Free Response to Motion - District Court of Colorado - Colorado

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

Document 115

Filed 11/14/2007

Page 1 of 21

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-2311-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.

RESPONSE TO DEFENDANTS' MOTION TO DISMISS, OR IN THE ALTERNATIVE MOTION FOR SUMMARY JUDGMENT ON REMAND

COMES NOW the plaintiff, Linda M. Piercy, by and through her attorney, Stefan Kazmierski, of Roseman & Kazmierski, LLC, and for her Response to defendants' Motion To Dismiss, or in the Alternative Motion for Summary Judgment on Remand, states: RESPONSE TO STATEMENT OF UNDISPUTED MATERIAL FACTS 1. Admit. 2. Admit. 3. Admit. 4. Admitted, though plaintiff disputes the reasons given for her termination and denies that she was dishonest, disobeyed orders or violated the uniform policy. 5. Admit. 6. Admit.

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

Document 115

Filed 11/14/2007

Page 2 of 21

7. Admit that the job description cited by EPSO contains many of these duties and that a detentions deputy sheriff is responsible for the care, custody and control of inmates generally. A detentions deputy is not responsible, however, for the custody and control of staff at CJC, as suggested. 8. Admit. 9. Plaintiff admits that CJC contained both male and female inmates, however, it generally held more maximum security inmates than Metro. CJC had two felony wards when Plaintiff was employed at EPSO, but other wards at CJC also held felons. Since Metro was an indirect supervision facility, it was less stressful to work than CJC. 10. Plaintiff has no direct knowledge as to the specific date that Metro closed or where the inmates transferred. These facts are irrelevant to resolution of this Motion. 11. Plaintiff has no direct knowledge as to the nature, number or supervision of the wards at CJC. These facts are irrelevant to resolution of the Motions for Summary Judgment. 12. Plaintiff has no knowledge as to the specific number of deputies and inmates at EPSO. 13. Plaintiff has no direct knowledge as to the specific number of wards at EPSO today. These facts are irrelevant to resolution of the Motions for Summary Judgment. 14. Plaintiff has no direct knowledge as to the specific number of deputies assigned to each shift and ward today. 15. Plaintiff has no direct knowledge as to the specific number of female deputies assigned to each shift and ward today. Plaintiff asserts that only on duty one female per shift is required to meet EPSO's "operational requirement." 16. Plaintiff has no direct knowledge as to the specific number of female deputies assigned to each shift and ward today. Plaintiff asserts that only one female per shift is required to meet 2

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

Document 115

Filed 11/14/2007

Page 3 of 21

EPSO's "operational requirement." There is no operational requirement that two males be assigned to a female ward, when only one female deputy is assigned to a female ward. EPSO's belief that two male deputies are required for the same job duties that can be handled by one female deputy is illogical and discriminatory. 17. Plaintiff has no direct knowledge as to the specific number of female deputies assigned to each shift and ward today. At the time that Plaintiff was employed by EPSO, female deputies were prohibited from working in or applying for transfer to Metro. Metro was an all male direct supervision facility that was less stressful, less noisy and safer to work than CJC since it was a direct supervision facility. 18. Plaintiff admits that when she was employed at EPSO, females regularly worked alone on a shift, except in Metro, where female deputies were prohibited. See Sheriff Maketa Deposition, pg. 41:13-18, Exhibit A-22 to Dkt. 112. Metro was an all male direct supervision facility that was less stressful to work than CJC. 19. Plaintiff has no knowledge of the pat search policies at EPSO today. Plaintiff admits that male and female deputies are trained in pat searching procedures and that male and female deputies are able to conduct a through pat search of both male and female inmates, and that street deputies routinely pat search both male and female suspects. Plaintiff also admits that EPSO never conducted pat searches under a camera as a less restrictive alternative to barring male searches of female inmates. See, Commander Grayson Deposition, 12:19 to 13;12, Exhibit A-9 to Dkt. 112. 20. Plaintiff has no knowledge of the strip-search policies at EPSO today. 21. Plaintiff has no knowledge as to the length of assignments of deputies today.

