Federal Court in New York Rules that Employee Terminated in Part Due to Threatening Facebook Post Can Take Retaliation Claims to Trial

A New York federal court recently held that a plaintiff that was terminated in part due to a threatening Facebook post could take his retaliation claims to trial. The plaintiff, Richard Verga, worked as a paramedic for Emergency Ambulance Services, Inc. After Verga experienced what he claimed were unwanted sexual advances from another paramedic, he immediately reported the incident to management. That same day, Verga made an entry on his own Facebook page, threatening “the mother fucker who thought today was a joke” by stating that he would “knock [that individual’s] fucking teeth out, break [his or her] jaw [and] every bone in [his or her] left arm.”

The employer’s HR Director investigated Verga’s claim, and eventually required the alleged harassing employee to apologize to Verga and attend sexual harassment training. Based on the Facebook post and concerns regarding Verga’s angry behavior raised by other employees, the HR Director also presented Verga with a letter requesting Verga to acknowledge that his complaint had been addressed, and that Verga would attend an anger management seminar. Though Verga initially signed the letter, ten minutes later he requested the return of the letter and ripped it up.

In opposing the employer’s summary judgment motion, Verga stated that he ripped up the letter because, after speaking with his attorney, he understood the letter as an acknowledgment that the employer had handled his claim properly, but he felt that his claims were not handled properly. Verga also stated that although he would not sign the letter, he did agree to attend the anger management class. About a week later, the employer notified Verga it was terminating his employment.

Verga filed a lawsuit against the employer, alleging several claims, including retaliation.  The employer eventually brought a summary judgment motion, arguing that it had established a non-discriminatory motive for the termination. It pointed to Verga’s Facebook post, his concerning behavior as reported by other employees, and his behavior when presented with the letter, including his “failure to sign the letter agreement to participate in the . . . [anger management] seminar.”

In his opposition, Verga submitted testimony that he only objected to the letter because he understood it as an acknowledgement that the employer had properly handled his complaint, which he disputed, and further, that he did indeed agree to attend the anger management seminar. The court found that Verga’s testimony, “coupled with the temporal proximity between the complaint and the termination,” could lead a reasonable trier of fact to determine that Verga was terminated as a result of his sexual harassment complaint. Accordingly, the court denied the employer’s summary judgment motion.

While the factual and legal circumstances in this case led to the trial court to decide to deny the employer’s summary judgment motion, as we have noted previously in this blog, courts and the NLRB regularly have determined that employee posts on social media that violate the employer’s policies or constitute unlawful activity may be a legitimate basis for corrective action, including termination of employment. Thus, where employers become aware of employees’ social media posts that might violate company policies or constitute unlawful activity, employers generally should look into, consider, and take appropriate measures to address such activity.

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