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Fired MassHealth manager says she has every right to compare complaints about people not wearing masks to Nazi Germany; sues

A MassHealth manager who compared people filing complaints about the maskless to Germans turning Jews in to the Nazis says MassHealth had no right to fire her for what she said in her off hours and is suing to get her job back, plus damages.

As first reported by the Herald, Denise Foley sued MassHealth on Friday in Norfolk Superior Court, alleging that her superiors not only violated her First Amendment rights, they fired her without proper hearings or notification, in violation of her federal and state due-process rights.

Besides, she adds, she wasn't complaining about masks - she claims she wore one herself, just about the sort of rats who would snitch on people not wearing masks. And her job as training and communications director had nothing to do with telling people about masks - she was in charge of helping to educate MassHealth workers and outside counselors how to sign people up for MassHealth.

Foley is represented by the Liberty Justice Center, a Chicago law firm that also sues to get the government to send money to private and parochial schools.

Foley's own complaint goes into great details about just what she posted on a Facebook page for Milton residents after she dove into a discussion about reporting unmasked people:

In my opinion, calling the authorities on your neighbors for not wearing a mask is the same as calling the authorities to tell them your neighbor is a Jew. It’s bad enough that I see in the police reports people calling in to report their neighbors are having parties and that a group of kids is gathering. Now there are those encouraging people to call on people not wearing masks?! Don't you get it? Don't you see what people are encouraging?! How dare anyone try to take away my rights! I have the right NOT to wear a mask if I don't want to. I have the right to gather with friends and family if I want to. If that’s a problem for you or anyone else, report me!

The complaint continues that Foley wasn't about to back down:

After several more commentators continued to criticized Foley's stance, she posted another reply stating: “And there are lawsuits challenging the constitutionality of these mandates. I wear a mask when I have to. That's not the issue. The issue is people turning in their neighbors for not wearing them.”

Another Milton Facebook Group member, Kate Middleton, responded: "Can you at least admit that your comparison to Hitler is flawed in many ways, including the penalty? You might at worst be fined $300, and probably will just be told to put a mask on. The kids partying will be sent home or spend a night at the Milton H . . . ."

Foley responded:

No I won't. Do you believe the concentration camps were the first step in Hitler's mad plan? Of course not. He was a master manipulator who turned neighbor against neighbor. Just as those suggesting we do with those not wearing masks.

And not that it should have any bearing but for your information, I am of German Jewish decent. I feel very strongly about how a madman was able to manipulate an entire population into believing Jews were the problem. I feel equally so about people telling me what I can and cannot do or how I should feel. I believe Covid is serious. But I also believe it is being used to manipulate people. In this country, at least for now, I am entitled to my opinion and my right to vocalize that opinion.

Somebody dropped a dime on Foley to her bosses at MassHealth, who, after considering the situation, fired her, in part because she identified herself in her Facebook bio as a MassHealth training and communications director, and so she brought shame upon the agency.

The complaint, which does not note that, at least in Massachusetts, people who filed lawsuits over masks lost, then gets into her legal argument: That she was using her First Amendment rights to post on the Milton forum, that she did it on her own time, using her own computer and that MassHealth has no right to fire somebody for engaging in constitutionally protected speech, especially not without the sort of serious due process such a serious step should take.

She claims she was put on administrative leave on Dec. 21 and then fired on Jan. 27, without even being given a copy of the complaint against her.

Throughout the meeting, Tsai and Bryan refused to provide Foley a copy of the anonymous complaint concerning Foley's Facebook comments. Instead, Tsai took the position that because she listed on her Facebook profile that she worked at MassHealth, that her comments about masks could be taken as the agency's official position. Specifically he stated: "This is less about the post. You have been the Director of Training and Communications. It's about the discussions about masks. Because your position is listed on your Facebook profile, your words speak on behalf of this agency in the midst of the pandemic." He then noted: "those pieces are substantially at odds with what we are trying to accomplish across Health and Human Services in the pandemic response. The investigation triggers a review of things but is less around the specifics of the complaint and more around your capacity. Not engaging on the complaint."

In addition to her job back and monetary damages, Foley's suit also asks a judge to declare that what MassHealth did was wrong and that the supervisors who fired her "violated Foley’s federal and state due process rights."

