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Shelter Director’s Posts |to Facebook Not Protected

(CN) - Facebook posts by the former director of the Preston County, W.Va. animal shelter that criticized its operations are not protected speech, dooming significant portions of her wrongful termination lawsuit, a federal judge ruled.

Courtney Austin was hired to be the manager of the Preston County animal shelter on September 12, 2011.

A month later, she created a page titled "Preston County Animal Shelter" within her own personal Facebook account, and, with the approval of County Administrator Kathy Mace, began posting shelter information.

Then, on February 19, 2013, she created a post heralding the fact the shelter had gone 60 days without euthanizing any dogs. The following day, Austin commented on her earlier post, soliciting "likes."

"The more people we get to like this comment, the more we can brag about it," the post said.

This didn't sit well with the county administrator, who gave her a written warning "about giving the public the impression that we are moving toward a no-kill shelter in Preston County."

Austin was not disciplined again for almost a year, but in January 2014, another of her posts angered both the County Administrator and several county commissioners.

This post was seeking volunteers to transport dogs from the shelter, which she said was in dire straits because of cold winter weather.

Among the conditions she expressed concern about was a lack of heat in several indoor areas at the shelter, which in turn resulted in its water freezing, making it impossible to clean kennels or even to give the animals in its care fresh water.

"We need to move these dogs to get them into warmer homes and fosters," she wrote.

The post inspired a rash of calls to the county commission from concerned citizens.

The following Monday, January 28, 2013, Austin was called into a meeting with Mace and two county commissioners, at which she was told that she needed to have all future Facebook activity on the shelter's behalf approved before she posted it.

Before the meeting concluded, the commissioners requested access to the page, but Austin refused to turn over her password, explaining the page was linked to her personal Facebook account.

The county's IT staff subsequently told her change her password to what it perceived as the more benign "123abc," and to turn over her login information by the end of the week.

The deadline came and went, and Austin was suspended for her refusal to comply with the county's request. Days later, the county commission fired her.

Austin says after her termination, County Commissioner Craig Jennings told television and print reporters that the county had temporarily closed the shelter to audit its financial records.

"In an article published in the Dominion Post on March 5, 2013, Jennings stated that 'the bookkeeping end of it [the Shelter] was in such disarray,' and noted unpaid veterinarian bills," Austin said.

Austin sued the Commission and Jennings on May 5, 2013, contending she was fired over the content of her Facebook posts, violating her right to free speech.

She also claimed the county discharged her for raising concerns about the adequacy of care at the animal shelter, and that Jennings defamed her in the press.

The county responded by saying Austin wasn't fired for her post, but rather for insubordination, and filed a motion for summary judgment.

U.S. District Judge Irene Keeley said the central determination covering the majority of Austin's claims was whether or not she was speaking as a county employee when she created her Facebook posts.

"If an employee is speaking as an employee on a matter of employment, she has no First Amendment cause of action, but if she was speaking as a citizen on a matter of public concern, '[t]he question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public,'" Keeley wrote, referencing Garcetti v. Ceballos.

In Garcetti the Supreme Court held that a deputy district attorney who revealed series of misrepresentations in an affidavit, was not entitled to First Amendment protection after his employer reassigned him and denied him a promotion.

"Even after taking the acts in the light most favorable to Austin, it is clear that she was posting on the Shelter Facebook page pursuant to her duties as Shelter Director," Keeley wrote. "Her posts therefore are not protected by the First Amendment. Austin may have set up the Shelter Facebook page as part of her personal account, but it was not used for personal communication."

Keeley noted that Austin signed her posts, "Preston County Animal Shelter," rather than with her given name, and that "the great majority of Austin's posts on the page use language such as 'we' and 'us,' as opposed to 'I'."

The judge then turned to Austin's argument that the commission never questioned her right to use the Facebook page, and that they only cared about what she said when her message differed from their won.

"Austin's argument ... lends support to the view that the Commission had every right to control her postings because she made them pursuant to or in furtherance of her job duties as Shelter Director," Keeley wrote. "Austin's Facebooks postings as the Preston County Animal Shelter Director were in furtherance of her job duties because she used the postings to interest the public in adoption, and to gain support when the Shelter encountered problems."

However, in the instances for which she was reprimanded, Austin "spoke out in a manner that undermined administration of the Shelter."

Keeley said because Austin's posts do not qualify for First Amendment protection, "it is irrelevant whether Austin was terminated for posting on Facebook, as she alleges, or for insubordination, as the Commission alleges.

"Because Austin's speech was unprotected by the First Amendment, her public policy claim fails," she said.

But Keeley declined to toss Austin's suit in its entirety.

Where she could draw a distinction between the Facebook posts and Austin's claims, she allowed those portions of the lawsuit to stand.

She also allowed Austin's defamation claim against Commissioner Jennings to move forward, rejecting the county's contention that he was only expressing is personal opinions when talking to the press.

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