Free Motion for Summary Judgment - District Court of Colorado - Colorado

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

Document 113

Filed 10/22/2007

Page 1 of 25

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.

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 Motion for Summary Judgment, states: INTRODUCTION In Piercy v Maketa, et al., 480 F.3d 1192 (10th Cir. 2007), the 10th Circuit found that the Metro Jail transfer policy of defendant El Paso County Sheriff Office ("EPSO") was discriminatory on its face, and that the transfer policy was an adverse employment action. As such, the 10th Circuit remanded for a determination as to whether the reasons for the policy offered by EPSO are adequate to support its defense of bona fide occupational qualification (BFOQ). EPSO suggests two reasons for the policy that restricted Piercy from bidding for a shift at Metro: (1) at the time, there were not enough female guards available to staff the female ward at CJC; and (2) privacy and safety considerations required sufficient female staff at CJC. While these reasons may be adequate to support EPSO's policy as a bona fide occupational qualification that permits

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

Document 113

Filed 10/22/2007

Page 2 of 25

discrimination under 42 U.S.C. § 2000e-2(e), the district court did not reach this question. We remand for it to do so. Piercy v Maketa, et al., 480 F.3d at 1205. Though EPSO has argued that privacy and staffing needs dictated the need for its facially discriminatory policy, its witnesses all testified that fear of unfounded complaints by female inmates against male deputies was the reason for its refusal to allow any female to work in the Metro facility. Because EPSO would allow only female deputies to work in the female ward, it claimed it did not have enough female deputies to allow them to work in Metro, and therefore, it barred all female deputies for applying for transfer to and working in Metro. This Motion seeks summary judgment on the last remaining issue on liability, namely, whether BFOQ exists as a defense to plaintiff's discrimination claim. When summary judgment on this issue is granted, only damages remain to be resolved in this matter. STATEMENT OF UNDISPUTED MATERIAL FACTS 1. EPSO housed only female prisoners in Alpha 3 during the time that plaintiff was employed as a deputy sheriff. Alpha 3 (a ward within the facility also referred to as CJC) was a large, open ward with no separation of female prisoners based on seriousness of the crime, mental illness, high or low security needs, etc. Sgt. Kortrey deposition, 46;20-25. Exhibit 14. Over the years, the female prison population steadily increased and set a record at about 220 prisoners. Lt. Goodell deposition, 13;14 to 14;7. Exhibit 11. Sgt. Whitney deposition, 6;15 to 7;11. Exhibit 16. 2. Alpha 3 was set up in such a manner that a female deputy would sit at a desk that was accessible by all female prisoners in the open gymnasium-like hall. Sgt. Kortrey deposition, 46;13-19. Exhibit 14.

2

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

Document 113

Filed 10/22/2007

Page 3 of 25

3. Alpha 3 was perceived to be a more difficult ward to work because of the population, mix of prisoners and noise. Dep. Grenier deposition, 29;7; 70;4-9. Exhibit 13. Commander Grayson, 17;23 to 18;3. Exhibit 12. 4. EPSO's polices required that female deputy sheriffs may work in Alpha 3 without assistance, but that male deputy sheriffs could only work in Alpha 3 if chaperoned by another deputy sheriff. Sheriff Maketa deposition, 38;10 to 39;23. Exhibit 15. Lt. Goodell deposition, 12;18; Exhibit 11. Sgt. Whitney deposition, 51;18 to 52;9. Exhibit 16. Sgt. Kortrey deposition, 44;11 to 45;8; Exhibit 14. Intra-Office Memorandum from Commander Hastings, dated April 10, 2001, Exhibit 1. 5. EPSO has never considered allowing males to work Alpha 3 alone. Undersheriff Goodall deposition, 21;6-9. Exhibit 10. 6. Conversely, there were no restrictions on female deputies working alone in male wards, Lt. Goodell deposition, 25; 2, Exhibit 11, and females were required to perform all the duties the males are required to perform in the male wards. 7. All deputies are trained on pat down procedures for both sexes. Sgt. Whitney deposition, 50;19 to 51;6. Exhibit 16. 8. Patrol deputies are regularly required to pat down suspects and there have been no complaints regarding this procedure. Sheriff Maketa deposition, 50;6 to 51;5. Exhibit 15. 9. In the past 17 years, no female prisoner has complained of a pat down by a male deputy at the EPSO jails. Sheriff Maketa deposition, 53;2 to 53;14. Exhibit 15. 10. The rationale offered for restricting males from working alone in female wards is to protect male deputies from lawsuits and sexual harassment complaints by the female prisoners. Sheriff Maketa deposition, 44;14 to 44;25. Exhibit 15. Commander Grayson deposition, 11;9 to 11;13. 3

