Fourth Circuit Revives Black Tech’s Failure to Promote Claim Against Facebook

Bernadette Hunton
Bernadette Hunton
08/28/2020

A jury could find that Facebook denied promotion to a black facilities worker based on race, the Fourth Circuit concluded in Gary v. Facebook, et al. No. 18-01994 (4th Cir. 8/26/20).  In this case, Gary, a Facebook facilities technician, was denied promotion based on a committee performance review.  His less-experienced white colleague was recommended instead.

About a year later, Facebook fired one of the committee members, Hawkins, after an investigation confirmed that Hawkins had made several racist comments, including calling Gary and his black coworker lazy n-words and making racist remarks about another black employee’s banana allergy.  Gary was paid the raise that he would have received had he gotten the promotion and has since been promoted.

After learning about the racist comments, Gary sued Facebook for failure to promote based on race under 42 U.S.C. 1981.  The district court granted summary judgment to Facebook, concluding that Gary and his colleague, Randall, were not similarly-situated, and that Facebook’s failure to promote Gary was based on legitimate non-discriminatory reasons, including his lack of initiative and communication skills. The Fourth Circuit disagreed.

The core legal dispute centered around whether Gary and Randall were similarly-situated, an element Gary had to prove to establish a prima-facie case.  Facebook’s argument that the two employees were not comparable because Randall was a “better employee” was “misplaced” according to the Fourth Circuit.  That Gary and Randall were both entry-level techs, supervised by the same individual at the same facility, where they were considered for the same promotion, allowed for meaningful comparison.  If Randall were a better employee, the Fourth Circuit explained, that would be “the consequence of comparing Facebook’s treatment of Randall and Gary, not a reason to forego such a comparison.” 

As for Facebook’s proffered reasons for the non-promotion, evidence that the decision was made by a committee– and not Hawkins alone– was not enough to dismiss the case at summary judgment, the court stated.  “Even if Hawkins didn’t singlehandedly make the promotion decision, a reasonable jury could conclude that Hawkin’s racism is what caused the committee, which was comprised of Hawkins’s subordinates and high-level managers, not to promote Gary.”  In addition, evidence that Gary had more experience than Randall, and had in fact trained him, was enough to convince a reasonable jury that it was his race, not his communication skills, that was the basis for his non-promotion.

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