Sex, Lies and Cell Phones

In December, the Fifth Circuit Court of Appeals upheld a summary judgment for an employer who was alleged to have violated the Stored Communications Act (SCA).

In Fannie Garcia v. City of Laredo, et al, the Plaintiff alleged that her former employer, the City of Laredo, and various other public officials, violated the SCA by using evidence stored in her personal cell phone as a basis for her termination.

The Fifth Circuit’s opinion is strangely silent on some of the background facts, so I decided to view the original complaint.  According to Garcia’s federal complaint, the wife of a police officer took her husband’s key to the police substation without his consent.  She entered the substation, went into the locker room, and rummaged through her husband’s locker.  There she found a cell phone, allegedly loaned to the husband by Garcia.   On this cell phone the wife discovered text messages, photographs and videos.    She then took the cell phone and shared the contents with city officials, who proceeded to download several photographs and a video.   The photos are described in the complaint, and let’s say that they are, well, um, sexually explicit.  Based on the contents found on Garcia’s cell phone, she was later terminated.  Neither Garcia’s complaint nor the court’s opinion states whether the husband was also terminated.

The SCA, in very simplified terms, is a law that provides privacy protections to electronic communications and data stored with network service providers and other similar facilities.  In affirming the lower court’s decision, the Fifth Circuit relied on abundant precedent holding that the SCA did not apply to data stored on personal computers, laptops, mobile devices . . . or in this case, Garcia’s cell phone.

With modern technology and social media, the line between one’s private life and work life is quickly disappearing, and workers need to remember that evidence for a termination can come from a variety of sources, including one’s own written words . . . or images.

“Heaven has no rage like love to hatred turned, nor hell a fury like a woman scorned.”

–       William Congreve

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John Wenke is an Employment Law Attorney practicing in the area of employment discrimination, wrongful termination, retaliation, and sexual harassment. Mr. Wenke represents employees in Texas and New Mexico, including but not limited to El Paso,  Las Cruces, Alamogordo, Pecos, Marfa, Alpine, Presidio, and Del Rio.