United States: Nashville Trump Supporter Fired Over Facebook Post Wins Trial

Government employees enjoy more protection than employees of private-sector companies when it comes to speaking their minds about politics or other matters of public concern outside the workplace. A public employee may not be fired or disciplined for engaging in “constitutionally protected” speech. To be constitutionally protected, the speech must be on a “matter of public concern,” the employee must be acting in her capacity as a private citizen rather than in her official duties as a government worker, and the speech must outweigh the employer’s interest in “promoting the efficiency of the public services it performs.” That delicate balance was recently tested when a Nashville government worker was fired after using the “n” word in a social media post.

Facts

For many years, Danyelle Bennett, a white female and an ardent supporter of Donald Trump, worked as a dispatch operator for Metro Nashville’s Emergency Communications Center (ECC), which is in charge of the 911 service. During the 2016 presidential campaign, Bennett wore a Trump sweatshirt and a “Make America Great Again” hat to work on “Superhero Day.” Some of her coworkers complained, prompting ECC to ask her to change.

On election night, Bennett displayed a triumphant post on her personal Facebook page about Trump’s victory. After one Facebook poster commented on her page that “Rednecks” voted for Trump while describing those who voted for Hillary Clinton with the “n” word and “latinos” voted for Hillary Clinton, Bennett responded that she was thankful there were so many “America loving rednecks” but that “n” words and “latinos” also voted for Trump. Although she removed the post a few hours later, a few of her coworkers saw it and weren’t happy.

ECC conducted an investigation in response to complaints from several of Bennett’s coworkers about her Facebook comments. After the investigation was completed, ECC’s director, Michele Donnegan, decided Bennett should be fired for using a racial slur. Bennett then filed suit in federal court, alleging ECC unlawfully fired her in retaliation for exercising her First Amendment right to free speech.

Court’s ruling

In an unusual procedural move, Judge Eli Richardson was assisted by a jury in reaching the conclusion that Bennett’s Facebook post was constitutionally protected. The court believed the key issue was whether Bennett was fired simply for using the “n” word in isolation or whether she was fired for using the word in the context of expressing her views about the outcome of the presidential election. The court noted that ECC’s documentation revealed it was concerned about the post in its entirety “without ever once referencing a concern [about] something narrower than the post as a whole, such as the stand-alone fact that the [‘n’ word] was used.” Therefore, the court found the appropriate inquiry involved the post in its entirety rather than the “n” word in isolation.

Construing the post in its entirety, the court had little trouble determining that Bennett was acting in her capacity as a private citizen (rather than as an official government worker) when she displayed the post and that the post related to a public concern. “Speech relating to a major election clearly qualifies” as protected free speech, said the court. Thus, the court focused on whether her right to display the post outweighed ECC’s interest in “promoting the efficiency of the public services it performs.”

ECC principally argued that Bennett’s post caused disharmony in the workplace and jeopardized the agency’s public image. While recognizing that preventing disharmony is important, Judge Richardson noted “the disharmony is far less [severe] in a case like [this one], where [the employee’s] comments were not directed at any [coworkers] or supervisors, and did not reflect or seek to create any dispute with her employer or her [coworkers].” Although ECC’s decision maker, Donnegan, reported that around six employees complained about Bennett’s post, the court wasn’t persuaded that the complaints of six employees alone evinced any meaningful disruption in the workplace.

Moreover, Judge Richardson felt Donnegan’s investigation was woefully inadequate and she “was not very informed as to the seriousness, and actual existing or likely effects, of the complaints.” In fact, Donnegan could identify only one employee who expressed concern about continuing to work alongside Bennett. “In short, [the director] knew of some complaints, but not much about them, and not much to indicate that there likely would be a problem for employees to work together with [Bennett],” noted the court.

Although it found that Bennett’s post could undermine ECC’s mission, the court concluded that any potential harm was “relatively slight.” First, her post clearly had nothing to do with her position as an ECC employee. Second, ECC could identify only one member of the public who expressed concern that Bennett wouldn’t provide appropriate service to African Americans. Third, the court thought it was “highly speculative that even if [any African Americans] were familiar with [her] Facebook comment and [were] offended by it, [they] would be deterred from calling in an emergency.” The court also noted that Bennett was a low-level employee.

Despite remarking that “the goal of ECC leadership to head off possible racial tension from [Bennett’s] comment was laudable,” the court concluded her post was protected speech. Accordingly, Judge Richardson reconvened the jury to determine whether ECC fired her for engaging in constitutionally protected speech and, if so, what her damages should be. During this phase of the trial, Bennett emphasized that her termination came on the heels of ECC asking her to remove her pro-Trump paraphernalia during the campaign.

Following a two-day trial, the all-white jury determined ECC unlawfully retaliated against Bennett for displaying the post. Although she sought damages in excess of $100,000, the jury awarded her $6,500 in back pay and $18,750 for humiliation and embarrassment. Her request for attorneys’ fees and expenses is pending. Meanwhile, ECC has appealed. Bennett v. Metropolitan Gov’t of Nashville, No. 3:17-cv-00630 (M.D. Tenn., June 25, 2019).

Bottom line

This case illustrates how it’s generally much more difficult for public employers to terminate or discipline employees than it is for private-sector employers. Had Bennett been in the private sector, her employer would have had little difficulty in carrying out the same termination decision, assuming it didn’t treat her differently than similarly situated employees in a protected class.

In the private workplace, being a Democrat, a Republican, or a member of another political group is not a protected class. Therefore, a private-sector employer theoretically could fire all of its employees who post social media comments outside the workplace that are favorable to one political party, provided it has the same policy regardless of the employee’s sex, race, nationality, age, or other protected characteristics. Of course, private-sector employers rarely go to such extremes, but it’s difficult to fathom that a private-sector employer would be sued for firing someone for using the “n” word on social media. In fact, the consequences of turning a blind eye to such use of a racial slur could be much more harrowing.

As for ECC, it’s easy to sympathize with its plight. I suspect many other public employers would have also fired Bennett if the shoe were on their feet. Indeed, employers—regardless of whether they are in the public or private sector—are understandably apprehensive about not taking appropriate action in response to racist comments. It seems ECC was faced with a “darned if we don’t, darned if we do” scenario. If Bennett had used the “n” word at work, it likely would have been much easier for ECC to fire her. However, the context in which she made the comment made that a more difficult employment action.

Further, Judge Richardson noted that ECC’s investigation was severely lacking. The agency seemed to assume that Bennett’s post caused meaningful disharmony in the workplace without doing its homework and getting its ducks in a row before the termination to demonstrate that her post actually caused discord. This case reinforces the importance of engaging in a comprehensive investigation and consulting with legal counsel before pulling the trigger on a termination decision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions