Not all protected activity is protected, says attorney Jon Hyman on the Ohio Employer’s Law Blog, despite what some employees might think.

Take the case of Charles Davis, for instance. In 2007, Hyman says, the longtime custodian for Unified School District No. 500 was caught sunbathing in the nude on the roof of the elementary school where he worked. He was suspended for 30 days without pay and demoted.

From 2008 to 2012, Davis applied for head custodian positions at seven different schools within the district but was rejected for all of them. Hyman says during the same time period, Davis filed three claims with the Equal Employment Opportunity Commission, first for racial discrimination and later for both discrimination and retaliation for filing the EEOC claims.

Hyman says the U.S. Court of Appeals for the Tenth Circuit upheld a district court’s decision to dismiss the retaliation claim. He says the court determined that the issue came down to whether retaliation could be inferred from the “sheer volume of his promotion denials,” a notion that was rejected because seven independent decision makers were involved.

Hyman says given that so many hiring managers rejected Davis, unless he could produce evidence of a grand conspiracy because he had filed other EEOC charges, he could not prevail on his retaliation claim.