TBA Law Blog


Posted by: Christy Gibson on Jan 10, 2014

By Bruce E. Buchanan*

As Social Media use continues to grow, so does the number of federal court decisions involving Social Media and the workplace.[i]  This article covers three recent federal court decisions related to Facebook.

In Smizer v. Community Mennonite Early Learning Center (7th Cir. Oct. 25, 2013), the Court upheld an employer’s termination of an employee based on its honest belief that he had posted a disparaging remark on Facebook, creating workplace issues.

The Facebook post arose after a family dispute as to whether the Plaintiff’s sister should regain custody of her son, over the objections of the Plaintiff’s mother, who was the Director of the Center, where the Plaintiff worked. The Plaintiff sided with his sister in the custody battle.

After a state judge awarded custody of a child to the mother, the Plaintiff’s sister, a former employee sent an email to the Plaintiff, wherein she made profane disparaging comments, and made it appear this was a message from the Plaintiff.  The Director/mother sent an email to her boss asserting the Plaintiff had posted this profanity-laced message on Facebook.

Thereafter, the Director/mother and the Plaintiff’s grandmother, a Center volunteer, sent a memo to the Center’s Board of Directors - stating they did not feel safe in the Plaintiff’s presence and requested his discharge for creating a “hostile work environment.”  In this memo, the director detailed instances of the Plaintiff’s workplace misconduct, such as wearing “open-toed shoes”, which she had previously been willing to overlook.  The Center discharged the Plaintiff for “insubordination and unprofessional conduct” and the Plaintiff was told the “Facebook posting” caused his dismissal. 

The Plaintiff asserted his discharge was caused by his gender as he was the only male employee of the Center.  His only evidence of sex discrimination was that four women had worn open-toed shoes and that he had been accused of viewing pornography on a shared computer because “women don’t like porn.”

After the Plaintiff sued, the Center was unable to produce a screen shot of the Facebook post or any Facebook record of its existence.  Rather, the Center offered statements of three employees, who stated they viewed the post on the Plaintiff’s Facebook page, which posted the email.

The 7th Circuit held the Plaintiff failed to establish the alleged Facebook posting was a pretext for sex discrimination.  The Court found the Center reasonably believed he posted disparaging and profanity-laced comments on Facebook and this was a legitimate, non-discriminatory reason for terminating the Plaintiff’s employment.

The 11th Circuit Court of Appeals held, in Gresham v. City of Atlanta (Oct. 17, 2013), a law enforcement officer failed to establish she was not promoted due to a Facebook post criticizing another officer for unethical conduct.

Although the Plaintiff’s Facebook page was set to “private”, some “friend” saw the post and alerted the police department, who investigated the matter.  The alleged violation was for criticizing a fellow police officer though other means than through official channels.

The Court used the following four-part analysis to analyze the case - whether: (1) Plaintiff’s speech involved a matter of public concern; (2) Plaintiff’s interest in speaking outweighed the government’s legitimate interest in efficient public service; and (3) the speech played a substantial part in the government’s challenged employment decision. If Plaintiff establishes the foregoing, then she would prevail unless Defendants prove that (4) they would have made the same employment decision even in the absence of the protected speech. In conducting the balancing test under part 2 - Plaintiff’s interest in speaking vs. the government’s interest in efficient public service, the Court found the law is well-established that maintaining discipline and good working relationships amongst employees is a legitimate government interest.

The Plaintiff asserted the Department failed to provide any evidence that her Facebook post caused any disruption.  However, the Court found the government did not need to establish actual disruption, only “a reasonable possibility of adverse harm.”  The Department proved this plus it showed the Plaintiff violated the work rule in question.  Furthermore, the Plaintiff’s speech was not calculated to bring an issue of public concern to authority figures.  For all of those reasons, the Court of Appeals affirmed the lower court’s granting of summary judgment to the City of Atlanta and its police department.

Another issue arising in Social Media cases is whether Facebook posts are within the protection of the Stored Communications Act.[ii] The Court, in Ehling v. Monmouth-Ocean Hospital Service Corp. (D.N.J. Aug. 20, 2013), faced this issue when the Plaintiff, a paramedic, posted on her wall that paramedics in Washington D.C. should not have saved a “white supremacist”, who killed a guard at the Holocaust Museum. 

The Plaintiff’s Facebook page was private - for friends only but a co-worker gave the employer a copy of the post.  As a result of the post, the employer suspended the paramedic for “a deliberate disregard for patient safety.”

After the employee was discharged for other offences, she filed a lawsuit alleging a violation of the SCA.  SCA applies to: (1) electronic communications; (2) that were transmitted via an electronic communication service; (3) are in electronic storage; and (4) are not public.  SCA provides for damages for entities that violate the law.

The Court ruled the posts were covered under the SCA because they were supposed to be private.  However, the Court found the “authorized used exception” applied because (1) access to the communication was “authorized,” (2) “by a user of that service,” (3) “with respect to communication … intended for that user.” Specifically, the co-worker was a user and had authorized access to that Facebook post. Thus, the Court ruled against the employee. 

Clearly, these decisions demonstrate a number of interesting issues are arising out of Social Media cases in the workplace and one can only expect more to follow.

*Bruce E. Buchanan is an attorney at the Nashville Office of Siskind Susser, P.C., where he represents employers in employment/labor law matters and all aspects of immigration law, with a special emphasis on immigration compliance. He graduated from Vanderbilt School of Law. Mr. Buchanan is the editor of this publication. He may be reached at bbuchanan@visalaw.com or (615) 345-0266.

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[i] Previously, I have also discussed National Labor Relations Board decisions involving Social Media but there have not been any such recent decisions from the Board, only from Administrative Law Judges.