U.S. v. Gregory

• Decision Date: 19 May 1987
• Docket Number: 86-3122,Nos. 86-3121,s. 86-3121
• Citation: 818 F.2d 1114
• Parties: 46 Fair Empl.Prac.Cas. 1743, 43 Empl. Prac. Dec. P 37,161 UNITED STATES of America, Plaintiff-Appellant, v. Jay GREGORY, Sheriff of Patrick County, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellee, v. Jay GREGORY, Sheriff of Patrick County, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1114

818 F.2d 1114

46 Fair Empl.Prac.Cas. 1743,

43 Empl. Prac. Dec. P 37,161

UNITED STATES of America, Plaintiff-Appellant, v. Jay GREGORY, Sheriff of Patrick County, Defendant-Appellee.

UNITED STATES of America, Plaintiff-Appellee, v. Jay GREGORY, Sheriff of Patrick County, Defendant-Appellant.

Nos. 86-3121, 86-3122.

United States Court of Appeals, Fourth Circuit.

Argued March 2, 1987.

Decided May 19, 1987.

Irving Gornstein, Dept. of Justice (William Bradford Reynolds, Asst. Atty. Gen.; Jessica Dunsay Silver, Dept. of Justice on brief), for plaintiff-appellant.

Anthony Paul Giorno, Co. Atty., for the County of Patrick, Virginia for defendant-appellee.

Before HALL, and CHAPMAN Circuit Judges, and TIMBERS, Senior Circuit Judge for the Second Circuit, United States Court of Appeals, Sitting by Designation.

CHAPMAN, Circuit Judge:

The Sheriff of Patrick County, who is the appellee in this case, and his predecessor have failed to employ women in certain deputy positions. The district court, held that the positions of road deputy, investigator deputy and supervisor deputy in this rural county are within the "personal staff" of the sheriff, thus exempting such positions from the coverage of Title VII. The district court also found that the sheriff's express prohibition against the employment of female officers within Patrick County's all-male jail was justified as a bona fide occupational qualification. We reverse both determinations, holding that the narrow exception to Title VII for personal staff does not encompass these road deputy positions, and that the appellee has failed to prove that the county could not have feasibly made the employment of female correctional officers possible through reasonable modification of the prison facility and job functions.

I.

Patrick County is a sparsely populated, rural county, with a relatively large land area. The sheriff is elected, and his department consists of twenty-three individuals, including "sworn officers" or deputies. The deputy classification includes four road deputies, two investigators, two supervisors, two court security officers, five correctional officers, one process server, and two "clerk-steno" matrons. The sheriff at the time that most of the alleged discriminatory incidents occurred was Sheriff Williams, who was defeated at election by Sheriff Gregory, the substituted defendant in this case.

Four women instigated this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, et seq. Stephanie Ressel alleged that she was denied the position of courtroom security officer and that the position was given to a male whom the district court found less qualified than Ressel. The district court granted Ressel back pay but refused to award interest. Doris Scales was refused a job as a deputy allegedly because of her gender. Wanda Hylton, who also applied for a deputy position, claims that she was told by the sheriff that he would not consider hiring a woman as a deputy. Hylton was eventually hired a dispatcher, but in time left the department. The other appellant, Kathy Sheppard, was according to the sheriff offered a position as a road deputy, which she refused. Sheriff Williams then made her civil process server, a promotion from her dispatcher position. After Sheriff Williams lost the next election, Sheriff Gregory abolished the position of civil process server. Sheppard argues that Gregory's action violated Title VII.

The district court did not reach the merits of most of the appellants' contentions, nor did it address the justifications proffered by the appellee. Instead, the district court concluded that several of the deputy sheriff positions fell within the "personal staff" exception to Title VII. ¹ The court concluded that a road deputy is a personal staff position because the deputy is the "alter-ego and personification of the sheriff in the geographical area to which he is assigned.... They are the eyes and ears of the sheriff, not only for matters which fall within their official sphere but also as to matters political." The court further held that this determination implied the finding that the investigator and supervisor positions are also within the personal staff, because those positions require experience as a road deputy.

