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May 27, 2022

New Jersey woman fired for posting anti-Black Lives Matter comments loses appeal

Heather McVey sued the AtlantiCare and Geisinger health systems for wrongful termination over free speech

A company that fired an employee after she criticized the Black Lives Matter movement online did not break the law, an appellate panel ruled Friday.

Heather McVey sued the AtlantiCare and Geisinger health systems, alleging the First Amendment did not allow them to fire her because of her Facebook posts. But the appellate judges' Friday decision rejects her argument, saying federal law stipulates only governments — and not private actors — can be held liable for breaches of constitutional rights.

The court cited a 1998 state Supreme Court decision involving a public employee and employer that held racist remarks are not protected by the First Amendment or the New Jersey Constitution.

"Because a public employee can be terminated for such comments … a private company like AtlantiCare clearly had the authority to fire McVey for making these remarks in a public forum while identifying herself as an AtlantiCare employee," the decision reads.

In the aftermath of the death of George Floyd, who was killed by now-former Minneapolis police officer Derek Chauvin in May 2020, McVey wrote on Facebook that she found the Black Lives Matter movement racist, claiming it caused segregation and alleging Black people were "killing themselves." At the time, she was the corporate director of customer service for the health systems.

The comments, made in response to another user's public post, came to the attention of an AtlantiCare administrator. McVey was suspended for the posts on June 17, 2020, and fired six days later.

AtlantiCare's social media policy forbids posts on inflammatory or objectionable topics, "such as politics and religion." McVey's Facebook page identified her as an AtlantiCare employee.

The trial court dismissed her case, relying on rulings from other states to decree the First Amendment does not bar a private company from firing an at-will employee.

On appeal, McVey again argued her firing violated free speech provisions in the U.S. and New Jersey constitutions, also charging that right outweighed AtlantiCare's right to promote an inclusive workspace.

There are no precedential New Jersey cases directly involving private-sector wrongful termination cases hinging on free speech issues. The appellate panel's decision will set precedent for future cases like this unless it is overturned by the state Supreme Court.

It's not clear whether McVey will seek to petition the case to the New Jersey Supreme Court. Her attorneys did not immediately return an email seeking comment.

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