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Bing v. Brivo Systems, LLC

United States District Court, D. Maryland

January 22, 2019

ROBEL BING, Plaintiff,
v.
BRIVO SYSTEMS, LLC Defendant.

          MEMORANDUM OPINION

          Paula Xinis United States District Judge.

         Pending in this employment discrimination case is Defendant Brivo Systems, LLC's (“Brivo”) Motion to Dismiss. ECF No. 10. Plaintiff Robel Bing has responded, and no hearing is necessary. See D. Md. Loc. R. 105.6. For the reasons stated below, Defendant's Motion is GRANTED.

         I. BACKGROUND

         In 2016, Bing applied to work at Brivo as a Customer Care Representative. ECF No. 1.[1]Bing submitted an employment application, which, among other information, inquired about Bing's prior criminal convictions. Bing responded, “Misdemeanor 2003 Misdemeanor 2015.” ECF No. 10-4 at 1. Brivo employees Candice Scott, who is an African-American woman, and Baudel Reyes interviewed Bing in person, and thus obtained “firsthand knowledge of [Plaintiff's] ethnicity.” ECF No. 1-1 at 2 n.2.

         Brivo offered Bing the position, which he accepted under the terms of Brivo's written job offer. ECF No. 10-3, 10-5. The employment offer conditioned Bing's employment on Brivo verifying that “[t]he information provided to the Company to evaluate [Plaintiff's] application was complete and true . . . [and Plaintiff] agree[ing] to and successfully pass[ing] a background check . . . .” Id. Bing accepted this offer and the parties mutually determined that Bing would begin work at Brivo on October 17, 2016. Bing also executed written authorization allowing Brivo to conduct a background check using Justifacts Credential Verification, Inc. (“Justifacts”). On October 6, 2016, Justifacts had completed its written report on Bing, after the offer letter was sent but before Bing resigned from his previous employment.

         On October 17, Bing reported to Brivo for his first day. As part of his orientation, he met with Bing employees, Charles Wheeler and Richard Crowder. During this initial meeting, Wheeler confronted Bing about information Wheeler had learned by googling Bing. Specifically, Wheeler questioned Bing in a hostile and aggressive manner about a Baltimore Sun article that referenced Bing as having given his roommate a loaded gun, which was then used in “Halloween celebratory gunfire, ” injuring another person. ECF No. 1-1 at 2; ECF No. 10-8 at 1. No. formal charges were lodged against Bing. ECF No. 1-1 at 2. After Bing admitted that he was the same Robel Bing referenced in the article, Wheeler “terminated [Bing] on the spot.” Id. Bing further avers that despite his having notified Brivo that he quit his prior job to take the Customer Care position, and complied in every way with the pre-employment requirements, Bing was given no forewarning that termination may be a possibility and no opportunity to address the nature of the allegations in the Sun article.

         Understandably upset, Bing filed suit in this Court, alleging race and sex discrimination and harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), as well as violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (“FCRA”). Brivo now moves to dismiss all counts. For the following reasons, the motion must be granted.

         II. STANDARD OF REVIEW

         A motion to dismiss brought pursuant to Rule 12(b)(6) tests the sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (citation and internal quotation marks omitted). A complaint need only satisfy the standard of Rule 8(a), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “Rule 8(a)(2) still requires a ‘showing,' rather than a blanket assertion, of entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007). That showing must consist of more than “a formulaic recitation of the elements of a cause of action” or “naked assertion[s] devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted) (quoting Twombly, 550 U.S. at 555).

         In ruling on a motion to dismiss, a plaintiff's well-pleaded allegations are accepted as true and viewed in the light most favorable to him. Twombly, 550 U.S. at 555. The Court may also consider documents attached to the motion to dismiss when “integral to and explicitly relied on in the complaint, and when the [opposing parties] do not challenge the document[s'] authenticity.” Zak v. Chelsea Therapeutics, Int'l, Ltd., 780 F.3d 597, 606-07 (4th Cir. 2015) (quoting Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004)) (internal quotation marks omitted). However, “[f]actual allegations must be enough to raise a right to relief above a speculative level.” Twombly, 550 U.S. at 555. “[C]onclusory statements or a ‘formulaic recitation of the elements of a cause of action will not [suffice].'” EEOC v. Performance Food Grp., Inc., 16 F.Supp.3d 584, 588 (D. Md. 2014) (quoting Twombly, 550 U.S. at 555). “‘[N]aked assertions of wrongdoing necessitate some ‘factual enhancement' within the complaint to cross ‘the line between possibility and plausibility of entitlement to relief.'” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 557). Although pro se pleadings are construed liberally to allow for the development of a potentially meritorious case, Hughes v. Rowe, 449 U.S. 5, 9 (1980), courts cannot ignore a clear failure to allege facts setting forth a cognizable claim. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate.”).

         III. DISCUSSION

         A. Title VII

         i. Discriminatory Discharge

         Bing avers that he was discharged on his first day of work because of his race and gender. Because the Complaint allegations do not aver any direct evidence of discrimination, Bing's discrimination claims are subject to the burden-shifting framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Hawkins v. PepsiCo, Inc., 203 F.3d 274, 278 (4th Cir. 2000); Riddick v. MAIC, Inc., 445 Fed.Appx. 686, 689 (4th Cir. 2011). To sustain a prima facie case of discrimination, a plaintiff must demonstrate: (1) membership in a protected group, (2) discharge, (3) while otherwise fulfilling Defendants' legitimate expectations at the time of his discharge, and (4) under circumstances that raise a reasonable inference of unlawful discrimination. See King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir. 2003). If Bing establishes a prima facie case, the burden shifts to Brivo to offer a legitimate, non-discriminatory reason for his discharge. S ...


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