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Free Speech

Firing Based on Employee's Pre-Employment Social Media Posts Leads to Discrimination Lawsuit;

federal court allows the case to go forward.


From Watson v. Philadelphia Parking Auth., decided Monday by Judge Cynthia Rufe (E.D. Pa.):

Plaintiff describes himself as an African-American, homosexual male. He began working at the PPA on February 24, 2020, as a "Data Officer." On his first day of employment, Plaintiff was given a copy of the PPA's social media policy and the employee handbook. Before and during his employment with the PPA, Plaintiff maintained various social media accounts. During Plaintiff's first week of employment, Defendant received an anonymous complaint regarding Plaintiff's social media use. The anonymous complaint referenced posts written before his employment and one post written on February 26, 2020, after Plaintiff started at the PPA, stating "this guy has the prettiest ass…I hope his girlfriend knows how lucky she is!" The post did not include a photograph or identify the individual.

Plaintiff testified in his deposition that during a meeting about the post, his direct supervisor, Deputy Executive Director Clarena Tolson, told him that "heterosexual men, employees, wouldn't want to work with [Plaintiff] without—without fearing for their safety and that people could consider [Plaintiff] a sexual predator because of it." Plaintiff further testified that Richard Dickson, the First Deputy Executive Director, then told him, "I'm sorry, I don't know how it feels to be a Black, gay man, but [ ] gay men are under so much scrutiny here," and that because Plaintiff was "coming from multiple identity groups" he "would face even higher scrutiny." Tolson and Dickson determined that Plaintiff did not create this post during work time, it did not refer to a PPA employee, and it did not violate the company's social media policy. Scott Petri, the Executive Director of the PPA, was not in this meeting and Plaintiff asserts that Petri refused to meet with him.

The PPA then received another complaint about posts pre-dating Plaintiff's employment. This resulted in further scrutiny of posts written while Plaintiff was employed by the PPA, and three in particular, which were posted on February 24 and 25, 2020. The first of these posts read "City benefits are already nice…but these PPA benefits!!! mah gahd!" The second depicted images of Plaintiff's office and name plate with the caption, "y'all someone called me 'Mr. Watson' today and damn I near had an anxiety attack." The last post stated, "I need some interns, data analysts, gis analysts, dbas, and project managers! i'm probably going to be working on staffing plans this weekend. honestly, hella excited. i just got 5 projects given to me." Plaintiff was fired on March 3, 2020, eight days after he started.

The court allowed plaintiff's race and sexual orientation discrimination claim to go forward:

In the absence of direct evidence of discrimination, the Court applies the burden-shifting framework established in McDonnell Douglas Corp. v. Green. This requires that the employee first establish a prima facie case, after which the employer must come forward with a legitimate, non-discriminatory reason for the adverse employment decision. If the employer does so, the employee must then demonstrate that the proffered reason was merely a pretext for unlawful discrimination. To make a showing of pretext, the plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) "disbelieve the employer's articulated legitimate reasons, or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." …

Plaintiff argues that the comments made at the meeting about his status as a "gay, Black man" give rise to an inference of discrimination based on his sexual identity and race. Defendant argues that this merely constituted a "stray remark" by a non-decisionmaker, and is not evidence of discrimination. The Third Circuit has held that "[s]tray remarks by non-decisionmakers or by decisionmakers unrelated to the decision process are rarely given great weight, particularly if they were made temporally remote from the date of decision." In this case, however, Plaintiff testified that the remarks were made by PPA senior officials less than one week prior to his termination and were central to the discussion regarding his social media posts. Thus, Plaintiff has adduced facts that he was scrutinized differently because of his race and sexual orientation….

Defendant has offered a non-discriminatory basis for Plaintiff's termination, arguing that "the manner in which [Plaintiff had] opted to use social media demonstrate[d] a serious lack of discretion and violates basic standards of conduct that any employer would reasonably anticipate from a senior level employee." Petri described the posts as "braggadocios," contending that Plaintiff's post about the generous benefits suggested that the PPA was not a good steward of public funds, and that his other work-related post, in which he stated that he would be "working on staffing plans," misrepresented his ability to hire staff. A reasonable fact-finder could credit this explanation, and therefore the burden shifts back to Plaintiff to cast doubt on the reasons given by Defendant.

Plaintiff contends that neither Dickson nor Tolson mentioned Plaintiff's work-related posts during their meeting about Plaintiff's social media, even though these posts predated the one discussed in the meeting. Instead, Plaintiff argues that the meeting was focused on the fact that Plaintiff is a "Black, gay man," and that, according to Tolson, he could be viewed as a "sexual predator." Plaintiff further testified that after this meeting, he asked for and was denied training on social media use. Taken together, Plaintiff has adduced evidence suggesting that the termination decision was not based on the work-related posts. Because Plaintiff has offered evidence from which a reasonable factfinder could infer that Defendant's proffered reasons are false or pretextual, summary judgment will be denied on the discrimination claims….

Seems correct to me. Erica A. Shikunov and Samuel C. Wilson of Derek Smith Law Group PLLC represent plaintiff.