Free Motion to Alter Judgment - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Case No. 03-cv-02311-EWN-CBS LINDA M. PIERCY, Plaintiff, v. TERRY MAKETA, AS SHERIFF OF EL PASO COUNTY SHERIFF'S OFFICE; EL PASO COUNTY SHERIFF'S OFFICE; and THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EL PASO, Defendants.

DEFENDANTS' MOTION TO ALTER OR AMEND THE JUDGMENT PURSUANT TO RULE 59(e)

Defendants, TERRY MAKETA, as Sheriff of El Paso County Sheriff's Office, EL PASO COUNTY SHERIFF'S OFFICE ("EPSO"), and THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EL PASO, hereby move the Court, pursuant to Fed. R. Civ. P. 59(e), to alter or amend the judgment entered on June 30, 2008. NATURE OF THE CASE AND PROCEDURAL HISTORY The Court is amply familiar with the nature of this case and the facts from the two cross-motions for summary judgment briefed and decided in this case (which generated at least six briefs), the latest on the issue of whether gender is a bona fide occupational qualification ("BFOQ") for the job of deputy sheriff at EPSO.

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Briefly, the remaining issue in this case relates to EPSO's decision, in August 2002, to not have female deputies apply for some open positions at the Metro jail facility ("Metro"). The Tenth Circuit found this decision to be facially discriminatory and, as such, the issue of whether that was permitted as a BFOQ needed to be determined by this Court on remand. The parties filed cross-motions for summary judgment on the Metro transfer issue, Defendants arguing that gender was a BFOQ and Plaintiff arguing it was not. Defendants and Plaintiff also argued over the interpretation of the Tenth Circuit's opinion relating to whether a transfer to Metro would have been an adverse employment action.1 On or about June 30, 2008, this Court entered its Order on the cross-motions for summary judgment. Docket No. 120. The Court granted Plaintiff's motion for summary judgment on the BFOQ issue, denied Plaintiff's motion on the issue of adverse employment action, and denied Defendants' motion for summary judgment on both the BFOQ issue and the adverse employment action issue. For the reasons set forth below, Defendants now respectfully move this Court to reconsider its Order and alter or amend that judgment.

Defendants briefed that issue as well for the Court in light of the confusion of the parties from the Tenth Circuit's statements relating to that issue, and also in light of Magistrate Shaffer's statement to counsel (at the settlement conference on August 13, 2007) that the parties needed to bring that issue to this Court's attention. Defendants apologize to the Court, as it stated it was surprised by Defendants' arguments in that regard. However, counsel believed that, for the above reasons, she would not have been advocating in her client's best interests if she had not included that discussion. 2

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LEGAL ARGUMENT AND AUTHORITY I. THE DECISION TO NOT ALLOW FEMALE DEPUTIES TO APPLY FOR AN OPEN POSITION AT METRO IN AUGUST 2002 WAS BASED ON GENDER AS A BFOQ FOR THE JOB OF DEPUTY SHERIFF AT EPSO In their briefing on remand, and below, Defendants argued that gender is a BFOQ for the job of deputy sheriff at EPSO and explained, in great detail, which will only be briefly reiterated herein, the basis for their argument. The Court, in its Order denying Defendants' motion for summary judgment on that issue and granting Plaintiff's motion on the issue, stated that gender was not a BFOQ for the job of deputy sheriff at Metro. The Court reasoned that as Defendants allowed female deputies to guard male inmates, even maximum security male inmates at the El Paso County Criminal Justice Center ("CJC"), and as Defendants admitted it was not for their own safety that female deputies not be allowed to transfer to Metro in August 2002, that therefore gender was not a BFOQ for the job of deputy sheriff at Metro. Understanding that the BFOQ defense is to be construed narrowly, Defendants argue, respectfully, that the Court took too narrow of a view of the BFOQ defense and the case law regarding same. Defendants argued, and the evidence supports, that gender is a BFOQ for the job of deputy sheriff at EPSO period, without regard for whether the deputies are at Metro or CJC. CJC, for obvious reasons, poses the bigger concern for EPSO as it houses both male and female inmates, and therefore both male and female deputies must be staffed there to conduct the duties and functions necessary for the operation of jail facilities. The same is true for staffing male deputies at Metro, where only

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male inmates were housed at that time. It is clear from the undisputed evidence in the record, i.e., the requirements for pat- and strip-searching inmates and guarding inmates, concerns for safety and security, and concerns for privacy, that gender is a necessary consideration and a valid factor in staffing decisions at EPSO. The fact that inmates of both sexes must be pat- and strip-searched thoroughly on a daily, routine basis to ensure no contraband finds its way into the jail facilities, thereby risking the lives of staff and inmates alike, requires EPSO absolutely to make gender-based staffing decisions in order to meet the concerns that go to the very essence of the operation of jail facilities, especially where the facility houses both male and female inmates. These concerns lead to the operational requirement for females and males to staff all three shifts for the various male and female wards at CJC, in order that EPSO can operate its jail facility safely and securely, while balancing those concerns, the concerns of inmate privacy (which also concern security), and the employment rights of the deputies. This operational requirement, and the shortage that existed, at that time, of female deputies - where EPSO was having trouble staffing all three shifts with enough female deputies to meet the operational requirements at the time - led to EPSO's time-limited decision to not allow female deputies to apply for transfers to Metro in August 2002. It is clear from the undisputed evidence, therefore, that gender is a BFOQ for the job of deputy sheriff period, and that it was for this reason that EPSO made the decision relating to Metro in August 2002.

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Respectfully, the language in Title VII is not as limited as the Court's decision. That language specifically provides an employer may discriminate on the basis of "religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise... ." 42 U.S.C. § 2000e-2(e)(1). Further, the Supreme Court has interpreted the BFOQ exception in Title VII to mean that discrimination is permissible only if those aspects of a job that allegedly require discrimination fall within the "essence" of a particular business. See Dothard v. Rawlinson, 433 U.S. 321, 332 (1977). Alternatively, the Supreme Court has interpreted the BFOQ defense to find that an employer can rely on the BFOQ exception as a defense by proving that the very essence of the business operation would be undermined without the gender-based decision. See Bagley v. Watson, 579 F. Supp. 1099 (D. Ore. 1983)(quoting Harris v. Pan American World Airways, 649 F.2d 670, 676 (9th Cir. 1980); see also Torres v. Wisconsin Dept. of Health & Soc. Servs., 859 F.2d 1523, 1528 (7th Cir. 1988) (holding that gender discrimination is permissible where, without it, the essence of the business operation would be undermined). That is what Defendants have shown - that the essence of the business operation of safely and securely operating the jail facilities for both male and female inmates would be undermined if EPSO allowed Plaintiff and other female deputies to apply for transfers to the all-male facility in August 2002. Here, the evidence shows that gender was a BFOQ reasonably necessary to the normal operation of the particular business of operating jail

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facilities for male and female inmates in both Metro and CJC and that this was the basis for the Metro decision. Defendants understand the case law is not factually on all fours with EPSO's unique situation of having one facility, CJC, that houses both male and female inmates of mixedsecurity, and a completely, geographically separate (by several miles) facility, Metro, which (at the time) housed only male, maximum-security inmates. However, the cases can be analogized to EPSO's situation, and this Court can still find gender to be a BFOQ for the job of deputy sheriff for the reasons argued by EPSO and because it is undisputed that that was the basis for the Metro decision in August 2002. It is further undisputed that the policy of gender based staffing assignments at CJC, which was the basis (along with the shortage of female deputies), for the Metro decision, was a policy reasonably necessary to the normal operation of the jail facilities. In Reed v. County of Casey, 184 F.3d 597, 598-99 (6th Cir. 1999), prison officials implemented a policy requiring a female deputy on the third shift and the sole female deputy sued alleging discrimination based on gender. The employer stated that the reason for the shift change was to have a female guard available for performing the duties and responsibilities necessary when female inmates were brought into the facility, i.e., patsearching and strip-searching. Id. The Sixth Circuit held that the "essence" of the jail's function and business operations would be undermined without the presence of a female on the third shift for the intake procedures for incoming female prisoners, and further held,

