The summary judgment decision issued on October 31st by Ohio federal district court judge David Dowd in Barnett v. Aultman Hospital contains important reminders for both private employers and their employees. For employers, there is the reminder that they are not bound by the First Amendment’s protections for free speech. And for employees: Always remember to confirm that your supervisor actually has been fired before going to Facebook to celebrate.

In January 2011, after receiving the erroneous information that her supervisor had been fired, the plaintiff, Wendy Barnett, a registered nurse at Aultman Hospital sent an email through Facebook to nine current and former hospital employees (and others) that according to the court, read as follows:


How poetic this comes the same day Sexton died, I would much rather get f..cked up the ass with hot pepper than endured what that souless (sic) bitch put me through for 4 years…including turning me into the board…God does grind a fine mill when revenge is taken on by him…back when I was off due to drug accusations and praying, and praying, never would I have imagined she lose (sic) her job, marriage, and family, friends all at the same time! Karma Now I should tell you how I really feel!

Love and fuzzies, Wendy

As inevitably happens in this kind of situation, the email was given to the supervisor who sent it on further and eventually an investigation was initiated. When confronted with the email, Ms. Barnett denied that she had typed it and intimated that someone had hacked into her Facebook account. Ms. Barnett was suspended pending the results of the investigation. While Ms. Barnett continued to push her hacking theory, the investigation worked its way back to the employee who originally gave the email to the supervisor. She confirmed that Ms. Barnett had admitted to sending the "celebratory" email. Another employee came forward and offered to show the investigator text messages she had received from Ms. Barnett. Although she was unable to retrieve the text messages, she confirmed that they said something along the lines of, "The witch is dead… Lisa got fired."

As the investigation proceeded, Ms. Barnett contacted the hospital’s employee responsible for processing leaves of absences for FMLA paperwork. Meanwhile, apparently unaware of the FMLA request, the investigator and the hospital’s vice president of human resources decided to terminate Ms. Barnett for dishonesty pursuant to its employee handbook. Plaintiff was specifically told she was not being terminated because of the content of the email, but rather because she had repeatedly lied about sending it. Ms. Barnett was given the opportunity to resign, which she accepted, but still had the audacity to maintain the lie about sending the email. (She later came clean at her deposition.)

Ms. Barnett’s subsequent lawsuit against the hospital claimed that she was terminated in violation of Ohio’s public policy protecting freedom of speech, and for FMLA interference and retaliation. The court had no trouble dispensing with each of these claims. First, the court noted that there is no clear public policy forbidding private actors from restricting free speech. Instead, the First Amendment guarantee of freedom of speech is a restraint on governmental actors only. Therefore, the court concluded that the guarantees of freedom of speech under the federal and state constitutions cannot provide the basis for a public policy exception in a wrongful discharge claim in the absence of state action.

Moving on to the FMLA claims, the court noted that Ms. Barnett’s only claimed interference was that the hospital failed to provide her with notice as to whether the leave requested would be counted as FMLA. Of course, as the court also commented, the period of time had not expired as of the date that Ms. Barnett offered her resignation. Furthermore, the court noted that Ms. Barnett was not harmed by any failure to provide her the requisite notice because she had already been terminated.

Finally, the court also disposed of Ms. Barnett’s retaliation claim based on the evidence presented that demonstrated that the decision to terminate her was made without any knowledge that she was attempting to pursue an FMLA claim. In addition, relying on a Sixth Circuit decision in Gipson v. Vought Aircraft Industries, Inc., the court held that an employee may not insulate herself from termination by "opportunistically invoking the FMLA."

Though the result of this case was rather predictable to everyone other than apparently Ms. Barnett and her counsel, it probably does bear emphasizing that:

  1. An employee of a private employer has no automatic right to freedom of speech.
  2. In this case, the hospital was best served by terminating Ms. Barnett based on her dishonesty. This decision probably helped avoid disputes over whether other similarly situated employees had not been terminated over similar comments about their supervisor. (No, I don’t think that the email would have been protected by Section 7 of the NLRA, had Ms. Barnett filed an unfair labor practice charge.)
  3. Offering an employee the opportunity to resign rather than accept being terminated does not always avoid a lawsuit, which can be based on a constructive discharge theory.
  4. There is nothing that is beyond the capabilities of some employees.