On November 7, 2013, the United States District Court for the District of Oregon rendered its decision in the Shepherd v. McGee case regarding private sector employees’ free-speech rights in their employment. The Court decided that contrary to employees in the public sector, employees in the private sector do not enjoy such rights. Therefore, when there is a First Amendment challenge to a Facebook firing, it is most likely that employers will continue to prevail – as in the instant case.
In this case the plaintiff worked as a caseworker for child-protective services at the Department of Human Services (DHS). In that role, she investigated reports of child abuse and neglect that came to her attention. One of her primary functions was to prepare juvenile court cases and make recommendations for juvenile court disposition. If she determined that the home was unsafe, she worked with the District Attorney’s Office to petition the court for protective custody. In making these determinations, she was supposed to be “a neutral appraiser of the settings in which the children live” and was not supposed to consider the employment status, religious beliefs, or political beliefs of the adults in the home, or concern herself with how they chose to spend money or furnish their home.
On her Facebook page, Plaintiff identified herself as a caseworker for the DHS but failed to include a disclaimer stating that the opinions were her own and not those of her employer. Plaintiff had hundreds of Facebook friends, including a judge, at least three deputy district attorneys, several defense lawyers, and more than a dozen law-enforcement officers.
She posted several negative comments about clients who drove luxury vehicles or had expensive home-entertainment systems. In another post, she proposed a set of “rules for society,” which included:
(1) If you are on public assistance, you may not have additional children and must be on reliable birth control . . . (2) If you’ve had your parental rights terminated by DHS, you may not have more children . . . (4) If you are on public assistance, you may not own a big flat screen television; . . . (6) If you physically abuse your child, someone should physically abuse you.
A DHS manager forwarded a copy of those posts to the Director of HR. When confronted with the posts, Plaintiff admitted that she had written them and that she did hold some of the opinions that she’d expressed in the posts. She was put on administrative leave while the matter was investigated and her employment was subsequently terminated.
She filed suit, alleging that her termination constituted a violation of her constitutional right to free speech. The suit was dismissed on summary judgment. The court explained that:
“Even if Plaintiff had widely distributed her comments to the public and even if they struck at the core of First Amendment protection, the balance would still tip in DHS’s favor given the record of potential disruption. Defendant has established as a matter of law that he had an adequate justification for treating Plaintiff differently than any other member of the general public”.
If you believe that your First Amendment rights as an employee are being violated, please contact The Harman Firm, LLP.