If you are going to file a lawsuit against your employer for race discrimination
under Title VII, you had better not be caught sunbathing in the nude on
the roof of your workplace, especially if it's a school.
Charles Davis has been employed as a custodian with Unified School District
No. 500 ("USD 500") in Topeka, Kansas since 1991. In 2007, he
was found lying naked on his stomach, sunbathing on the roof of the elementary
school where he worked. The school board considered a recommendation to
terminate his employment. Instead, the Board decided upon a suspension
without pay for thirty days and demoted him from his position as head
Over the next five years, Davis 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.
The District Court threw out his lawsuit, finding that no reasonable jury
could conclude that he was a victim of either discrimination or retaliation. On
appeal, he lost again. The court concluded that since seven independent and informed
decision makers for the school district had reviewed his application and
turned him down, there was no evidence of that there was a common purpose
Davis must make a prima facie case of but-for causation with respect to
each discrete incident of being passed over for a promotion. In the alternative,
he would need to show a conspiracy among the disparate actors amounting
to a common retaliatory motive. He has done neither. 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. In fact, there is no evidence of any principal's
knowledge of Davis' protected activity and we see no reason to impute
the HR Department's knowledge to any of them.
What happened here is that he failed to get promoted because of the nude
sunbathing incident, which each decision maker independently concluded
was sufficient to make him ineligible for a promotion. With regard to
his retaliation claim, there was no causal connection between his filing
charges for race discrimination and his failure to be promoted.
The takeaway? If you are going to sue your employer for discrimination
and/or retaliation, you will be much more likely to succeed if you have
an impeccable employment record. Otherwise, you will have given your employer
ammunition to prove that there was a non-discriminatory reason for its action.