Labor & Employment Law Daily Black employee fired on the spot at employee orientation failed to state bias claim
Thursday, May 21, 2020

Black employee fired on the spot at employee orientation failed to state bias claim

By Lisa Milam, J.D.

A company official, seeing the employee for the first time, decided to do a Google search on him. But the pro se plaintiff did not allege that new white employees were not subjected to this added scrutiny.

An African-American employee who was hired but then promptly fired within an hour of starting work was properly denied the right to proceed on his Title VII race discrimination claim, a Fourth Circuit panel held in a divided opinion. He had passed a background check before showing up for new employee orientation, but the company official, upon seeing him for the first time, opted to conduct a Google search, which uncovered a decade-old newspaper article implicating him in a shooting incident. But the pro se plaintiff did not plausibly allege that the added layer of scrutiny was the result of his race, or that the discharge itself was discriminatory. Judge Traxler, who authored part of the majority decision addressing a jurisdictional issue, dissented from that portion of the decision addressing the substantive merits (Bing v. Brivo Systems, LLC, May 19, 2020, Traxler, W., Quattlebaum, A.).

When he applied for a customer service job with the defendant company, he disclosed his criminal history. He was interviewed in person by two company officials and received an job offer the next day, subject to his passing a background check (which he did). He had not identified his race on his job application, but his race was known to the officials who interviewed and hired him.

The employee came for new employee orientation and was met by the company’s white “security architect,” who had played no role in his hire. Within an hour of starting orientation, this official approached the employee and confronted him about a decade-old newspaper article he had found while running a Google search on the employee. The article reported the employee’s “tangential involvement” in a shooting, for which he was never criminally charged. (He had loaned his legally owned handgun to a friend, who shot it in the air in a Halloween celebration at which the employee was not present; one of the shots hit and injured someone.) The security official berated him, declared him unfit for employment, fired him on the spot, and escorted him out of the building.

Discrimination suit. The employee sued for wrongful termination and harassment. He argued that the Google search was outside the company’s routine hiring practice and that the only reason the company official had initiated a Google search on him that day was because of his “(possibly unexpected) physical appearance as an African-American male.” The search, he added, “serve[d] as [a] means for discrimination of protected groups, by allowing personal and perhaps implicit biases to explicitly permeate the work environment.” But the district court disposed of his pro se complaint, finding he failed to raise a plausible inference of discrimination.

Jurisdictional issue. The district court’s memorandum opinion stated that the employee’s complaint was dismissed without prejudice. The separate written order, though, did not specify whether the dismissal was with or without prejudice, leading to confusion over whether the order was final. An order of dismissal without prejudice is considered final or nonfinal based on whether the litigation is ended on the merits, leaving “nothing for the court to do but execute the judgment.” This can be a thorny matter to resolve. Whether there is a “speculative possibility of a new lawsuit” is not the determinant.

Here, the district court concluded the factual allegations were insufficient to establish liability, and made no indication that repleading could correct this deficiency. Granted, the plaintiff could have added helpful facts (perhaps there were new white employees attending the same orientation, who were not subjected to a Google search that day, for example), but “we should not treat a without-prejudice dismissal as unappealable simply because we can imagine facts that might be helpful to the plaintiff,” the appeals court said. Despite the ambiguity, the Fourth Circuit concluded that the dismissal was a final order. Adding further heft to this conclusion was the fact that the court had directed the clerk of court to close the case. (The employer had argued to no avail that this action by the court was irrelevant.).

In arguing the case was not appealable, the employer also placed its hopes on a Fourth Circuit panel decision in Goode v. Central Virginia Legal Aid Society, Inc., which set a bright-line rule that dismissals without prejudice are not appealable if they are premised on the failure to plead sufficient facts in the complaint. But this 2015 decision was in conflict with the circuit’s Domino Sugar rule, which calls for a case-by-case inquiry into the matter. This framework was set forth in Domino Sugar Corp. v. Sugar Workers Local Union; a 1993 decision that preceded Goode and thus controlled, the court said. And, under Domino Sugar and other relevant precedent, the district court’s order was final and appealable, and the Fourth Circuit had jurisdiction to consider the employee’s appeal.

Insufficient pleadings. Judge Quattlebaum took up the substantive merits, writing for the majority that the facts as pled did not plausibly state a claim of race discrimination. He did not assert that he was terminated because of his race; rather, he specifically alleged a non-racial reason: the newspaper article about the shooting incident involving his gun—which the company official said was disqualifying. The decision to fire him on the spot “may have been hasty or even unfair, but it was not racially motivated,” as the employee’s own complaint allegations confirm. The employee merely speculated that the official chose to conduct the fateful Google search because he was African-American; he did not back up his speculation with assertions that the company only performed Google searches on African-American employees, that the official at orientation did not search white employees, or that the official stated his search was racially motivated, or did anything else to suggest as much.

In his complaint, the employee “question[s] whether or not Brivo can provide historical documentation to replicate my hiring experience, or at the very least, demonstrate that they have a common hiring practice of conducting ancillary ‘Google searches’ of employees’ names on the first day of employment with the company.” However, being unable to come up with an alternate explanation, and thus supposing the action is racially motivated, “does not amount to pleading actual facts to support a claim of racial discrimination,” the panel majority said. Even liberally construing the employee’s pro se complaint, the appeals court found that he failed to plead sufficient facts to plausibly claim that his discharge, or the Google search that prompted it, was motivated by race,

Dissent on the merits. Judge Traxler split with the majority in its substantive holding that the lower court had properly dismissed the employee’s Title VII claims. In his view, the facts alleged in the complaint demonstrate “a confusing about-face” on the company’s part. Company officials went from extending him an offer and eagerly asking him to start as soon as possible, to deciding upon meeting the employee—who had cleared his background check—that further investigation was required, and firing him without giving him a chance to explain what had been unveiled. Presumably, the company’s “security architect” would be privy to the results of the employee’s background check, Traxler noted, and if this inquiry were not enough, would have had ample opportunity to conduct further inquiry before new employees showed up for their first day of work. Judge Traxler supposed that the only new piece of information gleaned by the company official when the employee showed up for orientation was the fact that he was African American. On these facts, and the reasonable inferences to be drawn from them, the dissent would find the employee had been subjected to “an additional layer of background investigation” on account of his race.

Said Traxler, “it is reasonable to assume that employers will conduct all necessary background checks before allowing new employees to start work.” But here, the official chose to conduct further investigation only upon seeing that the new employee was black, and then fired him without even affording him a chance to explain the decade-old incident. “In my view, these facts make Bing’s claim of racial discrimination plausible.”

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