Jianxin Fong v. School Board of Palm Beach County, Florida

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_________________________
No. 13-10393
_________________________
D.C. Docket No. 9:11-cv-80932-KLR
JIANXIN FONG,
Plaintiff-Appellant,
versus
SCHOOL BOARD OF PALM BEACH COUNTY, FLORIDA,
d.b.a SCHOOL DISTRICT OF PALM BEACH COUNTY, FLORIDA,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 4, 2014)
Before TJOFLAT and JULIE CARNES, Circuit Judges, and DuBOSE,* District
Judge.
_____________________
* The Honorable Kristi K. DuBose, United States District Judge for the Southern District of
Alabama, sitting by designation.
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PER CURIAM:
Appellant Jianxin Fong (“Fong”) appeals final judgment in favor of the
Appellee School Board of Palm Beach County, Florida (“the School Board”). On
appeal, she challenges the district court’s grant of summary judgment on her Title
VII claim of disparate treatment on the basis of her national origin. 1 After review
of the record and the parties’ briefs, and with the benefit of oral argument, we
affirm. 2
I. Background and Facts
Prior to August 2006, the School Board hired Fong to teach math at Boynton
Beach High School (“BBHS”). Fong was hired on an annual contract basis. On
the recommendation of her supervising principal, the School Board renewed
Fong’s teaching contract at the end of the 2006-2007 and 2007-2008 school years
BBHS was a struggling school. For the six school years prior to the 2008-
2009 school year, BBHS was rated a “D” school, with a high number of failing
students and students for whom English was not their first language. In 2008-
1
Title VII provides, in relevant part: “It shall be an unlawful employment practice for an
employer…to fail or refuse to hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's…national origin…” 42 U.S.C. § 2000e-2(a)(1).
2
The district court also granted summary judgment in favor of the School Board on Fong’s
claims of discrimination in violation of 42 U.S.C. § 1981. Fong does not challenge the grant of
summary judgment on her §1981 claims. Moreover, Fong expressly disavowed that she was
asserting a hostile work environment claim. Thus, those claims are not at issue in this appeal.
2
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2009, the School Board hired a new principal for BBHS, Keith Oswald (“Principal
Oswald”).
Principal Oswald, as well as two assistant principals, informally observed
Fong’s teaching throughout the first semester of the school year. Principal Oswald
first met Fong on September 25, 2008, after conducting a brief observation of her
class. Fong, who is of Chinese descent, speaks English with an accent. During
their first meeting, Principal Oswald told Fong: “You have a very strong accent.
Your students don’t understand you. I don’t even understand you. You should
record your speech to listen to it.” Later, Oswald also counseled Fong that “she
talked too much, the classroom was too dark and the students weren’t doing
anything.” Fong responded to the later criticism by asking if Oswald could
understand her better now. Oswald did not respond but rather left the room.
During the 2008-2009 school year BBHS administrators expressed concern
to Fong regarding her classroom management abilities. One assistant principal,
who had observed Fong’s performance since 2007, believed that Fong struggled
with management of student conduct. Administrators also observed that Fong’s
students were not consistently engaged in learning; Fong agreed that this was not
unusual. She also admitted a significant time of her classes were spent with the
room darkened while she taught PowerPoint presentations, and that she sometimes
showed math videos with the lights off.
3
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On April 22, 2009, Principal Oswald issued a letter to Fong, and five other
teachers, informing them that their teaching contract would not be renewed.
Fong’s teaching contract expired on June 5, 2009. When Fong later asked
Principal Oswald if her contract was not being renewed because of her
performance, he responded no and told her that she was “not fit for this school.”
Oswald would not elaborate on his comment.3
At deposition, Oswald stated that his reasons for not recommending renewal
of Fong’s contract “were her classroom management issues, her resistance to
feedback and change and not willing to learn,” and that she was “always getting
defensive.” Oswald admitted that Fong was highly qualified for her job.
However, based on his observation of Fong’s classroom and getting feedback from
the two assistant principals he determined that Fong “wasn’t a fit for [BBHS].”
When asked to explain “not a fit,” Oswald testified that Fong’s teaching style was
not suited to the type of students at BBHS and that she was not receptive to
feedback in that regard. He also felt Fong displayed a negative attitude towards
unmotivated and at-risk students.
