Employee Retaliated Against for Blogging: Bloggers Beware

Posted on July 6, 2009 by Ellen Simon

We have all heard about employees getting into hot water because of their blogs and online activities:

  • the  Delta flight attendant fired because she posted a provocative photograph of herself in uniform without a visible name or logo
  • the Burger King executive who used his middle school-aged daughter's online identity to attack a farmworkers' advocacy group that was trying to increase pay and improve conditions for tomato pickers
  • the computer worker fired because he posted a photograph of his company's loading dock receiving a rival's shipment of computers

There's even a term for it: DOOCED  -- which means getting fired because of something that you wrote in your weblog.

("Blogger Heather B. Armstrong coined the phrase in 2002, after she was fired from her Web design job for writing about work and colleagues on her blog, Dooce.com)

Now we have a new case on the subject from the Ninth Circuit Court of Appeals. In Richerson v. Beckon, the Court ruled against a schoolteacher who claimed constitutional protection for personal speech on her blog.

Here's what happened in the case.

Tara Richerson worked as a curriculum specialist and institutional coach for the Central Kitsap School District in Silverdale, Washington.

The job required her to engage in "trusting mentor relationships" with less experienced teachers in order to give them "honest, critical and private feedback."

Richerson wrote a blog which, according to the opinion, contained highly personal and vituperative comments about her employers, union representatives, and fellow teachers.

Although Richerson did not refer to these individuals by name, many were easily identifiable because of the description of the positions or their personal attributes. Here's one of Richerson's blog posts about her replacement:

Save us White Boy!

I met with the new me today: the person who will take my summer work and make it a full-time year-round position. I was on the interview committee for this job and this guy was my third choice ... and a reluctant one at that. I truly hope that I have to eat my words about this guy.... But after spending time with this guy today, I think Boss Lady 2.0 made the wrong call in hiring him ... He comes across as a smug know-it-all creep. And that's probably the nicest way I can describe him.... He has a reputation of crapping on secretaries and not being able to finish tasks on his own.... And he's white. And male. I know he can't help that, but I think the District would have done well to recruit someone who has other connections to the community.... Mighty White Boy looks like he's going to crash and burn

You don't have to be a lawyer to sense that this blog was going to getting her into trouble. Sure enough, when the blog came to light, Jeanne Beckon, the Director of Human Resources received complaints and several individuals refused to work with Richerson. 

As a result, Beckon transferred Richerson out of her coaching position and into a classroom teaching position, claiming that Richerson's blog fatally undermined her ability to enter into trusting relationships as an instructional coach. Richerson sued.

Richerson lost her case in the federal district court and the Ninth Circuit Court of Appeals affirmed.

The Court held that the "legitimate administrative interests" of the school district overweighed Richerson's right of free speech under the First Amendment. According to the opinion:

It is abundantly clear from undisputed evidence in the record that Richerson’s speech had a significantly deleterious effect [on the performance of her duties]. [Her supervisor] provided testimony, not controverted by Richerson, indicating that several individuals refused to work with Richerson in the future.

Common sense indicates that few teachers would expect that they could enter into a confidential and trusting relationship with Richerson after reading her blog. [Her supervisor] need only make a ‘reasonable prediction’ that such disruption would occur; she need not demonstrate that it has occurred or will occur to a certainty... .

Accordingly, the district court did not err in concluding that the legitimate interests of the School District outweighed Richerson's First Amendment interests in not being transferred because of her speech.

The decision is correct with respect to the current state of public employee speech law, according to Paul Secunda, one of the law professors who writes on this topic but the legal test should be changed. As Professor Secunda wrote:

I want to suggest that the Ninth Circuit is right on the current state of public employee speech law, but also want to point out that the most disruptive public employee speech gets the least amount of protection under the Pickering framework. It is almost like we have constitutionalized the heckler's veto in this area of the law and that doesn't make a whole lot of sense.

So what would I do instead, you ask? I would prefer a test which places a heavier thumb on the balance on the side of the employee, as long as the employee is talking upon a matter of public concern, which involves the heart of the First Amendment's protection in the first place. Under this balance, I would let Richerson yap away and let other employees drown her out with their own more sensible counter-arguments.

For those who may be interested, Professor Secunda wrote an excellent law review article: Blogging While(Publicly)Employed: Some First Amendment Implications which can be found at his post on Workplace Prof Blog.

Of course only government employees have limited First Amendment protections for blogging about work. It may come as a great surprise to many that private employees have no Constitutional free speech protection at work.

But, according to Professor Secunda,  private employees may be protected under Section 7of the National Labor Relations Act. (NLRA).  Under the NLRA  employees are free to engage in concerted activities in the workplace for their "mutual aid and protection." Therefore, according to the argument, when employees are blogging about common workplace issues, they are engaged in protected, concerted activity under the Act. It sounds like a very good argument to me.

In addition some states have off-duty conduct statutes which generally prohibit employers from terminating employees for engaging in lawful conduct outside of the workplace. Some argue that these statutes may protect bloggers(depending in part on what they are blogging about).

