A school head janitor was caught goofing off during work hours. That is bad enough. Unfortunately, he was on the roof sunbathing in the nude (luckily on his stomach).
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Although the board of education considered terminating his employment, he was not fired. He was instead demoted from head janitor and suspended for 30 days without pay. So it may not come as a surprise that with the sunbathing shadow on his record, he did not get any of the seven head janitor jobs he applied for over a 4-year period.
Nonetheless, he filed three claims of discrimination against the school district with the EEOC over the failures to promote, noting that the volume of the rejections indicated a pattern of racial discrimination. He also said he did not receive other notices of job openings for head custodian in the district.
Afterwards, he filed a claim, alleging that he was retaliated against for filing the EEOC claims. Thereafter, the janitor filed suit in a federal district court, which held for the employer and dismissed his claims. Not to be dissuaded, the janitor appealed.
He fared no better before the United States Court of Appeals for the 10th Circuit. Other than the job rejections, the janitor offered no other examples of discrimination. Indeed, the court found that a “common purpose” of overt discrimination was unlikely, especially since the entire application process was online.
With respect to his retaliation claim, the court found that he was unable to prove that he suffered any adverse employment action solely because he complained of discrimination. In fact, he presented no evidence that some of the decision makers even knew about the EEOC claim! In short, the court found that there was absolutely “no evidence presented to show a conspiracy … amounting to a common retaliatory motive.”
“Bottom” line? Employers are often wary of taking any adverse action against any employee who has filed a discrimination claim. However, as this case demonstrates, filing such a claim does not give the employee absolute immunity. Employers are free to discipline or refuse to promote employees based on their unacceptable work conduct, regardless of whether they have previously filed a claim, as long as they are consistent with their entire workforce. In fact, not all activity is protected! Certainly not naked sunbathing….