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‘Rules for Society’ Facebook Post Results in Discharge
 

By Allen Smith  11/19/2013
 

A state employee who was fired for sarcastic posts on Facebook lost her First Amendment claim on Nov. 7, 2013.

Jennifer Shepherd, a child protective services worker at the Oregon Department of Human Services (DHS), went to juvenile court six to eight times per month on behalf of children who she had determined should be removed from their home because they weren’t safe there.

But her Facebook posts suggested she was a disgruntled employee.

Snarky Posts

“So today I noticed a self-sufficiency client getting into a newer BMW. What am I doing wrong here? I think I need to quit my job and get on TANF” [Temporary Assistance for Needy Families],” she commented on her Facebook page. “Almost every client home I go into has a gigantic flat screen TV. I ask how they paid for it, and it’s usually with their tax returns … yet they don’t pay taxes! You should let me know when you send people to jail and I can get their ‘benefits’ turned off.”

And in another post, she said, “I was listening to the radio and they were making up rules for society. Here are my rules: 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. … It’s sterilization for you buddy! 3) If you are on public assistance and don’t pay taxes, you shouldn’t get taxes back from that child tax credit. 4) If you are on public assistance, you may not own a big flat screen television. 5) If you receive food stamps, you should be limited on what you may purchase (no more ribeye steaks, candy, soda, chips, etc.). 6) If you physically abuse your child, someone should physically abuse you. 7) I should be president so I can make up more rules. 8) If you don’t like my rules, too bad. I have a Ph.D., and you don’t, so I get to make up my own imaginary rules.”

The posts were seen by Shepherd’s Facebook friends, including defense attorney Mingo Vidrio and Polk County Circuit Court Judge Fred Avera. A DHS manager forwarded the posts to Ken McGee, an HR manager.

Impartiality Compromised

McGee thought the posts reflected Shepherd’s opinions, and he did not find them humorous or ironic. He thought her “rules for society” post showed her own bias, which, in her position, she was supposed to put aside.

Shepherd was placed on leave and then terminated.

Deputy District Attorney Max Wall said the content on Facebook “would also likely require questioning as to her viewpoints on the abuse of children each time plaintiff took the stand in such a case and would likely hamper current and future cases.”

Department of Justice Senior Assistant Attorney General Brian Raymer believed that Shepherd was “terminally and irrevocably compromised” and said her Facebook posts would prevent him from ever calling her as a witness. In his opinion, her statements would create trust issues with DHS clients and would reflect adversely on DHS in the relevant local community.
Work Disruption

Shepherd argued that there was “no evidence that her speech actually caused disruption in the workplace and her credibility as a witness was never actually impeached.” But the court didn’t buy it.

“Wall’s and Raymer’s declarations establish actual, material and substantial disruption to their working relationships with plaintiff,” the court said. “Even without actually having her testimony impeached at a hearing, plaintiff’s Facebook posts caused Wall and Raymer to doubt her ability to be effective.

“That doubt, even without anything more, is a disruption to those working relationships and is evidence that her ability to perform that aspect of her job would be impaired. Second, because plaintiff was placed on administrative leave and unavailable to Wall or Raymer during her leave and then she was terminated, there was no opportunity for Wall or Raymer to use plaintiff as a witness.”

The federal district court concluded, “The government employer does not have to compromise its function by allowing the employee to actually cause disruption or fail to perform his or her job duties in order to establish an impairment in efficient operations.”

The case is Shepherd v. McGee, No. 03:12-cv-02218-HZ (D. Ore. 2013).

Allen Smith, J.D., is the manager of workplace content for SHRM. Follow him @SHRMlegaleditor.

 

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