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.