Cookout Invitation, Facebook ‘Like’ No Reason for Discharge

News Updates

Those who remember The Andy Griffith Show wouldn’t ordinarily picture a sheriff’s office as a place swarming with back-stabbing and gossip. Enter the sheriff’s office of the city of Hampton, Va.

How Dare You Like Someone Else

A sheriff there who allegedly did not reappoint employees of his office after they attended a cookout with a colleague who ran to unseat the sheriff and “liked” the rival on Facebook may have to reinstate the employees for violating their right to free speech, the 4th U.S. Circuit Court of Appeals decided Sept. 18, 2013.

Daniel Ray Carter Jr. and Robert McCoy—uniformed sheriff’s deputies who worked as jailers in the sheriff’s Office Correction Division with Jim Adams, the election challenger of Sheriff B.J. Roberts— visited Adams’ campaign Facebook page in the late summer of 2009. Carter liked the page and wrote and posted a message of encouragement that he signed. McCoy also posted an entry on the page in support of Adams’ campaign.

These Facebook actions became well-known in the sheriff’s office as many were shocked because they appeared not to be supporting the sheriff. The second most senior officer in the sheriff’s office informed the sheriff.

How Dare You Go to a Cookout with Someone Else

Things went from simmer to boiling after Carter went to a cookout attended by many sheriff’s office employees, including Adams, and thrown by Ramona Jones, a sheriff’s deputy.

A lieutenant told Jones that she heard that Adams had attended her cookout, and Jones said that Carter had invited him.

Apparently things were quiet in town, because Captain Kenneth Richardson questioned Jones who had attended. She repeated that Carter had invited Adams, and Richardson said she needed to explain that to the sheriff.

And someone tattled because Sheriff Roberts found out about the cookout and was incensed.

During speeches at various shift changes, Roberts expressed his disapproval with the decision of some to support Adams’ candidacy on Facebook. He remarked that his train was the “long train,” that Adams’ was the “short train” and that those who openly supported Adams would lose their jobs. After one meeting, the sheriff angrily approached Carter and made several intimidating statements, adding, “You made your bed, and now you’re going to lie in it—after the election, you’re gone.”

There was one particularly heated exchange after one of the “long train” speeches. Roberts said it pertained to Carter’s objections about disciplinary proceedings concerning Carter’s wife. But Carter claimed it was because of Carter’s support of Adams. The sheriff testified that that conversation was the reason that he chose not to reappoint Carter.

How Dare You Fire Me

Carter sued, as did McCoy for similar reasons, claiming a violation of their First Amendment right to free speech, a right that extends to public employees rather than employees in the private sector.

The district court concluded that merely “liking” a Facebook page is insufficient speech to merit constitutional protection and that the record did not sufficiently describe what statement McCoy made.

The appeals court disagreed. “Liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it,” the court said. “In this way, it is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”

The sheriff persuaded the appeals court that he was entitled to qualified immunity on the claims seeking damages in his individual capacity and entitled to 11th Amendment immunity against the claims seeking monetary relief against him in his official capacity.

But the sheriff was not entitled to 11th Amendment immunity on the plaintiffs’ claims for reinstatement.

Bland v. Roberts, No. 12-1671 (4th Cir. 2013).

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

 

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