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

Document 113

Filed 10/22/2007

Page 4 of 25

Exhibit 12. Lt. Goodell deposition, 14;12; 17;24; Exhibit 11. Sgt. Kortrey deposition, 49;1-16. Exhibit 14. 11. EPSO 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. 12. 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. 13. Female prisoners never accused Sheriff Maketa of improprieties when he worked in a female prison ward. Sheriff Maketa deposition, 39;24 to 40;5. Exhibit 15. 14. Metro was an all male indirect supervision ward where the male inmates were separated in cells. Female deputy sheriffs were not permitted to work in Metro. Commander Grayson, 15;523. Exhibit 12. 15. Consistent with its policy of not allowing female deputies to work in Metro, EPSO issued a memo on August 27, 2002, indicating that Metro Floor Security Positions were being made available, but "only requests from male deputies will be accepted." Exhibit 5. 16. To date, EPSO has not produced any studies or papers investigating whether its sex specific assignments are valid, or whether the discriminatory effect of its sex specific assignments can be lessened by other means. 17. EPSO has apparently not considered conducting pat searches under a camera. Commander Grayson deposition, 13;2. Exhibit 12. 18. Male deputies are permitted to escort female prisoners to, from and about the prison without another chaperon. Sgt. Kortrey deposition, 52;2. Exhibit 14. 19. One male deputy had sexual relations with a female prisoner in the laundry room while escorting her. Sgt. Kortrey deposition, 52;16. Exhibit 14. 4

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

Document 113

Filed 10/22/2007

Page 5 of 25

20. On October 31, 2002, Deputy Valerie Hazell submitted Exhibit 6 to her chain of command, complaining that officer safety was compromised when female deputies were repeatedly assigned to Alpha 3 (also known as "1A3"). EPSO never met with any of the female deputies to discuss these concerns. Exhibit 6. 21. On November 20, 2001, plaintiff and Deputy Valerie Hazel, presented a survey to EPSO that they conducted with respect to gender discriminatory assignments in jails. The survey was of 44 counties in Colorado and concluded that only one other jail required male deputies to be accompanied by another deputy in a female ward. The survey indicated that most counties allowed male deputies to conduct security checks of female wards. Significant numbers of jails did not require sex specific pat down searches. Exhibit 3. 22. EPSO never formally addressed any of the concerns noted by plaintiff or Deputy Hazell in their survey, and never discussed gender discrimination concerns generally among its deputies. Commander Grayson deposition, 38;13 to 39;4. Exhibit 12. 23. Sgt. Kortrey, Deputy Piercy's supervisor, received a copy of the survey, but he was never asked by anyone in his chain of command to comment on it. Sgt. Kortrey deposition, 49;17-19. Exhibit 14. 24. Sgt. Kortrey conducted a survey of similar sized counties at the direction of Commander Shull that researched sex staffing issues. EPSO has never produced that survey. Sgt. Kortrey deposition, 55;9 to 56;23. Exhibit 14. 25. Commander Grayson also testified to a study conducted by "a collection of agencies," including EPSO. EPSO has never produced that study. Commander Grayson deposition, 7;13 to 11;4. Exhibit 12. This study that was never produced showed varying methods of handling gender issues. 5

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

Document 113

Filed 10/22/2007

Page 6 of 25

STANDARD OF REVIEW Under Fed. R. Civ. P. 56(c), the burden of establishing the nonexistence of a genuine issue of material fact is on the moving party. E.g., Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This burden has two distinct components: an initial burden of production on the moving party, which burden when satisfied then shifts to the nonmoving party, and an ultimate burden of persuasion, which always remains on the moving party. See, 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2727 (2d ed. 1983). The parties must make specific showings to satisfy their respective burdens under Fed. R. Civ. P. 56. The movant bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. In so doing, a movant that will not bear the burden of persuasion at trial need not negate the nonmovant's claim. Such a movant may make its prima facie demonstration simply by pointing out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim. If the movant carries this initial burden, the nonmovant that would bear the burden of persuasion at trial may not simply rest upon its pleadings; the burden shifts to the nonmovant to go beyond the pleadings and set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant. To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (quotation and citations omitted). In this case, the only admissible evidence in the form of surveys and studies that have been produced support plaintiff's contention that EPSO's policies are facially discriminatory and not followed by most counties in Colorado. EPSO has come forth with nothing more that stereotypical notions of female behavior to support its BFOQ defense. Plaintiff has carried her burden or persuasion and the defendants have failed to set forth specific facts by reference to

