Firing for Off-Duty Pro-Confederate-Flag Speech May Violate Colorado Statutes

For more on the state statutes like those discussed here, see this article (and in particular pp. 313-15 on the potentially broad scope of “political activity,” as extending beyond election campaigns). From Magistrate Judge Michael E. Hegarty’s decision Wednesday in Patterson-Eachus v. United Airlines, Inc. (D. Colo.) (images added from the court record):

Plaintiff worked for Defendant for thirty-one years in several capacities, most recently as a supervisor of airport operations. Her conduct and performance were not an issue until, as Defendant describes it, she posted certain “divisive” messages on Facebook.

{Sometime in August 2017, on her personal time and computer, Plaintiff re-posted to her private Facebook page her support for preserving the “Rebels” mascot of her high school, Weld Central High, including a cartoon soldier superimposed on a Confederate flag (the “Rebels mascot post“).

Sometime also in August 2017, Plaintiff re-posted to her private Facebook page a video of an African American male in front of a Confederate flag who, among other things, opined that the Confederate flag is not the evil that many people say it is (the “Confederate flag post”).}

Defendant learned of those messages, investigated them, found other issues with Plaintiff’s on-the-job conduct, and terminated Plaintiff based on its purported findings that Plaintiff’s negative interactions with subordinates irreparably damaged her ability to supervise….

[1.] Under Colo. Rev. Stat. § 24-34-402.5:

It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours….

This law “was meant to provide a shield to employees who engage in activities that are personally distasteful to their employer, but which activities are legal and unrelated to an employee’s job duties.” … Plaintiff contends she was terminated because of her private activity in posting material to her own Facebook account….

[T]he record contains … evidence Plaintiff was terminated for her Facebook activity…. The termination letter dated October 16, 2017 begins with the statement that Plaintiff posted “inappropriate and racially insensitive” material to her Facebook account. It states that th