Free Reply to Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:03cv2311-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.

REPLY IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

COMES NOW the plaintiff, Linda M. Piercy, by and through her attorney, Stefan Kazmierski, of McNamara, Roseman, Martínez & Kazmierski, L.L.P. and for her Reply in Support of Plaintiff's Motion for Summary Judgment, states: The parties have filed cross motions for summary judgment and the pleadings include: Defendants' Motion to Dismiss, or in the Alternative, Motion for Summary Judgment on Remand (Dkt. 112, October 22, 2007, 36 pages without exhibits); Plaintiff's Motion for Summary Judgment (Dkt. 113, October 22, 2007, 25 pages without exhibits); Defendants' Response to Plaintiff's Motion for Summary Judgment (Dkt. 114, November 13, 2007, 41 pages without exhibits); Response to Defendants' Motion to Dismiss, or in the Alternative, Motion for Summary Judgment on Remand 1 (Dkt. 115, November 14, 2007, 21 pages without exhibits) and

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Defendants allege at footnote 1 of their Reply that Plaintiff's Response was filed one day late because it was filed on November 14, 2007. D.C.Colo.LCivR 5.6 refers to Fed.R.Civ.P. 6 for computation of deadlines. Fed.R.Civ.P. 6(e) adds three days to the 20-day filing period for a response, making the Response due November 14, 2007. Similarly, this Reply is due on Monday,

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Defendants' Reply in Further Support of their Motion to Dismiss, or in the Alternative, Motion for Summary Judgment 2 (Dkt. 116, November 28, 2007, 39 pages without exhibits). Plaintiff incorporates all her earlier briefs in this brief so as to avoid re-argument of issues in this brief. Throughout its briefs, defendants argue that EPSO's experience dictates its course of action and that it should be given deference in its staffing decisions. Plaintiff agrees that EPSO's administrators should be given deference in the operation of its jails in matters in which it can demonstrate that it has experience and where it can demonstrate a grounded basis for its policies. With respect to the Metro Jail transfer policy that the 10th Circuit found was discriminatory on its face, however, defendants have relied solely on its own stereotypical notions of female behavior that is not supported in any documentation in the record. Defendants rely solely on self-serving, unsupported affidavits and testimony, while the survey conducted by the Plaintiff and the studies produced by the defendants and by the plaintiff all contradict EPSO's claims that its policy is based on something more than stereotypes.

December 3, 2007, because 15 plus 3 days after defendants' Response falls on Saturday, December 1, 2007. Though this error is minor, Defendants argument here is emblematic of its misreading and misunderstanding of case law, and use of misleading statements throughout its briefs. 2 Also illustrative of defendants' misreading and misunderstanding of case law is defendants' confusing argument at page 37 of its Reply, declaring that the 10th Circuit did not decide "whether a transfer to Metro would be purely a lateral transfer," but instead "specifically stated that summary judgment was precluded on the issue of whether a transfer to Metro would be purely a lateral transfer." Even after conceding that the 10th Circuit found that summary judgment on the Metro transfer issue would be inappropriate, defendants continue to argue that the effect of the Metro transfer was de minimus, claiming some sort of unexplained distinction in terminology on whether the lateral transfer imposed de minimus restrictions. The 10th Circuit could not have been more clear, as noted at page 6 of plaintiff's Response, Dkt. 115, when it held: "We think the differences in duties between the two prisons are sufficiently substantial to preclude the district court's finding that a transfer to Metro from CJC would be purely lateral." 2

