A Texas flight medic who was terminated for a Facebook post has lost her appeal.
Janis Roberts, a flight medic for Careflight, was terminated after she posted on the Facebook walls of two coworkers, paramedic Robert Sumien and helicopter pilot Scott Schoenhardt.
The exchange was explained by the court as follows:
Roberts was “friends” on the website Facebook.com with fellow CareFlite paramedic Robert Sumien and CareFlite helicopter pilot Scott Schoenhardt. Roberts posted on the Facebook wall of Schoenhardt that she had transported a patient who needed restraining and that she wanted to slap the patient.
Sheila Calvert is a compliance officer with CareFlite. Her sister, Delicia Haynes, is a CareFlite member. Haynes saw Roberts’s wall posting and notified Calvert. Calvert sent a message to Roberts through Facebook. In her message, Calvert stated:
I just wanted to remind you that the public sees your posts. People outside of CareFlite and outside of EMS. In fact, my sister saw your post to Scott Schoenhardt where you stated you wanted to slap a patient[,] and she thought she wouldn’t want anyone such as that taking care of her and made the comment that maybe she didn’t want to renew her CareFlite membership. People you don’t expect to see your posts do. I’ll bet Scott has many friends in EMS[,] and all any of them would have to do is a screen shot and send it in to the state and you could be looking at a suspension of your EMS license and fines. Believe me, I’m not trying to come down on you about this. I’m trying to help you realize that people out there are losing their jobs and livelihood because of such posts[,] and I don’t want to see that happen to you. If you don’t believe me, just google it or if you like I can send you some links to articles. I hope you will consider removing that post.
Roberts responded with a message to Calvert that stated:
Yeah, whatever. YOU weren’t there. Whenever I have to have a firefighter ride in with me because of a patient’s attitude, and I fear for MY safety, I truly believe a patient needs an attitude adjustment. Think about that the next time YOU correct someone!!
Calvert responded to Roberts, again with a message sent through Facebook’s messaging feature, stating:
I was trying to be nice about the situation and provide you a courteous reminder of the regulations in which you practice in the state and the public’s perception. [Rule 157.36(b)(28) of the Texas Administrative Code] states you cannot engage in activities which betray the public’s trust in EMS. I believe your comment could have done that. Additionally, CareFlite has policies against employees calling into question our honesty, integrity[,] or reputation. I understand you had a difficult call and patient. I’ve also had my share of those. That information should not be broadcasted[,] however. I can show you an article where a Kansas medic had his license suspended for 90 days, tons of legal bills, and had to bag groceries during that time because he posted a derogatory remark about his obese patient. As far as me “thinking about that before I correct someone[,]” . . . I’m the Compliance Officer for CareFlite[,] and it’s my job. We can have that conversation later and off [Facebook].
Roberts responded with a message stating, “[By the way], I didn’t slap the patient, I was not rude to the family OR the patient and the call went very smoothly, thank you for asking.” Roberts did delete her comment from Schoenhardt’s wall.
Roberts later posted on her own Facebook wall, stating
Yes, I DO get upset on some calls when my patient goes off in the house and I have to have a firefighter ride in with me because I fear for MY own safety. I think that is a valid excuse for wanting to use some sort of restraints. Just saying!!
Sumien then posted a comment on this post, which stated, “Yeah like a boot to the head . . . . . . ;^) Seriously yeah restraints or actual HELP from PD instead of the norm.”
Roberts and Sumien were terminated and both filed separate suits alleging wrongful termination and violation of privacy. Roberts also made a claim that she was fired in retaliation for her reporting a coworker for misconduct.
The trial court granted summary judgment to Careflite in both cases, and the employees appealed to the Texas Court of Appeals for the Second District.
In the Robert’s case the Court of Appeals concluded:
Roberts makes no argument about why CareFlite’s review of Roberts’s messages to Calvert or of her comments on Schoenhardt wall—comments that could be viewed by third parties—constituted an intrusion upon Roberts’s seclusion, and she cites to no cases that would support such an argument
The Court of Appeals did not address the retaliation claim, and as it had in the Sumien case, upheld Roberts’ termination.
It is worth noting that as private sector employees, the First Amendment offers no protection to Roberts or Sumien. Municipal firefighters and paramedics who post on Facebook would likely have had some level of First Amendment protection on these facts.
In addition, while Roberts raised the National Labor Relations Board’s position that social media use between coworkers is a “protected” activity, it does not appear that such an argument is viable in a non-union environment.
Here is a copy of the Roberts decision. Roberts v Careflite
Here is a copy of the Sumien decision. Sumien v Careflite