The Barrow County case has drawn comments and e-mails from around the country. Here is an astute note from a Californian in the information technology field.
I thought Andrew Karp raised compelling issues, and he was happy to allow me to post his comments. (Karp has a technology consulting firm, Sierra Information Services, in Northern California.)
Ashley Payne’s predicament is both upsetting and illustrative of the perils our “information society” faces. Normative values for “privacy” and “appropriate conduct” are rapidly changing, largely fueled by Internet-based tools like social networking sites allowing near-instant access by others to our personal information, whether we like it or not.
My job as an independent information technology consultant and my personal experiences with the Internet inform my opinions about and reactions to Ms. Payne’s case. She seems to have been done in by an anonymous predator who took innocuous information and images from her Facebook page and maliciously transmitted them via email to administrators at the school where she worked. In turn, school administrators apparently used the defamatory falsehoods in the anonymous email they received to put Ms. Payne in a position where she felt the only career- and reputation-saving option she had was to resign from her position as a high school English teacher.
It’s important to recognize that Ms. Payne posted photographs of herself engaging in conduct that is lawful both here in the United States and in the countries in which the images were taken. In fact, in many European countries there’s no minimum drinking age. So, what she was photographed doing, where she was doing it, was not even illegal conduct for many students at the school where she taught, much less for her as an over-21 adult.
Further, “Crazy Bitch Bingo” is the trademarked name of a program/event that is periodically organized at bars and restaurants in the Atlanta area. Therefore, her posting a message on her Facebook page that she was going out to play “Crazy Bitch Bingo” at a local bar/restaurant accurately described her plans for that evening.
It is just as accurate as saying “I am going out for a Coke, or I bought a box of Fruit Loops,” both of which are also trademarked product names. “Coke” is also a slang term for cocaine (an illegal substance) and sometimes the term “fruit loop” is employed to characterize someone as crazy, or foolish. While I personally think that “Crazy Bitch” is a mildly offensive term, its apparent use in this context is not, and Ms. Payne’s Facebook-based notice she was going out to “play Crazy Bitch Bingo” was not characterizing an individual in a derogatory or defamatory way.
Would any sane person regard a statement by a teacher along the lines of “I bought a lot of Coke tonight at the supermarket for Saturday’s pre-game tailgate party” as promoting the use of illicit narcotics by high school students?
So, any assertion that “she shouldn’t have posted those things on Facebook to start with” is misplaced. She posted photographic images of herself engaging in lawful “off the clock” conduct and a text message accurately describing her personal plans to attend an event having nothing to do with her job as a secondary school English teacher.
One common thread in this discussion has been that since Ms. Payne “resigned,” there is little the teachers union or the courts have to offer her in redress. I disagree. While I am not a lawyer, a union representative or a teacher, anyone who has taken an undergraduate course in business law knows that a contract/agreement obtained under duress is invalid. And, that seems to be the situation here.
Fairness for Ashley Payne should become the rallying cry for teachers unions whose members who are the subject of adverse personnel actions arising from information posted on social networking sites and the use (or, rather, misuse) by school administrators of anonymous allegations received via email. I rather doubt that union leaders would shirk from fighting the termination or forced resignation of one of their members of the false and defamatory allegations were in “hard copy” and slipped under the door of the school principal’s office. Just because the “evidence” arrived via email does not relieve, in my view, the union from protecting its members’ contractual rights.
It’s also very possible that, as in many public agency collective bargaining agreements, the one between the Barrow County school board and its local teachers union contains provisions mandating access by a represented employee to a union representative when management initiates a meeting with an employee that may lead to an adverse personnel action such as employment termination. The school board may claim that the “conversation” between Ms. Payne and the administrator which lead to her “resignation” was voluntary and did not “start out” as an “adverse action,” but that’s pretty suspect to me. I can’t imagine a union representative telling Ms. Payne to hurry up and quit her job under these circumstances.
