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Jackson v. Walgreen Co.

Court of Appeals of Missouri, Eastern District, Second Division

March 28, 2017

PATRICK JACKSON, Appellant,
v.
WALGREEN CO. and DIVISION OF EMPLOYMENT SECURITY, Respondents.

         Appeal from the Labor and Industrial Relations Commission No. 16-02111 R-A Filed: March 28, 2017

          Lisa P. Page, Judge.

         Patrick Jackson ("Claimant") appeals the decision of the Labor and Industrial Relations Commission ("Commission") denying Claimant unemployment benefits. We affirm.

         BACKGROUND

         Claimant was employed since January 22, 2009 as a customer service associate, an hourly position, at Walgreen Co. in Troy, Missouri ("Walgreens"). In July 2015, it is uncontested that Walgreens communicated its "Social Media and Personal Web Sites" policy ("Social Media Policy") to Claimant. The Social Media Policy established rules that prohibited certain behavior by employees on social media and personal websites. Pertinently, the Social Media Policy read:

Do not harass, threaten or bully. Team members may not defame . . . other team members and should not engage in online harassment, discrimination or bullying which would be prevented in the workplace. This includes . . . sexual innuendos . . . .
[Walgreens'] team members may not engage in conduct through social media which would otherwise violate [Walgreens'] policies and practices were they to engage in the same conduct or make such statements in the workplace. Team members who fail to follow the guidelines set forth in this policy may be subject to disciplinary action, up to and including termination of employment.

         On December 27, 2015, Claimant posted to a male coworker's Facebook page, a pornographic video, entitled "Black Mama White Mama (1973) Pam Grier 'Get 'em wet, '" along with the statement "I call it the [M] and [L] Expose."[1] At the time of that post, Claimant worked with two female coworkers named M and L, who did not appear in the posted video.

         Upon discovering Claimant's Facebook post, M approached the assistant store manager to express her concerns. M, who was visibly upset and distraught while discussing the post, requested Walgreens address the situation.

         The assistant store manager thereafter met with Claimant about this post. When asked whether the posted video referred to M and L, Claimant answered that those names could belong to anyone. Following this meeting, Walgreens conducted an investigation in the matter, concluding that Claimant's Facebook post had violated the Social Media Policy and that Claimant would be terminated for this violation. Walgreens discharged Claimant on January 13, 2016.

         Later that same day, Claimant applied for unemployment benefits with the Missouri Division of Employment Security ("DES"). This request was eventually denied after a DES deputy determined that Walgreens terminated Claimant for misconduct.

         On appeal to the DES Appeals Tribunal, Claimant conceded he had posted the pornographic video, but testified that his post did not refer to his coworkers and that the post did not violate Walgreens' Social Media Policy because it was not a sexual innuendo. Claimant further testified that M and L were the names of the women in the posted video, and only coincidentally shared names with his former coworkers. However, Claimant did state that he did not personally know anyone else named M or L. Finding this testimony convincing, the Appeals Tribunal, in a written opinion, reversed the deputy's determination. The Appeals Tribunal concluded Claimant did not commit misconduct, therefore Appellant was not disqualified from receiving unemployment benefits.

         Walgreens appealed to the Commission, which reversed the Appeals Tribunal decision. The Commission found Claimant's Facebook post clearly violated the Social Media Policy. The Commission concluded Walgreens had satisfied its burden of ...


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