Breiner v. Nev. Dep't Of Corr.

• Decision Date: 08 July 2010
• Docket Number: No. 09-15568.,09-15568.
• Citation: 610 F.3d 1202
• Parties: Edward C. BREINER; Loren Chapulin; Jimmie McNeal; Randy Stout, Plaintiffs-Appellants,v.NEVADA DEPARTMENT OF CORRECTIONS; State of Nevada; Glen Whorton; Jackie Crawford, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

610 F.3d 1202

Edward C. BREINER; Loren Chapulin; Jimmie McNeal; Randy Stout, Plaintiffs-Appellants,v.NEVADA DEPARTMENT OF CORRECTIONS; State of Nevada; Glen Whorton; Jackie Crawford, Defendants-Appellees.

No. 09-15568.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 11, 2010.

Filed July 8, 2010.

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John B. Marcin, Marcin Lambirth, LLP, Las Vegas, NE, for the plaintiffs-appellants.

Roger R. Madsen, Deputy Attorney General, Catherine Cortez Masto, Attorney General, Las Vegas, NE, for the defendants-appellees.

Appeal from the United States District Court for the District of Nevada, Kent J. Dawson, District Judge, Presiding. D.C. No. 2:05-CV-01412-KJD-RJJ.

Before: JOHN T. NOONAN, MARSHA S. BERZON and SANDRA S. IKUTA, Circuit Judges.

BERZON, Circuit Judge:

The Nevada Department of Corrections (NDOC) hires only female correctional lieutenants at a women's prison. The district court granted summary judgment upholding NDOC's discriminatory employment policy, concluding that the policy imposed only a “de minimis” restriction on male prison employees' promotional opportunities and, alternatively, that the policy falls within Title VII's exception permitting sex discrimination in jobs for which sex is a bona fide occupational qualification, 42 U.S.C. § 2000e-2(e)(1). We reverse as to both holdings.

Factual & Procedural Background

In September 2003, NDOC's Inspector General learned that a female inmate at the Southern Nevada Women's Correctional Facility (SNWCF) had been impregnated by a male guard. At the time, SNWCF was operated by a private company, Corrections Corporation of America (CCA). The pregnant inmate alleged that her relationship with the guard stemmed from CCA's refusal to provide the psychotropic medications she had long been prescribed to treat her schizophrenia. NDOC Director Jackie Crawford acknowledged that her office had received a number of complaints concerning medical issues at SNWCF. At Crawford's direction, the Inspector General interviewed approximately 200 inmates about “their personal experiences with the medical function at [SNWCF].” Nearly all the inmates reported receiving substandard medical treatment.

In the course of the investigation, the Inspector General also discovered that SNWCF had become “an uninhibited sexual environment.” He noted “frequent instances of inappropriate staff/inmate interaction,” “flirtatious activities between staff and inmates,” and “widespread knowledge” of “long-term inmate/inmate sexual relationships.” In exchange for sex, prison staff “routinely introduce[d] ... contraband into the institution, including alcohol, narcotics, cosmetics, [and] jewelry.” The inmates' sexual behavior-which they freely admitted was designed to “compromise staff and enhance inmate privileges”-was, in the Inspector General's view, “predictable.” The Inspector General attributed the guards' misconduct to “a lack of effective supervisory management oversight and control.... There is no evidence that supervisors or managers recognize this risky behavior or do anything to stop it.” To address this “leadership void,” the Inspector General recommended that “line supervisors undergo leadership training” and that “subordinate staff undergo re-training with emphasis on inmate con games and ethical behavior.”

In the wake of the Inspector General's report, which ignited “very high profile” media coverage, CCA announced that it was terminating its contract to operate SNWCF. NDOC resumed control of the facility and, according to Crawford, faced intense political pressure to “mitigate the number of newspaper articles” and to “assure the State of Nevada that we would not be embarrassed like this again.” To achieve this goal, Crawford decided to restaff the facility so that seventy percent of the front line staff at SNWCF would be women.

Crawford also decided to hire only women in SNWCF's three correctional lieutenant positions. The correctional lieutenants are shift supervisors and are the senior employees on duty seventy-five percent of the time. Correctional lieutenants report to wardens or deputy wardens and are responsible for supervising the prison's day-to-day operations, including directing the work of subordinate staff, inspecting the facility and reporting infractions, and monitoring inmates' activities and movement through the facility. There is one correctional lieutenant assigned to SNWCF per shift. Although the correctional lieutenant posting specified that “only female applicants will be accepted for these positions,” several males applied for the positions, which were eventually filled by three women.

