Court Dismisses “Accent-Related” National Origin Discrimination Claim

In Tomizawa v. ADT LLC, 13-CV-6366, 2015 WL 5772106 (E.D.N.Y. Sept. 29, 2015) (decision adopting Report & Recommendation), plaintiff alleged that his former employer discriminated against him and terminated his employment on the basis of his Japanese national origin, and that his supervisor retaliated against him for complaining of discrimination.

From the (adopted) Report & Recommendation:

Yet [plaintiff’s supervisor]’s remarks, considered in context, do not evidence discriminatory animus. An adverse employment decision may be predicated upon an individual’s accent when-but only when-it interferes materially with job performance. There is nothing improper about an employer making an honest assessment of the oral communication skills of a candidate for a job when such skills are reasonably related to job performance. The same can be said of hired candidates whose accents later interfere with their job performance. … A supervisor’s comment expressing difficulty understanding an employee’s accent is insufficient to support an inference of national origin discrimination. …

Here, [plaintiff’s supervisor] suggested that Plaintiff’s accent may have contributed to his low sales and made these comments during meetings in which he critiqued Plaintiff’s overall poor performance and provided him with Action Plans for improvement. Rather than expressing personal prejudice, [plaintiff’s supervisor]’s comments, when considered in context, tend to show that [plaintiff’s supervisor] was objectively evaluating Plaintiff’s poor performance and surmising that Plaintiff’s heavy accent may have impacted his sales. …

Nor does [plaintiff’s supervisor]’s assignment of Chinese customers to Plaintiff support an inference of anti-Asian or anti-Japanese bias. Plaintiff testified that DeGrazio hired him because he “just wanted an Asian person in the office,” and highlights in his Facts Statement [plaintiff’s supervisor] testimony that Plaintiff likely received Telmar leads for Asian customers. This simply supports [plaintiff’s supervisor]’s testimony that he viewed Plaintiff’s language abilities as advantageous in providing service to Chinese-and Japanese-speaking customers. … Instead of supporting Plaintiff’s claim that [plaintiff’s supervisor] harbored an anti-Asian or anti-Japanese bias, [plaintiff’s supervisor]’s testimony provides probative evidence that he harbored no ill-will towards Plaintiff’s language skills, accent, and, by extension, national origin.

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