6

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

Document 113

Filed 10/22/2007

Page 7 of 25

affidavits, deposition transcripts, or exhibits from which a rational trier of fact could find for the defendants. Further, defendants have failed to establish that it explored any less discriminatory alternatives. ARGUMENT Female deputy sheriffs were not permitted to work in Metro. Commander Grayson deposition, 15;5-23. Exhibit 12. Consistent with that policy, EPSO announced on August 27, 2002 that a few Metro Floor Security Positions were being made available, but "only requests from male deputies will be accepted." Exhibit 5. As noted by the 10th Circuit in this case, restricting positions to male deputy sheriffs on the basis of sex is discriminatory on its face. But where an employer's policy is discriminatory on its face, we need not worry about eliminating nondiscriminatory reasons for an employer's action. In cases of facial discrimination, "There is no need to probe for a potentially discriminatory motive circumstantially, or to apply the burden-shifting approach outlined in McDonnell Douglas Corp. v. Green." Bangerter v. Orem City Corp., 46 F.3d 1491, 1501 n.16 (10th Cir. 1995); see also Healey v. Southwood Psychiatric Hosp., 78 F.3d 128, 131-132 (3d Cir. 1996); Reidt v. County of Trempealeau, 975 F.2d 1336, 1340-41 (7th Cir. 1992). Piercy v Maketa, et al., 480 F.3d 1192, 1204 (10th Cir. 2007). The rationale offered by EPSO for restricting female deputies from working Metro is not because of any requirements of the Metro position. In fact, working Metro is easier than working Alpha 3, the all female ward in CJC. Dep. Grenier deposition, 29;7; 70;4-9. Exhibit 13. Commander Grayson, 17;23 to 18;3. Exhibit 12. The prohibition against allowing women to work in Metro is because EPSO will not allow males to work the more difficult Alpha 3 job alone. If EPSO would allow men to work the all female ward alone, then there would be no female staffing shortages and no prohibition to allowing women to work Metro.

7

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

Document 113

Filed 10/22/2007

Page 8 of 25

Why is it that women are not permitted to work the easier position in Metro, and men are not permitted to work the more difficult job in Alpha 3? EPSO claims it is because the women prisoners in Alpha 3 may allege sexual misconduct against male deputies. The perception that women inmates are more likely to make allegations or lawsuits against male deputies is the sole reason offered by EPSO's witnesses for its facially discriminatory policies. Sheriff Maketa deposition, 44;14 to 44;25. Exhibit 15. Commander Grayson deposition, 11;9 to 11;13. Exhibit 12. Lt. Goodell deposition, 14;12; 17;24; Exhibit 11. Sgt. Kortrey deposition, 49;1-16. Exhibit 14. EPSO's perception that female inmates may make more baseless allegations than male inmates is not supported by any empirical data or studies. Not only are there no studies or empirical data to support EPSO's beliefs, but there is not even any anecdotal evidence to support EPSO's stereotypical fears. Sheriff Maketa testified that EPSO has received complaints from female prisoners regarding male deputies' conduct, but 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. 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. 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. Even so, Lt. Goodell only knew of lawsuits by male prisoners against female deputies. Lt. Goodell deposition, 16;14 to 17;6. Exhibit 11. Further, the statistics that Lt. Goodell claimed he knew of indicates that there is an even distribution of complaints by and against male and female 8

