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March 16, 1987

Sharon Ann Lake, Plaintiff,
James A. Baker, Secretary of the Treasury, Defendant

Gesell, Judge.

The opinion of the court was delivered by: GESELL




 This is a Title VII sex discrimination case. Ms. Lake seeks only damages from the date of her resignation from the National Office of the Criminal Investigation Division (CID) of the Internal Revenue Service on July 6, 1985. She claims that her resignation was in fact a constructive discharge caused by three specific instances of nonselection due to sex discrimination during 1984 and a pervasive atmosphere of intolerance for her gender. She seeks the compensation and retirement benefits she would otherwise have continued to receive as a GM-14 employee when she resigned. The Secretary disputes her specific discrimination and general sexual harassment claims, as well as the claim that she was constructively discharged.

 This action was originally brought as a class action and plaintiff is one of the two named class representatives whose individual claims were set out in the Second Amended Complaint filed July 17, 1986. After the Court refused to certify high-level women employees of CID as a class, Ms. Lake's individual claims, which had been only partly processed administratively, *fn1" were heard by the Court in a bench trial following full discovery. A detailed record was developed over eleven trial days, at which thirty-five witnesses appeared and 113 exhibits were received. The issues have been fully briefed and detailed proposed findings of fact keyed to the record have been submitted.

 Ms. Lake served two tours of duty with CID. Until her transfer to the National Office on her second tour, her work was of high quality and, as a consequence, she received rapid advancement and special recognition. She is a Certified Public Accountant and has special expertise in tax shelters. During her first tour, which lasted from 1972 to 1979, she served in the field, first for several months in the Los Angeles District Office as a GS-5 Special Agent and then in the Dallas District Office, where she received regular noncompetitive promotions. In March 1977, through competitive promotion she became a GS-13 Regional Analyst in the Southwest Regional Office which is also located at Dallas. She resigned on May 5, 1979, and took a job with a private law firm, doing work in the tax shelter area.

 Ms. Lake re-entered CID on August 31, 1981 as a GS-12 Special Agent in its Oklahoma District Office and was promoted competitively in November 1981 to Group Manager, GM-13 and, again, in August 1982 noncompetitively to GM-14 Group Manager. A year later she agreed at the suggestion of top CID management officials to transfer to the National Office in Washington, D.C., to become Senior Coordinator for tax shelters. Subsequently she filled various other GM-14 positions at the National Office over the following two years until she again resigned on July 6, 1985.

 In presenting her case, Ms. Lake reviewed in minute detail *fn2" selected aspects of her experience during each tour, focusing on conversations and events involving different officials at different times in varying circumstances, all in an effort to demonstrate that sex bias was prevalent wherever she was assigned in CID and that for this reason she was rejected for positions she applied for and her desire to reach higher management levels was generally thwarted.

 This running account, to some extent supplemented by documents, created a prima facie case viewing Ms. Lake's testimony most favorably to herself. She indicated a sexually discriminatory atmosphere, irregularities in the selection process apparently favoring males, and stated she was, in effect, forced to resign on both occasions because of sexual harassment. In the course of her testimony the accuracy of her Title VII representations was sharply questioned on cross-examination. When many witnesses were later called by the Secretary to testify and further documents were received, Ms. Lake's credibility was seriously disputed in practically every situation she had presented pertinent to her sex discrimination claims.

 The Court has reviewed the conflicting versions of the facts with care. As the findings below indicate, *fn3" plaintiff failed to establish by a preponderance of the evidence her three specific claims of sex discrimination resulting in nonselection while at the National Office, and similarly totally failed to establish constructive discharge.

 Ms. Lake's First Tour of Duty

 Although Ms. Lake's substantive claims center entirely on her second tour of duty and only for the period spent at the National Office, she was allowed to present proof of sexual harassment on her first tour as "background." This aspect concentrated on her experience with CID while she was in Dallas at the District Office and the Southwest Regional Office from 1972 until her resignation in 1979. The Court first examines these background experiences for whatever light they may later shed on her claims of discrimination during her tenure at the National Office in Washington, D.C. more than ten years later. They cannot by themselves, of course, provide a basis for awarding damages since the discrimination at that time was not the subject of an EEO complaint and time for suit has run.

 Ms. Lake worked in the Dallas District Office of CID for about five years. Glenn Shepard, Assistant Chief of the office, was her second-level supervisor from July 1973 to July 1974, when he was promoted to Chief and became her third-level supervisor. She was the only female agent in this small CID unit serving with several males. She entertained the agents occasionally at her home and travelled with them on work assignments to different locations within the jurisdiction of the office. Her work record was very good and she was considered an exceptionally valuable employee.

 The preponderance of the evidence supports her claim that the atmosphere in the Dallas District Office at that time was gross, vulgar, sexually explicit and that it denigrated females. In the partitioned open-cubical office, male agents often engaged in provocative talk, told dirty jokes, and openly harassed and made sexual advances toward an attractive secretary. This condition did not affect her assignments or interfere with the fair appraisal of her work performance. It was at times very unpleasant for her and obviously inappropriate. There is no credible proof that Ms. Lake officially complained or vigorously objected while this was going on. Her occasional informal remonstrances were not taken seriously and were shrugged off without official action.

 Mr. Shepard was an experienced CID agent and manager who, like some of the other agents, had served in various offices around the country before the advent of female agents in 1972. *fn4" He did not contribute directly to the unpleasant sexist atmosphere in the District Office by his own daily conduct but he knew the situation existed and did nothing positive to stop it. He came to know Ms. Lake in the course of their working assignments which involved some travel together away from Dallas.

 After a time Ms. Lake and Mr. Shepard found they enjoyed each other's social company after hours and, beginning in late fall 1973, they had a sexual affair of some duration. This situation became known to the staff and was a source of some pranks at a party. There is no proof or claim that Ms. Lake was forced into this relationship or that she incurred any advantage or disadvantage at work because of it. Mr. Shepard and Ms. Lake kept their relationship separate from their work and carried out their employment responsibilities in a normal manner.

 As time went on Ms. Lake and Mr. Shepard saw each other socially less frequently, and while she was still employed Ms. Lake broke off the relationship, after resisting his persistent off-duty advances beginning in early 1974. During the period of Mr. Shepard's relations with Ms. Lake his first marriage was in difficulty. Ms. Lake had previously been divorced. The relationship was not Mr. Shepard's first office affair; later Mr. Shepard dated other women in CID and eventually remarried.

 Shortly after becoming CID's Assistant Regional Commissioner for the Southwest Region in 1976, John Rankin, as part of his effort to install minority and women CID employees in management positions in the region, encouraged Ms. Lake to seek a position as GS-13 Regional Analyst in the Dallas Regional Office. She was highly qualified and was subsequently interviewed and selected. In March 1977, when she commenced this new position, Mr. Shepard had become Executive Assistant to the Regional Commissioner and he became her first-line supervisor.

 Ms. Lake contends that Mr. Shepard raped her in her New Orleans hotel room in the spring or summer of 1978 while they were on a business trip. Mr. Shepard testified and flatly denied this charge. Ms. Lake never reported the alleged rape to anyone in CID, *fn5" nor did she tell her close female friend to whom she confided other aspects of her relationship with Mr. Shepard. The Court accepts Mr. Shepard's detailed version of their relationship as the most credible.

 In March 1979 Ms. Lake applied for several GM-14 Senior Regional Analyst positions which had become vacant in the Southwest Regional Office but was not selected. She submitted a letter of resignation on April 16, 1979, effective May 5, 1979. Ms. Lake testified she resigned because she was unwilling to tolerate the sexist atmosphere she had encountered any longer, and felt because she failed to gain a prompt promotion despite her outstanding ability and hard work her career path was blocked. She had been advised from the outset that one advanced slowly to higher management and only after "paying one's dues." But even at this early stage of her career she could not accept the obvious fact that advancement to higher management positions in CID was highly competitive and required extensive and varied experience.

