No, sunbathing nude doesn’t cut it as grounds for retaliation suit
Reassuring news: Employers aren’t guilty of retaliation when they fail to promote an employee who’s done something really stupid.
We refer to the case of Charles Davis, a long-time custodian for Unified School District 500 in Kansas.
Davis began his employment with the district in 1991. In 2007, the school board considered a recommendation to terminate his employment after he was found sunbathing naked on the roof of the elementary school where he worked.
Instead, the board decided upon a suspension without pay for thirty days and demoted him from his position as head custodian.
From 2008 to 2012, Davis applied for head custodian positions at seven different schools within the district, but was not hired for any of them. In 2008, 2010, and 2011, he filed claims with the Equal Employment Opportunity Commission (EEOC), originally alleging racial discrimination and later both discrimination and retaliation for filing EEOC claims.
In January, 2012, Davis filed suit against USD 500 and Stephen Vaughn, the director of HR for the district, claiming his failure to secure a promotion was retaliation for his rooftop romp in the sun.
‘Seven independent decisionmakers’
The district court found in favor of the school district and Vaughn. Davis appealed.
The appeals court wasn’t buying what Davis was selling.
Davis “seems to think the number of times he was passed over is alone sufficient to establish a prima facie case [of retaliation]. He is wrong,” the judge wrote, adding:
The principals of each of those schools independently investigated the applicants and made the hiring decisions. There is no evidence of concerted activity among them or with the HR department.
The court summed up:
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 decisionmakers are involved. We affirm [the lower court's ruling].
The case is Davis v. Unified School District 500.
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