FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JANUARY 9, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-12750

Non-Argument Calendar

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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,
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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.