                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS        December 5, 2006

                       FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                 Clerk
                       ---------------------

                           No. 05-51410

                      ----------------------

MARIE PFAU
                     Plaintiff - Appellant

     v.

JAMES GILGER
                     Defendant

TEXAS DEPARTMENT OF ASSISTIVE AND REHABILITATIVE SERVICES

                     Defendant - Appellee

          ---------------------------------------------
           Appeal from the United States District Court
             for the Western District of Texas, Austin
                          No. 1:04-CV-442
           --------------------------------------------

Before KING, GARZA, and OWEN, Circuit Judges.

PER CURIAM:*

     Plaintiff-appellant Marie Pfau appeals the summary judgment

granted by the district court in favor of defendant-appellee

Texas Department of Assistive and Rehabilitative Services

(“DARS”) on Pfau’s retaliation case under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq.   We note as a



     *
        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that this opinion should not be published and is not precedent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.
preliminary matter that Pfau’s response to the portion of DARS’

motion for summary judgment relating to the retaliation claim

fails to discharge her burden of producing evidence of the

existence of a genuine issue for trial.     In showing that there is

such an issue, the nonmovant must “go beyond the pleadings and

designate specific facts.”    Little v. Liquid Air Corp., 37 F.3d

1069, 1075 (5th Cir. 1994) (en banc) (per curiam).     That burden

cannot be met with conclusory statements, speculation, and

unsubstantiated assertions because these do not show a genuine

issue of material fact.    Further, we can look only to the summary

judgment record before the trial court.      Topalian v. Ehrman, 954

F.2d 1125, 1132 n.10 (5th Cir. 1992).     The parties cannot

“advance new theories or raise new issues to secure reversal,”

nor can they “add exhibits, depositions, or affidavits to support

their positions on appeal.”    Id.    While Pfau’s appellate brief

cites to evidence and controlling case law, her response to the

motion for summary judgment, which totaled four pages, is a

different matter.   Only one paragraph was devoted to the

retaliation claim, and it contained mostly speculative,

conclusory statements.    Although she did attach 80 pages of

evidence, Pfau did not designate specific facts or pieces of

evidence showing a genuine issue for trial.

     Pretermitting the problems with Pfau’s response to the

portion of DARS’ motion addressing Pfau’s prima facie case, we

turn to the next step in the McDonnell Douglas analysis.       Once a

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plaintiff establishes a prima facie case there is an inference of

retaliation.   The burden of production then shifts to the

defendant who must articulate a legitimate non-discriminatory

reason for the challenged action.    DARS’ motion for summary

judgment asserts (and, from an evidentiary standpoint,

substantiates) that Arrell had a legitimate, non-discriminatory

reason for firing Pfau - that Pfau was discharged because Arrell

perceived that Pfau was unsuited for her position for the reason

that her failure to revise her project, as ordered, the day

before a board meeting constituted gross insubordination.    Once

DARS produced evidence of a legitimate, non-discriminatory reason

for its decision, “the inference of discrimination introduced by

the plaintiff’s prima facie showing then drops from the case.”

Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001).

Then the court must address the ultimate question, whether the

employer unlawfully retaliated against the employee.    In this

case, the question is whether Pfau has shown that the adverse

employment decision “would not have occurred ‘but for’” her

participation in the allegedly protected activity, here the

investigation of the sexual harassment charge against Gilger.

Pfau cannot necessarily answer this question by merely disputing

DARS’ assessment of her work performance.    The key question is

whether the employer’s perception of Pfau’s work performance,

“‘accurate or not, was the real reason for her termination.’” Id.



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at 355 (quoting Shackelford v. Deloitte & Touche, LLP, 190 F.3d

398, 408-09)(5th Cir. 1999)).

     Pfau’s response to DARS’ motion for summary judgment does

not come close to establishing that retaliation was the ‘but for’

reason for the termination.   The district court properly held

that “Pfau presents no evidence whatsoever that DARS proffered

reason for her termination is pretextual, and that her

involvement in the investigation was a ‘but-for’ cause of her

termination.   Pfau only speculates that ‘it is unbelievable that

[she] would be discharged for a so-called refusal without any

conversation or any prior disciplinary action.’” Thus, the

district court properly granted DARS’ motion for summary

judgment.

     The judgment of the district court is AFFIRMED.




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