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

Document 113

Filed 10/22/2007

Page 9 of 25

prisoners and officers. Lt. Goodell deposition, 20;2. Exhibit 11. 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. 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. 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. Of interest is the fact that when Sheriff Maketa worked as a ward deputy, he worked female wards, but was never accused of improprieties. Apparently, the rationale for limiting male deputy contacts with female prisoners is not true for Sheriff Maketa. Sheriff Maketa deposition, 39;5 to 40;5. Exhibit 15. This fact alone is evidence that EPSO's fears of unfounded allegations by female inmates are without basis. Interestingly, Sheriff Maketa testified that there is no policy that males are precluded from patting down female prisoners. Indeed, Sheriff Maketa acknowledges that deputies on the street pat down female suspects "every day on patrol." Sheriff Maketa deposition, 50;6 to 51;15. Exhibit 15. However, Sheriff Maketa also testified that female deputies are "required" to pat down female prisoners when a female deputy is present. Sheriff Maketa deposition, 51;22 to 52;3. Exhibit 15. Sheriff Maketa also could recall no specific instance when a female prisoner complained of a pat down by a male deputy in the 17 years that he has worked at EPSO. Sheriff Maketa deposition, 53;2 to 53;14. Exhibit 15. In addition to failing to provide any anecdotal support for its stereotypical attitudes towards women, EPSO has come forward with no empirical studies to support its stereotypical beliefs, or to explore whether the discriminatory effect of its sex specific assignments can be 9

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

Document 113

Filed 10/22/2007

Page 10 of 25

lessened by other means. For example, Sheriff Maketa admitted in deposition that electronic monitoring devises are employed in the jails, Sheriff Maketa deposition, 47;7, Exhibit 15, yet EPSO has not explained why electronic monitoring devices cannot be used to rebut allegations of improper conduct, or to insure that male deputies act appropriately while working in female wards. Recall also that these wards house up to 220 female prisoners and numerous inmates surely would observe any sexual conduct outside the view of a camera. When Commander Grayson was asked why pat searches could not be conducted under a camera, he testified, "to speculate, I don't know, that is not part of our policy." Commander Grayson deposition, 13;2. Exhibit 12. Because no alternatives have been considered we are left to speculate whether any other practices may have a less discriminatory effect. Curiously, male deputies are permitted to escort female prisoners to, from, and about the prison without a chaperone. One deputy actually had sexual relations with a female prisoner outside the ward while escorting her, but EPSO never changed its policy. Sgt. Kortrey deposition, 52;2. Exhibit 14. EPSO's claims of protection of its male deputies inexplicably do not apply to escort positions, when the only documented instance of improper conduct occurred during escort. Of course, escort duty is far less stressful than sitting at an open desk in an open ward of 200 female prisoners. Undersheriff Goodall admitted in her deposition that EPSO has never even considered allowing males to work Alpha 3 alone. Undersheriff Goodall deposition, 21;6-9. Exhibit 10. Undersheriff Goodall also admitted that nobody ever met with plaintiff to discuss her concerns over the working conditions at Alpha 3 until her appeal of her discharge. Undersheriff Goodall deposition, 21;6-9. Exhibit 10.

10

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

Document 113

Filed 10/22/2007

Page 11 of 25

On November 7, 2001, plaintiff and Deputy Valerie Hazel requested a meeting with Commander Santiago to discuss gender discrimination issues between male and female deputies. Exhibit 2. No meeting was ever held. On November 20, 2001, plaintiff and Deputy Valerie Hazel presented a survey to EPSO that they conducted with respect to discriminatory job assignments in jails. Exhibit 3. The survey was of 44 counties in Colorado and demonstrated that EPSO's discriminatory policies were in the small minority of counties. For example, only one other jail required male deputies to be accompanied by a female deputy in a female ward. Most counties allowed male deputies to conduct security checks of female wards alone. Significant numbers of jails did not require sex specific pat down searches. Again, despite the results of this survey, EPSO never addressed any of the concerns noted by plaintiff or Deputy Hazell. EPSO never explored whether the discriminatory effects of its sex specific policies could be lessened. It is noteworthy that Sheriff Maketa was under the impression that the survey addressed only shift schedules and staffing levels. Maketa deposition, 40;19 to 41;12. Exhibit 15. And although Sgt. Kortrey was plaintiff's immediate supervisor and received a copy of the survey, he was never asked by anyone in his chain of command to comment on it. Sgt. Kortrey deposition, 49;17-19. Exhibit 14. The survey was apparently ignored. It is noteworthy too that Sgt. Kortrey conducted surveys or studies of similar sized counties at the direction of Commander Shull that researched sex staffing issues. EPSO has never produced that survey. Sgt. Kortrey deposition, 55;9 to 56;23. Exhibit 14. Commander Grayson too testified to studies he was involved in. Commander Grayson deposition, 7;13 to 11;7. Exhibit 12. EPSO has never produced those studies.

