Please ensure Javascript is enabled for purposes of website accessibility

4th Circuit: Pretext for bias must be pleaded not presumed

A fired customer service agent’s discrimination lawsuit against a Bethesda high-tech security products company might have been headed to trial if the black employee had sufficiently alleged that a supervisor’s belated Google search of a past gun incident was a mere cover story for his racially motivated termination.

Instead, a divided federal appeals court ruled this week that Robel Bing’s claim against Brivo Systems LLC was properly dismissed because his complaint stated he was fired after the online search but did not clearly allege that the search was a mere excuse, or pretext, for the race-based firing.

Claims of pretext must be presented and not presumed, the 4th U.S. Circuit Court of Appeals stated in its published 2-1 decision.

Brivo has denied the allegation of race discrimination.

According to his complaint, Bing was offered the job the day after he interviewed with Brivo in September 2016. He accepted the offer and, after passing a background check, began work on Oct. 17, 2016.

But Bing was fired that day after a supervisor – who was not at the interview and had not seen Bing before he started – performed the Google search that revealed a 10-year-old Baltimore Sun article.

The news story reported that on Halloween 2006, Bing had loaned his lawfully owned handgun to a friend who celebrated the holiday by firing shots in the air, one of which injured a bystander. Bing was never charged.

The supervisor, according to Bing’s complaint, berated him for the incident, called him unfit for Brivo, fired him and escorted him out of the building.

Bing, representing himself, sued the company in U.S. District Court in Greenbelt, claiming his termination violated Title VII of the 1964 Civil Rights Act, which prohibits job discrimination on the basis of race. Bing stated that the supervisor, who was white, conducted the Google search and fired him shortly after seeing he was black.

But U.S. District Judge Paula Xinis dismissed the lawsuit and the 4th Circuit upheld the dismissal by the slimmest of majorities.

“The facts Bing pled about his termination cannot be construed to plausibly state a claim that he was terminated because of his race,” Judge A. Marvin Quattlebaum Jr. wrote for the majority. “In fact, Bing specifically alleged a non-racial reason for the termination.”

Bing said the supervisor “terminated him because of the information from a newspaper article about the shooting incident involving Bing’s gun,” added Quattlebaum, joined by Judge G. Steven Agee. “According to Bing, (the supervisor) said his involvement in that shooting disqualified him from continuing to work at Brivo. In light of Brivo’s recent decision to hire Bing, (the supervisor’s) termination decision may have been hasty or even unfair, but it was not racially motivated according to Bing’s own allegations.”

But Senior Judge William B. Traxler Jr. said in dissent that a fair reading of Bing’s complaint sufficient alleges the supervisor’s discovery of the news article was a pretext for a racially discriminatory firing.

Traxler noted that Brivo had already performed a background check on Bing – which presumably uncovered the news article — and chose to hire him. Bing’s complaint, which he filed without an attorney, also raised the question of whether Brivo’s non-black employees are subjected to the type of post-employment background check that he was, Traxler added.

“Bing’s pro se complaint thus contains sufficient information to support the allegation that Bing was subject to the additional level of background investigation because of his race,” Traxler wrote.

“Bing was qualified for the job at Brivo and he successfully passed the required background check,” Traxler added. “From the facts alleged in the complaint, the only thing that changed after Bing was hired and began work was (the supervisor’s) knowledge of his race. Those facts take us beyond speculation and make it plausible that (the supervisor’s) actions were motivated by race.”

Bing was represented on appeal by the Public Justice Center in Baltimore. The Williams Mullen law firm in Raleigh, North Carolina, represented Brivo.

The 4th Circuit rendered its decision in Robel Bing v. Brivo Systems LLC, No. 19-1220.


To purchase a reprint of this article, contact reprints@thedailyrecord.com.