JONES v. HENRYVILLE CORRECTIONAL FACILITY

Filing 60

ENTRY ON PARTIES' CROSS MOTIONS FOR SUMMARY JUDGMENT - 39 Defendant's Motion for Summary Judgment is GRANTED. 42 Plaintiff's Motion for Summary Judgment is DENIED. See Entry for details. Signed by Judge Richard L. Young on 11/14/2016. (LBT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

CHRISTINA JONES,

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Plaintiff,
vs.
HENRYVILLE CORRECTIONAL
FACILITY,
Defendant.

4:14-cv-00132-RLY-TAB

ENTRY ON PARTIES’ CROSS MOTIONS FOR SUMMARY JUDGMENT
Plaintiff, Christina Jones, worked as a correctional officer at the Indiana
Department of Correction’s (“IDOC”) Henryville Correctional Facility, the Defendant
herein, from September 2011 through May 2015. Plaintiff alleges she asked to transfer
from the evening/night shift to the day shift, but was denied the transfer because it was a
“male” position. Plaintiff alleges Henryville discriminated against her on the basis of her
gender, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. Plaintiff’s gender claim is brought under two theories—disparate impact (Count I)
and disparate treatment (Count II).
Henryville now moves for summary judgment on Plaintiff’s disparate impact and
disparate treatment claims, and Plaintiff cross moves for summary judgment on her
disparate impact claim. For the reasons set forth below, Defendant’s motion is
GRANTED and Plaintiff’s motion is DENIED.

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I.

Background
Plaintiff began working as a correctional officer at Henryville on September 11,

2011. (Filing No. 44-1, Deposition of Christina Jones (“Plaintiff Dep.”) at 10).
Henryville is a minimum security male prison facility within the IDOC. (Id. at 65).
During the time that Plaintiff worked at the facility, it housed between 170-200 inmates,
and employed 34 custodial staff. (Id. at 65-66). Of the 34 custodial staff, 28 were male.
(Id. at 66).
In 2011, custody staff were generally assigned to one of three shifts: midnight to
8:00 a.m. (first shift), 8:00 a.m. to 4:00 p.m. (second shift), or 4:00 p.m. to midnight
(third shift). (Filing No. 44-2, Deposition of William Bischof (“Bischof Dep.”) at 24).
Custody staff were scheduled on a monthly basis, with a six day on, two day off rotation.
(Id.). In addition to regular custody officers, Henryville employed road crew officers and
utility officers, who worked a Monday through Friday 8:00 a.m. to 4:00 p.m. shift.
(Filing No. 44-3, Defendant’s Position Statement at 3). The road crew officers
accompanied inmates who worked outside of the facility during the day; the utility
officers assisted the road crew with supervision, and also helped strip search the inmates
when they returned to the facility. (Bischof Dep. at 25). During the time that Plaintiff
worked at Henryville, Lieutenant William Bischof was responsible for scheduling. (Id. at
24).

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Lt. Bischof employed a practice of placing no more than three female officers on
any shift. (Id. 31-32). He employed this practice in part 1 because IDOC Policy No. 0203-101, entitled “Searches and Shakedowns,” prohibits cross-gender searches, except to
prevent the imminent loss of contraband. (Id. at 42-43). He adopted this practice
because in the past, there were several occasions when a male correctional officer was
absent, leaving him with an all-female staffed shift. (Id. at 48-50). On those occasions,
he had to ask a male correctional officer to work overtime to cover the shift. (Id. at 50).
When Plaintiff was hired, she requested to work days, but she agreed to work any
shift to which she was assigned. (Plaintiff Dep. at 11-12). Plaintiff was originally
assigned third shift (4:00 p.m. to midnight). (Id. at 18). In December 2011, Plaintiff
asked Lt. Bischof to switch to the day shift. (Id. at 20). Lt. Bischof responded that he
could not put her on days because it was a “male position.” (Id.). Around the same time,
Plaintiff sent an email to Lt. Bischof requesting a switch to the midnight to 8:00 a.m.
shift, because her current schedule made it difficult to spend time with her twelve yearold daughter. (Id. at 19). Plaintiff requested the day shift three other times during her
employment, and each time, she was denied the request because there were already three
women scheduled for the day shift. (Id. at 21-23, 36, 39-40).
In August 2013, Lt. Bischof re-assigned two female sergeants from the day shift,
which created an opening for Plaintiff to move to days. (Id. at 62-64). Plaintiff accepted

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In considering requests for shift changes, Bischof testified that he also considered the officer’s
seniority. (Bischof Dep. at 30-32).

