HR Management & Compliance

Firing Employee Who Made Threats: Opposition Isn’t Always Protected

The Iowa Court of Appeals recently found that an employee who made violent threats on Facebook couldn’t sue her former employer for retaliation after she was terminated. The court’s decision is important because it allows employers to make termination decisions when a protected complaint is pending. In other words, not all opposition is protected.fired

Background

A black female employee had 5 years’ tenure with her employer when she began having serious attendance problems. She was repeatedly coached, counseled, disciplined, and suspended for tardiness and unexcused absences. In accordance with its progressive discipline policy, the employer repeatedly interacted with her about its concerns.

In the midst of her attendance issues, the employee was involved in a confrontation with a coworker who accused her of violating company policies regarding patient safety. After a somewhat heated exchange, the coworker stated, “Now I’m going to be accused of being racist.” The employee reported the incident, describing the coworker as the aggressor. At the same time, she reported seeing a doll hanging with a thread around its neck in a noose-like fashion in the workplace.

The employer immediately responded by separating the employees and investigating the employee’s allegations about the doll. The employer concluded that both the employee and the coworker violated various policies, but no race discrimination had occurred.

However, the employee refused to accept the outcome of the investigation, complaining that she was the only black female employee and insisting that she had been harassed. She claimed her coworker “got away” with harassing her.

Social Media Threats

Shortly after the investigation, the employee was suspended for being a no-call/no-show. During her suspension, coworkers reported seeing multiple threatening Facebook posts by the employee, including:

  • Love my Brothers Thank You [name] And [name] nothing like having your Brothers Thinking They Protecting You Know They Will Kill For A Sister @Anytime.
  • No one will ever take anything away from me.
  • YOU CHOSE THE WRONG NEGRO TO [EXPLETIVE] WITH AN[D] I WORK THE [EMPLOYER] YOU WANT WAR IM GIVING IT TO YOU.
  • YOU WANTED WAR YOU GOT IT THIS NEGRO IS READY FOR YOU AT ANYTIME. . . . IM NOT SCARED TO DIE.

The posts caused the employer to lock down its facility, place the employee on administrative leave, and conduct another investigation. The employer concluded that the Facebook posts were terminable conduct, citing its workplace violence policy, its policy against making threats to coworkers, her inappropriate/unprofessional conduct, her failure to cooperate in the investigation, and her retaliation against a coworker. The employee was terminated.

Reliance on Personnel Policies Protected Employer

The employee sued, arguing her termination was related to her ongoing concerns about race discrimination and suggesting her Facebook outbursts were protected activity. She accused the employer of being motivated by her race discrimination complaint and argued that its safety concerns were a pretext, or excuse, for illegal retaliation.

The court dismissed the employee’s claims without a trial, finding her complaint about race discrimination wasn’t the motivating reason for her termination. Rather, the Facebook posts were clearly the employer’s focus. The court properly characterized the posts as threats, not protected opposition to the employer’s practices. The Facebook posts may have started because the employee felt her coworker “got away” with discrimination, but they morphed quickly into threats that weren’t protected by the law and violated the employer’s established policies.

Bottom Line

Employees who complain about discrimination aren’t immunized from their employer’s legitimate performance expectations and personnel policies. The court dismissed this employee’s case without a trial, which is important because courts often say that what motivates an employer’s personnel decisions is a question for jurors to determine based on their assessment of who is telling the truth on the witness stand. Here, the evidence was strong enough for the court to rule before the employer incurred the expense of a trial.

The court emphasized that there was no valid suggestion of any retaliation or improper motivation because the employer followed its policies when it disciplined and terminated the employee. This case serves as a reminder of the importance of implementing and enforcing clear workplace policies so you can rely on them if you’re faced with accusations of discrimination or retaliation.

Michele L. (Warnock) Brott, an editor of Iowa Employment Law Letter, can be reached at michelebrott@davisbrownlaw.com.