Monday, January 26, 2015

Facebook Photos Fair Game in Litigation

Employees contemplating bringing claims involving damages for pain and suffering and emotional distress, and employers defending against such claims, need to be aware that more and more courts are ruling that an individual’s social media photos are fair game in litigation. One very recent example is Nucci v. Target Corporation, District Court of Appeal of Florida, (January 7, 2015).  

While shopping at a Target store in Florida in 2010, Maria Nucci slipped and fell on a floor that was wet with a slippery liquid.  She sued Target, alleging that due to Target’s negligence, she had medical and hospital expenses and suffered emotional distress, lost earnings, and loss of her ability to enjoy her life. 

Target’s lawyer scheduled Nucci’s deposition. In anticipation, the Target lawyer viewed Nucci’s Facebook profile and saw that it contained 1,285 photographs.  The photos were not available for anyone to see, because Nucci had set her Facebook setting so that only those who became her  “Friends” could view them. Therefore, at the deposition, the Target lawyer asked Nucci to produce the photographs.  Nucci’s lawyer objected.

Checking Nucci’s Facebook page two days later, Target’s lawyer saw that it listed only 1,249 photographs. In other words, after the deposition Nucci had deleted 36 of the photos.  Target warned Nucci in writing not to destroy any further information posted on her social media websites. Target also hired an investigator to follow Nucci.  The investigator took a surveillance video in which Nucci appeared to be not as disabled as she alleged in her court complaint - she could be seen walking with two purses on her shoulders or carrying two jugs of water.

In court on Target’s motion to compel Nucci to produce the photos, Target argued that it was entitled to view them because Nucci’s lawsuit put her physical and mental condition at issue. This same rationale is used by employers defending against employment discrimination suits, for example.

Nucci responded that since its creation, her Facebook page had been on a privacy setting that prevented the general public from having access to her account. Therefore, she claimed, she had a reasonable expectation of privacy regarding her Facebook information and that Target’s access would invade that privacy right. 

Target showed the court photographs from the surveillance video, suggesting that Nucci’s claim of serious personal injury was suspect. Target also contended that the content of social networking sites is not privileged or protected by the right to privacy. It noted that Facebook’s terms and conditions specifically explain that, regardless of a user’s intentions, the material contained in a post could be disseminated by Facebook at its discretion or under court order.

The Court stated that in a personal injury case where the plaintiff is seeking intangible damages, the fact-finder is required to examine the quality of the plaintiff’s life before and after the accident to determine the extent of the loss. It noted that from testimony alone, it is often difficult for the fact-finder to grasp what a plaintiff’s life was like prior to an accident, observing:

It would take a great novelist, a Tolstoy, a Dickens, or a Hemingway, to use words to summarize the totality of a prior life. If a photograph is worth a thousand words, there is no better portrayal of what an individual’s life was like than those photographs the individual has chosen to share through social media before the occurrence of an accident causing injury. Such photographs are the equivalent of a “day in the life” slide show produced by the plaintiff before the existence of any motive to manipulate reality. The photographs sought here are thus powerfully relevant to the damage issues in the lawsuit. The relevance of the photographs is enhanced, because the post-accident surveillance videos of Nucci suggest that her injury claims are suspect and that she may not be an accurate reporter of her pre-accident life or of the quality of her life since then.

The Court decided that the relevance of the photographs overwhelmed Nucci’s minimal privacy interest in them. It concluded that Facebook photographs are unlike medical records or communications with one’s attorney, where disclosure is confined to narrow, confidential relationships, observing that Facebook itself does not guarantee privacy. By creating a Facebook account, a user acknowledges that her personal information would be shared with others.  The Court concluded that this sharing is the very nature and purpose of these social networking sites, without which they would cease to exist.

Facebook and other social media sites are fertile territory, not only for opposing parties in litigation, but for prospective employers trying to get information before tendering an employment offer, college admissions officers, security clearance investigators, and others.  Users of social media need to be aware that when they share their “fun” photos with their friends, they may be revealing more than they intended. 

