Facebook Rant Ends in Firing for Nurse; Court Nixes Contract, Free Speech Claims
Dec. 5 –A nurse who wrote an angry Facebook post before heading off to work at a California hospital could not prevail on claims her employer fired her in breach of a collective bargaining agreement, state law, or the state constitution, a federal judge held Dec. 2 (Guevarra v. Seton Med. Ctr., 2013 BL 333932, N.D. Cal., No. 4:13-cv-02267, 12/2/13).
Bernadet Guevarra, a 12-year employee, complained in a Facebook post that she hated her supervisor and that she would have to work on Mother’s Day after experiencing a 17 percent pay reduction. However, Judge Claudia Wilken of the U.S. District Court for the Northern District of California granted Seton Medical Center’s motion to dismiss Guevarra’s claims the hospital fired her in violation of a union contract or an implied covenant of good faith and fair dealing.
The court also rejected Guevarra’s contention that the hospital violated her free speech rights under the California Constitution, finding such a claim required a showing of state action that was not satisfied by a private hospital’s termination of a worker’s employment.
Angry Facebook Post Resulted in Firing
According to the decision, Guevarra was at home on May 17, 2011, when she used a personal computer to write a Facebook post shortly before she reported to work at the Daly City, Calif., hospital.
“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 to smack you down and pound you to unconsciousness. …
Thanks to the effin heifer who royally effed up my schedule, not only am I working Mothers Day, and my anniversary. And this Friday, I will be getting the smallest paycheck I have had in 12 years due to the 17 percent pay cut we had to endure.”
The court said the target of the nurse’s derogatory remarks was a Seton administrator, and the Facebook post was published to several co-workers and a Seton manager who were Facebook “friends” of Guevarra.
One of the employees who read the post reported it to the hospital. Seton officials immediately called police and placed the nurse on administrative leave, and fired her a day later, although she had no warnings or reprimands on her employment record.
Nurse Won, Then Lost, Unemployment Benefits
Guevarra filed a claim for unemployment insurance benefits, and the state Employment Development Department initially found that she had not engaged in any misconduct that disqualified her from receiving benefits.
A state administrative law judge disagreed, finding the Facebook post was “incendiary, derogatory, and served to undermine the morale of the employer’s workforce.”
The California Unemployment Appeals Board affirmed the ALJ’s finding Guevarra was fired for misconduct and was disqualified from receiving unemployment benefits. The nurse violated a hospital policy that bans “threatening, intimidating, coercing, harassing, [and] using abusive language or behavior,” the unemployment board said.
Guevarra filed a state court petition for a writ of mandate to the unemployment board, which was dismissed.
State, Then Federal, Lawsuits Named Hospital
Guevarra also filed a state court lawsuit that included claims against Seton. The state court granted summary judgment to the hospital on most of the claims, but allowed Guevarra to proceed to a bench trial on allegations that Seton retaliated against the nurse in violation of the California Fair Employment and Housing Act, intentionally inflicted emotional distress, and engaged in negligent supervision.
The trial judge issued a tentative ruling dismissing all of the claims after trial, but never issued a final decision in the state court.
Within two weeks, Wilken wrote, Guevarra filed her lawsuit in the federal district court. The nurse included several allegations against the unemployment appeals board and its chairman, but she also pressed claims against Seton, asserting the hospital was liable for breach of contract and for violating her free speech rights under the California Constitution. Seton moved for dismissal of the claims against the hospital, and Wilken granted the motion.
Contract Allegations Doomed by Failure to Exhaust
The court said Guevarra’s complaint for breach of contract or for breach of a covenant of fair dealing cited the terms a collective bargaining agreement that covered her employment, but it was clear she could not rely on the agreement in her action against Seton because she failed to exhaust the grievance procedures available to her under the contract.
The nurse asserted that the grievance provisions of the contract were optional rather than mandatory, but Wilken said because she attached portions of the agreement to her complaint, the hospital was entitled to argue from the entire document, and Wilken said “the Court considers the full CBA.”
“Guevarra’s contention that the grievance procedures were not mandatory is incorrect,” the court said. Guevarra responded to the hospital’s dismissal motion with an assertion that it was her union that failed to pursue a grievance over the termination of her employment.
But the court said “an employee who seeks to bring an individual suit against an employer for breach of the CBA must allege and prove that the union [b]reached its duty of fair representation.” Guevarra never made such an allegation in her state or federal court lawsuits, Wilken wrote.
Finding Guevarra failed to exhaust her grievance rights under the collective bargaining agreement, the court said the nurse could not proceed on her claim for breach of the contract or her related claim for breach of an implied covenant of good faith and fair dealing, and it dismissed both allegations.
No Free Speech Claim Without State Action
The court also dismissed Guevarra’s claim under Article I, Section 2(a) of the state constitution, which provides, “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.”
Guevarra argued the constitutional provision should be interpreted to extend to the actions of private employers like Seton, but the court said the legal authorities she cited were not similar to her own case because they involved disputes about speech occurring at privately owned shopping centers that were open to the public.
Finding state and federal courts have agreed that a showing of state action is required to support a claim under the state constitutional provision, Wilken dismissed the lawsuit against Seton.
Arcolina Panto of Peoples Law Group in Oakland, Calif., represented Guevarra. Neda N. Dal Cielo and Elisa Nadeau of Littler Mendelson, P.C., in San Jose, Calif., represented Seton Medical Center.
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Text of the opinion is available at http://www.bloomberglaw.com/public/document/Guevarra_v_Seton_Medical_Center_et_al_Docket_No_413cv02267_ND_Cal/1.