3

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

Document 115

Filed 11/14/2007

Page 4 of 21

22. Plaintiff has no direct knowledge of the specific policies at CJC today, but when she was employed at EPSO, female deputies were prohibited from working in and applying for transfer to Metro. See Sheriff Maketa Deposition, pg. 41:13-18, Exhibit A-22 to Dkt. 112. Metro was an all male direct supervision facility that was less stressful, less noisy and safer to work than CJC. Plaintiff admits that there was no prohibition against male deputies transporting female inmates alone, or female deputies transporting male inmates alone. 23. Plaintiff has no direct knowledge of the shift bidding policies at EPSO today, but admits that when she worked at EPSO, male deputies bid against male deputies for shifts and female deputies bid against female deputies for shifts. Because of the discriminatory procedures in place at EPSO, male deputies with far less seniority were given preferred shifts over female deputies. See Piercy Affidavit, paragraphs 11-14, Exhibit 7 to Dkt. 113. 24. Plaintiff is not certain of the exact dates that Commander Presley was employed or promoted at EPSO, but admits that Commander Presley was in Plaintiff's chain of command while she was employed at EPSO. 25. Plaintiff admits that the referenced memo was issued by EPSO and that female deputies were not permitted to transfer to or work in Metro. See Sheriff Maketa Deposition, pg. 41:13-18, Exhibit A-22 to Dkt. 112. 26. Plaintiff has no knowledge of the compensation earned by other deputies at EPSO. Plaintiff admits that she was prohibited from working at Metro solely because she is a female. See Sheriff Maketa Deposition, pg. 41:13-18, Exhibit A-22 to Dkt. 112. Plaintiff denies that she was given the same shift bidding opportunities as male deputies, since male deputies with far less seniority were able to bid preferred shifts because of EPSO discriminatory employment policies. See Piercy Affidavit, paragraphs 11-14, Exhibit 7 to Dkt. 113. Further, EPSO discriminatory 4

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

Document 115

Filed 11/14/2007

Page 5 of 21

employment policies may have restricted her promotion abilities since she was not permitted to work Metro and had less broad experience than male deputies. 27. Admit. 28. Plaintiff was not permitted to work in Metro solely because she was female, and therefore she has no direct knowledge of the job duties for male deputies at Metro. Plaintiff admits that she was capable and willing to perform the same job duties as male deputies and admits that she was prohibited from performing those same job duties because she is female. 29. Admit. 30. Plaintiff admits that Commander Grayson provided a memorandum to her as described and that the memorandum declined to discuss the reasons why female deputies were not able to perform the same job duties as males. The only reason provided to plaintiff for not being able to perform the same job duties as male deputies was fear of complaints by female inmates if male deputies were assigned to a female ward. No person ever explained why the other jails in Colorado were able to avoid the alleged increase in female inmate complaints claimed by EPSO. 31. Admit. 32. Plaintiff admits that Lieutenant Goodell submitted a complaint to IA soon after plaintiff complained of sex discrimination, but she denies that she was guilty of any of the matters complained of Lieutenant Goodell. 33. Plaintiff admits that she was discharged and admits that one person in her chain of command disagreed with her discharge. Plaintiff denies that she committed any violations as alleged, and denies that her termination was warranted. 34. Plaintiff admits that she was notified of her termination by a letter. 35. Admit. 5

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

Document 115

Filed 11/14/2007

Page 6 of 21

36. Plaintiff admits that she met with Sheriff Maketa and admits that she requested a polygraph by EPSO and also presented the results of a polygraph that she took that showed she was truthful. Plaintiff admits that Sheriff Maketa refused to administer a polygraph to her and that he refused to consider her polygraph and that he upheld plaintiff's discharge. 37. Plaintiff admits that she was notified of her termination by a letter that was delivered by two deputies to her son at her home. 38. Admit. 39. Admit. ARGUMENT I. THE LATERAL TRANSFER ISSUE HAS ALREADY BEEN DETERMINED BY

