Westchester Cty. Correct. v. County of Westchester

• Decision Date: 24 November 2004
• Docket Number: No. 99 CIV. 11685(SCR).,99 CIV. 11685(SCR).
• Citation: 346 F.Supp.2d 527
• Parties: WESTCHESTER COUNTY CORRECTIONS, et. al. Plaintiffs v. COUNTY OF WESTCHESTER, et al. Defendants
• Court: U.S. District Court — Southern District of New York

346 F.Supp.2d 527

WESTCHESTER COUNTY CORRECTIONS, et. al. Plaintiffs v. COUNTY OF WESTCHESTER, et al. Defendants

No. 99 CIV. 11685(SCR).

United States District Court, S.D. New York.

November 24, 2004.

Robert David Goodstein, Goodstein & West, Esqs., New Rochelle, NY, for Plaintiffs.

Alan D. Scheinkman, Lori Ann Alesio, White Plains, NY, Matthew T. Miklave, Epstein, Becker & Green, New York, NY, for Defendants.

AMENDED MEMORANDUM DECISION AND ORDER

ROBINSON, District Judge.

I. Background

A. Procedural Posture

This action consists of three separate lawsuits¹ involving related parties and related causes of action that have been consolidated for the purpose of efficiently resolving common issues. The plaintiffs in these cases include approximately sixty-four male and female correctional officers and their union, the Westchester County Correction Officers Benevolent Association ("COBA") (collectively the "Plaintiffs"). The defendants are the County of Westchester, Andrew J. Spano, the County Executive, and Rocco A. Pozzi, the Commission of the County's Department of Corrections ("DOC") (collectively the "Defendants"). The Plaintiffs filed complaints seeking damages and injunctive relief for alleged violations of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.), the Equal Protection Clause of the Fourteenth Amendment of the Constitution as applied pursuant to 42 U.S.C. § 1983, and the New York State Human Rights Law.

The Plaintiffs moved for summary judgment, asserting several arguments: (1) the Defendants' gender-conscious policies impose more than de minimus restrictions on the Plaintiffs' employment; (2) the Defendants' policies violate the Equal Protection Clause; (3) the Defendants cannot establish a bona fide occupational qualification ( BFOQ) defense. The Defendants have made a cross motion for summary judgment, arguing that: (1) gender constitutes a BFOQ for correctional officers; (2) a gender restriction on transportation posts does not constitute an adverse employment action under Title VII; (3) COBA is not a proper party in this case.

B. Statement of Facts

The DOC complex consists of three separate divisions: the Jail and Penitentiary Divisions, which house male inmates, and the Women's Unit, which houses female pre-trial detainees and inmates generally serving sentences of less than one year. During 1999, the year prior to the implementation of the policy at issue in this case, the DOC housed approximately 1200 inmates, of which approximately eighty-six percent were males and fourteen percent were females. At the same time, the DOC employed approximately 770 correction officers, of whom approximately 616 were male and 154 were female.

The issue of gender-based assignments of correctional officers has been an ongoing source of dispute between the parties to this case.² Prior to June 1988, the unit housing male prisoners at the County's correctional facility was staffed exclusively with male correction officers and the unit housing female prisoners was staffed exclusively with female officers. Two male correctional officers who were not considered for promotion at the female unit brought suit against the County. By stipulation, the County waived any BFOQ defense. The Second Circuit held that the plaintiffs had established a prima facie case of discrimination and, because the County had failed to prove that the plaintiffs were otherwise unqualified for promotion at the female unit, the County was liable under Title VII and § 1983. See Berl v. County of Westchester, 849 F.2d 712, 716 (2d Cir.1988). Following this case, the County changed its policy, allowing male correction officers to be posted in the Women's Unit.

In June 1993, the DOC issued a policy directive requiring that a female officer be assigned to the transportation of female inmates by car or through Elmwood Hall to inmates' work locations. This policy was challenged by COBA member Regina Ehren in a case entitled Ehren v. County of Westchester, 95 Civ. 0700(CLB). In settling this action, the County once again reversed its policy, thereafter permitting all correction officers to be assigned to the posts in question regardless of their gender.

