Robert D. Harry A. Lyles, Bobby N. Bright, Asst. Counsel, Dept. Plaintiff Robert D.

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Robert D. Harry A. Lyles, Bobby N. Bright, Asst. Counsel, Dept. Plaintiff Robert D. Edwards has brought this lawsuit charging that defendants Department of Corrections of the State of Alabama and various officials of the Department refused to promote him to a position in the state prison for women because he is a male.

The facts in this case are simple and straight-forward. Between September and April and again between June and August , the Department of Corrections appointed Edwards acting shift commander at Julia Tutwiler Prison for Women, Alabama's principal prison for women, with inmates from minimum to maximum security designations, located in Elmore County, Alabama. Although the position carries the rank of correctional officer supervisor I, the Department continued Edwards in his lower rank of correctional officer II.

In the summer of , two shift commander positions became available at Tutwiler, including the one Edwards held on an acting basis. Edwards asked the Tutwiler warden to consider promoting him to one of the positions. The warden told Edwards that he could not be promoted because departmental policy restricted the positions to women. However, only one of the two shift commander positions was immediately filled because only one qualified woman applied.

The second position was not filled with a woman until the winter of Edwards filed a timely charge with the United States Equal Employment Opportunity Commission; and, after receiving a notice of right-to-sue from the Commission, he timely filed this lawsuit charging that in the summer of he was denied a shift commander position because of his sex, in violation of federal law. He charges the Department with intentional "disparate treatment" based on sex, in violation of the Act.

A plaintiff may establish a claim of impermissible intentional disparate treatment under Title VII by either circumstantial or direct evidence. If the evidence is circumstantial, a trial court should consider the claim generally in the manner outlined in Texas Department of Community Affairs v.

Morris Brown College, F. Shelby Memorial Hospital, F. Here, there is direct evidence of intentional sex discrimination. The Department had a clearly established policy of appointing only women as shift commanders at Tutwiler, and Edwards was specifically told that because of the policy he could not be promoted to such position.

The court will therefore consider the evidence according to such cases as Thompkins and Hayes. Where, as here, there is direct evidence that an employer has intentionally denied an employee a position because of the employee's sex, an employer may still prevail by establishing either of the following affirmative defenses: that the adverse personnel decision would have been reached even in the absence of the discriminatory motive, Thompkins, F. Hayes, F. The Department asserts that, even in the absence of its discriminatory policy, Edwards would not have been promoted to shift commander in the summer of That summer, the Department filled one of the shift commander positions through the process of selective certification from the "promotion" register, which ranks currently employed persons according to their ability and qualifications.

Under this process, when a department seeks to fill an opening from within, the state personnel office certifies from the promotion register the names of the top three persons, from whom the Department chooses one and if there are two positions available, the personnel office certifies four names; if three positions, five names; and so forth. The process is considered selective when the certification is restricted to persons having certain characteristics or belonging to certain groups.

Here, the certification was selective because it was limited to women. In the winter of , the Department filled the other shift commander position with a woman from the personnel office's reemployment register. When using this register, the Department is not limited to the top candidates and may choose any person from the register.

The Department has the prerogative whether to use the promotion or reemployment register. However, promotions are usually made by use of the promotion register. The Department contends that, had it not used selective certification in the summer of , Edwards would have ranked only fourth on the promotion register and thus would not have been among the top three certified for promotion by the state personnel office.

This contention is meritless because it overlooks certain important facts. There were two, not one, shift commander positions available that summer. Without selective certification, the personnel office would have certified four names, including Edwards's, to fill the two positions. Furthermore, in light of Edwards's exemplary record and immediate experience as acting shift commander, this court is firmly convinced that, without the Department's discriminatory policy, he would have been selected to fill one of the positions.

In the absence of the discriminatory policy, Edwards would therefore have been promoted to shift commander in the summer of , with accompanying promotion to the rank of correctional officer supervisor I.

The Department has questioned whether it should bear the affirmative defense of establishing that, in the absence of its discriminatory policy, Edwards would not have been promoted.

The Department contends that the issue of Edwards's position on the promotion register goes to his eligibility for the position and that Edwards should have the responsibility of establishing his eligibility as a part of his initial burden of proof.

In the circumstances of this case, this contention is meritless. At the time the Department denied Edwards the promotion, the sole reason stated and relied on by the Department was discriminatory. The evidence reflects that the issue of Edwards's position on the promotion register did not surface until after Edwards initiated legal proceedings challenging the Department's action.

Under these circumstances, the employer should bear the burden of establishing what it would have done absent the admittedly discriminatory reason. See Hardin, F. The circumstances here are quite different from those where an employer maintains from the outset that the adverse personnel action was based on admittedly non-discriminatory requirements and procedures.

In such cases, it could be argued that the employee has the responsibility of establishing eligibility as a part of his burden of establishing direct evidence of discrimination; or it could be argued that such cases are best considered within the Burdine and McDonnell Douglas framework. Nevertheless, to ensure a full factual record and complete fairness to the Department, this court would add that if Edwards had the burden of establishing that he would have been selected and promoted from the promotion register, he has fully carried that burden.