11

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

Document 113

Filed 10/22/2007

Page 12 of 25

On October 31, 2002, Deputy Valerie Hazell submitted Exhibit 6 to her chain of command, complaining that officer safety was compromised when female deputies were assigned to Alpha 3 (also known as "1A3"). Yet, no assistance was provided. EPSO never met with any of the female deputies to discuss their concerns (of course, as noted above, the Undersheriff met with plaintiff after she was discharged and was appealing her discharge).Title VII of the Civil Rights Act of 1964 provides, in pertinent part, that "[it] shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex[.]" 42 U.S.C. § 2000e. However, Title VII permits discrimination if the disparate treatment is based on a bona fide occupation qualification ("BFOQ"). The Act provides: Notwithstanding any other provision of this [title], (1) it shall not be an unlawful employment practice for an employer to hire and employ employees . . . on the basis of his 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. [Italics supplied]. 42 U.S.C. § 2000e-2(e). In International Union v. Johnson Controls, Inc., 499 U.S. 187, 221-22, 113 L. Ed. 2d 158, 111 S. Ct. 1196 (1991), the U.S. Supreme Court interpreted the BFOQ exception 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." Id. at 206. In other words, gender discrimination is valid "when the essence of the business operation would be undermined if the business eliminated its discriminatory policy." Dothard v. Rawlinson, 433 U.S. 321, 332, 53 L. Ed. 2d 786, 97 S. Ct. 2720 (1997). In the instant matter, EPSO cannot demonstrate that elimination of any of its facially discriminatory policies and practices would undermine the operation of the jail. The only justification for the policies is speculation on

12

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

Document 113

Filed 10/22/2007

Page 13 of 25

female behavior without any support whatsoever. Indeed, the only study in evidence is the survey conducted by plaintiff herself, with another female deputy, which indicates that the practices used by EPSO are far from standard operating procedures in Colorado. The only study in evidence indicates that other jails operate well under less discriminatory practices. The EEOC has interpreted the BFOQ exception as follows: (a) The commission believes that the bona fide occupational qualification exception as to sex should be interpreted narrowly. Label -- "Men's jobs" and "Women's jobs" -- tend to deny employment opportunities unnecessarily to one sex or the other. (1) The Commission will find that the following situations do not warrant the application of the bona fide occupational qualification exception: (i) The refusal to hire a woman because of her sex based on assumptions of the comparative employment characteristics of women in general. For example, the assumption that the turnover rate among women is higher than among men. (ii) The refusal to hire an individual based on stereotyped characterizations of the sexes. Such stereotypes include, for example, that men are less capable of assembling intricate equipment: that women are less capable of aggressive salesmanship. The principle of nondiscrimination requires that individuals be considered on the basis of individual capacities and not on the basis of any characteristics generally attributed to the group. (iii) The refusal to hire an individual because of the preferences of coworkers, the employer, clients or customers except as covered specifically in paragraph (a)(2) of this section. 29 C.F.R. §1604.2. These guidelines make clear that the BFOQ exception will apply only in rare circumstances and that stereotypical assumptions cannot be used as support for a discriminatory policy. The employer must demonstrate a rationale for its discriminatory policies based on "individual capacities" and not "characteristics generally attributed to the group." Mere speculation on the effects of non-discriminatory practices simply does not justify discriminatory practices. There are no 10th Circuit cases that discuss discriminatory employment practices in a county jail in the context of Title VII and BFOQ. The cases from other jurisdictions, however,

