McVey v. AtlantiCare Medical System, Inc.

Heather McVey (plaintiff) worked as a customer-service director for AtlantiCare Medical System, Inc. (AtlantiCare) (defendant). McVey was an at-will employee. AtlantiCare had a social-media policy that covered employees’ use of AtlantiCare-controlled social-media accounts and employees’ personal social-media accounts. The policy stated that employees who publicly identified themselves as AtlantiCare employees should present themselves online how they would present themselves to colleagues or clients. The policy also instructed employees to be respectful, including avoiding ethnic slurs, personal insults, and obscenity and taking care when discussing objectionable or inflammatory topics. McVey had a personal Facebook account that listed her name as “Jayne Heather” but included McVey’s picture. The profile identified McVey as an AtlantiCare corporate director and stated that McVey had previously worked as an AtlantiCare nurse. In 2020, during the nationwide demonstrations following the death of George Floyd, McVey participated in a Facebook discussion regarding the Black Lives Matter movement. During the discussion, McVey stated, among other things, that (1) the Black Lives Matter movement was racist and caused segregation, (2) Black people were killing themselves, (3) all lives mattered to McVey as a nurse, and (4) McVey did not condone the rioting that had occurred in response to “this specific Black man’s” (i.e., Floyd’s) death. An AtlantiCare administrator discovered McVey’s Facebook posts and met with McVey to discuss the matter. AtlantiCare suspended McVey pending an investigation into the Facebook posts and ultimately terminated McVey for exhibiting poor management judgment and failing to uphold AtlantiCare’s values. McVey sued AtlantiCare in New Jersey state court, asserting that the termination had punished McVey for exercising her rights to free speech under the United States and New Jersey Constitutions. McVey alleged that AtlantiCare had wrongfully discharged her in violation of New Jersey public policy. AtlantiCare moved to dismiss, asserting that McVey could not base her wrongful-termination claim on an alleged free-speech violation because AtlantiCare was a private employer and not a state actor. The trial court dismissed McVey’s complaint, and McVey appealed.