Employee’s Discrimination Claim Can’t be Salvaged by Coworker’s Allegedly Inappropriate Facebook Post — Brown v Tyson Foods

August 5, 2014 · by Venkat Balasubramani · in Content Regulation

This is another firing-for-Facebooking case.

Plaintiff was an hourly employee in Tyson’s Nashville facility. In September 2012 she was initially suspended after a video surfaced of her “shaking her tail” and placing money in the shirt of a male co-worker. The clip was uploaded to Facebook, and a supervisor concluded that plaintiff’s participation in the video was a violation of Tyson’s harassment policy. She was initially terminated because of the video, but she appealed, and her termination was reduced to a suspension.

In October, plaintiff complained to her HR supervisor that her co-workers were mistreating her and they were receiving special treatment that she was not being accorded. The main source of friction between her and her co-workers was allegedly the suspension incident, and the fact that plaintiff’s termination was reduced to a suspension.

Due to plaintiff’s complaint, Tyson initiated an investigation, and plaintiff was instructed to not discuss the investigation with any co-workers. In later October, the HR supervisor interviewed a co-worker (Hooper), who alleged that plaintiff directed two Facebook posts toward the co-worker. The first post said:

Bitch I got u tho. Bad built ass. Get a life my daughter got u cause i will.

A follow up post was lengthier:

@ This Bitch name Candie Im not your Murthafuckin friend an I think I said sumthing to an at your Ass earlier. About looking on my page u dnt no anthing about me nor my husband. An first of ALL I can put whatever I want on my Damn page if u dnt like it when Delete your ass from my page. An first of All your Bitch ass keep looking in my Damn mouth every Lyme Im talking if Im not talking to you what the fuck u getting a mouth full of nothing. Just to let u know hater are my motivate. So since you think I talk to guys an calling it adultery. Bitch u dnt know anything about me but my first Name So u need to Think B4 u Speak. An go find your Babies Daddy an stop-fuckin your friend Man. With your bad bult ass with your back pocket touchin your knees as get u a Booty Pad So your pants stop falling. Now go tell that Bitch, So u will be Delte. An stop having one night stand with all your riders Suckin they Dick. U Brought this on your own.

Plaintiff claimed that her daughter was the author of these posts. Although the daughter’s testimony confirmed this, it was not revealed during the course of the investigation.

Plaintiff was suspended based on these posts—i.e., due to her failure to abide by the instruction to not discuss the investigation with co-workers. Because this was her second suspension in a 12 month period, she was terminated. She alleged that her other (non-minority) co-worker who engaged in similar conduct was not disciplined. As proof, she pointed to a Facebook post from Hooper that said the following:

I have a certain friend on my list that likes to post Bible Scriptures like she some goody two shoes. Well here’s two verses she may wanna look at. Thou shalt not bear false witness against thy neighbor and tho shalt not commit adultery. # ihatehypocrites

Hooper denied that the post was directed at plaintiff.

After reviewing the evidence, the court grants the employer’s motion for summary judgment. Her claim for race discrimination requires plaintiff to prove among other things that she was meeting her employer’s legitimate job expectations. The court says she fails to meet her initial burden. Based on information available to Tyson at the time, Tyson’s actions were justified:

By all appearances, Plaintiff was directing threatening and derogatory messages to her co-workers. This type of behavior certainly falls short of Tyson’s legitimate job expectations.

The court also says the she failed to show more favorable treatment of other employees. Plaintiff argued Hooper is a similarly situated employee: (1) Hooper was involved in the dancing incident and (2) Hooper made intemperate Facebook posts directed at co-workers. As to the dancing incident the court says that Hooper (unlike plaintiff) was not caught on video. Second, Tyson was never made aware of any inflammatory posts by Hooper and thus Hooper was not similarly situated to plaintiff.

Plaintiff also brought a claim for retaliation but the court says that Tyson can articulate a non-discriminatory reason for her discharge – “namely, her second suspension for the Facebook posts in October 2012.”

Finally, the court also dismisses the hostile workplace claim on the basis that there’s scant evidence at best of a severe and pervasive harassing environment.

Plaintiff’s claim raises some interesting issues around an employer’s obligation to investigate and be even-handed about disciplining for Facebook posts. The court takes Tyson’s decisions at face value and validates them on the basis that it was not aware of Hooper’s post and need not have disciplined her to show equal treatment. It also takes at face value Tyson’s initial conclusion that Brown authored the post, even though this turns out to be wrong. (See also: “Employee Termination Based on Mistaken Belief of Facebook Post Authorship Upheld — Smizer v. Community Mennonite Early Learning Ctr.“). The same goes for plaintiff’s argument that Hooper’s post was directed at her. While this may be a reasonable conclusion, Tyson took a conservative approach and concluded the opposite. Again, the court respects its conclusion and takes it at face value. The ruling seems to give employers wide leeway in making mistakes, and doesn’t require the employer to scour Facebook to find similarly situated posts when disciplining an employee for Facebook posts. Terminated employees have not fared well with the argument that “other employees posted inappropriately on Facebook but were not disciplined or terminated”.

Employee Facebook activity has been a boon for employers (and employment lawyers). Stray Facebook posts often justify temrination decisions, employees seem to latch on to it in bringing claims, and courts are more than willing to grant summary judgment in these types of cases. I don’t know about whether it makes sense to encourage social media use for employers, but employee social media use has certainly provided employers with ample ammunition in employment cases.

Case citation: Brown v. Tyson Foods, Inc., 13-4065 (W.D. Ark. July 29, 2014)

Landlord May Be Liable When A Tenant’s Facebook Harassment Leads To A Rape (Forbes Cross-Post)

Employee Wins Harassment Claim Based in Part on Co-Workers’ Offsite Blog Posts–Espinoza v. Orange

When Is It Appropriate For Teachers To Call Students “Rat-Like” or “Dunderheads” in a Pseudonymous Blog? Never.

More Proof That Facebook Isn’t The Right Place To Bitch About Your Job–Talbot v. Desert View

Demoting Police Officer for Posting Confederate Flag to Facebook Isn’t First Amendment Violation

Teacher’s Semi-Racy Facebook Photo Doesn’t Justify Firing – In re Laraine Cook

Nurse Properly Fired and Denied Unemployment Due to Facebook Rant

AAUP Says Kansas Regents’ New Faculty Social Media Use Policy Violates Academic Freedom (Guest Blog Post)

Police Officer’s Facebook Post Criticizing Her Boss Isn’t Protected Speech–Graziosi v. Greenville

Employee Termination Based on Mistaken Belief of Facebook Post Authorship Upheld — Smizer v. Community Mennonite Early Learning Ctr.

Social Worker’s Facebook Rant Justified Termination — Shepherd v. McGee