Although United Airlines reportedly fired a supervisor for her performance, a federal court will allow her to sue the company on the claim that her social media posts featuring Confederate iconography were really the cause.

“Defendant first argues that the record contains no evidence Plaintiff was terminated for her Facebook activity. I disagree,” wrote U.S. Magistrate Judge Michael E. Hegarty in a Dec. 9 order.

Colorado law labels as discrimination an employer’s termination of employees for their activities during non-work hours. In allowing the wrongful termination claim to proceed, Hegarty ruled a jury would decide the extent to which a series of social media posts factored into United Airlines’ action.

Rhonda Patterson-Eachus worked for the company since 1986, and became a supervisor of airport operations a decade later. She received generally positive performance reviews. In August 2017, Patterson-Eachus posted a message of support on her Facebook page for preserving the mascot of her alma mater, Weld Central High.

The “Rebels” character is a soldier with resemblance to a Civil War general (although the school also just uses the initials “WC” in lieu of the logo). In Patterson-Eachus’s post, the soldier was superimposed upon a Confederate flag.

Around this time, a petition appeared online to change the mascot, following the deadly “Unite the Right” rally of white supremacists in Charlottesville, Va. The school superintendent in Weld County said the mascot was a symbol of pride, not racism. Confederate flags used to appear with the mascot, but they no longer did. Still, the Weld school became embroiled in controversy shortly afterward when attendees of a football game with Manual High School in Denver alleged Weld students brandished the Confederate flag.

“To be clear, the Confederate flag plays no role in Weld Central, and neither school condones symbols or acts of racism,” read a joint statement from Sept. 26, 2017 from the school leaders in Weld County and Denver.

Patterson-Eachus subsequently made another post on Facebook, sharing a video of a Black male who said the Confederate flag was more benign than people realized.

Reportedly, her posts offended a Black customer service agent at United with whom Patterson-Eachus was friends online. On Aug. 24, the senior manager of human resources and employee engagement in Denver told Patterson-Eachus to remove the video post. 

“Once Rhonda was made aware of the odious affiliation between Confederate symbols with the nation’s past and its legacy of pain on African Americans,” said Dipak P. Patel, an attorney with Ciancio Ciancio Brown, P.C., “she had a change of heart and rescinded her support and removed the postings.”

A subsequent verbal warning from her manager conveyed that Patterson-Eachus’s posts violated the company’s social network and professionalism guidelines. On Aug. 30, a United employee who was a subordinate of Patterson-Eachus’ anonymously complained about both Confederate flag posts.

A United Airlines investigation with more than a dozen customer service agents who worked with Patterson-Eachus revealed them to feel “picked on or harassed,” with multiple allegations of belittlement. Several of them reportedly mentioned how Patterson-Eachus’ Facebook posts triggered trauma related to racism. They said they did not come forward previously for fear of retaliation.

When company representatives met with her on Sept. 27, 2017, Patterson-Eachus was surprised about the offense her coworkers took. Less than a month later, United fired her, explaining the Facebook posts were not the cause, but rather her conduct towards subordinates was. Specifically, the airline cited rules prescribing good judgment, avoiding aggressive behavior and communicating in a businesslike manner.

“Plaintiff’s racially insensitive Facebook postings call into question Plaintiff’s competence to supervise a racially diverse group of customer service agents. No reasonable jury would conclude otherwise,” wrote United in a legal filing.

Patterson-Eachus sued United, alleging age and gender discrimination against her. Hegarty dismissed those claims, finding insufficient evidence to proceed to a jury trial.

However, on her claim that the airline terminated her over the off-duty social media posts, the magistrate judge found clear evidence for the Confederacy-related content playing a role in her firing. The company’s termination letter, for instance, stated that Patterson-Eachus continued to “deny that the racially insensitive Facebook post was inappropriate and that there was anything wrong with posting the racially offensive video on Facebook, where a number of your direct reports could see it.”

The company also argued that it held its supervisory employees to a higher standard because they are meant to set an example. Therefore, Patterson-Eachus’ off-duty conduct would be an exception to Colorado law in this instance.

“The current situation is unlike those cases that have applied this exception,” Hegarty countered. He allowed her wrongful termination claims to continue to trial.

Patel told Colorado Politics he was “confident that a jury will find unlawful United’s reflexive termination of a 31-year employee after she participated in lawful off-duty and political activity.”

Eugene Volokh, a professor of law at the University of California-Los Angeles, wrote in the Texas Review of Law & Politics that approximately half of Americans live in places that protect private speech of employees from retaliation by their employer.

“I am not sure such restrictions on private employers are a good idea. First, employers may have a legitimate interest in not associating themselves with people whose views they despise,” he explained. “Second, employees are hired to advance the employer’s interests, not to undermine it. When an employee’s speech or political activity sufficiently alienates coworkers, customers, or political figures, an employer may reasonably claim a right to sever his connection to the employee.”

However, in August of this year, the federal appeals court based in Ohio reinstated a lawsuit against the city of Cleveland for its firing of an EMS captain. The former employee made incendiary comments on Facebook about the shooting of 12-year-old Tamir Rice, which the appellate judges viewed as protected speech. The ruling only applied to public employers.

The case is Patterson-Eachus v. United Airlines.