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Perhaps most illuminating on its claims for support for its stereotypical notions of female behavior is its argument beginning at page 29 of its Response, Dkt. 114, titled, "EPSO WAS NOT REQUIRED TO BASE DECISIONS ON EMPIRICAL OR OBJECTIVE DATA." Of course, defendants must make this argument because they in fact have no objective or empirical support for EPSO's stereotypical notion of female behavior. Further, EPSO has no objective or empirical support for the need for its facially discriminatory policies. Like the olden arguments that females could not be effective police officers, jailors or even lawyers, EPSO's rationale for its facially discriminatory policies must be relegated to the garbage heap of historic stereotypes. Defendants argue that its experience shows that female inmates will complain more when a male deputy is assigned to a female ward, than male inmates will complain over a female deputy assigned to the male ward. But defendants have not produced a single complaint by any female inmate related to a male deputy being assigned to a female ward. Further, defendants fail to explain how they have any experience in this area whatsoever since they admit that a single male deputy has not been assigned to a female ward since 1990. Dkt. 116, page 13. Sheriff Maketa first came to work at EPSO in 1987. Simply put, defendants' claims of experience in this area are belied by the facts and evidence in this case. Despite failing to actually produce any of its alleged research in this area, Defendants continue at page 30 of its Response that its witnesses have indeed researched these issues and concluded that EPSO's facially discriminatory policies are appropriate to the operation of its jail. But the only research by the parties in the record is the survey done by plaintiff that shows that EPSO's policies are out of step with the vast majority of Colorado counties surveyed. EPSO relies on the self-serving, conclusory affidavits of its own witnesses only. It has long been established that conclusory allegations and self-serving affidavits cannot create evidence to 3

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withstand summary judgment. See Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir.1995) (conclusory allegations and self-serving affidavits, without support in the record, do not create a triable issue of fact). "[G]eneralized, conclusory, unsubstantiated, non-personal affidavits are insufficient to successfully oppose a motion for summary judgment." Stevens v. Barnard, 512 F.2d 876, 879 (10th Cir.1975). Cf. Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th Cir.1989) ("a party to a lawsuit cannot ward off summary judgment with an affidavit or deposition based on rumor or conjecture"). See also American Express Financial Advisors, Inc. v. Topel, 38 F.Supp.2d 1233, 1242 (D.Colo.1999) (noting that conclusory allegations not supported by specific facts cannot defeat a properly supported motion for summary judgment); Maier-Schule GMC, Inc. v. General Motors Corp., 154 F.R.D. 47, 59 (W.D.N.Y.1994) (holding that a non-moving party may not rely on inadmissible evidence to avoid summary judgment). The hazards of relying on conclusory and self-serving affidavits can best be illustrated by looking to the contradictory testimony of defendants' own witnesses. Lt. Goodell testified that he prepared a PowerPoint presentation with his research and statistics (that has never been produced). The statistics that Lt. Goodell recalled from his PowerPoint presentation indicates that there is an even distribution of complaints by and against male and female prisoners and officers. Lt. Goodell deposition, 20;2. Exhibit 11, Dkt. 113. Further, Lt. Goodell only knew of lawsuits by male prisoners against female deputies. Lt. Goodell deposition, 16;14 to 17;6. Exhibit 11, Dkt. 113. When asked what conclusions could be drawn from his research, Lt. Goodell admitted what plaintiff has been claiming all along: In my opinion, what it tells me is that good training of our employees reduces those sexual harassment complaints. That good procedures reduces those sexual complaints. And that good supervision and leadership reduces those. It seems to 4

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me, in my opinion, and from doing the research, is those facilities that didn't have good training, that didn't have good leadership and clear policies on sexual harassment ended up in trouble. Those that didn't would end up there. So, that is my opinion. Goodell Deposition, 20;19 to 21;3. Exhibit 11, Dkt. 113. Still, despite his testimony of the nature of the statistics his PowerPoint presentation contained (that was never produced), Lt. Goodell testified, "My opinion is around the country that there has been less lawsuits filed by inmates against females, but a lot of them against males working female wards. The males don't have a tendency to maybe file a lawsuit that the females make. And that is just my opinion." Lt. Goodell deposition, 16;2-7. Exhibit 11, Dkt. 113. Further undercutting the argument that EPSO has practical experience indicating that females complain more than males is Sheriff Maketa, who testified that EPSO has never formally compared the numbers of male versus female prisoner complaints. Sheriff Maketa deposition, 45;1 to 45;15; 47;16 to 48;19. Exhibit 15, Dkt. 113. Sheriff Maketa also admitted that there have been instances of misconduct by both male and female deputies with respect to prisoners. Sheriff Maketa deposition, 45;16 to 46;14. Exhibit 15, Dkt. 113. Sheriff Maketa even worked female wards when he worked as a ward deputy, but he was never accused of improprieties. Sheriff Maketa deposition, 39;5 to 40;5. Exhibit 15, Dkt. 113. Chief Presley contradicted Lt. Goodell when Chief Presley testified that no formal research study or project was conducted on assigning male deputies to female wards. Dkt. 116, Page 23. Again, generalized, conclusory and unsubstantiated affidavits are insufficient to successfully oppose a motion for summary judgment. In this case, the affidavits even present contradictory hearsay evidence.

