In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-3298

ELLIOT VELEZ and ALFONSO ORTIZ,

Plaintiffs-Appellants,

v.

CITY OF CHICAGO, a municipal corporation,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the North District of Illinois, Eastern Division.

No. 03 C 4437—Charles R. Norgle, Sr., Judge.

____________

ARGUED JANUARY 20, 2006—DECIDED APRIL 4, 2006

____________

Before FLAUM, Chief Judge, and BAUER and RIPPLE,

Circuit Judges.

FLAUM, Chief Judge. Plaintiffs-Appellants Elliot Velez

(“Velez”) and Alfonso Ortiz (“Ortiz”) (collectively, “Plaintiffs”) are both Hispanic Americans of Puerto Rican descent.

Plaintiffs were employees of the Chicago Fire Department

(“CFD”), working in the Community Services Division. Both

held “exempt” positions, serving at the pleasure of the Fire

Commissioner, who at the time was Edward Altman

(“Altman”). At all times relevant to this appeal, Charles

Burns (“Burns”), an African American, was Commander of

the CFD’s Public Education Unit, which included the
2 No. 05-3298

Community Services Division. Plaintiffs maintain that,

beginning in 1997, Burns harassed them because of their

Puerto Rican descent. Plaintiffs were demoted in June

1998. In Plaintiffs’ view, Burns’ discriminatory animus

toward Puerto Ricans precipitated the demotions. Plaintiffs

therefore filed suit against Burns and the City of Chicago

(“City” or “Defendant”), alleging violations of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title

VII”). Burns was subsequently dismissed from the suit. The

City moved for summary judgment, and the district court

granted the motion. Plaintiffs appeal. For the following

reasons, we affirm the district court.

I. Background

Elliot Velez, a Hispanic American of Puerto Rican

descent, was hired by the CFD as a paramedic in 1982. By

1988, Velez held the career service rank of Paramedic Field

Officer. “Career service” rank members of the CFD are

firefighters and paramedics who have completed their

probationary periods; they serve in a chain of command, in

which higher-ranking officers can give orders to lowerranking officers. In 1988, Velez was appointed to serve

as the Coordinator of Community Services, an exempt

position. “Exempt” rank members of the CFD serve at the

pleasure of the Fire Commissioner and may be removed

from exempt rank only by the Fire Commissioner.

Alfonso Ortiz, also a Hispanic American of Puerto Rican

descent, was hired by the CFD as a firefighter in 1977. In

1988, he held the career service rank of firefighter. At

that time, he was appointed to serve as Velez’s assistant in

the exempt position of Assistant Coordinator of Community

Services.

In their exempt positions in the Community Services

Division, Velez and Ortiz’s primary responsibility was to

serve as the CFD’s liaison with the First Aid Care Team
No. 05-3298 3

program (“FACT program”). The FACT program maintains stations at Chicago Housing Authority (“CHA”)

housing developments to provide emergency medical

services for residents and to offer emergency medical

technician training to community members. The Hull House

Association, a community service organization, contracts

with the City to administer the FACT program. The FACT

program has been under the chain of command of Deputy

Fire Commissioner John Ormond (“Ormond”) since 1997.

In December 1996, Charles Burns, an African American,

was assigned to serve as Commander of the CFD’s Public

Education Unit, which includes the Community Services

Division. Burns had some supervisory control over Plaintiffs, although they served at the pleasure of the Fire

Commissioner and Burns was not authorized to remove

them from their positions.

Plaintiffs allege that Burns began harassing them in

1997, by making derogatory comments to them and taking away their job responsibilities and privileges. For

instance, Plaintiffs allege that on one occasion, Burns

denied their request to buy a vehicle for the FACT program

and said that he “didn’t care how heavy your [profanity]

Hispanic clout is, you can’t do a [profanity] thing about it.”

