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Facebook Comment ‘Suck It’ Violated Settlement

By Allen Smith  3/5/2014
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The courts mean serious business about nondisclosure clauses of settlement agreements, a recent decision by the Florida District Court of Appeal shows.

When Gulliver Schools did not renew Patrick Snay’s 2010-11 contract as headmaster, he filed a two-count complaint asserting causes of action for age discrimination and retaliation under the Florida Civil Rights Act. On Nov. 3, 2011, the parties executed a settlement agreement under which the school would pay $10,000 in back pay, $80,000 as a “1099” miscellaneous income and $60,000 to Snay’s attorneys.

Confidentiality Provision Breached

The agreement included a detailed confidentiality provision stating that the existence and terms of the agreement between Snay and the school were to be kept strictly confidential and that should Snay or his wife breach the confidentiality provision, they would forfeit the $80,000 portion of the settlement proceeds.

Nevertheless, Snay told his daughter that he’d settled and that he and his wife were happy with the results.

She, in turn, posted on her Facebook, “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”

The post went out to approximately 1,200 of the daughter’s Facebook friends, many of whom were current or past Gulliver students.

The school informed Snay that he had breached the agreement and that it was not going to pay Snay’s portion of the settlement, just the attorney’s portion.

Snay filed a motion to enforce the settlement, arguing that his statement to his daughter and her comment did not constitute a breach.

‘Need to Tell Daughter’ No Excuse

“The fact that Snay testified that he knew he needed to tell his daughter something did not excuse this breach,” the court said, ruling for Gulliver on Feb. 26, 2014. “There is no evidence that he made this need known to the school or to his or its attorneys so that the parties might hammer out a mutually acceptable course of action in the agreement.”

It did not matter to the court that “what happened is that after settlement my wife and I went in the parking lot, and we had to make some decisions on what we were going to tell my daughter. Because it’s very important to understand that she was an intricate part of what was happening. She was retaliated against at Gulliver. So she knew we were going to some sort of mediation. She was very concerned about it. Because of what happened at Gulliver, she had quite a few psychological scars which forced me to put her into therapy.”

Regardless, the court observed that “before the ink was dry on the agreement, and notwithstanding the clear language of section 13 mandating confidentiality, Snay violated the agreement by doing exactly what he had promised not to do. His daughter then did precisely what the confidentiality agreement was designed to prevent, advertising to the Gulliver community that Snay had been successful in his age discrimination and retaliation case against the school.”

This case is Gulliver Schools Inc. v. Snay, No. 3D13-1952 (Fla. Dist. Ct. App. 2014).

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

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