                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                               JANUARY 4, 2008
                                No. 07-11945                  THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

                     D. C. Docket No. 05-00439-CV-CAR-5

KENNETH SMITHERS,


                                                      Plaintiff-Appellant,

                                      versus

MICHAEL W. WYNNE,
Acting Secretary, Department of the Air Force,

                                                      Defendant-Appellee.


                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Georgia
                        _________________________

                                (January 4, 2008)

Before DUBINA, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

      Appellant Kenneth Smithers appeals from the district court’s grant of
summary judgment in favor of the Air Force in his employment discrimination,

retaliation, and hostile work environment suit under the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. § 633a, and Title VII of the Civil Rights

Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-16. Smithers argues that his claims

for non-promotion due to age and gender discrimination and retaliation were

properly exhausted and eligible for the continuing violation doctrine because each

paycheck he received after not getting promoted was a new violation. Smithers

also argues that when looking at the totality of the circumstances, i.e., all of the

alleged incidents of discrimination, retaliation, and harassment, they constitute

conduct that was severe or pervasive enough to support a hostile work environment

claim or, in the alternative, that hostile work environment claims are improper for

summary judgment.1

                                                I.

       We review a district court’s grant of summary judgment de novo. Weeks v.

Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002). Summary judgment is

appropriate when the evidence, viewed in the light most favorable to the

nonmoving party, presents no genuine issue of fact and compels judgment as a


       1
          Smithers also claimed that the district court erred when it granted summary judgment
without requiring the Air Force to file an answer. Because Smithers did not raise this issue with
the district court, the issue is waived. Access Now, Inc. v. Southwest Airlines Co., 385 F.3d
1324, 1331 (11th Cir. 2004).

                                                2
matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23,

106 S. Ct. 2548, 2552, (1986). There is no genuine issue of material fact when the

nonmoving party “fails to make a showing sufficient to establish the existence of

an element essential to that party’s case, and on which that party will bear the

burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S. Ct. at 2552.

A.     Exhaustion

       Title VII prohibits discrimination in employment based upon race, color,

religion, sex, or national origin. 42 U.S.C. § 2000e-16(a). The ADEA prohibits

discrimination in employment based upon age. 29 U.S.C. § 623(a)(1). Title VII

also makes it illegal 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). The ADEA contains a similar anti-retaliation provision.

29 U.S.C. § 623(d).2

       Nevertheless, under Title VII and the ADEA, federal employees are required

to initiate administrative review of any alleged discriminatory or retaliatory

conduct with the appropriate agency within 45 days of the alleged discriminatory


       2
         We assume without deciding that Smithers, who is a federal employee, was also able to
bring a retaliation claim against the Air Force under the ADEA.

                                               3
act. See 29 U.S.C. § 633a(b); 42 U.S.C. § 2000e-16(b); 29 C.F.R.

§ 1614.105(a)(1). Generally, claims that allege conduct that occurred before the

45-day charging period are time-barred for failure to exhaust administrative

remedies. See Brown v. Snow, 440 F.3d 1259, 1264-65 (11th Cir. 2006).

      “[D]iscrete discriminatory acts are not actionable if time barred, even when

they are related to acts alleged in timely filed charges.” Nat’l R.R. Passenger

Corp. v. Morgan, 536 U.S. 101, 113, 122 S. Ct. 2061, 2072, (2002). Failure to

promote is a discrete act of discrimination. Id. at 114, 122 S. Ct. at 2073.

      The clock for the charging period starts when the discrete unlawful practice

takes place. Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. ___, ___,

127 S. Ct. 2162, 2169 (2007). “A new violation does not occur, and a new

charging period does not commence, upon the occurrence of subsequent

nondiscriminatory acts that entail adverse effects resulting from the past

discrimination.” Id. A new Title VII violation does not occur and a new charging

period is not triggered at the issuance of each pay check when the employer uses a

pay system that is “facially nondiscriminatory and neutrally applied.” Id. at __,

127 S. Ct. at 2174 (internal quote omitted).

      In Ledbetter, the claimant alleged that she did not receive pay raises for

discriminatory reasons. Id. at __, 127 S. Ct. at 2165-66. The decisions not to grant



                                           4
the pay raises occurred more than 180 3 days before she filed with the Equal

Employment Opportunity Commission. Id. The claimant argued that since her

paychecks would have been higher inside the charging period but for her

employer’s discrimination, each paycheck was a new Title VII violation. Id. at __,

127 S. Ct. at 2167. The Supreme Court pointed out that the decision not to grant

the pay raise was a discrete act that triggered a charging period, and that the

claimant did not file her claim inside of that charging period. Id. at __, 127 S. Ct.

at 2169. The Supreme Court held that the paychecks the claimant received in the

period before she filed her claim were not a continuing violation because they were

part of a pay system that was “facially nondiscriminatory and neutrally applied.”