THE TENTH CIRCUIT AND CANNOT BE REARGUED Commencing at page 25 of its Motion, defendants argue that the transfer to Metro would have been a lateral transfer and not an adverse employment action. The 10th Circuit has already been decided this issue in this case: Even if we were to analogize this case to Sanchez [v. Denver Public Schools, 164 F.3d 527 (10th Cir. 1998)] and its language regarding lateral transfers as the district court did, we are not convinced the case before us constitutes a truly "lateral transfer" where the job duties were substantially the same such that no adverse employment action occurred. Piercy claims EPSO's policy preventing any female from transferring to Metro materially discriminated against her and the other women deputies, and that, as a consequence, they were ineligible for work in Metro. Piercy points to evidence in the record (1) that work in Metro would be less arduous and stressful than CJC due to the indirect nature of supervision, and (2) that the opportunity to work Metro shifts increased her chances of obtaining additional job and leave flexibility. 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. Summary judgment was improperly granted on whether Piercy's inability to transfer to Metro Jail was an adverse employment action.

6

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

Document 115

Filed 11/14/2007

Page 7 of 21

Piercy v Maketa, 480 F.3d 1192, 1205 (10th Cir. 2007). Inexplicably, defendants reargue the lateral transfer issue and even cite to Sanchez v. Denver Public Schools, though the 10th Circuit specifically distinguished that case in its opinion this case. The law of the case doctrine and mandate rule prohibits reargument of the lateral transfer issue. The law of the case "doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Arizona v. California, 460 U.S. 605, 618, 75 L. Ed. 2d 318, 103 S. Ct. 1382 (1983). The doctrine has particular relevance following a remand order issued by an appellate court. "When a case is appealed and remanded, the decision of the appellate court establishes the law of the case and ordinarily will be followed by both the trial court on remand and the appellate court in any subsequent appeal." Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1183 (10th Cir. 1995). The law of the case doctrine is intended to prevent "continued re-argument of issues already decided," Gage v. Gen. Motors Corp., 796 F.2d 345, 349 (10th Cir. 1986), and to preserve scarce court resources-to avoid "in short, Dickens's Jarndyce v. Jarndyce syndrome." McIlravy v. Kerr-McGee Coal Corp., 204 F.3d 1031, 1035 (10th Cir. 2000). An "important corollary" to the law of the case doctrine, "known as the `mandate rule,' provides that a district court must comply strictly with the mandate rendered by the reviewing court." Ute Indian Tribe v. Utah, 114 F.3d 1513, 1520-21 (10th Cir. 1997) (internal quotation omitted); see also Mason v. Texaco, Inc., 948 F.2d 1546, 1553 (10th Cir. 1991) ("Under the `law of the case' doctrine, the district court may not deviate from the appellate court's mandate."). Huffman v Saul Holdings, 262 F.3d 1128, 1132 (10th Cir. 2001). The parties in the appeal to the 10th Circuit briefed the argument that a transfer to Metro was a lateral transfer and not an adverse employment action. The 10th Circuit explicitly rejected that argument. This Court should simply ignore pages 25 through 33 of defendants' Motion. II. DEFENDANTS HAVE NO SUPPORT FOR THEIR BFOQ ARGUMENTS EXCEPT IN THEIR STEREOTYPICAL NOTIONS OF FEMALE BEHAVIOR

7

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

Document 115

Filed 11/14/2007

Page 8 of 21

Plaintiff agrees that jail administrators should have broad discretion in handling staffing issues in jails. But the broad discretion afforded to jail administrators cannot be absolute and unquestioning, especially when dealing with facially discriminatory policies such as the Metro transfer policy at issue. A jail administrator must have a legitimate basis for its operations. Defendants' only stated rationale for its facially discriminatory policy is that female inmates complain more than male inmates and if male deputies were assigned to female wards, without a chaperone, they would be overwhelmed by complaints of improper conduct by the male deputies. Though defendants now argue through counsel that vague safety or privacy concerns also caused the need for prohibiting female deputies from working at Metro, the witnesses testified otherwise. Both Chief Presley and Undersheriff Goodall could only name the potential for complaints by female inmates as the sole reason for not assigning male deputies to female wards. See Chief Presley Deposition, pgs. 28-30, Exhibit A-7 to Dkt. 112; Undersheriff Goodall Deposition, pgs. 9:23 to 12:9, Exhibit A-4 to Dkt. 112. On the other hand, defendants believe that female deputies may be assigned to male wards, without a chaperone, because male inmates do not complain as much as female inmates. These stereotypical notions have no basis in fact and they cannot be used to deprive female deputies of equal employment opportunities utilizing facially discriminatory policies. Defendants have failed to produce any documentary evidence that female inmates complain more than male inmates and that assigning a male deputy to a female ward, without a chaperone, would result in an avalanche of complaints of inappropriate behavior by male deputies. Defendants were requested in discovery to produce:

