A nurse who posted an angry Facebook tirade could not prevail on claims that her employer, a hospital, fired her in breach of a collective bargaining agreement or violated her free speech rights under the California Constitution, a federal district court ruled. Guevarra v. Seton Med. Ctr., No. 4:13-cv-02267 (N.D. Cal. Dec. 2, 2013).
A nurse at Seton Medical Center posted a rant on Facebook stating that she hated her supervisor and that she had to work on Mother’s Day despite a 17-percent pay reduction. Several co-workers and a hospital manager, who were the nurse’s Facebook “friends,” read the post and one of them reported it to the hospital. The hospital fired the nurse the next day.
After being denied unemployment benefits, the nurse filed a lawsuit in federal district court against her former employer for breach of contract and for violation of her free speech rights under the California Constitution. The hospital moved to dismiss her claims and the district court granted the motion.
The breach of contract claim was dismissed for failure to exhaust contractual remedies under the collective bargaining agreement. The court reasoned that the grievance procedure was mandatory. The agreement expressly provided: “The parties shall use the following procedure in an effort to resolve any grievances which may arise during the term of the Agreement.” The court also rejected the plaintiff’s contention that she was excused from exhausting the grievance procedure due to certain flaws in her union’s representation because she failed to allege the union breached its duty of fair representation.
The court also dismissed the free speech claim under Article I, Section 2 of the California Constitution. That Section provides: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.” The plaintiff argued that the California Constitution is broader than the U.S. Constitution’s First Amendment and should be interpreted or extended to actions of private employers, like the employer. The court rejected this argument, reasoning that the case authority she cited (e.g., Press v. Lucky Stores (1983) 24 Cal.3d 311, and Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 910) were not similar to her case insofar as they involved speech occurring at privately owned shopping centers that were open to the public. Nothing in those cases, the court explained, broadly discussed the application of the California Constitution to private actors. Rather, they discussed “restrictions private property owners placed on people exercising speech rights on private property…that has been opened to the publish such that the property in essence becomes a public forum.”
The nurse did not allege and the court did not address whether she was terminated for engaging in protected concerted activity under the National Labor Relations Act.
Employers should think twice and consult with labor counsel before terminating an employee for posting information online to ensure they are in compliance with the law.