Other employee bloggers have argued for protection under common law tort theories such as invasion of privacy. Many employers, however, have issued policies making sure that there is no expectation of privacy on the part of the employee with respect to blogging at work.

In sum, blogging at work, and blogging about work, are really two different topics. Employee rights may differ depending on where employees are doing the blogging -- on company time, or on private time -- and what they are blogging about.

In both of these circumstances, employers clearly have legitimate concerns about the content of employee blogs when employee bloggers:

  • reveal confidential/propriety information
  • improperly utilize a company logo or trademark
  • harass, intimidate, and discriminate against co-employees

These concerns can and should be addressed by appropriate corporate policies which protect legitimate interests without demoralizing employees or creating a repressive workplace environment.

In the meantime, since the law is quite undeveloped and the waters uncharted in this area, both employers and employees need to use common sense and tread carefully.

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Another Victory for Working Moms

Posted on May 7, 2009 by Ellen Simon

I love the decision of Gerving v. Opbiz, LLC which was decided by the Ninth Circuit a few days ago. Thanks to mmmglawblog for pointing it out.

It’s a great example of  “caregiver discrimination” about which the EEOC issued a report just last week (I wrote about it : Read Carefully to Avoid Caregiver Discrimination), and it's a case in which the caregiver wins.

The case also has a very clear analysis of what kind of evidence allows a plaintiff to get to a jury in a typical gender discrimination case.  

Here’s what happened in the case.

Karen Gerving worked as a sales manager for Opbiz (Alladin Resort and Casino) until she was fired by her supervisor, Jim Lauster.

Gerving filed a lawsuit alleging gender discrimination and retaliation under Title VII of the Civil Rights Act of 1964.

Gerving’s evidence showed that after she became a stepmother, Lauster:

  • began to give her poor performance reviews
  • told her that working mothers should stay at home
  • told her that she would have to choose between being a mother and a sales manager
  • made similar discriminatory remarks to a pregnant co-worker
  • treated  Gerving differently than a male co-worker when she was reprimanded for making calls to her children while he was not

Because of the discriminatory treatment, Gerving complained to the Human Resource Deparatment. Two weeks later, an angry Lauster tried to get Gerving fired.

It turned out that Luster wasn’t able to fire Gerving until some months later when new management was in place.

In a typical discrimination case, the plaintiff can establish an inference of discrimination if she can prove:

1)   she belongs to a protected class

2)   she performed her job satisfactorily

3)   she suffered an adverse employment action

4)   she was treated differently than a similarly situated employee who does not belong to the protected class

Once the employee establishes an inference of discrimination – what’s called the prima facie case – the employer is required to "articulate a legitimate, non-discriminatory reason" for it's employment action.

If the employer does that, the employee must prove pretext – meaning that the employee presents evidence that the reason given by the employer is not believable or made-up.

In this case, Alladin said that Gerving was fired because of poor performance and because she used profanity in an argument with a co-worker.

Gerving presented the following evidence of pretext:

1)   her performance reviews were good until she became a stepmother

2)   Lauster tried to fire her shortly after she complained to Human Resources

3)   customer complaints were common

4)   profanity in the workplace was common and not grounds for termination

5)   Lauster began discussing Gerving' termination with new management before the events that were cited as the reasons for her discharge

In spite of all of this evidence, the trial court judge threw out the case and granted summary judgment in favor of Alladin Resort.

The Ninth Circuit Court of Appeals reversed stating:

From this specific evidence, a reasonable jury might conclude that Gerving was terminated in retaliation for complaining about Lauster’s discriminatory comments, and that the termination was motivated by discriminatory animus.

 Accordingly, the order granting summary judgment on Gerving’s gender discrimination and retaliation claims is VACATED and this case is REMANDED for further proceedings.

What this means is that the trial court was wrong when it only gave credit to the employer’s side of the story and either disbelieved or gave no credit to Gerving’s evidence.

What it doesn’t  mean is that Gerving wins her case. What Gerving wins is her right to have her case decided by a jury which is what she in entitled to under the law.

So what’s the big deal? The big deal is that federal courts have been throwing out cases like hers in the same way for years – giving credit to the employer’s side of the story and ignoring the employees’ evidence.

Finally, after almost thirty years,  I am sensing that the summary judgment tide against employees in discrimination cases may be turning. I can hardly believe it but I think it might be true.

This case is but one of many examples of summary judgment reversals I have read about in the last several months. The Circuit Courts of Appeal seem to be sending these erroneous decisions back to the district courts for trials with more frequency than ever.

It’s not that it never happened before – it’s just that it seems to be happening more often, and it’s not just from one circuit. Employees are winning.

It’s too bad it takes so long for the victimized employee to see the light of day. Appeals delay the opportunity to get a case in front of a jury for years.

Let’s hope the federal district court bench gets the message and gives the plaintiff her day in court the first time around. We’ll be watching.

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