13

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

Document 113

Filed 10/22/2007

Page 14 of 25

seem to suggest that jail administrators will be given deference in decisions concerning the administration of jails and treatment of county prisoners, but that jail administrators must base their practices on reasoned facts, rather than on stereotypical notions of female behavior. For example, in Griffin v. Michigan Department of Corrections, 654 F. Supp 690 (E.D. Mich. 1982), 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. As in the instant case, the only basis for a contrary argument in Griffin was a "stereotypical sexual characterization," which the court noted was expressly prohibited by Title VII. In Gunther v Iowa State Men's Reformatory, 612 F.2d 1079 (8th Cir. 1980), the plaintiff brought a Title VII action after she was denied promotion to the rank of Corrections Officer II ("COII") because she was a female. The defendants argued that security reasons allow for a BFOQ exception to their practice of not allowing COII promotions to women. The 8th Circuit noted first that the BFOQ exception was meant to be an extremely narrow exception to the general prohibition of discrimination on the basis of sex, citing Dothard v Rawlinson, 443 U.S. 321 (1977). The court then shifted the burden of proof to the defendants to show that there were no reasonably available alternative practices with less discriminatory impact that would satisfy the legitimate needs of the institution. After weighing the security issues, the court determined that "the scales weigh in favor of plaintiff's rights," Gunther at 1086, and that the institution was required to enact a "functional assignment" for those duties that it claimed might violate inmate privacy. It is also of interest to note that Gunther relied on a line of cases for the proposition that "[a]dministrative inconvenience cannot justify discrimination." Gunther at 1087.

14

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

Document 113

Filed 10/22/2007

Page 15 of 25

In Robino v Iranon, 145 F.3d 1109 (9th Cir. 1998), 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 recommended the designation of six posts as female only and 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 conducted is the survey by the plaintiff herself that showed that the vast majority of jails in Colorado did not utilize the discriminatory practices complained of. Further, the only explanation offered 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 Colorado jails. 1 EPSO's transfer policy is discriminatory on its face. EPSO's only rationale for its discriminatory practices, according to its witnesses, is to protect male officers from spurious allegations of improprieties by female prisoners. EPSO has conducted no studies or analyses on whether its practices may be modified to have a less discriminatory impact on female deputies. Although the other counties surveyed by plaintiff have not experienced the increased number of complaints feared by EPSO, the administrative inconvenience of responding to specious complaints by prisoners cannot justify discrimination against EPSO's female deputies. EPSO

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, the 10th Circuit has determined that the differences in duties between Metro and CJC are sufficiently substantial to preclude a finding that a transfer to Metro from CJC would be purely lateral, and by implication de minimus, and found that the practice was an adverse employment action. 15

1

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

Document 113

Filed 10/22/2007

Page 16 of 25

fails in its burden to show that it considered any alternatives whatsoever. Summary judgment in favor of plaintiff is required. In Forts v. Ward, 621 F.2d 1210 (2nd Cir. 1980), the court found that there was a violation of Title VII when male guards were barred from nighttime assignments in a female prison because the male guards could look through glass windows in cell doors. The court noted that this denied equal employment opportunity to the male guards and also impaired equal opportunities for female guards by bumping them from preferred daytime shifts to which they were entitled by seniority. The court added that translucent screens in the showers, allowing cell windows to be covered for brief periods, and supplying appropriate nightwear could protect inmate privacy. See also, Grummett v Rushen, 779 F.2d 491 (9th Cir. 1985), holding that a prison policy and practice of allowing female correction officers to view male prisoners in states of partial or total nudity while dressing, showering, or being strip searched did not violate the inmates' rights under the Fourth or Fourteenth Amendments, and noting that to restrict the female guards from positions which involve occasional viewing of the inmates would possibly prejudice a right to the equal employment opportunities of the female guards; Bagley v Watson, 579 F. Supp 1099 (D. Or. 1983), holding that female guards' rights to equal employment under Title VII supersedes male inmates' Eighth Amendment arguments that they prefer men for the clothed patdown searches or unclothed visual observation; Timm v Gunter, 917 F.2d 1093, 1102 (8th Cir. 1990), "whatever minimal intrusions on an inmate's privacy may result from surveillance, whether the inmate is using the bathroom, showering, or sleeping in the nude, are outweighed by institutional concerns for safety and equal employment opportunities." In Timm v. Gunter, 917 F.2d 1093 (8th Cir. 1990), female officers were restricted from certain duties, including pat searches, in an all male prison facility. The female deputies were 16

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

Document 113

Filed 10/22/2007

Page 17 of 25

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 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. The Court in Timm found that gender is not a BFOQ for staff positions at that facility, but it did find that gender-based staffing restrictions in the maximum-security unit of this 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. 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. A permissible form of gender discrimination may be found in 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. Plaintiff's shift was changed since most bookings of females were done on the third shift. Of particular significance was that Kentucky Department of Corrections regulations provided that a female prisoner may not be lodged in a county jail 17

