Nurse Using Abusive Language Toward Hospital Administrator On Facebook Justifies Firing

Richard Raysman is a Partner in our New York office

As this blog has covered on a number of occasions, employee speech on Facebook, particularly if it is profane, vituperative or threatening, can lead to termination. A number of courts in recent months have grappled with the tension between free speech and workplace cohesion and professionalism, largely in the context of First Amendment claims against public employers. A recent case, though decidedly largely on procedural grounds and concerning a private employer, adds to the canon of law concerning the implications of hostile Facebook speech.

In Guevarra v. Seton Medical Center, No. C 13-2267 CW, 2013 WL 6235532 (N.D. Cal. Dec. 2, 2013), the plaintiff, a nurse at Seton Medical Center (Seton), a privately owned hospital, posted on Facebook about her administrator:

"Instead of spending my birthday celebrating, I will be working all night cleaning up feces. I hate loathe that effin heffer!!! Burn in hell you effed up spawn of satan. I curse you and wish you a lifetime of pain and suffering. That is not enough, right now I would give anything you smack you down and pound you to unconsciousness. Tang ina mo!!!!!" The post was published to various "friends" and then forwarded to Seton. Seton called the police and ultimately terminated the plaintiff a day later. Thereafter, the plaintiff applied for unemployment benefits. Under the California Insurance Code § 1256, an individual cannot receive these benefits if discharged for misconduct connected with an individual's most recent job. Ultimately, the California Unemployment Insurance Appeals Board (CUIAB) denied the plaintiff's request for benefits on myriad grounds, including that the Facebook post undermined workforce morale and violated Seton's policy prohibiting harassment and the use of abusive language or behavior.

The plaintiff then filed suit against Seton and CUIAB alleging a violation of free speech under the First Amendment and the California Constitution, and breach of...