     - This blog entry was prepared by Elizabeth L. Newman.  You may reach her at

Tuesday, January 20, 2015

MSPB Reports that the Federal Government Hiring Process Has Gone Awry

Recently, the Merit Systems Protection Board (MSPB) issued its annual report to the President, entitled The Impact of Recruitment Strategy on Fair and Open Competition for Federal Jobs. (“Report”). In its Report, the MSPB summarized how federal agencies’ use of various hiring practices, such as Competitive Examination versus Merit Promotion, special hiring authorities  (such as the Veterans’ Preference), and pre-selection preferences, affect the composition of the federal workforce. The MSPB conducted its study from June through August 2011 by surveying all federal human resource specialists and assistants (10,000 of whom surveyed provided responses), analyzing information from the Central Personnel Data File, and reviewing vacancy announcement information from the Office of Personnel Management. The results–while startling–are not surprising.

The backdrop of the MSPB’s study is the “basic precept that entry into the Federal civil service should be based on merit after fair and open competition.” (Report at i). In 1978, Congress passed the Civil Service Reform Act (CSRA), 5 U.S.C. § 2301 et seq., which codifies basic merit system principles. The primary merit system principle is that “‘recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity.’” (Report at 3, quoting 5 U.S.C. § 2301(b)(1)). Violations of this merit system principle constitute “prohibited personnel practices,” which include:

  • Discriminating against an employee or applicant on the basis of race, color, religion, sex, national origin, age, handicapping condition, marital status or political affiliation (5 U.S.C. § 2302 (b)(1)(A),(B),(D), and (E));
  • Deceiving or willfully obstructing any person with respect to such person’s right to compete for employment (5 U.S.C. § 2302(b)(4));
  • Influencing any person to withdraw from competition for any position for the purpose of improving or injuring the prospects of any other person for employment (5 U.S.C. § 2302(b)(5));
  • Granting any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment (5 U.S.C. § 2302(b)(6)).

Managers of federal agencies, in conjunction with their human resources staff, are given a great deal of discretion and tools to create applicant pools which they believe will satisfy their agencies’ needs. After performing a job analysis to determine the core duties of a job, and the knowledge, skills, and abilities necessary to perform those duties, managers and HR staff decide how wide–or restricted–to open the area of consideration for applicants. (Report at 11). The use of special hiring authorities by federal agencies restricts the applicant pool. For example, the increased use of veterans’ preferences has resulted in a six percent drop since 2000 in the number of female new-hires (43 percent versus 37 percent) (Report at 19). Undoubtedly, granting veterans hiring preferences results in some significant societal benefits–such as veterans having gainful employment, which helps compensate them for their service to the country.  (See my previous blog article, “The Veterans’ Preference: It’s Greek to Me,” dated October 2, 2014). However, because men comprise more than 80 percent of the active duty military, over-relying on the veterans’ preference has resulted in an undesirable imbalance in the male/female ratio comprising the federal workforce. (Report at 20)

“[H]ow agencies announce their vacancies affects every part of the recruitment process.” (Report at 15). The broadest option is to open the job opportunity to all United States citizens through Competitive Examination (CE), which “increases the diversity of the applicant pool.” (Report at 15). The more narrow option is to use Merit Promotion hiring, whereby an Agency may restrict the pool of applicants to those who possess a particular “status,” such as belonging to a particular work unit, geographically to those who reside in a particular city, or those persons who have current or former federal government work experience. (Report at 14). 48 percent of HR staff reported that vacancies in their agencies were advertised through CE most or all of the time, while 66 percent of HR staff reported that most or all of their vacancies were advertised through MP. When asked why agencies did not announce positions using CE procedures, the primary reason given was that there were plenty of internal candidates. (Report at 15).

The second-most stated reason offered by HR staff was because agency managers already had a particular person in mind to fill the vacancy. “While it is not illegal for a manager to be impressed by the quality of employees that he or she has personally observed, hiring managers need to ensure they are not tailoring the job, announcement, assessment, or any other part of the hiring process to favor a particular candidate.” (Report at 16). Courts and the MSPB are not reluctant to find that agencies violate the first merit system principle of open and fair competition:

