Facebook Posts Complaining About Supervisor Conduct do Not Support Retaliation Claim – DeBord v. Mercy Health System

[Post by Venkat Balasubramani]

DeBord v. Mercy Health System of Kansas, Inc., 10-4055-SAC (D. Kan.; Mar. 20, 2012)

DeBord worked in Mercy Health Systems’ radiology department for approximately five years. She had a supervisor (Weaver) who the court describes as having “unusually cold hands.” Apparently the supervisor was in the habit of asking employees to “feel his hands.” He also “touch[ed their] upper arms or the back of their necks.” Not surprisingly, most employees did not react positively to Weaver’s conduct.

One day, Weaver made comments to DeBord about her productivity which upset her. Apparently in an effort to comfort DeBord, Weaver attempted to put his arm around her. DeBord declined the attempted “hug” (as the court describes it). Later that day, she posted comments on Facebook mentioning Weaver’s touchy-feelyness. She also mentioned that she liked it when her boss added extra money to her paycheck for hours which she did not work:

1. Sara DeBord loves it when my boss adds an extra $600.00 on my paycheck for hours I didn’t even work…awesome!!
2. SB is sooo disappointed…can’t believe what a snake my boss is…I know, I know everyone warned me.
3. he adds money on peoples 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!!

The posts caused a stir, and Weaver brought them up with Mercy’s director of HR, who asked DeBord whether she authored the posts. She initially denied that she had, but she later admitted it. The HR director suspended her without pay as a result of this. Presumably in an effort to investigate any allegations of harassment, the HR director also asked DeBord about her “creapy hands” comment. DeBord replied that “Weaver had made comments about her body and would run his hands up inside the arm of her scrubs and down the inside the back neck of the scrubs.” When asked whether DeBord considered this to be harassment, she shrugged it off, saying that she thought her supervisor was “just a pervert.”

The HR director separately investigated the issue of extra money in DeBord’s paycheck. Although DeBord was instructed to keep the matter confidential, she apparently texted a co-worker about the issue while the investigation was ongoing.

Shortly after the investigation, Mercy terminated DeBord, giving the following reasons: (1) she had been dishonest in denying the Facebook posts; (2) she made unfounded accusations against her supervisor about the extra money in her paycheck; (3) she failed to maintain confidentiality regarding the paycheck investigation; and (4) her discussion of the paycheck investigation with her co-workers was disruptive. DeBord sued, asserting claims for retaliation, harassment, and battery. Weaver counterclaimed for defamation.

Retaliation: The court assumes that DeBord made out a prima facie case of retaliation, but nevertheless dismisses DeBord’s claim, finding that the employer offered a legitimate, non-discriminatory reason for her discharge: “her inappropriate behavior and dishonesty [relating to the Facebook post].” Because the employer articulated a legitimate reason for her discharge, DeBord was required to come up with evidence showing that the justifications were pretextual. The court finds her evidence lacking. At the time of her termination, the HR director believed that DeBord had been overpaid, although this turned out to not be true (she had been overpaid $475 due to a clock-in error). More importantly, the court agrees with the employer that DeBord shouldn’t have texted a co-worker about the investigation after being instructed not to do so and she shouldn’t have lied about making the Facebook posts.

Harassment: The court dismisses the harassment claim, finding that the employer had reasonable measures in place and acted promptly to correct any harassment once it was brought to its attention.

Battery: DeBord’s assault claim based on the “attempted hug” fails. The court finds that the attempted hug does not amount to either an assault or a battery because there was no intent to cause bodily harm, and there was no offensive touching.

