Sutton v. Bailey, 2012 WL 5990291 (8th Cir. Dec. 3, 2012), is the latest reminder that private Facebook postings can lead to professional consequences. Sutton was hired as a Funeral Science Director at Arkansas State University–Mountain Home for the 2010-11 academic year. His employment contract provided that he could be terminated at any time “for adequate cause.” A month after Sutton got hired (but apparently before he began teaching), he posted on his Facebook page: “Toby Sutton hopes this teaching gig works out. Guess I shouldn’t have cheated through mortuary school and faked people out. Crap!”
University officials somehow learned about the post and asked to meet with Sutton about it. At the meeting, the university’s vice-chancellor (Bailey) and director of instruction (Thomas) confronted Sutton with the post. He admitted to making the post. Bailey then told Sutton that he was fired. Sutton asked if it mattered that the statement was a joke, and that he posted the statement before he began teaching. Baily replied “no” to both questions. Sutton then received an Employee Counseling Statement form stating that he was being dismissed for an incident of “Academic Fraud and unprofessional conduct.” The “Supervisor Statement” portion of the form explained: “Mr. Sutton posted material on Facebook indicating he had ‘cheated’ his way through mortuary school. There are multiple other class related issues.” Bailey told Sutton he had an opportunity to make a statement before signing the form. Sutton declined and signed the form without further comment. Sutton later sued Bailey and Thomas in their individual capacities, alleging that he was deprived of procedural due process in connection with his firing.
The bulk of the Eighth Circuit Court of Appeals’ opinion addressed the defendants’ defense of qualified immunity, which the court found to have merit.
LegalTXT Lesson: This case has two important, if obvious, takeaways. First, employees need to remember that whatever content they share on their private social media networks could come back to haunt them professionally. Employees need to be reminded constantly that social media blurs the line between personal and public, private and professional.
Second, Sutton answers a question I often get asked by employers: Can employees be disciplined or even terminated for their private social media conduct? The answer is yes. (For another example, read my post on the Careflite case, which recently settled). There are limits, of course (and the NLRB Acting General Counsel has waxed long about many of them), but there are circumstances in which it is proper to discipline or terminate an employee for his or her private social media activity. Now, it would help greatly if an employer sets standards of employee conduct clearly identifying the kinds of social media conduct that could lead to adverse employment action. We don’t know what was in the employee handbook of the university in this case, but a rule that could’ve come in handy is one instructing faculty members not to endorse or make light of academic dishonesty.
