Consti2-Fragante Vs City and County of Honolulu

888 F.
2d 591 Page 1
888 F.2d 591, 104 A.L.R. Fed. 801, 52 Empl. Prac. Dec. P 39,472, 49 Fair Empl.Prac.Cas. (BNA) 437, 49 Empl. Prac.
Dec. P 38,783, 57 USLW 2557, 51 Fair Empl.Prac.Cas. (BNA) 190
(Cite as: 888 F.2d 591)
United States Court of Appeals,Ninth Circuit.

Manuel T. FRAGANTE, Plaintiff-Appellant,
v.
CITY AND COUNTY OF HONOLULU; Eileen Anderson; Peter Leong; Dennis Kamimura; George Kuwahara;
Kalani McCandless, Defendants-Appellees.
No. 87-2921.
Argued and Submitted Nov. 17, 1988.

Decided March 6, 1989.
Amended Oct. 23, 1989.
Filipino brought civil rights action against city and county after Filipino was not chosen for clerk job. The United
States District Court for the District of Hawaii, 699 F.Supp. 1429, Paul G. Rosenblatt, J., dismissed. Filipino appealed.
The Court of Appeals, Trott, Circuit Judge, held that Filipino was passed over for employment because of the
deleterious effect of his Filipino accent on his ability to communicate orally, not merely because he had such an
accent.
Affirmed.
[1] Federal Courts 170B 755
170B Federal Courts

170BVIII Courts of Appeals
170BVIII(K) Scope, Standards, and Extent
170BVIII(K)1 In General
170Bk754 Review Dependent on Whether Questions Are of Law or of Fact
170Bk755 k. Particular Cases. Most Cited Cases
Federal Courts 170B 858
170B Federal Courts

170BVIII Courts of Appeals
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170BVIII(K)5 Questions of Fact, Verdicts and Findings
170Bk855 Particular Actions and Proceedings, Verdicts and Findings
170Bk858 k. Civil Rights Cases. Most Cited Cases
Ultimate question of discrimination under Title VII of the Civil Rights Act is generally considered finding of fact
subject on review to clearly erroneous standard; however, such findings based on erroneous application of law are
reviewable as questions of law. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.
[2] Civil Rights 78 1138
78 Civil Rights
78II Employment Practices
78k1138 k. Disparate Treatment. Most Cited Cases
(Formerly 78k153)
Civil Rights 78 1140

