NJ Medic Loses Facebook Discipline Claim

A paramedic for Monmouth-Ocean Hospital Service Corp. (MONOC) has lost a federal court lawsuit that alleged her employer illegally accessed and used a Facebook post to discipline her.

Deborah Ehling worked for MONOC since 2004. In June, 2009, in the aftermath of a shooting incident at the Holocaust Museum in Washington, DC, she posted the following on her Facebook account:

An 88 yr old sociopath white supremacist opened fire in the Wash D.C. Holocaust Museum this morning and killed an innocent guard (leaving children). Other guards opened fire. The 88 yr old was shot. He survived. I blame the DC paramedics. I want to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING? and 2. This was your opportunity to really make a difference! WTF!!!! And to the other guards….go to target practice.

While Ehling’s Facebook account settings limited her posts to her 300 “friends”, one of those friends forwarded the posting to one of MONOC’s managers.

According to the lawsuit: “After MONOC management was alerted to the post, Plaintiff was temporarily suspended with pay, and received a memo stating that MONOC management was concerned that Plaintiff’s comment reflected a “deliberate disregard for patient safety.” In response, Plaintiff filed a complaint with the National Labor Relations Board (“NLRB”). After reviewing the evidence, the NLRB found that MONOC did not violate the National Labor Relations Act. The NLRB also found that there was no privacy violation because the post was sent, unsolicited, to MONOC management.”

Ehling had a number of other disciplinary issues and was later terminated. She sued in federal court alleging discrimination, wiretap violations, FMLA violations, and privacy violations. The entire case is provided below but the focus of this posting is on Ehling’s claims relative to her Facebook post.

The crux of Ehling’s argument is that MONOC illegally accessed her Facebook posting without her consent in violation of the federal Stored Communications Act.  Graduates of Strategies for Managing Fire Departments in the Digital Age will recognize the Stored Communications (SCA) as being part of the Electronic Communications Privacy Act, the law that extended the coverage of wiretapping statutes to various forms of electronic communications including emails, instant messages, and other electronic data transmissions.

From the decision: “The SCA provides that whoever “(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters or prevents the authorized access to a wire or electronic communication while in electronic storage in such a system” shall be liable for damages. 18 U.S.C. § 2701(a); 18 U.S.C. §2707 (providing for civil liability under the statute).”

In ruling in the case, court concluded that Facebook posts are electronic communications, and more specifically electronic communications that are considered to be in storage under the SCA. In the court’s words: “In other words, the SCA covers: (1) electronic communications, (2) that were transmitted via an electronic communication service, (3) that are in electronic storage, and (4) that are not public. Facebook wall posts that are configured to be private meet all four criteria.”

The court went on to conclude that MONOC did not violate the SCA or the ECPA because Ehling’s co-worker who forwarded the posting to management lawfully possessed it. He was an intended recipient of the electronic communication and as such had the lawful right to provide a copy to MONOC.

In conclusion, access to Plaintiff’s Facebook wall post was authorized by a Facebook user with respect to a communication intended for that user. Therefore, the authorized user exception applies and Defendants are not liable under the SCA. Accordingly, the motion for summary judgment on Count 1 is GRANTED.

Here is a copy of the decision, issued on August 20, 2013. Ehling v MONOC

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
  • Jim

    Showing once again that you should never post, tweet, or email something you wouldn't say in a loud voice standing on the village green at mid day.

  • Larry D

    We have two issues here. 1) does any employer have the right to peer into what you post on social media and act upon what it finds? Agree or disagree, it is what it is and that's the way it is. 2) the post by Ms. Ehling was immature and laced with anger and emotion. We've all responded to calls with patients who has made us livid at their actions. But we cannot be judge, jury, and exicutioner during the performace of our duties. To even hint as such a think give all of EMS a bad name. Perhaps she should try another profession.

  • merlinmedic

    Larry D has nailed it.  What concerns me is that so many companies are doing it.  What are they looking for, complements?  Employes have gripped since Adam & Eve (or Lilith if you prefer).  Look at what your employee does on the job.  Are they reilable?  Clean?  Uniform presntable?  Next, do they do the job they were hired for?  Do they do it well?  Are they one of "those" employees that you waste so much time on?  If not, then stay off their FB page!  Of course, what Jim said is also true:  FB and such are PUBLIC no matter what they claim.  NSA reads it, the FBI and your boss!

  • DS

    I'm sorry, but I'm starting to have little sympathy for such people.  The employer wasn't even "snooping" in this case, it was one of the medic's friends that was apparently offended and forwarded the post.  In my opinion you can't ignore that as an employer, whether you found it yourself or not.  If one of their friends forwarded posts to the department that seemed to indicate your employee was involved in some sort of illegal activity would you disregard it because you didn't find it yourself or because their page was set to "private," or would you investigate?

    People need to understand that as public employees their rights to "free speech" are different than the rest of the citizenry, whether you believe it's right or wrong.  I saw some numbskull not long ago on a major newspaper website commenting on an article about gay rights.  He says something like "Die F***!" in the comment section.  This was one of those websites that requires you to log in with your Facebook account and his profile photo was posted next to his comment.  He was in uniform!  I clicked right through to his profile and he even listed what department he worked at.  I don't know if anything ever happened to him, but I'd have fired one of my people in a nanosecond if they pulled a stunt like that.  There's just no excuse in this day and age when everyone knows that what they post is pretty much out there forever.


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