8

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

Document 115

Filed 11/14/2007

Page 9 of 21

4. All materials, studies or research articles reviewed by Commander Presley regarding cross-gender guarding, including but not limited to the course materials described by Commander Presley at page 56 of her deposition taken on September 21,2007. RESPONSE: Defendants object to this request as being overly broad, vague, and unduly burdensome. Chief Presley testified at her deposition that over her 20 years of experience at EPSO, she read and reviewed many articles, studies and research regarding cross-gender guarding. Chief Presley cannot testify regarding the titles or whereabouts of all of those various materials, studies, and research. Without waiving the objection, the documents still in the possession of Chief Presley are attached. 5. All studies, documents, research articles and/or materials in the possession, control or custody of the El Paso County Sheriff's Office regarding cross gender guarding. RESPONSE: Defendants object to this request as being overly broad, vague, and unduly burdensome. The defense witnesses have testified in the past to reviewing materials, studies, and research over their years of experience, including materials regarding cross-gender guarding, and all of said documents are not still in the possession, control or custody of command staff at EPSO. Without waiving the objection, documents responsive to this request that are in the possession, control, or custody of Detentions Bureau command staff at EPSO regarding cross-gender guarding are attached. Only those sections of the documents responsive to this request regarding cross gender guarding are attached. Defendants produced three documents. None of the three (3) documents produced by the defendants contain any statements that can even remotely be construed as support for defendants' stereotypical notions that female inmates complain more than male inmates and that male deputies are subject to more complaints if assigned to female wards. To the contrary, the following statements can be found in the materials produced by defendants: "When both males and females are housed in a facility, at least one male staff member and one female staff member are on duty at all times."

9

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

Document 115

Filed 11/14/2007

Page 10 of 21

Performance Based Standards for Adult Local Detention Facilities, 4th Ed., American Correctional Association, attached as A-2 to Dkt. 114. There is no prohibition against males working in female wards alone, and EPSO could easily accommodate females working in Metro if it required only one male and one female on duty on each shift, as opposed to two male deputies for each female ward, or one female deputy for each female ward, only. EPSO's stereotypical notions that it will be overwhelmed by complaints from female inmates if it assigned a male deputy to a female ward is undercut not only by the fact that no document has ever been produced to support this notion, but by the fact that EPSO has not assigned a male deputy to a female ward since 1990! Undersheriff Goodall could not even specifically describe a single complaint going back that far, and could only recall one complaint in 1990. See Undersheriff Goodall Deposition, pgs. 10-11, Exhibit A-4 to Dkt. 112. One complaint is hardly an avalanche of complaints. The second of the three publications produced by defendants reads: "The days of allowing officers to only supervise inmates of the same sex have gone, a relic of the past. The integration of women into the workforce in male correctional facilities is an excellent example of a workplace and sexual stereotype crumbling with actual experience. Fears that `women can't work around male inmate because...' have proven incorrect." Pg. 251. Jail and Prison Legal Issues: An Administrators Guide, attached as A-3 to Dkt. 114. Just as the same fears about women working around men had no basis in reality and were proven to be only stereotyped opinions, those same fears about men working around women have no basis in reality. Indeed, this publication does discuss precautions to be 10

