extra credit

Womack v. Runyon, 147 F.3d 1298 (11th Cir. 1998)

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Page 1298

147 F.3d 1298 77 Fair Empl.Prac.Cas. (BNA) 769,

73 Empl. Prac. Dec. P 45,463,

11 Fla. L. Weekly Fed. C 1653 Paul WOMACK, Plaintiff-Appellant,

v.

Marvin RUNYON, Jr., Defendant-

Appellee. No. 97-8637.

United States Court of Appeals,

Eleventh Circuit. July 28, 1998.

Page 1299

E. Kontz Bennett, Jr., Waycross, GA, for

Plaintiff-Appellant.

Harry Dixon, Jr., U.S. Atty., Melissa S.

Mundel, Asst. U.S. Atty., Savannah, GA, for

Defendant-Appellee.

Appeal from the United States District

Court for the Southern District of Georgia.

Before CARNES and HULL, Circuit

Judges, and HENDERSON, Senior Circuit

Judge.

PER CURIAM:

Paul Womack filed this action against

Marvin Runyon, Postmaster General of the

United States Postal Service, charging

unlawful discrimination because of his sex in

violation of Title VII of the Civil Rights Act of

1964. The United States District Court for the

Southern District of Georgia granted

Runyon's motion to dismiss. Womack filed

this appeal from that final judgment. We

affirm.

I. FACTS

Womack is a career employee of the

United States Postal Service. Early in 1987, he

applied for a position as carrier supervisor at

the Waycross, Georgia post office. Womack

had prior supervisory experience and training

at the time of his application. In March, 1987,

then Supervisor O.M. Lee instructed Womack

to begin training a co-employee, Jeanine

Bennett. Bennett and another employee,

Jerry Johnson, were also candidates for the

carrier supervisor position. Although

Womack was unanimously selected as best

qualified for the post by a review board, Lee,

the newly appointed Postmaster in Waycross,

selected Ms. Bennett for the assignment. 1

Womack alleges that he only learned that Lee

and Bennett had been engaged in a

consensual sexual relationship at the time Lee

selected Bennett as the carrier supervisor in

1996 just prior to his filing an administrative

complaint with the postal service's equal

opportunity office. 2

In January, 1997, Womack filed this

action claiming that Lee's failure to select him

for the supervisory position constituted

unlawful sex discrimination in violation of

Title VII. 3 Runyon moved to dismiss on the

ground that Title VII did not authorize any

relief from an adverse employment decision

predicated on the decision-maker's romantic

and/or sexual involvement with the

successful applicant. The district court agreed

and granted the motion to dismiss. Womack

appeals from the final judgment.

II. STANDARD OF REVIEW

We review the dismissal of a complaint

for failure to state a claim for relief de novo,

accepting all allegations in the complaint as

true and construing those allegations in the

light most favorable to the plaintiff. Lopez v.

First Union National Bank of Florida, 129

F.3d 1186, 1189 (11th Cir.1997). A complaint

may not be dismissed for failure to state a

claim unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of

his claim which would entitle him to relief. Id.

III. DISCUSSION

Womack v. Runyon, 147 F.3d 1298 (11th Cir. 1998)

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The sole issue on this appeal is whether

preferential treatment based on a consensual

relationship between a supervisor and an

employee constitutes a cognizable sex

discrimination cause of action under Title

VII. Womack contends that the affair between

Lee and Bennett was a substantial factor, if

not the real reason, for Bennett's selection for

this promotion. He argues that this rises to

the level of unlawful sex discrimination

because Bennett's sex was, for no legitimate

reason, the basis for Lee's decision to

promote her.

Page 1300

The Postmaster contends that the district

court correctly concluded that Title VII does

not encompass a claim based on favoritism

shown to a supervisor's paramour. He likens

such favoritism to nepotism and argues that,

while perhaps not fair, it is not actionable sex

discrimination. He points out that the

majority of courts that have considered the

matter have rejected such claims. 4

The leading case in this area is DeCintio

v. Westchester County Medical Center, 807

F.2d 304 (2nd Cir.1986), cert. denied, 484

U.S. 825, 108 S.Ct. 89, 98 L.Ed.2d 50 (1987).