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

Document 113

Filed 10/22/2007

Page 18 of 25

unless a female deputy is present to provide supervision. Because there were no females working the third shift, the county was required to transport those female prisoners to other facilities at considerable overtime, expense and inconvenience. Noting that the County had the burden of establishing that no reasonable alternative existed other than transferring the plaintiff to the third shift, the Court analyzed the options available to the County and found that the transfer was the only reasonable solution "to comply economically and efficiently with the Kentucky Department of Corrections Regulation." Id. at 600. In this case, EPSO has offered no explanation for its practices other than speculation that allowing male deputies to work in a female ward alone will subject those males to specious allegations of wrongdoing. Unlike Reed, there are no statutes that require these discriminatory practices. 2 Speculation that there may be some complaints by prisoners is not sufficient to overcome the burden to show that no reasonable alternatives exist to these discriminatory practices. EPSO has claimed in previous pleadings in this case that its own surveys or studies support its opinions of how female inmates behave. But EPSO has produced no such research or surveys. The only research or survey in the record 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. Exhibit 3. These counties obviously do not have the problems that EPSO claims it is avoiding when it engages in its discriminatory practices.

It is noteworthy that 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. Maketa deposition, 94;17-21; 96; 8-14. 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. 18

2

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

Document 113

Filed 10/22/2007

Page 19 of 25

Fed. R. Civ. Pro. 26(a)(1)(B) requires a party to disclose: a copy of, or a description by category and location of, all documents, data compilations, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment. That defendants have not produced its research or surveys can only indicate that it does not exist, or that the research does not support EPSO's arguments. Lt. Goodell testified that he prepared a PowerPoint presentation with his research and statistics, but this too has never been produced. Further, Lt. Goodell's testimony contradicts EPSO's interpretation of its research. Lt. Goodell testified that his research found the distribution of gender based complaints to be "about 50/50" between male and female corrections officers. Goodell Deposition, 19;23 to 21;12. Exhibit 11. 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 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. Indeed, good training, supervision and leadership are precisely what plaintiff sought when she presented her survey to EPSO and sought explanations for EPSO's discriminatory practices. Defendants have also argued in past pleadings that "there is no requirement in the law that formal studies be conducted," citing 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). Jennings was a case involving practices at a mental health facility and it specifically distinguished its holding from

19

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

Document 113

Filed 10/22/2007

Page 20 of 25

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 unsupported, conclusory and stereotypical opinions. The importance of relying on research as opposed to unsupported stereotypes cannot be overemphasized, even when considering less discriminatory alternatives. First, sex neutral shift bidding would not have caused a need for designated "male" and "female" assignments. Even if there was a need for sex specific duties, EPSO's perceived needs may have been satisfied by a less discriminatory alternative. There were four female deputies on Ms. Piercy'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. To simply declare, without support and based solely on conclusory and stereotypical opinions, that female deputies may not work a certain shift or location, and to never even explore less onerous alternatives, is the very essence of discrimination that Title VII was meant to remedy. The importance of actually producing the research is demonstrated by reference to the various responses provided by EPSO's witnesses on this topic. Sheriff Maketa testified that "past 20

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

Document 113

Filed 10/22/2007

Page 21 of 25

experience" had shown that female inmates complain more frequently when male deputies are alone in the female ward. He testified that EPSO collects data on numbers of complaints, but then testified that he was not aware of any reports on that data. Sheriff Maketa deposition, 44-49. Exhibit 15. He himself had never been the subject of claim by a female inmate when he worked a female ward. Sheriff Maketa deposition, 39;24 to 40;5. Exhibit 15. Undersheriff Goodall testified that she too was aware of such complaints and that there were records of those complaints, but then she could only recall of 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. Commander Grayson 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, 7-14, 40-42. Exhibit 12. 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. When asked whether he was aware of any such complaints by female inmates against male guards, Sergeant Kortrey could recall only one instance, during transport. Sergeant Kortrey deposition, 50;20 to 51;9. Exhibit 14. Because we have not been supplied with any studies or reports, we do not know whether this complaint is the same single complaint testified to by Undersheriff Goodall and Sergeant Whitney. At most, without the data, reports and research that EPSO's witnesses claims was conducted, but EPSO which 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.

