Kathleen Jungclaus was the vice president for human resources at a retirement community in Pennsylvania. In July 2016, she tweeted from her public Twitter account: “@realDonaldTrump I am the VP of HR in a comp outside of Philly an informal survey of our employees shows 100% AA employees voting Trump!”
An anonymous letter was sent to the Board of Trustees, complaining about Jungclaus’ tweet, and the Board voted to fire Jungclaus for violating the employer’s social media policy. The policy, which Jungclaus had drafted, forbade mentioning other employees in a social media post without their permission, stated that “behavior that is not permitted in the workplace is also prohibited on social media” and specified that a violation was grounds for termination.
Jungclaus sued for discrimination and retaliation, and lost. She argued that her firing showed a “discriminatory double standard” when compared with the treatment of a male Board member who had circulated offensive political emails. Of the 150 pages of emails spanning three years, Jungclaus objected to only 11 messages about politics “none of which support an inference of sex or age discrimination, nor are they racist or antisemitic,” said the court.
In the words of the trial judge, the Board was “understandably disturbed that the HR Vice President questioned ‘100% [of Waverly’s] AA employees’ and, apparently at her partisan urging, said that they would vote for the same Presidential candidate. This is a legitimate, non-discriminatory reason for Jungclaus’ termination.”
The appeals court affirmed: “The record leaves no room for doubt on this front — Waverly’s termination decision was driven by its conclusion that Jungclaus had violated the social media policy.” They noted that there were big differences between her case and that of the Board member. In addition to the difference between Jungclaus’ apparently racial tweet (On appeal, Jungclaus tried to argue that AA did not mean “African American”, as the Board thought, but rather “administrative assistant”) and the Board member’s political emails, also key were their differing positions (employee vs. board member), their differing forms of communication (social media vs. email), and their different audiences (public at large vs. private list of chosen recipients).
Jungclaus v. Waverly Heights LTD, 2022 U.S. Dist. LEXIS 67140 (E.D. Pa. Apr. 12, 2022), aff’d 2023 U.S. App. LEXIS 4269 (3d Cir. Feb. 23, 2023)
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Updated 03-09-2023
Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.
