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

                                                                            FILED
                                                                          January 7, 2008

                                     No. 07-10426                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


MARIA ANGIE FUENTES

                                                  Plaintiff - Appellant
v.

POSTMASTER GENERAL OF THE UNITED STATES
POSTAL SERVICE, John Potter

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                    for the Northern District of Texas, Dallas
                             USDC No. 3:04-CV-1859


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Plaintiff-appellant      Maria     Angie     Fuentes      brought     suit    against
defendant-appellee Postmaster General of the United States Postal Service,
John Potter, alleging that she was subjected to racial and national origin
discrimination and retaliation, in violation of Title VII, and age discrimination,
in violation of the Age Discrimination in Employment Act. The district court



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-10426

granted summary judgment to the United States Postal Service, dismissing all
of Fuentes’s claims, and Fuentes appeals the judgment. For the following
reasons, we AFFIRM.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      Plaintiff-appellant Maria Angie Fuentes—a Hispanic female of Mexican
origin over the age of forty—has been employed by defendant-appellee United
States Postal Service (“USPS”) for over thirty years. In September 1993,
Fuentes was appointed manager of the injury compensation unit for the Dallas
District of USPS. Fuentes’s first human resources (“HR”) supervisor was
Theodore Faulkner, and during his tenure, he noted that Fuentes failed to
properly train her employees and worked long hours because she failed to
delegate work. However, Faulker still nominated Fuentes in early 1999 for a
“spot award,” a discretionary merit-based monetary award, which USPS
ultimately did not award to her.
       In February of 1999, Thelma Pamplin, a black female, replaced Faulkner
and became Fuentes’s new HR supervisor. In July of 1999, Pamplin “detailed”
Mary Young, a black female HR specialist from the Los Angeles District, to the
injury compensation department to assist with the limited duty program.
Around the same time, Pamplin ordered a program review of the injury
compensation department (the “audit”) due to reported problems. During the
week of August 16, 1999, the Southwest Injury Compensation Unit conducted
the audit, revealing that the department was appropriately staffed based on its
current caseload but that clerical assistance and new equipment were needed.
The audit also highlighted internal deficiencies caused by a lack of sufficient
training, a low team morale, a backlog of cases, poor workload distribution,
confusing procedures for claims handling, and time delays.       Fuentes was
interviewed as part of the audit.



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                                 No. 07-10426

      After Pamplin received the results of the audit, she sought guidance from
a USPS labor relations specialist, J.D. McAlester, regarding disciplining
Fuentes. McAlester responded that because many of the recommendations in
the audit were not within Fuentes’s immediate control as manager, and she had
no record of prior discipline, he suggested placing her on a Performance
Improvement Plan (“PIP”). However, Pamplin directed McAlester to draft a
notice of proposed reduction in grade, although she never issued the notice to
Fuentes. Instead, she notified Fuentes on November 19, 1999, that she was
being “detailed” to the administrative services department (the “ASD”) in the
Dallas District. Pamplin never placed Fuentes on a PIP or notified her in
writing of the deficiencies in the injury compensation unit. For one year and ten
months Fuentes worked in the ASD detail, did not supervise any employees, and
had no other managerial duties, yet she was technically still the manager of
injury compensation and did not suffer a change in grade or pay.
      While Fuentes continued working in the ASD, numerous employees were
detailed into the injury compensation unit to act as managers. Young served as
the first acting manager, but was replaced by a white woman, Wanda Hull, one
month later. In all, five of the acting managers during this time were not
black—Hull, Twyla Nolan, Sandra Wagner, Sherry Wilson, and Dan Moon, who
was the only male. In January 2000, Denise Cameron, a black female, replaced
Pamplin as the injury compensation HR supervisor.
      On March 21, 2000, Fuentes filed a worker’s compensation claim, based
on a hand injury and employment-related stress and depression. Two days later,
on March 23, 2000, Fuentes sent a letter to the Southwest area HR manager,
Carol Garvey, and the vice president of Southwest area operations, George
Lopez, wherein she provided the reasons for her medical issues, most of which




