If you're caught sunbathing nude, on the roof of your elementary school-employer, don't sue for retaliation

Charles Davis is a long-time custodian for Unified School District No. 500. In 2007, he was caught on the roof of the elementary school at which he worked, sunbathing, in the nude. Instead of firing him, the school board suspended him for 30 days without pay and demoted him. Over the next five years, he applied for seven different head custodian jobs with the district. Each job went to a different applicant. Davis filed three different charges with the EEOC stemming from those rejections, first for race discrimination, and later for retaliation.

In Davis v. Unified School District No. 500, the 10th Circuit upheld the district court’s dismissal of Davis’s retaliation claim:

In a nutshell the key issue is whether a common purpose to retaliate against Davis must be inferred from the sheer volume of his promotion denials; we think not when seven independent and informed decision makers are involved.

Some employees are unworthy of protection by the anti-retaliation laws. Yes, Davis filed many EEOC charges claiming discrimination resulting from his employer’s failure to promote him. But, he was also caught sunbathing, nude, on the roof of the elementary school at which he worked. One decision maker would be justified in concluding that Davis was unworthy of a promotion. Seven different decision makers reached the same conclusion. Thus, barring evidence of a grand conspiracy against Davis because he had filed some EEOC charges, he could not prevail on his retaliation claim.

The moral of the story: not all protected activity is protected.

(Hat tip: Judy Greenwald at Business Insurance)