In 2014, the United States Supreme Court declined to review an interesting case involving an employee who was fired after she posted on Facebook that her supervisor “needs to keep his creepy [sic] hands to himself…just an all around d-bag.”
After she made this, and a few other posts on Facebook, Sara Debord’s comments were investigated by her employer, Mercy Health Systems of Kansas, Inc. A few days into the investigation, Debord was fired. She then sued Mercy alleging several claims including retaliation and sexual harassment under Title VII of the Civil Rights Act of 1964. According to the United States Court of Appeals for the Tenth Circuit, however, Mercy did not violate the law when it terminated Debord. The Court found that while Mercy was conducting its investigation into Debord’s statements of being touched by her supervisor, and wage payment issues, Debord lied about whether she made the Facebook posts, and she further interfered with Mercy’s investigation by sending inappropriate messages and texts during the investigation.
Debord’s Facebook Posts:
In 2004, Mercy hired Debord as a nuclear-medicine technician, and Debord’s direct supervisor was Leonard Weaver (Director of Radiology). Debord claimed that shortly after she was hired, Weaver placed his hands up her sleeve or down the back of her shirt at least three days a week. The Court further noted that Debord also alleged that Weaver frequently made offensive sexual comments and advances, and used sexually suggestive language when she wore certain clothing. Debord, however, did not alert Mercy’s management of any of her allegations until July 2009 (four years after the touching allegedly started).
On July 6, 2009, Mercy’s management first learned of Debord’s allegations via Debord’s Facebook posts made during work hours. According to the Court, the relevant posts included:
(At 1:37 pm) Sara DeBord is sooo disappointed…can’t believe what a snake my boss is…I know, I know everyone warned me:(
(At 2:53 pm) Oh, it’s hard to explain….basically, the MRI tech is getting paid for doing MRI even though he’s not registered and myself, nor the CT tech are getting paid for our areas…and he tells me ‘good luck taking it to HR because you’re not supposed to know that’ plus he adds money on peoples checks if he likes them (I’ve been one of them)…and he needs to keep his creepy hands to himself…just an all around d-bag!!
The Court further wrote that Weaver, and many of Debord’s colleagues saw her posts. While Mercy’s HR Director was meeting with Debord regarding a separate complaint, Weaver confronted Debord about the Facebook posts. During this meeting, and later during the investigation of her claims, Debord denied writing the posts. Mercy’s investigation continued for several days, and Mercy interviewed Debord again, interviewed Weaver, and interviewed others whom Debord claimed also were harassed by Weaver.
By July 13, Mercy discovered that Debord was sending messages to other employees in which she accused Weaver of destroying evidence related to her wage payment claims. Mercy also found out that Debord’s messages and comments had disrupted the workday for many hospital employees. Later that day, Debord was terminated for disruption, inappropriate behavior, and dishonesty. The full case can be read here: Debord v. Mercy Health Systems of Kansas, Inc.
What This Case Means:
First, employers and employees can learn from this case. The Court determined that Debord’s Facebook posts did not constitute a proper harassment complaint. This is so because Debord did not comply with Mercy’s harassment complaint policy. So, employers can take some comfort in knowing that Courts (at least this Court) will find that harassment policies should be followed by employees when making complaints, and that employers will likely not be found to have “implied” knowledge of a complaint simply because an employee posts something on his/her personal Facebook page. That is, of course, if the employer does not routinely review employees’ Facebook posts. Similarly, employees should be sure to review, understand and comply with their employer’s policies when bringing complaints of sexual harassment (or any other complaints).
Second, Mercy did the right thing once it say Debord’s Facebook posts; it started an investigation. Even though Debord’s posts were not proper “complaints,” Mercy went ahead and investigated her complaints against Weaver. Mercy interviewed Debord, Weaver, and several other “witnesses.” This case serves as a great reminder that once an employer becomes aware of any complaints of harassment, the employer should go ahead and conduct a thorough investigation. This is particularly true since employee use of social media is only likely to increase.
Finally, Mercy was able to demonstrate that it terminated Debord’s employment for legitimate non-discriminatory (and non-retaliatory reasons); namely for Debord’s dishonesty and interference with Mercy’s investigation. The Court determined that Debord failed to meet her burden of demonstrating that Mercy’s explanation was actually a pretext for retaliation. Thus, employees should learn from Debord’s mistake: let the company’s investigation proceed and do not interfere with it by sending texts and email messages (or otherwise interfere) to other co-workers and witnesses. By doing such, Debord not only hampered the investigation, but also lost her job legally.
Information provided on this website is not legal advice, nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation. No attorney-client relationship is created via this website.