                                       3
                                       No. 07-10426

stemmed from the audit and her detail into the ASD.1                          Her workers’
compensation paperwork for this claim was not processed for over four months.
       On October 31, 2000, Fuentes filed an Equal Employment Opportunity
(“EEO”) complaint alleging that the Southwest area office of USPS discriminated
against her based on race, gender and national origin, and retaliated against her
by delaying the processing of her workers’ compensation paperwork.
       On September 12, 2001, Cameron notified Fuentes via letter to return to
her position as manager of injury compensation on September 17, 2001.
However, on that date, Fuentes provided Cameron a note, dated September 13,
2001, from a psychologist, Dr. Joyce Sichel, indicating she had been treating
Fuentes for work-related depression and anxiety for two years, and Fuentes was
unable to return to her position as manager of injury compensation because of
the intense anxiety she would likely experience there.2 Fuentes requested to
remain in the ASD until her EEO complaint or injury claims were resolved, but
Cameron denied her request. Four days later, on September 21, 2001, Fuentes’s
workers’ compensation claim for stress was approved by the Office of Workers’
Compensation (the “OWC”), which found her unable to perform as the manager
of injury compensation.3


       1
         Fuentes asked the Washington, D.C. Injury Compensation Unit to process her claim
because, as Fuentes alleged, Arsenia Rhoden, an Injury Compensation Area Analyst in
Fuentes’s District, along with Pamplin, Young, and her second-line supervisor, Carl January,
caused her stress. Specifically, Fuentes alleged that they were responsible for the audit. By
letter dated December 11, 2000, USPS challenged Fuentes’s claim.
       2
         The doctor’s note also clarified that Fuentes was first requested to return to her old
position as manager of injury compensation. This was unclear in Fuentes’s appellate brief and
in her response to USPS’s summary judgment motion at the district court level. The inference
from those filings was that Cameron initially directed Fuentes to return to work in another
position, neither related to injury compensation nor to the ASD. It is apparent from the
doctor’s note, which Fuentes presented herself, that was not initially the case.
       3
         On October 23, 2001, Fuentes filed another workers’ compensation claim, this time
for “neurotic disorders,” based on an injury that allegedly occurred on September 12, 2001, the
date of Cameron’s letter notifying Fuentes to return to her manager position. The OWC

                                              4
                                        No. 07-10426

       In November, 2001, Fuentes filed her second EEO complaint alleging that
USPS had discriminated against her based on race, gender and national origin
and had retaliated against her first on September 12, 2001, when she was
presented with a letter directing her to report to another duty assignment, and
later on November 16, 2001, when USPS posted Fuentes’s manager of injury
compensation position as open for bidding.4
       On December 4, 2001, Fuentes was offered the position of vehicles supplies
supervisor, but declined the offer. On April 24, 2002, the OWC notified Fuentes
that it found the job to be suitable, and she responded by letter on May 15, 2002,
disagreeing with the OWC’s findings. The OWC informed Fuentes on June 27,
2002, that the job was suitable despite her objections. On July 11, 2002, she
again objected and submitted a letter from her doctor releasing her to return to
work as manager of injury compensation with no restrictions. On August 9,
2002, the OWC recommended that a notice of proposal to terminate future
compensation benefits be issued because Fuentes had not returned to work
despite her medical clearance.
       During the months of July through October 2002, Cameron required
Fuentes to undergo several examinations meant to gauge her ability to return
to work, including two fitness-for-duty examinations and neuropsychological
testing. Fuentes filed her third EEO complaint, on October 23, 2002, this time
against Cameron and January, alleging that they had improperly refused to
permit her to return to work.
       In mid-November of 2002, Fuentes returned to work as the manager of
injury compensation. However, she again held the position in title only, as she


initially accepted the claim for medical payments only, later rescinded the claim, and officially
denied the claim on March 10, 2003.
       4
          Beginning on November 14, 2001, Fuentes’s job position was posted on the USPS
internet site as “vacant” and remained there for at least five days, during which time no
eligible employees bid for the job.

