Employee Caught Sunbathing in the Nude on the Roof Sues for Retaliation!
Every once in a while I really like to take the opportunity of sharing just how ridiculous workplace allegations can be. A long-time custodian for a school district 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. As a result of not being given the opportunities presented, the employee filed three different charges with the EEOC stemming from those rejections, first for race discrimination, and later for retaliation. The court dismissed the claims.
In a nutshell, the key issue was whether a common purpose to retaliate against the employee was inferred from the sheer volume of his promotion denials. The court, when it considered the fact that seven different decision makers were involved over the years, did not buy into the employee’s argument.
Some employees are unworthy of protection by the anti-retaliation laws. Yes, here, the employee 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 the employee was unworthy of a promotion. Seven different decision makers reached the same conclusion. Thus, barring evidence of a grand conspiracy against the employee because he had filed some EEOC charges, he did not prevail on his retaliation claim.
The moral of the story: not all protected activity is protected!