Torres v. WIS. DEPT. OF HEALTH & SOCIAL SERVICES

• Decision Date: 16 May 1986
• Docket Number: No. 83-C-627 to 83-C-629.,83-C-627 to 83-C-629.
• Citation: 639 F. Supp. 271
• Parties: Raymond J. TORRES, Franklin J. Utz, and Gerald F. Schmit, Plaintiffs, v. WISCONSIN DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Taycheedah Correctional Institution, Nona J. Switala, Individually and In Her Official Capacity, Certain Unnamed Defendant Employees of the Wisconsin Department of Health and Social Services, individually and in Their Official Capacity, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

639 F. Supp. 271

Raymond J. TORRES, Franklin J. Utz, and Gerald F. Schmit, Plaintiffs, v. WISCONSIN DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Taycheedah Correctional Institution, Nona J. Switala, Individually and In Her Official Capacity, Certain Unnamed Defendant Employees of the Wisconsin Department of Health and Social Services, individually and in Their Official Capacity, Defendants.

Nos. 83-C-627 to 83-C-629.

United States District Court, E.D. Wisconsin.

May 16, 1986.

Joseph H. Pomeroy, Dale L. English, Jerold E. Murphy, Colwin, Fortune, Colwin, Pomeroy & English, S.C., Fond du Lac, Wis., for plaintiffs.

John R. Sweeney, Asst. Atty. Gen., Madison, Wis., for defendants.

DECISION AND ORDER

WARREN, District Judge.

This case concerns plaintiffs' claim of reverse sex discrimination pursuant to their employment as male prison guards at a female prison. Accordingly, plaintiffs seek relief pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1976) ("Title VII"). An eleven-day court trial was conducted on this matter commencing July 23, 1985, during which various fact and expert witnesses offered testimony. Furthermore, prior to trial, the Court conducted a tour of the facilities at the subject female prison, Taycheedah Correctional Institution ("TCI"). The following constitutes the Court's findings of fact and conclusions of law.

Background

I. The Plaintiffs

1. Plaintiff, Raymond R. Torres, is an adult male resident of Fond du Lac, Wisconsin, 48 years of age. He is currently employed by the Wisconsin Department of Health and Social Services (DHSS), Division of Corrections (DOC), as a Correctional Officer 2. Torres became employed by DHSS in 1975 and was initially employed as a CO-1 at Waupun State Prison ("WCI"). He worked in various cell halls and units of the institution, ultimately being promoted to CO-3 (Sergeant). In December, 1978, Torres transferred from Waupun Correctional Institution to TCI at the urging of his wife so that he would be working closer to his residence. The transfer was as CO-3.

2. Plaintiff, Frank J. Utz, is an adult male resident of Fond du Lac, Wisconsin, 56 years of age. He is currently employed by DHSS, Division of Corrections as a CO-2. Utz was initially employed by DHSS in April of 1967 and worked as a Youth Counselor I at the Kettle Moraine Correctional Institution. He spent 5 years there, rising to a CO-3 and spent 5 years at the Winnebago State Camp. In 1979 he transferred to TCI as a CO-3.

3. Plaintiff, Gerald Schmit, is an adult male resident of Fond du Lac, Wisconsin, 41 years of age. He is currently employed by DHSS, Division of Corrections as a CO-2. Schmit began working for DOC at 22 years of age. After 6 months at WCI he moved to a job at Mercury Marine. Approximately a year later he again went to work for DOC as a CO-1 and has been with the Division continuously since then. He left WCI in 1975 and transferred to TCI as a CO-3 after passing a promotional exam.

DHSS has three classifications for its correctional officers ranked, as follows, in ascending order: Correctional Officer 1 (CO-1); Correctional Officer 2 (CO-2); and Correctional Officer 3 (CO-3). At TCI officers from all three classifications are stationed in the housing units.

All correctional officers, regardless of sex, receive the same training and are offered educational courses, including courses that teach the officers how to interact with, relate to, and perceive the inmates.

Generally speaking correctional officers are responsible for the security, custody, control and treatment of inmates according to the statutes, administrative rules, institutional policies, post orders, and work rules. The specific job duties for a given post are set forth in "post orders" for that particular post. Each post at TCI is assigned a number and written orders for each numbered post are available from the shift lieutenants.

Posts in correctional institutions in Wisconsin are governed by contract and are filled by qualified officers on the basis of seniority. The CO-3 stationed in a housing unit and in charge thereof is sometimes referred to as the "sergeant." TCI further distinguishes its correctional officers staffed in the housing units by designating certain positions as that of "rover." Generally, the rover's duties entail "roving" the corridors of the various housing units to ensure that order and security are maintained. Occasionally a rover will fill in for other correctional officers stationed in the housing units while they are on break.