888 F.2d 591 Page 2
(Cite as: 888 F.2d 591)
78 Civil Rights
78k1140 k. Disparate Impact. Most Cited Cases
(Formerly 78k153)
Civil rights plaintiff may bring action against employer under disparate treatment and/or disparate impact theory.
Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.
78 Civil Rights
78IV Remedies Under Federal Employment Discrimination Statutes
78k1543 Weight and Sufficiency of Evidence
78k1545 k. Prima Facie Case. Most Cited Cases
(Formerly 78k383)
In civil rights action brought under disparate treatment theory, plaintiff has initial burden of proving by preponderance
of the evidence prima facie case of discrimination. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et
seq.
78 Civil Rights
(Formerly 78k383)
To establish prima facie case of disparate treatment under the Civil Rights Act, plaintiff must offer evidence that gives
rise to inference of unlawful discrimination. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.
78 Civil Rights
(Formerly 78k383)
Civil rights plaintiff may establish prima facie case of disparate treatment by showing that he has identifiable national
origin; that he applied and was qualified for job for which employer was seeking applicants; that he was rejected
despite his qualifications; and that, after his rejection, position remained open and employer continued to seek
applicants from persons of plaintiff's qualifications. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et
seq.
78 Civil Rights
78k1534 Presumptions, Inferences, and Burden of Proof
78k1536 k. Effect of Prima Facie Case; Shifting Burden. Most Cited Cases
(Formerly 78k378)
Once plaintiff succeeds in establishing prima facie case of disparate treatment under the Civil Rights Act, burden
shifts to employer to rebut presumption of discrimination by articulating some legitimate, nondiscriminatory reason
for the adverse action; after employer presents legitimate reasons for adverse action, burden shifts to plaintiff to show
that employer's purported reason for the adverse action was pretext for invidious discrimination. Civil Rights Act of
888 F.2d 591 Page 3
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1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.
78 Civil Rights
78k1544 k. In General. Most Cited Cases
(Formerly 78k382.1, 78k382)
To succeed in carrying ultimate burden of proving intentional discrimination in civil rights action, plaintiff may
establish pretext either directly, by showing that employer was more likely motivated by discriminatory reason, or
indirectly, by showing employer's proffered reason is unworthy of credence. Civil Rights Act of 1964, § 701 et seq.,
42 U.S.C.A. § 2000e et seq.
78 Civil Rights
78k1121 k. Hiring. Most Cited Cases
(Formerly 78k141)
Civil Rights 78 1231
78 Civil Rights
78k1231 k. Other Particular Bases of Discrimination or Classes Protected. Most Cited Cases
(Formerly 78k141)
Adverse employment decision may be predicated upon individual's accent when-but only when-it interferes materially
with job performance; there is nothing improper about employer making honest assessment of oral communication
skills of candidate for job when such skills are reasonably related to job performance. Civil Rights Act of 1964, § 701
et seq., 42 U.S.C.A. § 2000e et seq.
78 Civil Rights
78k1124 Public Employment
78k1127 k. Hiring. Most Cited Cases
(Formerly 78k142)
City and county did not discriminate against Filipino on basis of national origin when they refused to employ Filipino
in clerk positions because of Filipino's heavy accent; clerk positions involved constant public contact and required
ability to speak clearly, and Filipino's heavy accent had deleterious effect on his ability to communicate orally. Civil
Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.
78 Civil Rights
78k1118 k. Practices Prohibited or Required in General; Elements. Most Cited Cases
(Formerly 78k141)
Title VII does not stand for proposition that person in protected class shall enjoy position of advantage thereby when
competing for job against others not similarly protected. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e
et seq.
888 F.2d 591 Page 4
(Cite as: 888 F.2d 591)
*593 William D. Hushijo and Mari J. Matsuda, Honolulu, Hawaii for plaintiff/appellant.
Gilbert C. Doles, Deputy Corporate Counsel, City & County of Honolulu, Hawaii, for defendants/appellees.
Susan Buckingham Reilly, Asst. Gen. Counsel, Equal Opportunity Com'n, Washington, D.C., and Jose Roberto Juarez,
Jr., Mexican American Legal Defense and Educational Fund, for amici.
Appeal from the United States District Court for the District of Hawaii.
Before O'SCANNLAIN and TROTT, Circuit Judges, and KAY FN*, District Judge.
FN* Honorable Alan C. Kay, United States District Judge, District of Hawaii, sitting by designation.
TROTT, Circuit Judge:

Manuel Fragante applied for a clerk's job with the City and County of Honolulu (Defendants). Although he placed
high enough on a civil service eligible list to be chosen for the position, he was not selected because of a perceived
deficiency in relevant oral communication skills caused by his “heavy Filipino accent.” Fragante brought suit,
alleging that the defendants discriminated against him on the basis of his national origin, in violation of Title VII of the
Civil Rights Act. At the conclusion of a trial, the district court found that the oral ability to communicate effectively
and clearly was a legitimate occupational qualification for the job in question. This finding was based on the court's
understanding that an important aspect of defendant's business-for which a clerk would be responsible-involved the
providing of services and assistance to the general public. The court also found that defendant's failure to hire
Fragante was explained by his deficiencies in the area of oral communication, not because of his national origin.
Finding no proof of a discriminatory intent or motive by the defendant, the court dismissed Fragante's complaint, 699
F.Supp. 1429, and he appeals. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
FACTS
In April 1981, at the age of sixty, Fragante emigrated from the Philippines to Hawaii. In response to a newspaper ad,
he applied in November of 1981 for the job at issue in this appeal-an entry level Civil Service Clerk SR-8 job for the
City of Honolulu's Division of Motor Vehicles and Licensing. The SR-8 clerk position involved such tasks as filing,
processing mail, cashiering, orally providing routine information to the “sometimes contentious” public over the
telephone and at an information counter, and obtaining supplies. Fragante scored the highest of 721 test takers on the
written SR-8 Civil Service Examination which tested, among other things, word usage, grammar and spelling.
Accordingly, he was ranked first on a certified list of eligibles for two SR-8 clerk positions, an achievement of which
he is understandably quite proud.
Fragante then was interviewed in the normal course of the selection process-as were other applicants-by George
Kuwahara, the assistant licensing administrator, and Kalani McCandless, the division secretary. Both Kuwahara and
McCandless were personally familiar with the demands of the position at issue, and both had extensive experience
interviewing applicants to the division. During the interview, Kuwahara stressed that the position involved constant
public contact and that the ability to speak clearly was one of the most important skills required for the position.
Both Kuwahara and McCandless had difficulty understanding Fragante due to his pronounced Filipino accent, and
they determined on the basis of the oral interview that he would be difficult to understand *594 both at the information
counter and over the telephone. Accordingly, both interviewers gave Fragante a negative recommendation. They
noted he had a very pronounced accent and was difficult to understand. It was their judgment that this would interfere
with his performance of certain aspects of the job. As a consequence, Mr. Fragante dropped from number one to
number three on the list of eligibles for the position.
888 F.2d 591 Page 5
(Cite as: 888 F.2d 591)
Under the city's civil service rules, the Department of Motor Vehicles and Licensing, as the appointing authority, is
allowed discretion in selecting applicants for the clerk vacancies. City Civil Service Rule 4.2(d) allows the
defendants to select any of the top five eligibles without regard to their rank order.FN1 The essence of this rule was
clearly stated in the employment announcement posted for the SR-8 position:
FN1. Obviously the “rule of five” does not confer upon defendant a license to discriminate unlawfully against
an applicant. We note that the validity of the “rule of five” per se was not challenged by Fragante and is not
an issue on this appeal.
The names of the “top five” qualified applicants with the highest examination grades will be referred to the employing
agency in the order of their examination grade and availability for employment according to Civil Service Rules. The
employing agency may select any one of the eligibles referred. Those not selected will remain on the list for at least
one year for future referrals.
In accord with this process, the two other applicants who were judged more qualified than Fragante and who therefore
placed higher than he on the final list got the two available jobs, and he was so notified by mail.
After exhausting administrative remedies, Fragante filed a claim under Title VII of the Civil Rights Act against the
City and County of Honolulu, alleging he was discriminated against because of his accent. The district court relied on
the results of the oral interview and found that Fragante's oral skills were “hampered by his accent or manner of
speaking.” The court found no evidence of unlawful discrimination in violation of Title VII, concluding that Fragante
