Fong v. School Bd. of Palm Beach Cnty., No. 13-10393 (11th Cir. Nov. 4, 2014)
Abstract: A U.S. Court of Appeals for the Eleventh Circuit three-judge panel, in a per curiam (unauthored), unpublished decision has ruled that a teacher, whose contract was not renewed, failed to state a valid claim for Title VII discrimination based on national origin. The panel concluded that the direct evidence presented by the teacher was insufficient to show intentional discrimination. It also found that the teacher failed to establish her claim through indirect or circumstantial evidence. Assuming, without deciding, that the teacher had presented a prima facie case of discrimination, the panel concluded that the teacher had failed to meet her burden of showing that the legitimate nondiscriminatory reason for the contract nonrenewal proffered by the school district was a pretext for intentional discrimination.
Facts/Issues: Jianxin Fong was employed by Palm Beach County School District as a math teacher at Boynton Beach High School (BBHS). She worked on an annual contract basis from the beginning of the 2006-07 school year until the end of the 2008-09 school year. BBHS’s principal renewed Fong’s contract for the 2007-08 and 2008-09 school years. However, that principal was replaced for the 2008-09 school year because BBHS was rated “D.” Keith Oswald became the new principal and his mandate was to improve the school’s academic performance. The principal, along with two assistant principals, informally observed Fong’s classroom performance throughout the first semester of the 2008-09 school year.
When the principal spoke with Fong, who is of Chinese descent, for the first time after completing a brief observation of her class, he told her that she spoke with a “strong accent” that neither students nor he could understand. He told her to record her speech and listen to it. At a later date, the principal told Fong she talked too much in class, the classroom was too dark and students weren’t doing anything. BBHS administrators continued to express concern to Fong about her classroom management abilities throughout the 2008-09 school year. In April 2009, the principal informed Fong and five other teachers via letter that their teaching contracts would not be renewed for the 2009-10 school year. Fong’s teaching contract expired on June 5, 2009.
When Fong questioned the principal regarding the nonrenewal, he told her that the decision was not based on performance, but rather on the fact that she was not a fit for the school. When the principal was deposed for the suit, he stated that his recommendation for nonrenewal was based on “classroom management issues, her resistance to feedback and change and [that she was] not willing to learn.” Although he conceded that she was highly qualified for her job, the principal said that he, along with his two assistant principals, determined that Fong “wasn’t a fit for [BBHS].”
When asked what he meant by fit, the principal said that her teaching style was not suited to the type of students BBHS served because of her resistance to feedback and her negative attitude towards unmotivated and at-risk students. He later admitted that he was told by his supervisor not to get into details as to why a teacher’s contract was not being renewed. He was told that if one of them asked, he was just to tell her that she was not a good fit for the school.
Fong filed a suit in federal district court against Palm Beach County School Board (PBCSB). PBCSB filed a motion for summary judgment. The Court granted its motion.
Ruling/Rationale: The Eleventh Circuit panel affirmed the lower court’s decision granting PBCSB summary judgment. The panel began by acknowledging that a Title VII national origin discrimination claim could be based on the employee’s accent. It pointed out that “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.”
After viewing the principal’s comments regarding Fong’s accent in the context of the record, the panel concluded that such comments did not constitute “blatant” remarks “whose intent could mean nothing other than to discriminate “on the basis of” Fong’s national origin. It indicated that given the principal’s mandate to improve student academic performance, he had a legitimate interest in Fong’s ability to effectively communicate with her students. The panel concluded: “It could be reasonably inferred that Oswald’s statements were nothing more than an observation of a fact regarding her ability to effectively communicate with her students.”
Having found that Fong could not prove her claim through direct evidence of intentional discrimination, the panel next determined whether Fong had proof of her claim through circumstantial evidence, using the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Assuming, without deciding, that Fong had established a prima facie case of national origin discrimination, it turned to consider PBCSB’s reasons for not renewing Fong’s contract. In the district court, PBCSB proffered 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.”
The panel found the proffered reasons to be legitimate and non-discriminatory. It then explored whether Fong had met her burden of showing that those reasons were a pretext for unlawful discrimination. In other words, Fong had to prove that the “proffered reasons were ‘a coverup for a … discriminatory decision.’” It explained: “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.”
The panel rejected Fong’s attempt to recast PBCSB’ reason for not renewing her teaching contract as being for “poor performance.” It pointed out that the reasons articulated by the school board in district court were that Fong’s teaching and classroom-management styles were deemed not suited for the particular needs of BBHS students. According to the panel:
“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 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.”
It concluded that Fong failed to produce “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.”
The panel determined that the evidence did not point to a discriminatory animus that was the true reason for nonrenewal of her teaching contract. It found that the principal’s single comment regarding the difficulty of understanding Fong’s accented English, by itself, was inadequate to support a finding of intentional discrimination.
Fong v. School Bd. of Palm Beach Cnty., No. 13-10393 (11th Cir. Nov. 4, 2014)
[Editor's Note: As result of the trend of focusing on teacher effectiveness as witnessed by suits, such as Vergara v. State of California and the suit in New York state led by Partnership for Educational Justice, the number of Title VII suits similar to Fong may increase.]