Roanoke newspaper and former sportswriter settle dueling claims

/in /by

by Jayna Genti
DiMuroGinsberg PC

Readers will recall that last year we reported on the Roanoke Times’ lawsuit against its former sportswriter Andy Bitter over ownership of the @AndyBitterVT Twitter account and its followers (see “Who owns your company’s social media accounts?” on pg. 3 of our September 2018 issue and “Update on Roanoke Times’ Twitter lawsuit” on pg. 3 of our November 2018 issue). The newspaper first sued Bitter in Roanoke federal district court last August. The lawsuit sought to gain access to and use of the Twitter account. He had inherited the account from his predecessor on the beat but significantly increased the number of followers with his own reporting. He countersued the newspaper for defamation. It looked as though this would be a long, drawn-out dispute. But in a sudden turnaround, both sides have now agreed to a settlement.

Court’s ruling

The settlement may have been prompted by the federal court’s decision to deny the Roanoke Times’ attempt to prevent Bitter from using the disputed Twitter account while the case was being litigated. That ruling came after a seven-hour evidentiary hearing. Following the hearing, the court found two things—first, that the evidence failed to clearly establish that the newspaper was likely to prevail on the merits, and second, that irreparable harm would not result if he continued to use the account.

Regarding the likelihood of success, the court said the Roanoke Times had failed to prove by the high standard of clear and convincing evidence that it was the owner of the Twitter account or that it was a Roanoke Times-branded account, as opposed to a personal Twitter account owned by Bitter. Further, the court found that, given the public nature of the Twitter content and followers, the paper had failed to establish that the account contained any trade secrets under federal or state law.

Next, the court noted that the Roanoke Times hadn’t provided any evidence of irreparable harm should Bitter continue to use the account. This especially was the case because the account’s followers are publicly known. Additionally, the court found significant the paper’s “remarkable self-imposed ban on its own reporters’ use of Twitter to cover Virginia Tech football.”

Although the court expressed skepticism about the merit of the Roanoke Times’ legal arguments, it acknowledged there was a certain equity to the paper’s position. Indeed, it noted that the balance of equities somewhat favored the paper based on the evidence that the Twitter account was developed while Bitter was employed as a sports reporter and that this activity, at a minimum, was encouraged as part of his sports-coverage responsibilities. Given the strengths of each side of the dispute, the court ordered them to attend a settlement conference to attempt to resolve the matter.

Settlement

After the court issued its order, a settlement conference was convened. As a result of discussing the strengths and weaknesses of their respective cases, Bitter and the paper decided to settle, and the court, therefore, dismissed the dueling claims. The terms of the settlement haven’t been made public, but the federal court docket indicates that it was reached on mutually agreeable terms.

As part of the settlement, it appears that Bitter will retain access to the account, which uses the handle @AndyBitterVT. Indeed, following the court’s dismissal, he posted a statement to that effect, directing readers to the Roanoke Times’ new Virginia Tech-focused account. As he tweeted, “The Roanoke Times and I have agreed to drop our claims against each other and get on with our lives. I’ll continue to tweet from my account as I always have since I started covering Virginia Tech. If you’re inclined, consider following my successor at the Roanoke Times, Mike Niziolek, at @VTSportsRT. I look forward to continuing to report Virginia Tech football for The Athletic is his new employer. BH Media Group, Inc. v. Bitter, Case No. 7:18-cv-00388 (W.D. Va.).

Takeway

Significantly, the Roanoke Times apparently has learned from the legal dispute with Bitter the dangers of allowing a reporter to use his name as part of a Twitter handle. That’s because his successor at the paper will be using the handle @VTSportsRT, which references the name of the newspaper and sports team but not the reporter.

If you are facing a similar situation, where one or more of your employees uses Twitter or another social media platform as part of the job, you may want to have the Twitter handle or account name be in your company’s name, not the employee’s name. That will help to clarify that you own and control the account, not your employee.

Jayna Genti is an attorney with DiMuroGinsberg PC and a contributor to Virginia Employment Law Letter. She may be reached at jgenti@dimuro.com.

