Regular readers of this blog should know to be careful what they post on
social media, especially with regard to their employers. One employee
found this out the hard way, though he got lucky when a court found in
his favor anyway.
Allan Thomas brought an employment discrimination case in Louisiana against
Fred Hill, Jr, who owns Home Appliance Parts and Service and several related
companies. He is alleging that Hill discharged him in violation of the
Americans with Disabilities Act. Trial is set for September 15, 2014.
Four months after Thomas was fired, in response to a Facebook query as
to whether he has worked things out with his employer, he responded: "HELL
NO! I'M SUING THE CRAP OUT OF HIM BUDDY! I won't ever go back
to work for him." He went on to describe a job that he had done in
another state and the possibility of future employment. He also described
the lawsuit he filed against the owner, including how much he thought
the suit was worth. Hill produced a copy of the post in discovery and
Thomas brought a motion to exclude the post.
Opposing the motion, Hill contended that the post was relevant to show
Thomas' hostility towards Hill, which it contended was the cause of
his discharge. Moreover, Hill argued that the post showed Thomas'
"retaliatory and pecuniary motive" for filing suit. Finally,
Hill contended that the post put Thomas' credibility at issue and
also contained an admission against interest regarding his ability to
work. That relevance, Hill argued, was not outweighed by other considerations.
Specifically, it contended that the four month removal from the termination
date made it impossible to explain as only an angry reaction. Thus, Hill
claimed, it provided proof of the non-discriminatory reason for Thomas'
In reply, Thomas argued that because the remarks were made after the termination,
they were not relevant to alleged hostility before the discharge. He also
took issue with the claim that the post showed pecuniary and retaliatory
motive, noting that all damage-seeking suits had a pecuniary motive. Thomas
also disputed that the post had any relevance to whether he was disabled
or perceived as disabled four months before. Thomas further argued that
the post would be confusing and misleading for jurors with regard to an
argument that he was not disabled. He did not dispute that he could work.
Finally, Thomas challenged Hill's contention that four months was
too far removed for the post to be an angry reaction, when it also allegedly
fired him because of an event that occurred 17 months before his termination.
court found in Thomas' favor. The post should be excluded, the court concluded,
because its relevance was "substantially outweighed by the danger
of unfair prejudice, confusing the issues, and/or misleading the jury."
It was clear to the court that Thomas would not dispute the work that
he had done after termination and that fact could be placed into evidence
by Hill. If, instead, the post were allowed into evidence, a jury could
be "swayed by improper considerations because of the angry nature
of the post, rather than focus on its limited relevance."
It was still a close call for Thomas, since even though finding in his
favor, the court found that the post did have some marginal relevance
to his actual disability claim to the extent that it referenced his work
a few months after his discharge. It could be argued, the court explained,
"that the fact that he was back working within a short time period
after that date makes it less likely that he was disabled."
The takeaway: Don't make comments about your employer, good or bad,
on your social media outlets. Nothing good can come of it, whether or
not you are in litigation.