Updates on cases, laws, and other topics of interest to local governments

Subscribe by Email

Enter your Email:
Preview | Powered by FeedBlitz

Subscribe in a Reader

Follow Municipal Minute on Twitter


Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Friday, March 24, 2017

Court Upheld Termination of Firefighter for Facebook Conduct

In another installment of "be careful what you post," today we report on a case involving a firefighter's termination for his Facebook messages. Grutzmacher v. Buker (Mar. 20, 2017, 4th Cir.). Based on this ruling, social media posters should also be careful what they "like" - further discussion below.

In 2013, the Howard County, Md fire department adopted a social media policy that governed employee use of social media, both on and off the clock, including the following prohibitions: 
posting or publishing any statements, endorsements, or other speech, information, images or personnel matters that could reasonably be interpreted to represent or undermine the views or positions of the Department. . . . [and] posting or publishing statements, opinions or information that might reasonably be interpreted as discriminatory, harassing, defamatory, racially or ethnically derogatory, or sexually violent when such statements, opinions or information, may place the Department in disrepute or negatively impact the ability of the Department in carrying out its mission. 
In 2013, a battalion chief on the department engaged in various Facebook activities that ultimately resulted in his termination. His postings included the following: 
My aide had an outstanding idea . . lets all kill someone with a liberal - then maybe we can get them outlawed too! Think of the satisfaction of beating a liberal to death with another liberal - its almost poetic.
A Facebook friend of the chief’s, a county volunteer paramedic, replied to the chief’s post as follows: 
But ...was it an "assult liberal"? Gotta pick a fat one, those are the "high capacity" ones. Oh pick a black one, those are more "scary". Sorry had to perfect on a cool idea!
The chief "liked" the paramedic’s comment and replied, "Lmfao! Too cool…!"

After being contacted by the department, he removed the posts, but then followed up with the following Facebook post: 
To prevent future butthurt and comply with a directive from my supervisor, a recent post (meant entirley in jest) has been deleted. So has the complaining party. If I offend you, feel free to delete me. Or converse with me. I'm not scared or ashamed of my opinions or political leaning, or religion. I'm happy to discuss any of them with you. If you're not man enough to do so, let me know, so I can delete you. That is all. Semper Fi! Carry On.
The department dismissed the chief based on his violation of the social media policy and the department’s code of conduct, as well as the racial overtones of his postings, his failure to enforce department policies and his "repeated insolence and insubordination." He sued the department seeking reinstatement and damages, alleging that the dismissal was retaliation for his exercise of his free speech rights under the First Amendment. He also challenged the policies themselves as overbroad.

Both the district court and the Fourth Circuit Court of Appeals ruled in favor of the department on his retaliation claim, rejecting the chief’s claims that his termination violated his free speech rights. The Fourth Circuit held that the department’s interest in preventing disruption outweighed his interest in speaking out on Facebook on matters that related very little, if at all, to any “public concern.” The court noted that his Facebook activity interfered with and impaired department operations and discipline as well as working relationships within the department-which are critical where collaboration is necessary to save lives. The court also acknowledged that his Facebook activity conflicted with his responsibilities as a battalion chief and role model, and undermined the department's public safety messaging. There was evidence that at least three African-American firefighters in the department did not want to work with plaintiff because of the racists overtones in his Facebook messages. It was also overtly disrespectful of his superiors and the department in general.

One of the most interesting issues in the case related to the chief's "liking" of another person's post. The chief argued that a "like" could not be attributable to the chief. The court disagreed, stating that "liking a Facebook post makes the post attributable to the “liker,” even if he or she did not author the original post." The court cited the Bland v. Roberts case that involved a group of deputy sheriff's who "liked" their boss's opponent's campaign page during an election.  

As a side note, the department had modified its social media policies to address the challenges made by the chief that it was overbroad and the court subsequently dismissed that count.

In conclusion, the court upheld his termination.

Note that any misspellings in the quoted language are in the original.

Post Authored by Julie Tappendorf


Post a Comment