AMBAT v. City and County of San Francisco, C 07-03622 SI.

Decision Date17 February 2010
Docket NumberNo. C 07-03622 SI.,C 07-03622 SI.
Citation693 F. Supp.2d 1130
PartiesMercy AMBAT, et al., Plaintiffs, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant.
CourtU.S. District Court — Northern District of California

Noah Wolfson Kanter, Noah Wolfson Kanter, Lawrence Dale Murray, Attorneys at Law, Robert Close Strickland, Murray & Associates, San Francisco, CA, for Plaintiffs.

Margaret W. Baumgartner, Rafal Ofierski, City Attorney's Office, San Francisco, CA, for Defendant.


SUSAN ILLSTON, District Judge.

On February 12, 2010, the Court heard oral argument on the parties' cross-motions for summary judgment. Having considered the arguments of the parties and the papers submitted, and for good cause shown, the Court hereby GRANTS in part defendant's motion for summary judgment, DENIES plaintiffs' motion, and DENIES plaintiff Jon Gray's motion.


These consolidated cases involve challenges by approximately thirty sheriff's deputies to a gender-based staffing policy of the San Francisco Sheriff's Department. In mid-2006, the Sheriff reorganized inmate housing in the San Francisco jails such that all female inmates were placed in County Jail #8 in female-only housing units, or "pods." Thereafter, in October 2006, the Sheriff implemented a policy requiring that only female deputies be assigned to staff these female pods. Plaintiffs in this case are both male and female sheriff's deputies who allege that the Sheriff's staffing policy ("the Policy") amounts to employment discrimination. In their Third Amended Complaint ("TAC"), plaintiffs assert nine causes of action: (1-2) gender discrimination under Title VII and California's Fair Employment and Housing Act ("FEHA"); (3) "gender employment restrictions" under Title VII; (4) "advertisement for gender discrimination" under FEHA; (5-6) retaliation under Title VII and FEHA; (7) failure to prevent violations of FEHA; (8) violations of California's "Whistleblower" Statute; and (9) violations of California's Peace Officers' Bill of Rights.

Presently before the Court are three cross-motions for summary judgment. Defendant moves for summary judgment on each of the nine causes of action. Plaintiffs move for summary judgment on the First, Second, Third, Fourth, and Seventh Causes of Action, and plaintiff Jon Gray moves for summary judgment on the retaliation claims asserted by him and a handful of other plaintiffs.

In granting the majority of defendant's summary judgment motion, the Court wishes to emphasize that its ruling is limited to the facts of the present case. An employer's decision to use gender as the basis for work assignments is outside modern-day norms and presents significant questions regarding the circumstances under which Title VII and FEHA permit gender-based classifications. However, although the courts are responsible for determining whether a particular gender-based staffing policy runs afoul of anti-discrimination statutes, E.E.O.C. v. Boeing Co., 843 F.2d 1213, 1217 (9th Cir.1988), courts must exercise "judicial restraint" when assessing the decisions of correctional officials due to the expertise of such officials, their "ability . . . to plan and muster resources, the primary nature of the executive—as opposed to the judicial— branch of government to run the prisons, and the respect owed to state sovereignty by the federal judiciary." Everson v. Mich. Dep't of Corr., 391 F.3d 737, 752 (6th Cir.2004). Accordingly, the Court's decision today does not amount to an endorsement of the policy implemented by the San Francisco Sheriff's Department, or a statement that the Court would make the same policy decision if placed in the Sheriff's position. The Court concludes only that, under the circumstances of this case, the Sheriff's decision was lawful.


Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party, however, has no burden to disprove matters on which the non-moving party will have the burden of proof at trial. The moving party need only demonstrate that there is an absence of evidence to support the non-moving party's case. Id. at 325, 106 S.Ct. 2548. The burden then shifts to the non-moving party to "set out `specific facts showing a genuine issue for trial.'" Id. at 324, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(e)). To carry this burden, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "The mere existence of a scintilla of evidence... will be insufficient; there must be evidence on which the jury could reasonably find for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In deciding a summary judgment motion, the evidence is viewed in the light most favorable to the non-moving party, and all justifiable inferences are to be drawn in its favor. Id. at 255, 106 S.Ct. 2505. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge ... ruling on a motion for summary judgment." Id. However, conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. Thornhill Publ'g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir.1979).

I. First and Second Causes of Action: Gender Discrimination under Title VII and FEHA

Plaintiffs' First and Second Causes of Action allege that the Policy constitutes gender discrimination under state and federal law. First, plaintiffs allege that they have suffered injury as a result of a change in the shift-bid system. According to plaintiffs, when the Policy was implemented, the Sheriff's Department began making assignments for shifts and days off according to gender rather than seniority. TAC ¶ 39. Both the male and female plaintiffs allege that they have received less favorable assignments than they would have under the seniority-based system. The male plaintiffs further allege that they have lost overtime shifts in the female pods to female deputies with less seniority, that they have lost promotional opportunities as a result of a lack of opportunity to supervise female inmates, and that they are forced to "trade" to shifts in unfamiliar facilities when a female deputy in one of those facilities is needed to staff a shift in a female pod. Id. ¶¶ 37-41, 108.

Second, the female plaintiffs separately allege that they are placed at increased stress and risk of harm as a result of the Policy. According to plaintiffs, this is because female inmates are not segregated by security level, history of violence, or mental health status, because lights are not kept on 24 hours a day as they are in male housing units, and because the female pods are overcrowded and understaffed, with only one female deputy on duty at certain times. TAC ¶ 25-28, 31. The female plaintiffs further allege that they lack adequate training in the security procedures needed to deal with the female inmate population, and that the female pods lack infrastructure for security enforcement, such as leg and body chains to be used in transporting dangerous inmates. Id. ¶¶ 30, 32.

Title VII and FEHA make it unlawful for an employer to discriminate on the basis of sex with respect to an employee's compensation or in the terms, conditions, or privileges of employment, or to "limit, segregate, or classify" on the basis of sex in any way that deprives employees of employment opportunities or adversely affects their employment status. 42 U.S.C. § 2000e-2(a)(1) & (2); Cal. Gov. Code § 12940(a). Where, as here, an employer's policy differentiates between male and female employees on its face, the employer bears the burden of demonstrating a defense to liability. Frank v. United Airlines, Inc., 216 F.3d 845, 853 (9th Cir. 2000).

A statutory defense to liability under both Title VII and FEHA exists when sex is a bona fide occupational qualification ("BFOQ") that is "reasonably necessary to the normal operation of that particular business or enterprise." 42 U.S.C. § 2000e-2(e); Cal. Gov.Code § 12940.1 The BFOQ defense is available only under limited circumstances. First, the employer must show that the "essence" or "central mission" of its business would be undermined if the employer did not impose the qualification. Int'l Union, United Automobile, Aerospace & Agric. Implement Workers of Am., UAW v. Johnson Controls, 499 U.S. 187, 202-03, 111 S.Ct. 1196, 113 L.Ed.2d 158 (1991); Dothard v. Rawlinson, 433 U.S. 321, 333, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977). In the correctional context, the "essence" of the business includes "the security of the prison, the safety of inmates, and the protection of the privacy rights of inmates." Everson, 391 F.3d at 753. Second, the employer must demonstrate that the qualification actually relates to an employee's ability to do the job and is reasonably necessary—not "merely reasonable or convenient"—to ensure continued operation of the business. Id. at 748.2 Finally, the employer must show that the interests advanced by the challenged policy could not be achieved through any reasonable alternative policy. Everson, 391 F.3d at 749; Robino v. Iranon, 145 F.3d 1109, 1111 (9th Cir.1998).

A. Essence of the Business

Defendant has shown to the Court's satisfaction that the Policy was implemented to protect interests that amount...

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