01965466
10-16-1998
Donna L. Lawrence, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Donna L. Lawrence v. Department of the Treasury
01965466
October 16, 1998
Donna L. Lawrence, )
Appellant, )
)
v. ) Appeal No. 01965466
) Agency No. 93-2251
Robert E. Rubin, ) Hearing No. 210-95-4812X
Secretary, )
Department of the Treasury, )
(Internal Revenue Service), )
Agency. )
___________________________________)
DECISION
Donna L. Lawrence (appellant) timely appealed the Department of the
Treasury, Internal Revenue Service's (agency) final decision, dated
July 26, 1996, concluding she had not been discriminated against in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. This appeal is accepted in accordance with
the provisions of EEOC Order No. 960.001.
The record establishes that at the time of the events at issue, appellant
was employed by the agency as a Revenue Agent, GS-12, in the Examination
Division of the Cheyenne, Wyoming, District. On May 14, 1993, appellant
filed a formal EEO complaint with the agency, essentially alleging that
she had been adversely treated by agency management over a period of time
and in a variety of ways<1> in retaliation for a prior EEO complaint filed
in 1989, and because of sexual favoritism shown to a female coworker.
The agency accepted the complaint and conducted an investigation. At the
conclusion of the investigation, appellant requested an administrative
hearing before an Equal Employment Opportunity Commission (EEOC)
administrative judge (AJ).
On May 8, 1996, following a hearing at which nine witnesses testified,
the AJ issued a decision recommending a finding that no discrimination
or retaliation had occurred. In that decision, the AJ initially reviewed
the complex procedural history of appellant's allegations, which included
appellant proceeding twice through the agency's negotiated grievance
process in July 1992 concerning much of what was asserted later in the
instant EEO complaint. The AJ also noted an earlier 1990 settlement
agreement of the 1989 EEO complaint, which also contained allegations
of sexual harassment, and the subsequent dismissal of a civil action by
the U.S. District Court for the District of Wyoming (91 CV 0062) when
appellant attempted to collaterally attack that settlement agreement.
Based on the history, the AJ found that the record established that
appellant has repeatedly attempted to use multiple forums to re-litigate
many of the same allegations going back to 1988. Therefore, the AJ
narrowed the definition of the issues in the instant complaint to the
following:
(1) whether appellant was subjected to a hostile work environment between
July 1992 and May 1993 because sexual favoritism was shown to a female
coworker and appellant expressed her disapproval of that relationship;
and
(2) whether appellant was subjected to a pattern of harassment starting
in July 1992 in retaliation for her prior EEO activity.
The AJ then went on, pursuant to 29 C.F.R. �1614.109(e), to grant the
agency's motion for summary judgment on the sexual harassment issue,
and to proceed to hearing on the reprisal issue.
With regard to the sexual harassment issue, the AJ found no prima facie
case of third party sexual harassment because the relationship between
the coworker and the manager was consensual and ultimately resulted
in marriage. With regard to appellant's one allegation of a "sexual"
advance directed at herself,<2> the AJ concluded that the evidence did
not indicate that the conduct complained of was so severe or pervasive
that it created a hostile working environment.
As to appellant's retaliation claims, the AJ also found no prima
facie case. The AJ based this conclusion on a finding that, although
management was aware of appellant's prior EEO activity, the evidence did
not establish the necessary nexus between appellant's protected activity
and the incidents which formed her complaint. First, the AJ noted the
long passage of time between appellant's prior EEO activity and the
incidents which formed the basis of her complaint. More significantly,
the AJ found that the record established that appellant had complained
of virtually identical mistreatment by management prior to her 1989
EEO activity. The AJ concluded that this evidence negated an inference
of retaliatory motivation because of that 1989 complaint.
On July 26, 1996, the agency adopted the findings of the AJ and issued
a final decision finding no discrimination. It is from this decision
that appellant now appeals.
After a careful review of the record in its entirety, the Commission
finds that the AJ's recommended decision sets forth the relevant facts
and properly analyzes the appropriate regulations, policies and laws.
Based on the evidence of record, the Commission discerns no basis to
disturb the AJ's finding of no discrimination. The Commission notes that
on appeal, appellant has raised the same arguments which were considered,
and disposed of, by the AJ.
The Commission takes special note that appellant's allegation of sexual
harassment is premised on her claim that her coworker was treated
more favorably as a result of that coworker's romantic relationship
with a manager, which ultimately resulted in marriage. The Commission
has taken the position that sexual favoritism in the workplace which
adversely affects the employment opportunities of third parties may,
under certain circumstances, constitute sexual harassment prohibited
by Title VII. See EEOC's Policy Guidance on Employer Liability under
Title VII for Sexual Favoritism, Notice No. N-915-048 (January 12,
1990) (hereinafter referred to as "EEOC Policy Guidance"). However,
the Commission's position on this issue is clear that Title VII does
not prohibit isolated instances of preferential treatment based upon
consensual romantic relationships. While favoritism towards a spouse or
friend may be unfair, it does not constitute discrimination in violation
of Title VII because both men and women are equally disadvantaged for
reasons other than their gender. EEOC Policy Guidance at 2. See also,
Miller v. Aluminum Co. of America, 679 F. Supp. 495 (W.D. Pa., aff'd mem.,
856 F.2d 184 (3d Cir. 1988); DeCintio v. Westchester County Medical
Center, 807 F.2d 304 (2d Cir. 1986), cert. denied, 108 S. Ct. 89 (1987).
In the instant case, while there was a romantic relationship between
the coworker and the manager, it is clear that no coercion existed.
Moreover, there is no evidence in this case that favoritism based upon
the consensual granting of sexual favors was widespread in this workplace
which might also have created a hostile work environment in violation
of Title VII.
To the extent that appellant was also claiming that she was personally
subjected to offensive conduct or was harassed because of her sex,
in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57 (1986), that harassment is actionable if it is sufficiently
severe or pervasive that it results in an alteration of the conditions
of the appellant's employment. EEOC Notice No. 915.002 (March 8, 1994),
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. See also,
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997). After reviewing the evidence of record, the Commission concurs
with the AJ's holding that appellant has failed to establish that she
was subjected to harassment which was sufficiently severe or pervasive
so as to constitute a hostile work environment.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's final decision which adopted the AJ's
finding of no discrimination or retaliation.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive this decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from
the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY
(30) CALENDAR DAYS from the date that you receive this decision or
to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. If you file a civil
action, YOU MUST NAME AS THE DEFENDANT IN THE COMPLAINT THE PERSON
WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT
PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE. Failure to do so may
result in the dismissal of your case in court. "Agency" or "department"
means the national organization, and not the local office, facility or
department in which you work. Filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
Oct 16, 1998
__________________ _______________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
1 As examples of the harassment, appellant asserted that: she was given
more difficult work assignments; had excessive travel requirements; was
denied awards, developmental opportunities, training and appropriate
travel reimbursement; had restrictions placed on her hours charged
to administrative time; received an unacceptable rating on her annual
performance appraisal; her coworkers were rewarded for harassing her;
and management refused to transfer her to Group 4,
2 Appellant claimed that, sometime in May 1992, the same manager allegedly
asked her, "When are we going to schedule some overnight travel?"