Plaintiffs claim that on at least three other occasions, Burns

stated, “God damn Puerto Ricans, they think they run this

unit.” Plaintiffs also allege that Burns prohibited them from

speaking Spanish in the workplace, although it was necessary for them to interact with the Hispanic community.

Additionally, Velez maintains that, on at least ten occasions, Burns accused him of drinking alcohol on the job.

Velez also states that Burns accused him, in front of Velez’s

wife, of being intoxicated while on the job.

Moreover, Plaintiffs claim that Burns required them to

perform menial tasks at the Public Education Unit, such as

cleaning, grounds maintenance, and running personal

errands. Plaintiffs maintain that Burns took away their
4 No. 05-3298

control over the FACT program. For instance, Plaintiffs

claim they were “demoted” in March 1997, when Burns

allegedly told all personnel in the Public Education Unit

that Velez and Ortiz were no longer in the chain of command and should not be reported to. Ortiz also alleges

that he was moved into a smaller office that did not contain

a phone or other office equipment necessary to perform his

job.

Velez alleges that he first reported Burns’ behavior to the

City in February 1997, by complaining to Chief Charles

Stewart (“Stewart”), the CFD’s Director of Personnel.

According to Velez, Stewart told him to talk to the Fire

Commissioner. Velez does not allege that he talked to

the Fire Commissioner at this time. Velez claims that

he complained about Burns again in May or June 1997, this

time to Assistant Deputy Fire Commissioner Kenneth

Wideman (“Wideman”) and Ormond. Velez maintains

that Wideman and Ormond were already aware of

Burns’ behavior, and that neither took any action in

response to his complaint. Plaintiffs also allege that

Ormond would not allow them to complain about Burns

directly to the Fire Commissioner, but instead required

them to follow department procedure and file a written

complaint pursuant to the CFD’s General Order 93-018.

Plaintiffs did not make a complaint under the General

Order.

Burns and the City maintain that Plaintiffs’ job performance was unsatisfactory during the time period at issue.

In a March 31, 1997, memo addressed to Tanja Ancrum

(“Ancrum”), CFD’s financial director, Burns criticized

Velez’s job performance. Burns noted, for example, that

Velez did not attend FACT program meetings and ignored

his job responsibilities. In February 1998, Ancrum notified

Ormond by memo that Plaintiffs were neglecting their job

responsibilities, for instance failing to complete expense

reimbursement forms, submitting program budgets with
No. 05-3298 5

insufficient justification, and misspending FACT program

funds. Based on Burns’ and Ancrum’s memos, Ormond

drafted a memo to Fire Commissioner Altman, requesting

that Velez be demoted to his career service rank. Soon after,

Ormond requested that Ortiz be demoted as well.

Altman ordered Deputy Commissioner Kathryn Nelson

(“Nelson”) and Chief Philip Stelnicki (“Stelnicki”) to review the allegations contained in Ormond’s memo. Nelson

and Stelnicki completed an investigation and concluded

that Ormond’s recommendations had a well-founded basis.

On June 1, 1998, Altman returned Plaintiffs to their career

service ranks and gave them new assignments. Velez

is currently employed with the CFD as a Paramedic

Field Officer. Ortiz retired from the CFD in 1999.

On June 16, 2003, Plaintiffs brought suit against Burns

and the City, alleging hostile work environment and

national origin discrimination claims under Title VII, 42

U.S.C. § 2000e et seq. On October 3, 2003, Burns was

dismissed as a party defendant. The City moved for summary judgment on all claims. On July 6, 2005, the district

court granted the City’s motion. The district court found

that Plaintiffs’ hostile work environment claim failed

because Plaintiffs did not establish that they were subject

to harassment that a reasonable person would find hostile

or abusive, nor did they establish that the CFD would be

liable for the alleged harassment. As to Plaintiffs’ national

origin discrimination claim, the district court found that

Plaintiffs offered no direct evidence that the City discriminated against Plaintiffs based on their national origin. The

district court also found that Plaintiffs’ claim failed under

the indirect, burden-shifting method, see McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), because

Plaintiffs did not show that they performed their jobs

satisfactorily, that they were treated differently than

similarly situated employees who were not of Puerto Rican
6 No. 05-3298

descent, or that CFD terminated them with no legitimate

justification.

