Mortuary Professor Battling School After Being Fired for Facebook Posting

Funeral Industry News Social Media December 5, 2012
Ryan Thogmartin

Ryan Thogmartin is the Founder and CEO of DISRUPT Media, a Funeral Home Marketing Company specializing in social media. Ryan is also a deathcare entrepreneur who has launched;, and Funeral Nation TV.

Mortuary Professor Battling School After Being Fired for Facebook Posting

This is a story that has been ongoing since November of 2011. New development in the case today has brought it back to light.

Back story: Originally post on

Arkansas State University fired the director of the funeral science program at its Mountain Home campus over a Facebook posting that he claims was a joke.

The former employee, Toby J. Sutton, who was earning $41,000 for a school year, wrote on the social network site in June that he “hopes this teaching gig works out. Guess I shouldn’t have cheated through mortuary school and faked people out. Crap!

He started in August and was fired on Nov. 3.

He recently sued ASU, claiming the real reason he was fired was because he questioned the whereabouts of some student fees that should have gone for the funeral science program, according to a lawsuit he filed in U.S. District Court in Jonesboro.

“This information was necessary to prove compliance with standards,” the lawsuit said. ASU “could not supply this information.”

Sutton also said that he wasn’t given a hearing prior to his firing and didn’t have an opportunity to present his side.

“He really was blindsided,” said his attorney, Donn Mixon of Jonesboro.

Sutton is seeking his former job back and an unspecified amount of damages.

ASU said it doesn’t comment on pending litigation.

Updated Court hearing posted today on

LITTLE ROCK — An Arkansas State University teacher who was fired over a joke he posted on Facebook can sue the officials who fired him in their official capacity only, not as individuals, a federal appeals court said Monday.

The 8th Circuit U.S. Court of Appeals in St. Louis reversed a federal judge’s ruling that Toby Sutton’s lawsuit against Patricia Bailey, ASU’s vice chancellor of academic and student affairs, and Kellie Thomas, director of instruction for the university, could proceed against them both in their official capacity and in their individual capacity.

Bailey and Thomas are entitled to qualified immunity from Sutton’s individual-capacity claims, a three-judge panel of the 8th Circuit said.

ASU hired Sutton in May 2010 to serve as funeral science director in the 2010-11 school year. On Nov. 2, 2010, Sutton received an email asking him to attend a meeting the next day but not disclosing the subject of the meeting.

At the meeting, Bailey confronted Sutton with a statement he had made on Facebook in June 2010. The statement read, “Toby Sutton hopes this teaching gig works out. Guess I shouldn’t have cheated through mortuary school and faked people out. Crap!”

Bailey then told Sutton he was fired. Sutton asked if it mattered that the statement was a joke and that he made it before he started teaching, and Bailey said it did not. She then gave him a form stating that he was fired for posting material on Facebook indicating that he had cheated his way through mortuary school as well as “multiple other class-related issues.”

Bailey asked Sutton if he wanted to make a statement, and he declined. He then signed the form.

In his lawsuit, Sutton alleges that Bailey and Thomas — who also attended the Nov. 3, 2010, meeting — violated his right to due process by failing to provide an adequate pre-termination hearing.

The U.S. Supreme Court has ruled that a pre-termination hearing does not have to be elaborate if a post-termination hearing is also available. Sutton claims in his lawsuit that ASU’s post-termination grievance procedure — which he declined to use — is constitutionally inadequate, and therefore he should have had a more elaborate pre-termination hearing.

A federal judge denied the defendants’ motions for immunity from individual-capacity claims, ruling that supervising faculty members at a state university should be familiar with due-process requirements.

In its opinion Monday reversing that ruling, the 8th Circuit said reasonable school officials would not necessarily know whether ASU’s post-termination grievance procedure was constitutionally inadequate.

“Appellants were aware of the university’s grievance procedures, but they were not responsible for their adequacy,” Judge James Loken wrote.


Cases like this again reinforce the need for EVERY business to have a social media policy and guidelines document for employees to follow. If a proper social media policy had been in place then this case probably wouldn’t be a case as Mr. Sutton would have know that his post would be grounds for termination.

Regardless, Mr. Sutton should have known this wasn’t a smart post to make.