Edwards v. Dept. of Corrections

• Decision Date: 25 July 1985
• Docket Number: Civ. A. No. 84-T-975-N.
• Citation: 615 F. Supp. 804
• Parties: Robert D. EDWARDS, Plaintiff, v. DEPARTMENT OF CORRECTIONS, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

615 F. Supp. 804

Robert D. EDWARDS, Plaintiff, v. DEPARTMENT OF CORRECTIONS, et al., Defendants.

Civ. A. No. 84-T-975-N.

United States District Court, M.D. Alabama, N.D.

July 25, 1985.

Julian McPhillips, McPhillips & DeBardelaben, Montgomery, Ala., for plaintiff.

Harry A. Lyles, Bobby N. Bright, Asst. Atty. Gen., Asst. Gen. Counsel, Dept. of Corrections, Montgomery, Ala., for defendants.

MEMORANDUM OPINION

MYRON H. THOMPSON, District Judge.

Plaintiff Robert D. Edwards has brought this lawsuit charging that defendants Department of Corrections of the State of Alabama and various officials of the Department refused to promote him to a position in the state prison for women because he is a male.¹ Based on the evidence presented at a nonjury trial, the court concludes that Edwards has been a victim of illegal sex discrimination and is entitled to appropriate relief.

I.

The facts in this case are simple and straight-forward. Between September 1982 and April 1983 and again between June and August 1983, the Department of Corrections appointed Edwards acting shift commander at Julia Tutwiler Prison for Women, Alabama's principal prison for women, with inmates from minimum to maximum security designations, located in Elmore County, Alabama. Although the position carries the rank of correctional officer supervisor I, the Department continued Edwards in his lower rank of correctional officer II.

In the summer of 1983, two shift commander positions became available at Tutwiler, including the one Edwards held on an acting basis. Edwards asked the Tutwiler warden to consider promoting him to one of the positions. The warden told Edwards that he could not be promoted because departmental policy restricted the positions to women. By a memo dated July 27, 1983, Edwards was reassigned from acting shift commander to supervisor of transfer agents "as per orders of the Department's Regional Coordinator for Central Alabama that no males would serve in the capacity of shift supervisor...."

However, only one of the two shift commander positions was immediately filled because only one qualified woman applied. The second position was not filled with a woman until the winter of 1983.

Edwards filed a timely charge with the United States Equal Employment Opportunity Commission; and, after receiving a notice of right-to-sue from the Commission, he timely filed this lawsuit charging that in the summer of 1983 he was denied a shift commander position because of his sex, in violation of federal law.

II.

Edwards rests his claim of sex discrimination on Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §§ 2000e to 2000e-17. He charges the Department with intentional "disparate treatment" based on sex, in violation of the Act.²

A plaintiff may establish a claim of impermissible intentional disparate treatment under Title VII by either circumstantial or direct evidence. If the evidence is circumstantial, a trial court should consider the claim generally in the manner outlined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).³ If the evidence is direct, however, the trial court should approach the evidence generally in the manner outlined in such cases as Thompkins v. Morris Brown College, 752 F.2d 558 (11th Cir.1985) and Hayes v. Shelby Memorial Hospital, 726 F.2d 1543 (11th Cir.1984). Here, there is direct evidence of intentional sex discrimination. The Department had a clearly established policy of appointing only women as shift commanders at Tutwiler, and Edwards was specifically told that because of the policy he could not be promoted to such position. The court will therefore consider the evidence according to such cases as Thompkins and Hayes.

Where, as here, there is direct evidence that an employer has intentionally denied an employee a position because of the employee's sex, an employer may still prevail by establishing either of the following affirmative defenses: that the adverse personnel decision would have been reached even in the absence of the discriminatory motive, Thompkins, 752 F.2d at 563, or that a person's sex is a bona fide occupational qualification for the position sought. Hayes, 726 F.2d at 1547. The Department asserts both defenses, and the court now considers each in turn.⁴

III.

