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July 06, 2012
The "I Didn't Understand Facebook's Privacy Settings" Argument Isn't Persuasive to Judges--Sumien v. CareFlite
By Eric Goldman
Sumien and Roberts were CareFlite EMTs. Roberts posted on a third employee's Facebook wall how she wanted to slap a patient. Responding to pushback on that post, Roberts subsequently posted to her Facebook wall (presumably as a status update, although the court doesn't clarify that):
Yes, I DO get upset on some calls when my patient goes off in the house and I have to have a firefighter ride in with me because I fear for MY own safety. I think that is a valid excuse for wanting to use some sort of restraints. Just saying.
To which Sumien replied in a comment (thus readable to at least Roberts' friends):
"Yeah like a boot to the head.... Seriously yeah restraints or actual HELP from PD instead of the norm."
The opinion doesn't clarify exactly who was Facebook friends with each other, but at minimum Roberts and Haynes were friends, and Haynes was the sister of Calvert, CareFlite's compliance officer. The court says Haynes complained about the post. Haynes read Sumien's comment on Roberts' Facebook wall and then delivered Sumien's contents to Calvert. If Calvert and Roberts were friends (or if Roberts' wall was open to the public), Calvert also could have checked out Sumien's comments directly.
CareFlite subsequently fired both Roberts and Sumien. While Roberts' patient-slapping reference may have been troubling (it wasn't quoted in the court opinion), I don't see anything obviously problematic in Sumien's comment. The grammar makes it clear that the "boot to the head" reference was a joke (maybe not that funny, but I can see how it tried) and complaining about the workplace conditions seems like the kind of thing that the NLRB is hyper-sensitive about. I have to imagine there's a backstory to the employer's issues with Sumien. Otherwise, if this is the worst Sumien did, the employer apparently overreacted.
Sumien sued CareFlite for wrongful termination and privacy invasions. The lower court dismissed all of the claims. This ruling only addresses Sumien's appeal of his intrusion into seclusion claim (which appears to be the only issue Sumien appealed...?). The court efficiently rejected all of Sumien's arguments.
Sumien tried two arguments (his privacy interest in discussing patient issues outweighs public interest in disclosure; he can't be fired for discussing workplace issues online) that the court says are irrelevant to the intrusion into seclusion claim. Then, Sumien tries a last-ditch "I'm clueless about Facebook" argument:
Sumien contends that CareFlite intruded upon his seclusion because he did not realize that Roberts’s Facebook “friends” could view the comment that he posted on Roberts’s “wall.”
The court doesn't care, saying Sumien
did not present any evidence to show that his misunderstanding meant that CareFlite intentionally intruded upon his seclusion
Intrusion into seclusion claims are often weak, and it was a poor fit for this situation. The ruling reminded me a little of the court's rejection of Moreno's privacy claim in Moreno v. Hanford Sentinel, where Moreno posted a screed to her low-visibility MySpace page that had unrestricted public access, to which the court said that she had no privacy interest in that effectively public venue.
There are several lessons to reiterate here:
1) Not all communication platforms are equally appropriate for every discussion. If you don't understand how the communication platform works, don't use it for anything you don't want the world to know! Instead, stick to DMs or email, and recognize that even then "private" messages have a knack of leaking out to the wrong people.
2) In particular, commenting on someone else's Facebook status report is not a private communication to that person. That should be obvious to even casual Facebook users, but apparently Sumien didn't get it.
3) People in the healthcare industry (broadly conceived) should be especially careful about discussing patient-related matters in any online venue. We've seen problems with online discussions by people in the healthcare industry literally from cradle (Yoder, Byrnes) to grave (Tatro).
* Accessing an Employee's Facebook Posts by "Shoulder Surfing" a Coworker's Page States Privacy Claim -- Ehling v. Monmouth Ocean Hosp.
* Facebook "Likes" Aren't Speech Protected By the First Amendment–Bland v. Roberts>
* Facebook Posts Complaining About Supervisor Conduct do Not Support Retaliation Claim – DeBord v. Mercy Health System
* Employee Wins Harassment Claim Based in Part on Co-Workers' Offsite Blog Posts
* Overreactive Guidance for Social Networking Du Jour -- NLRB Edition
* Private Employers and Employee Facebook Gaffes [Revisited] and the prior post Do Employers Really Tread a Minefield When Firing Employees for Facebook Gaffes?
* School District Didn't Violate First Amendment for Reassigning Teacher Who Blogged--Richerson v. Beckon
* Employee Blogging Risks
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