[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                    FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                      ________________________   ELEVENTH CIRCUIT
                                                               MAY 27, 2010
                             No. 09-15297                       JOHN LEY
                         Non-Argument Calendar                    CLERK
                       ________________________

                D. C. Docket No. 08-00091-CV-4-SPM-WCS

YILI TSENG,


                                                           Plaintiff-Appellant,

                                  versus

FLORIDA A&M UNIVERSITY,
FLORIDA A&M UNIVERSITY
BOARD OF TRUSTEES,


                                                        Defendants-Appellees.


                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      _________________________

                              (May 27, 2010)

Before EDMONDSON, CARNES and FAY, Circuit Judges.

PER CURIAM:
      Yili Tseng, a native of Taiwan proceeding pro se, appeals from the district

court’s grant of summary judgment in favor of Florida A&M University and its

board of trustees (FAMU) in his employment discrimination suit under Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a). Tseng was a visiting

professor in FAMU’s Department of Computer and Information Science. He

alleged that FAMU discriminated against him on the basis of national origin when

it promoted Hong-Mei Chi, another visiting professor who was from mainland

China, to a tenure-track position instead of him, even though he was more

qualified. FAMU responded that it picked Chi over him because she had better

communication skills and a stronger record of collaboration with other faculty

members. The district court found that Tseng had not presented any direct

evidence of national origin discrimination, and had not shown that FAMU’s

proffered reasons for its decision were a pretext for discrimination. We affirm.

      Title VII prohibits employers from discriminating against employees on the

basis of national origin. See 42 U.S.C. § 2000e-2(a). A plaintiff may establish a

Title VII claim by presenting direct evidence of discrimination, or circumstantial

evidence that creates an inference of discrimination. Bass v. Bd. of County

Comm’rs., 

, 1103 (11th Cir. 2001), abrogation on other grounds

recognized by Crawford v. Carroll, 

(11th Cir. 2008).



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                                   I. Direct Evidence

       “Direct evidence of discrimination is evidence which, if believed, would

prove the existence of a fact in issue without inference or presumption. Only the

most blatant remarks, whose intent could be nothing other than to discriminate on

the basis of [the protected characteristic] . . . constitute direct evidence of

discrimination.” 

(quotations and citations omitted). As

direct evidence, Tseng offers several comments by his supervisors in annual

evaluations and in faculty meetings that “language is a challenge [for him]” and

that he needed to “work on his English skills.” Tseng argues that these comments

unfairly “picked on” him for his accent and therefore constituted discrimination on

the basis of his Taiwanese origin.

       Discrimination based on accent can be national origin discrimination. See

Akouri v. State of Fla. Dep’t of Transp., 

, 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). 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.



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See Jiminez v. Mary Washington College, 

, 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.”); cf. Fragante v. City

and County of Honolulu, 

, 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).

       An investigator for the Florida Commission on Human Rights, who

interviewed Tseng in connection with his discrimination claim, observed that his

“accent and speech patterns might make it difficult” for an average listener to

understand him in a classroom setting.1 Tseng himself agreed at his deposition that

his English was “sometimes difficult to understand.” He does not claim that

anyone at FAMU mocked his accent or made disparaging remarks about the

Taiwanese, and none of the statements he complained about specifically referred to

his nationality. The comments could simply have been meant to help Tseng

improve his effectiveness as a teacher. See Bina v. Providence College, 

, 26 (1st Cir. 1994) (“[R]eferences to audience difficulty in understanding

[plaintiff professor] may reasonably be interpreted as expressing a concern about


       1
         Tseng’s response to that comment was that the investigator must have been
“prejudice[d].”

                                              4
his ability to communicate to students rather than discriminatory animus based on

ethnicity or accent.”). The fact that Tseng was passed over in favor of another

foreign national, who also was not a native speaker of English, hardly supports a

conclusion that FAMU acted out of animus toward foreigners or foreign accents.

Because Tseng failed to identify any “blatant” remarks or actions “whose intent

could be nothing other than to discriminate,” the district court correctly found that

he had not shown direct evidence of discrimination. See 

.

                            II. Circumstantial Evidence

      In the absence of direct evidence, a plaintiff may establish a Title VII claim

through circumstantial evidence that creates an inference of discrimination. 

. To evaluate a claim based on circumstantial evidence, we use

the framework established in McDonnell-Douglas Corp. v. Green, 

,

(1973). 

Under this framework, Tseng established a

prima facie case of discrimination by showing that: (1) he was qualified for the

position; (2) he was rejected despite his qualifications; and (3) an equally or less

qualified employee who was not a member of his protected group (Taiwanese

nationals) was hired in his place. See 

FAMU did not dispute that

Tseng was qualified, and argued only that Chi was better qualified. The burden of

production then shifted to FAMU to offer a legitimate, non-discriminatory reason



                                           5
for its decision to hire Chi instead of Tseng. See 

so, pointing to

Chi’s superior communication skills and better record of collaboration.

Accordingly, Tseng needed to show that FAMU’s proffered reasons were pretexts

for discrimination on the basis of national origin. See 

pretext, Tseng must show both (1) that FAMU’s stated reasons

for hiring Chi were false, and (2) that discrimination on the basis of Tseng’s

Taiwanese origin was the real reason. See Brooks v. County Comm’n of Jefferson

County, 

, 1163 (11th Cir. 2006). “If the proffered reason is one that

might motivate a reasonable employer, a plaintiff cannot recast the reason but must

meet it head on and rebut it. Quarreling with [the employer’s] reason is not

sufficient.” Wilson v. B/E Aerospace, Inc., 

, 1088 (11th Cir. 2004)

(citation omitted). Mere irregularities in the employer’s internal hiring procedures

are not enough to show pretext or establish discriminatory intent. See Springer v.

Convergys Customer Mgmt. Group, 

, 1350 (11th Cir. 2007). When

a plaintiff asserts as Tseng does that discriminatory intent should be inferred from

his superior qualifications, the test is whether the difference in qualifications is “of

such weight and significance that no reasonable person, in the exercise of impartial

judgment, could have chosen the candidate selected over the plaintiff.” 

.



                                            6
       Tseng and Chi had generally similar backgrounds and qualifications, except

that Tseng had slightly more teaching experience while Chi had several more

publications. Tseng conceded that Chi had done more collaborative work with

other faculty than he had done. As evidence that Chi’s English-language

communication skills were not superior to his own, Tseng pointed only to a

handful of grammatical errors in three short emails written by Chi.2 FAMU’s

choice between two candidates of roughly similar qualifications was not

unreasonable. Even if Tseng were slightly more qualified than Chi in some

respects, there was not such a disparity between them that “no reasonable person”

could have selected Chi over him. See 

does not show that FAMU’s proffered reasons were false.

Even if it did, Tseng offers nothing to suggest that a discriminatory animus against

Taiwanese or preference for mainland Chinese was the real motivation for

FAMU’s decision. See 

and rehired Tseng for the visiting

position four years in a row, all the while being well aware of his nationality. The

district court correctly concluded that Tseng failed to make a circumstantial case

for discrimination, and it did not err in granting summary judgment to FAMU.

       AFFIRMED.


       2
          In response, the defendants note a number of similar grammatical and typographical
errors in Tseng’s own court filings.

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