The Department asserts that, even in the absence of its discriminatory policy, Edwards would not have been promoted to shift commander in the summer of 1983. That summer, the Department filled one of the shift commander positions through the process of selective certification from the "promotion" register, which ranks currently employed persons according to their ability and qualifications. Under this process, when a department seeks to fill an opening from within, the state personnel office certifies from the promotion register the names of the top three persons, from whom the Department chooses one — and if there are two positions available, the personnel office certifies four names; if three positions, five names; and so forth. The process is considered selective when the certification is restricted to persons having certain characteristics or belonging to certain groups. Here, the certification was selective because it was limited to women.

In the winter of 1983, the Department filled the other shift commander position with a woman from the personnel office's reemployment register. When using this register, the Department is not limited to the top candidates and may choose any person from the register. The Department has the prerogative whether to use the promotion or reemployment register. However, promotions are usually made by use of the promotion register.

The Department contends that, had it not used selective certification in the summer of 1983, Edwards would have ranked only fourth on the promotion register and thus would not have been among the top three certified for promotion by the state personnel office. This contention is meritless because it overlooks certain important facts. There were two, not one, shift commander positions available that summer. Without selective certification, the personnel office would have certified four names, including Edwards's, to fill the two positions. Furthermore, in light of Edwards's exemplary record and immediate experience as acting shift commander, this court is firmly convinced that, without the Department's discriminatory policy, he would have been selected to fill one of the positions. In the absence of the discriminatory policy, Edwards would therefore have been promoted to shift commander in the summer of 1983, with accompanying promotion to the rank of correctional officer supervisor I.

The Department has questioned whether it should bear the affirmative defense of establishing that, in the absence of its discriminatory policy, Edwards would not have been promoted. The Department contends that the issue of Edwards's position on the promotion register goes to his eligibility for the position and that Edwards should have the responsibility of establishing his eligibility as a part of his initial burden of proof. In the circumstances of this case, this contention is meritless.

At the time the Department denied Edwards the promotion, the sole reason stated and relied on by the Department was discriminatory. The evidence reflects that the issue of Edwards's position on the promotion register did not surface until after Edwards initiated legal proceedings challenging the Department's action. Thus, the evidence here reflects the following scenario: the employer admits acting for a discriminatory reason at the time of the adverse personnel action, but argues that had it not so acted for that reason the employee would still not have been promoted. Under these circumstances, the employer should bear the burden of establishing what it would have done absent the admittedly discriminatory reason. See Hardin, 691 F.2d at 1369 n. 16.

The circumstances here are quite different from those where an employer maintains from the outset that the adverse personnel action was based on admittedly non-discriminatory requirements and procedures. In such cases, it could be argued that the employee has the responsibility of establishing eligibility as a part of his burden of establishing direct evidence of discrimination; or it could be argued that such cases are best considered within the Burdine and McDonnell Douglas framework.⁵ These are issues this court need not reach in this case.

Nevertheless, to ensure a full factual record and complete fairness to the Department, this court would add that if Edwards had the burden of establishing that he would have been selected and promoted from the promotion register, he has fully carried that burden.

IV.

The Department asserts next that femaleness is a bona fide occupational qualification (bfoq) for shift commander at Tutwiler. The bfoq defense "is available only when the employer can show that the excluded class is unable to perform the duties that constitute the essence of the job, duties that Title VII defines as `necessary to the normal operation of the particular business or enterprise.' 42 U.S.C.A. § 2000e-2(c)." Hayes, 726 F.2d at 1549. The court must therefore determine whether male employees like Edwards are unable to perform the duties essential to the normal operation of the job.

A.

Courts have several times previously had to consider whether employment in prisons may be restricted by sex. In Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977), the U.S. Supreme Court considered whether maleness was a bfoq for correctional officer positions in Alabama's prisons for male inmates. The Court said that "the bfoq exception was in fact meant to be an extremely narrow exception to the general prohibition of discrimination on the basis of sex."...