II. Discussion

Plaintiffs maintain that the district court erred by

dismissing their hostile work environment and national

origin discrimination claims at the summary judgment

stage. Our review of the district court’s decision on a motion

for summary judgment is de novo. See, e.g., In re Copper

Antitrust Litigation, 436 F.3d 782, 788 (7th Cir. 2006).

Summary judgment is appropriate when, taking all of the

pleadings and evidence in the light most favorable to the

non-moving party, “there is no genuine issue as to any

material fact and . . . the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

A. Hostile work environment

Under Title VII, an employer may not “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). An employer is prohibited

from requiring employees to work in a discriminatory

hostile or abusive environment. See Harris v. Forklift Systs.,

Inc., 510 U.S. 17, 21 (1993); Shanoff v. Ill. Dept. of Human

Servs., 258 F.3d 696, 701 (7th Cir. 2001). To survive

summary judgment on a hostile work environment claim

based on national origin, a plaintiff must establish that: “(1)

he was subjected to unwelcome harassment, (2) the harassment was based on his [national origin], (3) the harassment

was severe and pervasive enough to alter the conditions of

his environment and create a hostile and abusive working

environment, and (4) there is a basis for employer liability.”
No. 05-3298 7

Beameon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 863

(7th Cir. 2005). We will discuss the fourth element first,

because we find it to be dispositive in this case.

The district court found that Plaintiffs’ hostile work

environment claims failed because Plaintiffs did not

prove any basis for CFD liability. An employer is liable for a

hostile work environment claim if the plaintiff’s supervisor

created the hostile work environment, or if a co-worker

created the hostile work environment and the employer was

“negligent either in discovering or remedying the harassment.” Mason v. S. Ill. Univ., 233 F.3d 1036, 1043 (7th Cir.

2000) (quoting Parkins v. Civil Constructors of Ill., Inc., 163

F.3d 1027, 1032 (7th Cir. 1998)) (internal quotation marks

omitted).

Although Velez and Ortiz alleged that Burns was their

“supervisor,” that term has a specific meaning for purposes

of Title VII. A supervisor is one with “the power to directly

affect the terms and conditions of the plaintiff’s employment,” not simply one with “authority to oversee aspects

of another employee’s job performance.” Rhodes v. Ill.

Dep’t of Transp., 359 F.3d 498, 506 (7th Cir. 2004). The

district court found that Burns “did not have the final

authority to hire, fire, demote, transfer, or discipline”

Plaintiffs and therefore was not their supervisor. Instead,

Altman made the final decision to return Plaintiffs to

their career service ranks.

We agree with the district court that Plaintiffs have not

shown that their “supervisor” created the hostile workplace

environment. “Exempt” employees of the CFD, like Velez

and Ortiz, are appointed by and serve under the

Fire Commissioner. They report to the Fire Commissioner,

rather than following the chain of command used in the

career ranks. Altman was the Fire Commissioner at the

time Plaintiffs were demoted, and he was the only one with

power to demote Plaintiffs. Altman, not Burns, was Plain-
8 No. 05-3298

tiffs’ supervisor at the time of the alleged incidents. Plaintiffs have not offered any evidence that Altman created a

hostile work environment.

Additionally, we agree with the district court that Plaintiffs have not shown that the City was negligent in discovering or remedying Burns’ harassment. Velez alleges that his

first complaint about Burns was made to Stewart in

February 1997. But Velez does not allege that he told

Stewart about any specific harassment based on national

origin. Velez notes that Stewart told him to talk to Altman,

the Fire Commissioner. But he never alleges that he

followed Stewart’s advice and talked to Altman.

