NEW YORK STATE ASSOCIATION OF SCHOOL PERSONNEL ADMINISTRATORS
SOCIAL MEDIA
October 20, 2014
The Otesaga Hotel
Cooperstown, NY
Howard Miller, Esq.[1] Mara Bollettieri, Assistant Superintendent
Bond, Schoeneck & King, PLLC Bellmore-Merrick High School District
1010 Franklin Avenue, Suite 200 1260 Meadowbrook Road
Garden City, New York 11530 North Merrick, New York 11566
(516) 267-6300 (516) 992-1000
RECENT DEVELOPMENTS IN CYBER MISCONDUCT
PART I
I. First Amendment Standard
There are many cases where public employees claim that they were disciplined in retaliation for exercising their First Amendment rights online.
As stated in Cobb v. Pozzi, 363 F.3d 89 (2d Cir. 2004), a plaintiff pursuing a claim for First Amendment retaliation in the Second Circuit must demonstrate that (1) his/her speech addressed a matter of public concern, (2) he/she suffered an adverse employment action, and (3) a causal connection existed between the speech and the adverse employment action, so that it can be said that his/her speech was a motivating factor in the determination. Once a plaintiff satisfies these three factors, the government may avoid liability pursuant to either of two rationales. The government may either (1) demonstrate by a preponderance of the evidence that it would have taken the same adverse action regardless of the protected speech, or (2) show that the plaintiff's expression was likely to disrupt the government's activities, and that the likely disruption was sufficient to outweigh the value of the plaintiff's First Amendment expression. The latter balancing rationale is commonly known as the "Pickering balancing test" and represents a question of law for the court to decide.
II. First Amendment Cases Involving Discipline for Social Media Activity
A. Austin v. Preston Cty. Comm’n, 2014 U.S. Dist. LEXIS 146041 (N.D.W.V. Oct. 14, 2014)
As the Director of the Preston County Animal Shelter, Courtney Austin was granted permission to create a Facebook page for the Shelter. Austin created the page using her personal Facebook account. On February 19, 2012, Austin posted: “Guess what everybody!!! Yesterday marked 60 DAYS WITHOUT ANY EUTHANASIA!!!!! IF YOU LIKE THIS, please comment or LIKE THIS POST SO WE CAN SHOW EVERYONE THERE ARE OTHER OPTIONS!!!!!!” The next day, she added the following comment to her earlier post: “The more people we get to like this comment, the more we can brag about it. Get your friends to like No Euthanasia for PCAS.” Shortly after the posts, Austin received a written warning for ignoring previous instructions about not giving the public the impression that the Shelter was moving towards becoming a no-kill facility.
A year or so later, Austin posted: “We are in need of several transporters this weekend for animals. I know the weather is rough, but imagine if it’s that hard on you, how rough it is on our outdoor kenneled dogs. Additionally we have no heat in our indoor animal areas, intake and indoor kennels, and this has caused our water to freeze making it nearly impossible to perform daily tasks requiring water for cleaning and watering. . . .” Austin’s supervisor then requested access to the Shelter’s Facebook page but Austin voiced privacy concerns because the page was created with her personal account.
Austin was eventually instructed to change her password and to provide her log-in information to her supervisor but she refused to do so. Austin was suspended for refusing to provide the password to access the Shelter’s Facebook page (and her own Facebook account). The Commission then terminated her for insubordination. Austin claimed that she was terminated in retaliation for exercising her First Amendment rights, but the Court granted the Commission’s motion for summary judgment on Austin’s First Amendment claim.
B. Debord v. Mercy Health Sys. of Kansas, Inc., 737 F.3d 642 (10th Cir. 2014).
Plaintiff posted the following comments on Facebook at work:
(At 9:00 am) Sara DeBord loves it when my boss adds an extra $600.00 on my paycheck for hours I didn't even work...awesome!!