II. Standard of Review
3 Principal Oswald admitted that he was told by the area superintendent to not get into specifics
about why a teacher was not being renewed and “just to state to the person you are not a fit for
the school.” (Dist. Ct. Doc. 37-3 at 12).
4
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“We review a district court's grant of summary judgment de novo, applying
the same legal standards that controlled the district court's decision.” Levinson v.
Reliance Standard Life Ins. Co., 245 F.3d 1321, 1325 (11th Cir. 2001). A grant of
summary judgment is proper “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “We draw all factual inferences in a light most favorable to
the non-moving party.” Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008)
(per curiam).
III. Discussion
A plaintiff may prove a claim of intentional discrimination under Title VII
through direct evidence or circumstantial evidence. Alvarez v. Royal Atl.
Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010). 4 “Direct evidence of
discrimination is ‘evidence that, if believed, proves the existence of a fact without
inference or presumption.’ Under Eleventh Circuit law, ‘only the most blatant
remarks, whose intent could mean nothing other than to discriminate on the basis
of some impermissible factor constitute direct evidence of discrimination.’ ”
Dixon v. The Hallmark Cos., Inc., 627 F.3d 849, 854 (11th Cir. 2010) (quoting
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004) (citations and
quotation marks omitted)) (internal citation omitted). Fong argues that Principal
4
Statistical proof may also be offered to prove intentional discrimination. Alvarez, 610 F.3d at
1264. However, Fong has presented no such evidence in this case.
5
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Oswald’s statements, that Fong had a very strong accent that neither he nor her
students could understand her and that she should record and listen to her speech,
constitute direct evidence of discrimination based on her Chinese origin.
Discrimination based on an employee’s accent can be national origin
discrimination. See Akouri v. State of Fla. Dep't of Transp., 408 F.3d 1338, 1347
(11th Cir. 2005) (supervisor's statement that Lebanese plaintiff was turned down
for promotion because white coworkers were “not going to take orders from you,
especially if you have an accent” was direct evidence of discrimination);
Guimaraes v. SuperValu, Inc., 674 F.3d 962, 974 (8th Cir. 2012) (“[C]omments
ridiculing an employee's accent may be relevant evidence of national-origin
animus.”).5 However, an employee's heavy accent or difficulty with spoken
English can be a legitimate basis for adverse employment action where effective
communication skills are reasonably related to job performance, as they certainly
are in a teaching position. See Jiminez v. Mary Washington Coll., 57 F.3d 369, 380
(4th Cir. 1995) (“[R]equiring that a professor speak the native tongue in order to
convey his ideas is not any form of discrimination, invidious or otherwise.”); Bina
v. Providence Coll., 39 F.3d 21, 26 (1st Cir. 1994) (“[R]eferences to audience
difficulty in understanding [the plaintiff professor] may reasonably be interpreted
5
See also Sandoval v. Hagan, 197 F.3d 484, 509 n. 26 (11th Cir. 1999) (noting that other federal
circuits have connected language and national origin discrimination but refraining from reaching
the question), overruled on other grounds as recognized in Garrett v. Univ. of Ala. at
Birmingham Bd. of Trs., 344 F.3d 1288, 1291 (11th Cir. 2003) (per curiam).
6
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as expressing a concern about his ability to communicate to students rather than
discriminatory animus based on ethnicity or accent.”). Cf. Stephen v. PGA
Sheraton Resort, Ltd., 873 F.2d 276, 280-81 (11th Cir. 1989) (“[T]he requirement
that Stephen be able to speak and understand English with sufficient facility to
adequately perform his assigned tasks had a manifest relationship to the
employment in question.”) (Title VII disparate impact case); Fragante v. City &
Cnty. of Honolulu, 888 F.2d 591, 596–97 (9th Cir. 1989) (employer legitimately
considered plaintiff's “heavy” and “difficult to understand” Filipino accent, where
clerk job required interaction with general public and “oral ability to communicate
effectively in English” was essential).
Here, Principal Oswald’s statements regarding Fong’s accent, when viewed
in the context presented by the record evidence as a whole, do not constitute
“blatant” remarks “whose intent could mean nothing other than to discriminate on
the basis of” Fong’s national origin. Dixon, 627 F.3d at 854 (quotation omitted).
