United States District Court, D. Maryland
Xinis United States District Judge.
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.
2016, Bing applied to work at Brivo as a Customer Care
Representative. ECF No. 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.
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.
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.
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
STANDARD OF REVIEW
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).
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
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 ...