Why it matters: The Tenth U.S. Circuit Court of Appeals delivered a holiday gift to employers with a recent decision, affirming summary judgment for a hospital after it terminated an employee who lied about posting comments on Facebook about her supervisor. Although the former employee alleged her supervisor created a hostile work environment and that the hospital retaliated against her when she reported the unwanted touching and offensive sexual remarks, the panel found that her five-year delay in complaining was unreasonable. Further, the employer’s proffered reasons for termination – in addition to lying, the plaintiff was disruptive during the investigation of her claims – were a completely valid basis for termination, the panel concluded. The decision proves that where an employer has sexual harassment policies in place, takes prompt action on an employee’s complaint, and correctly documents valid reasons for firing, not every termination results in a successful employee lawsuit.

Detailed Discussion

A nuclear-machine technician at Mercy Hospital, Sara Debord reported directly to Leonard Weaver. During her five-year tenure at the hospital, Debord claimed in a lawsuit that Weaver put his hands up her sleeve or down the back of her shirt “at least three days a week.” Weaver said the touching was an attempt to show how “unusually cold” his hands were. Debord did not complain or report the alleged harassment, which she said also included offensive sexual comments and advances.

The behavior became an issue in 2009, when Debord was angry at Weaver and vented on Facebook. In multiple posts – which were seen by co-workers including Weaver – Debord call her boss “a snake,” accused him of overpaying her, and wrote that “he needs to keep his creapy [sic] hands to himself.”

Weaver referenced the posts in a meeting with the hospital’s HR director. Debord denied writing the posts three times – despite the fact that they appeared on her Facebook page – before finally admitting she authored the posts. The HR director also questioned Debord about the “creepy hands” comment and launched an investigation into the purported sexual harassment as well as the overpayment allegations.

Debord declined to file a formal complaint about Weaver’s alleged harassment and in defiance of the hospital’s policy to keep internal investigations confidential, texted co-workers about the situation. Based on “disruption, inappropriate behavior, and dishonesty,” Debord was terminated.

She sued Mercy Hospital on claims of sex discrimination and retaliation. Pointing to its legitimate, work-based reason for termination, the hospital moved for summary judgment.

Not only did the employer not know of the alleged harassment, it took immediate steps to investigate when it learned of the behavior, the 10th Circuit said, affirming summary judgment for the hospital.

Mercy did not have actual knowledge of Weaver’s touching, the court determined. A single e-mail from 2001 referencing an employee who complained about his “cold hands” did not support Debord’s claim, as “we do not know where or how often Weaver touched the employee, nor whether the touching was considered sexual harassment,” the panel wrote.

Constructive knowledge could also not be assigned to the employer despite statements from three other co-workers that Weaver also touched them. The statements did not demonstrate the touching was “so egregious, numerous, and concentrated” to create a jury question of constructive notice, the court said, particularly as the co-workers did not testify that the touching was sexual harassment and none of the employees reported the behavior.

As a fallback position, Debord contended Mercy Hospital was vicariously liable for Weaver’s actions because the employer failed to prevent or correct the hostile work environment. Again, the court disagreed.

“Mercy has shown that it ‘adopted valid sexual harassment policies [and] distributed those policies to employees via employee handbooks,’” the court said. Simply alleging harassment did not establish an inadequate policy. Importantly, the hospital acted reasonably promptly when it did learn of Debord’s allegations, immediately launching an investigation.

The fact that Weaver was not disciplined did not raise an issue of material fact as “corrective action does not always require discipline,” the panel noted, and the investigation proceeded even though Debord denied making a sexual harassment claim and declined to file a formal complaint.

Finally, the three-judge panel found that Debord’s five-year delay in reporting the harassment was unreasonable. “Debord does not dispute that Mercy offered an anonymous reporting system, and Debord has not offered a reasonable explanation for failing to use even that,” the court wrote. “Nor does she show any evidence that action would not be taken; to the contrary, her reports to HR prompted an immediate response.”

As for Debord’s retaliation claim, Mercy’s stated reasons for termination were undisputed. “She admits posting inflammatory material about her supervisor on the Internet, sending text messages to co-workers bad-mouthing her supervisor (unrelated to the alleged sexual harassment), discussing the overpay and harassment investigations with others, knowingly pocketing overpayment in 2007, and thrice lying about posting information on Facebook while at work,” the 10th Circuit wrote. “No reasonable jury could find these reasons ‘unconvincing.’ Thus, no reasonable jury could find pretext.”

The court affirmed summary judgment for the employer and remanded the case for a determination of the appropriate costs to be awarded to Mercy.

To read the opinion in Debord v. Mercy Health System of Kansas, click here.