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the transfer to the day shift (which switched to 6:00 a.m. to 2:00 p.m.), where she stayed
until she voluntarily left her employment with the IDOC in April 2015. (Id. at 8, 32).
Plaintiff alleges that officers on the day shift had a greater opportunity to work
overtime hours, and took advantage of it. (See Filing No. 44-5, Summary of Regular and
Overtime Hours; see also Filing No. 47-1, Declaration of Eric Jones). Consequently, she
alleges she did not receive the same opportunity for overtime pay due to Henryville’s
scheduling policy.
II.

Summary Judgment Standard
Summary judgment is appropriate “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The facts of this case are largely undisputed. 2 Therefore,
disposition of this case on a motion for summary judgment is particularly appropriate.
III.

Discussion
Henryville does not contest that Lt. Bischof denied Plaintiff’s requests to transfer

to the first shift because of her gender. It claims, however, that Lt. Bischof’s genderbased scheduling practices are consistent with Title VII because gender is a bona fide
occupational qualification (“BFOQ”) for correctional officer positions at Henryville.
Plaintiff argues that Henryville’s BFOQ defense should be stricken and, in any event,

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Henryville disagrees with Plaintiff’s computation of overtime for members of the first shift.
The issue of overtime is relevant to whether Plaintiff suffered an adverse employment action.
The court did not address whether Plaintiff suffered an adverse employment action, and instead
focused on Henryville’s affirmative defenses.

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Henryville failed to meet its burden of establishing that this qualification was reasonably
necessary for its normal operation.
A.

Motion to Strike

The parties filed their motions for summary judgment on the same day—April 6,
2016. In her response brief, Plaintiff filed a motion to strike Henryville’s affirmative
defenses of BFOQ and business necessity for Henryville’s failure to comply with Section
II.D of the Case Management Plan (“CMP”). That section of the CMP provides:
Within 14 days after the non-expert discovery deadline, and consistent with
the certification provisions of Fed. R. Civ. P. 11(b), the party with the burden
of proof at trial shall file a statement of the claims or defenses it intends to
prove at trial, stating specifically the legal theories upon which the claims or
defenses are based.
(Filing No. 14, CMP at 2). The CMP further provides that the failure to comply with any
of its provisions “may result in sanctions for contempt, or as provided under Rule 16(f),
to and including dismissal or default.” (Id. at 10).
Henryville admits it failed to file a statement of its claims and defenses as required
by the CMP. Nevertheless, it argues this omission should be excused because Plaintiff
addressed the merits of Henryville’s BFOQ defense in her motion for summary
judgment. This is a significant fact because the parties filed cross motions for summary
judgment on the same day. She only moved to strike the BFOQ and business necessity
defenses in her response to Henryville’s motion for summary judgment. Thus,
Henryville argues, Plaintiff was fully aware of Henryville’s BFOQ defense and was not,
therefore, prejudiced by its assertion of those defenses in its summary judgment motion.
The court agrees. Hollis v. Defender Sec. Co., No. 1:09-cv-1178-WTL-JMS, 2010 WL
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1137485, at *2 (S.D. Ind. March 19, 2010) (granting motion to extend CMP initial
disclosure deadlines in part because the plaintiff was not prejudiced). Plaintiff’s motion
to strike is therefore DENIED.
B.

Gender Discrimination
1.

Disparate Treatment

Title VII makes it an unlawful employment practice for an employer “to limit,
segregate, or classify his employees” in a way that would deprive or limit their
employment opportunities because of their sex. 42 U.S.C. § 2000e-2(a)(2). An
exception exists, however, if the employees’ sex is a BFOQ “reasonably necessary to the
normal operation of that particular business or enterprise.” Id. § 2000e-2(e). This
exception is an extremely narrow one which “is valid only when the essence of the
business operation would be undermined by not hiring members of one sex exclusively.”
Dothard v. Rawlinson, 433 U.S. 321, 333-34 (1977); see also Henry v. Milwaukee Cty.,
539 F.3d 573, 579 (7th Cir. 2008); Torres v. Wisc. Dep’t of Health and Social Servs., 859
F.2d 1523, 1527 (7th Cir. 1988). Because prison officials face unique and difficult
challenges in achieving the goals of the criminal justice system—“‘to punish justly, to
deter future crime, and to return imprisoned persons to society with an improved chance
of being useful, law-abiding citizens’”—their decisions are entitled to some deference.
Henry, 539 F.3d at 580 (quoting Torres, 859 F.2d at 1529). “Accordingly, although the
decisions of prison officials are not accorded as much deference in Title VII cases as they
are in constitutional cases, their decisions ‘are entitled to substantial weight when they

