On Monday, February 26th, the U.S. Supreme Court will hear oral arguments in Janus v. AFSCME, Council 31, a case that could have a substantial impact on Delaware’s public-sector employers and employees. The Court is being asked to decide whether a public-sector employee who refuses to join a union can be required to pay so-called fair share fees to the union.
Earlier this week, I wrote about the issue of threats made via Facebook constitute constitutionally protected speech. Today’s post also is about threats made via Facebook but in the context of the workplace. The case, decided by the Court of Appeals of Ohio, is timed perfectly for my road trip tomorrow to Ohio.
In Ames v. Ohio Department of Rehabilitation & Correction, an employee, a Senior Parole Officer, was sent for an independent medical exam after she posted a Facebook comment that her employer believed to be a threat. The comment was in reference to shooting parolees. The employee claimed that the comment was a joke. The psychologist who conducted the exam cleared her to return to work, finding no evidence of depression, anxiety, or mood disturbance.
A few months later, the employer received an “anonymous” complaint that the employee was using her state-issued computer for non-work purposes. It turned out that the complaint actually was made by the new partner of the employee’s ex-girlfriend. The new partner, of course, was a co-worker. There was an investigation and the employee was issued a written reprimand.
A few months later, the co-worker (partner of employee’s ex), files an incident report alleging that the employee had sent a threatening text message to the co-worker and the ex. A few weeks later, the employee filed an incident report against the co-worker, alleging that the co-worker had used a state computer for, you guessed it, non-work-related purposes. An investigation was begun.
Days later, the co-worker notified the employer that the ex had filed for an order of protection against the employee. In the motion, the ex claimed that, two years earlier, the employee had held a gun to her head. The employee denied that any such incident had occurred.
In any event, the employer sent the employee off for a second IME, this time to discover whether she had a “propensity for violence.” Now, I’m no psychologist, but I’m pretty sure that there’s no widely accepted methodology for determining whether a person has a “propensity for violence.” Apparently, the psychologist who conducted the IME had similar doubts and gave an inconclusive report, failing to address whether the employee had any such “propensity.” So the employer sent her off for a third IME, this time specifically asking the examiner to make such a conclusion.
The examiner declined to make such a finding, explaining that there is (as I believe I may have mentioned) no reliable way to make such a determination. Nevertheless, a few months later, the employee posted a threatening message on Yahoo! Messenger to the ex. She denied sending the message but resisted the employer’s attempts to determine if the account had been hacked. As a result, she was terminated for the threat and for failing to cooperate in an investigation.
The employee sued under the disabilities laws, claiming she’d really been terminated because the employer perceived her to be disabled. The employee lost, appealed, and lost again.
So, what are the lessons to be learned here? Oh, my, there are so many. Too many to discuss in full so I’ll give you the redux in bullet points:
1. Love triangles in the workplace usually end badly.
2. Threats of violence made via Facebook can serve as grounds for discipline.
3. Failure to cooperate in an investigation constitutes grounds for discipline.
Ames v. Ohio Dep’t of Rehab. & Correction, 2014-Ohio-4774 (Oct. 28, 2014).
The intersection of Facebook use and Free Speech is complicated. Complicated enough, in fact, that the U.S. Supreme Court will weigh in on the subject when it decides a case it is scheduled to hear argument in today, Elonis v. United States.
The basic legal principle at issue is what constitutes a “true threat.” It is a crime to use the phone or Internet to make a “threat to injure” another person. And “true threats” are not protected as speech under the First Amendment. So, “true threats” to injure another made via Facebook can be punishable as crimes. Otherwise, the speech would be protected by the constitution and could not be considered criminal.
But what’s a “true threat?” Is that question to be answered by the “reasonable person” who would be subject to the threat? Or does the speaker have to have intended his words as a threat to constitute a criminal act?
In Elonis, the defendant was arrested after making violent threats directed to his ex-wife (and others). At trial, he testified that he did not intend to frighten anyone and compared his posts to rap lyrics. The jury didn’t buy it and found that a reasonable person would have viewed the posts as “true threats.” So now the Supreme Court will decide what the “true test” for “true threats” should be.
The legal issue may appear easier than it is. The facts of the case may make the speech and speaker less sympathetic. For example, his Facebook comments included the following about his wife, after she left with their two children:
If I only knew then what I know now, I would have smothered [you] with a pillow, dumped your body in the back seat, dropped you off in Toad Creek and made it look like rape and murder.
He later posted, “I’m not gonna rest until your body is a mess, soaked in blood and dying from all the little cuts.” And, when a court issued the wife a protective order, Elonis posted whether it was “thick enough to stop a bullet.” He also threatened to kill an FBI agent and to slaughter a class of kindergarten students, reports the LA Times.
