Stewart v. CUS Nashville, LLC, No. 3:11-cv-0342, 2013 U.S. Dist. LEXIS 16035 (M.D. Tenn. Aug. 8, 2013) serves as a cautionary tale to employers about the disastrous impact that can happen when managers and social media collide. And while this case turned out well for the employer in the end, that end was after a long and expensive two-day bench trial that I am sure the employer would have much rather avoided.
If you are not familiar with the Stewart case, here is the background you need to know. CUS Nashville, LLC owns Coyote Ugly franchises. (Yes, the one from the movie.) The case was brought as a collective action by two Coyote Ugly bartenders under the Fair Labor Standards Act (“FLSA”) alleging an unlawful tip-pooling policy. Where it gets interesting though is when some of the higher-ups within Coyote Ugly took to social media to complain about the lawsuit and to go after some of the class plaintiffs.
First, Liliana Lovell (“Lil” from the movie…you remember) wrote a post on her blog “Lil Spill,” which is hosted on Coyote Ugly’s website, and made some comments about the case, including:
“This particular case will end up pissing me off[,] cause it is coming from someone we terminated for theft.”
Well that “someone we terminated for theft” just happened to be Misty Blu Stewart, the class representative plaintiff. Even though Ms. Stewart had indeed been fired for stealing and had already found a new job and had no economic damages, she claimed she was damaged because she was “humiliated and embarrassed” by the blog post. So what did Ms. Stewart do? She amended her FLSA complaint to add an individual claim for retaliation under the FLSA.
Next, in another Coyote Ugly franchise not so far way, another social media incident was brewing. The Oklahoma City Coyote Ugly was celebrating its anniversary. Mr. Huckaby, the Director of Operations, visited the bar to attend the celebration. While there, he got wasted (or at least that was his excuse), and while wasted he started to engage in Drunken Facebooking. (It is a real thing. It even has its own Facebook page – “Drunken Facebooking”.) During his Drunken Facebooking session, he posted on his Facebook page:
"Dear God, please don't let me kill the girl that is suing me . . . that is all. . ."
That “girl that is suing me” that Mr. Huckaby was trying his hardest not to “kill” was Sarah Stone, a Coyote Ugly employee, class member and girl he just happened to be a few feet away from when he likely made the post (judging by the time of the posting). Well, Ms. Stone just happened to be Facebook friends with Mr. Huckaby (this is why we tell supervisors not to be “Friends” with subordinates) and she saw the post and assumed Mr. Huckaby was talking about her. He removed the post later that night (again while drunk), but the damage was done, and after Mr. Huckaby made some other outburst about people suing the company, Ms. Stone quit her job. Ms. Stone amended her suit to also include an individual claim of constructive discharge.
Coyote Ugly moved to dismiss the claims, but the court held that there was a genuine issue of material fact and refused to throw them out. The case proceeded to trial and the court found for the plaintiffs in regards to their FLSA claims, but held that neither the blog post nor the Facebook post constituted “adverse actions” or were sufficient to amount to constructive discharge and dismissed Ms. Stewart’s and Ms. Stone’s retaliation claims.
The Court’s Ruling on Ms. Stewart’s Retaliation Claim
Before I go into the individual review of Ms. Stewart’s individual claim, it is important to keep in mind that there is a difference between an “adverse employment action” in the discrimination context and an “adverse action” in retaliation context. An “adverse employment action” in discrimination cases must be tied to employment, like a transfer, a demotion, a bad review, a termination, something like that. An “adverse action” for retaliation purposes, however, only has to be something that "might have dissuaded a reasonable worker from making or supporting a charge of discrimination." This means, the action can occur while on the job, off the job, or even on social media. So, you can see where the posts were at least arguably sufficient to bypass summary judgment given the low threshold. Here is what the court found in finding the claims had no merit.
At the trial stage, the court reviewed Ms. Stewart’s retaliation claim and her evidence and concluded Ms. Stewart's retaliation claim failed because she could not prove Lil’s blog was a materially adverse action and noted, "[t]o be materially adverse, an adverse action 'must be more disruptive than a mere inconvenience or an alteration of job responsibilities.'" Citing Kocsis v. Multi-Care Mgmt., 97 F.3d 876, 886 (6th Cir. 1996)). Here, the evidence failed to show that the blog post, which did not identify Ms. Stewart, caused any significant disruption to her current employment, which Ms. Stewart actually conceded at trial. In addition, while Ms. Stewart’s boyfriend, counsel, and a former customer saw the blog post, Ms. Stewart had no evidence that demonstrated that this caused her any tangible detriment and, therefore, that she had suffered any economic damages. She had also not sought any treatment for the “embarrassment” she allegedly suffered. With that, the court threw out her retaliation case.
The Court’s Ruling on Ms. Stone’s Retaliation Claim
In reviewing Ms. Stone’s constructive discharge claim, the court noted the standard for a viable claim. For Ms. Stone to prevail, she had to prove: (1) Coyote Ugly deliberately created intolerable working conditions, as perceived by a reasonable person; (2) it did so with the intention of forcing the employee to quit, and (3) that she actually quit. This is judged under the reasonable person standard and numerous factors are reviewed in determining whether a reasonable person would have felt compelled to resign, including, whether the employee suffered: (1) a demotion; (2) a reduction in salary; (3) a reduction in job responsibilities; (4) a reassignment to menial or degrading work; (5) a reassignment to work under a younger supervisor; (6) was subjected to badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation; or (7) was offered of early retirement or continued employment on terms less favorable than the employee's former status.
Ms. Stone had no evidence showing Coyote Ugly deliberately created intolerable working conditions calculated to encourage her to resign based on the two incidents involving Mr. Huckaby. Heck, the court found that Ms. Stone had not even proven that she was the intended target of Mr. Huckaby’s Facebook post or later comment because she was never mentioned by name and neither was the suit.
Takeaways: This is good news for employers. Since Coyote Ugly’s motion for summary judgment was denied, I have been presenting on this case and warning employers of the potential for retaliation and constructive discharge claims based on managers’ social media posts. This case certainly does not let employers, and their managers and supervisors, off the hook for their social media postings, but it does indicate that courts will require more than conclusory, non-targeted statements made on social media that cause no actual harm before it will deem them “adverse actions” in the retaliation context or amount to harassment or humiliation sufficient to support a constructive discharge claim.
Employers need to keep in mind that an adverse action for a retaliation claim is a lower threshold than that required for an adverse employment action for a discrimination claim. So employers keep this language in mind: "might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” That is all an action needs to be able to do for an employer to be liable. So, if you, or one of your managers or supervisors, takes an action, whether it be during work, in the context of work, outside of work or on social media, it can be used by an employee, including a former employee, to base a retaliation claim if that employee has previously engaged in protected activity. It may also be used to support a constructive discharge claim depending on the actual content of the post and resulting damage. So please train your employees on this and also, try to dissuade your managers and supervisors from being Facebook “friends” with their subordinates or “following” them on Twitter. In addition, and although I don’t know exactly how you stop a supervisor from engaging in Drunken Facebooking, I would also encourage you to warn your managers about engaging in this conduct as well. If you have ever seen either of these situations go well for an employer, please let me know because I have not, and am always looking for new material.