The undisputed evidence indicates that Principal Oswald’s goal upon being hired at
BBHS was to turn the school around and improve student performance. Thus,
Principal Oswald had a legitimate interest in ensuring that Fong’s students were
able to understand her in the classroom. It could be reasonably inferred that the
7
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Oswald’s statements were nothing more than an observation of a fact regarding her
ability to effectively communicate with her students. 6
Where, as here, there is no direct evidence of discrimination, a plaintiff may
prove discrimination through circumstantial evidence, 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). E.g., McCann v. Tillman, 526 F.3d 1370, 1373
(11th Cir. 2008). Moreover, we have specifically held that McDonnell Douglas
applies to a disparate treatment claim. Wilson, 376 F.3d at 1087(“In evaluating
disparate treatment claims supported by circumstantial evidence, we use the
framework established by the Supreme Court in [McDonnell Douglas]”). “Under
this framework, the plaintiff first has the burden of establishing a prima facie case
of discrimination, which creates a rebuttable presumption that the employer acted
illegally.” Id. Once the plaintiff establishes a prima facie case, the burden of
production shifts to the employer to articulate a legitimate, nondiscriminatory
reason for its actions. Id. “The employer need not persuade the court that it was
6
The fact that Principal Oswald’s statements were made approximately seven months prior to his
letter informing Fong that her contract would not be renewed further weakens any argument that
the statements constitute direct evidence of discrimination. See Scott v. Suncoast Beverage
Sales, Ltd., 295 F.3d 1223, 1228 (11th Cir. 2002) (holding that statement did not rise to level of
direct evidence “because it was made approximately two and one-half years before the
termination, and because it was not directly related to the subject of [the plaintiff]'s
termination”); Tank v. T-Mobile USA, Inc., 758 F.3d 800, 806 (7th Cir. 2014) (“We have said
that isolated comments made over a year before the adverse action are not evidence of
discrimination under the direct method.”).
8
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actually motivated by the proffered reasons. If the employer satisfies its burden by
articulating one or more reasons, then the presumption of discrimination is
rebutted, and the burden of production shifts to the plaintiff to offer evidence that
the alleged reason of the employer is a pretext for illegal discrimination.” Id.
(internal citation and quotation omitted).
We assume, without deciding, that Fong has established a prima facie case
of national origin discrimination and thus turn to considering the School Board’s
reasons for not renewing Fong’s contract. 7 The reasons articulated by the School
Board to the district court 8 were that “her work performance was not what was
needed for BBHS” and that her “style of teaching was not the best method to
engage the students and increase student achievement at BBHS.” 9 The School
7
We have regularly assumed the establishment of a prima facie case where a plaintiff’s claim of
discrimination nevertheless failed at the pretext prong of the McDonnell Douglas test. See
Alvarez, 610 F.3d at 1265 (“It matters not whether Alvarez has made out a prima facie case if she
cannot create a genuine issue of material fact as to whether Royal Atlantic's proffered reasons for
firing her are pretext masking discrimination. For that reason, we will assume that Alvarez has
established a prima facie case of discrimination.” (internal citations omitted)); Scott, 295 F.3d at
1228 (“Unlike the district court, we will assume that Scott has presented a prima facie case of
discrimination and move directly to the next step of the McDonnell Douglas analysis.”); Schaaf
v. Smithkline Beecham Corp., 602 F.3d 1236, 1243 (11th Cir. 2010) (“For the purposes of this
analysis, this Court will assume without deciding that Schaaf has successfully established a
prima facie case for FMLA retaliation” under the McDonnell Douglas framework.)
8
See Chapman v. AI Transp., 229 F.3d 1012, 1030 n.19 (11th Cir. 2000) (en banc) (“Just as
plaintiffs are not allowed to recast an employer's proffered reason, so also should courts refrain
from doing so. Accordingly, we take the reason proffered by the employer at the time of
summary judgment, the reason presented to the district court, and examine it.”).
9
The district court stated that the School Board’s articulated reason was that Fong’s “work
performance did not meet BBHS standards.”
9
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Board notes that the most consistent concerns by the school administration, based
on observations of her classroom, were related to her classroom management. We
find these articulated reasons to be legitimate and non-discriminatory.
