Social Media and Employment Law: Naked Twister and Litigating Employment Claims

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These days, social media plays an important role in litigation, and particularly litigation of employment claims.  This is so because a typical plaintiff in an employment-related lawsuit is usually a fired employee who claims to have been wrongfully terminated, and/or unlawfully mistreated at the workplace.  Sometimes (and more often then you may think despite all the privacy settings and warnings on blogs and articles like this one:  “Why Your Status Updates May Come Back To Haunt You“), the plaintiff will have posted something on Facebook (or other social media outlets) that becomes relevant to a lawsuit.  And, in rare cases, the posts involve naked twister and orgies and more.  But, I’m getting ahead of myself.

It All Started As A Fairly Typical Hostile Environment Lawsuit

Let me take you to the City of Oak Ridge, Tennessee.  Unless you live there, or follow employment law cases, you probably have never heard of the place, or of Christina Targonski.  Her use of social media is an important lesson for all of us, employees and employers alike.  Ms. Targonski’s case started out as a fairly typical case.  According to Court documents, she started working as a police officer for the City of Oak Ridge in August 2008.  She alleges that about a year later, she was subjected to a hostile work environment.  Ms. Targonski says that in November or December 2009, she told her supervisor that she suspected that a fellow officer, John Thomas, was spreading sexual rumors about her.  Ms. Targonski claims that Thomas also directly told her that her “husband [was] trying to get him [Thomas] to have an orgy” involving Thomas’s then-girlfriend, Cassie Bridges, and that “he felt like I was a lesbian and I wanted to be part of it.”  Plaintiff further testified, “After that, of course, that’s when people started saying, we know what John is saying about you. That’s when the rumors start[ed] coming to me.”  Ms. Targonski also told the media that Thomas “told co-workers she was a lesbian, had orgies in her house, kept a “sex calendar” and handed out nude photos of herself to other officers.”  See a local news report titled “Officer files complaints, quits“.

Understandably, Ms. Targonski was upset, so she reported Thomas to her supervisor.  The employer conducted an investigation and transferred Thomas to another shift away from Ms. Targonski.  But, according to Ms. Targonski, things still got worse.  She received unwanted phone calls; she was still the subject of sexual rumors, and she felt she was subjected to retaliation as a result of having come forward with her complaints.  On April 14, 2010, Ms. Targonski filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC).  In her EEOC complaint, she alleged that “vicious and untrue sexual rumors were being spread about her by a coworker, resulting in a hostile work environment.”  By September 1, 2010, Ms. Targonski resigned stating, in part, that “I have been mocked, ridiculed, disciplined and forced to endure a hostile work environment. It is apparent that this treatment of me will not stop until I am no longer with this department.”

My hope is that anyone reading this has not had much experience with litigation, and specifically hostile environment claims.  But, take it from me, thus far, Ms. Targonski’s claims and lawsuit are fairly typical.  However, things changed once discovery occurred.

Discovery Of Facebook Evidence

Ms. Targonski eventually filed a lawsuit in federal court (the United States District Court, Eastern District of Tennesssee – case number 3:11-CV-269).  As with all litigation, the parties engaged in discovery to obtain and exchange evidence relevant to the claims and defenses.  Ms. Targonski was deposed and asked about her various claims.  She testified at her deposition, “I’m a Christian and I strive really hard to be a moral person. So for someone to start thinking of me as someone who has orgy parties at my house while my son is home, that’s severely humiliating to me.”  She further testified that she would never “go out and talk to people about” such things, even in a joking manner.  Unfortunately for Ms. Targonski, she posted about such things on Facebook, and tried to explain such posts as being jokes.  As the Court noted, “Curiously, however, on February 23, 2010, plaintiff was herself discussing on Facebook her desire for a female friend to join her “naked in the hot tub.”  The previous day on her Facebook page, plaintiff was discussing “naked Twister.”  May 22, 2010 postings on plaintiff’s Facebook page by her Facebook “friends” talked about female orgies involving plaintiff, Cassie Bridges, and others, to be filmed by plaintiff’s husband.”  Here are some of Ms. Targonski’s Facebook posts.

Armed with Ms. Targonski’s Facebook pages, the City of Oak Ridge argued, among other things, that Ms. Targonski could not have been offended “by Officer Thomas’s rumors when she was saying the very same things on Facebook.”  In response, Ms. Targonski testified that the Facebook postings were “obviously” jokes.  She testified that these “jokes” were not embarrassing or humiliating to her because they were “between friends.” She differentiates the rumors spread by Officer Thomas as being embarrassing because they were spread in the workplace to “people that don’t know me well.”  The Court considered the arguments of each party, and in fact, went out of its way to write that “Defendant presents a very enticing argument . . .”  Ultimately, however, based on the legal status of the case (summary judgment) the Court was obliged to view the evidence in the light more favorable to Ms. Targonski.  Importantly, the Court also noted that, should this case proceed to trial, “the jury will have ample opportunity to consider the Facebook evidence and reach its own conclusions in this matter.”  Feel free to read the Court’s decision regarding the motion for summary judgment in Targonski v. City of Oak Ridge.

So What Are We To Make Of This?

First, make no mistake, posts on Facebook (and other social media sites) are discoverable during litigation.  For a few years now, it has been standard for litigants to seek information contained on the opposing party’s social media accounts.  Such access is routinely requested during discovery, and in fact, most attorneys will perform some sort of social media screening of their client and of the opposing party.  There are many reported cases where social media information is produced and used in lawsuits – thus, no matter how “private” you make your settings or posts, they can come back to haunt you (or to help you if your opponent is the one who did not read this post).

Second, while litigants may not post such salacious material as Ms. Targonski, some seemingly innocent posts, or comments may be just as problematic.  For example, did you post about your wonderful vacation even though you were supposed to be attending a conference for your job?  In a lawsuit, if you later claim that you were not paid for your vacation time, or denied vacation benefits, your Facebook post will likely be relevant and discoverable and could demonstrate your abuse of the vacation time granted by your employer, not to mention undermine your credibility.

Third, employers should take heart that even with more and more states passing laws prohibiting employer access to employee social media accounts, if an employer is sued, it may be able to obtain such evidence during litigation.  Obviously, it is best to avoid litigation, but if it is unavoidable, the discovery rules favor disclosure of once off-limit information.

What Do You Think?

Did your own opinion of Ms. Targonski and/or her claims of a hostile work environment change after you read about her Facebook posts?  Do you agree that posts to social media sites should be “discoverable” in litigation as long as they are relevant to the underlying lawsuit, or do you believe that a “right to privacy” should prevent such discovery?

Credit to Eric Meyer for noticing this case first.

Information provided on this website is not legal advice, nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation.

James Wu
James Y. Wu contributes a monthly column on Social Media and Employment Law. For nearly 20 years, James has provided day-to-day counseling and advice to employers regarding compliance with employment laws and reducing the risks of employment-related claims and lawsuits. He also provides strategic litigation services when claims and lawsuits do arise. After practicing at some of the nation's leading law firms, James opened his own law office in order to continue to provide his top-notch service at a much more reasonable rate for his clients. James earned his JD from Boston College Law School and both his BA and MA from Stanford University. +James Wu
James Wu

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