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

Document 115

Filed 11/14/2007

Page 11 of 21

utilized when male officers guard female inmates, but the issue of more prevalent complaints by female inmates is never mentioned. 1 It is a fiction based on stereotype. At the least, this publication advocates empirical study of the specific facility at issue to determine the appropriate response to cross gender staffing issues. Fairly read, this publication questions the need for disparate treatment of officers and inmates based on gender. When discussing the BFOQ issue that is at issue in this case, this publication makes clear that the burden of claiming BFOQ is "difficult to meet" or "very narrow" and must be supported by compelling need in the form of empirical evidence, not stereotypical assumptions. The narrow exceptions for approval of a BFOQ is described on page 259 of this publication, none of which includes the threat of complaints, and none have been proven by EPSO in this case. The last of the three publications produced by defendants also does not mention complaints against male officers as justification for a BFOQ. Like the publication discussed above, Legal Issues in Today's Jail, published by the American Jail Association, describes the BFOQ exception as "extremely narrow" and correctly instructs that the burden of proof is on the employer to prove, "on a factual basis, that all or substantially all women or all men would be unable to perform safely and efficiently the

Though not pertinent to this Motion since the 10th Circuit has already found the Metro transfer policy to be an adverse employment action, this publication does describe the effects on female officers when they are restricted from working in male wards: "In considering expanded use of male officers in female units, one must recognize that the equal employment opportunity argument that support women working in male units is far weaker for men seeking work opportunities in women's units. This is because male units offer far more job and promotional opportunities than female units. Exclusion from a female unit is not likely to have a negative impact on a male officer's ability to either find a job in corrections or to obtain promotions. But if women cannot work around male inmates, the number of jobs open to them in a jail or prison is very limited, to say nothing of their promotional opportunities." Pg. 253. 11

1

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

Document 115

Filed 11/14/2007

Page 12 of 21

duties of the job involved, or that the very essence of the business operation would be undermined." P. 149. This publication focused on privacy and sexual misconduct issues as the main issues to be determined when weighing BFOQ concerns, and EPSO here has not proven that any of those concerns motivated its BFOQ exception claims. Defendants pay scant attention to privacy and safety concerns in their briefs, and no witness ever described in deposition any privacy or safety concerns to support the establishment of the Metro no-transfer policy. Indeed, when discussing these concerns in their briefs, defendants never specifically describe what privacy and security concerns they considered, and whether they can be accommodated through a less discriminatory policy other than a complete ban on female deputies in Metro. Surely, defendants would agree that any privacy or security concerns would take a back seat in an emergency situation, such as a riot or medical emergency. And defendants have never to date offered an explanation of why a single female on duty for each shift in its facility cannot satisfy whatever same sex requirements EPSO might require for its operations. If it is true that same sex pat searches is the only thorough manner of conducting body searches (and this argument is suspect since patrol deputies routinely perform cross gender searches and all deputies are trained to conduct thorough searches regardless of sex), defendants have never explained why a single on-duty female cannot be called to conduct the search if required. In addition, defendants have never explained why a "roving" female deputy could not satisfy the alleged requirements for a female deputy in any circumstance. Indeed, a female deputy working in Metro can easily be called to handle any same gender issue at CJC, if the need arises, and EPSO can then allow females to work Metro. Defendants also do not explain why cameras cannot be used to combat false allegations of improper conduct. Defendants admit that male deputies escort female inmates without a 12

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

Document 115

Filed 11/14/2007

Page 13 of 21

chaperone, but then state the same concerns are not present because escorts are always under camera. If cross gender escorting is acceptable because of the placement of cameras, then use of cameras for pat searches must also be acceptable. Commander Grayson agreed that cameras could be used for pat searches, if placed in the right locations, but then he could only "speculate" why cameras weren't used, since "that is not part of our policy." See, Commander Grayson Deposition, 12:19 to 13;12, Exhibit A-9 to Dkt. 112. Defendants have failed to produce any written documentation supporting their claim that male deputies would be subject to more complaints than female deputies if they were assigned to female wards without a chaperone, but they claim to rely on their "collective experience" in arguing that their attitude is not merely the product of stereotypical beliefs. The problem with this argument is that EPSO has never allowed a male deputy to serve in a female ward without a chaperone since 1990, and they have yet to produce a single complaint by a female inmate of improper conduct by a male deputy, so its "collective experience" on this topic is based on aged hearsay. Defendants never explain how they obtained a "collective experience" when they never innovated in this area and never produced any support for their fears, other than vague recollections of scuttlebutt. The only survey in the record on this issue is that provided by the plaintiff that indicates that the vast majority of counties in Colorado do not engage in the sort of discriminatory practices engaged in by EPSO, and do not have the problems that EPSO claims it is avoiding when it engages in its discriminatory practices. See Survey, attached as Exhibit 3 to Dkt. 113. Indeed, it appears that EPSO's discriminatory practices themselves cause the shortage of female employees, and contribute to the atmosphere where inmates complain about all manner of perceived abuses. The findings in Griffin v. Michigan Department of Corrections, 654 F. Supp. 13