The next issue is the alleged “voluntary” nature of her “resignation.” It seems as if Ms. Payne was under a lot of pressure and coerced in to “resigning” by administrators in the school where she worked. She wanted a way out while protecting her ability to continue to practice her profession and retain her newly earned credential. It would not surprise me if her lawyer now pursues a “duress” claim to nullify the validity of her resignation. A fundamental principle of contract law invalidates any agreement that is obtained when one party to it is put under duress by the other.
Instead of putting a gun to her head, the administration apparently fed her some half-baked “truths” and “suggested” it might be “best” if she “resigned” immediately. The “gun” was not a Colt .45, but the threat of losing her credential and reputation.
That Ms. Payne is: 1) young; 2) engaged in no unlawful conduct; 3) is relatively new to the teaching profession; 4) was apparently not allowed/given time to consider her options in the matter before “resigning,” and was (if I am understanding things correctly), 5) given a “suggestion” by an otherwise trustworthy superior that she might lose her credential if she did not resign, all point to a potentially successful duress claim.
My thoughts/perspective on this matter are shaped by a situation I encountered a few years ago while presenting a series of technical training seminars for a prominent financial services firm in the southeastern US. The company wanted to reduce its employee headcount, it seemed, by forcing folks to “resign” rather than to “lay them off.”
The company implemented its “headcount reduction plan” by plucking hapless victims from their offices/cubicles and taking them, one at a time, to an office where a senior manager, several burly (and armed) security guards, and a human resources employee were present.
The employee was then told: 1) their employment was terminated, effective immediately, “for poor performance”; 2) they were going to be escorted off the premises at the end of the meeting (another security guard collected the personal property /effects from the employee’s work space); and, 3) that if they signed an agreement to “resign” and to never discuss the circumstances of their so-called “resignation”, they would receive a larger severance package than if they did not sign the agreement, right then and there.
No opportunity to read it over, think about it, talk to your spouse, lawyer or financial advisor. Just sign here, “resign,” get a bigger check, and the nice men with the guns will show you to your car.
As it turned, out, enough of the people who had been “resigned” by the company got together and sued their former employer in federal court. There was valid statistical evidence showing that most of the employees who “resigned” were over 40, female, racial minorities or combinations of all three, raising claims of employment discrimination. The company tried to get the case dismissed on the grounds that since the plaintiffs had “resigned,” there had been no discrimination and hence no valid cause of action.
But, a central part of the plaintiff’s case was that the “resignations” had been obtained under duress. Having been called to a “meeting” in a room with a bunch of armed guards and told “sign here or else” without having a chance to fully read/consider the contents of the “agreement” and other factors, they claimed, rendered the “resignations” invalid.
The company agreed to settle the case rather than go to trial, which was probably smart for them, since a judge certified the dispute as federal “class action” discrimination case that was starting to generate substantial negative publicity for the firm. It also avoided a public airing of the manner in which these “agreements” had been obtained, which itself might have been a PR nightmare for the company.
In Barrow County, we now have a young, attractive and sympathetic plaintiff. If her lawyer convinces a judge that duress nullifies her “resignation,” my guess is the school board will want to quickly—and quietly—settle. Neither the volunteer members of the school board nor the insurance company which issued their liability policy will want to see this case played out in the press or in front of a jury.
From a pure cost/benefit standpoint, it is probably less expensive for the board and its insurance company to give her two or three years pay in return for a confidential settlement agreement allowing her to look for work in another district with an unblemished record. And, I am sure Ms. Payne wants to get to the classroom rather than spend years having this matter hanging over her head.
But, between now and when her case is resolved (either at trial or via a settlement agreement) if Ashley Payne gets so much as a parking ticket the school board’s lawyers will attack her credibility like a dog after a bone.
I just hope that this young woman to resume her career as a teacher, and soon. Unfortunately, as a lawyer friend once told me, it is “hard to unring the bell” with these sorts of cases. But, we should not allow the expanding world of the Internet and of social networking sites like Facebook to relieve all of us of the fundamental requirement to be reasonable, thoughtful, accurate and fair in our dealings with others.