lacked the “bona fide occupational requirement” FN2 of being able to communicate effectively with the public, and
dismissed his claim.
FN2. Although the district judge used the language of 42 U.S.C. § 2000e-2(e)(1), it is clear from the record
that he did so only to describe the legitimacy of the defendant's reasons for the adverse action, not to invoke
the statute itself.
II
DISCUSSION
[1] The ultimate question of discrimination is generally considered a finding of fact subject on review to the clearly
erroneous standard. United States Postal Service v. Aiken, 460 U.S. 711, 715-16, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d
403 (1983); Alaniz v. California Processors, Inc., 785 F.2d 1412, 1416 (9th Cir.1986). However, such findings based
on an erroneous application of law are reviewable as questions of law. Pullman-Standard v. Swint, 456 U.S. 273, 287,
102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982); Alaniz, 785 F.2d at 1416.
[2] Title VII prohibits employment discrimination on the basis of race, color, sex, religion and national origin. 42
U.S.C. § 2000e-2(a)(1) (1982). A plaintiff may bring an action against an employer under a disparate treatment
and/or disparate impact theory. Fragante's action was brought under the disparate treatment theory.
[3] In disparate treatment cases, the employer is normally alleged to have “treat[ed] a person less favorably than others
because of the person's race, color, religion, sex, or national origin....” International Brotherhood of Teamsters v.
United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). The plaintiff has the initial
burden in such a case of proving by a preponderance of the evidence a prima facie case of discrimination.
*595McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973).
[4][5] To establish a prima facie case of disparate treatment, the plaintiff must offer evidence that “give[s] rise to an
inference of unlawful discrimination.” Yartzoff v. Thomas, 809 F.2d 1371, 1374 (9th Cir.1987) (quoting Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981)). Plaintiffs
888 F.2d 591 Page 6
(Cite as: 888 F.2d 591)
commonly prove a prima facie case by showing that the four factors set forth in McDonnell Douglas are present. To
accomplish this, a plaintiff such as Fragante must show: (1) that he has an identifiable national origin; (2) that he
applied and was qualified for a job for which the employer was seeking applicants; (3) that he was rejected despite his
qualifications; and (4) that, after his rejection, the position remained open and the employer continued to seek
applicants from persons of complainant's qualifications. Id. “Title VII's nature and purpose require that the
McDonnell Douglas test be flexible.” Spaulding v. University of Washington, 740 F.2d 686, 700 (9th Cir.), cert.
denied 469 U.S. 1036, 105 S.Ct. 511, 83 L.Ed.2d 401 (1984). The burden of establishing a prima facie case for
disparate treatment is not onerous. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093-94. A determination of whether a
plaintiff establishes a prima facie case will depend on the facts of each case. Id.
[6][7] Once the plaintiff succeeds in establishing a prima facie case, the burden shifts to the employer to rebut the
presumption of discrimination by “articulating some legitimate, nondiscriminatory reason” for the adverse action. Id.
at 254, 101 S.Ct. at 1094. After the employer presents legitimate reasons for plaintiff's non-selection, the burden
shifts to the plaintiff, and he must show-if he can-that the employer's purported reason for non-selection was “a pretext
for invidious discrimination”. Id. at 252-53, 101 S.Ct. at 1093. To succeed in carrying the ultimate burden of proving
intentional discrimination, a plaintiff may establish a pretext either directly, by showing that the employer was more
likely motivated by a discriminatory reason, or indirectly, by showing the employer's proffered reason is unworthy of
credence. Id. at 256, 101 S.Ct. at 1095.
A. Prima Facie Case
Defendants first argue Fragante failed to meet his burden of proving a prima facie case because he failed to show he
was actually qualified for the SR-8 clerk position, a position which requires the applicant to be able to communicate
clearly and effectively. Fragante, on the other hand, contends he was qualified for the position. As proof he points to
his exceptional score on the objective written examination, and he argues that his speech, though heavily accented,
was deemed comprehensible by two expert witnesses at trial. Fragante's position is supported by the approach taken
by the Equal Employment Opportunity Commission which submits that a plaintiff who proves he has been
discriminated against solely because of his accent does establish a prima facie case of national origin discrimination.
Bell v. Home Life Insurance Co., 596 F.Supp. 1549, 1554-55 (M.D.N.C.1984); Carino v. University of Oklahoma, 25
