[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-12750 JANUARY 9, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-21094-CV-PCH
ANTONIO M. APODACA,
Plaintiff-Appellant,
versus
SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY,
The Honorable Michael Chertoff,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 9, 2005)
Before DUBINA, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Antonio M. Apodaca, a 63-year old man of Mexican descent,
appeals pro se the grant of summary judgment to his employer, the Department of
Homeland Security (“DHS”), in his employment discrimination, retaliation, and
hostile work environment case, brought pursuant to the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq (“Title VII”). On appeal, Apodaca
argues that the district court erred by concluding that he failed to (1) show that he
suffered an adverse employment action and thus did not establish prima facie cases
of discrimination and retaliation based on race, national origin, and age; and (2)
establish a prima facie case for a hostile work environment. Each issue is
discussed in turn.
Summary Judgment Standard
We review de novo the district court’s grant of a motion for summary
judgment, viewing all evidence and factual inferences in the light most favorable to
the nonmoving party. Turnes v. AmSouth Bank, N.A., 36 F.3d 1057, 1060 (11th
Cir. 1994). Summary judgment is proper if the pleadings, depositions, and
affidavits show that there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.
317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986) (quoting Fed.R.Civ.P.
56(c)). In order to defeat summary judgment, however, the non-moving party
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“must do more than simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Electric Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). The non-moving
party must make a sufficient showing on each essential element of the case for
which he has the burden of proof. Celotex, 477 U.S. at 323, 106 S. Ct. at 2552.
Prima Facie Cases of Discrimination and Retaliation
Apodaca argues, in pertinent part, that he suffered the following adverse
employment actions: (1) an unsatisfactory annual performance evaluation; (2) two
“meets” annual performance evaluations that contained comments that made them
unsatisfactory ratings; (3) direction to maintain two offices eight miles apart;
(4) the hiring and selection process; and (5) his superiors “seeking dirt.” Apodaca
argues that his unsatisfactory performance evaluation stigmatized him, resulted in
his working overtime hours without compensation, and ruined his promotional
opportunities. Apodaca also argues that his supervisor’s, Commander (“CDR”)
Kilmartin’s, statement, asking him if he is “too old to learn anything new,”
constitutes direct evidence of discrimination because it was made in relation to
Kilmartin asking Apodaca about the training course that he had directed Apodaca
to attend due to Apodaca’s unsatisfactory evaluation and performance
improvement plan (“PIP”).
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Section 2000e-16 of Title 42 states that “[a]ll personnel actions affecting
employees . . . in executive agencies as defined in section 105 of Title 5 . . .shall be
made free from any discrimination based on race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-16(a). The ADEA makes it unlawful for an employer
“to fail or refuse to hire or to discharge any individual or otherwise discriminate
against any individual with respect to his compensation, terms, conditions, or
privileges of employment because of such individual’s age.” 29 U.S.C.
§ 623(a)(1). Under both Title VII and the ADEA, a plaintiff may prove a claim of
discrimination through (1) direct evidence, (2) circumstantial evidence, or
(3) statistical proof. See Earley v. Champion Int’l Corp., 907 F.2d 1077, 1081
(11th Cir. 1990); see also Eskra v. Provident Life & Acc. Ins. Co.,125 F.3d 1406,
1411 (11th Cir. 1997) (holding that when proving discriminatory treatment, the
same analysis applies to ADEA cases as to Title VII cases).
We have held that, “direct evidence is ‘evidence, which if believed, proves
[the] existence of [a] fact in issue without inference or presumption.’” Akouri v.
State of Fla. Dep’t of Transp., 408 F.3d 1338, 1347 (11th Cir. 2005) (quoting
Burrell v. Bd. of Trs. of Ga. Military Coll., 125 F.3d 1390, 1393 (11th Cir. 1997)).
“An example of direct evidence would be a management memorandum saying,
Fire [Defendant]--he is too old.” Damon v. Fleming Supermarkets of Fla., Inc.,
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196 F.3d 1354, 1358-59 (11th Cir. 1999) (holding that direct evidence “must
indicate that the complained-of employment decision was motivated by the
decision-maker’s ageism”) (emphasis in original).
When the plaintiff relies upon circumstantial evidence to establish his claim,
the district court examines the claim using the burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817,
36 L. Ed. 2d 668 (1973); see also Kelliher v. Veneman, 313 F.3d 1270, 1275 (11th
Cir. 2002) (deciding case brought under both Title VII and ADEA). Within this
framework, the plaintiff may establish a prima facie case of discrimination based
on disparate treatment under both the ADEA and Title VII by showing that he was
“(1) a member of the protected class; (2) qualified for the position; (3) subjected to
adverse employment action; and (4) replaced by a person outside the protected
class or suffered from disparate treatment because of membership in the protected
class.” Kelliher, 313 F.3d at 1275.
Title VII prohibits retaliation in the employment arena:
It shall be an unlawful employment practice for an employer to
discriminate against any of his employees . . . because he has opposed
any practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing
under this subchapter.
42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation under Title
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VII and the ADEA, a plaintiff must show that “(1) []he engaged in statutorily
protected expression; (2) []he suffered an adverse employment action; and (3) the
adverse action was causally related to the protected expression.” Weeks v. Harden
Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002); see also Gupta v. Florida Bd. of
Regents, 212 F.3d 571, 587 (11th Cir. 2000). “To establish a causal connection, a
plaintiff must show that the decision-makers were aware of the protected conduct
[and] that the protected activity and the adverse employment action were not
wholly unrelated.” Gupta, 212 F.3d at 590 (internal quotations and citation
omitted).
