Extraordinary Employee Misconduct – Threatening Witnesses Through Facebook

By Fiona W. Ong - Shawe Rosenthal LLP

September 12, 2018

I am constantly amazed by the lack of judgment that people exhibit in their social media postings. A recent example of this is Emerson v. Dart, in which a corrections officer who was suing her employer for discrimination decided to threaten potential witnesses through a Facebook post!

The employee became upset during the course of litigation, as the employer gathered evidence to rebut her case. So she posted to a Facebook group of more than 1600 employees of the Department of Corrections, as follows:

To my fellow officers! DON’T GET IN A FIGHT THAT IS NOT, I REPEAT THAT IS NOT YOURS. I’VE JUST RECEIVED THE NAMES OF SOME PEOPLE THAT THE COUNTY IS ATTEMPTING TO USE AS WITNESSES … Yes, I will definitely put your name out there in due time. This is a PSA for those of you still believing that being a liar, brown noser will get you something. MESSING WITH ME WILL GET YOU YOUR OWN CERTIFIED MAIL….

(I particularly like the use of the emoji in the middle of the threat. It shows a certain level of insouciance.)

Because of this post, at least one witness felt threatened and agreed to testify only by declaration under seal (to protect his or her identity from the employee). The employer asked the court to sanction the employee for targeting and publicly threatening witnesses.

In defending against the motion for sanctions, the employee offered arguments that the court found “preposterous.” First she claimed that her pledge to serve “certified mail” on those “messing with” her was ambiguous. The court flatly stated, “We see no ambiguity, and neither did [the employee’s] intended targets,” noting one witness’ testimony under seal. The court also rejected as “nonsensical” the employee’s contention that her post “can be read fairly as an open call to the union members to testify truthfully” because she threatened only “liars” with legal action. (Of course the second argument undermines the first argument that she wasn’t threatening legal action).

The court concluded that the Facebook post “was a bald effort to keep witnesses from testifying,” and that “witness tampering is among the most grave abuses of the judicial process.” And it slapped the employee with $17,000 in sanctions! (That’s the amount the employer spent litigating the sanctions issue).

By the way, several years back, the U.S. Supreme Court found that a man who made graphic threats on Facebook to kill his ex-wife had not violated the federal threats law. (In case you’re curious, the Court found that it was not enough that a reasonable person would view his statements as threats – the prosecution had to prove that he intended the statements as a threat, or was at least reckless about it).

So, threats to kill on Facebook? Not a problem. Threats to sue, however…