In that case, seven male respiratory therapists

sued their employer, maintaining that a

woman was selected for a promotion because

she was involved in a romantic relationship

with the head of the department. The district

court concluded that the defendants' actions

violated both Title VII and the Equal Pay Act.

The United States Court of Appeals for the

Second Circuit reversed, holding that the

selection of the woman for a position paying a

higher salary based upon a consensual

romantic relationship with the department

head did not state a claim under either

statute. The court pointed out that the

plaintiffs were in exactly the same position as

other women who might have applied for the

advancement in rank. They were disfavored

not because of their sex but because of the

decision-maker's preference for his

paramour. Id. at 308.

As the Postmaster points out, the great

majority of courts which have addressed this

question have reached the same result. Thus,

in Becerra v. Dalton, 94 F.3d 145 (4th

Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct.

1087, 137 L.Ed.2d 221 (1997), the United

States Court of Appeals for the Fourth Circuit

held that allegations that the promoted

individual was having sexual relations with

the selecting officers did not state a claim for

sex discrimination violative of Title VII. See

also Taken v. Oklahoma Corporation

Commission, 125 F.3d 1366, 1369-70 (10th

Cir.1997)(same); Hennessy v. Penril

Datacomm Networks, Inc., 69 F.3d 1344,

1353-54 (7th Cir.1995)(same, in dicta);

Keenan v. Allan, 889 F.Supp. 1320, 1375 n. 6

(E.D.Wa.1995)(same), aff'd, 91 F.3d 1275 (9th

Cir.1996); Thomson v. Olson, 866 F.Supp.

1267, 1272 (D.N.D.1994)(same), aff'd, 56 F.3d

69 (8th Cir.1995).

The Equal Employment Opportunity

Commission, which is charged with enforcing

Title VII, has also reached the same

conclusion. In a policy guidance letter issued

in 1990, the agency opined that "Title VII

does not prohibit ... preferential treatment

based upon consensual romantic

relationships. An isolated instance of

favoritism toward a 'paramour' ... may be

unfair, but it does not discriminate against

women or men in violation of Title VII, since

both are disadvantaged for reasons other than

their genders." See EEOC Policy Guidance on

Employer Liability Under VII for Sexual

Favoritism, EEOC Notice No. 915-048

(January 12, 1990).

Womack relies on the decision of the

United States Court of Appeals for the District

of Columbia Circuit in King v. Palmer, 778

F.2d 878 (D.C.Cir.1985), in support of his

position. In that case, a nurse at the District

of Columbia jail contended that she was

passed over for a promotion, despite being

Womack v. Runyon, 147 F.3d 1298 (11th Cir. 1998)

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better qualified, in favor of a woman who was

involved in an intimate relationship with the

Chief Medical Officer. The district court

granted judgment in favor of the defendants

because the plaintiff failed to offer direct

evidence of an explicit sexual relationship.

The appellate court found that the plaintiff

had met her evidentiary burdens in the case

and remanded for entry of a judgment in

favor of the plaintiff. At the outset, however,

the court noted that the parties agreed that

the plaintiff's complaint stated a cause of

action cognizable "under statutes prohibiting

sex discrimination in employment." In

denying rehearing en banc, the court noted

that "no party challenged the application of

Title VII on appeal, and the issue was not

briefed or argued to the panel." Id. at 883.

Accordingly, King is not persuasive authority

on this question.

Page 1301

Based on the foregoing, we conclude that

the district court correctly dismissed

Womack's complaint for failure to state a

claim. The judgment of the district court is

AFFIRMED.

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1 The defendant does not concede that Lee

was the official who selected Bennett for the

position. In support of his motion to dismiss,

Runyon submitted the "Declaration" of John

W. Hill which stated that he "was the

selecting official for a relief supervisor

position for which Mr. Womack and Mrs.

Bennett competed in 1987." (R.1:6, Exh. A).

Since this appeal is from the district court's

order granting the defendant's motion to

dismiss, however, the allegations of the

complaint must be taken as true.

2 That complaint was dismissed as untimely.

(R.1:6, Exh. B).

3 42 U.S.C. § 2000e et seq.

4 The Postmaster General also argues that the

district court lacked subject matter

jurisdiction to entertain Womack's challenge

based on Postal Service and other regulations.

Since those regulations played no role in the

district court's disposition of the case,

however, it is not necessary to address that

argument.