Don’t Run the Risk of Mixing Social Media and Employment Litigation

In Thomas v. Hill, Mr. Thomas alleged his former employer terminated his employment in violation of the Americans with Disabilities Act (ADA) and the Louisiana Employment Discrimination Law. After his termination, he participated in the following exchange via Facebook:

Mr. Welch: Hey boy, you and Fred patch things up? If not you got something else lined up? I hope you do, and you will. Hope you’re doing well my friend.

Mr. Thomas: HELL NO! I’M SUING THE CRAP OUT OF HIM BUDDY! I wont ever go back to work for him. I actually just got back from a shut down job in Monticello Miss. I guess I’m going to do that for a while until something I like with good money comes up. Or until my lawsuit is finalized and then at that point I’ll either own home appliance or retire. My lawyer said Fred is going to “SH*T” when he gets the lawsuit and the 40K of unpaid over time was chump change to the lawyers compared to the lawsuit amount so I’m guessing this law suit is going to be in the $000k figures so we will see.

The plaintiff filed a motion to exclude this conversation from evidence at trial. In response, the employer argued the post should be admitted at trial because:

• the employer claimed that it legally terminated the plaintiff’s employment due to his hostility toward the employer, and the post showed the plaintiff’s hostility;
• the post showed the plaintiff’s retaliatory and pecuniary motive for filing the lawsuit;
• the post placed the plaintiff’s credibility at issue; and
• the plaintiff admitted he could work in the post, which was relevant because he was claiming disability discrimination.

Ultimately, the court sided with the plaintiff and determined the post was not inadmissible. The court reasoned that although the post showed plaintiff’s hostility toward the employer, it was not posted until after the plaintiff’s termination, and therefore was not relevant to whether the plaintiff was hostile during his employment. The court also found the post had only marginal relevance to the plaintiff’s ability to work because the plaintiff did not dispute he worked after his termination. Further, the court recognized the potential harm of allowing a jury to see the post, stating, “the marginal relevance of the post is substantially outweighed by the danger of unfair prejudice, confusing the issues, and/or misleading the jury.”

Although the employee in Thomas v. Hill received a favorable ruling, you should be aware that social media posts, emails, and other forms of written communication relevant to their case are discoverable during litigation. This means employees, and their attorneys, may have an obligation to produce the communications to the opposing party during litigation. It is important to consult an attorney before discussing the facts surrounding your case in writing, on social media, or with any other individual. If you feel you are being discriminated against in your employment, call Cincinnati Employment Lawyer Robert A. Klingler Co, L.P.A. to discuss your potential rights and remedies.