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therefore, that gender was a BFOQ as it was manifestly related to the jail's ability to lodge and transport prisoners. Id. at 600. That case is analogous to the case herein because the reason that the employer transferred the deputy against her wishes in that case was because of the operational requirement for a female deputy to intake female inmates, for purposes of safety, security, and privacy, which was an administrative necessity. Id. In our case, that EPSO did not allow Plaintiff to apply for a requested transfer was based upon the same reasons. Female deputies were needed at CJC where female inmates were housed for pat- and stripsearching and guarding ­ for purposes of safety, security and privacy ­ and, as there was a shortage of female deputies at the time, this need became an administrative necessity. As such, as in Reed, gender is manifestly related herein to EPSO's ability to operate its jail facilities and its business operations would have been undermined without female deputies on all three shifts in the facility where female inmates were housed. In Robino v. Iranon, 145 F.3d 1109 (9th Cir. 1998), the Ninth Circuit, in granting summary judgment for the defendant-employer, held that gender was a BFOQ reasonably necessary to protect female inmates and to prevent allegations of sexual misconduct. In that case, male guards at a correctional facility sued their employer, alleging a violation of Title VII by the employer's gender-based staffing policy of allowing only females to guard the female inmates. The employer implemented the policy, determining it to be the best policy to protect female inmates' privacy and to prevent allegations of sexual misconduct. The court found that the policy was reasonably necessary to the operation of the business of the corrections facility. Id. at 1111.

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In that case, the gender-based staffing policy of designating certain posts as female only was the reason behind the restriction from allowing male deputies to transfer to posts of their choice. Id. There the court found that the gender based staffing policy was reasonably necessary to protect inmates' privacy interests and reduce unfounded allegations of sexual abuse, and therefore gender was a BFOQ. Id. The court therein stated that it was concerned with a policy that took into account security, rehabilitation and morale. Id. The court held that the legitimate penological interests of safety, security, and privacy outweigh whatever interest the male deputies had in standing the watches of their choice and, further, that the gender-based staffing policy was reasonably necessary to the operation of the jail. Id. The case herein is similar, even though the facts are slightly different. The genderbased staffing policies at EPSO, more prevalent at CJC where both male and female inmates were housed, but also in existence at Metro, were the reason for the necessity of female deputies to be staffed at CJC. Further, it was the reason (along with the staffing shortage) for the Metro decision in August 2002. Gender-based staffing policies were reasonably necessary at EPSO to the normal operation of running the jail facilities - which supports that gender is a BFOQ for the job of deputy sheriff period as held by the Court in Robino. See Id; see also Reed, 184 F.3d at 599. In Healey v. Southwood Psychiatric Hosp., 78 F.3d 128 (3d Cir. 1996), the Third Circuit held that gender was a BFOQ for the job of child care specialist at the defendant psychiatric hospital. In that case, the hospital had a policy of scheduling both males and females to all shifts and considering sex in making its assignments. Id. at 130. The

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hospital re-assigned plaintiff, a female child-care specialist, to the less-desired third shift because a female specialist was needed on that shift. Id. In holding that gender was a BFOQ for the job of child care specialist, the Third Circuit discussed the essence of the psychiatric hospital and discussed that staffing both males and females on all shifts is necessary to provide therapeutic care. Id. at 133. The court stated that if members of both sexes are not on each shift, the hospital's inability to provide basic therapeutic care would hinder the "normal operation" of its "particular business" and therefore it is reasonably necessary to have at least one member of each sex available to the patients at all times. Id. The court held that because of same, the hospital is an institution in which the sexual characteristics of the employee are crucial to the successful performance of the job of child-care specialist and concluded, therefore, that gender is a BFOQ for the job of child-care specialist. Id. at 135. This case, again although not on all fours factually with the case herein, is analogous because the very characteristics of being male or female affects the person's ability to conduct the functions that go to the very essence of operating the particular business. Here, EPSO has argued that throughout, and the evidence supports that that is the case, i.e., that the particular business of running detentions facilities would be undermined without the presence of males and females on each shift, or without the gender-based staffing policies, and that these policies, and the need to have each gender on all three shifts, led to the Metro transfer decision in August 2002. Therefore, despite that the cases are not on all fours with EPSO's unique facts, the bases for the courts' decisions in each are analogous to EPSO's situation and provide support for a finding of