                                               5
                                  No. 07-10426
was not assigned to perform her previous managerial duties. Instead, she was
tasked to lead several projects within the unit. During this time, the Manager
of Safety, a black female named Freddy Evans, was also recognized as the acting
manager of injury compensation and occupied the physical office formerly
assigned to Fuentes. During 2004 and 2005, Fuentes reported to and was
evaluated by Evans. On April 1, 2006, Fuentes resumed the duties of managing
the injury compensation unit.
      On June 26, 2004, Fuentes filed suit against USPS, alleging race, national
origin, and age discrimination and retaliation in violation of the Age
Discrimination in Employment Act (the “ADEA”), 29 U.S.C. § 621 et seq., and
Title VII, 42 U.S.C. § 2000(e) et seq. USPS moved for summary judgment on all
claims on February 28, 2006. After full briefing by the parties, the district court
granted the summary judgment motion and entered judgment in favor of USPS
on all claims on February 28, 2007. Fuentes filed a notice of appeal on March
30, 2007.
                                 II. DISCUSSION
      We review a grant of summary judgment de novo. Norman v. Apache
Corp., 19 F.3d 1017, 1021 (5th Cir. 1994). Summary judgment is proper when
the evidence reflects no genuine issues of material fact and the nonmovant is
entitled to judgment as a matter of law. Crawford v. Formosa Plastics Corp.,
234 F.3d 899, 902 (5th Cir. 2000) (citing FED. R. CIV. P. 56(c)). “A genuine issue
of material fact exists ‘if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.’” Id. (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). We view all evidence in the light most favorable to the
party opposing the motion and draw all reasonable inferences in that party’s
favor. Id. (citation omitted).
      Nevertheless, unsubstantiated assertions are not competent summary
judgment evidence. Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). The

                                         6
                                  No. 07-10426
nonmovant is required to identify specific evidence in the record and to
articulate the precise manner in which that evidence supports his or her claim.
Id. The district courts are under no duty “to sift through the record in search of
evidence to support a party’s opposition to summary judgment.” Ragas v. Tenn.
Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (quoting Skotak v. Tenneco
Resins, Inc., 953 F.2d 909, 915–16 & n.7 (5th Cir. 1992)).
      A. Title VII Claim of Race and National Origin Discrimination
      Fuentes argues that USPS, through its employees Pamplin, Cameron, and
January, removed her from her position as manager of injury compensation and
reassigned her to several non-managerial positions in an attempt to hire and
promote black employees.
      Title VII provides that “[i]t shall be 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). A plaintiff can prove Title VII discrimination
through direct or circumstantial evidence. Laxton v. Gap, Inc., 333 F.3d 572, 578
(5th Cir. 2003). Where, as here, there is no evidence of direct discrimination,
Title VII discrimination claims based on circumstantial evidence are analyzed
under the framework established in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802–04 (1973). See Rutherford v. Harris County, 197 F.3d 173, 179–80 (5th
Cir. 1999). Under the McDonnell Douglas burden-shifting framework, a plaintiff
must first present a prima facie case of discrimination. Id. To do that, a
plaintiff must establish that she: (1) is a member of a protected class; (2) was
qualified for the position; (3) was subjected to an adverse employment action;
and (4) was replaced by someone outside her race or national origin. Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 345 (5th Cir. 2007).