The Department asserts next that femaleness is a bona fide occupational qualification bfoq for shift commander at Tutwiler. The court must therefore determine whether male employees like Edwards are unable to perform the duties essential to the normal operation of the job.

Courts have several times previously had to consider whether employment in prisons may be restricted by sex. In Dothard v. Supreme Court considered whether maleness was a bfoq for correctional officer positions in Alabama's prisons for male inmates. The Court said that "the bfoq exception was in fact meant to be an extremely narrow exception to the general prohibition of discrimination on the basis of sex.

In finding that the positions in question met this narrow exception, the Court took note of "peculiar" conditions in Alabama's prisons of "rampant violence" and a "jungle atmosphere. Where inmates were not segregated according to their offenses or levels of dangerousness, the Court found that "[t]here is a basis in fact for expecting that sex offenders who have criminally assaulted women in the past would be moved to do so again if access to women were established within the prison. Courts since Dothard have said that this case dealt with "uniquely dangerous conditions.

Fairman, F. In Hardin v. Stynchcomb, F. The evidence reflected that most positions in the jail did not involve contact with inmates. Male deputies "booked" female inmates, but called on female deputies to search them. In emergencies, all deputies were expected to search all inmates. The court rejected the bfoq defense.

Recently, in Garrett v. Okaloosa County, F. Female employees at a county jail sought positions as guards which the county restricted to male employees. The county raised a bfoq defense and relied on a state regulation requiring a guard of an inmate's sex to be present when a guard of the opposite sex entered the area where the inmate was confined.

The court rejected the defense, stating that "the mere fact that a state enacts a discriminatory regulation does not create a BFOQ defense for one who follows such a regulation. Furthermore, the evidence reflected that female employees in other county jails subject to the same regulation had served as guards despite the regulation. What stands out most about the Department's contention here that femaleness is a bfoq for the position of shift commander at Tutwiler is that Edwards held this position for nearly a year without any apparent difficulty.

Though he held the position on an acting basis, he held it for a considerable period of time and performed all the duties that it required.

Only when Edwards sought the position on a permanent basis was he transferred, and the Department did not justify his transfer with any alleged shortcomings on Edwards's part, but rather referred to its policy restricting shift commander positions to female employees.

In light of this fact and others to be described, the Department has failed to prove that femaleness is a bfoq for the position of shift commander at Tutwiler. The evidence is that shift commanders at Tutwiler work under the supervision of the warden, deputy warden and captain and are in charge of between eight and twelve correctional officers on a shift. Their principal duty is to supervise these officers who are stationed throughout the prison.

This involves patroling the prison to monitor the officers and occasionally relieving them temporarily while they take breaks. The officers themselves patrol various areas of the prison including sleeping quarters and bathrooms. They inspect and sometimes physically search inmates on a regular basis and on occasions where circumstances such as suspicion of wrongdoing require. Shift commanders may also be called on to search inmates in these circumstances, as well as patrol sleeping quarters and bathrooms when relieving officers.

Shift commanders also have administrative duties such as preparing officers' schedules. The evidence is that Edwards efficiently and satisfactorily performed the duties of shift commander at Tutwiler while serving on an acting basis. The warden herself testified that Edwards's sex was not an obstacle to his fulfilling these duties. According to the evidence, Edwards rarely if ever had to search female inmates while serving as acting shift commander.

Apparently, he was able to summon a female officer to perform this task. In fact, in his present position as supervisor of transfer agents, Edwards monitors the transportation of female inmates without assistance from other officers and thus is now more likely to have to search a female inmate than when he served as acting shift commander. He too did not have to perform searches of female inmates. Other male employees also work at Tutwiler as officers and usually are stationed in posts that do not require frequent contact with female inmates.

All Tutwiler employees agreed that in an emergency it would be appropriate for a male officer to search or subdue a female inmate. Nevertheless, the evidence is that such emergencies are quite rare. Conditions at Tutwiler are generally peaceful and orderly. There is no "rampant violence" or "jungle atmosphere. To support its bfoq defense, the Department relied on two of its regulations. Regulation , successor to the regulation considered in Dothard, prohibits employees from conducting "strip searches," "frisk or pat searches" or "patrol of toilet and shower areas, while in use" at prisons housing inmates of the opposite sex.

Regulation provides standards and procedures for filling vacant positions by selective certification, as previously described. According to the regulation, the position must meet certain criteria, including involving: frequent patroling of dormitories, restrooms or showers; regular searches of inmates; contact with inmates without the presence of others; and the risk of disruption of the security and orderly running of the institution.


Edwards v. Dept. of Corrections, 615 F. Supp. 804 (M.D. Ala. 1985)

CourtListener is a project of Free Law Project , a federally-recognized c 3 non-profit. We rely on donations for our financial security. Donate Now. Sign In Register. Filed: October 8th, Precedential Status: Precedential. Citations: F.







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