In January 2019, my friend and partner Eric Paltell wrote a blog for our website on the Maryland District Court’s dismissal of a race discrimination complaint based on a supervisor’s Google search of a new employee. Last week, the Fourth Circuit affirmed that decision in a split three judge panel ruling. Bing v. Brivo Systems, LLC, 2020 U.S. App. LEIXS 16003 (4th Cir. May 19, 2020).
A review of the alleged facts and the result bear scrutiny, providing valuable lessons for those of us on either side in employment litigation. Remember, as we embark upon this story that the litigation lived and died at the motion to dismiss stage.
Bing (a great last name given the facts) applied for a job as a customer care representative with Brivo Systems. According to the complaint, which Bing filed pro se, he did not include his race on the self-identification form during the application process. He went through Brivo’s criminal background check process, which he passed. He met HR folks, who did know his race.
On the first day at Brivo, he met manager Charles Wheeler, during orientation. Wheeler, who then first learned that Bing was black, immediately went and did a Google search on him, Wheeler found a newspaper article referencing Bing as having given his roommate a loaded gun which was then used to injure another person when it was discharged in “Halloween celebratory gunfire.” Wheeler confronted Bing, who admitted he was the same person mentioned in the article. Wheeler fired him on the spot.
Bing sued, essentially claiming that Wheeler only did the Google search because he was black. Put otherwise, the “you’re fired because of this incident that we learned of” was just a pretext to fire him once the manager learned Bing was black, as it was not consistent with Brivo’s regular practices and Wheeler didn’t do it to new white employees. But Bing did not say it that precisely.
Brivo moved to dismiss the complaint, and the district court granted that motion – without prejudice, stating that Bing “proffered no facts allowing a plausible inference that his discharge was fueled by unlawful discrimination.” Typically, when this happens, a plaintiff will file an amended complaint to correct the noted deficiencies that led to dismissal. Bing did not do that. Instead, he appealed.
The Fourth Circuit affirmed. Judge Quattlebaum, joined by Judge Agee, found that Bing’s pro se complaint did not sufficiently allege discrimination to state a claim that could withstand a Rule 12(b)(6) motion. Judge Traxler dissented, finding that it did. (All three judges agreed on the initial question over whether the court had jurisdiction, since there was some uncertainty as to whether there was a final judgment.) Rather than draw reasonable inferences that race might have played a role in the firing, the court held that it would have to “speculate” to “fill in the gaps” as to Wheeler’s motivation for the search and to disregard the reason given to Bing for his termination.
So, what are the take-aways here?
First, plaintiffs (including pro se plaintiffs): you almost always get a chance at one “do over.” Bing had one here. He chose not to file an amended complaint to fix the problems the District Court found with his original complaint. This doesn’t mean that a plaintiff shouldn’t try to get it right the first time, of course, but dismissal without prejudice exists for a reason.
Second, employers: the access to information on the internet (whether searching by Google, Duckduckgo, or Bing – see what I did there?), is something that should NOT be done on an ad hoc basis by managers after the hiring decision is made. If you want to make an internet search a part of your hiring process (this is not any suggestion I think THAT is a good idea), then do it for everyone, and put every applicant on notice that their web presence will be scrutinized. But a one-off, like the allegations made against Wheeler here are almost certainly going to lead to trouble. And here, Brivo was just one sentence away from having its motion to dismiss denied.