Man loses gender discrimination appeal

June 29, 2009

A federal appellate panel has upheld a U.S. District judge's decision against a man who alleged he's the victim of gender discrimination for being fired from St. Francis Hospital on claims he accessed inappropriate Web sites while at work.

In David Farr v. St. Francis Hospital and Health Centers, No. 08-3203, the 7th Circuit Court of Appeals affirmed the ruling from U.S. District Judge Sarah Evans Barker that held the hospital didn't discriminate against fired employee David Farr when it terminated him for using work computers to access pornographic Web sites during his shift.

Hired in 2000, Farr worked as a respiratory therapist, one of seven employees - but the only man - holding similar positions in the hospital's Pulmonary Rehabilitation Department. They all shared the same computer but had different user names and passwords.

In April 2005, another respiratory therapist and supervisor discovered "lurid" and "obscene" sites had been accessed on the computer, and it appeared that had happened under Farr's user name. The hospital's IT department investigated the computer usage and later submitted a report showing that no other employees had accessed the inappropriate sites. It also showed he was the only person working a certain Saturday when a large amount of computer activity involved both pornography and hacking sites. After a five-day suspension and another analysis that resulted in the same findings, Farr was fired for "breach of good conduct and inappropriate usage of the Hospital's electronic communications software."

Farr hired his own computer expert to study the situation and admitted that he'd accessed at least 17 of the 31 sites at issue, but he contended that the list of pornographic sites was placed on the computer by malware without his knowledge when accessing those other sites. A grievance committee unanimously upheld the hospital's actions, and Farr in 2007 filed a suit alleging he was the victim of gender discrimination. Judge Barker granted summary judgment for the defendant in her Aug. 1, 2008, decision.

According to the 7th Circuit panel, Farr's sex discrimination claim rests on his view that the hospital assumed he was guilty of looking at the pornographic sites because he was the only man working in the department. But none of the tests outlined in caselaw reveal any discrimination here, the panel wrote, and his claims don't hold water based on the evidence.

"That complaint would have more force if it were not also true that he was the last person logged on to the computer at the time the sites were visited," Judge Terence Evans wrote. "It seems quite sensible (and hardly discriminatory) to begin an investigation with the person who officially was logged on to the computer."

Judge Evans later noted that Farr admitted he'd accessed at least half of the inappropriate sites, providing a nondiscriminatory basis for the employer's action and no evidence of pretextual actions.

The court also dismissed Farr's other claims and affirmed in full Judge Barker's ruling, saying the claims were properly dismissed.


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