                                        7
                                  No. 07-10426
      Assuming the plaintiff establishes her prima facie case, the burden then
shifts to the defendant to produce a legitimate, non-discriminatory reason for the
plaintiff’s rejection. McDonnell Douglas, 411 U.S. at 802. A defendant must
merely set forth, through admissible evidence, “reasons for its actions which, if
believed by the trier of fact, would support a finding that unlawful discrimination
was not the cause of the employment action.” St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502, 507 (1993) (emphasis in original).
      If the employer meets its burden, then it shifts back to the plaintiff to
present substantial evidence that the employer’s reason was a pretext for
discrimination. Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400, 402 (5th
Cir. 2001).   This may be accomplished either directly, by showing that a
discriminatory reason more than likely motivated the employer, or indirectly, by
showing that the asserted reason is unworthy of credence. Texas Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 256 (1981) (citation omitted).
      USPS concedes that Fuentes has produced evidence to satisfy the first two
elements of her prima facie case, as she is a Hispanic female of Mexican origin
who has worked for USPS as manager of injury compensation since 1993.
However, USPS argues that Fuentes has shown neither that she suffered an
adverse employment action, nor that she was replaced by a person outside her
protected class, and thus she fails to establish a prima facie case of race or
national origin discrimination.
      We have narrowly construed the term “adverse employment action” to
include only “ultimate employment decisions such as hiring, granting leave,
discharging, promoting, and compensating.” Pegram v. Honeywell, Inc., 361 F.3d
272, 282 (5th Cir. 2004) (emphasis in original). However, a discriminatory
reassignment may also constitute an adverse employment action when it
involves a “major change in compensation, duties, and responsibilities.” Id. at
282 n.8.

                                        8
                                    No. 07-10426
      Although Fuentes did not allege that USPS failed to promote her, denied
her leave, or discharged her, she claims that in 1999, she was removed from her
managerial position and reassigned to work a series of “details” for the next six
years. While on detail, Fuentes was no longer responsible for supervising or
managing employees, and although her pay grade was unaffected, she became
ineligible for merit-based “spot awards.” The district court assumed, without
deciding, that Fuentes had established an adverse employment action, and that
she was replaced by someone who was not of the same race or national origin.
We make the same assumptions, arguendo.                  Accordingly, Fuentes has
established her prima facie case of employment discrimination.
      We now focus our attention to USPS’s proffered legitimate, non-
discriminatory reasons for removing Fuentes from her position as manager of
injury compensation and reassigning her to various non-managerial positions at
the USPS Dallas facility. USPS asserts that Fuentes was originally detailed out
of the injury compensation unit because she had documented performance
problems in her position as manager, as evidenced by the audit, and became an
impediment to necessary changes that were being made to the unit. USPS also
points out, for at least part of the time that she was not performing her injury
compensation duties—from September 2001 to July 2002—it was solely the
result of her own actions, in particular the presentation of her psychologist’s
letter claiming she could not return to her position as manager of injury
compensation because it would be damaging to her mental health. And, after
Fuentes’s doctor released her as medically ready to return to work, USPS asserts
that it did not immediately reinstate her because fitness-for-duty exams were
required, in accordance with USPS policy.5 Furthermore, due to her nine
months paid sick leave and her prior one year ten months detail in the ASD,


      5
          The audit provided that the injury compensation department should more readily
utilize fitness-for-duty exams to determine an employee’s ability to perform.

                                           9
                                    No. 07-10426
USPS contends that Fuentes needed to be reacquainted with the complexities
of the injury compensation unit before overseeing its day-to-day workings as
acting manager.
      Under the McDonnell Douglas rubric, the burden shifts again to Fuentes,
who tries to rebut as pretextual USPS’s proffered “performance problems” by
arguing that the injury compensation unit’s deficiencies were not of her making
or in her control to remedy.6        Specifically, Fuentes points to McAlester’s
conversation with, and letter to, Pamplin advising that Fuentes be put on a PIP
as evidence that she should not have shouldered the blame for the problems in
the injury compensation unit. Fuentes also contends that her performance was
hampered by January and Pamplin because they failed to provide her with
proper clerical staff and equipment. Finally, she charges that the reassignment
came soon after she had been recognized nationally for her job performance as
the manager of injury compensation, implying that her detail to the ASD was
unrelated to her ability to manage.
      The district court concluded, and we agree, that Fuentes’s summary
judgment evidence falls short of proving the pretextual nature of USPS’s
proffered legitimate non-discriminatory purpose. Fuentes relies on McAlester’s
letter stating that “many of the recommendations [from the audit were] not
within [Fuentes’s] immediate control” as the basis for her contention that she
was not responsible for the deficiencies highlighted in her unit, and thus should
not have been removed. However, McAlester only pointed out to Pamplin that
many (not all) of the recommendations (not the deficiencies) were not in
Fuentes’s immediate control. McAlester did not address, nor does Fuentes on
appeal, any of the audit’s findings that were directly related to Fuentes’s



