HARRISBURG – The Supreme Court of Pennsylvania unanimously overturned a decision from the Commonwealth Court and agreed with the state Department of Transportation, that a former employee was rightly fired when she posted on Facebook that she would “gladly smash into a school bus.”
The majority opinion was authored by Supreme Court judge Sallie Updyke Mundy and joined by fellow justices Thomas G. Saylor, Max Baer, Debra Todd, Christine Donohue and David Wecht. Wecht also filed a concurring opinion, which fellow justice Kevin Dougherty joined.
In 2016, plaintiff Rachel Carr, a Roadway Programs Technician with the Pennsylvania Department of Transportation, posted scathing criticism of a school bus driver in a private Facebook group named “Creeps Of Peeps”.
Specifically, Carr wrote: “Can we acknowledge the horrible school bus drivers? I’m in PA, almost on the NY border, near Erie and they are hella scary. Daily, I get run off the berm of our completely wide enough road and today one asked me to T-Bone it. I end this rant saying I don’t give a flying s—t about those babies and I will gladly smash into a school bus.”
Follow-up comments Carr posted also contained profanity.
Screenshots of her posts were sent to the Department of Transportation, which suspended and terminated Carr for inappropriate behavior. Through an attorney, she appealed the decision to the Civil Service Commission on free speech grounds, but was ruled against in August 2017.
The commission panel stated Carr’s “disparaging remarks” invited “disrepute” to the Department of Transportation as an agency and raised trust issues and doubts to its objective of maintaining public safety.
Carr and her attorney appealed the Civil Service Commission’s decision to the Commonwealth Court of Pennsylvania and won in July 2018, with a panel from that court claimed the Civil Service Commission made a mistake by not examining Carr’s speech and instead using the public’s reaction to her words as the measuring stick.
The Commonwealth Court decision believed the matter of public concern being called into question by Carr in her rant overrode the inappropriateness of the manner in which she chose to express that concern, though the Commonwealth Court did not that her manner in question was “abhorrent.”
Its decision ordered Carr to be reinstated to her prior employment position.
However, counsel for the Department of Transportation appealed the Commonwealth Court’s ruling to the Supreme Court of Pennsylvania, which upheld Carr’s dismissal on May 19.
Mundy agreed with the Civil Service Commission that Carr’s words threatened a loss of trust in the Department of Transportation from the public.
“The relevant question is whether Carr’s speech could reasonably be said to adversely affect the Department’s interest as an employer. Even if Carr never intended to drive her vehicle into a school bus, if her words alone could erode the public’s trust in her employer’s mission, the Department acted reasonably in terminating her employment,” Mundy said.
“Clearly, few statements could be more contrary to the Department’s mission of providing safe roadways for the traveling public than Carr’s comment, ‘I don’t give a flying s—t about those babies and I will gladly smash into a school bus.’ Furthermore, the fact that the Department received complaints via social media about Carr’s posts highlights the reasonableness of its concerns regarding the loss of public trust.”
Mundy stated the Commonwealth Court erred in its analysis of the matter and labeled Carr’s Facebook post as “a rant based on her personal observation of a particular bus driver, rather than an explanation of safety concerns that she became aware of as a Department employee.”
Supreme Court of Pennsylvania case 3 MAP 2019
Commonwealth Court of Pennsylvania case 380 MD 2017
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com