We have held that “not all conduct by an employer negatively affecting an
employee constitutes an adverse employment action.” Davis v. Town of Lake Park,
Fla., 245 F.3d 1232, 1238 (11th Cir. 2001). We held further that:
the employer’s action must impact the ‘terms, conditions, or
privileges’ of the plaintiff’s job in a real and demonstrable way.
Although the statute does not require proof of direct economic
consequences in all cases, the asserted impact cannot be speculative
and must at least have a tangible adverse effect on the plaintiff’s
employment. We therefore hold that, to prove adverse employment
action in a case under Title VII’s anti-discrimination clause, an
employee must show a serious and material change in the terms,
conditions, or privileges of employment. Moreover, the employee’s
subjective view of the significance and adversity of the employer’s
action is not controlling; the employment action must be materially
adverse as viewed by a reasonable person in the circumstances.
Id. at 1239 (emphasis in original). In determining whether an adverse employment
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action occurred, the cumulative effect of several individual actions may be
considered. Bass v. Bd. of County Comm’rs, Orange County, Fla., 256 F.3d 1095,
1118 (11th Cir. 2001). Whether an employee has suffered a materially adverse
employment action depends on the facts of each individual case. Id. “[A]n action
which, it turns out, had no effect on an employee is not an ‘adverse’ action.” See
Stavropoulos v. Firestone, 361 F.3d 610, 617 (11th Cir. 2004), cert. denied, 125 S.
Ct. 1850 (2005) (citations omitted).
After reviewing the record, we conclude that Apodaca fails to show that he
suffered an adverse employment action because the undisputed evidence, including
his testimony, established that none of his allegations materially altered the terms
or conditions of his employment. Apodaca’s direct evidence of discrimination,
Kilmartin’s statement asking him if he was too old to learn anything new, is not
related to any employment decision that affected the conditions of Apodaca’s
employment. Moreover, any circumstantial evidence presented by Apodaca fails
to show that either his performance evaluations, the request to maintain a second
office, or the new hiring policies and decision negatively affected his employment
conditions or privileges in a demonstrable way. Thus, because Apodaca is unable
to show that his employer’s actions impacted the terms, conditions, or privileges of
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his job in a real and demonstrable way, he fails to establish a prima facie case of
discrimination and retaliation under either Title VII or the ADEA.
Prima Facie Case for a Hostile Work Environment
Apodaca argues that when considered “in toto,” his allegations establish that
he was harassed because he was the only Hispanic/Mexican American division
chief over age 60. Apodaca argues that the harassment was severe and pervasive
because he: (1) was treated less favorably than his Caucasian comparators; (2) was
vetoed when he made hiring selections and his authority to make selections was
eliminated; (3) was accused of not serving customers, even though no such
requirement existed; (4) had to contend with Kilmartin “seeking dirt” on his
division; (5) was accused of lying by Kilmartin; (6) was denied a performance
award for one of his employees; (7) was accused of not following the hiring
procedures; (8) received tainted performance evaluations; and (9) was accused of
not being a “team player” and labeled a “disgruntled employee.”
To establish a hostile work environment claim, a plaintiff must show: “(1)
that he belongs to a protected group; (2) that he has been subject to unwelcome
harassment; (3) that the harassment must have been based on a protected
characteristic of the employee, such as national origin; (4) that the harassment was
sufficiently severe or pervasive to alter the terms and conditions of employment
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and create a discriminatorily abusive working environment; and (5) that the
employer is responsible for such environment under either a theory of vicarious or
of direct liability.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th
Cir. 2002). “A hostile work environment claim under Title VII is established upon
proof that the workplace is permeated with discriminatory intimidation, ridicule,
and insult, that is sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment.” Id. (internal
quotations omitted). “In evaluating the objective severity of the harassment, we
consider, among other factors: (1) the frequency of the conduct; (2) the severity of
the conduct; (3) whether the conduct is physically threatening or humiliating, or a
mere offensive utterance; and (4) whether the conduct unreasonably interferes with
the employee’s job performance.” Id. at 1276. Moreover, “simple teasing, offhand
comments, and 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, 788, 118 S. Ct. 2275, 2283, 141 L. Ed. 2d 662
(1998) (citation omitted).
We conclude from the record that Apodaca fails to establish a prima facie
case for a pervasive hostile work environment because he provides no evidence
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that any of his allegations were based on race or national origin. Also, the only
allegations that possibly relate to Apodaca being a member of a protected class or
participating in a protected activity are (1) Kilmartin’s asking Apodaca if Apodaca
was “too old to learn anything new;” and (2) Kilmartin asking Apodaca to stop
lying about him, as such related to Apodaca’s filing of his EEOC complaint, only
occurred once and thus were not severe or pervasive. Moreover, Apodaca’s
supervisors’ other actions arose from policies that applied office-wide and thus did
not create a discriminatorily abusive work environment.
Because there is no genuine issue of material fact as to whether Apodaca
suffered from either discrimination and retaliation based on race, national origin,
and age, or from a hostile work environment, we affirm the district court’s grant of
summary judgment.
AFFIRMED.
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