Can a Facebook post count as a sexual harassment complaint to an employer?

The Tenth Circuit recently said no inDebord v. Mercy Health Sys. Of Kan., Inc., 2013 U.S. App. LEXIS 23733 (10th. Cir. Nov. 26, 2013). The case involved Sara Debord, a nuclear-medicine technician, who claimed her employer, Mercy Hospital in Independence, Kansas, retaliated against her for making a complaint of sexual harassment.  The “complaint” in question was a Facebook post Debord made stating:

“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 [her supervisor] tells me ‘good luck taking it to HR because you’re not supposed to know that’ plus [her supervisor] 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…just an all around d-bag!!” (Emphasis added.)

The post was viewed by Debord’s co-workers, who reported it to HR.  HR met with Debord, and she repeatedly denied making the posts.  When she eventually admitted she made the post, HR asked her about the “creepy hands” comment.  She said that she did not think that her supervisor sexually harassed her, but instead he was just “a pervert.”  Debord was eventually terminated for failing to cooperate with HR’s investigation, lying about the posts, and disrupting the workplace by sending false messages about the investigation to other employees.

Debord then sued Mercy Hospital, for, among other things, retaliating against her for making a claim of sexual harassment.  She claimed that the Facebook post was her way of reporting sexual harassment, and Mercy’s decision to terminate her for the post was unlawful. The Tenth Circuit rejected her argument, finding that Debord’s Facebook post “falls short.”  The court explained that Mercy had an “otherwise flexible reporting system,” and that her post, by itself, did not provide any notice to Mercy. The court noted that Debord did not attempt to avail herself of Mercy’s reporting system and, when confronted, denied making the posts.  Based on her conduct, the court refused to believe her argument that she was attempting to report sexual harassment to Mercy in a meaningful way and denied her retaliation claim.

Much of the court’s decision rested on the employee’s conduct in denying that she made the posts and failing to follow the employer’s reporting policy.  Under different circumstances, might there be situations in which a Facebook post could constitute a report of sexual harassment to an employer? What if the employer did not have a good reporting system in place?

Kristen Barlow Rand