Stupid Employer Countersues Fired Pregnant Employee For Checking Facebook

Employers should take gender discrimination claims seriously, especially when employment discrimination attorneys get involved.

Instead of just defending claims, some employers have taken to the atrocious tactic of trying to countersue employees as an intimidation tactic.  The case of Lee v. PMSI, Inc., 2011 WL 1742028 (M.D.Fla., May 6, 2011), is a good example of such a failed tactic.  In Lee, the plaintiff Wendi Lee sued her former employer, PMSI, Inc., for pregnancy discrimination. PMSI filed a counterclaim asserting a violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030. (“CFAA”) FN1 PMSI asserts that the Lee engaged in “excessive internet usage” and “visited personal websites such as Facebook and monitored and sent personal email through her Verizon web mail account.” Lee moved to dismiss the counterclaim, and the court granted the motion. The court found that the company failed to allege that its computer system was damaged by plaintiff’s internet usage, and plaintiff was alleged only to have accessed her own information, not that of the employer.  The Court held:

“The CFAA provides that ‘[a]ny person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the viola-tor to obtain compensatory damages …’ 18 U.S.C. § 1030(g). The statute provides a civil action only in specified circumstances. The only circumstance arguably obtaining in this action is a ‘loss to 1 or more persons during any 1–year period … aggregating at least $5,000 in value[.]’ 18 U.S.C. § 1030(c)(4)(A)(i)(l).

“For the proposition that an employee’s personal use of a company computer in violation of a company policy constitutes a violation under the CFAA, the defendant cites only United States v. Rodriguez, 628 F.3d 1258 (11th Cir.2010), in which a worker for the Social Security Administration accessed the personal records of friends and acquaintances. The Eleventh Circuit upheld his conviction under 18 U.S.C. § 1030(a)(2)(B), which applies to government computers, because Rodriguez accessed the sensitive personal information on the government computers. In this instance, Lee did not improperly access any in-formation on PMSI’s computer, and the only information she accessed was her own information on her email and facebook accounts.”

In my mind, the filing of the counterclaim is further retaliatory conduct – particularly when it is a frivolous counterclaim – and will open the employer up to more liability.

The Pregnancy Discrimination Act prohibits discrimination based on pregnancy and related medical conditions. Title VII, forbids employers from making employment decisions based on gender, including pregnancy. Therefore, employers are not permitted to make decisions to hire, fire, promote, assign jobs nor award benefits to an individual based on that person’s gender.

If you even think that your employment rights have been violated or that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation at (216) 271-3742. The Spitz Law Firm is dedicated to protecting employees’ rights and solving employment disputes.


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