It appears that certain appellants were also denied an opportunity to work as correctional officers in the county jail because of the sheriff's express policy to exclude female guards from the all-male jail. The district court found that a correctional officer is not a personal staff position, but that being a male is a bona fide occupational qualification for that position. The court reasoned that, because the jail houses male inmates only, and because some of the duties of the correctional officers require personal contact and unclothed circumstances with the inmates, a female officer could create embarrassment for both the officer and the inmates. Thus the district court found that the exclusion of females was made in furtherance of a bona fide occupational requirement.

Regarding the courtroom security position, the district court held that the personal staff exemption is not applicable, and that the sheriff discriminated against Ressel in filling that position. In calculating the amount of Ressel's back pay award, the court noted that she had been employed for three months during the period for which back pay was sought. The court found that although she worked for her husband without pay, she benefited indirectly. The court thus refused to grant Ressel interest on her back pay award.

Finally, the district court found that Sheriff Gregory's decision to abolish the position of process server was based on budgetary constraints, and was not a pretext for discrimination. The district court also refused to grant the United States prospective relief, reasoning that the only victim of discrimination, Ressel, did not want a job with the department, and that in any event, the present sheriff had not engaged in any act of discrimination.

II.

Title VII defines the term "employee" as:

... an individual employed by an employer, except that the term "employee" shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office....

42 U.S.C. Sec. 2000e(f).

This court has twice interpreted the scope of the "personal staff" exception to the coverage of Title VII. In Curl v. Reavis, 740 F.2d 1323 (4th Cir.1984), the question presented was whether the position of dispatcher/matron fell within the sheriff's personal staff. The court noted that the question was one of federal law, with state law relevant only insofar as it describes the plaintiff's position, including his duties and the manner in which he is hired, supervised, and fired. ²

The court in Curl concluded that the plaintiff was not a member of the sheriff's personal staff. The opinion lists many reasons for the finding: (1) the plaintiff was not called upon to make policy for the sheriff's department, nor to act as an immediate advisor to the sheriff with respect to his constitutional or legal powers; (2) Congress intended for the exemption to be construed narrowly, to apply only to those individuals who are in highly intimate and sensitive positions of responsibility on the staff of the elected official; (3) the plaintiff's position was created and compensated by the county pursuant to state law; (4) her working relationship with the sheriff was never "highly intimate and sensitive;" (5) she did not occupy a high position within the chain of command, and her duties were primarily clerical and secretarial; and (6) she was not under the sheriff's personal direction. We were very careful to note that the decision in Curl did not create a per se rule for deputies, because the personal staff exception requires a careful examination of the nature and circumstances of each case.

In Brewster v. Barnes, 788 F.2d 985 (4th Cir.1986), the issue presented was whether the position of corrections officer fell within the personal staff exemption. We held that it did not, based on an inquiry into the nature and circumstances of the plaintiff's role in the sheriff's department. The focus of this inquiry was on the time period in which the plaintiff had been a corrections officer, and did not include the substance of any prior relationship between the officer and the sheriff. We concluded that the close relationship which had formerly existed had ended once the plaintiff assumed the position at the jail. Thus, because the plaintiff did not occupy an intimate or high level position, and because she did not render advice in formulating policy decisions, she was not a member of the sheriff's personal staff.

Based on our examination of the multiple features of the relationship between the sheriff of Patrick County and his deputies, we cannot say as a matter of law that the deputy position falls within the personal staff exception to the coverage of Title VII. The road deputies in Patrick County function primarily as typical policeman who administer the laws and the "policies" of their superiors. There is no evidence that the road deputies are called upon to render advice to the sheriff respecting his policy decisions or the proper exercise of his powers. The road deputy position in Patrick County is not one high within the chain of command, nor do these road deputies occupy a highly intimate and sensitive status vis-a-vis the sheriff. The fact that Patrick County is rural and concomitantly employs a rather small police staff does not by itself render the position of road deputy within the sheriff's personal staff. Although we could assume that, with a small deputy...