Employee posts “unpleasant” comment on Facebook. The subject of that comment complains to employee’s employer. Employer terminates employee. Employee sues the complaining party—not the employer. Interesting, right? Here’s the case.
The plaintiff alleged that she worked as a case manager in San Antonio public schools. She claimed that she alerted the San Antonio Police Department (SAPD), when she learned that an individual subject to a restraining order had contacted a student in violation of that order. Officers were dispatched to the student’s home but no action was taken because the officers did not believe there to be a valid protective order in place.
The plaintiff, believing that an order did exist, was frustrated by her feeling that the officers “did not want to do their job to protect her student.” From her home later that day, the plaintiff posted to her Facebook account a profanity-laden comment about the “lazy ass, mother-effers on B-shift who don’t care to do their jobs the way they’re supposed to.”
The plaintiff’s husband, who was also an officer on the SAPD, allegedly received unspecified threats from other officers. The plaintiff also claimed that a copy of her Facebook posting was displayed at the police station.
About a week later, the plaintiff claims that two officers went to the high school where the plaintiff was assigned and told the principal that they needed to speak with the plaintiff about “a complaint.” The plaintiff claims that, after she arrived, one officer told the principal that the plaintiff should be disciplined for her Facebook message and that failure to do so would “endanger relations” between the police department and the high school. The plaintiff also claims that one of the officers demanded that she apologize for the posting but that she refused to do so, citing her right to free speech.
She was fired the following day. She sued the individual officers and the SAPD on a variety of constitutional grounds. The defendants moved to dismiss.
Most of the claims were dismissed but her First Amendment claim survived. She had, after all, alleged that she engaged in constitutionally protected activity—i.e., her Facebook post. She also claimed that the police officers told the principal that, unless the plaintiff was disciplined for that protected speech, the school’s relationship with the police department would be “endangered.” And she was terminated the next day.
Those facts, the court concluded, were sufficient to establish the cause-and-effect relationship necessary to survive a motion to dismiss. As I indicated above, this case is particularly interesting because the employee did not sue her employer but, instead, sued the police—the party that she believes caused her employer to terminate her employment.
Had she sued the employer, her claims would have been subject to a different analysis and would likely have come out in the employer’s favor. This tactic wouldn’t work in every situation—it works here only because the complaining party (the SAPD), is a public entity. If private citizens had complained, the plaintiff would have had very different claims. For an example, see this recent post about a lawsuit brought by an employee about a customer who complained about the employee via social media.
Do these cases indicate an expansion of likely defendants? Will there be less lawsuits against employers or just more lawsuits altogether?
Perez v. Tedford, No. SA-13-CV-429-XR, 2013 U.S. Dist. LEXIS 151149 (W.D. Tex. Oct. 22, 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).