Edward Breiner, Loren Chapulin, Jimmie McNeal and Randy Stout, the present plaintiffs, all male Nevada correctional officers, were not among the men who applied for the SNWCF correctional lieutenant positions. They nonetheless filed charges with the Equal Employment Opportunity Commission, received notice of their right to sue, and filed suit alleging that the state's decision to limit the correctional lieutenant positions to women violated Title VII's prohibition on sex discrimination in employment.¹

The district court granted NDOC's motion for summary judgment, holding that the gender restriction on the three correctional lieutenant positions at SNWCF had a “de minimis” impact on the plaintiffs' overall promotional opportunities within NDOC, and that it was therefore unnecessary to decide whether the positions fell within Title VII's exception for jobs in which sex is a bona fide occupational qualification (BFOQ), 42 U.S.C. § 2000e-2(e)(1). Alternatively, the district court concluded that NDOC had carried its burden of proving that “gender constitutes a BFOQ for the three correctional lieutenant posts at SNWCF,” because the restriction was designed to meet “NDOC's goal of reversing the very real and documented problems at SNWCF.” ² This timely appeal followed.

Standing

NDOC argues for the first time on appeal that because the plaintiffs did not apply for the NDOC positions and would not have been selected anyway for reasons other than their sex, they lack standing to pursue their Title VII claim. As standing is a jurisdictional requirement, we must consider NDOC's argument before reaching the merits of the plaintiffs' Title VII claim. See Pritikin v. Dep't of Energy, 254 F.3d 791, 796 (9th Cir.2001). We review the plaintiffs' standing de novo Mayfield v. United States, 599 F.3d 964, 970 (9th Cir.2010), and conclude that Stout, at least, has standing, as we now explain.

To have standing in this case, a plaintiff must demonstrate a “concrete and particularized” injury, “fairly traceable” to NDOC's discriminatory policy, and “likely” to be “redressed by a favorable decision” of this court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks, brackets and ellipses omitted). That the plaintiffs did not apply for the correctional lieutenant positions does not preclude them from establishing such an injury. A nonapplicant suffers “an invasion of a legally protected interest,” id. at 560, 112 S.Ct. 2130, under Title VII if “he would have applied for the job had it not been for [the employer's discriminatory] practices.” Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 368, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). To prevail on the merits as nonapplicants, the plaintiffs must show that they were “discouraged from applying” rather than that they “simply failed to do so.” Yartzoff v. Thomas, 809 F.2d 1371, 1374 (9th Cir.1987); see also Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 761-62 (9th Cir.1980).

Stout had previously applied for correctional lieutenant positions. He declared under oath that he was deterred from applying for the SNWCF positions “by [his] knowledge that [his] application would be futile because of the defendant's discriminatory policy.” This evidence is sufficient on summary judgment to establish Stout's standing under the case law applicable to nonapplicants.

NDOC contends that, whether or not the gender restrictions discouraged the plaintiffs from applying, none of them would have qualified for the SNWCF positions even if they had been open to applicants of both sexes. Applicants for the SNWCF correctional lieutenant positions were required to possess one year of experience as a correctional sergeant (the rank below correctional lieutenant) in the state of Nevada, or “an equivalent combination of education and experience.” Stout had been a correctional sergeant since 1998. NDOC's own personnel analyst affirmed that Stout “would have qualified for a correctional lieutenant position with NDOC in 2004.”

NDOC's assertion that Stout was ineligible for the SNWCF positions because “he had expired from the Correctional Lieutenant certification list” is not supported by the record. The posting for the correctional lieutenant positions specified that applicants must possess a driver's license, pass a drug test, and satisfy Nevada's “P.O.S.T. requirements” (police officer standard training),³ but contained no reference to a “certification list.” Indeed, Crawford stated that “people who had applied [for the correctional lieutenant positions] had to go back up through personnel to make sure they met those qualifications ... for the lieutenant. And, then, I get a certified list ... that means State Personnel has screened and has certified a list that we, then, have to work from.” This statement makes clear that a list was created of all qualified applicants; inclusion on the list was not a preapplication job requirement. Moreover, even if such a preapplication list existed, there is no basis for concluding that Stout could not have renewed his eligibility in time to apply for the positions had he not been dissuaded from doing so by the female-only restriction.

In sum, we conclude that besides the female-only restriction, “there was no other qualification...