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Fired for comparing a mask reporting policy to Nazism, Medicaid exec sues

3 minute read

Masks are displayed in a restaurant window amid the coronavirus disease (COVID-19) outbreak in Somerville, Massachusetts, U.S., June 19, 2020. REUTERS/Brian Snyder

(Reuters) - A former official at the Massachusetts agency that administers Medicaid in the state has filed a lawsuit claiming she was unlawfully fired for comparing mask mandates during the COVID-19 pandemic to Nazi policies in a private Facebook post.

Denise Foley, who was director of internal and external training and communication at MassHealth, filed a complaint in state court on Thursday claiming her January termination violated her free-speech and due-process rights.

Foley in December posted in a private Facebook group that turning in a neighbor for not wearing a face mask "sounds like what the Nazis did in Germany," among other comments, according to the complaint.

She says that while the post had nothing to do with her job, MassHealth's then-assistant secretary, Daniel Tsai, told her when she was fired that her comments reflected poorly on the agency because her Facebook profile identified her as a MassHealth employee.

"Public employees do not surrender their constitutional rights when signing up for public service," Foley's lawyers, George King and Jim Ambrose, wrote in the complaint.

MassHealth did not immediately respond to a request for comment.

The agency hired Foley in late 2019, and her responsibilities included communicating policy and procedural updates to MassHealth employees.

Foley was a member of a private Facebook group for residents of Milton, Massachusetts, which had about 12,000 members, according to Thursday's complaint. In December 2020, a member of the group posted that he had received a mailing from a local organization encouraging residents to report neighbors who were not wearing face masks in public.

Foley in multiple comments compared the mailing to Nazis urging Germans to turn in Jewish neighbors. She wrote that "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," according to the lawsuit.

An anonymous complaint was made to MassHealth, and Foley was fired in late January. According to Foley, Tsai at the time told her that because her job description was listed in her Facebook profile, she was essentially speaking on behalf of the agency.

Tsai said that "in the midst of the pandemic, when it comes to masks, we have to say we don’t have confidence in your ability to be in that role," according to the complaint.

Foley accused Tsai, MassHealth's current acting assistant secretary, and other officials of violating her free-speech and due-process rights under the U.S. and Massachusetts constitutions. She also accused MassHealth of wrongful termination in violation of state law.

The case is Foley v. MassHealth, Massachusetts Superior Court, Norfolk County, No. 2182-cv-00678.

For Foley: George King; Jim Ambrose

For MassHealth: Not available

Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.

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