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Even the anecdotal evidence testified to by defendants' witnesses do not support defendants' contention that female inmates complain more than male inmates. Sgt. Kortrey was unable to give any specific examples of allegations by female prisoners against male deputies. Sgt. Kortrey deposition, 50;15-19. Exhibit 14, Dkt. 113. Sgt. Kortrey was aware of only one allegation of inappropriate touching that did not even occur in a ward. Sgt. Kortrey deposition, 51;4-13. Exhibit 14, Dkt. 113. Commander Grayson was unable to provide any specifics on any allegation of misconduct, except that he noted that female inmates generally complain anytime they are searched by anyone. Commander Grayson deposition, 11;14 to 12;1. Exhibit 12, Dkt. 113.He testified about a joint study commissioned by several agencies, but then testified that he was aware of only two or three complaints against male deputies and that he was not certain where or how they occurred since they predated his tenure at EPSO. Commander Grayson deposition, 714, 40-42. Exhibit 12, Dkt. 113. Undersheriff Goodall could only recall one specific incident that occurred in 1996 when a female inmate was being transported to court. Undersheriff Goodall deposition, 9;22 to 10;10; 22;6 to 24;17. Exhibit 10, Dkt. 113. Sergeant Whitney recalled hearing of only one complaint "a few years back," involving sexual relations between a male deputy and female inmate not in the ward, but in the laundry room. Sergeant Whitney deposition, 52-53. Exhibit 16, Dkt. 113. At most, without the data, reports and research that EPSO's witnesses claims was conducted, but which EPSO has failed to produce, we are left with a total of three complaints by female inmates since at least 1987, when Sheriff Maketa first came to work for EPSO. This is hardly the stuff upon which a jail administrator can claim as support for facially discriminatory 6

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practices. Rather, defendants' opinions are based on rumor or conjecture and are conclusory allegations based on self-serving affidavits and testimony without support in the record. These opinions do not create a triable issue of fact. Stevens v. Barnard, 512 F.2d 876, 879 (10th Cir.1975); Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th Cir.1989); American Express Financial Advisors, Inc. v. Topel, 38 F.Supp.2d 1233, 1242 (D.Colo.1999); MaierSchule GMC, Inc. v. General Motors Corp., 154 F.R.D. 47, 59 (W.D.N.Y.1994). Defendants also argue that safety and privacy concerns establish that sex is a BFOQ for not allowing females to transfer to Metro. It must first be noted that these alleged safety and privacy concerns came from the affidavits supplied by defendants, but not from their direct testimony. These alleged concerns are argument supplied by counsel and not the fact witnesses to this case. Defendants even cite to Lt. Goodell's testimony in their Reply where he makes clear that fear of complaints by female inmates was the only consideration for EPSO's policies. Dkt. 116, page 28. More importantly, though, the defendants do not explain why safety and privacy concerns are even an issue on the Metro transfer policy. Defendants admit that EPSO assigns two male deputies to female wards and that female deputies are assigned to male wards, so how can privacy be an issue here? Why does a female inmate have no privacy concerns with two, as opposed to one male deputy? The only safety concern that defendants have raised is with pat and strip searches, but again, why is this not a concern when two male deputies are assigned to a female ward? Why is this not a concern when a single female deputy is assigned to a male ward? Clearly, the only true reason for the Metro transfer policy is the reason testified to by the fact witnesses, namely, that female inmates in a county jail will complain more than male inmates in a county jail.