During the 2007-2008 school year, Ms. Kimble was employed as a cook and cheerleading coach at a high school. In December 2007, she took the cheerleaders on an overnight Christmas party held in a cabin located outside the county. The trip was not approved as was required by district policy. When administration learned about the trip, Ms. Kimble was instructed that all future out-of-county trips must have prior approval.
The following year, Ms. Kimble worked as a cook at an elementary school and as the cheerleading coach at the same high school at which she had coached the prior year. In December 2008, Ms. Kimble took the cheerleaders to the same cabin for another overnight Christmas party. Ms. Kimble and a parent went as “chaperones” but Ms. Kimble did not seek or obtain approval for the trip.
During the party, Ms. Kimble was photographed in the hot tub, surrounded by several female cheerleaders. Although Ms. Kimble was clothed, most of the girls were topless. All of the girls were minors.
Ms. Kimble posted several photos of the party on her MySpace page, although the girls were fully clothed in all of the pictures that she posted. To one of the photos, in which the girls were wearing Santa Claus hats, Ms. Kimble added the caption:
my girls acting like their self[sic] . . . hoes.
The photos were discovered and reported to the school and Ms. Kimble was suspended without pay. After a hearing, she was terminated from both her position as cook and as coach based on the determination that she had committed insubordination, immoral conduct, and sexual harassment.
Ms. Kimble challenged the termination. An administrative law judge overturned the board’s decision to terminate her from her position as cook. The board appealed and the circuit court affirmed the finding of the ALJ. The board appealed to the state’s highest court, which reversed, siding with the board and finding the termination lawful.
As the grounds for its opinion, the state’s Supreme Court held that Ms. Kimble had been insubordinate by ignoring the directive and policy to first obtain permission from the school prior to taking students on any out-of-county trip. That was the easy part.
The more difficult part (at least for the ALJ and the lower court), was the finding that Ms. Kimble had, indeed, engaged in immoral conduct by:
sitting in a hot tub surrounded, literally, by several topless female students.
The court also found that calling your minor students “hoes” also is relevant to the immorality question.
Finally, the court rejected Ms. Kimble’s argument that she could not be disciplined for conduct that occurred off duty. This argument is a favorite among plaintiff-employees everywhere but always a loser. The conduct was within the scope of Ms. Kimble’s employment–she, as cheerleading coach, took cheerleaders on an authorized trip outside the county, was photographed with several of them topless, and then called them “hoes” on her MySpace page.
The fact that she was not on duty at the time of these acts does not serve as a defense. This case serves as yet another example of how off-duty conduct can (and should) serve as a basis for discipline and/or termination. When an employee engages in conduct off-duty that undermines or interferes with his or her ability to effectively carry out his or her job duties, discipline is appropriate . . . and lawful. The same rule applies when the conduct is carried out in cyberspace, particularly on social-media sites.
On the most basic level, it’s difficult to imagine that the parents of the female students would appreciate their daughters being called “hoes” by anyone but especially not by their cheerleading coach.
Kanawha County Bd. of Ed. v. Kimble, No. 13-0810, 2014 W. Va. LEXIS 584 (W. Va. May 30, 2014).
The plaintiff is a Michigan lawyer. She was placed on the assignment list of the County Probate Court and, as a result, received several case assignments. She made a comment on Facebook about what she believed to be inefficiency at the Clerk’s Office at the Court in a particular case she was handling. She tagged two people in the post, mistakenly identifying them as employees at the Clerk’s Office.
One of the two employees brought the post to the attention of the Court administrator. The administrator never saw the actual post. Two days later, the Court administrator notified the plaintiff by letter that she had been removed from the assignment list because of her comment on Facebook.
The plaintiff attempted to get back on the list multiple times but was unsuccessful and filed suit. The suit alleges several constitutional claims, all but one of which were dismissed by the court. The claim that survived is a claim for unlawful retaliation in violation of the First Amendment-i.e., a free-speech claim.
The court declined to dismiss the free-speech claim for several reasons. First, it held that the plaintiff was speaking as a private citizen-not as an employee-when she made the post. I tend not to agree but, well, we can’t all be right all of the time.
Second, the court held that she was speaking on a matter of public concern. This finding was based, in large part, on the fact that no one could produce a copy of the actual post and, therefore, the court was left to decide the nature of the speech without ever having seen the speech. Yikes.
Why, you ask, did no one produce the post? According to the opinion, because the plaintiff deleted it. Hmmm. That doesn’t seem like exactly the right outcome, does it? Because the plaintiff destroyed evidence, she gets the benefit of the doubt?
Maybe not. But it does teach an important lesson to employers. If you are going to discipline or terminate an employee due to something the employee posted on Facebook-get and keep a copy of the actual post if at all possible. Taking someone’s word for what the post says doesn’t mean that the termination is unlawful but it does likely mean that you’re going to have to work a lot harder to prove your case.