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are the product of a reasoned decision-making process, based on available information
and experience.’” Id. (quoting Torres, 859 F.2d at 1532).
According to Henryville, Lt. Bischof’s scheduling policy ensures each male
prisoner’s constitutional right to privacy is protected by limiting the possibility of crossgender strip searches to emergency situations only, per IDOC guidelines. It also ensures
female officers will not be put in a position of violating IDOC policy by performing a
non-emergency strip search on a male offender, or foregoing the non-emergency strip
search all-together, thereby putting the safety and security of the facility in jeopardy.
Plaintiff attacks Lt. Bischof’s scheduling policy on three grounds. First, she
argues that it is not reasonably necessary to protect inmates’ privacy because Henryville
employs female correctional officers on every shift, including the day shift. Plaintiff’s
argument fails to appreciate the reason behind the policy. Lt. Bischof, like many prison
administrators, was faced with the conflict between the right of females not to be
discriminated against in job opportunities within Henryville because of their gender, and
the right of inmates to avoid “unwanted intrusions by persons of the opposite sex.” Smith
v. Fairman, 678 F.2d 52, 55 (7th Cir. 1982). As noted by the Seventh Circuit, “[t]he
resulting conflict between these two interests has normally been resolved by attempting
to accommodate both interests through adjustments in scheduling and job responsibilities
for the [correctional officers].” Id. The adjustments of schedules is the exact balancing
that was done here in the interest of security and inmate privacy. Lt. Bishof employs
female correctional officers on every shift while ensuring that male correctional officers
are available to perform strip searches.
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Second, she argues his scheduling policy is not entitled to deference because it is
not the product of a reasoned decision-making process. Plaintiff complains that he “did
not consult any records to see how frequently [strip searches] actually happened; he did
not consult the facility’s strip search logs to determine the frequency of non-emergency
strip searches on each particular shift; he did not consult with the lieutenant who
preceded him; and he did not consult any reports, studies, articles, or other materials.”
(Filing No. 43, Plaintiff’s Memorandum in Support at 17). Instead, she continues, he
instituted the policy only after experiencing an all-female staff between two and ten
times. (Bischof Dep. at 50 (Q: “And how often did [an all-female staff] happen during
the time you worked at Henryville Correctional Facility? . . . . One time? Two times?”
A: “I honestly – I think it was more than that, but I don’t think that it was a lot, a lot
meaning more than ten probably . . . .”)).
“[T]here is no general requirement that the necessity of a BFOQ be established by
[objective or empirical] evidence.” Torres, 859 F.2d at 1531. Rather, it may be
established based on “a common-sense understanding of penal conditions, and,
implicitly, on a limited degree of judicial deference to prison administrators.” Id.
A common-sense understanding of the penal conditions at Henryville includes the
possibility of a non-emergency strip search on any given shift. The necessity of the
BFOQ was established by virtue of IDOC policy that forbids female officers from
performing strip searches of male offenders, except in emergency situations. (Bischof
Dep. at 47 (testifying his job is “to ensure that [the strip search] policy is followed by
myself and others in my chain of command”)). As noted by Henryville, Lt. Bischof’s
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scheduling policy ensures each male prisoner’s constitutional right to privacy is protected
by limiting the possibility of cross-gender strip searches to emergency situations only, per
IDOC guidelines. It also ensures female officers will not be put in a position of violating
IDOC policy by performing a non-emergency strip search on a male offender, or
foregoing the non-emergency strip search all-together. Because Lt. Bischof’s “business
is planning for what if,” (id. at 59), following IDOC policy, and ensuring the safety and
security of the inmates and the officers, there is a basis in fact for limiting the number of
female correctional officers on each shift. Lt. Bischof’s scheduling policy was, therefore,
“the product of a reasoned decision-making process, based on available information and
experience,” and is entitled to substantial weight.
Lastly, Plaintiff argues there were other reasonable alternatives than limiting shifts
to three females. See also E.E.O.C. v. Sedita, 816 F.Supp. 1291, 1295 (N.D. Ill. 1993)
(employer must show that “no reasonable alternatives exist to protect the privacy interests
other than the gender-based hiring policy”). For example, Lt. Bischof could have asked a
male officer from a prior shift to work overtime. But again, Lt. Bischof’s job required
him to follow IDOC policy and to balance the privacy rights of inmates against the right
of female correctional officers not to be discriminated against in job opportunities. He
determined, based on his experience, that limiting shifts to three female correctional
officers was the appropriate way to accommodate those interests. (Bischof Dep. at 61
(testifying he thought his staffing policy was best for the facility). The court defers to his
business judgment. Accordingly, summary judgment in favor of Henryville on Plaintiff’s
disparate treatment claim is warranted.
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2.

