Nurse Using Abusive Language Toward Hospital Administrator on Facebook Justifies Firing

by Holland & Knight LLP
Contact

As this blog has covered on a number of occasions, employee speech on Facebook, particularly if it is profane, vituperative or threatening, can lead to termination. A number of courts in recent months have grappled with the tension between free speech and workplace cohesion and professionalism, largely in the context of First Amendment claims against public employers. A recent case, though decidedly largely on procedural grounds and concerning a private employer, adds to the canon of law concerning the implications of hostile Facebook speech.

In Guevarra v. Seton Medical Center, No. C 13-2267 CW, 2013 WL 6235532 (N.D. Cal. Dec. 2, 2013), the plaintiff, a nurse at Seton Medical Center (Seton), a privately owned hospital, posted on Facebook about her administrator: 

"Instead of spending my birthday celebrating, I will be working all night cleaning up feces. I hate loathe that effin heffer!!! Burn in hell you effed up spawn of satan. I curse you and wish you a lifetime of pain and suffering. That is not enough, right now I would give anything you smack you down and pound you to unconsciousness. Tang ina mo!!!!!"

The post was published to various "friends" and then forwarded to Seton. Seton called the police and ultimately terminated the plaintiff a day later. Thereafter, the plaintiff applied for unemployment benefits. Under the California Insurance Code § 1256, an individual cannot receive these benefits if discharged for misconduct connected with an individual's most recent job. Ultimately, the California Unemployment Insurance Appeals Board (CUIAB) denied the plaintiff's request for benefits on myriad grounds, including that the Facebook post undermined workforce morale and violated Seton's policy prohibiting harassment and the use of abusive language or behavior.

The plaintiff then filed suit against Seton and CUIAB alleging a violation of free speech under the First Amendment and the California Constitution, and breach of contract and covenant of good faith, among other causes of action. The court dismissed the First Amendment free speech claim based on the Rooker-Feldman doctrine, which stipulates that a federal district court has no authority to review the final determinations of a state court in juridical proceedings. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). The breach of contract claim was dismissed because the plaintiff, as a member of a collective bargaining unit, cannot claim a breach of the collective bargaining agreement without first exhausting the grievance procedures therein, something the plaintiff did not do.

Regarding the plaintiff's claim that Seton's conduct amounted to free speech violation under the California Constitution, the court also decided it largely on procedural grounds. The plaintiff argued that the free speech right under the California Constitution is "broader than the federal right and extends to private employers." However, the cases cited by the plaintiff in support of this proposition all involved speech on privately owned property opened to the public. As such, the property became a public forum which could engender a free speech claim under the California Constitution. Accordingly, since Facebook was not a public forum, there was no "state action limitation" on speech, a necessary condition for a successful speech-based claim under Article I, Section 2 of the California Constitution.- See more at: http://www.hklaw.com/DigitalTechBlog/Nurse-Using-Abusive-Language-Toward-Hospital-Administrator-on-Facebook-Justifies-Firing-01-17-2014/#sthash.AqIiqtaY.dpuf

As this blog has covered on a number of occasions, employee speech on Facebook, particularly if it is profane, vituperative or threatening, can lead to termination. A number of courts in recent months have grappled with the tension between free speech and workplace cohesion and professionalism, largely in the context of First Amendment claims against public employers. A recent case, though decidedly largely on procedural grounds and concerning a private employer, adds to the canon of law concerning the implications of hostile Facebook speech.

In Guevarra v. Seton Medical Center, No. C 13-2267 CW, 2013 WL 6235532 (N.D. Cal. Dec. 2, 2013), the plaintiff, a nurse at Seton Medical Center (Seton), a privately owned hospital, posted on Facebook about her administrator: 

"Instead of spending my birthday celebrating, I will be working all night cleaning up feces. I hate loathe that effin heffer!!! Burn in hell you effed up spawn of satan. I curse you and wish you a lifetime of pain and suffering. That is not enough, right now I would give anything you smack you down and pound you to unconsciousness. Tang ina mo!!!!!"

The post was published to various "friends" and then forwarded to Seton. Seton called the police and ultimately terminated the plaintiff a day later. Thereafter, the plaintiff applied for unemployment benefits. Under the California Insurance Code § 1256, an individual cannot receive these benefits if discharged for misconduct connected with an individual's most recent job. Ultimately, the California Unemployment Insurance Appeals Board (CUIAB) denied the plaintiff's request for benefits on myriad grounds, including that the Facebook post undermined workforce morale and violated Seton's policy prohibiting harassment and the use of abusive language or behavior.

