Disputed Facebook Post Can Justify a Firing And Is Not Pretextual

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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.

Topics:  Employer Liability Issues, Facebook, First Amendment, Obscenity, Offensive Language, Termination

Published In: Communications & Media Updates, Labor & Employment Updates, Personal Injury Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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