FEP Cases 1332, 1336-37 (W.D.Okla.1981), aff'd, 750 F.2d 815 (10th Cir.1984). See also Berke v. Ohio Dept. of
Public Welfare, 628 F.2d 980, 981 (6th Cir.1980) (per curiam) (court upheld determination that discrimination on the
basis of foreign accent was a sufficient basis for finding national origin discrimination). This contention is further
supported by EEOC guidelines which define discrimination to include “the denial of equal employment opportunity ...
because an individual has the ... linguistic characteristics of a national origin group.” 29 C.F.R. § 1606.1 (1988).
Furthermore, Fragante was never advised that he was not qualified for the job: he was only told that he was
less-qualified than his competition.
Because we find that Fragante did not carry the ultimate burden of proving national origin discrimination, however,
the issue of whether Fragante established a prima facie case of discrimination is not *596 significant, and we assume
without deciding that he did.
B. The Statute and its Purpose
Preliminarily, we do well to remember that this country was founded and has been built in large measure by people
from other lands, many of whom came here-especially after our early beginnings-with a limited knowledge of English.
This flow of immigrants has continued and has been encouraged over the years. From its inception, the United States
of America has been a dream to many around the world. We hold out promises of freedom, equality, and economic
opportunity to many who only know these words as concepts. It would be more than ironic if we followed up our
invitation to people such as Manuel Fragante with a closed economic door based on national origin discrimination. It
is no surprise that Title VII speaks to this issue and clearly articulates the policy of our nation: unlawful discrimination
based on national origin shall not be permitted to exist in the workplace. But, it is also true that there is another
important aspect of Title VII: the “preservation of an employer's remaining freedom of choice.” Price Waterhouse v.
888 F.2d 591 Page 7
(Cite as: 888 F.2d 591)
Ann B. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). In that regard, the court said:
To begin with, the existence of the BFOQ exception shows Congress' unwillingness to require employers to change
the very nature of their operations in response to the statute. And our emphasis on “business necessity” in
disparate-impact cases, see Watson and Griggs, and on “legitimate, nondiscriminatory reason[s]” in
disparate-treatment cases, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36
L.Ed.2d 668 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207
(1981), results from our awareness of Title VII's balance between employee rights and employer prerogatives.
When an employer ignored the attributes enumerated in the statute, Congress hoped, it naturally would focus on the
qualifications of the applicant or employee. The intent to drive employers to focus on qualifications rather than on
race, religion, sex, or national origin is the theme of a good deal of the statute's legislative history.
Indeed, the very purpose of title VII is to promote hiring on the basis of job qualifications,....
Id. 109 S.Ct. at 1786-87.
With this guidance in mind, and particularly its focus on employment qualifications, we proceed to the task at hand.
C. Proof of an Ultimate Case of Discrimination
We turn our discussion to whether defendants articulated a legitimate, nondiscriminatory reason for Fragante's
nonselection. We find that they did, but to this finding we add a note of caution to the trial courts. Accent and
national origin are obviously inextricably intertwined in many cases. It would therefore be an easy refuge in this
context for an employer unlawfully discriminating against someone based on national origin to state falsely that it was
not the person's national origin that caused the employment or promotion problem, but the candidate's inability to
measure up to the communications skills demanded by the job. We encourage a very searching look by the district
courts at such a claim.FN3
FN3. The EEOC cautions that denying employment opportunities because of an individual's foreign accent
insofar as it creates an inability to communicate well in English may be a “cover” for unlawful discrimination.
Thus, the EEOC appropriately provides that it will “carefully investigate charges involving these selection
procedures for both disparate treatment and adverse impact on the basis of national origin.” 29 C.F.R. §
1606.6(b)(1). We, likewise, give careful consideration to Fragante's allegation of national origin
discrimination.
[8] 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*597 an honest assessment of
the oral communications skills of a candidate for a job when such skills are reasonably related to job performance.
EEOC Compliance Manual (CCH) ¶ 4035 at 3877-78 (1986); see also Mejia v. New York Sheraton Hotel, 459 F.Supp.
375, 377 (S.D.N.Y.1978) (Dominican chambermaid properly denied promotion to front desk because of her “inability