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

Document 115

Filed 11/14/2007

Page 14 of 21

690 (E.D. Mich. 1982), are especially relevant here where the Department of Corrections determined, after study and consultation, that "the presence of women, where feasible, in correction facilities for males is a healthy influence and contributes to more normal social conditions." Griffin at 697. EPSO has conducted no study and done no consultation, and the only documents they produced do not even mention fear of complaints by female inmates as an issue. Further, the studies attached as Exhibits 8 and 9 to Plaintiff's Motion for Summary Judgment, Dkt. 113, make no mention of complaints and also support the findings of plaintiff's survey, that sex neutral policies are appropriate in nearly all instances. Defendants cite 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) as support for its argument that gender is a BFOQ in this case. Jennings however, was a case involving practices at a mental health facility and it specifically distinguished its holding from correctional facility cases: "However, we find the correction cases to be inapposite. MHPC is not a correctional facility." 786 F.Supp at 384. Also, 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. In addition, there was evidence that the mental health facility explored reasonable alternatives to its practices. Jail inmates do not have the same privacy rights as mental health patients. More importantly, EPSO has never explored reasonable alternatives to its discriminatory practices. EPSO argues simply that its policies are appropriate because it says so. EPSO argues that pat searches would not be thorough if allowed to be performed by male deputies. Yet, female deputies are allowed to pat search male inmates and there is no security concern there. See Commander Grayson's testimony at 48-49, Exhibit A-9 to Dkt. 112. EPSO fails to explain why 14

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

Document 115

Filed 11/14/2007

Page 15 of 21

males are unable to safely and properly pat search female inmates, while female deputies are able to safely and properly pat search male inmates. Further, patrol deputies pat search suspects of both sexes with street clothes on, while prisoners wear prison clothes that make it difficult to conceal objects. EPSO never explains why a roving female or single on-duty female deputy cannot satisfy its pat search concerns. EPSO never explains why a camera cannot be used, except to state it is not part of their "policy." See, Commander Grayson Deposition, 12:19 to 13;12, Exhibit A-9 to Dkt. 112. It is also irrational that defendants claim that female deputies are permitted to perform all the duties of male deputies, and that there are no security concerns present, but there are security concerns present when a male is asked to perform the same duties of a female deputy. Why can a female deputy do a better search of a male inmate than a male deputy of a female inmate? Why are there no security concerns when is a female deputy handles a ward of males, including felons, but there are alleged security concerns when a male deputy works a ward of female inmates. "Security" is a red herring that is used to justify stereotypical attitudes after the fact. The circular nature of EPSO's arguments is best demonstrated by reference to the deposition testimony of Lt. Goodell. Lt. Goodell disclosed that he had developed a presentation that analyzed sexual harassment complaints between deputies and inmates of the same and different sex. THIS PRESENTATION HAS NEVER BEEN PRODUCED. Lt. Goodell's research found the distribution of complaints to be "about 50/50" between male and female corrections officers. Goodell Deposition, 19;23 to 21;12; Exhibit A-17 to Dkt. 112. When asked what conclusions could be drawn from his presentation, 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 15