(At 1:37 pm) Sara DeBord is sooo disappointed...can't believe what a snake my boss is...I know, I know everyone warned me:(
(At 2:53 pm) Oh, it's hard to explain....basically, the MRI tech is getting paid for doing MRI even though he's not registered and myself, nor the CT tech are getting paid for our areas...and he tells me 'good luck taking it to HR because you're not supposed to know that' plus he adds money on peoples checks if he likes them (I've been one of them)...and he needs to keep his creapy hands to himself...just an all around d-bag!!
The public posts were seen by many of Plaintiff’s coworkers. Plaintiff was suspended without pay for one day for “[f]ail[ing] to conduct [herself] in a manner consistent with a high degree of personal integrity and professionalism.” The HR person asked Plaintiff about the “creepy hands” comment and Plaintiff explained that her boss touched her and other women with his cold hands but she did not think it was sexual harassment. Plaintiff was later terminated for disruption, inappropriate behavior and dishonesty in connection with her false allegations about overpayments.
Applying the McDonnell-Douglas framework, the Court held that Plaintiff’s retaliation claim failed because there were many legitimate, nonretaliatory reasons for terminating her. Plaintiff neither raised a First Amendment retaliation claim nor argued that her posts were related to a matter of public concern.
C. Munroe v. Ctr. Bucks Sch. Dist., 2014 WL 3700325 (E.D. Pa. 2014).
The school district terminated a tenured teacher after discovering her private blog in which she criticized the school, her coworkers and her students. The teacher blogged as “Natalie M” and did not state where she worked or lived. While her blog pertained to mostly personal issues, she did complain about the rudeness and lack of motivation among her students, referring to them as “jerk,” “rat-like,” “dunderhead,” “whiny, simpering grade-grubber with an unrealistically high perception of her own ability level” and “frightfully dim.” She also said that parents were “breeding a disgusting brood of insolent, unappreciative, selfish brats.” In addition, she referred to a coworker by first name and with a vulgar epithet and complained about the administration.
A local reporter discovered the blog and the teacher made a statement to the press regarding the blog shortly thereafter. The story was picked up by The Huffington Post and was featured on CBS, ABC, NBC, CNN, Fox News, Reuters and the Associated Press. The teacher appeared on several televised interviews. The teacher was eventually terminated.
The Court determined that while the blog as a whole was dominated by personal issues, within certain blog posts are occasional passages which touch upon broad issues of academic integrity, the value of honor, and students’ lack of effort – matters of political and social concern. However, the Court determined that the teacher’s comments did not merit protection under the balancing test established by Pickering. The Court noted that the school district was within its rights to conclude that the teacher’s speech (which contained information from which students would have been able to identify themselves or their classmates) would erode the necessary trust and respect between the teacher and her students.
D. Butler v. Edwards-Brown, 2014 U.S. Dist. LEXIS 62032 (E.D. Mich. 2014).
Plaintiff attorney was removed from a court assignment list after she made a comment on Facebook about the performance of the clerk's office. Plaintiff "tagged" two people with whom she had a pre-existing, personal relationship, mistakenly identifying them as Clerk's Office employees in her Facebook post, and identifying them by name. Within days, the court administrator sent Plaintiff a letter informing her that she had been removed from a court assignment list. Defendants’ motion to dismiss Plaintiff’s First Amendment retaliation claim was denied because when viewed in a light most favorable to the attorney, the evidence created the inference that she was speaking on a matter of public concern and her interests outweighed those of defendants on the issue.
E. Duke v. Hamil, 2014 U.S. Dist. LEXIS 13388 (N.D. Ga. 2014).
A police officer with over thirty (30) years of experience was demoted following his posting of an image of the Confederate flag accompanied by the phrase, “It’s time for the second revolution,” on Facebook. He claimed that he only thought that those with direct access to his page would be able to see the post and his intention behind the post was to express his general dissatisfaction with Washington politicians. The police officer posted the image and comment while off duty. The Police Department did not have a social media policy that would have prevented the post.
