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Texas Court of Appeals Denies Employee Special Right of Privacy for Facebook Posts

Published by on January 11, 2013

The Texas Court of Appeals for the Second District recently upheld the dismissal on summary judgment of an invasion of privacy claim brought by a former employee in Roberts v. CareFlite, Case No. 02-12-00105-CV (October 4, 2012).  In doing so, the court refused to extend a right of privacy under Texas state law to social […]

The Texas Court of Appeals for the Second District recently upheld the dismissal on summary judgment of an invasion of privacy claim brought by a former employee in Roberts v. CareFlite, Case No. 02-12-00105-CV (October 4, 2012).  In doing so, the court refused to extend a right of privacy under Texas state law to social media posts involving employment activities.  More after the break.

Plaintiff Janis Roberts’ employment was terminated after Careflite, a medical transport company, was informed that she posted comments on Facebook about slapping a patient.  The trial court found that the subject of Roberts’s Facebook posting did not involve private affairs that were within the zone of her seclusion or solitude, and that CareFlite’s acts were not highly offensive to a reasonable person.

Roberts, a paramedic with CareFlite, posted on a co-worker’s Facebook wall that she had transported a patient that needed restraining and that she wanted to slap that patient.  CareFlite Compliance Officer, Sheila Calvert, was notified of Roberts’ post, and messaged Roberts about the Facebook post.  Calvert asked her to consider removing the post.  Roberts’ response – on Facebook – was “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!!”  After another round of messages, Roberts did remove the post about slapping the patient, however, she posted another message that discussed getting upset with patients and wanting to use restraints on them.

About a week later, Calvert’s sister notified the CareFlite CEO of Roberts’ Facebook postings and messaging with Calvert and co-workers.  CareFlite terminated Roberts’ employment for the post about slapping a patient and for her unprofessional and insubordinate communications with Calvert.

Roberts subsequently filed a lawsuit alleging that CareFlite’s access of her private and public messages on Facebook “that no one can access except the person to whom it was sent” invaded her common law right of privacy.  Roberts asserted two different invasion of privacy torts: public disclosure of private facts and intrusion upon her seclusion.  Roberts also filed a wrongful termination claim.

CareFlite filed a motion for summary judgment setting out the elements for public disclosure of private facts and for intrusion on seclusion and asserted that Roberts had no evidence on any of these elements.  CareFlite asserted that as a matter of law, the subject of Roberts’ Facebook posting was not within the zone of her seclusion, solitude, and private affairs; and that CareFlite’s acts were not highly offensive to a reasonable person.  Roberts argued that “[t]he rights of CareFlite employees to discuss in private the issues of patient restraints which affected their safety and even their very lives clearly outweigh any issues of public concern in favor of prospective patients.”

The trial court agreed with CareFlite and granted summary judgment.  The Court of Appeals upheld the trial court’s finding that Roberts did not raise an issue of fact.   Additionally, although the NLRB provides that social media communications regarding working conditions may be protected concerted activity under the National Labor Relations Act — as argued by Roberts — the Court of Appeal found that it did not apply to an invasion of privacy claim.  The Court therefore refused to extend a right of privacy under Texas state law to social media posts involving employment activities.

The court’s opinion can be found here.

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