Since at least 1988, the County has had in place policies prohibiting personal relationships and sexual relationships of any kind between inmates and correction officers and sexual harassment by corrections officers. Nevertheless, a series of incidents of voluntary and involuntary sexual activity between correctional officers and inmates have occurred: a male correction officer was found to have engaged in consensual sexual intercourse with a female inmate in 1993; a male correction officer was convicted by a jury of raping a female inmate in her cell in 1996; and a court found a correction officer guilty of sexually abusing a female inmate in 1998. Moreover, in January 2000, four male correction officers were arrested on charges of rape and/or sodomy, official misconduct and sexual abuse. One of the officers pleaded guilty to third degree rape, two were acquitted after jury trial, and the charges against the other were eventually dropped. As Plaintiffs point out, however, not all incidents have been between correction officers and inmates of opposite genders. In particular, two male officers have been found to have engaged in acts of oral sodomy with male inmates.

Following these incidents, the County re-imposed gender-based restrictions on the assignment of correctional officers to the supervision and transportation of female inmates. In particular, the County made two major policy changes. First, the County adopted a policy banning male correction officers from working housing posts in the Women's Unit. Pursuant to this policy change, the DOC transferred all male correction officers assigned to the Women's unit to units housing male prisoners. Although their work locations changed, all correction officers were assigned to the same shifts and the same squad to which they were previously assigned after the transfers. Second, since at least May 1999, the DOC has required that, whenever a female inmate is to be transported, one of the officers transporting the inmate must be female. As a result, a male correction officer who happens to be working the transportation post at the time a female inmate needs to be transported may temporarily be reassigned to another post while a female correction officer transports the female inmate.

In addition to these changes, the County pursued other "remedial efforts." In particular, the County announced a program to increase training for staff and correction officers and installed cameras and door alarms to the female unit. The County does not believe that cameras are a complete solution, however, because cameras do not cover all areas of the unit due to privacy concerns, and also because, according to the County, males who are "highly motivated" to commit improper sexual acts "will find a way."³

An important development occurred in this case after the parties' summary judgment motions were fully briefed. In June 2004, the County closed the Women's Division at the Westchester County Correctional Facility, and transferred all female inmates to the jail division, fourth floor. At the same time, the County announced another reversal of its policy on housing posts in the Women's Unit, this time revoking its ban on male correction officers serving in any female housing post. Plaintiffs claim, and Defendants have not disputed, that of twenty-three correctional officers now assigned to the fourth floor of the jail division, twenty-one are males are two are females. In light of these developments, Plaintiffs concede that its request for injunctive relief regarding the housing policy is now moot, but point out that its claim for damages allegedly incurred as a result of the housing policy is unaffected. Defendants have argued that its policy change does not affect the merits of its prior arguments because the circumstances (including the physical dimensions) of the new facility housing female inmates are different. The transportation policy at issue in this case remains in place and, as such, Plaintiffs' claims for related damages and injunctive relief are also unaffected.

II. Analysis

A. Background

Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate when "there is no genuine issue as to any material fact[.]" FED. R. CIV. P. 56(c). Summary judgment may not be granted unless "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." Id.

B. Whether A Gender Restriction On Transportation Posts Constitutes An Adverse Employment Action Under Title VII:

Defendants argue that the temporary reassignment of male correction officers to facilitate the transportation of female inmates by female correction officers does not "rise to the level of a tangible or significant alteration in the terms and conditions of employment" and cannot form the basis of liability. Plaintiffs respond that changing the duties of such male officers, even temporarily, constitutes a significant alternation in terms and conditions. Plaintiffs' argument is unavailing.

The Second Circuit has held that a qualifying adverse action by an employer is a "materially adverse change in the terms and conditions of employment." See Weeks v. New York State, 273 F.3d 76, 85 (2d Cir.2001), quoting Galabya v. New York City Board of Educ., 202 F.3d 636, 640 (2d Cir.2000). The challenged action must "affect[] employment in a way that is both detrimental and substantial." Weeks, 273 F.3d at 87 (quoting Bernheim v. Litt, 79 F.3d 318, 327 (2d Cir.1996) (Jacobs, J., concurring)). The types of actions that meet this test include termination of employment, a demotion evidenced by...