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BFOQ in EPSO's case. As the court in Torres stated, sometimes the courts will have to recognize factors which make a particular operation of an employer unique or at least substantially different from other operations in the same general business or profession. Torres, 859 F.2d 1528. That is the case with EPSO - it is a unique situation where there is a co-ed facility separate and geographically distant from the all-male, maximum security facility. As such, this Court can find gender is a BFOQ for the job of deputy sheriff, period, and not limit its decision to considering only the job of deputy sheriff at Metro. It is clear that gender is a necessary consideration, and therefore a valid qualification, for staffing decisions at EPSO, due to the fact that the necessary functions of a deputy sheriff, pat-searching, strip-searching, and guarding inmates at all times of the day, specifically require considerations that same-sex deputies are available for those same-gender inmates in order to have those functions, which go to the very essence of operating the jail facilities, conducted as thoroughly as possible for the purposes of safety and security, in addition to the privacy of the inmates. The essence of EPSO's business is to operate the jail facilities for both male and female, mixed-security inmates, with the utmost concern for the safety and security of the staff and inmates and the privacy rights of the inmates. This essence would be undermined without the gender-based staffing policies that were the basis for the Metro decision in August 2002. Male deputies cannot thoroughly pat-search female inmates; female inmates cannot thoroughly pat-search male inmates; male and female deputies may not strip-search inmates of the opposite sex; at certain times privacy rights are especially considered, and a deputy of the same sex is necessary at those times to protect privacy rights but, more importantly, to avoid security issues which may arise when privacy rights are not protected. Therefore, the fact of being 10

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one sex or another can actually interfere with the normal operation of the jail facility - being a male undermines his capacity to conduct thorough pat-searches and conduct-strip searches of opposite-sex inmates, period, and being a female undermines her capacity to conduct thorough pat- searches and to conduct strip-searches of opposite-sex inmates. See Everson v. Michigan Dept. of Corrections, 391 F.3d 737, 748-49 (6th Cir. 2004) (citing Torres, 859 F.2d at 1528). Therefore, gender is a BFOQ for the job of deputy sheriff at EPSO. It was for this reason, and the administrative necessity existing at CJC, that EPSO made the gender-based decision relating to Metro in August 2002. Of course, it should be understood that there exists the parallel situation to female deputies being needed where female inmates are housed, i.e., CJC, that it works the same with the Metro facility, where only male inmates were housed. Male deputies, therefore, were needed for that facility to perform the same necessary functions of a deputy sheriff, including pat- and strip-searching, and guarding male inmates. Title VII requires administrative necessity and not merely administrative inconvenience to satisfy the BFOQ exception. Gunther v. Iowa State Men's Reformatory, 612 F.2d 1079, 1087 (8th Cir. 1980). That is, undisputedly, what Defendants have shown here. There was an administrative necessity, exacerbated by the shortage of female deputies at the time, to retain female deputies at CJC where they were needed to conduct the very necessary functions of the job. That the BFOQ defense is to be construed narrowly, as per the case law, is not the same as construing the defense to apply to only one jail facility operated by EPSO. The situation at EPSO is not what Title VII is seeking to proscribe. EPSO absolutely does not discriminate against female deputies and permits them to perform all of the functions of 11