21

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

Document 113

Filed 10/22/2007

Page 22 of 25

INTERNET RESEARCH Rather than undercut Plaintiff Piercy's arguments, studies and research support her contention that the facially discriminatory job classifications used by EPSO are not the norm throughout the United States and elsewhere, and that there is no empirical evidence for EPSO's opinion that female prisoners target male deputies for complaints. Human Rights Watch does not, as a matter of policy oppose the presence of male officers in female prisons per se, and its main concerns stem from the potential for rape and sexual assault by male employees. As a matter of policy, Human Rights Watch supports U.S. anti-discrimination laws and has no objection per se to male officers guarding female prisoners. Nor do we believe that all male officers abuse female prisoners. However, we are concerned that the states' adherence to U.S. anti-discrimination laws, in the absence of strong safeguards against custodial sexual misconduct, has often come at the expense of the fundamental rights of prisoners. Human Rights Watch, All Too Familiar, Sexual Abuse of Women in U.S. State Prisons (1996), http://hrw.org/reports/1996/Us1.htm (Page 11 of 366); Exhibit 8. Not surprisingly, Human Rights Watch cited the same factors that Lt. Goodell described above as the most important safeguards against improper conduct by both prisoners and guards ­ leadership and training. Goodell Deposition, 20;19 to 21;3. Exhibit 11. It is also noteworthy that, "men now constitute the majority of corrections officers working in women's prisons, outnumbering their female counterparts at times by two or three to one." http://hrw.org/reports/1996/Us1.htm (Page 26 of 366); Exhibit 8. [Only several pages of this report are attached hereto]. Cross-gender staffing was also approved in Correctional Service of Canada, Federally Sentenced Women Initiative Cross-Gender Staffing in FSW Facilities (2005) http://www.csc-scc.gc.ca/text/prgrm/fsw/fsw30/fsw30e05_e.shtml. That study approved of hiring men for front-line positions, or Primary Worker positions, in women's

22

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

Document 113

Filed 10/22/2007

Page 23 of 25

correctional facilities in Canada. That report, attached as Exhibit 9, contains a detailed table of facilities in the United States and abroad, showing the percentages of male frontline workers in female facilities. Colorado is not mentioned, but within the United States, the percentages of male front-line workers in female facilities range from 57% to .6%. No State reported that men were absolutely prohibited from working as a front-line worker in a female correctional facility. The international review confirms the use of men front-line workers was not exceptional. This report too emphasized the need for appropriate training and leadership. Exhibit 9. CONCLUSION EPSO argues that it has conducted research and surveys, and is aware of joint studies, but then it does not produce the surveys, studies or research. EPSO argues that its research indicates that gender based discrimination is necessary to the operation of its facility, but then its own witnesses who conducted the research testify otherwise and that leadership and training is required. EPSO's own collective memory in deposition has revealed only three cases of complaints by female inmates, and those are anecdotal and apparently undocumented. EPSO has never produced its studies or research. The studies attached to this motion indicate that males are routinely assigned to work in female correctional facilities. When plaintiff presents her survey and requests meetings to discuss her findings, EPSO refuses and declines to even explore any alternative, less discriminatory measures. It appears that EPSO claims that its policies are appropriate simply because it says so. Such evidence is not sufficient to withstand summary judgment in favor of the plaintiff. The reasoning in Timm v. Gunter, 917 F.2d 1093 (8th Cir. 1990) and Griffin v. Michigan Department of Corrections, 654 F. Supp 690 (E.D. Mich. 1982) militates in favor of sex neutral 23

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

Document 113

Filed 10/22/2007

Page 24 of 25

policies. As stated in those cases, non-discriminatory employment practices eliminate scheduling difficulties, as well as resentment by female guards, deterioration of morale and a potential decrease in internal security. Discriminatory policies may also result in ineffective female supervisors as a result of their lack of experience in certain posts. Disallowing female guards to work in Metro causes the female deputies to feel inferior to male deputies. The studies cited immediately above show that leadership and training are the key criteria to gender neutral job assignments. Indeed, as noted in Griffin, "the presence of women, where feasible, in correction facilities for males is a healthy influence and contributes to more normal social conditions." All these very real considerations outweigh the speculative concerns of defendants that female inmate complaints will occur if male deputies perform the same duties as female deputies on a sex neutral basis. WHEREFORE plaintiff requests that this Court enter summary judgment in favor of plaintiff, finding that the practices described above violate Title VII, leaving only damages for consideration at trial. Respectfully submitted this 22nd day of October 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

24

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

Document 113

Filed 10/22/2007

Page 25 of 25

Certificate of Service I hereby certify that on October 22, 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] 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.

25