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

Document 115

Filed 11/14/2007

Page 16 of 21

those sexual harassment complaints. That good procedures reduces those sexual complaints. And that good supervision and leadership reduces those. It seems to 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 A-17 to Dkt. 112. Lt. Goodell's testimony belies defendants' claims of "collective experience" indicating otherwise. And EPSO has never produced Lt. Goodell's research. It is clear that if EPSO follows Lt. Goodell's advice -- good training, procedures and leadership ­ it could abandon the discriminatory treatment of its deputies and attract more female deputies while maintaining a model facility. This was the goal sought by plaintiff and the other female deputies who complained about EPSO's discriminatory policies. Defendants argue that not allowing females to work the Metro facility did not deprive female deputies of employment opportunities, citing to Timm v. Gunter, 917 F.2d 1093 (8th Cir. 1990). However, a close reading of the Timm case reveals that it supports plaintiff's position in this case. There, female officers were restricted from certain duties, including pat searches, in that all male prison facility. The female deputies were therefore not assigned to one-officer posts because resources did not permit the creation of a "roving" male guard position to assist in pat searches. The court disapproved of that policy: [T]his policy created scheduling difficulties, as well as resentment by male guards, tension among male and female employees, deterioration of morale, and a potential decrease in internal security. The current policy could also result in ineffective female supervisors as a result of their lack of experience in certain posts. Further, allowing inmates to "override" female guards by requesting that a male guard search them tends to decrease the female guards' authority over the inmates, and causes the female guards to feel like inferior officers. These factors can severely impede overall internal security. As to the possibility that female guards be restricted to conducting pat searches while excluding the groin area completely, the testimony indicates that such a practice would severely diminish 16

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

Document 115

Filed 11/14/2007

Page 17 of 21

the effectiveness of the search. This reasoning closely parallels that described in Griffin v. Michigan Department of Corrections, 654 F. Supp 690 (E.D. Mich. 1982), where it was determined that "the presence of women, where feasible, in correction facilities for males is a healthy influence and contributes to more normal social conditions." Griffin at 697. And similarly in this case, "allowing inmates to `override'" sex neutral staffing procedures "tends to decrease the female guards' authority over the inmates, and causes the female guards to feel like inferior officers. These factors can severely impede overall internal security." Further undercutting EPSO's arguments in this case, the Court in Timm found that gender is not a bona fide occupational qualification for staff positions at that facility. The Timm Court did find, however, that gender-based staffing restrictions in the maximum-security unit of a maximum security facility only did not deprive female employees of any employment opportunities. Unfortunately, the Timm opinion does not discuss any of the factors considered by the district court in this part of its holding. For example, we do not know whether the staffing issues in Timm affected shift bidding, days off, safety, morale or stress issues. We also do not know whether the prison conducted any studies on alternative practices. We do not know what factors the court weighed to come to its decision. In any event, it is clear that the maximum security unit in Timm is not at all similar to any of the EPSO county jail facilities. Defendants also cite Reed v County of Casey, 184 F.3d 597 (6th Cir. 1999), where plaintiff brought a Title VII action as a result of her transfer from the first work shift to the third work shift. In Reed, however, the Kentucky Department of Corrections Regulations provided that a female prisoner may not be lodged in a county jail unless a female deputy is present to provide supervision. Because there were no females working the third shift, the county was 17

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

Document 115

Filed 11/14/2007

Page 18 of 21

required to transport female prisoners to other facilities for that shift, at considerable overtime, expense and inconvenience. The court there analyzed the options available to the county and found that plaintiff's transfer was the only reasonable solution "to comply economically and efficiently with the Kentucky Department of Corrections Regulation." Id. at 600. In this case, there is no Colorado statute or regulation at issue. 2 EPSO has offered no explanation for its practices other than speculation that allowing males to work in a female ward alone, or allowing them to pat search females, will subject male deputies to specious allegations of wrongdoing. Unlike Reed, there are no statutes or regulations that require these practices. Defendants cite Tharp v Iowa Dept. of Corrections, 68 F.3d 223 (8th Cir. 1995), where the Iowa Department of Corrections instituted policy changes so that only female Residential Advisors ("RAs") would staff the women's unit of a mixed-gender minimum security prison. Under the policy change, there were four shifts open only to female RAs and twelve shifts open to both male and female RAs. The Eight Circuit concluded that a BFOQ analysis was not even necessary since the same sex assignments were a "minimum restriction" on the plaintiffs' employment. Significantly, there was no evidence that this policy change caused any impact on the plaintiffs' employment, and there was evidence that the change affected "legitimate penological concerns." The facts of Tharp contrast sharply with the facts in this case. First, the 10th Circuit has already concluded that EPSO's policies constitute an adverse employment action

