Disputed Facebook Post Can Justify a Firing And Is Not Pretextual

by Holland & Knight LLP
Contact

As this blog illustrated recently, sentiments posted on Facebook, if sufficiently vulgar or offensive, can cause a person to lose his job.

The Seventh Circuit recently issued a decision analyzing whether a profane and insulting Facebook post could justify a firing, even if authorship of said post was disputed. In Smizer v. Community Mennonite Early Learning Center, --- Fed. Appx. ----, 2013 WL 5769936 (7th Cir. 2013), the plaintiff alleged he was fired from his job at the Community Mennonite Early Learning Center ("CMELC") as a result of his gender. He brought claims against CMELC based in Title VII of the Civil Rights Act of 1964 and in state defamation law.

The plaintiff, Lawrence Smizer, had been working at CMELC, an organization run by his mother, for 17 years as a teacher's aide supervising two-year olds until his firing in April 2010. At the time of his firing, he was one of two male employees. During the final years of his tenure, a rift had arisen within the plaintiff's family over the custody of his nephew, a rift which pitted the plaintiff with his sister and against his mother. When his sister was awarded custody, an email was forwarded to the plaintiff's mother quoting an alleged Facebook post by the plaintiff that read as follows:

"Lawrence Dontyoujudgeme Smizer To all my family that fought my sister tooth and nail over some BULLSHIT (And you know who you are) FUCK YOU BITCHES!!!! HE IS GOING HOME WHERE HE BELONGS!!!!! HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAAHAHHAHAHH"

Less than a week after having read this alleged post, the plaintiff's mother claimed the plaintiff was "creating a hostile work environment" and fired him for "insubordination and unprofessional conduct." The plaintiff's dismissal was based primarily on this alleged post, although there were other disputed allegations of misconduct by the plaintiff, including that he used CMELC computers to watch pornography. The plaintiff denied both of these allegations and pointed out that CMELC had not been available to produce evidence of the post aside from the original email and affidavits from three individuals claiming to have read the post on the plaintiff's Facebook page. Rather, the plaintiff alleged that the post was a "pretext" for sex discrimination. Specifically, he alleged that CMELC fired him because potential customers had expressed discomfort about their young daughters being supervised by a member of the opposite sex.

The district court concluded that the plaintiff possessed neither direct nor circumstantial evidence of sex discrimination sufficient to survive summary judgment. Notably, it held that the plaintiff lacked proof that similarly situated female employees were treated more favorably after they proffered offensive comments on Facebook.

On de novo review, the Seventh Circuit agreed that summary judgment against the plaintiff was proper. Since he had not demonstrated "weaknesses, implausibilities, or inconsistencies" in CMELC's stated reason for firing him (the alleged Facebook post), he could not make a sufficient showing that the stated reason was a pretext. Moreover, the Seventh Circuit held that as long as CMELC honestly believed the plaintiff had composed the alleged post disparaging his coworkers, it was irrelevant whether that belief was a truthful one.

- See more at: http://www.hklaw.com/DigitalTechBlog/Disputed-Facebook-Post-Can-Justify-a-Firing-And-Is-Not-Pretextual-12-03-2013/#sthash.bbjvqGhj.dpuf

As this blog illustrated recently, sentiments posted on Facebook, if sufficiently vulgar or offensive, can cause a person to lose his job.

The Seventh Circuit recently issued a decision analyzing whether a profane and insulting Facebook post could justify a firing, even if authorship of said post was disputed. In Smizer v. Community Mennonite Early Learning Center, --- Fed. Appx. ----, 2013 WL 5769936 (7th Cir. 2013), the plaintiff alleged he was fired from his job at the Community Mennonite Early Learning Center ("CMELC") as a result of his gender. He brought claims against CMELC based in Title VII of the Civil Rights Act of 1964 and in state defamation law.

The plaintiff, Lawrence Smizer, had been working at CMELC, an organization run by his mother, for 17 years as a teacher's aide supervising two-year olds until his firing in April 2010. At the time of his firing, he was one of two male employees. During the final years of his tenure, a rift had arisen within the plaintiff's family over the custody of his nephew, a rift which pitted the plaintiff with his sister and against his mother. When his sister was awarded custody, an email was forwarded to the plaintiff's mother quoting an alleged Facebook post by the plaintiff that read as follows:

"Lawrence Dontyoujudgeme Smizer To all my family that fought my sister tooth and nail over some BULLSHIT (And you know who you are) FUCK YOU BITCHES!!!! HE IS GOING HOME WHERE HE BELONGS!!!!! HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAAHAHHAHAHH"

Less than a week after having read this alleged post, the plaintiff's mother claimed the plaintiff was "creating a hostile work environment" and fired him for "insubordination and unprofessional conduct." The plaintiff's dismissal was based primarily on this alleged post, although there were other disputed allegations of misconduct by the plaintiff, including that he used CMELC computers to watch pornography. The plaintiff denied both of these allegations and pointed out that CMELC had not been available to produce evidence of the post aside from the original email and affidavits from three individuals claiming to have read the post on the plaintiff's Facebook page. Rather, the plaintiff alleged that the post was a "pretext" for sex discrimination. Specifically, he alleged that CMELC fired him because potential customers had expressed discomfort about their young daughters being supervised by a member of the opposite sex.

The district court concluded that the plaintiff possessed neither direct nor circumstantial evidence of sex discrimination sufficient to survive summary judgment. Notably, it held that the plaintiff lacked proof that similarly situated female employees were treated more favorably after they proffered offensive comments on Facebook.

On de novo review, the Seventh Circuit agreed that summary judgment against the plaintiff was proper. Since he had not demonstrated "weaknesses, implausibilities, or inconsistencies" in CMELC's stated reason for firing him (the alleged Facebook post), he could not make a sufficient showing that the stated reason was a pretext. Moreover, the Seventh Circuit held that as long as CMELC honestly believed the plaintiff had composed the alleged post disparaging his coworkers, it was irrelevant whether that belief was a truthful one.

Written by:

Holland & Knight LLP
Contact
more
less

Holland & Knight LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.