Plaintiffs allege to have made a second complaint about

Burns, this time to Wideman and Ormond, in May or June

1997. But Plaintiffs do not assert that they told Wideman

and Ormond about any specific harassment based on

national origin. Instead, they allege to have complained

about being required to perform menial tasks, forbidden

from speaking Spanish, and taken out of the chain of

command. Plaintiffs allege that they told Ormond that they

wanted to take their complaints to Altman, but Ormond

forbid this and ordered Plaintiffs instead to file a complaint

pursuant to the CFD’s General Order 93-018. The General

Order requires that any complaints of discrimination and

harassment be brought to the department’s Assistant

Director of Personnel. Plaintiffs did not make a complaint

pursuant to the General Order, purportedly because Burns

told them not to make any complaints. Burns’ command did

not, however, stop Plaintiffs from complaining to Wideman

and Ormond, who told Plaintiffs to follow the General

Order.

Taking the evidence as whole, we find that there is no

question of material fact as to whether the City should be

held liable for Burns’ actions. There is no evidence that

Plaintiffs ever complained of specific instances of national

origin discrimination or harassment, or that the City
No. 05-3298 9

otherwise had knowledge of Burns’ actions. Plaintiffs have

offered evidence that they complained to supervisors

about Burns harassing them, but a successful hostile

work environment claim requires a plaintiff to demonstrate

that the harassment was based on his or her protected

status and that the employer was negligent in not discovering or remedying it. See Beameon, 411 F.3d at 863; Mason,

411 F.3d at 863.

We need not consider whether Plaintiffs were given

conflicting orders about how to report Burns’ behavior.

There is no evidence that Stewart, Altman, or Ormond was

aware of any harassment based on Plaintiffs’ national

origin, and thus we cannot draw the inference that these

people gave Plaintiffs’ conflicting advice to thwart their

attempts to report Burns national-origin-based harassment.

The district court also found that Plaintiffs had not

established any of the first three elements of the hostile

work environment prima facie case: that they 1) suffered

harassment, 2) based on national origin, 3) that was

severe and pervasive enough to create a hostile and abusive

working environment. See Beameon, 411 F.3d at 863.

Plaintiffs argue that, in reaching this conclusion, the

district court erred by failing to draw all reasonable inferences in their favor and ignoring certain specific allegations

of harassment based on national origin. However, because

our finding that there is no basis for employer liability

disposes with Plaintiffs’ hostile work environment claim, we

choose not to address the remaining elements. See, e.g.,

Platinum Tech. v. Fed. Ins. Co., 282 F.3d 927, 934 (7th Cir.

2002); Prairie Tank Southern, Inc. v. NLRB, 710 F.2d 1262,

1265 (7th Cir. 1983).

B. National origin discrimination

A plaintiff can prove intentional employment discrimination either by offering direct evidence or through the
10 No. 05-3298

indirect, burden-shifting method enunciated in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). Plaintiffs

argue that they can prove discrimination under either

method and that the district court erred in granting

summary judgment for the City on their national origin

discrimination claim. We consider the two methods in turn.

1. Direct method

Direct evidence of employment discrimination is that

which shows an employer’s intent, without relying on

inference or presumption. See Bahl v. Royal Indem. Co., 115

F.3d 1283, 1290 n.6 (7th Cir. 1997) (quoting Plair v. E.J.

Brach & Sons, Inc., 105 F3d 343, 347 (7th Cir. 1997)). The

district court found that there was no direct evidence that

the City discriminated against plaintiffs based on their

national origin. Burns never stated that he took actions

against Plaintiffs based on their national origin; nor did any

other CFD employees with supervisory control over Plaintiffs.

Plaintiffs contend that the following direct evidence

establishes their claim: 1) Burns is an African American

who expressed concerns over two Puerto Ricans running “an

all-black program”; 2) Burns “showed an outrageous animus” towards Plaintiffs’ national origin; and 3) Burns

replaced Plaintiffs with an African American.

