A fired Uber driver’s class action suit that alleged his dismissal occurred because racial discrimination caused his low ratings on post-ride passenger surveys was dismissed by the Ninth Circuit Court of Appeals on June 24. The appellate court said the driver’s allegations were insufficient to support his claims because he failed to support them with adequate statistical analysis and proof.

Plaintiff Thomas Liu, who is of Asian descent, filed an appeal from his trial court loss due to his failure to state a claim that could earn relief. It was heard and dismissed by Presiding District Judge Vince Chhabria of the Northern District of California, which affirmed the earlier ruling.

Liu’s appeal to the Ninth Circuit came before a three-judge panel composed of Circuit Judges Daniel P. Collings, Danielle J. Forrest and Jennifer Sung in the form of a Memorandum that was not for publication. It explained that since Liu’s original complaint against Uber Technologies, Inc. (Uber) was dismissed at the pleading stage, the court “took the well-pleaded allegations as true.”

The opinion began with an explanation of how the ride-share company evaluates its drivers after rides are completed. The passengers are asked to rate their drivers on a one-to-five scale. It is company practice to fire drivers who earn scores under 4.6. Liu’s complaint said that since he speaks with a slight accent, “Uber’s star rating system…discriminates against non-white drivers” in violation of both Title VII of the Civil Rights Act of 1964 and California’s Fair Employment and Housing Act (FHA).

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 addresses Unlawful Employment Practices and prohibits the “discharge of any individual…because of such individual’s race, color, religious, sex, or national origin. FEHA, as stated in California Government Code § 12940, similarly prohibits employers from discharging employees for similar discriminatory reasons.

The Ninth Circuit Memorandum then explained the criteria used by Federal Rule of Civil Procedure 8 to allow Liu’s lawsuit to continue. It said plaintiff’s complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Thus, the question before the court was “whether, in light of the requirements of the substantive law invoked, the plaintiff has pleaded sufficient ‘factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’”

Under both Title VII and FEHA, Liu had to “plausibly allege” a “significant disparate impact on a protected class or group, specific employment practices or selection criteria at issue and a causal relationship between the challenged practices or criteria and the disparate impact.” Applying this test to Uber’s practices, the Ninth Circuit concluded that Liu “failed to plead sufficient facts to raise a plausible inference” that Uber’s use of the star system in dismissal decisions discriminated against non-white drivers.

The opinion dismissed Liu’s allegations about passengers who canceled their ride requests after seeing his picture or who treated him with hostility when they asked where he was from. These accusations, the Memo, said do “not support a plausible inference that any passenger discrimination in rating him was sufficiently pervasive to drive down his overall Uber rating.” Liu also submitted a variety of “social science literature” that confirmed racial prejudice could take place in termination decisions. However, the court said these “real-world concerns” were not adequately related to Liu’s situation and they “lack sufficient data concerning relevant actual conditions to provide a non-speculative basis for plausibly inferring that any such significant disparity is actually occurring with respect to Uber.”

Next, the Ninth Circuit Memorandum turned to Plaintiff’s attempt to support his allegations with a survey sent to 20,000 other Uber drivers, all of whom were clients of Liu’s labor law attorney. The survey results showed that 17.4% of white respondents, 24.6% of Asian respondents, 24.1% of Black respondents, 16.9% of Latinx respondents, and 24.9% of respondents who identified themselves as “Other” said they had been deactivated by Uber based on star ratings.

After reviewing these statistics, the opinion affirmed the district court’s ruling that Liu’s allegations were “insufficient to raise a plausible inference that there is a significant racial disparity in star-ratings-based terminations among Uber drivers.” The opinion noted that the survey “did not actually show that non-white drivers are terminated due to low star ratings at different rates than white drivers.” Specifically, the survey was faulted for not comparing the number of drivers of each race who were fired due to low star ratings compared with the total number of drivers of the same race who took the survey. In addition, the survey lacked information about the entire population of drivers and it did not disclose whether Uber terminates white drivers at different rates than drivers of other races.

“Consequently,” the opinion said, “the survey fails to provide any plausible basis for finding a disproportionately adverse effect on minorities.” It also found “fundamental defects” in findings because an “incorrect denominator” was used and because the survey language was confusing. The questions were poorly framed and the choice of “Latinx” led some respondents to say they were “Other,” because they considered themselves Hispanic or Latino.

Liu’s complaint failed in an additional way. Precedent requires that “A disparate-treatment plaintiff must establish that the defendant had a discriminatory intent or motive for taking a job-related action.” Liu did not provide any evidence that Uber intended to discriminate against non-white drivers when it was making termination decisions.

For all these deficiencies, the decision of the district court was confirmed.