The Tenth Circuit Court of Appeals published its opinion in Debord v. Mercy Health System of Kansas on Tuesday, November 26, 2013.
Sara Debord filed suit against her employer, Mercy Health Services of Kansas, for sexual harassment and retaliation in violation of Title VII. Debord claimed Mercy knew or should have known that her supervisor created a hostile workplace through unwanted touching and offensive sexual remarks. She also claimed that Mercy did not do enough to prevent sexual harassment in the workplace, and that, when she finally reported the harassment five years after it allegedly began, Mercy retaliated by firing her. The district court granted summary judgment for Mercy and ordered all parties to bear their own costs.
Debord argued that Mercy was directly liable for the harassment because it had actual notice of the harassment based on a complaint about the supervisor touching her made by another employee in 2001. The Tenth Circuit held that “notice of one instance of potential harassment of someone else cannot, without more, constitute actual notice of Debord’s sexual harassment three years later.” Debord also failed to show actual notice because she did not provide any evidence showing the extent, seriousness, or similarity of the prior misconduct.
Debord also argued Mercy had constructive notice of the harassment before 2009 when she told human resources about the unwanted touching. The court found evidence provided by Debord on this issue was not so “egregious, numerous, and concentrated” as to create a jury question on constructive notice.
The court applied the elements of the Faragher defense in determining the hospital could not be held vicariously liable. Debord failed to report the harassment even though Mercy provided sexual harassment training, annual reminders, an open-door policy with the management team, and an anonymous hotline to report harassment.
The court also found Debord failed to show pretext on her retaliation claim and affirmed summary judgment for Mercy. The court reversed the denial of costs to Mercy and remanded on that issue.