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deputy sheriffs, including guarding both male and female inmates, pat-searching both male and female inmates and strip-searching female inmates. In addition, female deputies can transfer to any section at CJC and get promoted to the highest levels. The fact that EPSO does not limit the duties female deputies can perform, or who they can guard, or limit their assignments, shows that EPSO was not intentionally discriminating against female deputies. Further, the memo in August 2002 was clearly limited to that time frame (the memo specifically states "at this time," EXHIBIT A-11 to Docket No. 112) and was due only to the circumstances existing at that time, i.e., the shortage of the requisite number of female deputies at CJC, where female inmates were housed. EPSO's limited decision in August 2002 not to allow female deputies to transfer to Metro was based on a valid managerial decision in the best interests of the safety and security of the jail facilities. It was based on the circumstances existing at the time as discussed in detail in the briefing. If gender was not a BFOQ for the job of deputy sheriff period, then it would not have mattered how many females were staffed at CJC where the female inmates were housed. If gender was not a BFOQ for the job of deputy sheriff period, then female deputies, as male deputies, would have been considered for positions at Metro in August 2002. Plaintiff has always argued that EPSO's decision was based on stereotyped characterizations of females as the weaker sex, not being able to handle positions at Metro, where the very serious, maximum security offenders were housed. The evidence has never supported that as a consideration, especially in light of the fact that female deputies guard male inmates, including maximum security inmates, at CJC, without limitation. EPSO would not allow for such discrimination based on stereotyped 12

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characterizations of females. EPSO has, as much as is possible in light of operational requirements and the concomitant concerns for safety, security, and privacy and the very awesome task of safely running jail facilities for both male and female inmates, allowed both genders unlimited employment opportunities. The case law in this area is replete regarding the very difficult task faced by prison administrators. See Torres, 859 F.2d at 1528; see also Timm v. Gunter, 917 F.2d 1093, 1099 (8th Cir. 1990). EPSO's decision at that time was, in the best interest of prison safety, security, and inmate privacy, to make sure there were female deputies where they were needed, at CJC, the only location housing female inmates at that time. At the time of Plaintiff's employment at EPSO, the highest non-elected position, Undersheriff, was staffed by a female. Several of Plaintiff's chain of command and other supervisors were female. The Bureau Chief of the entire detentions division, Chief Presley, is female. It is clear that EPSO is not a discriminatory environment and that there was no intent with the Metro decision to discriminate. The only basis for the decision was the very real circumstance of a shortage of female deputies to conduct the necessary functions related to female inmates at CJC. The basis for the Metro decision in August 2002 was absolutely based upon gender as a BFOQ for the job of deputy sheriff, period. As Commander Grayson testified, the situation existing at that time was so dire that it was almost an impossibility, with the staff they already had, to get female deputies to where they needed to be to pat- or strip-search female inmates for entry, reentry, intake and release, and other purposes, again functions necessary several times a day. EXHIBIT A-9 to Docket No. 112 at 48:13-49:9. It appears though that the Court's decision and interpretation of the BFOQ defense is punishing EPSO because it did not utilize stereotypical characterizations of female 13

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deputies in its decision making. It appears from the Court's decision that had EPSO argued the Metro decision was based upon a concern that female deputies could not handle the job of guarding male, maximum security inmates, and/or that the male inmates at Metro had a greater right to privacy than the female deputies had to employment opportunities, this case would be more in keeping with some of the BFOQ case law, and the Court may have found differently. However, as discussed within and in the prior briefing, and as is clear from the evidence, EPSO has not discriminated against female deputies or made staffing or other administrative decisions based on stereotypical characterizations of females -which is what Title VII seeks to proscribe - but rather on the very real differences between the genders. That our facts differ slightly from the very limited BFOQ case law in correctional facilities in that EPSO is not restricting females from Metro because of the conditions at Metro but rather because of the circumstances and requirements at CJC, should not be the reason to reject gender as a BFOQ especially where, as here, it is undisputed that the decision by EPSO was based on gender as a BFOQ for the job of deputy sheriff period. It just happens, at EPSO, that that is more of an issue, and more of a need, at CJC, where both male and female inmates are housed. As the court in Torres stated, sometimes the courts will have to recognize factors that make a particular operation of an employer unique or at least substantially different from other operations in the same general business or profession. Torres, 859 F.2d 1523, 1528. For the foregoing reasons, EPSO should be able to assert the BFOQ defense, and this Court should reconsider its Order denying summary judgment for Defendants on this issue. 14

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II.