Id. at __, 127 S. Ct. at 2174.

       In this case, we conclude as a matter of law, that Smithers’s claims of being

passed over for promotion are allegations of discrete acts. Morgan, 536 U.S. at

114, 122 S. Ct. at 2073. Because Smithers failed to timely notify the Robins AFB

Equal Employment Office of his claims, in order for the non-promotion claims to

be actionable, Smithers must show a continuing violation. See Morgan, 536 U.S.

at 115, 122 S. Ct. at 2073; 29 C.F.R. § 1614.105(a)(1).

       Smithers’ non-promotion claims are similar to the disparate pay claim made


       3
        The relevant charging period for her claim was 180 days. Ledbetter, 550 U.S. at __,
127 S. Ct. at 2165-66.

                                               5
in Ledbetter, because he asserted that his pay would be higher but for the past

discrete instances of discrimination. Ledbetter, 550 U.S. at ___, 127 S. Ct. at 2167.

Thus, we conclude that Smithers’s paychecks are not continuing violations of the

alleged past acts of discrimination and retaliation. Id. at ___, 127 S. Ct. at 2174.

Accordingly, we affirm the district court’s ruling that the failure to promote were

not properly exhausted and are time-barred.

B.    Hostile Work Environment

      Summary judgment may be appropriate in hostile work environment cases.

See, e.g., Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1232

(11th Cir. 2006).

      Under Title VII, a hostile work environment claim 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.” Miller v. Kenworth of

Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002) (quoting Harris v. Forklift

Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370 (1993)). A plaintiff establishes a

hostile work environment claim by showing that (1) he belongs to a protected

group; (2) he has been subject to unwelcome harassment; (3) the harassment was

based upon on a protected characteristic of the employee; (4) the harassment was



                                            6
sufficiently severe or pervasive to alter the terms and conditions of employment

and create a discriminatorily abusive work environment; and (5) the employer is

responsible for such environment under either a theory of vicarious or direct

liability. Id.

       When evaluating the severity of the harassment, we use both an objective

and a subjective test. Id. at 1276. Thus, “th[e] behavior must result in both an

environment that a reasonable person would find hostile or abusive and an

environment that the victim subjectively perceives to be abusive.” Id. (internal

quote omitted). When evaluating the objective severity of the conduct, we

consider factors such as (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. Conduct is objectively severe when the

workplace is permeated with intimidation, ridicule and insult. Id. at 1276-77.

       Smithers admitted in his deposition that he had no evidence to prove that the

harassment was based upon a protected characteristic or reprisal, or that the

harassment happened for all of his claims, except for his claim that one of his

supervisors was making negative comments about him. Thus, we conclude that the

district court did not err by only considering the negative comments when it



                                          7
evaluated the hostile work environment claim because the evidence did not support

the claims. Celotex, 477 U.S. at 322, 106 S. Ct. at 2532.

      Smithers was unable to state what the exact comments were; he only stated

that he heard that his supervisor was making derogatory comments while not in his

presence. Thus, any hostility would come from Smithers knowing that others were

gossiping about him. The gossip in this case is not like the severe conduct that

occurred in Miller, where the plaintiff was subjected to racial slurs on a consistent

basis and had co-workers yelling at him. Miller, 277 F.3d at 1277. We conclude

that in this case, no reasonable person would find the undescribed office gossip,

made in Smithers’s absence, which he did not know about at the time, to be severe

enough without more to constitute a hostile work environment. Since the

comments were not objectively severe, we conclude that the district court did not

err when it granted summary judgment for the Air Force on the hostile work

environment claim. Accordingly, we affirm the district court’s grant of summary

judgment.

      AFFIRMED.




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