Next we consider whether Fong has met her burden of showing that the
School Board’s articulated reasons for not renewing her teaching contract were a
pretext for unlawful discrimination.10 “Because the burden of persuasion remains
with the employee, she must []show that the seemingly legitimate reason the
employer gave was pretextual—i.e., the ‘proffered reason was not the true reason
for the employment decision.’ ” Kidd v. Mando Am. Corp., 731 F.3d 1196, 1202
(11th Cir. 2013) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 508, 113 S.
Ct. 2742, 125 L. Ed. 2d 407 (1993) (internal quotation marks omitted)). Fong
“may satisfy her burden either by offering evidence that [the School Board] more
likely than not acted with a discriminatory motive, or by showing that its proffered
reasons are not credible, unless the record conclusively shows that the real motive
was a non-proffered reason that is non-discriminatory.” Alvarez, 610 F.3d at 1265.
“To show pretext, [Fong] must demonstrate ‘such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer's proffered
legitimate reasons for its action that a reasonable factfinder could find them
10
“It is well established that t[he McDonnell Douglas] framework applies to cases alleging
disparate treatment and that a plaintiff in such cases must still establish pretext even if she has
satisfied her initial burden of establishing a prima facie case of discrimination.” Walach v. Sec'y,
U.S. Dep't of Veterans Affairs, 519 F. App'x 607, 608 (11th Cir. 2013) (per curiam) (citing Joe's
Stone Crabs, 296 F.3d at 1272–73)).
10
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unworthy of credence.’ ” Id. (quoting Combs v. Plantation Patterns, 106 F.3d
1519, 1538 (11th Cir. 1997) (citation omitted)).
Fong “ ‘is not allowed to recast [the School Board]'s proffered
nondiscriminatory reasons or substitute [her] business judgment for that of the
employer. Provided that the proffered reason is one that might motivate a
reasonable employer, [Fong] must meet that reason head on and rebut it, and [she]
cannot succeed by simply quarreling with the wisdom of that reason.’ ” Id. at
1265-66 (quoting Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000)
(en banc)) (some alterations added). “As we've repeatedly stressed, in enacting
Title VII Congress did not intend to transform federal courts into a ‘super-
personnel department that reexamines an entity's business decisions.’ Our job is
instead to determine ‘whether the employer gave an honest explanation’ to justify
its hiring decisions.’ If the employer gives one, we're not in a position to ‘second-
guess [its] business judgment’…” Kidd, 731 F.3d at 1207 (quoting Chapman, 229
F.3d at 1030 (citations and internal quotation marks omitted)) (internal citations
omitted).
“[W]e must be careful not to allow Title VII plaintiffs simply to litigate
whether they are, in fact, good employees. The factual issue to be resolved is not
the wisdom or accuracy of [the employer]'s conclusion that [the plaintiff] was an
unsatisfactory employee. We are not interested in whether the conclusion is a
11
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correct one, but whether it is an honest one. Like all Title VII cases where pretext
is an issue, the question the factfinder must answer is whether [the School Board]'s
proffered reasons were ‘a coverup for a ... discriminatory decision.’ ” Rojas v.
Florida, 285 F.3d 1339, 1342 (11th Cir. 2002) (per curiam) (quoting McDonnell
Douglas, 411 U.S. at 805, 93 S. Ct. at 1826). “ ‘We are not in the business of
adjudging whether employment decisions are prudent or fair. Instead, our sole
concern is whether unlawful discriminatory animus motivates a challenged
employment decision.’ ” Id. (quoting Damon v. Fleming Supermarkets of Fla.,
Inc., 196 F.3d 1354, 1361 (11th Cir. 1999). “[T]he fact that [an employee] thinks
more highly of her performance than her employer does is beside the point.”
Alvarez, 610 F.3d at 1266.
“Although the intermediate burdens of production shift back and forth, the
ultimate burden of persuading the trier of fact that the employer intentionally
discriminated against the employee remains at all times with the plaintiff.” EEOC
v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 1273 (11th Cir. 2002). “A reason is not
pretext for discrimination ‘unless it is shown both that the reason was false, and
that discrimination was the real reason.’ ” Brooks v. Cnty. Comm'n of Jefferson
Cnty., Ala., 446 F.3d 1160, 1163 (11th Cir. 2006) (quoting Hicks, 509 U.S. at 515,
113 S. Ct. at 2752). See also Alvarez, 610 F.3d at 1267 (“Alvarez's burden is to
show not just that Royal Atlantic's proffered reasons for firing her were ill-founded
12
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but that unlawful discrimination was the true reason.” (citing Reeves, 530 U.S. at
148, 120 S. Ct. at 2109)).
