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Ashley Bush served as the head coach for the girls’ basketball team at Frederick High School. On February 5, 2020, several members of the varsity team decided to leave the team, alleging that Bush had been treating them abusively. Despite an investigation by the school, no evidence was found to substantiate these claims. On the same day, Bush held a meeting with her team to discuss the situation.

Shortly after this meeting, an audio recording surfaced on Facebook claiming to capture Bush making derogatory remarks towards white people during the February 5 meeting – specifically, “f*ck white people.”

While Bush acknowledged that the voice in the recording sounded like hers, she stated that she did not recall making such a statement. When questioned by the school, the players also acknowledged that the voice resembled Bush’s but were unwilling to confirm that it was indeed her speaking. Despite the lack of definitive evidence, the school administration determined that the voice in the recording belonged to Bush and subsequently terminated her employment as the head coach of the basketball team.

Bush sued her employer claiming race and gender discrimination that lead to her wrongful termination.

In Bush v. Frederick County Public Schools, No. 23-1127, 2024 WL 639255, at *1 (4th Cir. Feb. 15, 2024), the United States Court of Appeals for the Fourth Circuit assumed without deciding that Bush could meet her prima facie case of race and gender discrimination and skipped to the issue of whether Bush presented suffice evidence of pretext – that the stated reason for firing her, the recorded race based comment, was false or did not really motivate the employer.

Recently, our employment discrimination lawyers blogged about what pretext is and how to prove it. (See Employers Lies Are Called Pretext). Essentially, in the context of Title VII claims, pretext refers to a situation where an employer provides a false or misleading reason for an employment action, such as hiring, firing, or promoting, which is actually motivated by discrimination based on a protected characteristic like race, sex, disability, sexual orientation, or age; or to cover up retaliation against an employee for engaging in a protected activity. Employees can prove pretext by showing that the given reason is a lie or that it did not really motivate the adverse employment action.

Today, our wrongful termination lawyers are focusing on what does not count as pretext. Pretext cannot be based on honest mistakes by the employer. Pretext cannot be established by showing that the employment decision was unwise or that a better course of action is available. Courts will not substitute its business judgment for that of the employer.

So, keeping this in mind, the Fourth Circuit Court of Appeals rejected Bush’s argument that she should not have been fired because there was insufficient proof that it was her voice on the recording:

Bush does not contest that Defendant put forward a legitimate non-discriminatory and non-retaliatory reason for her termination (the “f*** white people” statement). So, her claim can survive summary judgment only if she can point to evidence that Defendant’s stated rationale was pretext for discrimination or retaliation. … Bush has not met that burden here. Instead, she raises arguments only as to whether it is in fact her voice on the recording. But even assuming there is a genuine dispute as to whether Bush is the person whose voice is captured on the recording, that is immaterial. “[W]hen an employer gives a legitimate, nondiscriminatory reason for terminating an employee, ‘it is not our province to decide whether the reason was wise, fair, or even correct,’ so long as it was the genuine reason for the employment decision.” Id. at 794 (quoting Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000)). Bush has not pointed to any evidence from which a jury could conclude that the decisionmaker, Principal Franceschina, did not genuinely believe that it was her voice on the recording when he decided to terminate her. To the contrary, Bush concedes that the voice on the recording sounds like hers.

Id. at *4.

Certainly, it is hard to argue that firing an employee for make race-based aggressive statements that became public and embarrassed the school is not a legitimate reason for terminating an employee.

Best Race Discrimination Lawyer Blogs on Point:

What law firm should I choose if I was wrongfully fired today?

A fired employee should choose Spitz, The Employee’s Law Firm for several reasons. Spitz focuses exclusively on employee rights and workplace discrimination cases, potentially increasing the chances of a successful outcome for the fired employee. With a specialization in employment law, Spitz attorneys are well-versed in the complexities of Title VII claims and other discrimination cases, providing effective legal representation. Additionally, Spitz has a track record of successful cases and positive outcomes for employees in similar situations, instilling confidence in the fired employee that their case will be handled effectively. Moreover, Spitz has access to resources such as expert witnesses, investigators, and support staff, strengthening the employee’s case and providing comprehensive legal representation. Although one of the largest dedicated employee’s rights firms in the country, Spitz offers more personalized attention to each client, creating a stronger attorney-client relationship and ensuring that the fired employee’s concerns are addressed promptly and effectively.

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