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  • Facebook Post Lands Teacher in Hot Water

    On January 18, 2015, two South Hills High School teachers were arrested for allegedly having sexual relations with students at the beach. According to the Orange County Sherriff’s Department, one of the teachers, Melody Lippert, met a group of male students at the beach, gave them alcohol and “engaged in a sexual relationship with one of them.” A few weeks after the incident, she allegedly set up an overnight camping trip with another teacher, Michelle Ghirelli, and the same students at the same beach. Both teachers allegedly had sexual relations with the students during that trip. The women were arrested but released from custody awaiting arraignment.

    Interestingly, just days after the two teachers were arrested, another teacher from the same high school allegedly posted Facebook comments condoning the activity of his co-workers. According to a school district official, Sean Kane posted that the two students should have kept their “stupid mouths shut and enjoyed it.” When the Covina Valley Unified School District became aware of the post they put him on paid administrative leave pending further investigation.

    If Kane’s case goes to trial, the court would have to determine the admissibility of the Facebook postings. In Rice v. Reliastar Life Insurance Co., 2011 WL 1168520, at *1 (M.D. La. Mar. 29, 2011), the court held that a screenshot of someone name calling another on Myspace was “merely argumentative and prejudicial” and did not “add to the substantive allegations of the complaint.” It is likely that the court will find Kane’s Facebook post admissible because it is the core of the complaint against him and therefore adds substance to the case.

    Additionally, it is unlikely that Kane’s Facebook post is protected activity under the National Labor Relations Act (NLRA). The NLRA protects group actions of employees who are discussing or trying to improve their terms and conditions of employment. An individual’s actions may also be protected if they are undertaken on behalf of a group. Here, the post was done solely by Kane, without any discussion with other employees, and had no connection to any of the employees’ terms and conditions of employment.

    However, it is unclear what action the school can take against Kane. In Rubino v. City of New York, 950 N.Y.S.2d 494 (Sup. Ct. 2012), the New York, Supreme Court found a hearing officer’s determination to fire a teacher because of her Facebook post was arbitrary and capricious. In Rubino, a New York City public school student drowned at the beach while on a field trip. In response to the drowning, a teacher made the following post on her Facebook page: “After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS! They are the devils (sic) spawn!” The court found that firing the teacher for her post was harsh and inconsistent with the spirit of the First Amendment because she expected that the post would only be seen by her friends. Therefore, firing Mr. Kane for his Facebook post would be inconsistent with the court’s holding in Rubino.

    If you or your institution has any questions or concerns regarding e-discovery, employment or education related issues, please email Cynthia A. Augello at caugello@cullenanddykman.com or call her at (516) 357-3753.

    A special thank you to Lauren Dwarika, an intern at Cullen and Dykman LLP, for her assistance with this blog post.