First amendment, gender bias, & wage claim

[Tax Counsel]

Thank you for your reply. The lawyer I spoke with says that I have the First Amendment claim because the hospital I worked for is a county owned hospital. He said if it was not a county owned hospital, then that was not a valid claim.

The problem is that while First Amendment claims against government employers is possible, government employers still do have some right to control the speech of their employees when that speech is employment related. The test used is to determine whether the speech of the employee was about a matter of public concern. If it was, that speech may be protected. If it was not a matter of public concern, but more simply a matter of private concern for the employee, it is not.

For example, the U.S. Court of Appeals for the Seventh Circuit, which is the federal appeals court that covers Indiana, stated:

When a government employee speaks out, as an employee, about matters of public concern, that speech will be protected by the First Amendment. A primary purpose of the First Amendment is to protect speech on public issues. Nevertheless, free speech rights belonging to the government employee will be balanced against the concerns that the government agency be able to efficiently fulfill its public services. Connick v. Myers, 461 U.S. 138 (1983), citing Pickering v. Board of Education, 391 U.S. 563 (1968). To determine if the speech raises a matter of public concern, the court considers the content, form, and context, as revealed by the entire record. This is a question of law that we review de novo. Connick, 461 U.S. at 146–48. ​

Berndt v. Jacobi, 978 F.2d 1261 (7th Cir. 1992). If he speech was on a matter of public concern, then the next step is to determine whether the employer's concern for running an efficient operation outweighs the public concern expressed by the employee:

We have previously held that "[w]hether speech involves a matter of public concern and whether the employee's interest outweighs the employer's are questions of law for the court; whether speech was a substantial motivating factor and whether the employer would have made the same employment decision in the absence of the speech are questions of fact for the jury." Bass, 308 F.3d at 1088. Mr. Bednar's appeal relating to Ms. McFall's Pickering claim therefore raises two issues: whether Ms. McFall spoke on a matter of public concern and whether OIDS's interest in maintaining an efficient work environment outweighs Ms. McFall's interest in commenting on matters of public concern.​

McFall v. Bednar, 407 F.3d 1081, 1088 (10th Cir. 2005).

And, obviously, speech of an employee that violates the law regarding disclosures is not protected.

So, if your FB comments were disclosures of protected health information (PHI) they were not protected by the First Amendment and the employer would be justified in terminating you for them.

But even if they were not disclosures that violated HIPAA, the next issue becomes whether the statements made were ones of public concern. In other words, was the subject matter of the post something that would concern the general public, like exposing a hospital policy that endangered public health? Or was it simply a regular employee gripe about an employer or expressing frustration about a patient? Those details matter a lot.

Your statement in the next paragraph says that "it was literally just non-specific vital signs" of a patient. If the information you provided could possibly be tied to a specific patient then it was a HIPAA violation. Even if that was not the case, I'm not seeing posting vital signs of some anonymous patient as rising to the level of a matter of public concern. So I'm not seeing a good First Amendment claim so far.

The gender bias claim... The same day I posted that information on Facebook (by the way, it was literally just non-specific vital signs), a female coworker posted more in-depth about a patient she had. She was not disciplined. She even called HR on my behalf and told them that she did the same thing. They instructed her that it was a different situation.

That certainly could be a good basis for a sex discrimination claim. It would matter what reasons the employer had for saying that the two situations were different.

 

[mhatchett]

Thank you for the reply. That definitely helps me understand better. Here is my issue. I'm an EMT. I don't make a lot of money obviously and I am in school to better my career. The hospital that terminated me was paying for my school and I can't afford to pay it on my own. I can't get a loan because of how the school works. It's not actually a school. It's through a local EMS agency that is accredited by a major college. It's just not possible. So now I'm left with 2 months of school and I owe them over $5,000. That is a HUGE reason why I am so upset. I didn't like my job there and I never went without a paycheck. But I'm in the whole $5,000 and my district manager targeted me because I went against him.

Now, what I posted on social media was literally me trying to explain to my "followers" about what I was seeing with patients who have the coronavirus.