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Defendants again cite to Jennings v New York State Office of Mental Health, 786 F.Supp 376 (S.D.N.Y. 1992), aff'd, 977 F.2d 731 (2nd Cir. 1992) for the proposition that empirical data is not needed to support facially discriminatory policies. First, Jennings was a case involving practices at a mental health facility and it specifically distinguished its holding from correctional facility cases, recognizing the special status of correctional facility cases: "However, we find the correction cases to be inapposite. MHPC is not a correctional facility." 786 F.Supp at 384. More importantly, however, the parties in Jennings went into a detailed analysis of the practices of the mental health facility in order to determine whether the gender-staffing policy was the least restrictive method to respect the patients' privacy rights. There also was evidence that the mental health facility explored reasonable alternatives to its practices. In this case, there is no evidence that EPSO ever explored reasonable alternatives to its discriminatory practices. EPSO's reasons for its discriminatory practices are based solely on rumor and conjecture, and unsupported, conclusory and stereotypical opinions. Defendants argue at page 36 of their Response that its research supports it facially discriminatory practices and that "[m]any more such research and materials ... have in the past been reviewed by command staff [but has] not been located." Of course, legal argument alone is insufficient to successfully oppose a motion for summary judgment. Further, the survey actually conducted and in the record does not support the claimed need for EPSO's facially discriminatory policy. And finally, as demonstrated in Plaintiff's Response, Dkt. 113, page 22, the internet research and documents produced by EPSO do not support its claims of stereotypical female behavior. In fact, not a single publication even mentions fear of complaints by female inmates as a reason for any policy in any jail or prison anywhere.

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Defendants cite to Turner v Safley, 482 U.S. 78 (1987) to argue that EPSO must be given deference and be allowed "to adopt innovative solutions to the intractable problems of prison administration." Plaintiff does not argue with this broad proposition, except that in this case EPSO has not engaged in any innovative solution to any problem, since the problem it has identified is based on conjecture, rumor and stereotypes. Further, application of the principles of Turner to this case requires this Court to grant summary judgment to plaintiff. The Supreme Court in Turner considered whether Missouri inmate-to-inmate correspondence regulations was reasonably related to legitimate security concerns, and whether a Missouri inmate marriage regulation, which prohibited inmates from marrying other inmates or civilians unless prison superintendent determined that there were compelling reasons for marriage, was reasonably related to any legitimate penological objective. The Supreme Court carefully considered the admissible evidence in the record to conclude that the inmate correspondence regulations were reasonable and valid, but that the regulation prohibiting marriage was facially invalid under the reasonable relationship test. The prison officials in Turner contended that the marriage regulations served security concerns by preventing "love triangles" that may lead to violent inmate confrontations. The Supreme Court found that the record did not support these concerns, despite evidence from prison officials to the contrary. The Court found that the regulation represented an "exaggerated response" to claimed security objectives. The Court also found that the regulation was not reasonably related to the prison officials' articulated rehabilitation goals. Here, as in Turner, the prohibition against allowing women to transfer to and work in Metro is an "exaggerated response" to claimed security objectives. There is no basis to the claim that women inmates complain more than male inmates and that therefore men cannot be allowed 9

