Nurse Claims Facebook Rant Was Protected

     SAN FRANCISCO (CN) – A nurse who pitched a fit on Facebook for having to work on her birthday sued the hospital that fired her and the California Unemployment Insurance Appeals Board.
     Bernadet Guevarra sued Seton Medical Center, the appeals board and its chairman Robert Dresser in Federal Court, claiming First Amendment violations and breach of contract.
     Guevarra worked as a staff nurse at Seton for 12 years.
     “Plaintiff enjoyed taking her birthday off and would frequently take additional time off around her birthday,” she says in the complaint. “On May 17, 2011, plaintiff placed a Facebook post on her personal page that said: ‘Instead of spending my birthday celebrating, I will be working all night cleaning up feces. I hate loathe that effin heffer [sic]!!! Burn in hell you effed up spawn of Satan. I curse you and wish you a lifetime of pain and suffering. That is not enough, right now I would give anything to smack you down and pound you to unconsciousness. ‘Tang ina mo!!!!! Thanks to the effin heifer who royally effed up my schedule, not only am I working Mother’s Day, my birthday and my anniversary. And this Friday, I will be getting the smallest paycheck I had in 12 years due to the 17 percent pay cut we had to endure.'”
     (Literally translated, “Tang ina mo” means “Your mother is a whore” in Tagalog.)
     Guevarra claims that that’s not the whole story, though. She claims she began complaining about what she perceived as Seton’s violations of a collective bargaining agreement in 2010, notably, failure to maintain state-mandated staffing ratios. She claims she also noticed “a cultural shift that rendered the work environment hostile to Filipino employees, in her opinion,” causing her to file numerous Assignment Despite Objection (ADO) forms.
     Then in April 2011, Guevarra says, Seton changed the standard shift for nurses from 12 hours to eight and – unbeknownst to her at the time – also reached an agreement with the California Nurses Association to temporarily suspend time off for nurses. She says one of the perks of the bargaining agreement was that nurses could take their birthdays off as a floating holiday, a privilege taken away with the agreement.
     After she posted her Facebook rant, Seton officials learned of it when another employee reported it to human resources. Supervisors perceived a threat and called police, Guevarra says in the complaint.
     “Defendant SMC contacted the police about the Facebook post and summoned plaintiff to human resources on her day off,” according to the complaint. “Plaintiff showed up to human resources and was immediately interrogated alone by a police officer rather than speaking to anyone from defendant SMC. The encounter with the police officer was disconcerting to plaintiff, who believed that she had a free speech right to post on Facebook. When plaintiff spoke to defendant SMC after the interrogation, she was upset and angry that her perceived free speech rights were being abridged. Defendant SMC alleged that plaintiff Guevarra’s Facebook post was a threat that required action, while plaintiff insisted that the Facebook post was nothing more than a harmless rant that was never intended to be acted upon in any fashion, that does not mention the name of the person allegedly threatened and that it was protected activity.”
     Guevarra claims Seton had nefarious motives for calling the police about her post: “Plaintiff alleges that defendant SMC seized upon the Facebook post as a reason to eliminate an active union organizer who appeared determined to correct problems at work. Both before and after the Facebook post, plaintiff Guevarra was the same stellar nurse and employee that she had always been. Regarding the birthday holiday, in the past plaintiff had no trouble requesting days off but during May of 2011 plaintiff Guevarra could not request the day off because the binder with forms in it for requesting time off was not available,” Guevarra says in the complaint.
     Guevarra claims the chief nurse executive – to whom she had complained previously for rejecting the renewal packet for her staff nurse level IV status – decided to fire her for the Facebook post. She appealed to her union representative for help, but the union declined to get involved, according to the complaint.
     “Defendant SMC did not consider plaintiff’s work performance at all in making the decision to terminate her,” Guevarra says in the complaint.
     Guevarra says she applied for and received unemployment benefits through the Employment Development Department, which Seton challenged. An administrative law judge sided with Seton and canceled Guevarra’s unemployment benefits – a decision upheld by defendant California Unemployment Insurance Appeals Board when Guevarra appealed in February 2012.
     Next, Guevarra filed a writ of mandate challenging CUIAB’s decision in San Mateo County Superior Court, claiming the board failed to follow its own precedent or public policy when it sided with the administrative law judge. A superior court judge dismissed on procedural grounds, the complaint states.
     Guevarra claims the CUIAB reversal “created an impermissible class distinction wherein plaintiff, an immigrant woman of color, does not benefit from the protections of precedent decisions Silva v. Nelson or Maywood Glass v. Stewart, all of which indicate that a hotheaded outburst of anger should be considered a ‘minor peccadillo’ that does not disqualify an individual for benefits premised upon misconduct.”
     “The effect of defendant CUIAB’s decision is to render plaintiff a second class citizen because she has been deprived of due process and equal protection under the law,” Guevarra adds.
     She adds a contract claim, which another San Mateo County judge dismissed because of pre-emption by the federal Labor Management Relations Act.
     Guevarra seeks a declaration that CIUAB violated her constitutional rights and an injunction to keep the board from doing so again. She also wants damages from all the defendants involved.
     She is represented by Arcolina Panto of Oakland.

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