"Prior to this week, I wasn't too concerned. I still felt the way I do, but not as strongly. I had a patient with oxygen sats in the 70's no matter what we did. She couldn't speak, couldn't control her bowels, and had a temp over 104. She was discharged from the hospital in normal condition a day prior for something unrelated. The very next day she was like that."

That is what I posted on Facebook as a reply to someone else. I will also add that this patient was not involved with the hospital that terminated me. I worked two jobs at the time and this patient was related to my OTHER job.

The lawyer that I am highly considering retaining has seen their social media policy, all the information on my termination, and the post I made and the one my coworker made. He believes I have a strong First Amendment claim. I'm reaching out to everyone on this platform because I do not know jack about the law. I don't want to pay this guy $2,000 for nothing. I realize there is some risk involved here but HOW much risk am I taking?

 

[mhatchett]

The problem is that while First Amendment claims against government employers is possible, government employers still do have some right to control the speech of their employees when that speech is employment related. The test used is to determine whether the speech of the employee was about a matter of public concern. If it was, that speech may be protected. If it was not a matter of public concern, but more simply a matter of private concern for the employee, it is not.

For example, the U.S. Court of Appeals for the Seventh Circuit, which is the federal appeals court that covers Indiana, stated:

When a government employee speaks out, as an employee, about matters of public concern, that speech will be protected by the First Amendment. A primary purpose of the First Amendment is to protect speech on public issues. Nevertheless, free speech rights belonging to the government employee will be balanced against the concerns that the government agency be able to efficiently fulfill its public services. Connick v. Myers, 461 U.S. 138 (1983), citing Pickering v. Board of Education, 391 U.S. 563 (1968). To determine if the speech raises a matter of public concern, the court considers the content, form, and context, as revealed by the entire record. This is a question of law that we review de novo. Connick, 461 U.S. at 146–48. ​

Berndt v. Jacobi, 978 F.2d 1261 (7th Cir. 1992). If he speech was on a matter of public concern, then the next step is to determine whether the employer's concern for running an efficient operation outweighs the public concern expressed by the employee:

We have previously held that "[w]hether speech involves a matter of public concern and whether the employee's interest outweighs the employer's are questions of law for the court; whether speech was a substantial motivating factor and whether the employer would have made the same employment decision in the absence of the speech are questions of fact for the jury." Bass, 308 F.3d at 1088. Mr. Bednar's appeal relating to Ms. McFall's Pickering claim therefore raises two issues: whether Ms. McFall spoke on a matter of public concern and whether OIDS's interest in maintaining an efficient work environment outweighs Ms. McFall's interest in commenting on matters of public concern.​

McFall v. Bednar, 407 F.3d 1081, 1088 (10th Cir. 2005).

And, obviously, speech of an employee that violates the law regarding disclosures is not protected.

So, if your FB comments were disclosures of protected health information (PHI) they were not protected by the First Amendment and the employer would be justified in terminating you for them.

But even if they were not disclosures that violated HIPAA, the next issue becomes whether the statements made were ones of public concern. In other words, was the subject matter of the post something that would concern the general public, like exposing a hospital policy that endangered public health? Or was it simply a regular employee gripe about an employer or expressing frustration about a patient? Those details matter a lot.

Your statement in the next paragraph says that "it was literally just non-specific vital signs" of a patient. If the information you provided could possibly be tied to a specific patient then it was a HIPAA violation. Even if that was not the case, I'm not seeing posting vital signs of some anonymous patient as rising to the level of a matter of public concern. So I'm not seeing a good First Amendment claim so far.



That certainly could be a good basis for a sex discrimination claim. It would matter what reasons the employer had for saying that the two situations were different.

Thanks again. Your post truly was helpful.

 

[cbg]

I work with HIPAA in the employment arena, not the health care. But I do occasionally have to discuss medical claims with our health insurance carrier. If I emailed that same information to our health insurance representative without putting it on a detachable document and sending it secured, I'd be fired. I can absolutely see that being a valid reason to fire someone who posted it on social media regardless of whether you included the patient's identifying information and regardless of which job the patient was related to.

 

[Tax Counsel]

I can absolutely see that being a valid reason to fire someone who posted it on social media regardless of whether you included the patient's identifying information and regardless of which job the patient was related to.

