Charlene Carter, a long-term Southwest Airlines flight attendant, claimed her employment was terminated either (1) in retaliation for opting out of her union, or (2) because of her religious beliefs in violation of Title VII of the Civil Rights Act of 1964. Southwest claimed she was terminated because of a “two-year grossly offensive and terrible campaign to personally torment” Audrey Stone, former union president.

Admittedly, Carter sent numerous messages to the union president’s Facebook Messenger account, ranging from insults and name-calling to shocking images. She called Stone “morally bankrupt,” “lacking in morals,” a “criminal,” “Pure Evil,” and a “DISGRACE.” She sent Stone a picture of a t-shirt stating, “F****ARD, I VOTED BRETT NEVAREZ CAUSE HE RESPECTS ME.” She supported a recall campaign, posted, and sent messages on social media expressing her disapproval of the union and its leadership, and accused the union of corruption.

Carter also described herself as a Christian who believes that “abortion is the taking of a human life contrary to the teachings of the Bible and the will of God.”

In January 2017, Stone and other Southwest flight attendants participated in the Women’s March in Washington D.C. The union used dues and fees to pay for its expenses associated with the march. This escalated Carter’s Face­ book messages to Stone, which now included videos of “aborted” babies.

In one message that accompanied a video of an “aborted” baby, Carter said, “This is what you supported during your Paid Leave with others at the Women’s MARCH in DC…You truly are Despicable in so many ways.” She sent Stone a picture of individuals wearing costumes that depicted female genitalia and accused her of sup­ porting murder. Stone was highly disturbed by the messages and reported them to Southwest.

Southwest investigated, determined Carter had violated its policies by sending unsolicited graphic and harassing messages to Stone, and fired her. She appealed her termination to the union, and the parties eventually arbitrated the dispute. The arbitrator found Southwest had just cause under the collective bargaining agreement to terminate her employment. She then sued in federal court.

Southwest argued Carter’s behavior violated its workplace bullying and hazing policy, its harassment policy, and its social media policy, each of which contained provisions similar to what many employers use. They prohibited verbal bullying and cyberbullying (slandering, ridiculing, hurtful name calling, personal insults, and the like). They prohibited derogatory, offensive, threatening, and intimidating comments on social media. They prohibited engaging in social media activities in a way that is related to Southwest, reflected poorly on the airline, or affected the workplace.

The social media policy governed both on- and off-duty social media activities. Additionally, because Southwest had experienced a substantial increase in social media complaints between flight attendants, it had issued multiple notices to employees emphasizing the necessity of compliance with social media and related policies.

Despite this, the district judge denied Southwest’s and the union’s requests for summary judgment (dismissal without a trial) and found that a jury should determine (1) whether the union had breached its duty of fair representation of Carter and/or retaliated against her for her antiunion views, and (2) whether the airline and/or the union had discriminated against her because of her religious beliefs and/or failed to accommodate her religious beliefs and practices.

After an eight-day jury trial, Carter won a verdict against Southwest and the union for $120,000 in lost wages, $30,000 in lost benefits, and $500,000 for past and future pain and suffering, inconvenience, mental anguish, and loss of enjoyment of life. The jury ordered the union to pay $300,000 in punitive damages and ordered Southwest to pay $3,500,000 in punitive damages for her religious discrimination claim. The airline plans to ap­ peal the verdict. Carter v. Trans. Workers Union Local 556, N.D.Tex., No. 3:17-cv-02278.

What is the lesson for employers here? I suspect that you-like me-were shocked at Carter’s behavior to­ ward Stone, and that you thought Southwest was justified in its decision to terminate her employment.

First, the verdict is a reminder that jury trials are unpredictable. While juries work hard and often get it right, there’s always a risk for an employer in a jury trial. Were the jurors somehow angered by the union or Southwest? Was the emotional content of Carter’s communications consistent with religious or political beliefs of the jurors?

Second, there’s a very delicate balance between an employee’s right to exercise her opinions and an employer’s right to protect itself from the fallout of those opinions. Social media policies are good to have but difficult to apply – particularly when off-duty conduct is involved.

Third, there was a long history of animosity between Carter and the union. She had waged a long campaign against it and against Stone. The union president’s com­ plaint to Southwest that triggered the investigation likely muddied the facts enough that it was hard to tell whether the animosity became retaliatory.

We’ll follow this case as it heads to the U.S. 5th Circuit Court of Appeals and provide an update when the appeal is decided.

Kathy Neal is an attorney in the Tulsa, Oklahoma, office of McAfee & Taft. She can be reached at kathy.neal@mcafeetaft.com.