Employee Facebook Post Is Not a “Complaint” about Harassment

In a recent case from the 10th Circuit Court of Appeals, an employee’s comments on Facebook played a key role in the employee’s termination and the employer’s defense of the employee’s retaliation claim.  In Debord v. Mercy Health System of Kansas, the employee made three public comments on Facebook during a single workday.  The employee posted about: being paid $600 for hours she did not work; her boss being a “snake;” and her boss needing to “keep his creepy hands to himself.”  When HR became aware of the comments, it undertook an investigation.  During the investigation, the employee declined to file a formal sexual harassment complaint.  Nevertheless, HR interviewed the employee’s boss and other employees and determined that the boss had not violated the employer’s harassment policy.

The investigation also initially revealed that the employee’s complaints about pay were false.  During the investigation, the employer also discovered that the employee was sending text messages to other employees in which she was discussing the investigation and in which she accused her boss of destroying evidence (although HR previously told the employee that it had collected all evidence related to the overpayment issue).  Ultimately, the employee was fired for dishonesty, disrupting the workplace, and inappropriate behavior.  The employee sued claiming she was sexually harassed and fired in retaliation for complaining about the harassment. The employer obtained summary judgment from the District Court and the employee appealed.

One of the arguments that the employee made on appeal was that her Facebook post constituted a complaint about sexual harassment, and that she was fired in retaliation for such post.  The Court of Appeals disagreed, finding that the Facebook post “was not in accordance with [the employer’s] otherwise flexible reporting system for sexual harassment complaints” and that the post did not provide notice to the employer because the employer only became aware of the Facebook post when the employee’s boss brought it to HR’s attention.  Further, the employee declined to file a formal complaint based on the Facebook post (suggesting that the employee did not have a legitimate complaint about harassment).   On this ground, the Court affirmed summary judgment for the employer.  http://www.ca10.uscourts.gov/opinions/12/12-3072.pdf

Based on the 10th Circuit’s decision, an employer who becomes aware of social media content that suggests an employee is being harassed should take action to investigate, just as it would if it learned about harassment “in person” from an employee or other source.



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