                                 United States Court of Appeals,

                                         Eleventh Circuit.

                                           No. 97-8637.

                              Paul WOMACK, Plaintiff-Appellant,

                                                 v.

                           Marvin RUNYON, Jr., Defendant-Appellee.

                                          July 28, 1998.

Appeal from the United States District Court for the Southern District of Georgia. (No. CV-597-6),
William T. Moore, Judge.

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.

   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.

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                                         III. DISCUSSION

       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.

       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



   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.

                                                  3
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


                                                 4
case, a nurse at the District of Columbia jail contended that she was passed over for a promotion,

despite being 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.

       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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