Contrary to the normal argument that employees have a right to privacy in their social media posts, the United States Court of Appeals for the Tenth Circuit recently dealt with the novel issue: can a Facebook post serve as a public notice to an employer of an employee’s sexual harassment complaint?
In Debord v. Mercy Health System of Kansas, Inc., the plaintiff argued, among other things, that she was terminated in retaliation for reporting sexual harassment by her direct supervisor. She alleged that her Facebook posts constituted a sexual harassment complaint.
By way of background, the plaintiff, a nuclear medicine technician at the defendant’s hospital, was terminated after she wrote several posts on Facebook during work hours. One of the relevant posts said,
[My boss] adds money on peoples [sic] checks if he likes them (I’ve been one of them) … and he needs to keep his creapy [sic] hands to himself …
Several of the plaintiff’s colleagues saw these posts, including her direct supervisor. Her direct supervisor showed the posts to the Director of Human Resources, who immediately conducted an investigation into the employee overpayment and inappropriate touching allegations. The plaintiff denied writing the Facebook post and declined to make a complaint of harassment. As a result, the HR Director could not substantiate the inappropriate touching allegations.
The HR Director also learned that the employee overpayment allegations were false, and the plaintiff later admitted to writing the Facebook posts. Following her admission, the hospital terminated the plaintiff for disrupting the workplace, inappropriate behavior, and dishonesty. The plaintiff filed a lawsuit in federal court, claiming that the termination violated federal labor law.
The district court granted summary judgment in favor of the hospital on all claims. The plaintiff appealed. She argued to the Tenth Circuit that she engaged in activity protected by Title VII because her Facebook post constituted a report of sexual harassment; and the hospital terminated her for reporting the sexual harassment on Facebook.
In November 2013, the Tenth Circuit rejected these claims and ruled that the hospital could not be directly liable for sexual harassment because the plaintiff failed to show that the hospital had actual or constructive notice of the alleged harassment.
The Tenth Circuit reasoned that the plaintiff’s Facebook post did not comply with the hospital’s procedures for reporting harassment and the post by itself did not provide any notice to the hospital. Moreover, the plaintiff denied authoring the posts several times. Thus, no jury could conclude that hospital management acted unreasonably in response to the plaintiff’s Facebook post.
Although the plaintiff’s Facebook post did not constitute a sexual harassment complaint in this case, companies should take care to treat all complaints of discrimination and/or harassment seriously—regardless of the source of the complaints. In this case, the employer avoided liability because it conducted a prompt investigation after learning of the plaintiff’s Facebook complaints, it documented the investigation, and only terminated the plaintiff after it learned that many of her allegations were fabricated.
Heather L. Sherrod (heather.sherrod@nortonrosefulbright.com / +1 713 651 5163) a lawyer in Norton Rose Fulbright’s Houston Employment and labor practice.