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to serve as deputies in female wards without a chaperon. EPSO also has not shown that it has explored any alternatives to a broad ban on female employment assignments, such as assigning a roving female deputy, or only one deputy per shift. EPSO has come forward with no examples of the sorts of fears it is attempting to avoid, except through unsupported and self-serving affidavits. EPSO's policy of not allowing females to work in or transfer to Metro is an "exaggerated response" to an imaginary problem that would not be upheld under the principles set out in Turner. Defendants also point to Torres v Wisconsin Dept. of Health, 859 F.2d 1523 (7th Cir. 1988) for the proposition that "objective, empirical evidence" is not necessary to support its facially discriminatory policy. A close reading of Torres supports a finding that the policy at issue in this case is not valid and cannot withstand summary judgment. In Torres, male correctional officers at a women's maximum security prison brought a sex discrimination suit when the maximum security facility at issue there determined to employ only female correctional officers in the living units. The district court found that prison officials failed to establish that sex was a valid BFOQ. The court of appeals affirmed. After granting rehearing en banc, the Court of Appeals held that the prison officials were asked to meet an unrealistic, and therefore unfair, burden when they were required to produce empirical studies displaying the validity of their theory that rehabilitation of inmates in women's maximum security facility would be enhanced by employing only female correctional officials in certain positions. The court so held in view of absence of empirical studies, and it found that the efforts of the prison officials should have been evaluated on basis of totality of the circumstances as contained in the entire record. "In this case, there was general agreement among the parties and the district court that such material [empirical studies] simply did not exist." Torres at 1532. Because no studies on the issue under 10

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consideration in Torres even existed, the court found that it was unrealistic and therefore unfair to require the production of objective evidence, either from empirical studies or otherwise. After finding there were no studies available, the 8th Circuit then noted: Finally, we emphasize that it would be a mistake to read our decision today as a signal that we are willing to allow employers to elude Title VII's requirements simply by arguing that they were "innovating." Rare is the employment situation in which an employer could argue that gender-based distinctions are a "reasonably necessary" approach to innovation in one's business. We hold only that, given the very special responsibilities of these defendants and the obvious lack of guideposts for them to follow, it was error to require that they adopt only a course that was subject to objective validation. Torres at 1532-33. Torres was then remanded for additional evidence. In this case, there is a survey in the record by plaintiff establishing that the practices that plaintiff sought are widely practiced. That survey refutes defendant's notions of female behavior and claims of administrative burdens. In this case, the record contains studies that support plaintiff's claims and do not even mention, much less give consideration to, defendants' notions of female inmate behavior. Defendants have not established that "rare" employment situation to carrying its BFOQ burden of proof. Even if there was a need for sex specific duties, EPSO's perceived needs may have been satisfied by a less discriminatory alternative. This case does not concern a maximum security women's prison as did Torres, but concerns county jails. There were four female deputies on plaintiff's shift when she was terminated, five female deputies on the midnight shift and four working on the day shift. EPSO has not produced any evidence that it considered whether its operations could be conducted with only one to two females on any given shift. See Piercy Affidavit, paragraph 18, Exhibit 7, Dkt. 113. Had it done so, then there would have been sufficient females to address EPSO's safety and privacy concerns, and there would have been no need for a complete ban on female transfers to Metro. To simply declare, based on

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rumor and conjecture, and conclusory and stereotypical opinions, that female deputies may not work a certain shift or location, without exploring less onerous alternatives, is the very essence of discrimination that Title VII was meant to remedy. Summary judgment in favor of the plaintiff is required. Respectfully submitted this 3rd day of December 2007. s/Stefan Kazmierski Stefan Kazmierski McNamara, Roseman, Martinez & Kazmierski, L.L.P. 1640 E. 18th Ave. Denver, CO 80218-1202 303-333-8700, Ext. 5 Fax 303-331-6067 Email: [email protected] Attorney for Plaintiff Piercy Certificate of Service I hereby certify that on December 3, 2007, 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 email addresses: Gordon L. Vaughan at [email protected] Jessica K. Muzzio at [email protected] Andrew C. Gorgey at [email protected] s/Stefan Kazmierski Stefan Kazmierski McNamara, Roseman, Martinez & Kazmierski, L.L.P. 1640 E. 18th Ave. Denver, CO 80218-1202 303-333-8700, Ext. 5 Fax 303-331-6067 Email: [email protected] Attorney for Plaintiff Piercy There were no required privacy redactions. This digital submission has been scanned for viruses with the most recent version of McAfee VirusScan Enterprise 8.5.0i, updated daily and, according to the program, is free of viruses.

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