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Dec 2, 2013

By Eric B. Meyer

Generally speaking, those who wait five years to complain about perceived sexual harassment in the workplace don’t win lawsuits if they are eventually fired.

But what happens when the complaint takes the form of a status update on Facebook? Does that offer the employee extra protection?

After five years of alleged harassment, an employee complains  … on Facebook.

No complaints for five years

In Debord v. Mercy Health System of Kansas, a tech claimed that her supervisor made constant sexual advances towards her. However, she never complained for five years. Ultimately, Ms. Debord’s employer learned about the supervisor’s alleged behavior through a series of posts on Ms. Debord’s public Facebook page:

(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!!”

Many of Ms. Debord’s co-workers — including the alleged harasser — read the posts. Eventually, HR interviewed Ms. Debord about the posts. Initially, she claimed to have been hacked.

Employee eventually found out and gets fired

But, eventually, Ms. Debord admitted making the posts. Upon investigation, the employer learned that the “creapy hands” comment was not only misspelled, but overblown. And the $600 allegation had been fabricated. It also discovered that Ms. Debord was sending messages to co-workers about confidential employer investigations. So, it fired Ms. Debord.

The employee alleges retaliation, but the court upholds the firing

When later sued for retaliation, the employer claimed that it had lawfully fired Ms. Debord. The court agreed:

Debord’s sexual harassment complaint — i.e., her Facebook post — falls short. Her Facebook post was not in accordance with Mercy’s otherwise flexible reporting system for sexual harassment complaints, and the post, by itself, did not provide any notice to Mercy. Only when Weaver himself brought the post to Ammons’s attention did Mercy learn that, among many other complaints, Debord disliked Weaver’s “creepy hands.” And even then, Debord thrice denied authoring the post.

No jury could conclude that Mercy’s management acted unreasonably in response to Debord’s Facebook post….Besides, Ammons’s decision to terminate Debord did not turn on whether she aired her grievances on Facebook; instead, the decision turned on her dishonesty about authoring the posts while at work and her disruptive behavior during the investigation. Debord cannot dispute that dishonesty is a valid ground for terminating an employee. Nor can she genuinely dispute that she behaved inappropriately and disruptively by, for example, sending messages to co-workers about confidential investigations in contravention of Mercy’s policies.

What employers can learn from this case

The employer in this case did the right thing by taking the employee Facebook complaints about the workplace seriously. Once it learned about the complaints, it responded to them, just as it would any other workplace complaints — with a thorough investigation.

Ignoring an employee complaint through non-traditional channels may not only cause the complaining employee (and others) to be subjected to further unwelcome treatment, but also crush an employer if a lawsuit eventually gets filed.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.