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Facebook Foible Foils FMLA Fight

Even though people like to treat social media as the new kid on the block, it is really nothing more than a communication tool, to which all of the old rules of the workplace apply.

November 15, 2012

Wendy Barnett worked as a nurse in the psychiatric unit at Aultman Hospital. When her boss, for whom she did not care, was fired, Barnett sent the following email through Facebook to 14 people, including 9 present or former coworkers:

Lisa got officially ax (sic) today! I am singing DING DONG THE WITCH IS DEAD THE WICKED WITCH, DING DONG THE WICKED WITCH IS DEAD.

How poetic this comes the same day Sexton died, I would much rather get f..cked up the ass with hot pepper than endured what that souless (sic) bitch put me through for 4 years...including turning me into the board...God does grind a fine mill when revenge is taken on by him...back when I was off due to drug accusations and praying, and praying, never would I have imagined she lose (sic) her job, marriage, and family, friends all at the same time! Karma Now I should tell you how I really feel!

Love and fuzzies, Wendy

The hospital undertook a full investigation upon learning of the email, which Barnett initially denied writing. When one of the hospital's vice presidents contacted Barnett for a meeting, Barnett, sensing that her termination was on the horizon, called in sick and asked for a medical leave. Despite receiving a medical certification from Barnett's doctor, the hospital proceeded with the termination.

The trial court rejected Barnett's Family and Medical Leave Act claim, both because it made its decision to terminate before she had ever requested a medical leave, and because she lied about being the author of the email rant during the hospital's investigation.

As the Sixth Circuit said … bluntly, "[A]n employee may not insulate [herself] from a pending dismissal by opportunistically invoking the FMLA." … In this case Defendant has put forth uncontroverted evidence that Plaintiff lied repeatedly to her superiors regarding her conduct, and that she was terminated for her dishonesty…. The uncontroverted evidence in the case is that her lying was the motivation for her termination.

Yesterday, I made the point that even though people like to treat social media as the new kid on the block, it is really nothing more than a communication tool, to which all of the old rules of the workplace apply. This case helps illustrate that point. The hospital fired Barnett not because of her email rant, but because when confronted with the email, she compounded her problems by lying about the authorship of the email.

Old rules + new technology = same result.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.