THE COURT INCORRECTLY ASSUMED THAT COST HAD ANYTHING TO DO WITH THE SHORTAGE OF FEMALE DEPUTIES AT EPSO IN AUGUST 2002, AND THE RECORD DOES NOT SUPPORT THAT REASONING In its Order, the Court stated that the reason for the shortage of female deputies,

proffered by EPSO as one of the bases for the Metro decision in August 2002, was because of the cost to EPSO of hiring more female deputies and that EPSO was trying to keep its costs low. Order, Docket No. 120, at pp. 17-19. The Court further stated that EPSO's desire to keep costs low was not a good reason possibly to increase Plaintiff's cost (the Court herein analogizing "cost" to Plaintiff's not being able to apply to transfer to Metro). Id. First, that EPSO considered other alternatives to its gender-based staffing decisions was made clear by the previous briefing and will not be repeated here. However, what will be made clear in this motion is that the cost of hiring female deputies was in no way a factor in the Metro transfer decision. Defendants respectfully request the Court reconsider its Order as it relates to this reasoning, because there is no evidence in the record, and there was no argument before it, that cost at all played a factor in the shortage of female deputies in August 2002 (or at anytime), that the shortage was at all caused by a conscious decision on the part of EPSO to keep costs low, or indeed that the shortage was in any way related to any condition within EPSO's control. EPSO has always argued there was a shortage and that was why it could not allow Plaintiff or other females to apply for Metro positions in August 2002. Nowhere in any of the briefing has it ever been stated (or supported) that it was a choice to have the shortage. The very fact that there was a "shortage" infers that it was not a planned circumstance.

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In fact, the evidence from deposition testimony supports that reasons outside the control of EPSO led to the shortage of female deputies in August 2002 and at other various times. Several defense witnesses, including the Sheriff, Undersheriff Goodall, and

Commander Grayson, testified in their depositions that they worked to recruit more female deputy sheriffs and discussed the problems with retention of female deputies. Sometimes EPSO had the full staff complement of female deputies and sometimes not - always for reasons outside the control of EPSO. The Sheriff testified as follows: A. But overall staffing was a problem. And all of our wards or a majority of our wards were overcrowded. And, you know, we were having troubles, problems, difficulties recruiting females at the time. We had started an academy during that time period and our emphasis was to try to bring on more females. I think we began with five or six and one graduated. And in looking at the circumstances of why only one succeeded, two of them just failed to show up, did not show up for work on time. They were weird circumstances. Another one said she could not fire her weapon at a silhouette because when she looked at that silhouette she saw another person and she could not overcome that barrier and felt that she was not meant to work in law enforcement. I think that's a good bet there. And another female said that after going through the training she just couldn't -- she didn't think she could do the job. You know, we were having a challenge trying to recruit more females. And it's not necessarily just time-period specific. It's something that we're constantly trying to do, is get more females into the work force, whether it's holding, you know, evening workshops to try to recruit, try to gain -- get an increased level of interest in the detention environment or the law enforcement environment. There's challenges that we have to try to overcome, one of them being that a lot of the females that have left or that have applied and been accepted and later resign said that the shift work was very difficult and, you know, they 16

Q. A.

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had other priorities. And most of the time it seemed to be family priorities. So it was a challenge. The issue of staffing is driven on accomplishing our mission and meeting our statutory obligations and operating that facility as safely and as securely as we can. And that's how our personnel are deployed. EXHIBIT A-22 to Docket No. 112 at 83:5-84:20. Undersheriff Goodall also testified regarding the shortage of female deputies around August 2002: Q. As I understand the Metro situation, there was a decision made that females could not work in Metro? Female deputies, correct. Female deputies. And why was that decision made? That decision was made because it was a staffing issue. We do not house female inmates at our Metro facility. We were short on female deputies. We had lost just probably four to five female deputies in a two-week period for various reasons. Some relocating, and some others I can't remember.

A. Q. A.

EXHIBIT A-4 to Docket No. 112 at 8:12-22. And, Commander Grayson testified: Q. And as I am understanding it, EPSO has a shortage, almost always, if not always, of female deputies in the prisons . . .?

.... A. It fluctuates. There have been times when there was sufficient numbers. It is not as bad today as it has been in the past. But it is certainly something that we are always looking to retain.

EXHIBIT A-9 to Docket No. 112 at 19:20-20:4.

