Social networking websites can be a source of litigation and Human Resources nightmares. These sites can also blur the lines between one’s personal and professional life.
In Marshall v. Mayor of Savannah a probationary female firefighter was first reprimanded and then fired for her conduct during the reprimand originating from her MySpace photos. Marshall v. Mayor of Savannah, 2010 U.S. App. LEXIS 3233, 3-4 (11th Cir. Ga. Feb. 17, 2010).
We Didn’t Start the Fire: The MySpace Profile
The official photos from the City website posted on the firefighter’s MySpace profile required official permission before they could be posted anywhere else. Additionally, firefighters are prohibited from using their position as firefighters for personal fame or gain.
The other photos posted of the MySpace included one named “Fresh out of the shower” and another that was either a nude or semi-nude figure modeling photo that promoted the firefighter’s modeling activities. Marshall, at *2-3.
Code 3 Lights & Sirens
A fire captain reviewed the photos, which were publically available on the MySpace profile, and printed them. Marshall, at *3.
After discussion between three Fire Chiefs, the decision was made to give the firefighter an oral reprimand pursuant to the Fire Department’s rules and regulations because the photos were a “discredit to [the] City and Savannah Fire Department.” Marshall, at *4. This was the lowest form of punishment available for “unbecoming conduct” where her position with the Fire Department was used “to enhance and to seek personal publicity” without official permission. Id.
Or as one of the Fire Chiefs stated, “At Savannah Fire we work at having a positive image, and we want to be viewed as a professional, competent department with outstanding members. We don’t want to be viewed as the fire department with female firefighters wrapped in towels.” Marshall, at *5.
The Fire Department issued a memo to all hands about using official photos and insignia on websites. Everyone was told to remove such images within a week. Marshall, at *6.
A Burning Reprimand
The oral reprimand did not go according to plan.
The three Fire Chiefs met with the firefighter to discuss her MySpace photos. The firefighter was informed the photos violated the Department’s rules and regulations. At that time, she was given an oral reprimand, because she lacked permission to use the official photos. Marshall, at *6-7.
The firefighter did agree to remove at least one of the official photos from the Fire Department. Marshall, at *7. However, the firefighter questioned whether the Chiefs had shown the photos to anyone else, denied any wrongdoing, and refused to remove photos from another public safety agency, even though she was ordered to do so. Marshall, at *7.
The firefighter refused to sign the reprimand. There is debate on whether the firefighter became defensive during the meeting with the Chiefs. Regardless, the firefighter claimed she was singled out because “other firefighters” had similar MySpace photos. Marshall, at *7-8. When questioned on who these firefighters were, the firefighter refused to name names. Marshall, at * 8. While the firefighter finally signed the reprimand, she added she denied committing any wrongdoing on the document. Marshall, at * 9.
…and then Fired
The firefighter was fired three days after the reprimand for insubordination and “denial of violation of Fire Department policy, disrespect toward administration and Chief Officers, [and] disregard for [the] oath of a Savannah Fire Department Firefighter.” Marshall, at * 9-10.
Procedural History from the District Court
The District Court granted a summary judgment for the City. The different causes of action failed for different reasons, including a failure to assert a racial discrimination claim in the Charge of Discrimination with the Equal Employment Opportunity Commission. Marshall, at *11.
The District Court found the firefighter (now the Plaintiff) failed to make a “prima facie case of disparate treatment because she did not establish that other similarly situated male employees were treated more favorably.” Marshall, at *12.
The District Court held the retaliation claim was first pled in the Plaintiff’s response to the motion for summary judgment. As such, there was no fair notice to the Defendants, who did not question this claim during the firefighter’s deposition. Marshall, at *12. As such, the claim failed on procedural and prejudicial grounds.
The District Court further held her MySpace photos were not entitled any First Amendment production. Marshall, at *12.
Court of Appeals: Putting Out the Fire
The Court of Appeals affirmed the District Court’s summary judgment on the firefighter’s gender discrimination and retaliation claims. Marshall, at *26.
The Plaintiff argued she suffered gender discrimination because she had a more severe punishment for her MySpace photos then male firefighters who also might have violated Department rules.
Without reciting all of the standards and tests for gender discrimination in the Court of Appeals’ analysis, the Court of Appeals held the Plaintiff failed in her burden to demonstrate that male employees who possibly engaged in similar conduct were treated differently than her. Marshall, at *17.
The Court of Appeals discussed that even if there were male firefighters who violated the rules on photos, the Fire Department Chiefs lacked knowledge of who those individuals were. Marshall, at *17. As stated before, when one of the Chiefs asked who were the other firefighters with the violating photos, the Plaintiff refused to name those individuals. Marshall, at *17-18. Moreover, one Chief stated that if there were other violators “they would have been treated exactly the same way as” the Plaintiff. Marshall, at *18.
Since there was no proof the Chiefs had knowledge of other firefighters violating any of the City or Department’s rules and regulations, the Plaintiff could not make a prima facie case of gender discrimination. Marshall, at *18.
The Court of Appeals found the Plaintiff failed to plead a Title VII retaliation claim. Marshall, at *22. These pleading defects included statutory failures and alleging facts that showed the Plaintiff engaged in a protected activity. Marshall, at *23. The Court of Appeals further agreed that the lack of notice for the retaliation claim prejudiced the Defendant to support the Court’s ruling. Id.
Bow Tie Thoughts
This case would have raised some very interesting issues if the fire captain had not been able to access the photos publically and questioned the Plaintiff on a private profile.
Can an employer, after receiving a complaint and launching an investigation, compel an employee with strict public performance guidance to show what is on a private profile? What if this private profile was accessed from a work computer?
It is a matter of time before that case is litigated.
Thoughts on Social Networking
I think cases like this one will come up again. This was not the first social networking case and it certainly will not be the last.
Social networking sites allow for a collision between professional and private lives in ways people are still beginning to understand. Human Resource departments are either developing polices or realizing they need to develop policies.
Social networking sites are an excellent way to promote oneself, find people with similar interests and learn about industry trends. These sites also excel at putting people back in touch with classmates from grade school to grad school.
However, people need to be very careful when mixing their professional lives with their personal ones online.
One potentially hot button issue is someone posting a political charged status messages that can offend anywhere from 49% to 51% of their “Friends.” If someone has coworkers as “Friends” who disagree politically with a comment, it is not hard to imagine that causing strife, perhaps just under the surface, in the office.
I think the best advice for those mixing professional and person lives is to be careful what photos or comments you post.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.