Susan Oki Mollway, Chief United States District Judge for the District of Hawaii, recently allowed a customer's complaint of negligent supervision, negligent training and negligent retention to proceed after an employee made Facebook postings that allegedly constituted an attack on the customer's race, sexual orientation, and financial condition.  The employee allegedly made postings on his Facebook page that the customer found to be hostile and harassing.  The employer moved to dismiss the employee's Third Amended Complaint for failure to state a claim upon which relief can be granted, and the court denied the motion as to the claims for negligent supervision, negligent retention, and negligent training.

A court may dismiss a case if it determines that the complaint lacks a cognizable legal theory or pleads insufficient facts to support that theory.  To survive this kind of motion, then, a party must allege sufficient facts to ensure that the complaint is not speculative or conclusory.

In this case, Judge Mollway concluded that the employee had made sufficient factual showing in support of his negligent supervision and negligent training claims because it had been put on notice that it needed to exercise a greater degree of control over a particular employee.  The complaint alleged that the employee who posted the hostile comments used a company computer to post some of them, and had previously posted hostile information about another customer and a manager.  This was sufficient to state a claim that the employer may have been on notice that it needed to exercise more control over the employee and provide additional training.  

Judge Mollway also concluded that the customer made a sufficient factual showing to support his negligent retention claim.  Applying the standard used in an ordinary negligence case to reach this decision, the court noted that the complaint was sufficient because it contained allegations that the employer had a duty to suspend or terminate the employee after it became aware of prior incidents of posting hostile information about others, and failed to do so.  As such, the case was allowed to proceed.  Howard v. The Hertz Corporation