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It is clear from this undisputed testimony, again Plaintiff never argued that there was a cost reason behind the shortage, that the shortage in or about August 2002 was based on circumstances outside of the control of EPSO: female deputies' relocating, not graduating from the academy for various reasons, having concerns with shift work, etc., and that EPSO was trying to recruit more female deputies and retain same. It is clear that cost did not play a factor in the shortage - it was not a conscious decision not to have the full staff complement of female deputies at CJC. This is made further clear by the defense witnesses' discussion regarding the operational requirements of CJC and how it was almost an impossibility at times to meet the requirements. Therefore, to the extent the Court based its decision on that finding, the Court, respectfully, should reconsider its Order. CONCLUSION In conclusion, Defendants respectfully request the Court reconsider its Order of June 30, 2008. The Court should give EPSO more latitude on this issue because of EPSO's history and because of the undisputed facts that EPSO does not discriminate against female deputies but, rather, allows female deputies to perform all of the duties of a deputy sheriff, including guarding both male and female inmates, both minimum and maximum security - and that it is further clear that there was no intent on EPSO's part to discriminate - as Undersheriff Goodall stated, absent the shortage of female deputies at that time, females could have applied for those Metro positions. Rather, the decision was based on administrative necessity, and, absent the decision, the very operation of EPSO would have been undermined.

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Further, the evidence supports that gender is a BFOQ for the job of deputy sheriff at EPSO, period, and is made more of an administrative necessity by the particular job of operating both male and female jail facilities together. The Court found that it was not a BFOQ for the job of deputy sheriff at Metro. However, that, respectfully, is a very narrow reading of the case law and the law supporting gender as a BFOQ. The important thing to note, and the analogy to the BFOQ cases cited by Defendants, is that the decision in August 2002 not to allow female deputies to apply for transfers to Metro was based upon gender being a BFOQ for the position of deputy sheriff period, which was especially clear at CJC where there was a mixture of both male and female inmates. Finally, the cost of hiring more female deputies was not a consideration whatsoever related to the shortage of female deputies in August 2002. Plaintiff never argued that, and there is no evidence in the record to support same. The record, as discussed, is very different and supports a true shortage of female deputies for reasons outside of the control of EPSO. WHEREFORE, for all the foregoing reasons, the Court should reconsider its Order and grant summary judgment for Defendants on the BFOQ issue. Respectfully submitted,

Date: July 14, 2008

s/ Jessica Kyle Muzzio Gordon L. Vaughan Jessica Kyle Muzzio VAUGHAN & DeMURO 111 South Tejon, Suite 410 Colorado Springs, CO 80903 (719) 578-5500 (phone) (719) 578-5504 (fax) [email protected] (e-mail) 19

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and Andrew C. Gorgey First Assistant County Attorney OFFICE OF THE COUNTY ATTORNEY OF EL PASO COUNTY, COLORADO 27 East Vermijo Avenue Colorado Springs, CO 80903 (719) 520-6485 (phone) (719) 520-6487 (fax) [email protected] (e-mail) ATTORNEYS FOR DEFENDANTS REQUEST FOR ORAL ARGUMENT Defendants request oral argument on this motion before the Court. Defendants believe that based on the importance of this issue and motion to the overall case that oral argument is necessary to discuss in person the arguments herein and evidence in support of same and to help clarify the relevant positions of the parties.

CERTIFICATE OF SERVICE I hereby certify that on this 14th day of July, 2008, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Stefan Kazmierski [email protected] Andrew C. Gorgey [email protected]; [email protected] and I hereby certify that the foregoing was placed in the U.S. Mail, postage prepaid, and addressed to the following:

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Case 1:03-cv-02311-EWN-CBS

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Filed 07/14/2008

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[none] s/ Jessica Kyle Muzzio Gordon L. Vaughan Jessica Kyle Muzzio VAUGHAN & DeMURO 111 South Tejon, Suite 410 Colorado Springs, CO 80903 719-578-5500 (phone) 719-578-5504 (fax) [email protected] (e-mail) ATTORNEYS FOR DEFENDANTS

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