      6
        We note that Fuentes did not provide summary judgment evidence rebutting USPS’s
proffered justifications for the reassignments that Cameron, Pamplin’s replacement, gave
Fuentes after her return from paid sick leave.

                                          10
                                        No. 07-10426
competence as manager and not the result of poor staffing and equipment.7
Consequently, we have no reason to conclude that Pamplin did not reasonably
rely on those findings as justification for her reassignment of Fuentes.
       Moreover, “[w]e do not try in court the validity of good faith beliefs as to
an employee’s competence. Motive is the issue.” Little v. Republic Ref. Co., 924
F.2d 93, 97 (5th Cir. 1991). Even if Fuentes is factually correct that she
performed her position well and was nationally recognized for it,8 the fact that
McAlester (whom Fuentes points to) believed in and relied on the veracity of the
audit findings to support his recommendation for a PIP is strong evidence that
Pamplin also believed the findings and was motivated by them in reassigning
Fuentes. In addition, Pamplin’s decision to “detail” Fuentes into the ASD, rather
than comply with McAlester’s recommendation to implement a PIP,9 permits at
most a “tenuous inference of pretext,” and therefore, no genuine issue of material
fact remains. See Crawford, 234 F.3d at 903 (“It is[ ] possible for a plaintiff’s
evidence to permit a tenuous inference of pretext and yet be insufficient to
support a reasonable inference of discrimination”); see also Walton v. Bisco


       7
         These findings include that: (1) the junior HR specialists had inadequate knowledge
of the claims management process, yet Fuentes turned down hands-on training by the Area
Analyst, stating her staff was fully trained; (2) Fuentes’s decision to not redistribute the
workload after a position was vacated resulted in confusion and unnecessary work; (3)
Fuentes’s failure to require each HR specialist to timely report claim status changes to Safety
created a false picture of the district’s standing; (4) numerous discrepancies in the continuation
of pay files were caused by the lack of uniform tracking by Fuentes and her staff; (5) claims
management was too sporadic and reactive, resulting in incomplete follow-up actions taken
with cases; (6) Fuentes did not make HR specialists aware of a diskette of letters that would
help them to properly correspond with physicians; and (7) Fuentes’s routine of providing
notations and instructions, such as “see me,” on the letters from the OWC before forwarding
them to the HR specialists created unnecessary delay and confusion.
       8
        Fuentes’s averment that she “met her numbers” is belied both by the audit and by the
numbers contained in the proposed grade reduction McAlester prepared, which Fuentes
provided as part of her summary judgment evidence.
       9
         On the other hand, Pamplin partially accepted McAlester’s recommendation with her
decision to not issue the proposed grade reduction to Fuentes.

