391 F.3d 737 (6th Cir. 2004), 02-2028, Everson v. Michigan Dept. of Corrections

• Citation: 391 F.3d 737
• Party Name: Roslyn EVERSON; Randy Fox; Stennis George; Brenda L. Sebastian, and a class of all persons similarly situated, Plaintiffs-Appellees, v. MICHIGAN DEPARTMENT OF CORRECTIONS; Bill Martin, individually and in his official capacity as Director of the Michigan Department of Corrections, Defendants-Appellants (02-2033),
• Case Date: December 03, 2004
• Court: United States Courts of Appeals, U.S. Court of Appeals — Sixth Circuit

Page 737

391 F.3d 737 (6th Cir. 2004)

Roslyn EVERSON; Randy Fox; Stennis George; Brenda L. Sebastian, and a class of all persons similarly situated, Plaintiffs-Appellees,

v.

MICHIGAN DEPARTMENT OF CORRECTIONS; Bill Martin, individually and in his official capacity as Director of the Michigan Department of Corrections, Defendants-Appellants (02-2033),

Linda Nunn; Tracy Neal, Intervening Defendants-Appellants (02-2028/2084).

Nos. 02-2028, 02-2033, 02-2084.

United States Court of Appeals, Sixth Circuit

December 3, 2004

Argued: Feb. 4, 2004.

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[Copyrighted Material Omitted]

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ARGUED:

Deborah A. LaBelle, Law Offices of Deborah LaBelle, Ann Arbor, Michigan, Mark W. Matus, Michigan Department of Attorney General, Lansing, Michigan, for Appellants.

John R. Runyan, Sachs Waldman, Detroit, Michigan, for Appellees.

ON BRIEF:

Deborah A. LaBelle, Law Offices of Deborah LaBelle, Ann Arbor, Michigan, Mark W. Matus, Michigan Department of Attorney General, Lansing, Michigan, for Appellants.

John R. Runyan, Eileen Nowikowski, Marshall J. Widick, Sachs Waldman, Detroit, Michigan, for Appellees.

Before: NORRIS, GILMAN, and ROGERS, Circuit Judges.

OPINION

ROGERS, Circuit Judge.

Following separate lawsuits by female prisoners in Michigan and by the Civil Rights Division of the United States Department of Justice, both of which alleged rampant sexual abuse of female prisoners in Michigan, the Michigan Department of Corrections (the "MDOC") barred males

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from working in certain positions at its female prisons. Specifically, the MDOC designated approximately 250 Correctional Officer ("CO") and Residential Unit Officer ("RUO") positions in housing units at female prisons as "female only." A group of MDOC employees, both males and females, sued the MDOC, alleging that the MDOC's plan violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and Michigan's Elliott-Larsen Civil Rights Act, Mich. Comp. Laws§ 37.2202. Following a bench trial, the district court ruled in the plaintiffs' favor, concluding, among other things, that gender was not a bona fide occupational qualification (a "BFOQ") for the positions in question. The district court entered a permanent injunction enjoining the MDOC from making gender-specific assignments at female prisons. Because gender is a BFOQ for the positions in question, we reverse the judgment of the district court.

BACKGROUND

At the time of trial, the MDOC managed a population of approximately 2000 female prisoners. ¹ Currently, the MDOC houses most of its female prisoners at three facilities. The Robert Scott Correctional Facility (the "Scott Facility"), located in Plymouth, Michigan, is a multilevel prison with an operating capacity of 860 prisoners, and it serves as the reception center for all incoming female prisoners. The Western Wayne Correctional Facility (the "Wayne Facility"), also located in Plymouth, Michigan, is a secure Level I facility with an operating capacity of 775. Camp Brighton, located near Pinckney, Michigan, is a Level I facility with barracks-style housing, and it has an operating capacity of 358.

At the time of trial, the MDOC employed approximately 19,000 persons, about 9400 of whom served as COs and RUOs. The duties of COs and RUOs in the housing units include patrolling the sleeping, shower, and bathroom areas, attending to the basic needs of women prisoners (including the provision of sanitary supplies), monitoring activity in the living quarters, enforcing housing rules and procedures, and assuring that proper standards of care and hygiene are maintained. RUOs staff the housing units on the first and second shifts, while COs staff the housing units on the third shift. CO positions outside the housing units include intake officer and transportation officer. Intake officers shepherd prisoners through the intake process, during which new prisoners are strip searched, fingerprinted, and showered, and during which paperwork is completed on the prisoners. Intake officers examine prisoners while they are naked. Among other things, transportation officers drive inmates to prisons to which they have been transferred and to medical appointments. Sometimes during transportation, female prisoners, who are placed in restraints, require the assistance of a transportation officer to use the bathroom.

The parties have provided only a partial picture of the staffing at Michigan's female prisons. According to the testimony of Lori Sahl, a corrections officer employed at the Wayne Facility, there are three officers per shift assigned to each housing unit at the Wayne Facility. Each unit comprises a pair of wings which house between 80 and 90 inmates each. One

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officer works the "A" wing, one officer works the "B" wing, and one officer works at a desk, where he or she watches the other two officers as they make their rounds. R. 113, Tr. at 91. According to the testimony of Joan Yukins, the warden of the Scott Facility, the housing units at the Scott Facility are shaped like a bow tie with an "A" side, a "B" side, and a "center" containing offices and laundry rooms. In most of the units, each side holds 96 inmates, though the capacity is lower in the high-security and psychiatric units. For the most part, the units are staffed with either two officers per side or one officer per side plus a "rover." R. 119, Tr. at 15-18, 21.

The problem of sexual abuse ² and other mistreatment of female inmates has long plagued the MDOC. In 1993, following interviews of a number of inmates, the Michigan Women's Commission ³ advised the MDOC that it believed that "sexual assault and harassment are not isolated incidents and that fear of reporting such incidents is a significant problem." In 1996, after an independent investigation, Human Rights Watch issued a report concluding that "rape, sexual assault or abuse, criminal sexual contact, and other misconduct by corrections staff are continuing and serious problems within the women's prisons in Michigan [and] have been tolerated over the years at both the institutional and departmental levels." ⁴ Human Rights Watch also charged that the male corrections staff routinely violated the privacy rights of inmates by, for example, abusing their power to conduct "pat-down" searches and improperly viewing inmates as they used the shower or toilet. Later, in 1998, Human Rights Watch issued a second report describing a campaign of retaliation by corrections staff against several women who had made public accusations of sexual abuse. In 1999, following its own investigation, the United Nations Commission on Human Rights seconded Human Rights Watch's charge that corrections officers systematically retaliated against women who reported sexual abuse.

Statistics compiled by the parties add some content to the charge of rampant sexual abuse of female inmates in Michigan's prisons. According to the MDOC, between 1994 and January 31, 2001, it investigated 217 allegations of sexual misconduct-

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⁵ against female inmates, of which 43 were sustained and of which only 47 were deemed unfounded. According to the plaintiffs' calculations, between 1994 and 2000, female inmates made 208 allegations of sexual misconduct, of which 58 were sustained or resulted in the resignation, leave, or discharge of the accused. In 1997 and 1998, Michigan cases constituted 10 out of a total of 20 convictions of male staff nationwide for criminal sexual conduct against women prisoners.

In addition to public criticism, the MDOC faced a pair of high-profile lawsuits involving the sexual abuse of female inmates in this period. On March 27, 1996, a group of female inmates ⁶ filed suit in the United States District Court for the Eastern District of Michigan against the MDOC and a number of state officials and corrections officers (the " Nunn lawsuit"). The inmates alleged rampant sexual misconduct, sexual harassment, violation of privacy rights, and retaliation by corrections officers, and they asserted violations of the First, Fourth, Eighth, Ninth, and Fourteenth Amendments under 42 U.S.C. § 1983, and of the Violence Against Women Act, 42 U.S.C.§ 13981. The inmates' monetary claims were settled for a little less than $4 million, and, on July 31, 2000, the inmates' claim for injunctive relief was resolved by a settlement agreement (the " Nunn agreement"). In the Nunn agreement, the MDOC pledged, among other things, to restrict pat-down searches of female inmates by male staff, to require male staff to announce their presence upon entering a housing unit area, and to maintain areas where inmates may dress, shower, and use the toilet without being observed by male staff. Additionally, the Nunn agreement provided that "[c]onsistent with the MDOC's announced intention to limit the assignment of staff in facility housing units to female officers, the MDOC will make a good faith effort to accomplish this objective." ⁷

In June of 1994, the Civil Rights Division of the United States Department of Justice (the "DOJ") initiated an investigation of allegations of sexual abuse and other violations of the constitutional rights of inmates at a pair of Michigan women's prisons pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997 et seq. The State refused to grant the DOJ access to the facilities, but the DOJ managed to interview over 100 inmates in the course of its investigation. By a letter dated March 27, 1995, the DOJ advised the Governor of Michigan that it

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had concluded that "various acts, practices, and other conditions at both facilities deny inmates confined there of their constitutional rights." The DOJ found that "sexual abuse of women inmates by guards, including rapes, the lack of adequate medical care, including mental health services, grossly deficient sanitation, crowding, and other threats to the physical safety and well-being of...