Butler v. Edwards-Brown, No. 13-13738, 2014 U.s. Dist. LEXIS 62032 (E.D. Mich. May 5, 2014).
Public-sector employees have First Amendment rights. But those rights are not without limits. Employers, too, have rights-in particular, the right to operate an effective and efficient workplace. Law-enforcement agencies get even more protection because the law recognizes the potential for harm to the department’s reputation and the public’s trust.
And how do all of these rights play out in the context of social media? Usually in the employer’s favor. As yet another court opinion shows, police officers have very little latitude when it comes to posting controversial views on their personal Facebook pages.
The plaintiff in this case, Deputy Chief Rex Duke, worked for the Clayton State University Police Department for eight years with no performance problems. Shortly after the presidential election in November 2012, the plaintiff posted a picture of a confederate flag to his Facebook page with the comment, “It’s time for the second revolution.”
His Facebook profile and posts were accessible only to his Facebook friends. His profile did not indicate that he was employed by the Police Department or even that he was a police officer. And he took the post down within an hour after posting it.
But that hour was long enough for one of his “friends” to send a screenshot of the post to the local TV station. A story ran that evening on the local news about the post and the plaintiff’s position as Deputy Chief.
The Police Department received anonymous complaints about Plaintiff, prompting an investigation. Following he investigation, the plaintiff was demoted in rank and duties and his pay was cut. The plaintiff sued the Police Department, alleging First Amendment retaliation.
The court upheld the demotion, finding no unlawful imposition by the employer on the plaintiff’s right to free speech. The basis for the court’s opinion was the potential disruption and/or actual disruption caused by the plaintiff’s posts. In most circuits, including the 11th Circuit, potential disruption can be sufficient justification for an employer’s interference with an employee’s right to free speech. Here, the court explained, there was not only potential for disruption caused by the plaintiff’s post but there was actual disruption, as well, as evidenced by the complaints the Department received.
Are these consequences harsh? Most definitely. Remember, the post was not publicly accessible and was up only for an hour. But that doesn’t mean that the consequences were unlawful.
Duke v. Hamil, No. 1:13-cv-01663-RWS, 2014 U.S. Dist. LEXIS 13388 (N.D Ga. Feb. 4, 2014).
Public-sector employers can add yet another “W” in the “Win” column on the Facebook-firing scorecard. The victory comes by way of a federal court in Mississippi where, earlier today, a judge granted summary judgment to the City of Greenville in a First Amendment claim brought by a former police officer, Susan Graziosi.
Graziosi was employed by the Greenville Police Department for 26 years at the time she posted a series of comments on her Facebook page and the Facebook page of the then-mayor, complaining that the Chief of Police had not sent police-officer representatives to the funeral of an officer killed in the line of duty.
The comments weren’t outrageous, frankly. No profanity, for example. They were, however, decisively negative about the Chief’s leadership of the Department.
Upon learning of the comments, the Chief spoke to the City Attorney and expressed concern about his ability to lead the Department in light of Graziosi’s posts. Her employment was subsequently terminated for her violation of several Department policies, including Supporting Fellow Employees, Insubordination, and Discipline & Accountability.
Graziosi appealed to the City Council but the termination decision was upheld and she filed a First Amendment retaliation claim in federal court. Regular readers of this blog are likely more familiar than they’d like to be with the applicable test for a First-Amendment claim. But, hey, it’s a classic, so bear with me while I go through it again.
In order for a public-sector employee to state a claim under the First Amendment in a “Facebook-firing” case, the court must determine that the speech at issue is entitled to constitutional protection and that the employee’s free-speech interests outweigh the employer’s interest in maintaining an efficient and effective workplace. A review of any of the cases discussed in my previous posts (see the links, below), shows that the analysis usually comes out in the employer’s favor. This is especially so in police and other paramilitary institutions because the law recognizes the need to maintain discipline and good working relationships amongst employees.
And that is precisely what the court determined in this case, too. The court held that Graziosi’s venting on Facebook did not enjoy First Amendment protection. Moreover, the Chief’s interest in maintaining his authority and preserving close working relationships outweighed any constitutional protection Graziosi’s speech may have had. Thus, the court concluded, Graziosi’s termination was entirely lawful.
Another win for employers in the workplace battle involving social media.
Graziosi v. City of Greenville, No. 4:12-cv-68-MPM-DAS, 2013 U.S. Dist. LEXIS 172581 (N.D. Miss. Dec. 3, 2013).
Government Employers Can (and Should) Have a Social Media Policy, Part 1, Part 2, Part 3 (an in-depth discussion of the First Amendment protections for public-sector employees’ speech, including speech made via Facebook).
And, if you haven’t yet cast your vote for the Delaware Employment Law Blog in the Labor & Employment category in this year’s ABA Journal Top 100 Blawgs, there’s still time! Voting closes next Friday, December 20, though, so don’t delay. And thank you!