                                               11
                                  No. 07-10426
Indus., Inc., 119 F.3d 368, 372 (5th Cir. 1997) (“[I]f the evidence put forth by the
plaintiff to establish the prima facie case and to rebut the employer’s reasons is
not substantial, a jury cannot reasonably infer discriminatory intent.”).
      As Fuentes neither provides direct evidence of discrimination, nor
sufficient evidence of pretext, we uphold the dismissal of this claim.
      B. Title VII Claim of Retaliation
      Fuentes also asserts that USPS retaliated against her for engaging in
protected activity. On appeal, Fuentes pinpoints two allegedly retaliatory
actions. First, Fuentes claims that USPS removed her from her detail in the
ASD and directed her to another duty assignment just two days before an EEO
mediation session. Second, Fuentes alleges that USPS did not immediately
permit her to return to work after she was medically cleared by her doctor.
      To establish a prima facie case of Title VII retaliation, a plaintiff must
show that: (1) she engaged in a protected activity; (2) she suffered an adverse
employment action; and (3) a causal link existed between the protected activity
and the adverse action. Turner, 476 F.3d at 348. We have defined “protected
activity” as “opposition to any practice rendered unlawful by Title VII, including
making a charge, testifying, assisting, or participating in any investigation,
proceeding, or hearing under Title VII.” Ackel v. Nat’l Commc’ns, Inc., 339 F.3d
376, 385 (5th Cir. 2003) (citation omitted). The Supreme Court recently clarified
that an “action” may be deemed “adverse” where “a reasonable employee would
have found the challenged action materially adverse, which . . . means it well
might have dissuaded a reasonable worker from making or supporting a charge
of discrimination.” Burlington N. & Sante Fe Ry. Co. v. White, 126 S. Ct. 2405,
2415 (2006) (internal quotations and citations omitted).
      Once the prima facie case is established, the burden of producing some
nondiscriminatory reason falls upon the defendant. See EEOC v. J.M. Huber
Corp., 927 F.2d 1322, 1326 (5th Cir. 1991) (citation omitted). The employee then

                                        12
                                       No. 07-10426
assumes the burden of showing that the reasons given were a pretext for
retaliation. Id.
       Here, Fuentes has met the first prong of her prima facie case, namely, the
evidence of the EEO charges she filed—a protected activity. Further, her
assertion that she was not permitted to return to her job as manager of injury
compensation after medical clearance constitutes a materially adverse
employment action.10 Thus, the final issue is whether Fuentes has established
a causal link. We need not answer this question, however, because even if
Fuentes could make the necessary prima facie case, she cannot prove that
USPS’s proffered legitimate, non-retaliatory reasons are pretextual.
       USPS explains that Fuentes remained off work for several months after
having been fully cleared to return because, pursuant to company regulations,
Fuentes was required to undergo fitness-for-duty exams. These exams would
determine whether Fuentes was mentally healthy to return to her position as
manager after being away nine months due to work-related stress and anxiety.
USPS additionally offers that Fuentes had to be reacquainted with the
complexities of the injury compensation unit because of her extended leave—her
detail into the ASD coupled with her paid sick leave for stress. Since Fuentes
fails to point to any evidence to prove that USPS’s justifications are merely
pretexts for retaliation, we conclude that the district court’s grant of summary
judgment in favor of USPS was appropriate.
       C. ADEA claim of Age Discrimination


       10
          However, we do not find an adverse employment action in Fuentes’s first claim
contending that because Cameron directed her on September 12, 2001, to return to the position
of manager of injury compensation, effective September 17, 2001, she suffered retaliation.
This is nonsensical; there is no adverse action in requesting her to return to the job that she
was being paid to do, especially when her initial removal from that very job is the basis of her
complaint of discrimination. A reasonable employee would not have found this action
materially adverse. Similarly, after Fuentes provided the doctor’s note indicating that she
could not return as manager of injury compensation, Cameron’s responding offer of a different
position to Fuentes fails to be adverse.

                                              13
                                 No. 07-10426
      Finally, Fuentes alleges that USPS discriminated against her based on her
age. Fuentes relies on the same employment actions that she asserted in her
claim of race and national origin discrimination under Title VII, namely, the
reassignments by HR supervisors into non-managerial positions.              The
McDonnell Douglas framework also applies to an age discrimination claim. See
Baker v. Am. Airlines, Inc., 430 F.3d 750, 753 (5th Cir. 2005). Therefore, even
if we were to find that Fuentes presented a prima facie case of age
discrimination, her claim would fail, because, as we previously held, she failed
to provide substantial evidence of pretext in response to USPS’s proffered
legitimate, non-discriminatory reasons for her reassignments.
                             III. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s judgment.




                                      14
