Though employers no doubt hope that everyone in their workforce is focused on their tasks at hand at all times, the reality in this era of social media is that that is not always the case. In the same vein, employers often have policies discouraging personal Internet usage, but those policies are nearly impossible to enforce. When may an employer draw the line on personal Internet use? The Tenth Circuit recently explored the issue in Montoya v. Hunter Douglas Window Fashions, Inc. No. 14-1491 (10th Cir. Jan. 25, 2016).
Cynthia Montoya worked for Hunter Douglas, a window shades and blinds retailer, eventually being promoted to a “fabrication supervisor” position in charge of 55 employees. Like all employees, she was required to sign an Internet Access policy stating that “personal [Internet] use is strictly prohibited.” In October 2009, when Montoya was on FMLA leave, several subordinates complained to Montoya’s supervisor, Jeff Geist, that Montoya failed to assist them when they asked for help because she was distracted by personal Internet use. When Geist investigated the allegations by examining Montoya’s browsing history over a six-week period, he discovered that Montoya had spent fully 24.5 hours on websites that were not work-related. Geist issued a “Final Warning” and performance improvement plan (PIP) on November 20, 2009. Montoya improved her performance following the PIP and received favorable evaluations over the next several years.
In August 2012, however, Montoya’s issues resurfaced. After she again took leave (which was requested as FMLA leave, though Montoya never completed the paperwork), coworkers and subordinates complained to Geist about Montoya’s lack of productivity. In addition to leaving early many days and being out of the workplace for extended periods, Montoya was allegedly on the Internet planning her wedding and browsing Facebook for hours. A second investigation by Geist revealed that in the two months preceding her leave, Montoya had “recorded more than 11,825 Internet hits on non-work-related websites,” including 1,800 hits alone on Facebook and the Macy’s and Men’s Wearhouse sites. Significantly, Geist also learned during the investigation that Montoya was late by six to eight months on submitting performance reviews for at least eight of her subordinates. Geist and a human resources representative asked Montoya about these issue when she returned to work, and Montoya acknowledged both her Internet usage and her failure to provide timely performance reviews. She was terminated two days later.
Montoya later filed a gender discrimination claim against her former employer. Hunter Douglas explained that it terminated Montoya because of her excessive internet use, overdue performance reviews, and relative unresponsiveness to her subordinates’ needs. The employer acknowledged that it tolerates occasional personal Internet usage, despite its policy, but that it could not tolerate Montoya’s level of usage because it interfered with her work performance. The district court agreed, found no evidence that Hunter Douglas’s reasons were a pretext for gender discrimination, and dismissed the case.
On appeal, the Tenth Circuit affirmed in a unanimous opinion. After assuming that Montoya established a prima facie case of discrimination, the court noted that Montoya had not identified any similarly situated male employee whose personal Internet use interfered with his work performance who was not terminated. Consequently, there was no evidence of pretext, and judgment was entered in favor of Hunter Douglas. (The court also dismissed Montoya’s claim of FMLA retaliation because she had not provided any evidence of pretext beyond the fact that she was terminated two weeks after requesting leave.)
There are two primary takeaways here. First, this case illustrates that employers who can demonstrate the harm to their business through specific decreases in employee productivity can rely on excessive Internet usage as a justification for taking personnel actions. Second, for pretext purposes, employers are best off pointing to specific grounds for comparison. Here, for example, a female employee was required not only to identify male employees who used the Internet for personal matters, but also to identify male employees whose Internet use was excessive to the point that it inhibited their ability to submit performance reviews or other supervisory tasks.