Contrary to Fong’s attempt to recast the School Board’s reason for not
renewing her teaching contract as being for “poor performance,” the School
Board’s articulated reasons were that Fong’s teaching and classroom-management
styles were deemed not suited for the particular needs of BBHS students. Principal
Oswald made this determination based on his own observation of Fong in the
classroom, on feedback from the assistant principals regarding their observations
of Fong, and on his overall professional judgment as to whether Fong was an
effective teacher.
Responding to the School Board’s summary judgment motion, Fong
addressed Oswald’s assessment by presenting an affidavit from another teacher
who had observed Fong and who disagreed with Oswald’s assessment. Fong also
asserted that Oswald was not “fair-minded” in his assessment because he did not
review objective grade data or take into consideration a student survey conducted
by Fong. Last, in an effort to show that the reasons given for non-renewal of her
contract were a cover-up for discrimination, Fong relied on the fact that she
received in 2009 a satisfactory evaluation from Oswald.
The evidence relied upon by Fong is insufficient to show pre-text. “The
inquiry into pretext centers on the employer's beliefs, not the employee's beliefs
13
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and, to be blunt about it, not on reality as it exists outside of the decision maker's
head…The question is whether [Fong’s] employers were dissatisfied with her for
these or other non-discriminatory reasons, even if mistakenly or unfairly so, or
instead merely used those complaints about [her] as cover for discriminating
against her because of her C[hinese] origin.” Alvarez, 610 F.3d at 1266.
Fong has not pointed to sufficient evidence that would lead a reasonable trier of
fact to believe that Principal Oswald’s opinion of Fong’s suitability to teach at
BBHS, whether right or wrong, was unworthy of credence. 11 Cf. Alvarez, 610 F.3d
at 1267 (“Even if Alvarez could show [her performance] was satisfactory by some
objective standard, she has not raised a genuine issue of material fact as to the true
reason she was fired…[Her supervisor] was free to set unreasonable or even
impossible standards, as long as she did not apply them in a discriminatory
manner.”). While Fong may believe Principal Oswald’s assessment unfounded,
she may not demonstrate pretext simply by quarreling with his conclusion
regarding her effectiveness as a teacher at BBHS. Moreover, Fong has presented
insufficient evidence indicating that discriminatory animus was the true reason for
the non-renewal of her teaching contract. Principal Oswald’s one instance of
11
Though Fong also suggests that Principal Oswald’s failure to include any reason for Fong’s
non-renewal in his letter is indicative of pretext, we disagree. See Abel v. Dubberly, 210 F.3d
1334, 1339 n.5 (11th Cir. 2000) (per curiam) (“[A]n ‘employer may fire an employee for a good
reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its
action is not for a discriminatory reason.’ ” (quoting Nix v. WLCY Radio/Rahall Commc’ns, 738
F.2d 1181, 1187 (11th Cir. 1984)).
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remarking on the difficulty of understanding Fong’s accent, standing alone, is
inadequate to support a finding of intentional discrimination.12
IV. Conclusion
Fong has failed to show that the School Board’s legitimate, non-
discriminatory reason for not renewing her teaching contract was a pretext for
unlawful discrimination. Accordingly, we AFFIRM the district court’s grant of
summary judgment to the School Board.
AFFIRMED.
12
We have held that “establishing the elements of the McDonnell Douglas framework is not, and
never was intended to be, the sine qua non for a plaintiff to survive a summary judgment motion
in an employment discrimination case” and that a “plaintiff will always survive summary
judgment if he presents circumstantial evidence that creates a triable issue concerning the
employer's discriminatory intent.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th
Cir. 2011). “A triable issue of fact exists if the record, viewed in a light most favorable to the
plaintiff, presents a convincing mosaic of circumstantial evidence that would allow a jury to infer
intentional discrimination by the decisionmaker.” Id. (quotation and footnote omitted).
However, Fong has not attempted to argue, either in the district court or on appeal, that she has
presented a “convincing mosaic” of circumstantial evidence that would allow for an inference of
intentional discrimination, and we decline to make this argument for her.
15