 1, 11 n.5 (1st Cir. 2005) (citing cases
holding too much time between protected activity and
retaliatory act undermines argument of a causal connection).

                                  -15-