I can too. The troubling aspect of it in this instance is that according to the OP another employee also posted information about a patient without identifying details and was not fired. If the employer truly felt that those kinds of posts are worthy of termination then both employees should have been fired. So if the only reason for the termination was that FB post the employer has a potential problem by not treating the other employee who did the same thing the same way.

If it was instead the case that the OP was already on thin ice with the employer and this was just the last straw whereas the other employee had a better record prior to his/her post then the employer might fare better.

 

[cbg]

What the poster needs to understand is that the employer is not obligated to treat all employees identically. Factors such as position, length of employment, prior record, prior disciplines, specific details of the specific incident, all can be included in the decision making. Additionally, the employer is not obligated to make details of other people's discipline public. All this OP knows is that the other employee was not fired. She doesn't necessarily know what warnings or last-chance notices were given to the other employee. And we don't know how the two employee's records compared.

So while it is possible that there is a discrimination claim here, it is very far from a slam dunk.

 

[mhatchett]

What the poster needs to understand is that the employer is not obligated to treat all employees identically. Factors such as position, length of employment, prior record, prior disciplines, specific details of the specific incident, all can be included in the decision making. Additionally, the employer is not obligated to make details of other people's discipline public. All this OP knows is that the other employee was not fired. She doesn't necessarily know what warnings or last-chance notices were given to the other employee. And we don't know how the two employee's records compared.

So while it is possible that there is a discrimination claim here, it is very far from a slam dunk.

I trust everyone's knowledge here. You guys are here for a reason. With that being said, why is the attorney I have been discussing this case with thinking I have a strong First Amendment claim? I've basically given you guys the same information I have given him. Also, I will add that my termination letter stated that based on this and my previous write-ups, that's why I was terminated. So according to my director my track record wasn't good. In my defense, those write-ups were him retaliating for me taking him to HR but that's irrelevant.

Again, I appreciate the info. You're potentially saving me a minimum of $2,000 here...

 

[Zigner]

I trust everyone's knowledge here. You guys are here for a reason. With that being said, why is the attorney I have been discussing this case with thinking I have a strong First Amendment claim?

I seriously doubt that any of the advisors here are the attorney that you've been speaking with, so there's no way any of use could know for sure why the attorney is telling you that. You might have to ask the attorney...

 

[army judge]

why is the attorney I have been discussing this case with thinking I have a strong First Amendment claim?

One of my 1st year law school professors was fond of saying, "Ask three lawyers a question, and you'll end up with 30 answers!"

Shout out to Professor Mack, your civil pro lectures never made me sleepy.

 

[Tax Counsel]

So while it is possible that there is a discrimination claim here, it is very far from a slam dunk.

You're not looking at it as a lawyer does. Here's the situation. Two employees do the same thing. One employee is fired, one is not. The fired employee is Black, the one not fired is White, and the supervisor making both decisions is the same and happens to be white. On those facts, the fired Black employee has a prima facie case of illegal discrimination. It then becomes the burden of the employer to explain why the firing of the Black employee was not based on her race but rather on something else that does not amount to illegal discrimination. At that point it is not the burden of the employee to prove that race was the reason for the termination. So whether it is an easy (or slam dunk as you put it) or hard case for the employee to win would depend very much on whether the employer could provide a convincing explanation that some other factor was the reason for the termination. I have seen some employers offer very lame reasons for the differing treatment, and those usually do not go well for the employer. This is why best practices for businesses include having very clear criteria for termination of employees and ensuring that those standards are followed. If they don't do that, even if the reason for the termination was not race, they may leave themselves exposed to liability for the simple reason that they can't overcome what on its face would seem to be racial discrimination.

In other words, while I agree that other factors may have played a part in the differing treatment (and said as much in my earlier reply) without knowing what those might have been in this case leaves me (and you) from being able to say with any degree of confidence how strong a case the OP would have. I can't say it would be "very far from a slam dunk". Assuming, as you seem to be doing here, that the employer necessarily would have some good reasons for the differing treatment is not justified based on the information we have. At your workplace perhaps the employer always has good justification for those kinds of differing treatment situations and can prove it. but don't assume that all employers are as good about that as yours.

 

[army judge]

I realize there is some risk involved here but HOW much risk am I taking?

