Raymond J. Torres, Franklin J. Utz, and Gerald F. Schmit v. Wisconsin Department of Health and Social Services, Defendants

859 F.2d 1523, 1988 WL 112583
Court of Appeals for the Seventh Circuit·Decided October 17, 1988·No. 86-2161·Published·Cited by 55 cases

Opinions

RIPPLE, Circuit Judge.

Defendant Nona J. Switala is the superintendent of defendant Taycheedah Correctional Institution (TCI), the only women’s maximum security prison in Wisconsin. TCI is operated by the Wisconsin Department of Health and Social Services (DHSS), also a defendant here. Ms. Switala, an experienced prison administrator, determined that the rehabilitation of TCI’s inmates would be enhanced by employing only female correctional officers in TCI’s living units. The plaintiffs Raymond Torres, Franklin Utz, and Gerald Schmit were reassigned to other positions at TCI, with no loss in pay, because of this plan. Unhappy with this reassignment, the plaintiffs brought this action alleging sex discrimination by the defendants in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. §§ 2000e to 2000e-17. The defendants responded that sex was a bona fide occupational qualification (BFOQ), 42 U.S.C. § 2000e-2(e)(l), for the positions formerly held by the plaintiffs. The district court determined that the defendants had not established a valid BFOQ because the defendants had not offered “objective- evidence, either from empirical studies or otherwise,” proving that the BFOQ would further inmate rehabilitation, and because prison security and inmate privacy were not materially advanced by the plan. We reverse and remand.

I

Facts

TCI has three buildings for housing inmates. Each building has three residence floors, and the inmates live in single, double, or multiple occupancy rooms. The rooms are not cells with bars, but are more akin to college dormitory rooms. Each room has a solid door with a clear glass window at eye level that is approximately four inches by six inches. The rooms have one bed per inmate, a desk, chair, light, toilet, and wash basin. In two buildings, privacy curtains have been installed around the toilets. When an inmate is behind the curtain, only her feet are visible. At the time of trial, TCI had plans to install privacy curtains in the other residence building soon.

From 6 a.m. until 9 p.m., inmates may place “privacy cards” inside the door windows so that they can use the toilet or change their clothes without being observed. TCI’s rules allow the privacy cards to be up for only ten minutes per day per inmate. In multiple inmate rooms, this means that the cards can be up permissibly for as much as thirty or forty minutes. However, the testimony offered at trial suggests that correctional officers are not able to keep careful track of the time that a privacy card has been in place, and that inmates sometimes leave their cards up for more than ten minutes per inmate. On one occasion, two inmates used their privacy card to facilitate an escape, and on another occasion an inmate beat up her roommate while the privacy card covered the window.

From 9 p.m. until 6 a.m., inmates may not place their privacy card on the inside of their window, but they may place their card outside the window all night long in order to prevent light from entering the room. Correctional officers then lift up the card for body counts and inspections. TCI’s [1525]*1525rules require that the officers conduct a body count each day at 7:30 a.m., 12:30 p.m., 5:30 p.m., 9:30 p.m., and once each hour between 10 p.m. and 6 a.m. Inmates know this schedule. TCI provides appropriate sleepwear for the inmates but they are not required to wear it. The guards are required to see the inmates’ skin or hair during nighttime body counts.

Each floor of the residence buildings has a shower room. Inmates must sign up with their floor officer before taking a shower, and they are required to wear some sort of clothing when walking to the shower room. Testimony at trial suggested that guards normally do not enter the shower rooms when occupied. The doors to the shower rooms are solid, although some contain windows that have been rendered opaque. The shower rooms have one to three shower stalls, one to three toilets, and some have one or more bathtubs. The showers and toilets have privacy curtains or privacy doors. Only one inmate may occupy the shower room at a time, except that roommates may enter together. TCI allows each inmate fifteen minutes in the shower room.

The Wisconsin Administrative Code allows prison officials to perform four types of inmate searches. Wis.Admin.Code § HSS 306.16 (1987). Correctional officers may perform pat searches at any time. During a pat search, inmates empty their pockets and the officer runs his or her hands over the inmates’ entire body. § HSS 306.16(a). The custom at TCI is that only female guards perform pat searches. The second type of allowable search is the strip search. Strip searches must be authorized by a supervisor and performed in private by an officer of the same sex, except during emergencies. § HSS 306.16(b). The third type of search is the body cavity search. Body cavity searches are only performed by medical personnel in special circumstances. § HSS 306.16(c). The fourth permissible search is a body content search, such as urinalysis or blood analysis. § HSS 306.16(d). Under this regulation, body content searches are permitted only in extreme circumstances. In addition, correctional officers are expected to search occasionally inmates’ rooms and the shower rooms when they are unoccupied.

Ms. Switala became superintendent of TCI in 1978. She previously had worked for three years as treatment director at TCI and for eight years as a probation and parole agent with the Wisconsin Division of Corrections. Ms. Switala, her superiors at the DHSS, and her personnel at TCI, soon began discussions regarding TCI’s staffing needs. It ultimately was decided, principally by Ms. Switala, that certain positions at TCI should be staffed only by female correctional officers. It is clear from Ms. Switala’s testimony at trial that the principal reason for this decision was her concern for inmate rehabilitation and security. TCI’s administrators then advised all correctional officers in 1980 that a BFOQ program would be implemented gradually in the next two years.

TCI has three different ranks for its correctional officers. The lowest position is a correctional officer 1 (CO-1), followed by correctional officer 2 (CO-2) and correctional officer 3 (CO-3). The CO-3 in charge of a living unit is a “sergeant.” The positions to be affected by the BFOQ plan were nineteen of the twenty-seven correctional officer positions in the living units, including all of the CO-3 posts in the living units. As a result of the plan, only three CO-3 positions at TCI would be open to men. The three plaintiffs, Mr. Torres, Mr. Utz, and Mr. Schmit, were all CO-3’s prior to implementation of the BFOQ plan. Because of the limited number of available CO-3 positions, the three plaintiffs were required to accept CO-2 positions, although this demotion resulted in no loss of pay. The plaintiffs presently work under female CO-3’s who have less seniority and experience.

II

The District Court Opinion

The district court first determined that the BFOQ is a narrow exception to Title VII’s prohibition of discrimination in employment. The court noted that “adminis[1526]*1526trative convenience is insufficient to justify a BFOQ exception,” and that discrimination based on sex is permissible only “ ‘when the essence of the business operation would be undermined.’ ” Torres v.

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Raymond J. Torres, Franklin J. Utz, and Gerald F. Schmit v. Wisconsin Department of Health and Social Services, Defendants, 859 F.2d 1523, 1988 WL 112583 (7th Cir. 1988).

859 F.2d 1523 (Raymond J. Torres, Franklin J. Utz, and Gerald F. Schmit v. Wisconsin Department of Health and Social Services, Defendants) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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