In a matter of weeks, a Charlotte jury will decide whether Crystal Eschert is a wronged whistleblower or a Facebook troll.
On Thursday, U.S. District Frank Whitney cleared the way for a jury to hear Eschert’s claims that she was unfairly fired from her investigator’s job with the Charlotte Fire Department for two Facebook posts and in retaliation for her whistleblower complaints about the condition of a department building.
The case, which is scheduled for trial early next month, features a slew of conflicting issues, legal and otherwise:
▪ Eschert’s right of free speech vs. the demands a public job places on personal behavior;
▪ Whether Eschert violated a department social-media policy or was singled out for ignoring the chain of command;
▪ Whether she rightfully lost her job for making racially insensitive comments or was a victim of political correctness.
In rejecting a City of Charlotte argument that Eschert’s lawsuit should be thrown out, Whitney says those and other questions should be answered by a jury. He ruled that Eschert’s complaint, which alleges First Amendment violations, wrongful discharge, sexual discrimination and other claims, can proceed.
The legal fight dates back to the fire department’s efforts to control employee posts on social media. In 2013, the department adopted a policy that prohibits “simultaneously” identifying oneself as a department employee while displaying materials that could “potentially be perceived as offensive, including ... material that offends or harasses on the basis of race, sex, religion, color.”
On Aug. 20, 2014, about 10 days after the shooting of Michael Brown set off riots in Ferguson, Mo., Eschert wrote this post on her Facebook page:
“White guy shot by police yesterday near Ferguson ... Where is Obama? Where is Holder? Where is Al Sharpton? Where are Trayvon Martin’s parents? Where are all the white guys supporters? So is everyone MAKING it a racial issue? So tired it’s a racial thing. If you are a thug and worthless to society, it’s not race – You’re just a waste no matter what religion, race or sex you are.”
A week later, Eschert shared a post on the same page that blamed President Barack Obama for feeding the “racial tension and cultural divide” that had contributed to the deaths of hundreds of police officers since Obama took office.
Though both posts were made on Eschert’s non-public Facebook page, they were sent to police and fire officials by a person named Linda Havery, who said the posts were stirring controversy in the community and on the Web.
The Observer has not been able to identify a Linda Havery living in the Charlotte area, and Eschert and her attorney believe the emails were either sent by someone in the fire department or some other part of city government.
Eschert was fired that fall.
She claims the real reason for her termination was her role as a whistleblower in raising questions about the quality of renovations at a new arson unit center on North Graham Street. Eschert did not notify her bosses of her concerns. Instead, she and her father-in-law, Ray Eschert, a politically connected Ballantyne businessman, contacted City Council member Claire Fallon.
Fallon toured the building with then City Manager Ron Carlee and fire department official – the same day someone created the Linda Havery profile on Facebook, and Eschert made her first post.
Attorney Sara Lincoln, who is representing the city, told Whitney that no evidence has been produced that ties Havery to the city or proves that the fire department leaders even knew Eschert had complained about the arson building.
Nor can Eschert argue that the Facebook posts were a pretext for her firing and then claim that her First Amendment rights were violated, Lincoln said.
She told Whitney that Eschert’s comments on Facebook undermined her government responsibilities and were posted “when racial tensions in Charlotte and the United States were running extraordinarily high,” and may have jeopardized her co-workers’ safety.
Eschert’s attorney, Meg Maloney, countered that her client, at the time of her Facebook posts, was her department’s youngest employee who didn’t realize that her post – in particular her use of “thug” – may have been offensive to African Americans “because she’s not an African American. But there is nothing in the post that says she’s not open to understanding.”
In court and in earlier filings, Maloney has argued that Eschert was singled out for firing when other fire department employees, including top managers, received lesser punishment for similar Facebook comments.
In the end, Whitney decided that Eschert’s claims had enough merit to move forward. He foreshadowed his decision earlier in the hour-long hearing when he interrupted Lincoln while she was arguing that the suit should be dismissed.
“Do I have to take your word for this or should a jury decide?” he asked. “That’s a lot for me to swallow.”