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Comments

I am of German Jewish decent

I mean, sure, maybe on the other side. But Denise Foley doesn't get that much benefit of the doubt.

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Voting closed 16

I mean, yeah, imma roll my eyes just as much at someone named Ruth Cohen who pulls that "oh I'm of Jewish heritage myself so I can say bigoted bullshit," but let's not police people's stated ethnicity. People can have their other parent's name, use a spouse's name, have a step-parent's name, have a name from a great-great-great-great grandfather, etc. If she identifies as German Jewish, let her. She's still obnoxious.

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Voting closed 44

I'm 100% eastern European Jew but have an English name because my great-grandfather worked in theater and took a stage name that my grandfather legally changed.

Also, Adam, in to not into in the first sentence, that changes the meaning quite a bit.

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i am about 99.95% Ashkenazi Jewish and i have a very Irish last name....because i am married. My children are also Jewish because it goes by the mother

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but as a millennial who was blessed to have access to the internet early, pre-corporate overlords, I can't count the number of times I was told, don't use your name, don't use your location, make up a fake ID, don't tell anybody about yourself, etc, etc, by my boomer parents and teachers.

And then zuckerberg realized he could take over the internet by opening facebook to the non-college public and these same boomers are out here, spouting the most insane, asinine bullshit, all under their real name, location, and legal job titles.

and then they shocked-pikachu face that... the internet is real? that people connect their facebook self to their real self?

bizzare cognitive dissonance.

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Voting closed 60

I'm happy to see employers recognizing that people can't turn off these kinds of bigoted views at the door.

Customers, colleagues, collaterals etc. don't need to encounter someone at Masshealth who digs in this hard with "but muh freedoms." They're right to get rid of someone who compares public health guidelines to Hitler. One of her job requirements is to understand that things like using someone's correct name and pronouns, discussing disabilities respectfully, etc. is a public health issue and is not optional. She's shown that she doesn't understand this and makes Nazi references when she can't get her own way (and it's apparently over an issue that didn't even affect her, but she just is that much of an edgelord).

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Voting closed 41

I‘ll admit not being an expert on employment laws, so I’ll wait for the court to sort out the specifics on what was or wasn’t done properly in regards to her employment status, but you’d think someone with the title “communications director” would be well aware of the consequences of their free speech on social media, as well as in other public venues. Particularly when you’ve identified yourself as a person holding such a position within an organization.

As an aside, we haven’t built any unmasked concentration camps, right? Feel like the “they didn’t start with the camps” analogies fall flat if neither the camps nor the genocide that occurred in them never materialize. Which is probably good for whoever was the national leader at the time she made those statements, otherwise that person would be you know who in that analogy…

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Disagree with

Brown shirts, Nazi, Holocaust, Putsch, etc.
But it's become the norm.

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I've been calling the 1/6ers failed putschists or just putschists and will continue to do so. If you can't see the difference between making spurious Nazi analogies involving surgical masks in a pandemic and people attacking police, trying to blow up the headquarters of national political parties and attempting to overthrow the government, well, no point in wasting my time trying to convince you otherwise, but some people do, in fact see the difference.

And as somebody who is not of German Jewish descent, but who did have relatives (that I never met) murdered in Nazi death camps, I'm at least as entitled to her to decry the trivialization of what happened during the Nazi era by using brain-dead comparisons of public-health issues.

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But in general, and my opinion stands, I think it's a bad idea.

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The Beer Hall Putsch was a failed coup, as was the attack on January 6th. If you were to find a physician performing unethical, inhumane human experiments, a comparison to Mengele may be appropriate. These are discrete comparisons rather than broad generalizations like saying "you guys are doing what the Nazis did."

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Voting closed 32

Trivialization, yes - that's a good description
I've been thinking of it in terms of "hyperbole and appropriation" - have seen a couple of examples lately that have me on edge
- one acquaintance harping on some news story (not about covid/vaccines/masks) by using (not for the first time) classic Jim Crow era photos of separate drinking fountains
- having to suppress the urge to fly across the country and smack the living **** out of one of a younger relative who decided to share/boost somebody's post the other day of two photos, one of a numbered arm of a concentration camp survivor and one of a patient-tagged wrist (someone about vaccines or vaccination passports, I guess). The yute being ignorant, forgetting and/or neglecting, of course, that (a) his great-grandmother came into the country through Ellis Island and was sorted, screened & tagged for health; (b) his grandfather (and other relatives) served in WWII, and (c) him being Army himself and wondering if his own unit had any history in the liberation of the camps.

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Voting closed 7

And I also am not a labor attorney but this must be a common issue (private or public FB posts and their implications to your job).

I'm guessing the court will look at the term "nazi" and how people apply it in every day life. Thinking of Seinfeld's "Soup Nazi" and the comedy around even the word itself there.

But like Eeka says above, this type of job she needs to know better and using a term like this in that context shouldn't be acceptable.

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Voting closed 23

If you're out there calling feminists 'Feminazis' or complaining about Antifa brownshirts, I agree. If someone is referring to right-wing, racist white Nationalists, it's a perfect term to use to describe those people. Context matters. Same as it would stupid to call the militia guys in Michigan 'Sandanistas' or something.

Edit: to clarify, I agree that someone calling feminists 'feminazis' is badly misusing the term.

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Voting closed 18

I'm not sure if calling someone a "feminazi" is ok. I'm also not sure calling someone who you think is a right wing "nationalist" (you can go from Trump to Charlie Baker on that one right?) is ok either.

But yea I agree context does matter and is what makes this kind of hard for a court to rule on.

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Voting closed 23

Not all Nazi comparisons are the same. Sometimes it's appropriate and sometimes it isn't; sometimes it's really important that we do it. A good general rule, though, is if you're going to make such a comparison, you should know what the hell you're talking about. Ms. Foley doesn't seem to actually understand what Nazi Germany was or how it arose, so she should probably avoid the subject.

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Perhaps you prefer autogolpe, although once you actually google it, you might not. Up to you, it's one or the other.

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The amount of people complaining about their own neighbors on 311 is ridiculous. There’s no more sense of neighbors looking out for each other anymore. Sometimes it’s for the stupidest things. A simple conversation with a neighbor has turned to turning them in to the city just to see them fined. I’m not saying she’s right in what she said while having that position with the state but it needed to be said.

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Voting closed 21

She'd be right if complaints about dogs in M Street Park led to jackbooted SWAT teams roaming the streets, busting into houses and beating and dragging away dog owners.

Please, dear sir, point me to examples of 311 complaints leading to such activity. I'd be most interested.

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Voting closed 52

Adam you would’ve been the last person I expected to write something like that. How many complaints of illegally parked cars with out of state plates in residential parking spaces when 95% of rentals are out of state plates. I’ve had that. A neighbor wrote a complaint about my rental in front of my house. I’ve lived in the the same house for 23 years. OR how many complaints of tradh barrels overflowing. If you lived next door to me with 2 barrels, would you rather have me complain to 311 or have me offer you to borrow my trash barrel for the week if I was so bothered with your trash?

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Voting closed 13

Let’s be honest here, it is not some random person walking down your street that’s complaining. It’s your next door neighbor. I live in uphams corner and every single morning I see BTD and code enforcement. I know it’s not random patrol, it’s neighbors just be Nazi’s calling the city for any little thing

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Voting closed 12

And pick up a book or two on the Holocaust.

It sucks you live on a street where neighbors are calling 311 instead of talking to you, but the fact that you're posting here indicates that you have not been hauled off to a concentration camp to await your turn in a gas chamber, followed by your gold teeth being ripped out of your lifeless body and then your body being dumped into a fire pit, your greasy ashes falling as soot on the surrounding area.

That's what offensive about her mask/Nazi comparison and, to be honest, yours as well. You're trivializing the murders of millions of people by actual Nazis.

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There’s no more sense of neighbors looking out for each other anymore.

Yeah I mean GOD what do people expect, their neighbors to follow public health mandates that directly effect whether the pandemic continues in their community? I miss the days when neighbors looked out for each other by all universally saying FUCK U to government regulations designed to ensure health and safety. In my day we dumped raw sewage in our street and if your neighbor complained, he was a ratfink tattler and the rest of the neighbors would see him 'looked out for', you know?

The irony of bitching that neighbors don't look out for each other because they're expecting their community to follow mask mandates is such a disconnect.

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Voting closed 25

Acid test: if you don't know when to use "amount" and when to use "number", you're probably not on the mark in your assessment of when it's appropriate to call someone a Nazi.

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That Supreme Court cheerleader decision from last month might help her case. Ideally people should be free to express opinions outside of school/work without worrying about their school/employer punishing them under vague pretenses of reputation or being disruptive.

The ACLU supported the cheerleader. I wonder if they'll support the fired MassHealth employee.

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Voting closed 26

between a kid saying swear words on social media and a hospital communications director saying words that contradict – albeit indirectly – the messaging she's been hired to convey, whilst invoking specious nazi comparisons to boot?

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No, there is no difference. A kid swearing on social media, and an adult complaining about anti-anti-maskers on social media, are both just random people talking and expressing themselves.

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at any rate, @brianjdamico explains why you are wrong below.

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The SCOTUS decision you are referring to had a very narrowly defined opinion.

NPR has a good summary of the ruling:

In a victory for student speech rights, the Supreme Court on Wednesday ruled that a former cheerleader's online F-bombs about her school is protected speech under the First Amendment.

But in an 8-1 vote, the court also declared that school administrators do have the power to punish student speech that occurs online or off campus if it genuinely disrupts classroom study. But the justices concluded that a few swearwords posted online off school grounds, as in this case, did not rise to the definition of disruptive.

https://www.npr.org/2021/06/23/1001382019/supreme-court-rules-cheerleade...

As for the ACLU, it is entirely within their mission to take up a case like this.

https://www.aclu.org/issues/free-speech/employee-speech-and-whistleblowers

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Voting closed 22

Total apples and oranges here.

A school doesn't have the right to discipline someone for using the f-word which harms absolutely no one. Just using profanity doesn't make reasonable people feel unsafe or make them seriously question whether the person in question will treat them justly. Also the student is not in any position of power or decision-making for anyone. This was about disciplining a student, not firing someone in power.

An employer does have the right to fire or refuse to hire someone who compares a public health mandate to actual genocides. They're in a position of making decisions about the lives of members' of the public and they're representing an agency. It's entirely reasonable for Masshealth to be like, yeah, we support public health policy and we do not support saying shit that's extremely offensive AF to our customers who have been actually marginalized. This wasn't just an employee saying, hey, when I work for the state, I need to tell you to use all the recommended safety equipment, but when I do projects around my house, I might forgo some of them. This is someone being bigoted and lacking a fundamental understanding of how public health works. Someone isn't able to switch that on and off at the door.

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The actions of Trump et al. followed the general outline of NAZIs in terms of propaganda, distortions and manipulations. Although they are the currency of politics Trump pushed the abuses to a degree that is comparable with what Goebbels, etc. practiced. It's worth remembering that Stalin was no less a propagandist. Nor any other totalitarian or authoritarian regime. They all use more or less the same model.

But the idea of "reporting" neighbors who don't wear masks. Is there a point where that is stinky behavior? Obviously depends on context. A neighbor who is engaging in direct safety violations which could threaten another neighbor should be reported. Such as burning fires in the back yard in a neighborhood of wood houses, when there is a drought.

For the issue of employment is Foley employed as an at will hire? That might negate her argument of wrongful termination and lack of due process.
Were her 1st Amendment rights violated? If she was arrested perhaps and charge with violating a law. But fired for engaging in behavior that in any other context could result in being fired might not pass muster as a 1st Amendment firing. If I argued in a public forum that my employer is engaged in wrongful behavior, or by words and actions created a conflict for my employer, a court probably would uphold my termination.

That she is represented by a law firm that pursues ideological cases makes me suspicious that this is more about pressing ideology than about actually being wronged.

Why an ideologically driven law firm instead of an everyday labor law firm? That ironically reverses the moral direction of the claims. Pushing a specific ideology that is associated with ultra right wing, anti-government sympathies is exactly what Hitler et al. did in Germany. They argued that democracy is bad, that only a dictatorship is good for Germans, there is only one way to see the world, compromise is bad and from those ideological foundations pursued their evil.

The same ideological foundations of Trump and Company.

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Voting closed 17