The plaintiff then filed suit against Seton and CUIAB alleging a violation of free speech under the First Amendment and the California Constitution, and breach of contract and covenant of good faith, among other causes of action. The court dismissed the First Amendment free speech claim based on the Rooker-Feldman doctrine, which stipulates that a federal district court has no authority to review the final determinations of a state court in juridical proceedings. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). The breach of contract claim was dismissed because the plaintiff, as a member of a collective bargaining unit, cannot claim a breach of the collective bargaining agreement without first exhausting the grievance procedures therein, something the plaintiff did not do.

Regarding the plaintiff's claim that Seton's conduct amounted to free speech violation under the California Constitution, the court also decided it largely on procedural grounds. The plaintiff argued that the free speech right under the California Constitution is "broader than the federal right and extends to private employers." However, the cases cited by the plaintiff in support of this proposition all involved speech on privately owned property opened to the public. As such, the property became a public forum which could engender a free speech claim under the California Constitution. Accordingly, since Facebook was not a public forum, there was no "state action limitation" on speech, a necessary condition for a successful speech-based claim under Article I, Section 2 of the California Constitution.

- See more at: http://www.hklaw.com/DigitalTechBlog/Nurse-Using-Abusive-Language-Toward-Hospital-Administrator-on-Facebook-Justifies-Firing-01-17-2014/#sthash.AqIiqtaY.dpuf

As this blog has covered on a number of occasions, employee speech on Facebook, particularly if it is profane, vituperative or threatening, can lead to termination. A number of courts in recent months have grappled with the tension between free speech and workplace cohesion and professionalism, largely in the context of First Amendment claims against public employers. A recent case, though decidedly largely on procedural grounds and concerning a private employer, adds to the canon of law concerning the implications of hostile Facebook speech.

In Guevarra v. Seton Medical Center, No. C 13-2267 CW, 2013 WL 6235532 (N.D. Cal. Dec. 2, 2013), the plaintiff, a nurse at Seton Medical Center (Seton), a privately owned hospital, posted on Facebook about her administrator:

"Instead of spending my birthday celebrating, I will be working all night cleaning up feces. I hate loathe that effin heffer!!! Burn in hell you effed up spawn of satan. I curse you and wish you a lifetime of pain and suffering. That is not enough, right now I would give anything you smack you down and pound you to unconsciousness. Tang ina mo!!!!!"

The post was published to various "friends" and then forwarded to Seton. Seton called the police and ultimately terminated the plaintiff a day later. Thereafter, the plaintiff applied for unemployment benefits. Under the California Insurance Code § 1256, an individual cannot receive these benefits if discharged for misconduct connected with an individual's most recent job. Ultimately, the California Unemployment Insurance Appeals Board (CUIAB) denied the plaintiff's request for benefits on myriad grounds, including that the Facebook post undermined workforce morale and violated Seton's policy prohibiting harassment and the use of abusive language or behavior.

The plaintiff then filed suit against Seton and CUIAB alleging a violation of free speech under the First Amendment and the California Constitution, and breach of contract and covenant of good faith, among other causes of action. The court dismissed the First Amendment free speech claim based on the Rooker-Feldman doctrine, which stipulates that a federal district court has no authority to review the final determinations of a state court in juridical proceedings. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). The breach of contract claim was dismissed because the plaintiff, as a member of a collective bargaining unit, cannot claim a breach of the collective bargaining agreement without first exhausting the grievance procedures therein, something the plaintiff did not do.

Regarding the plaintiff's claim that Seton's conduct amounted to free speech violation under the California Constitution, the court also decided it largely on procedural grounds. The plaintiff argued that the free speech right under the California Constitution is "broader than the federal right and extends to private employers." However, the cases cited by the plaintiff in support of this proposition all involved speech on privately owned property opened to the public. As such, the property became a public forum which could engender a free speech claim under the California Constitution. Accordingly, since Facebook was not a public forum, there was no "state action limitation" on speech, a necessary condition for a successful speech-based claim under Article I, Section 2 of the California Constitution.

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.
Feedback? Tell us what you think of the new jdsupra.com!