 When she resigned Ms. Lake initially gave no reasons for her action. Because her work had been of high quality and her ability was appreciated, key supervisors -- particularly Walter Coppinger, the Regional Commissioner, and Mr. Rankin -- attempted to dissuade her and sought to determine why she was leaving for private employment. At this point she submitted a ten-page memorandum entitled "Clarification of Resignation" which she discussed with Mr. Rankin. This memorandum reviewed in great detail her work experience both with CID and in other prior jobs she had held with private industry and with other government agencies. It revealed she had fought to get ahead, sometimes against heavy odds, and portrayed this experience as evidence of having paid her dues because she had come through many difficult circumstances. She said she had shifted jobs more than once because she refused sexual advances from male superiors. She suggested that because of her age, then in the mid-30's, if she could not move up promptly into higher management such jobs would never be open to her. Not having been promoted she felt she was indeed a "token broad," as some male employees had indicated. She did not detail the atmosphere of the Dallas Office, of which she now complains, nor did she mention the alleged rape.

 Mr. Rankin reviewed the memorandum with her in detail. As his contemporaneous notes reveal she told him, as to her reasons for leaving, that she felt she should have been promoted as best qualified, that she wanted to try out being a tax manager in industry, that she had medical problems associated with "nerves," and that she did not like some new federal statutes affecting merit pay which had an impact on managers. Mr. Rankin told her he would not tolerate anyone using the term "token broad" and that she should feel free to file an EEO complaint. He attempted to dissuade her. She stuck by her decision to leave, and did not file a complaint.

 The Court finds Ms. Lake did not resign because of the sexual harassment that existed in the office, although she undoubtedly disliked the office atmosphere which she somewhat now exaggerates. Ms. Lake's testimony was unreliable in several respects. She misrepresented her relationship with Mr. Shepard and sought to imply that she was in some way being forced to put up with the sexist atmosphere of the office and Mr. Shepard's advances as part of "paying her dues." In fact she resigned to use her skills in the private sector, anticipating more rapid advancement, and hoped to be better able to deal with her medical problems.

 There is no proof indicating that the harassing conditions in the Dallas District Office persisted into the relevant period of this case or that these conditions were then or at any later time typical in any way of sexual attitudes in other District or Regional offices.

 Ms. Lake's Second Tour of Duty

 Ms. Lake's substantive sex discrimination claims all relate to her experience in the National Office during her second tour of duty.

 Ms. Lake started her second tour at the Oklahoma City District Office in August 1981 as a GS-12 Special Agent. She was competitively promoted to GM-13 Group Manager in November 1981 and in August 1982 promoted to GM-14 Group Manager. She concentrated on tax shelters and received a rare and highly prized "Distinguished Performance" rating. She stayed in the Oklahoma City Office until laterally transferred, with her consent, to serve as the Senior Coordinator for tax shelters at the National Office in Washington, D.C. with the rank of Senior Analyst, GM-14, a mid-level management grade. Between 1982 and 1985, while Ms. Lake was at the National Office, the relevant lines of supervisory authority which affected her career are sketched below, to indicate the responsibilities of key officals with whom she came into contact: DEPARTMENT OF THE TREASURY COMMISSIONER OF INTERNAL REVENUE ASSOCIATE COMMISSIONER (Operations) ASSISTANT COMMISSIONER (Criminal Investigation) -- Richard Wassenaar, Ass't Commissioner -- John Rankin, Deputy Ass't Commissioner ////////////////////////////////////////////////////////// -- Office of Office of Planning Investigations & Development -- Brian T. Wellesley -- Charles Gibb 2nd-line supervisor 2nd-line supervisor to Ann Lake to Ann Lake -- Stephen Hironaka 1st-line supervisor 1st-line supervisor to Ann Lake to Ann Lake Ann Lake, Senior Coordinator, Tax AND Analyst, Tax Shelters Shelters


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