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LAKE v. BAKER

March 16, 1987

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


Gesell, Judge.


The opinion of the court was delivered by: GESELL

GESELL, Judge

 Introduction

 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 ...


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