                             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, “Plain-
tiffs”) 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 lower-
ranking 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 main-
tains 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 Plain-
tiffs, 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 tak-
ing 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 neces-
sary for them to interact with the Hispanic community.
Additionally, Velez maintains that, on at least ten occa-
sions, 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 com-
mand 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 perfor-
mance 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 re-
view 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 sum-
mary 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 discrimi-
nated 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 harass-
ment 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 harass-
ment.” 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 employ-
ment,” 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. Plain-
tiffs have not offered any evidence that Altman created a
hostile work environment.
   Additionally, we agree with the district court that Plain-
tiffs have not shown that the City was negligent in discover-
ing 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 discover-
ing 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 infer-
ences 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 discrim-
ination 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 Plain-
tiffs.
  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 ani-
mus” 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 circum-
    stances 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 there-
fore properly excluded statements contained in the affida-
vit.
   The other two pieces of direct evidence offered by Plain-
tiffs 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 con-
firmed 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 perfor-
mance 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 Plain-
tiffs’ 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 Plain-
tiffs’ job performance and concluded that it was unsatis-
factory 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