The Court granted defendants’ motions to dismiss and found that: (1) the officer spoke as a citizen and not as a public employee; (2) the officer spoke about a matter of public concern because he expressed disapproval of elected officials; (3) the officer’s speech could have caused internal disruption since the speech was controversial and he was second in command; (4) the officer’s speech could have implicated the Department’s reputation and the public’s trust since it received public attention; (5) the speech was capable of impeding the government’s ability to perform its duties effectively; (6) the Department’s interests outweighed the officer’s interest in speaking; and (7) despite the officer’s intention to limit who saw his off-duty speech, his choice to put it on a social media platform risked sharing it with a much broader audience.
F. Grazioso v. City of Greenville, 985 F. Supp. 2d 808 (N.D. Miss. 2013).
Plaintiff alleged that she was wrongly discharged from her position as a Sergeant of the Greenville Police Department (GPD) because of the following comments she made on Facebook:
I just found out that Greenville Police Department did not send a representative to the funeral of Pearl Police Officer Mike Walter, who was killed in the line of duty on May 1, 2012. This is totally unacceptable. I don't want to hear about the price of gas -- officers would have gladly paid for and driven their own vehicles had we known the city was in such dire straights (sic) as to not to be able to afford a trip to Pearl, Ms., which, by the way, is where our police academy is located. The last I heard was the chief was telling the assistant chief about getting a group of officers to go to the funeral. Dear Mayor, can we please get a leader that understands that a department sends officers of (sic) the funeral of an officer killed in the line of duty? Thank you. Susan Graziosi.
I’m mad. (can you tell).
...we had somethings (sic) then that we no longer have....LEADERS. I don't know that trying for 28 is worth it. In fact, I am amazed everytime I walk into the door. The thing is the chief was discussing sending officers on Wednesday (after he suspended me but before the meeting was over). If he suddenly decided we "couldn't afford the gas" (how absurd – I would be embarrassed as a chief to make that statement) he should have let us know so we could have gone ourselves. Also, you'll be happy to know that I will no longer use restraint when voicing my opinion on things. Ha!
If you don't want to lead, can you just get the hell out of the way.
Seriously, if you don't want to lead, just go.
The Court determined that Plaintiff’s speech was not protected by the First Amendment because it did not relate to matters of public concern. Her posts were not intended to help the public evaluate the performance of the police department, and they were made as an employee of the GPD and not a citizen of the Greenville community.
G. Bland v. Roberts, 2013 U.S. App. LEXIS 19268 (4th Cir. 2013).
Following a town election for Sheriff, six (6) deputy sheriffs were not reinstated. They alleged that they were terminated in retaliation for their support of the Sheriff’s rival during his campaign. The deputy sheriffs showed their support for the rival by “liking” his campaign page of Facebook. The Court determined that the deputies were not engaged in policymaking and therefore could not be fired due to their political views.
H. Gresham v. City of Atlanta, 2013 U.S. App. LEXIS 20961 (11th Cir. 2013).
Plaintiff claimed that the police chief’s failure to promote her was in retaliation for a comment she posted on Facebook criticizing another law enforcement officer of the department. The comment related to the other officer’s interference in an unethical manner with the investigation of a person Plaintiff had arrested. After discovering the comment, the department commenced an investigation during which time promotions took place. Plaintiff alleged that she was not promoted in retaliation for her Facebook speech.
The employer defended its actions and explained that there was a policy not to consider candidates for promotion if they had disciplinary investigations pending against them. Based on this policy, the employer deemed Plaintiff ineligible for promotion because of the pending investigation.
The Court noted that maintaining discipline and good working relationships amongst employees is a legitimate governmental interest. The Court also explained that a police department is a quasi-military organization and comments concerning coworkers’ performance of their duties and superior officers’ integrity can directly interfere with the confidentiality, esprit de corps and efficient operation of the department. The Court concluded that these interests outweighed Plaintiffs’ interest in speaking in the manner in which she spoke.