to articulate clearly or coherently and to make herself adequately understood in ... English”); Carino v. University of
Oklahoma Board of Regents, 750 F.2d 815, 819 (10th Cir.1984) (plaintiff with a “noticeable” Filipino accent was
improperly denied a position as supervisor of a dental laboratory where his accent did not interfere with his ability to
perform supervisory tasks); Berke, 628 F.2d at 981 (employee with “pronounced” Polish accent whose command of
English was “well above that of the average adult American” was improperly denied two positions because of her
accent).
[9] The defendants advertised for applicants to fill SR-8 vacancies. The initial job announcement listed the ability to
888 F.2d 591 Page 8
(Cite as: 888 F.2d 591)
“deal tactfully and effectively with the public” as one of the areas to be tested. There is no doubt from the record that
the oral ability to communicate effectively in English is reasonably related to the normal operation of the clerk's office.
A clerk must be able to respond to the public's questions in a manner which the public can understand. In this regard,
the district court in its Findings of Fact and Conclusions of Law and Order made the following significant
observations:
The job is a difficult one because it involves dealing with a great number of disgruntled members of the public. The
clerk must deal with 200-300 people a day, many of whom are angry or complaining and who do not want to hear what
the clerk may have to explain concerning their applications or an answer to their questions. It is a high turnover
position where people leave quickly because of the high stress involving daily contact with contentious people.
(Clerk's Record 30 at 7).
What must next be determined is whether defendants established a factual basis for believing that Fragante would be
hampered in performing this requirement. Defendants submit that because his accent made Fragante difficult to
understand as determined by the interview, he would be less able to perform the job than other applicants. Fragante,
on the other hand, contends he is able to communicate effectively in English as established by two expert witnesses at
trial and by his responses in open court. In essence, he argues his non-selection was effectively based upon national
origin discrimination.
After the interview, Kuwahara and McCandless scored Fragante on a rating sheet that was used for all applicants.
Applicants were scored in the categories of appearance, speech, self-confidence, emotional control, alertness,
initiative, personality, attitude, work experience, and overall fitness for the job. A scale of 1-10 was used. Kuwahara
gave Fragante a score of 3 for speech, and noted: “very pronounced accent, difficult to understand.” Although
McCandless did not enter a score in the speech category, she noted: “Heavy Filipino accent. Would be difficult to
understand over the telephone.”
After the interviews were scored, Kuwahara and McCandless reviewed the scores, discussed the applicants, and
decided on their hiring recommendation to finance director Peter Leong. In making the recommendation, written
examination scores were given no consideration. Kuwahara prepared the written recommendation to Leong, dated
April 13, 1982, recommending two others for selection. Fragante in his position as Number 3 on the final list was
described as follows:
3. Manuel Fragante-Retired Phillippine (sic) army officer. Speaks with very pronounced accent which is difficult to
understand. He has 37 years of experience in management administration and appears more qualified for professional
rather than clerical work. However, because of his accent, I would not recommend him for this position.
(P.Ex. A at 9; P.Ex. N).
McCandless then notified Fragante that he was not selected for either of the clerk *598 position vacancies. Pursuant
to a request from Fragante, Kuwahara then reduced the matter to writing. In a letter, dated June 28, 1982, the reasons
why he was not selected were articulated as follows:
As to the reason for your non-selection, we felt the two selected applicants were both superior in their verbal
communication ability. As we indicated in your interview, our clerks are constantly dealing with the public and the
ability to speak clearly is one of the most important skills required for the position. Therefore, while we were
impressed with your educational and employment history, we felt the applicants selected would be better able to work
in our office because of their communication skills.
(P.Ex. A at 10; P.Ex. Q).
Thus, the interviewers' record discloses Fragante's third place ranking was based on his “pronounced accent which is
difficult to understand.” Indeed, Fragante can point to no facts which indicate that his ranking was based on factors
other than his inability to communicate effectively with the public. This view was shared by the district court.
Although the district court determined that the interview lacked some formality as to standards, instructions,
