A topic we’ve given a lot of attention in recent months is the use of social media in litigation—usually to a litigant’s disadvantage. Keeping with that theme, the Seventh Circuit recently held that an employer properly terminated an employee for lying about certain work-related Facebook posts. Debord v. Mercy Health Sys. Of Kansas, Inc., 2013 WL 6170983, at *10-11 (10th Cir. Nov. 26, 2013).
At issue in Debord were the following work-related posts that the employee, Ms. Debord, published to her 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!!
Id. at *1-2. When the Ms. Debord’s supervisor confronted her about the posts, she denied having published them three separate times. Id. at *2. She claimed that “anyone could access her Facebook page from her cellular phone, and because she left her phone unattended at times, someone else could have created the posts.” Id. at *2.
When the employer later terminated Ms. Debord, she sued for sexual harassment and retaliation under Title VII. She claimed that the Facebook posts actually supported her claims because they showed she complained about her supervisor’s alleged sexual harassment. The employer countered that Ms. Debord’s lies about those Facebook posts justified her termination. The trial court and Tenth Circuit both sided with the employer. The Tenth Circuit held:
Her Facebook post was not in accordance with [the employer’s] otherwise flexible reporting system for sexual harassment complaints, and the post, by itself, did not provide any notice to [the employer]. Only when [the employee’s supervisor] himself brought the post to [the employer’s] attention did [it] learn that, among many other complaints, Debord disliked [her supervisor’s] “creepy hands.” And even then, Debord thrice denied authoring the post. No jury could conclude that [the employer’s] management acted unreasonably in response to Debord’s Facebook post.
Id. at *11.
Lessons from Debord: (1) don’t post about work on Facebook; (2) if you must post about work on Facebook, use your brain; and (3) if you don’t use your brain when you post about work on Facebook, at least don’t lie about it.
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