Defamation (counterclaim): Weaver’s defamation claim against DeBord was premised on three statements: (1) the Facebook post about extra money in her paycheck; (2) a text message about the overpayment investigation; and (3) two oral statements to co-workers relating to the investigation. The key question on the defamation claim is whether the statements damaged Weaver’s reputation and the court finds that Weaver fails to put forth adequate evidence of damage to his reputation. Ironically, one of the witnesses testified that she had an opinion of Weaver as “creepy” (the testimony quoted by the court is equivocal but that’s a fair reading of it) anyway, but this was based on the witness’s own experience with Weaver. Another witness testified that she avoided Weaver because Weaver’s statements made her “feel uncomfortable.” This witness scoffed at the idea that her opinion of Weaver’s character would be altered by a single post:

No. I find it very funny that – that his character is in question based on a post. I would be more concerned that his character would be in question due to the way he acted and the things he said in the department. That is – I’m laughing. I mean, that is almost comical to me.

The HR manager also testified that although he had some problems with Weaver, these perceived problems were because Weaver had “difficulty leading the department.” The court also addresses the testimony of a few other witnesses but finds that this testimony is insufficient to raise an issue of fact as to damage to Weaver’s character from DeBord’s statements.

__

The first thing that jumps out at you about this dispute is the totally nonchalant way in which the court treats Weaver’s conduct. Weaver has cold hands so he has a habit of making employees feel how cold his hands are. This touchy-feeliness was corroborated by several employees in deposition testimony. The court sloughs this off as typical workplace conduct. Is the court caught in a time warp? Is this an episode of Mad Men? Interestingly, in resolving Weaver’s defamation claim, the court says that Weaver’s reputation is not damaged, recounting evidence that other employees did not view Weaver’s conduct as always appropriate. While the court accepts evidence that other employees had a less-than-stellar opinion of Weaver (due to Weaver’s conduct) for purposes of the defamation claim, this evidence gets no traction at all in the court’s evaluation of whether Weaver engaged in conduct that’s not appropriate in the workplace. The court also signs off on the employer’s less than thorough investigation of DeBord’s complaints, which consisted of interviewing DeBord, Weaver, and one other employee. The employer did not appear to have spoken to the several other employees who described Weaver’s conduct as inappropriate.

Then there’s the content of DeBord’s Facebook posts. One complained about allegedly inappropriate conduct occurring in the workplace and the other implies that DeBord’s boss favored people he likes by giving them extra money on paychecks. You would think an employee could not be fired for making these types of posts, but the court finds no problem with this. Hello, NLRB! I understand that NLRB’s policy on social media terminations only governs social media posts which raise certain types of issues relating to employment practices, but given the broad interpretation which the NLRB has given these guidelines, I was surprised to see a court say that it was appropriate for the employer to fire DeBord based on these posts. (I continue to think the NLRB policy statements appear overly aggressive in scope, and maybe courts will be inclined to agree. In any event, there’s certainly some tension here.)

At the end of the day, the harassment issue came to the surface due to DeBord’s Facebook posts, but this is exactly what she was terminated for. The employer’s question as to whether DeBord authored the Facebook posts was curious since I thought this would have been obvious from the face of the posts. DeBord’s denial that she made the posts—after the HR director showed her the posts on his laptop—was also interesting, but entirely understandable as a reaction in the heat of the moment.

It’s not surprising to see Weaver’s defamation claim fail. The guy who several employees describe as overly touchy should think twice about bringing a defamation claim based on statements about his workplace conduct, but that’s neither here nor there.

In an age where employees and social media are viewed as toxic mix from a liability standpoint, it’s nice to see a judge who isn’t overly agitated by a social media-based employment decision. On the other hand, the facts of this case probably warranted a closer look, and I’m surprised the employer received a free pass. [Employment lawyers: please enlighten me if I’m missing something.]

[Eric's reminders from 4th grade: 1) Keep your hands to yourself. 2) It's always the cover-up, not the crime.]

Previous posts:

Employee Wins Harassment Claim Based in Part on Co-Workers’ Offsite Blog Posts

Company Not Responsible for Harassive Comments by Coworker on Personal Facebook Page — Amira Jabbar v. Travel Services

Do Employers Really Tread a Minefield When Firing Employees for Facebook Gaffes?