  • Beatrez v. Merit Systems Protection Board, 413 Fed. Appx. 298 (Fed. Cir. Ct. App. 2011): When the agency manager was informed by the human resources specialist that the particular person desired to fill a position was not qualified at the higher advertised grade, the position was readvertised at a lower grade, and the desired candidate was hired.  This action violated 5 U.S.C. § 2302(b)(6) Id.  at 300. While “‘it would have been a legitimate and appropriate act to re-announce the position if it was for the purpose of ensuring that management was able to consider the widest field of eligible candidates with the greatest potential to have the skills and knowledge relevant to the position being advertised,’” id. at 301 (quoting the administrative judge), targeting position announcements for particular candidates violates the first merit system principle and is a prohibited personnel practice.
  • Special Counsel v. Brown, 61 M.S.P.R. 559 (1994): The MSPB found that Jennifer Nelson unlawfully reclassified a personnel officer position from the 201 series to a resource manager position in the 301 series, so that James Brown would qualify for the position. Nelson wanted Brown in this position because she had been his supervisor, and was familiar with Brown’s performance. Nevertheless, the Board found that Nelson violated 5 U.S.C. § 2302(b)(6). Id. at 570-71.   Once in his position, Brown also engaged in a prohibited personnel practice when he asked a candidate to waive his displaced employee priority, so that another desired candidate would be selected. Id. at *565. By acting to provide an advantage to one employee, Brown injured the prospects of another,  in violation of 5 U.S.C. § 2302(b)(5).
  • Special Counsel v. Byrd, 59 M.S.P.R. 561 (1993): The Board found “that the facts in this case present one of the clearest possible examples of abuse of the merit system.” The agency manager William Byrd was so impressed with the White House connections of a candidate, that he and the Branch Chief, Joel Rubenstein, went out of their way to make sure she was hired. Although twelve qualified candidates had applied under a merit staffing announcement for the position,  none were ranked or considered, because Ward-Ravenel had already been “selected.” She could not qualify, though, under this announcement, so Rubenstein suggested that they use the TLA (Temporary Limited Appointment) authority. Rubenstein then prepared the public notice announcement for the TLA position. Byrd, 59 M.S.P.R. at 565-66. Rubenstein directed Clark Woodson, a personnel staffing specialist, to handle the distribution and staffing. Woodson received six applications in response to the TLA public notice, and determined that three were qualified. Even though he was required to do so, Woodson failed to distribute the public notice to OPM to enhance competition, and he failed to consider the application of a 30-percent disabled veteran, claiming his application was received after the deadline, though the application was date-stamped prior to the closing date of the announcement. Woodson then forwarded the names of the three qualifying candidates to Byrd. Without interviewing any of these candidates, one of whom had a Masters Degree and was arguably more qualified than Ward-Ravenel, id. at 571, Byrd selected Ward-Ravenel for the position. Id. at 567.  The MSPB found that both Byrd and Rubenstein violated 5 U.S.C. § 2302(b)(6).

In its 2011 study, the MSPB asked HR specialists “how often they had been asked to re-advertise a vacancy because the selecting official wanted to hire someone who was not on the referral list…40 percent reported that this happened always, most of the time, or some of the time.” (Report at 34). Can HR specialists be held liable for going along with the improper and unlawful hiring requests of agency managers? Yes. There is “case law that holds HR specialists can be held accountable for ‘aiding and abetting’ managers trying to manipulate the system.” Id. “When a customer [such as an agency manager] requests assistance with an HR action that appears to constitute a [prohibited personnel practice], the HR specialist is prohibited from intentionally assisting that customer to achieve the improper goal. Instead, the specialist is expected to exercise his or her ‘independent judgment and challenge local management’s fairly obvious efforts to grant a ‘preference’ not authorized by law.” Id. What about retaliation? The MSPB asked HR specialists whether their supervisors would support them if they refused to help a customer commit a prohibited personnel practice. An astonishing 26 percent responded their supervisors would not support them. (Report at 34).

The MSPB offers various solutions to these unlawful hiring practices, such as:  “Create a culture that values fair and open competition,” “Examine the results of agency hiring practices in the aggregate to identify and eliminate…barriers to fair and open competition,” and “Prevent the commission of prohibited personnel practices,” (Report at 39-40). These solutions–while admirable in objective–seem rather ineffective. Federal agencies have been required since 1978, with the passage of the Civil Service Reform Act, to hire “a diverse segment of applicants who are representative of society.” (Report at 32). Contrary to this primary merit system principle, it seems that some federal agencies are using the very tools which were meant to achieve a diverse workforce in order to customize the composition of their workforce to suit the personal preferences of management.

