By Brandi O. Brown, J.D.
Evidence at the nonjury trial did not show the city actually believed the employee would hurt or mistreat customers, and its different treatment of a nonwhite employee who advocated killing people based on their race provided strong evidence of pretext.
After a nonjury trial, a federal district court in Tennessee ruled in favor of a white municipal employee on his claims he was discriminated against on the basis of protected speech and race when he was demoted and fired because of a series of Facebook posts and a rally appearance. The employee’s statements, related to the removal of Confederate statues and the Charlottesville riot, “may have been insensitive, offensive, and even bigoted,” the court opined, “but they were protected by the Constitution nonetheless.” The court ordered reinstatement and awarded him backpay and damages of nearly $190,000 (Goza v. Memphis Light, Gas and Water Division, June 14, 2019, McCalla, J.).
Rally and Facebook statements. The employee, a Customer Service Tech III, had worked for Memphis Light, Gas and Water for over 30 years without receiving any customer complaints. All of that changed, however, after he took part in a rally opposing the removal of a Confederate statue from a public park in Memphis on his day off. Footage of him appeared on the nightly news and statements he made were reported the following day. He was quoted as stating, “What I’m tired of is being portrayed as KKK or a white supremacist simply because I’m a white guy who wants to preserve my heritage.”
His appearance at the rally led to public scrutiny of his social media activity. On Facebook he made a much longer statement prior to the rally, including referencing Lincoln’s alleged desire to send black people “back to Africa[,]” stating that black people are responsible for “80% of violent crime[,]” and contending that third world “crap whole [sic]” cities are “majority black and ran by blacks.” In response to another individual’s statement advocating riots and “Eye for an eye,” he stated that he “couldn’t agree more.” Ten customers complained about the employee prior to the end of August 2017.
Suspended. In response to the concerns this raised, the company’s CEO/president instructed HR to conduct an investigation and the employee was suspended. The employer concluded that the employee should be moved to a position in which he would not have contact with customers. He was offered the choice of such a job (which entailed a significant demotion) or termination. He chose termination and filed suit, alleging violation of his right to free speech and race discrimination.
Municipal liability. First, the court concluded that the employer could be held liable because the decision had been ratified by the president and CEO, a municipal policymaker, who had stated that he “would rather [Goza] be in contact with contractors than customers.” And, in fact, the CEO/president ordered an investigation and his awareness of the matter led HR to treat the employee differently.
Not only could the municipal division be liable for the actions taken toward the employee, the court continued, but it was liable. The employee spoke as a private citizen on matters of public concern. He attended the rally on his day off and there was no evidence he made his Facebook posts while he was at work. While his profile did include a picture of him and his daughter in an employer-provided truck, that picture did not establish that the employee’s social media statements were made pursuant to his official duties. While “offensive,” the court explained, the opinions he expressed were on matters of public concern. Moreover, although the employer contended that it was concerned about liability, the employee’s safety, the public’s safety, and the employee’s ability to work in customers’ homes, the court found that the investigation it conducted was limited to gathering evidence about the employee’s statements themselves.
More lenient treatment of another employee. More tellingly, the court noted, the employer responded in a more lenient manner “to similarly inflammatory speech” on social media by a black employee. That employee posted a Facebook live video in which he encouraged boycotting Asian-run stores and advocated violence (”We can start killing these mother****ers too.”) and made other derogatory comments about “Arabs” and “gays.” He also responded to an article about the same events in Charlottesville with the comment, “LOL.” Although the same manager was aware of the other worker’s comments at the time she investigated the plaintiff’s comments, the employer did not examine the other worker’s statements until a year later, at which point it only suspended that employee, whose job was customer-facing, for three days. This led the court to conclude that the employer “did not actually believe that social media comments like [the plaintiff’s] were reasonable indications of future violent or racist actions.”
Public perception concerns insufficient. The employer’s stated concerns about public perception were not sufficient to outweigh the employee’s rights. The employer’s fear, in this case, of “going viral,” was not a reasonable justification for restricting an employee’s speech. “To hold otherwise would permit the government to censor certain viewpoints based on the whims of the public – or, worse, based on a government official’s speculation as to the public’s eventual reaction.” Even if those concerns were permitted, the court added, in this case they were far too speculative, as were the employer’s concerns about the threat of violence or discrimination by the employee. Similarly speculative were the employer’s concerns about the threat of violence to the employee or the employer’s potential liability. With regard to the remaining two elements of the employee’s First Amendment claim, the court had little trouble concluding that the demotion would have resulted in a significant pay decrease and that such a decrease would deter an ordinary person.
Regarding the race claim, the court pointed again to the other employee’s Facebook comments and the employer’s response. The court found the other employee was similarly situated, even if no one had complained about those comments. Moreover, the court noted that the HR manager had “explicitly identified ‘offensiveness to the African American community’ and Goza’s understanding of his ‘white heritage’ as the reasons for firing him.”
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