guidelines, or criteria for its conduct and that the rating sheet was inadequate, the court also found that these
888 F.2d 591 Page 9
(Cite as: 888 F.2d 591)
“insufficiencies” were irrelevant with respect to plaintiff's complaint of unlawful discrimination. A review of the
record reveals nothing that would impeach this assessment. Kuwahara and McCandless recorded their evaluation of
Fragante's problem in separate written remarks on their rating sheets. As such, a legitimate factual basis for this
conclusion that Fragante would be less able than his competition to perform the required duties was established.
Fragante argues the district court erred in considering “listener prejudice” as a legitimate, nondiscriminatory reason
for failure to hire. We find, however, that the district court did not determine defendants refused to hire Fragante on
the basis that some listeners would “turn off” a Filipino accent. The district court after trial noted that: “Fragante, in
fact, has a difficult manner of pronunciation and the Court further finds as a fact from his general testimony that he
would often not respond directly to the questions as propounded. He maintains much of his military bearing.” We
regard the last sentence of the court's comment to be little more than a stray remark of no moment.
We do not find the court's conclusion clearly erroneous. We find support for our view in Fernandez v. Wynn Oil., 653
F.2d 1273, 1275 (9th Cir.1981), where this court held inability to communicate effectively to be one valid ground for
finding a job applicant not qualified.
Having established that defendants articulated a legitimate reason for Fragante's non-selection, our next inquiry is
whether the reason was a mere pretext for discrimination. Fragante essentially argues that defendant's selection and
evaluation procedures were so deficient as to render the proffered reason for non-selection nothing more than a pretext
for national origin discrimination. The problem with this argument, however, is that on examination it is only a
charge without substance. The process may not have been perfect, but it reveals no discriminatory motive or intent.
Search as we have, we have not been able to find even a hint of a mixed motive such as existed in Price Waterhouse.
Instead, it appears that defendants were motivated exclusively by reasonable business necessity.
[10] Fragante's counsel attempts to cast this case as one in which his client was denied a job simply because he had a
difficult accent. This materially alters what actually happened. Fragante failed to get the job because two
competitors had superior qualifications with respect to a relevant task performed by a government clerk. Insofar as
this implicates “the interest of the State, as an employer, in promoting the efficiency of the public services it performs
through its employees ...,” Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1735, 20 L.Ed.2d 811
(1968), it is not something we are permitted to ignore. Title VII does not stand for the proposition that a person in a
protected *599 class-or a person with a foreign accent-shall enjoy a position of advantage thereby when competing for
a job against others not similarly protected. Cf. Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 285, 97 S.Ct.
568, 575, 50 L.Ed.2d 471 (1977). And, the record does not show that the jobs went to persons less qualified than
Fragante: to the contrary.
Under our holding in Ward v. Westland Plastics, Inc., 651 F. 1266, 1269 (9th Cir.1980), “[a]n employer's decision
may be justified by the hired employee's superior qualifications unless the purported justification is a pretext for
invidious discrimination.” Fernandez, 653 F.2d at 1276. In this case, there is simply no proof whatsoever of pretext,
and we do not find the district court's finding of “no discrimination” to be clearly erroneous.
In sum, the record conclusively shows that Fragante was passed over because of the deleterious effect of his Filipino
accent on his ability to communicate orally, not merely because he had such an accent.
The district court is
AFFIRMED.
C.A.9 (Hawaii),1989.
Fragante v. City and County of Honolulu

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888 F.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Nov. 17, 1988.

[1] Federal Courts 170B 755

170B Federal Courts

Federal Courts 170B 858

170B Federal Courts

[2] Civil Rights 78 1138

Civil Rights 78 1140

[3] Civil Rights 78 1545

[4] Civil Rights 78 1545

[5] Civil Rights 78 1545

[6] Civil Rights 78 1536

1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.

[7] Civil Rights 78 1544

[8] Civil Rights 78 1121

Civil Rights 78 1231

[9] Civil Rights 78 1127

[10] Civil Rights 78 1118

TROTT, Circuit Judge:

A. Prima Facie Case

B. The Statute and its Purpose

Id. 109 S.Ct. at 1786-87.

C. Proof of an Ultimate Case of Discrimination

(Clerk's Record 30 at 7).

(P.Ex. A at 9; P.Ex. N).

(P.Ex. A at 10; P.Ex. Q).

The district court is

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