Tiffany Marshall was hired by the City of Savannah, Georgia in September 2006 as a probationary firefighter. Prior to beginning her employment with the City, Marshall switched her account at www.myspace.com to “private” so that only designated “friends” could view photographs in the private section of her account. These photographs included a picture of firefighters from the Department, which she obtained without permission from the City’s website. Marshall labeled this picture “diversity.” The “diversity” picture was the official recruitment photograph displayed on Savannah Fire’s website and other recruiting materials. Marshall also posted a photograph of herself with members from the Georgia Search and Rescue Coastal Task Force, which included employees from the Department.
Displayed on the same page as the “diversity” and Task Force photographs were two photographs of Marshall. One photograph, captioned “fresh out of the shower,” depicted Marshall posing bare-shouldered. The other photo revealed Marshall’s backside. It was difficult to discern what clothing, if any, she was wearing. Marshall titled the second picture, “I model too – this is from my second shoot.”
When the Department learned about the MySpace photographs, it began an investigation. The Chief determined that the appropriate discipline was an oral reprimand. When the Chief met with Marshall to issue the oral reprimand, things went downhill. Marshall, who was still on probation, denied violating any rules, and instead questioned the Chief as to whether he had shown the pictures to anyone else. Marshall refused to sign the oral reprimand, and claimed she was being singled out. By her own admission, Marshall became “upset” during the meeting.
Three days after the meeting, the Chief decided to terminate Marshall based on her “denial of violation of department policy, disrespect towards administration and chief officers, and disregard for the oath of a firefighter.” Marshall responded by filing a federal court lawsuit alleging that the real basis for discipline was gender discrimination.
The federal Eleventh Circuit Court of Appeals rejected Marshall’s lawsuit. The Court found that Marshall failed to prove that similarly-situated male firefighters had been treated more leniently then she. The Court held that “Marshall asserts that other male firefighters had Savannah Fire-related and other personal photos on their MySpace pages. Even if we assume that these firefighters violated the same rules and regulations as Marshall, the trial court correctly found that the City lacked knowledge of these firefighters. It is undisputed that the Chief told Marshall he was unaware of any other current violators, and that Marshall refused to disclose any specific names. Had he known of any firefighters using Savannah Fire photos or images on their personal web page, the Chief stated that ‘they would’ve been treated exactly the same way as Marshall.’ While the Chief had heard rumors of others in a potentially similar situation at the time of Marshall’s oral reprimand, he never received any information identifying a particular person. Absent proof of such knowledge, Marshall cannot establish a prima facie case of discrimination.”
The Court also found that there were independent reasons for Marshall’s termination: “Marshall’s termination was not based solely on her posting of Savannah Fire photographs on her website. The reasons given for Marshall’s discharge were her unsatisfactory probationary period, her denial of violating Savannah Fire’s policies, her disrespect toward superior officers, and her disregard for the oath of a Savannah Fire Department firefighter. The record contains no evidence of a male firefighter who was on probationary status, disputed alleged violations of Savannah Fire’s rules, disobeyed direct orders of the commanding chiefs, and showed disrespect. Consequently, Marshall has failed to establish that she was treated less favorably than a male firefighter who was ‘similarly situated in all relevant respects.’ Without a valid comparator or other evidence of discrimination, Marshall’s prima facie case fails.”
Marshall v. Mayor and Alderman of City of Savannah, Georgia, 2010 WL 537852 (11th Cir. 2010).
Note: Marshall contended in the trial court that her MySpace page was protected by the First Amendment. By the time the case reached the Court of Appeals, Marshall had withdrawn the argument. Almost certainly, the argument would not have carried the day. There is no special First Amendment protection for MySpace or any other social networking web site. The question is whether the content of speech is protected, not whether it is communicated via the Internet. (WA)
This article appears in the April 2010 issue