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Nude Sunbathing at Work Not Recommended in Employment Discrimination Claims


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 custodian.

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 to retaliate.

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.
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