As indicated, Torres, Utz and Schmit each transferred into TCI from elsewhere in the system. This occurred in 1978, 1979 and 1975 respectively. They were all CO-3's in housing units at TCI working primarily first and second shift. As house sergeants their station was in an office on the first floor of each floor and primarily their duties are performed in that office although at times the housing sergeant must perforce go into various areas of the living unit for which he is responsible. It is undisputed that the plaintiffs were competent and qualified CO-3's and that they performed their duties satisfactorily. No claim is made by defendants that any plaintiff was demoted because of a deficiency of performance.

II. The Defendants

The Wisconsin Department of Health and Social Services is the largest branch of the state government. It has its principal office in Madison, Wisconsin, and through its Division of Corrections ("DOC") is responsible for the operation and administration of all of the institutions in the Wisconsin correctional system.

The defendant Taycheedah Correctional Institution is a prison for females operated by DHSS. It is the only women's maximum security prison in Wisconsin, and is located on an attractive wooded site just below the Niagara escarpment on the eastern outskirts of Fond du Lac, Wisconsin. It is surrounded by a cyclone fence topped with barbed wire. The grounds are roomy and well cared for. There are a variety of administrative, activity and utility structures on the grounds, but this case deals with the housing units. Four of these buildings—Harris Hall, Addams Hall, Neprud Hall and Grover Segregation Unit house the inmates and are (except for Grover) the living units which contain officer positions presently unavailable to the plaintiffs as the result of the BFOQ at issue herein.

Defendant Nona J. Switala, is the Superintendent of TCI and has been such since September, 1978. Prior to assuming said responsibility she was the Director of Treatment and Services at TCI for about 3 years.

III. Taycheedah Correctional Institution

All of the residence halls at Taycheedah are masonry buildings with three residence floors. The buildings have varying dates of construction and varying floor plans. Grover Hall was just finished in 1983. It contains the inmate receiving and orientation facilities, segregation area, health services, control center and visitation center. The plaintiffs were never posted as CO-3's in Grover inasmuch as the BFOQ plan had been put in place prior to the construction of that hall.

TCI was originally a women's prison. In July 1975 DHSS designated the Wisconsin Home for Women a co-correctional institution, changed the name to Taycheedah Correctional Institution and transferred male inmates and some male officers there. This situation continued until February, 1978. Then TCI again became a prison for females only. It houses minimum, medium and maximum security inmates, all felons. During Switala's tenure it has housed between 173 and 200 female inmates.

Each housing unit's staffing patterns presently vary — and have varied in the past — depending upon the security classification of the building. Staffing is done around the clock with three shifts: 6 a.m.-2 p.m.; 2 p.m.-10 p.m.; 10 p.m.-6 a.m.. Each unit always has at least one CO-3 (Sergeant) working each shift. The post of such officers is an office on the first floor of each building and the majority of a sergeant's duties are performed right there.

In addition to the CO-3 on duty, each housing unit has a varying number of CO-1's and CO-2's, depending upon the security classification of the inmates housed therein, the physical layout of the building, and the types of activities requiring supervision. Throughout the years under scrutiny these staffing patterns have varied greatly as changes occurred in the institution and its policies.

Neprud

From 1978 through March 1985, Neprud Hall was classified as the maximum security building. A sergeant was stationed on the first floor on each shift throughout this period. The other staffing patterns at Neprud varied during this period to the extent as follows: 0-2 correctional officers on the first floor during the first and second shifts; 1-3 correctional officers on second floor during the first and second shifts; 1-2 correctional officers on third floor during the second and third shifts; and 0-1 correctional officers on second and third floor during the third shift.

From March, 1985 to the present Neprud Hall has been classified as the minimum security building and is staffed by a sergeant and a CO-3/rover on the first and second shifts and by a sergeant and another correctional officer on the third shift.

Harris

From 1978 to September, 1982, Harris Hall was classified as the minimum security building. The staffing patterns during this time were as follows: in 1978 and 1979 there was a sergeant on the first floor for all three shifts, and a correctional officer on third floor for first and second shift; from 1980 to September, 1982, there was only a sergeant on the first floor for all three shifts. In September, 1982, Harris Hall was classified as the medium security building and remains such today. It was staffed with a sergeant on the first floor and a correctional officer on the third floor during all three shifts. There was also a correctional officer on the second floor...