DGRead 19.02.01

/in /by

Ethics with Ben DiMuro >What Are the Limits?; Sexual Orientation Discrimination; Nina Ginsberg—An Influencer

DGRead 19.01.15

/in /by

Defamation in the Social Media Age; a Webinar with Jonathan Mook; Who Owns Your Company’s Social Media Accounts?

Virginia court examines whether sexual orientation is protected by federal law

/in /by

by Corey Zoldan
DiMuroGinsberg PC

You might be surprised to learn that federal courts have not yet definitively decided whether Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on sex, also prohibits discrimination based on sexual orientation. Recently, the U.S. district court in Lynchburg had the opportunity to address the issue but declined to do so, instead deciding the case before it on other grounds. However, the court’s opinion still provides important lessons for compliance with federal antidiscrimination law.

Facts

Carla Bee Spencer, an openly gay woman, worked as the deputy chief of police in the town of Bedford for eight months before she was terminated in August 2016. She claimed that while she was employed, her coworkers and her supervisor often ignored and openly resented her because she is a gay woman. She also asserted that she was paid less than comparable heterosexual male employees, and her supervisor clearly favored her heterosexual male coworkers.

After she was terminated, Spencer filed suit, arguing that the police department and the town of Bedford violated Title VII by discriminating against her on the basis of her sexual orientation. The text of Title VII prohibits employers from discriminating against employees “because of [their] . . . race, color, religion, sex or national origin.” The town asked the court to dismiss the lawsuit because Spencer failed to state a viable legal claim since sexual orientation isn’t protected under Title VII.

Court’s ruling

U.S. District Court Judge Norman K. Moon rejected the town’s argument and ruled the case should continue. The court found that Spencer had sufficiently alleged she was discriminated against, not just because she is gay, but because she is a gay woman. Accordingly, the district court reasoned that “for present purposes, it is unnecessary to determine whether Title VII prohibits discrimination based on sexual orientation because [Spencer], as a woman who experienced discrimination based on her gender, sufficiently alleges membership in a protected class.”

In reaching that conclusion, Judge Moon relied on one of the seminal U.S. Supreme Court opinions laying out the law prohibiting sex discrimination. That 1989 case, Price Waterhouse v. Hopkins, stands for the proposition that a Title VII claim exists even if the discrimination isn’t based “solely” on the employee’s sex. It’s sufficient that the employee’s sex contributed to the discrimination. Spencer v. Town of Bedford, Case No. 6:18-cv-31 (W.D.VA., Nov. 2, 2018).

Local laws afford protection

Because the federal prohibition against employment discrimination based on sexual orientation remains uncertain, aggrieved employees must look to state and local laws to find protection. The Commonwealth of Virginia has yet to pass any statutes affirmatively establishing sexual orientation as a characteristic protected from acts of discrimination by private-sector employers. However, state government employees are protected by an Executive Order issued by then-Governor Terry McAuliffe in 2014.

Both the city of Alexandria and Arlington County have enacted local ordinances that specifically prohibit employment discrimination based on sexual orientation. Charlottesville has also prohibited discrimination against its employees on the basis of sexual orientation. It remains to be seen whether other localities in Virginia will enact similar provisions banning sexual orientation discrimination.

Bottom line

When it comes to this gray area, you are well-advised to err on the side of caution. As the Spencer case shows, employees can claim that the discrimination they faced was based on a combination of their gender and their sexual orientation to state a viable claim that could lead to prolonged litigation. The time, money, and public relations nightmare that can result from a sexual orientation discrimination case often simply isn’t worth the legal fight.

Internal policies prohibiting sexual orientation discrimination can proactively prevent issues from occurring in the first place and will allow you to better deal with them internally if they do. Given the legal and practical complexities in this area of the law, it’s wise to consult with experienced employment counsel who can guide you to a solution that’s best for your company going forward.

Corey Zoldan is an attorney with DiMuroGinsberg PC and a contributor to Virginia Employment Law Letter. He may be reached at czoldan@dimuro.com.

DGRead 19.01.01

/in /by

Rocket Docket, Who Started It?; Update; OMG, How’s Your Performance?—a Webinar with Jonathan Mook