Recently, a Hertz employee posted on Facebook discriminatory and disparaging remarks about a customer. The customer sued Hertz, the employee, and others, alleging that the Facebook posts were “an attack on [his] race, sexual orientation, and financial state and condition.” He claimed that he suffered post-traumatic stress disorder, was financially damaged because he lost customers, and then was forced to sell his business. Specifically as to Hertz, the customer alleged that the company was, among other things, negligent in retaining, supervising and training the employee who posted the disparaging remarks. In March 2016, the federal court in Hawaii ruled in favor of Hertz and against the customer. However, companies should be careful to rejoice too quickly since the outcome was based on facts favorable to Hertz.
The Facebook Posts:
On February 27, 2012, Plaintiff Maurice Howard went to the Hertz Maui Airport location to rent a vehicle. According to the Court, Shawn Akina, the Hertz lot manager saw Howard and posted on his Facebook page, “I seen Maurice’s bougie ass walking kahului beach road . . . ni____ please!” Several of Akina’s coworkers were his Facebook friends, and many of them commented on the post. Later, Akina posted that Howard was “a broke ass faka who act like he get planny money.” Then, the following Facebook conversation ensued between Akina and co-workers:
Friend 1: run that faka over!!! lol.
Akina: i was tempted too, but nah, i had a white car, neva like u guys scrub da blood off.
Friend 2: What no BMW for h today?
Akina: now he knows we got mercedes, he’s gunna drive those. It’s too bad his CC declines all the time.
Friend 3: Hahahaha . . . he still renting huh LOL.
Friend 2: No more Troy his favorite boy though! Sorry Troy!
Howard Complains to Hertz
Another of Akina’s Facebook friends saw the posts and showed them to Howard. The next day, Howard returned to the Hertz Maui Airport location to complain about Akina’s posts. However met with Rose Fernandez, Akina’s supervisor. Prior to meeting with Howard, Fernandez was unaware of Akina’s posts; Fernandez was not one of Akina’s Facebook friends. Fernandez considered the posts to be offensive and inappropriate and a violation of Hertz’s corporate policy.
Eventually, Akina and three others were resigned or terminated by Hertz.
Howard’s Legal Claims Against Hertz
Although some of Howard’s claims against Hertz and others were dismissed earlier in the case, his claims against Hertz for negligence, specifically negligent supervision, negligent retention, and negligent training were not disposed of until Hertz’s motion for summary judgment. According to the Court, to prove his claims, Howard was required to establish the following factors: 1) Hertz owed Howard a duty of care, 2) Hertz breached the duty, 3) causation, and 4) damages. Fortunately for Hertz, the Court found that Howard failed to establish the duty element of each of his claims.
In analyzing whether Hertz owed Howard a duty of care for the alleged damages suffered, the Court focused on whether Hertz knew or should have known of the danger Akina posed to Howard regarding Akina’s Facebook activities. Here, Howard failed to demonstrate that Fernandez, Akina’s supervisor, should have known that Akina posed a danger to Howard via Facebook. Howard did present evidence that Fernandez had to discipline Akina in the past for an unrelated Facebook post concerning another employee. However the Court did not agree with Howard’s argument that this should have given Hertz the knowledge that Akina would make discriminatory remarks about a customer on Facebook. The Court made it a point to recognize that there was no proof that Fernandez knew of the posts before Howard showed them to her. Thankfully for Hertz, Fernandez was not Facebook friends with Akina. Read this for 5 reasons not to “friend” coworkers.
Furthermore, the fact that Hertz had corporate policies regarding social media use did not demonstrate that Hertz knew or should have known its employees, and in particular, Akina would violate its policies in the manner here.
Finally, the Court also found against Howard regarding his negligent training claim. The Court did not agree that Hertz had a duty to train its employees on all behavior that could possibly lead to a tort claim. Click here for the Court’s Order granting Hertz’s motion for summary judgment.
Lessons for Employers:
Ultimately, Howard did not provide enough evidence to convince the judge that Hertz breached its duty of care towards Howard. The Court recognized that employers cannot be held liable for all employee behavior no matter how discriminatory/disparaging, but that employers can only be held liable if it failed in maintaining its duty of care. Here, the following facts aligned well for Hertz:
- Hertz took immediate action after Howard reported the offense Facebook posts.
- Hertz investigated the situation.
- Fernandez, Akina’s supervisor, was NOT a Facebook friend of Akina.
- Hertz already had a corporate social media policy, and other policies, in place.
- Hertz disciplined the employees who engaged in the Facebook conversation about Howard for violating its policies.
While Akina and his friends insulted Howard and may have caused him harm, Howard’s attempt to hold Hertz liable was misguided. However, while Hertz escaped liability here, it is important for employers to understand that had Hertz/Fernandez possessed any idea that Akina’s use of Facebook in this manner was likely, Hertz could have been found to have breached its duty towards Howard. So, while employers need NOT patrol employee use of social media, employers should discipline, train, and take other action when employees are reported to have made problematic posts.
DISCLAIMER: Information provided on this website is not legal advice, and it does not create an attorney-client relationship, nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation.