Akines v. Shelby County Government, 02-2483 B.

Decision Date05 July 2007
Docket NumberNo. 02-2483 B.,02-2483 B.
Citation512 F.Supp.2d 1138
PartiesVeronica M. AKINES, et al., Plaintiffs, v. SHELBY COUNTY GOVERNMENT (Shelby County Correctional Center), Defendant.
CourtU.S. District Court — Western District of Tennessee

Kathleen L. Caldwell, Law Office of Kathleen L. Caldwell, Memphis, TN, for Plaintiffs.

Hite McLean, Jr., Law Offices of Hite McLean, Jr., Memphis, TN, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

J. DANIEL BREEN, District Judge.

On July 17, 2006, this Court entered an order granting in part1 and denying in part the motion for summary judgment of the Defendant Shelby County Government ("Shelby County"). (Order Granting in Part, Den. in Part Def.'s Mot. Summ. J. at 1). In that order the Court determined that the Defendant's statement of undisputed facts did not contain a sufficient factual basis for the Court to consider a motion for summary judgment as to Plaintiffs Chiffon Barden, Carolyn Boyd, Marilyn Cole, Jacqueline Dorsey, Kathleen Ellis, Ramona Hillman, Vicki Joiner, Francies Moody-Toles, Elaine Morris, Earline Riley, Tamara Taliaferro, Cheryl Thomas, Veronica Tinsley, or Tennia Williams.2 Thereafter, the Court directed the Defendant to resubmit a motion for summary judgment addressing the claims of the foregoing Plaintiffs. Before the Court is the renewed motion of Shelby County for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, the Defendant's motion for summary judgment is GRANTED.

BACKGROUND

The Plaintiffs in this action are all female employees of the Defendant assigned to work with inmates at the Shelby County Correctional Center ("SCCC"). In the instant action, the Plaintiffs contend that they are often exposed to sexual harassment by inmates during the course of their employment. It is uncontested that SCCC has a written Inmate Discipline Policy ("IDP" or "the Policy") setting forth rules governing inmate behavior, including provisions relating to the sexual harassment complained of here. (Def.'s Mem. in Supp. Initial Mot. Summ. J. ("Def.'s Initial3 Mot."), Ex. A at no. 2). The IDP contains lists of major and minor infractions as well as a list of sanctions for violation of the rules. (Def.'s Initial Mot., Ex. A at no. 3). Included among the categories of prohibited inmate behavior are the making of sexually obscene gestures (Rule 202); showing disrespect for any employee, by using derogatory, profane, abusive language, remarks or gestures, including yelling (Rule 316); intentionally exposing the genitals, buttocks, or breasts (female only) to another (Rule 319); and sexual assault or threat to commit sexual assault (Rule 405). (Def.'s Initial Mot., Ex. A. at no. 10.) Formal sanctions authorized under the Policy for violation of these rules include punitive isolation, reduction in sentence credits and restriction of privileges including visitation, telephone, commissary, television, recreation and/or other privileges.4 (Def.'s Initial Mot., Ex. A. at no. 11).

Under the Policy, any employee of the SCCC may write a disciplinary report ("report," "write-up," or "disciplinary") against any inmate who acts in violation of the rules that it sets forth.5 (Def.'s Initial Mot., Ex. A at no. 4). The policy states that a report should be filed "as soon as possible after a violation is discovered" and that, after a disciplinary report is filed, an investigation will be initiated within 24-hours. (Def.'s Initial Mot., Ex. A at nos. 5, 6). Preparation of a disciplinary report upon observation of an inmate acting in violation of the IDP is a responsibility of an SCCC correctional officer's job. (Def.'s Initial Mot., Ex. A at no. 17). As part of their required annual in-service training, SCCC correctional officers are trained on how to prepare disciplinary reports for violations of the IDP.6 (Def.'s Initial Mot., Ex. A at no. 20). Shelby County has an Inmate Disciplinary Board, comprised of four staff members, that handles all inmate disciplinaries for the County's Division of Corrections. (Dep. Marcquinne Yancey7 at 6).

The incidents giving rise to the Plaintiffs' claims in this action occurred during the period between January 1999 and September 2002.8 (Def.'s Reply Pl.'s Resp. Def.'s Second Mot. Summ. J. ("Def.'s Reply"), Dep. Mark Henry Luttrell ("Luttrell Dep.") at 5). In June 2000, George Schellman9 prepared a report at the request of William H. Montague, the Administrator of Operations at the Center, of all incidents of masturbation or indecent exposure reported on the Day Reports in the prior eighteen (18) months. (Pl.'s Resp., Ex. 1, Schellman at 1-2). The report cited 40 instances of such behavior and included the following summary:

1. The overwhelming majority of these acts are directed at female employees. 2. These acts occur mostly in E and J Buildings. 3. The number of these acts seems to be increasing. 4. The incident reports indicate that these acts are blatant and directed towards staff.

(Pl.'s Resp., Ex. 1, Schellman at 2). Marquinne Yancey, Program Administration Specialist A ("PASA") at SCCC, testified at her deposition that not every incident report that was filed regarding sexual harassment would have been included on the Day Reports on which Schellman relied in comprising the cited data. (Yancey Dep. at 38-19). According to Yancey, only sexual assaults or major incidents would be recorded there. (Yancey Dep. at 38-39).

In January 2002, female correctional officers raised their concerns regarding sexual harassment by inmates in a meeting with Montague.10 (Pl.'s Resp. at 4). While the details of this meeting, including the participants and subject matter, have not been presented here, Montague testified at his deposition that, during this time, he was aware of the concerns of female correctional officers regarding inmate exposure, as well as concerns that male employees of the center were not responding appropriately to exposure incidents. Subsequently, on January 22, 2002, he issued a memorandum specifically addressing inmate exposure at SCCC. (Def.'s Initial Mot., Ex. A at 12; PL's Resp., Core Ex. 4). The memorandum, addressed to "[a]ll Supervisors and Employees," stated as follows:

The problem of inmate sexual exposure to staff is one of a serious nature and should not /is not to be taken lightly.... No incident of inmate sexual exposure to staff (or each other) will be ignored. Staff personnel who are targets of intentional, deliberate acts of this type of disrespect will immediately notify their supervisors and proceed to compose a disciplinary narrative supporting the charge.... By no means will any one attempt to correct this problem by ignoring it or by casually excusing it as though "it is part of the job."

(Pl.'s Resp., Core Ex. 4 at 1-2). Also in January 2002, Montague requested that the Disciplinary Hearing Board increase the sanctions imposed on inmates who intentionally exposed themselves to staff in order to rectify their behavior. (Dep. Gloria Jean Reddick ("Reddick Dep.") at 14).11 In addition, he directed the Disciplinary Hearing Board to prepare a report detailing incidents of indecent exposure. Pursuant to this request, on. January 23, 2002, Dorothy Golden12, prepared a memorandum listing all inmates who intentionally exposed themselves to staff between January 1, 2001 and January 22, 2002.13 (Marquinne Yancey Unsworn Statement ("Yancey Statement"), Ex. 4).14 During this period, inmates at SCCC were charged with 287 instances of intentionally exposing themselves to staff. (Yancey Statement, Ex. 4). According to Golden's report, all but nine of those inmates were found guilty and subjected to some form of sanction for the reported conduct, including punitive time or a loss of sentence credits. (Yancey Statement, Ex. 4). Regarding the nine who received no sanction, seven were dismissed and two were found not guilty. (Yancey Statement, Ex. 4).

Between February 1, 2002 and February 18, 2002, twenty-seven inmates were charged with violation of Rule 319 for intentionally exposing themselves. (Def.'s Reply Pl.'s Resp. Def.'s First Mot. Summ. J., Gloria Reddick Unsworn Statement ("Reddick Statement") at ¶ 2, Ex. 1). Of those, twenty-six received sanctions of punitive time or a loss of sentence credits. (Reddick Statement ¶ 2, Ex. 1.) The final inmate was found not guilty of violation of Rule 319, but was found guilty of masturbation in violation of Rule 202. (Reddick Statement ¶ 2, Ex. 1).

Plaintiffs have also complained about sexual harassment by co-workers and supervisors. However, they concede that their complaint does not seek relief for sexual harassment specifically by co-workers or supervisors. Rather, such allegations are offered only as additional evidence to show the presence of a hostile work environment.

As of November 2003, there were 2,582 inmates housed in the SCCC, approximately 92% of whom were male.15 (Unsworn Statement Marquinne Yancey ("Yancey Statement") ¶ 10). SCCC employs 367 correctional officers at the Center. Of those, 220 are male and 147 are female. (Yancey Statement ¶ 11). Because there are not enough male officers to cover the male inmates, female correctional officers are often assigned to male inmate facilities. (Def.'s Initial Mot., Ex. A, at no. 64). However, male officers are not assigned to work in female inmate facilities. (Dep. Vicki Joiner ("Joiner Dep.") at 62).

Plaintiffs each filed complaints with the Equal Employment Opportunity Commission ("EEOC") regarding the sexual harassment complained of herein between the period of January 31, 2002 and May 2002.16 (Compl. ¶ 3). They subsequently brought this federal action alleging sexual harassment in violation of Title VII, 42 U. S.C. § 2000e and 42 U.S.C. §§ 1983, 1985, and 1986 and the Tennessee Whistleblower Act, Tenn.Code Ann. § 50-1-304.

STANDARD OF REVIEW

Rule 56(c) provides that a

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