In Zokari v. Gates, the Tenth Circuit Court of Appeals recently held that an employee allegedly fired from his job because he refused a supervisor’s suggestion to take English lessons, did not state a claim for retaliation under Title VII.

The plaintiff was a Nigerian-born employee hired at the Department of Defense.  DOD’s policy was to encourage managers to offer English language classes to employees for whom English was a second language.  Shortly after Zokari was hired, his supervisor expressed concern about his accent and recommended that he take an English course.  Plaintiff rejected the suggestion, stating that others only had trouble understanding him because they had not been exposed to people with accents, a problem that would disappear over time.  A few months later, the plaintiff’s supervisor asked if he had taken the suggested English class.  According to the plaintiff, after this conversation, his supervisor’s attitude toward him changed significantly and he was denied training opportunities and ultimately terminated under the pretext of poor performance.

The district court dismissed Zokari’s claim that his supervisor retaliated against him by disciplining him for allegedly poor performance, treating him with hostility, and eventually firing him because he refused to take an English class.  The Tenth Circuit affirmed, holding that even if the refusal to take English classes constituted protected activity, plaintiff could not show that it “caused” his termination.  The court reasoned that although plaintiff may have refused the English class because he felt that the request was discriminatory, he did not present evidence that he made the basis of his refusal known to his supervisor.  He never told his supervisor of his belief that the request constituted improper discrimination based on his race or national origin.  Instead, the only reason he gave for his refusal was that the failure of others to understand him was due to lack of exposure to people with an accent.

This case demonstrates that if an employer is unaware of the significance that the employee himself places on the activity, it may not be protected activity.  If plaintiff had said, at the time, that he thought the English lesson suggestion was demeaning and a possible violation of federal law, the court may have allowed plaintiff’s claim to proceed to trial.