Employment Law Daily Admission of employee’s Facebook posts in sexual harassment trial was not prejudicial error
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Thursday, March 29, 2018

Admission of employee’s Facebook posts in sexual harassment trial was not prejudicial error

By Lorene D. Park, J.D.

A jury heard conflicting evidence regarding an employee’s claim of unwanted severe and pervasive sexual harassment, and it duly made credibility assessments, concluded a federal district court in Pennsylvania, rejecting the employee’s argument that the verdict was against the weight of the evidence and was a miscarriage of justice. She argued that certain of her Facebook posts should have been excluded as improper character evidence suggesting she wasn’t the type of person offended by the workplace conduct, but the court noted that her attorney had not objected to the evidence at trial and, more importantly, there was enough in the record for the jury to have reached the same conclusions with or without the Facebook evidence (Bogaski v. County of Allegheny, Pennsylvania, March 26, 2018, Lenihan, L.).

When she was hired as the sole female cleaning and maintenance employee in the county public works department, the employee was warned of likely sexually explicit speech. She was given no guidance for reporting sexual harassment but acknowledged the receipt of an employee handbook that prohibited it and identified to whom she could report it, including her supervisor.

Allegations of sexual harassment. According to the employee, she suffered ongoing sexually inappropriate and offensive comments by male coworkers, particularly one who in March 2013 slapped her buttocks in front of other coworkers and tradesmen. She claimed that her objections triggered a campaign of harassment, bullying, and retaliation, including vandalism of her belongings, name-calling, and rumors. She alleged that supervisory staff observed or were aware of the harassment, but took no remedial actions. And though she complained to HR, those conversations were leaked and the HR employee allegedly blamed the harassment on the employee’s physical appearance. After the employee filed an EEOC charge, the harassment allegedly intensified.

Jury verdict for employer. The employee filed suit alleging a hostile work environment and constructive discharge under Title VII, among other claims. She went to trial on all but her disparate impact claim, against which the court granted summary judgment. The jury returned a verdict in favor of the employer and the employee filed a motion for new trial under Rule 59.

Weight of the evidence. According to the employee, the verdict was against the weight of the evidence and was a miscarriage of justice. The court disagreed. Notwithstanding her assertion that her allegations concerning harassment and retaliation were “proven by credible and unrebutted testimony,” the court found that the jury had heard “conflicting evidence as to many events, and duly made credibility assessments as to each witness, including Plaintiff.”

Moreover, to prevail, the employee had to prove by a preponderance of evidence that she was subjected to intentional and gender-motivated conduct that was unwelcome and that she believed was hostile or abusive, among the other elements of her claim. Significantly, the jury heard conflicting evidence from several witnesses on these elements, including evidence of the employee’s own probative statements and conduct.

Facebook posts. For example, the jury heard evidence of her Facebook entries expressing her “subjective views about her workplace” and coworkers. She argued that the employer introduced irrelevant Facebook posts, including those with foul language or sexual innuendo, as improper character evidence to suggest “she was the kind of person who goes unoffended by the use of foul language.” One example was her post stating she “wanted to ‘throat punch’” someone when she was having a bad day.

Denying the employee’s motion for a new trial on this ground, the court noted that the employee’s counsel admitted that he failed to timely object to the admission of this evidence and counsel’s lack of “full diligence and attentiveness does not provide this Court grounds, in the sound exercise of discretion, to set aside the jury verdict.” The employer had provided the employee with a USB flash drive containing the exhibits to be used at trial, including the Facebook excerpts, so she was on notice of the intended use of the material and it behooved her to raise objections prior to and at the time of trial.

Furthermore, the court agreed with the employer that, given the trial record, the jury could reasonably have reached the same conclusions with or without this Facebook evidence. And though the employee asserted that it was error for the court not to have instructed the jury on how to properly consider Facebook evidence, the employee never actually requested any jury instruction on that issue. Having rejected these and the employee’s other assertions of errors, the court found no basis for finding an error so prejudicial that a new trial was warranted.

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