A woman who shared pictures on Facebook that her former employer Victoria’s Secret found offensive may have intended to be funny and protest against racism, but a federal appeals court ruled the retail company was not wrong to fire her.
A three-judge panel of the U.S. Court of Appeals for the Third Circuit on Wednesday denied plaintiff Mindy Caplan’s bid to have her retaliation claims against the retail chain reinstated. The nonprecedential decision in Caplan v. L Brands/Victoria’s Secret Stores affirmed a ruling from the U.S. District Court for the Western District of Pennsylvania.
According to court papers, Caplan, a district manager, who is white, shared two racially charged pictures on Facebook in 2014 and was fired shortly after.
One picture was a repost of an image of a person wearing a hooded robe that had a Los Angeles Clippers logo on it and the number 42. The picture was captioned “Game 5 in LA is Free Sheet Night… Donald Sterling Bobble head doll night too!” referring to the former owner of the Clippers, who was caught on tape making racist remarks and eventually banned from the National Basketball Association in 2014.
The other post, according to court papers, included a picture of an African-American woman named “Airwrecka McBride” that appeared on a local newscast. The caption said, “I’ve been spelling Erica wrong my whole life.”
Caplan had contended that the Sterling post was a protest against racism and the Airwrecka post was meant to be funny, rather than racist, so the speech was protected. However, Third Circuit Judge Theodore A. McKee said the second post could only be read as “satiriz[ing] the atypical spelling of an African-American woman’s name,” and that Victoria’s Secret had the right to fire Caplan.
“We agree than an issue of fact may well exist as to the Sterling post. Its message is not clear and could properly be interpreted as mocking a racist business owner just as Caplan explains,” McKee said. “However, even if this post was intended as a protest against racism, and therefore fell under the protective umbrella of the First Amendment, Caplan’s claim still fails given the Airwrecka post.”
Caplan’s attorney, Samuel Cordes of Pittsburgh, said he was happy the court’s ruling differed with Victoria Secret’s conclusion that the Sterling post was racist, and it would not have granted summary judgment on that issue. He said the case waded into emerging questions of law for courts, but he was not surprised the ruling was not precedential given the differences in the two posts at issue.
Caplan had also raised claims that she was fired for taking too much time off under the Family and Medical Leave Act, but McKee said Caplan failed to show that the reason Victoria’s Secret gave for firing her was pretextual.
“During meetings regarding her termination, no one discussed her medical conditions or leaves of absence,” McKee said. “There is no evidence that they were concerned with anything other than the Facebook posts when making their decision.”
According to court documents, Caplan had identified herself on Facebook as a Victoria’s Secret manager, and her profile picture was one of her standing in front of a Victoria’s Secret store.
Court papers said the company received an ethics complaint in 2014, noting the Facebook posts, and the store’s general counsel, who is African-American, eventually determined that the posts were “offensive and violated Victoria’s Secret Stores’ equal opportunity, off-duty conduct and social media policies,” court papers said.
Vorys, Sater, Seymour and Pease attorney Adam Rocco also did not return a call for comment.