Sheriff Maketa offered in his deposition that strip searches must be conducted by members of the same sex because of EPSO policy and state laws. See Sheriff Maketa deposition, 94;17-21; 96; 8-14, attached as Exhibit 15 to Dkt. 113. In fact, no such law exists. C.R.S. §16-3-405 requires that an arrestee may only be subject to a strip search by someone of the same sex, but this statute does not apply to prisoners in a county jail. Further, no rationale was offered for this "policy" other than it is "morally correct." Maketa deposition, 95;19, attached as Exhibit 15 to Dkt. 113. 18

2

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

Document 115

Filed 11/14/2007

Page 19 of 21

since they had a serious effect on plaintiff and other female deputies. Indeed, EPSO's stereotypical attitude is likely the reason why it cannot hire or retain female deputies. Defendants also cite to Robino v Iranon, 145 F.3d 1109 (9th Cir. 1998), where three male corrections officers filed a claim under Title VII based on the Women's Correctional Center assigning only female officers to six posts. The Correctional Center had conducted a study by a specially appointed task force in compliance with an EEOC settlement agreement to determine the best policy to protect female inmates and to prevent allegations of sexual misconduct. The study, based on the specific needs of that facility, recommended the designation of six posts as female only. The 9th Circuit Court held that this professional judgment was entitled to deference, citing cases where studies had been conducted to consider such issues. In the instant case, the only study that has been produced is the survey by the plaintiff herself that showed that the vast majority of jails in Colorado do not engage in the discriminatory practices complained of by the plaintiff and other female deputies. Further, the only explanation offered by EPSO as to why these discriminatory practices are allowed -- to protect male deputies from unfounded allegations by female prisoners ­ has not been experienced by these other jails, and are not even mentioned in the documents produced by defendants or researched by plaintiff and attached to her Motion for Summary Judgment. The Robino Court also found that the de minimus restrictions imposed on the male officers there made it unnecessary to even consider whether gender was a BFOQ. In this case, as noted above, the 10th Circuit has already determined that the restrictions were not de minimus, and that they are an adverse employment action. Defendants cite 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 safety and care of 19

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

Document 115

Filed 11/14/2007

Page 20 of 21

third party concerns excuse its discriminatory practices. It should first be noted that the only safety concern that EPSO has identified is with respect to opposite sex pat searches. This speculation is not supported by the cases cited above that found no safety concerns in sex neutral pat searches. It should also be noted that Jennings specifically distinguished its holding from correctional facility cases ("However, we find the correction cases to be inapposite." 786 F.Supp at 384). Nevertheless, defendants do endorse the burden of proof required by Jennings and argue at page 31 of their Response, that "the employer must show that the job qualifications are reasonably necessary to the normal operation of the particular business and that an individual possessing the discriminated characteristic would be unable to perform safely and efficiently the duties of the job involved." Here, defendants have come forward with nothing more than unsupported allegations of fears of complaints and safety concerns that are not supported by the documentary evidence and are not supported by the case law discussed above. Indeed the case law discussed above concludes that sex neutral practices in correctional facilities promote safety, morale and normal social conditions. Defendants rely only on unsupported, conclusory and stereotypical opinions and fail to meet even their own summary of the Jennings holding. Simply put, defendants' claims that their collective experience dictates their personnel policies are belied by the research they have produced in this case, and belied by the fact that they have yet to produce any written document that supports their arguments of what they claim will occur if they adopted a sex neutral policy at Metro. In fact, the testimony of defendants' witnesses contradict the arguments set forth by defendants in their briefs. At the least, fact questions preclude summary judgment in favor of the defendants. Summary judgment in favor of plaintiff on the facially discriminatory policy of prohibiting female deputies from transfer to or working in Metro is more appropriate. 20

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

Document 115

Filed 11/14/2007

Page 21 of 21

WHEREFORE plaintiff requests that this Court enter summary judgment in favor of plaintiff, finding that the Metro practices described above violates Title VII, leaving only damages for consideration at trial. Respectfully submitted this 14th day of November 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 November 14, 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.

21