Disparate Impact

Title VII’s prohibition of gender discrimination precludes an employer from
“us[ing] a particular employment practice that causes a disparate impact on the basis of
[gender].” 42 U.S.C. § 2000e-(k)(1)(a)(A)(i). Disparate impact claims differ from
disparate treatment claims under Title VII because disparate treatment claims require
proof of intentional discrimination. Adams v. City of Indianapolis, 742 F.3d 720, 731
(7th Cir. 2014). As the Seventh Circuit made clear in Adams, disparate impact claims can
proceed on the basis of any employment practice, not just practices that are facially
neutral. Id. at 731-32 (citing Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990-91
(1988)).
A prima facie case under the disparate impact theory requires the plaintiff to
“isolate and identify the specific employment practices that are allegedly responsible for
any observed statistical disparities.” Cerutti v. BASF Corp., 349 F.3d 1055, 1067 (7th
Cir. 2003). The plaintiff must also present “‘statistical evidence of a kind and degree
sufficient to show that the practice in question has caused the exclusion of applicants for
jobs or promotions because of their membership in a protected group.’” Puffer v. Allstate
Ins. Co., 675 F.3d 709, 717 (7th Cir. 2012) (quoting Watson, 487 U.S. at 994-95). If the
plaintiff presents sufficient statistical evidence, the burden shifts “to the defendantemployer to demonstrate that the employment practice is job related for the position in
question and consistent with business necessity.” Id. (internal quotations omitted)
(quoting 42 U.S.C. § 2000e–2(k)(1)(A)). “If the employer satisfies this requirement, the

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burden shifts back to the plaintiff to show that an equally valid and less discriminatory
practice was available that the employer refused to use.” Id.
Henryville argues Plaintiff failed to establish a prima facie case of disparate
impact because she presents no evidence that female correctional officers were
statistically less likely to receive their desired shift compared to their equally qualified
male counterparts. Plaintiff argues she does not need to present statistical evidence in
light of Lt. Bischof’s admission that he would not consider transferring a female
correctional officer to an open shift if that shift was already staffed with three women.
(Bischof Dep. at 36). The problem here is not so much with statistics—or the lack
thereof—as much as the complete lack of evidence that the scheduling policy at issue has
negatively impacted female correctional officers “because of their membership in a
protected class.” Puffer, 675 F.3d at 717. Simply establishing Henryville’s quota of
three female correctional officers per shift is not enough. But even were she to establish
her prima facie case, for the reasons explained above in support of Henryville’s BFOQ
defense, the court finds Henryville is entitled to the business necessity defense.

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IV.

Conclusion
The court finds Henryville met its burden of establishing that the sex-based

classification at issue here was reasonably necessary to comply with the IDOC’s
prohibition on cross-gender strip searches in non-emergency situations. Accordingly,
Plaintiff’s claims for gender discrimination under disparate impact and disparate
treatment theories cannot survive summary judgment. Defendant’s Motion for Summary
Judgment (Filing No. 39) is therefore GRANTED and Plaintiff’s Motion for Summary
Judgment (Filing No. 42) is DENIED.

SO ORDERED this 14th day of November 2016.

__________________________________
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
Southern District of Indiana

Distributed Electronically to Registered Counsel of Record.

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