Employment Law Daily Was husband fired for opposing termination of his pregnant wife, or his Facebook post?
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Friday, March 25, 2016

Was husband fired for opposing termination of his pregnant wife, or his Facebook post?

By Dave Strausfeld, J.D. Whether a husband was fired for opposing his pregnant wife’s termination by their common employer could not be decided on summary judgment, held a federal district court in Utah. While the employer claimed it terminated him after he posted a threatening message on Facebook that appeared to relate to his wife’s firing, a reasonable jury could find that the real reason he was fired was because he had opposed the allegedly discriminatory treatment of his wife. The husband and wife were allowed to move forward to trial on their FMLA retaliation and Title VII retaliation claims (Gardner v. Deseret Mutual Benefit Administrators, March 22, 2016, Nuffer, D.). Wife’s termination. The husband, a manager at a non-profit corporation, married a customer service associate who also worked there. She became pregnant and experienced significant pregnancy-related sickness, eventually requesting FMLA leave for it. When her supervisors allegedly began monitoring her every move and bathroom break, she complained of discrimination. Weeks later, she was fired for alleged poor performance. Husband’s Facebook post. Upset at his wife’s firing, the husband met with the corporation’s general counsel to complain about the wrongful termination of a “pregnant minority” (his wife was Hispanic). Shortly after the meeting ended, the husband posted a Facebook message: “You rue the day you mess with my family. I hear my wife in tears because of the injustice brought upon her. Believe me, justice will be served. I won’t sit by idly and watch the one I love treated like garbage. . . . It’s time to bring the rain!” Husband’s termination. After the Facebook post, which some coworkers forwarded to the corporation’s management, the husband’s work situation went downhill, because he was allegedly treated with hostility and denied supervisory assignments. He eventually agreed to be placed on paid administrative leave. Roughly six months after his wedding day, he was terminated, purportedly because his paid administrative leave had expired without further attempt on his part to resolve the situation caused by his Facebook post. Was Facebook justification pretextual? On summary judgment, the case revolved around the question of pretext. The key issue was whether the husband was fired for opposing his wife’s allegedly discriminatory termination or, as the employer contended, because of the situation surrounding his Facebook post. There was enough evidence of pretext to survive summary judgment, the court found. The husband, it bears noting, denied that the Facebook post concerned his wife’s termination at all. He wrote it, he said, because a heating and cooling repairman had visited his home earlier that same day and made insulting statements to his wife and her parents. Whatever the reason for his Facebook post, it was unclear why the corporation subsequently informed him it desired to resolve both his and his wife’s issues at the same time and before he could return to work. In short, there was a genuine factual dispute about the reason for the husband’s termination. As the court put it, was he fired for his “continued opposition” to his wife’s termination, or was he fired because of “the expiration of his paid administrative leave without further attempt on his part to resolve the situation caused by his Facebook post?” A jury would have to resolve the matter, the court held, allowing the FMLA retaliation and Title VII retaliation claims to proceed to trial. Covenant of good faith and fair dealing. The couple also brought a claim for breach of the implied covenant of good faith and fair dealing, but this claim was dismissed. Under Utah law, an implied covenant of good faith and fair dealing inheres in every contact. But the implied covenant, the court explained, cannot be construed to change an at-will employment contract into a contract that requires an employer to have good cause to justify a discharge. Because the husband’s employment was clearly at-will, no implied covenant altered the corporation’s right to terminate his employment at will.

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