Written by Valerie Chastain

Wednesday, January 7, 2015

Not Just For Whistleblowers

When is a non-whistleblower entitled to protection under the WPA?  When a supervisor perceives the employee to be a whistleblower and takes action against her on that basis, the Whistleblower Protection Enhancement Act (WPEA) extends its protections, even in the absence of a protected disclosure.  Such “perceived as” whistleblower claims are well-established, and the MSPB in 2011 offered a useful discussion of these sorts of claims in King v. Department of the Army, 116 M.S.P.R. 689 (2011).

When agency officials believe that an employee “engaged or intended to engage in whistleblowing activity” and take personnel actions against the employee on that basis, the employee may invoke the protection of the WPA.  Whether an employee announced his intention to report waste, fraud, and abuse  (but never actually did so), or objected about practices to his supervisor who believed, on that basis, that he was likely to make a protected disclosure, or, even, if a supervisor gets it wrong and misidentifies the person who actually blew the whistle, taking action against the wrong guy, WPA protection extends to these “perceived as” whistleblowers.

Analysis of “perceived as” whistleblower claims focuses on the agency official(s) taking the personnel action.  The employee must show that these officials believed that the employee had made, or intended to make, disclosures of wrongdoing protected under the WPA.  While in the typical whistleblower reprisal case the employee must show that she made a protected disclosure, in the “perceived as” cases, the focus is on the supervisor’s belief and not on the employee’s actions.  In the simplest of cases, when the employee discloses prior whistleblowing activity to the supervisor, the MSPB has accepted the employee’s later claim that his supervisor perceived him as a whistleblower.  McCarthy v. International Boundary and Water Comm.: U.S. and Mexico,  116 M.S.P.R. 594, 614 (2011); see also Zimmerman v. Dep’t of Housing and Urban Development, 61 M.S.P.R. 75, 82 (1994) (employee stated a non-frivolous regarded-as whistleblower claim based in part on his being named as a source in newspaper articles).  

However, the supervisor’s belief needs to identify her as the whistleblower.  When an employee is just one among many suspects on a supervisor’s list of possible whistleblowers, that is insufficient to establish a perceived-as claim.  Rumsey v. Dep’t of Justice,  120 M.S.P.R. 259, 267 (2013).  

A similar doctrine can also apply to private sector whistleblowers, although courts usually describe the doctrine as one protecting mistaken identity as a whistleblower. An employer subjected to a law enforcement investigation might mistakenly retaliate against an employee who engaged in no protected activity. That employee is still protected from discrimination on account of the identification, albeit mistaken, as a whistleblower. Reich v. Hoy Shoe, Inc., 32 F.3d 361, 368 (8th Cir. 1994); Brock v. Richardson, 812 F.2d 121, 123-25 (3d Cir. 1987); Evans v. Baby Tenda, 2001 CAA 4 (ALJ Sept. 30, 2002) (Complainant terminated in part on the mistaken belief that she had taken actions that actually had been taken by another employee; ALJ held that: “If an employer is free to fire anyone other than the [employee who actually engaged in the protected activity], then that employer is free to eviscerate the [Act].”).

Also defeating a perceived-as claim is a showing that the employee’s disclosure did not merit the supervisor’s serious concern.  Montgomery v. MSPB, 382 Fed.Appx. 942, 947 (Fed.Cir. 2010) (A supervisor’s conclusion that an employee’s purportedly protected disclosure was “frivolous at best and dishonest at worst” defeated the perceived-as whistleblower claim.)   (citing Special Counsel v. Spears, 75 M.S.P.R. 639, 654–55 (1997) for the proposition that the alleged disclosure must at least be reasonable for the perceived whistleblower doctrine to apply). 

However, current federal sector whistleblowers may want to consider whether this Federal Circuit precedent still applies since the 2012 enactment of the Whistleblower Protection Enhancement Act (WPEA). The April 2012 Senate Report No. 112-155, pp. 4-5, expressed the congressional frustration with the Federal Circuit's failure to recognize that the protection of "any disclosure" means "any disclosure." “It is critical that employees know that the protection for disclosing wrongdoing is extremely broad and will not be narrowed retroactively by future MSPB or court opinions. Without that assurance, whistleblowers will hesitate to come forward.”  Clear enough.
Given the right facts, the WPA will protect those who suffer retaliation merely because they are suspected of being whistleblowers.

Written by Mary E. Kuntz