Manager's Drunk Facebook Post Leads to Retaliation Claim

Posted by Molly DiBiancaOn February 18, 2013In: Retaliation, Social Media in the Workplace

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Readers may recall the case, Stewart v. CUS Nashville, LLC, which is one of the few opinions on the discoverability of a party's social-media account. There were at least a couple of interesting issues in that decision but the most interesting part may be that the defendant is the entity that owns and operates Coyote Ugly Saloons. That's right--the one from the movie, where hot bartenders dance on the bar.

The case was initiated by two of those (presumably hot) bartenders, Misty Blu Stewart and Samantha Thomas. They originally brought claims under the FLSA, alleging an unlawful tip-pooling policy. Those claims are quite interesting--so much so that I'm going to write a separate post about them later in the week. So stay tuned for the FLSA angle.

In the meantime, I have to write about the retaliation claims that the named plaintiffs added to their complaint.

The Allegations
First, Ms. Misty Blue Stewart (yes, really). Ms. Stewart worked at the Coyote Ugly saloon in Nashville until she was fired for giving away free drinks (a/k/a stealing), in December 2009.
Ms. Stewart claims that, one month after she initiated her FLSA claim in April 2011, the founder and president of the franchise, Liliana Lovell, wrote a post on her blog, which is hosted on the Coyote Ugly website about the lawsuit: "This particular case will end up pissing me off[,] cause it is coming from someone we terminated for theft."

[Side Note: The rest of the post is pretty hilarious. You can read it on the Technology & Marketing Blog, where Venkat Balasubramani wrote about the case.]

Ms. Stewart had already found a new job, so she had no economic damages. Instead, she claimed that was "humiliated and embarrassed by the blog entry."

Second, Ms. Stone. Stone worked at the saloon in Oklahoma City. Her retaliation claim was based on two comments made by the Director of Operations, Mr. Huckaby. Huckaby was in town for a party that was being held at the saloon and, like all good Directors of Operations tend to do, apparently found himself two sheets to the wind before the night was over.

While under the influence, Huckaby posted on his Facebook page, "Dear God, please don't let me kill the girl that is suing me . . . that is all. . ." Stone, who was (of course), Facebook friends with Huckaby, saw the post about an hour later. The post was gone by the next day. Huckaby does not remember making the post or removing it.

The second comment occurred the next night. Ms. Stone testified that Huckaby learned that a customer had fallen down the stairs in the saloon and had threatened to sue. In response, Huckaby yelled out, "Why does everyone sue? I'm tired of all these bi***es taking their issues out on our company. They're f***ing idiots."

Ms. Stone testified that, although Huckaby was looking at the saloon manager, Amber Almond (yes, really, again), he sort of looked towards Ms. Stone as he yelled. Stone quit the next day and alleged constructive discharge. Huckaby does not remember making the statement.

The Decision

I'll start with my conclusions because, heaven knows, I hate to bury the lead. I think the court got this one wrong. As in wrong. So, there, I said it. I think this was a bad decision. You can decide for yourself.

With respect to Misty Blu, the court found that there was sufficient evidence of retaliation to survive the employer's motion for summary judgment. The employer argued that there was no evidence of an adverse employment action--a necessary component of a retaliation claim (i.e., an adverse action must be taken because of protected activity). The court disagreed and found that the comment in the founder's blog post about being fired for theft was, if false, enough to constitute an adverse action.

Here's the main problem I have with that decision--the employee had not been an employee for about 16 months at the time of the blog post. Not to mention that the employee was not referenced by name. And not to mention that there was no evidence that the employee hadn't been terminated for theft. The court seems to confuse a statement that the employee committed theft with a statement that she was fired for theft. They're not the same thing, are they?

Okay, moving on to Ms. Stewart. The court held that Stewart's claim of constructive discharge also could survive summary judgment. The sum total of the evidence that Stewart presented in support of this claim was as follows, assuming everything in her favor:

1. A manager from Corporate made a snarky comment--without naming any names or even job titles--apparently while in the bag, which Stone viewed for all of two seconds and which was taken down a few hours later.

2. The same manager, who, let us not forget, was in town only for this party, made a comment about "bi***es" who sued the company upon learning that the company was being sued by someone other than the plaintiff.

Folks, if this constitutes a constructive discharge, well, color me confused. How the court concluded that these two incidents could lead to the type of intolerable conditions that are required to warrant a constructive discharge is beyond me. Maybe the standard is significantly different in the 6th Circuit. Because here, in the 3d Circuit, the standard requires far more dire conditions. Thankfully.

After all of that has been said, though, where are we? What are the lessons of today's post? Well, try these on for size:

1. Please, please, please, discourage your supervisors from being Facebook friends with employees. It's a bad idea. Particularly if your supervisors have a tendency to "drunk post" from the workplace.

2. Don't let employees check Facebook while they're on the clock. Yeah, yeah, I know. You disagree. But if Stewart hadn't been permitted to check Facebook from her phone while on the clock, she wouldn't have seen Huckaby's post, which was gone a few hours later.

3. If you're the owner, founder, senior executive, etc., don't comment about confidential matters--including lawsuits and employee issues--on the company's publicly available blog. (Interestingly, the only other time I've seen this was also with a female bar owner, who made a similar comment on her Facebook comment and was sued for retaliation, which leads me to the next and final lesson for today. . . )

4. Read this blog. Had Ms. Lovell read the post I mention above about how social-media rules also apply to supervisors, maybe she would have avoided the whole mess.

Stewart v. CUS Nashville, LLC, No. 3:11-cv-0342, 2013 U.S. Dist. LEXIS 16035 (M.D. Tenn. Feb. 6, 2013).

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