The line of “Facebook firing” cases is growing longer every month. In October, the Seventh U.S. Circuit Court of Appeals upheld summary judgment in an unpublished opinion in which an individual claimed gender discrimination after he was fired from his job as a daycare center worker. According to the employer, the firing was based on a Facebook posting that included profanity and strong language, which certain individuals found to have been threatening. Smizer v. Community Mennonite Early Learning Center, 7th Cir., No. 10-C-304 (October 25, 2013). The unusual twist in this case is that the plaintiff was the son of the defendant daycare center’s Director, and the Facebook posting dealt with a family custody matter.

Lawrence Smizer was hired by Community Mennonite Early Learning Center (“the Center”) in 1993 as a teacher’s aide, and was fired from that position in 2010. According to its website, the Center is an accredited professional daycare center that has served the Chicago south suburbs since 1964, and cares for children from 6-weeks through kindergarten age. Smizer’s mother was and is the Director of the Center, and reports to the Center’s Board of Directors. Smizer’s 78 year-old grandmother also has worked as a volunteer at the Center.

Prior to 2010, a custody dispute involving Smizer’s sister had been brewing for several years. At the basis of that dispute were the efforts of Smizer’s sister to regain custody of her teenaged son, which efforts were supported by Smizer but were opposed by Smizer’s mother and grandmother, and by the teenager himself. On April 8, 2010, a court awarded custody of the boy to his mother (Smizer’s sister).

That evening, a former employee of the Center sent an E-mail to Smizer’s teenaged nephew, who was not happy to be returning to his mother’s custody. The E-mail included a Facebook page quote, purported to have come from Smizer, which contained profanity: “To all my family that fought my sister tooth and nail over some B***S*** (And you know who you are) F*** YOU B*TCHES!!!! HE IS GOING HOME WHERE HE BELONGS!!!!!

On the following day, the Center’s Director (Smizer’s mother) sent an E-mail to the chairman of the Center’s Board of Director’s informing him of the Facebook posting, and expressing concern that other employees may have seen the tirade. She also said that she and Smizer’s grandmother no longer felt safe in Smizer’s presence, and asked that Smizer be fired for “creating a hostile work environment” and for “pulling staff into this family drama.”

On April 15, 2010, the Board delivered a 2-line termination letter to Smizer, telling him that he was fired for “insubordination and unprofessional conduct.” Smizer was told specifically that his Facebook posting was the basis for his dismissal.

Smizer ultimately filed a federal court lawsuit, alleging that he was discriminated against on the basis of gender and that he had been defamed by the Center. He pointed to two instances that he believed constituted discrimination: (1) earlier in the year, he had been reprimanded for wearing open-toed shoes, but female employees had not been so reprimanded; and (2) when pornography had been found on a shared computer at the Center in 2009, Smizer’s mother accused him of downloading the files because “Women don’t like porn.” Smizer also claimed not to have written the Facebook posting at the center of his firing.

The7th Circuit upheld the lower court’s summary judgment in favor of the Center, in spite of the fact that neither side provided a screen shot of the Facebook posting or any formal Facebook record of its existence. Instead, the Center had offered affidavits from Smizer’s supervisor and others who claimed to have viewed Smizer’s Facebook page first-hand and had seen the alleged message that had been reproduced in the former employee’s E-mail. In spite of that fact, both the lower court and the 7th Circuit held that Smizer’s claims should be dismissed, as there was no evidence from which a jury could find that the Center’s stated reason for Smizer’s firing was a pretext for discrimination.

This decision is significant, because employers often hesitate to take action with respect to a Facebook posting, knowing that an employee simply can deny having written it. However, in this case, the Court found that the Center “honestly believed that the plaintiff wrote the post” and, therefore, that the Center provided a legitimate business reason for the firing – there was no additional requirement that the Center prove that the language had been posted by Smizer. While Smizer did not admit to writing the posting, he did not dispute the fact that his mother received language that she believed Smizer had authored; he did not dispute the fact that his mother then wrote to the Board chairman describing the language and asking that Smizer be fired for it. Because there was no effort on Smizer’s part to show that his mother or the Board chairman did not honestly believe that he wrote the disparaging post, Smizer was unable to carry his burden to show that the purported reason for his firing was a pretext for gender discrimination.

In addition, the 7th Circuit provided an interesting comment, of which employers should take note: while Smizer alleges in his appeal that his mother and the Board chairman had labeled him a liability because of comments from some parents who objected to having a male daycare worker tend to their 2-year old daughters, Smizer failed to raise that issue to the lower court. (Information that is not raised to a trial court cannot be raised for the first time on appeal.) Had he done so, he may have been able to argue that such comments – related to gender – were the “real” basis for his firing, allowing the court to deny summary judgment and send the case to a jury. Without that information, however, the lower court was able to find that the Center’s articulated belief that Smizer had posted a Facebook entry that created concern among the Center’s workforce and management was sufficient to support Smizer’s firing.