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Social Media Post Almost Sinks Disability Discrimination Suit

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' termination.

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.

The 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.

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