Most attorneys will offer a potential client a free, initial consultation.

I suggest you arrange at least five free consultations.

You'll normally be allowed anywhere from 20-45 minutes to discuss your concerns and present what you believe to be a legal dilemma.

During those conversations you'll be able to assess the lawyer's ability to relate to you as a human being, as well as how the lawyer speaks about your concerns. In effect, the initial consultations allows the lawyer to evaluate you, while you can be evaluating if he/she is your champion.

If you don't see the lawyer as your champion, as in "white knight", maybe he/she wouldn't be right for you.

Make sure you take copious motes, and then take at least 72 hours to evaluate the person and the knowledge he/she dispensed.

It is also a good idea (if the lawyer allows it), to take along your spouse or a trusted friend/confidante.

Finally, (I could bore you more, but I'll wrap it up), it is your decision alone to make.
Your companion can chime in with her/his thoughts, but you're putting YOUR money and YOUR life in this person's hands.
Trust me, mate, that is a decision YOU alone must make.

Good luck, and if you try the five, leave us some feedback about the process.
PS: It can be more than five (if you're so inclined), but fewer than five often fails to yield the result from the immense amount of time you'll expend.

 

[cbg]

The OP has already indicated that they have a history of other write-ups, Tax. Unless the other employee also does, which I grant you is possible, I stand by my answer.

 

[Tax Counsel]

The OP has already indicated that they have a history of other write-ups, Tax. Unless the other employee also does, which I grant you is possible, I stand by my answer.

And I stand by mine — we don't have all the facts to make a conclusion like it is "very far from a slam dunk". I evaluate cases for litigation as part of my practice, and I'd not make a firm conclusion on this just based on what we know here.

 

[cbg]

will you compromise on, "not a slam dunk""?

 

[army judge]

will you compromise on, "not a slam dunk""?

How about one of those beautiful 3 point rainbows?

They sure look pretty when they swish through that net.

 

[Tax Counsel]

will you compromise on, "not a slam dunk""?

Very few litigation cases are truly "slam dunks", so I'd agree it's not likely to be that easy just based on what we have here. Beyond that, though, I'll not say how strong or weak a case she has with the limited information we have available to us.

 

[mhatchett]

Very few litigation cases are truly "slam dunks", so I'd agree it's not likely to be that easy just based on what we have here. Beyond that, though, I'll not say how strong or weak a case she has with the limited information we have available to us.

That's the majority of the information honestly. It seems to not be trending in my favor. My coworker, the one who was not disciplined, has never had a write-up and had been with the hospital for 5+ years. I had been there for 2 years and had 3 write-ups. I received a write-up in March, two days after I contacted HR about my director. The write-up was for something that happened in November. I received two more on April 4 and then was terminated on April 10.

Its obvious that he was targeting me and I can prove that but if I file a lawsuit based on the gender claim, they will just say I was terminated for the social media post, along with my previous write-ups.

I have had consultations with 4 lawyers now. One of them basically said I had no case. Two of them told me I could pursue the gender claim. The fourth lawyer wants to pursue the First Amendment claim as well as the gender claim. He offered me 3 options. He said he could send a demand letter to the hospital for $750, file a complaint with the EEOC for $2,000, or pursue it in federal court for $5,000. The EEOC option sounded like the best option to me. At this point, I simply want to settle so my school will be taken care of. I don't necessarily have $2,000 to throw away but I think I may pursue that and see what happens.

 

[army judge]

EEOC claims take a very long time if it resolves in your favor.
How long?
Hard to say, but think years, as in more than one.

 

[adjusterjack]

The fourth lawyer wants to pursue the First Amendment claim as well as the gender claim. He offered me 3 options. He said he could send a demand letter to the hospital for $750, file a complaint with the EEOC for $2,000, or pursue it in federal court for $5,000.

If he's so sure about it ask him to take the case on a contingency. You don't pay unless he wins you something.

The EEOC option sounded like the best option to me.

You can file an EEOC complaint without paying a lawyer. Go to the EEOC website to learn how. At least you'll be getting expert investigation even if they just give you the right-to-sue letter.

At this point, I simply want to settle so my school will be taken care of.

Not gonna happen without some leverage and, so far, you have none.