A recent opinion out of the 10th Circuit Court of Appeals demonstrates the important role social media plays in labor and employment lawsuits. In Debord v. Mercy Health System of Kansas, Inc., a Kansas hospital was found not to have engaged in unlawful retaliation when it fired an employee who had complained of sexual harassment, in part because she repeatedly, falsely denied having authored Facebook posts that accused her supervisor of misconduct. The plaintiff, Sara Debord, alleged that her former employer, Mercy Health, knew or should have known that her supervisor created a hostile workplace through unwanted touching and offensive sexual remarks. She also claimed that the hospital did not do enough to prevent sexual harassment in the workplace, and that when she finally reported the harassment, Mercy Health retaliated by firing her. Mercy Health first became aware of Debord's allegations when she made a series of public posts on Facebook in July 2009. The relevant posts said:
(At 9:00 am) Sara DeBord loves it when my boss adds an extra $600.00 on my paycheck for hours I didn't even work ... awesome!!
(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 creapy hands to himself ... just an all around d-bag!!
The hospital immediately began an investigation into both the allegations of worker overpay and the possibility of sexual harassment raised by the posts. Debord denied having authored the posts, saying three times that anyone could have posted them from her cellphone before finally admitting she had, in fact, written them. Debord was suspended for one day without pay for lying about the Facebook posts, and a week later, after determining that the overpay claim was false, and learning that Debord had been sending disruptive text messages to coworkers during the investigation, the hospital terminated Debord.
The court found that Mercy Health's reasons for terminating Debord, namely her dishonesty about the Facebook posts posted while at work and disruptive behavior during the investigation, were not pretextual. Debord "[could] not dispute that dishonesty is a valid ground for terminating an employee."
This case demonstrates the increasing role social media plays in the workplace and the variety of ways it can affect traditional employment discrimination or retaliation cases. Employers should, however, consult with outside counsel to determine whether and how social media may be used in defense of such cases, since regulating or monitoring employees' social media communications may run afoul of state privacy laws.