Comments About Accent Not Enough to Support National Origin Claim

By Christopher P. Hammon and Christopher J. La Piano Dec 15, 2014

A teacher whose annual employment contract was not renewed by the School Board of Palm Beach County (Florida) based on poor performance and poor classroom management failed to establish that these reasons were a pretext for national origin discrimination, the 11th U.S. Circuit Court of Appeals held.

Jianxin Fong was hired on an annual contract basis to teach math at Boynton Beach High School. Her annual contract was renewed at the end of both the 2006-07 and 2007-08 school years. During this time and for several years prior, Boynton Beach High School was a struggling school and had earned only a “D” rating by the state.

For the 2008-09 school year, the school hired a new principal, Keith Oswald. Oswald observed Fong’s teaching throughout the first semester of the school year. During their first meeting in September 2008, Oswald allegedly commented to Fong, who is of Chinese descent, “You have a very strong accent. Your students don’t understand you. I don’t even understand you. You should record your speech and listen to it.”

Additionally, other school administrators had noted classroom management issues and other instructional deficiencies in Fong’s classes. As a result, in April 2009 Oswald sent a letter to Fong informing her that her annual employment contract with the school board would not be renewed for the next school year.

When Fong questioned Oswald as to the reasons behind the decision not to renew her annual contract, he told her that she was “not fit for this school.” During his deposition, Oswald explained that he believed Fong’s teaching style was not well-suited for the types of students at the school, that she was not receptive to feedback and that she had a negative attitude toward at-risk students.

In her lawsuit under Title VII of the Civil Rights Act of 1964, Fong claimed that Oswald’s comments regarding her accent constituted direct evidence of discrimination against her. The court disagreed, stating that the comments about her accent, when viewed in context with the record as a whole, did not qualify as “blatant” remarks with clear discriminatory intent. Considering Oswald’s role at the school, he had a legitimate interest in ensuring that the students could understand the lessons they were being taught in the classroom.

Absent any direct evidence of discrimination, Fong attempted to make a case of discrimination through circumstantial evidence. The court assumed, without deciding, that Fong had alleged sufficient facts to establish a prima-facie case based on circumstantial evidence. To avoid summary judgment, however, Fong had to directly rebut the school board’s articulated reasons for the nonrenewal of her contract and show that they were merely pretextual. In an attempt to rebut Oswald’s stated reasons, Fong asserted that Oswald was not “fair-minded” in his assessment of her, presented an affidavit from another teacher that disagreed with the principal’s assessment and further presented a satisfactory evaluation she received from Oswald in 2009. Contrary to the evidence produced by Fong, the applicable legal standard does not require that employment decisions be made prudently or fairly, so long as they are not motived by discriminatory animus. Further, Fong provided no evidence that would render the school board’s reasons for her nonrenewal unworthy of credence. The pretext standard applied by the court does not concern itself with whether the decision that the school board made as to the employee’s contract was the correct one, only that it was an honest decision and was not rooted in discriminatory intent.

The court concluded that Fong had failed to show that the school board’s proffered reasons for not renewing her teaching contract were merely a pretext for unlawful national origin discrimination. Consequently, the three-judge panel affirmed the district court’s grant of summary judgment in favor of the school board.

Professional Pointer: The employer’s focus should always be on how the employee is performing in his or her job, not on any inherent characteristic of the employee.

Fong v. School Board of Palm Beach County, 11th Cir., No. 13-10393 (Nov. 4, 2014).

Christopher P. Hammon is a shareholder and Christopher J. La Piano is an associate in the Miami office of Ogletree Deakins, a labor and employment law firm representing management.


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