The district court did not consider Plaintiffs’ first piece of

evidence, which came from an affidavit submitted by Velez

after being deposed, because both Plaintiffs stated in their

depositions that they had not encountered any other

incidents of discriminatory harassment other than those

recounted on deposition. We agree with the district court’s

decision to exclude this evidence.

[A] party may not attempt to survive a motion for

summary judgment by manufacturing a factual dispute
No. 05-3298 11

through the submission of an affidavit that contradicts

prior deposition testimony. Consequently, “[w]here a

deposition and affidavit are in conflict, the affidavit is

to be disregarded unless it is demonstrable that the

statement in the deposition was mistaken, perhaps

because the question was phrased in a confusing

manner or because a lapse of memory is in the circumstances a plausible explanation for the discrepancy.”

Amadio v. Ford Motor Co., 238 F.3d 919, 926 (7th Cir. 2001)

(quoting Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th

Cir. 1995)) (second alteration in original). In this case, Velez

has not explained the conflict between his deposition

testimony and his later affidavit. The district court therefore properly excluded statements contained in the affidavit.

The other two pieces of direct evidence offered by Plaintiffs fail to show that the City discriminated against them

based on their national origin. There is no evidence that

Burns’ derogatory statements about Plaintiffs’ national

origin motivated Altman to remove Plaintiffs from their

exempt ranks. Additionally, the mere fact that Burns

replaced plaintiffs with an African-American woman does

not demonstrate that Burns or the City had any animus

toward Plaintiffs because of their national origin.

2. Indirect method

Under the indirect, burden-shifting method, Plaintiffs

were required to show that: (1) they were members of a

protected class; (2) they performed their jobs satisfactorily;

(3) they suffered a materially adverse employment action;

and (4) their employer treated similarly situated employees

outside of the protected class more favorably. O’Neal v. City

of Chicago, 392 F.3d 909, 911 (7th Cir. 2004). If Plaintiffs

established these elements, the burden would shift to the

Defendant to “articulate a non-discriminatory justification
12 No. 05-3298

for the action.” Id. In this case, the parties agree that Velez

and Ortiz are members of a protected class and that they

suffered an adverse employment action, but disagree as to

the second and fourth elements of the prima facie case.

Plaintiffs also maintain that the Defendant has failed to

articulate a non-discriminatory reason for their demotion.

The district court found that Plaintiffs were unable

to show that they had performed their jobs satisfactorily. As

evidence, the district court pointed to Ancrum’s memo to

Ormond, which stated that Plaintiffs mishandled and

misappropriated FACT program funds. The district court

also looked to Nelson and Stelnicki’s report, which confirmed that Velez and Ortiz misappropriated Hull House

funds, failed to attend meetings, and did not perform

required job functions.

Plaintiffs do not offer any evidence that their job performance was satisfactory at the time of their demotions.

Instead, Plaintiffs maintain that the memos Altman based

his demotion decision on were skewed by Burns’ complaints

about Plaintiffs—complaints that were motivated by Plaintiffs’ national origin.

We agree with the district court’s conclusion. Plaintiffs

have not countered the reports of Ancrum and Nelson and

Stelnicki, which stated that Plaintiffs were poorly managing

FACT funds and neglecting their job duties. Ancrum’s

report was based on Burn’s complaints about Plaintiffs’ job

performance, so there is a factual question whether Burns’

animus infected Ancrum’s report. However, any taint

was removed when Nelson and Stelnicki, at the request

of Altman, made an independent investigation into Plaintiffs’ job performance and concluded that it was unsatisfactory and warranted demotion. Plaintiffs’ failure to

prove that their job performance was satisfactory dooms

their national origin discrimination claim. Thus, we
No. 05-3298 13

need not address the remaining steps in the McDonnell

Douglas analysis.

III. Conclusion

For the foregoing reasons, we AFFIRM the order of the

district court granting summary judgment for the City.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-4-06