Argued and Submitted, San Francisco, California December 4, 2013.
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Appeal from the United States District Court for the Northern District of California. D.C. No. 3:07-cv-03622-SI. D.C. No. 3:07-cv-03622-SI. D.C. No. 3:07-cv-03622-SI. Susan Illston, Senior District Judge, Presiding.
The panel affirmed in part, reversed in part, and vacated in part the district court's judgment in favor of the City and County of San Francisco, and dismissed plaintiffs' appeal in part, in a Title VII case in which deputies of the San Francisco Sheriff's Department challenged a policy prohibiting male deputies from supervising female inmates in the housing units of the Sheriff's Department's jails.
The panel reversed the district court's grant of summary judgment to the County on sex discrimination claims and derivative claims and vacated the denial of summary judgment to plaintiffs on those claims. The panel held that the County was unable to bear its burden of demonstrating that there was no genuine issue of material fact as to whether it was entitled to a " bona fide occupational qualification" defense. The panel concluded that there were genuine issues of material fact as to whether a reasoned decision-making process, based on available information and experience, led to the Sheriff's adoption of the policy, such that it would be entitled to deference. There were also genuine issues of material fact as to whether excluding male deputies because of their sex was a legitimate substitute for excluding them because they were actually unfit to serve in the female housing pods.
The panel dismissed plaintiffs' appeal from various evidentiary rulings because, in light of the panel's reversal of the district court's grant of summary judgment, plaintiffs could not establish prejudice.
The panel affirmed the district court's award of attorney's fees as to settled claims.
The panel affirmed the district court's grant of summary judgment on one plaintiff's retaliation claims.
Lawrence D. Murray (argued) and Robert C. Strickland, Murray & Associates, San Francisco, California, for Plaintiffs-Appellants Mercy Ambat, et al.
Daniel H. Bromberg (argued) and Timothy A. Butler, Quinn Emanuel Urquhart & Sullivan, LLP, Redwood Shores, California, for Plaintiff-Appellant John Gray.
Dennis J. Herrera, City Attorney; Elizabeth S. Salveson, Chief Labor Attorney; and Rafal Ofierski, Deputy City Attorney (argued), San Francisco, California, for Defendant-Appellee.
Before: Stephen S. Trott, Sidney R. Thomas, and Mary H. Murguia, Circuit Judges. Opinion by Judge Murguia.
MURGUIA, Circuit Judge:
Plaintiffs, current and former deputies of the San Francisco Sheriff's Department (" SFSD" ), appeal the district court's order granting summary judgment to the City and County of San Francisco (the " County" ) on their challenge to SFSD's policy prohibiting male deputies from supervising female inmates in the housing units of SFSD's jails. The district court concluded that SFSD's policy did not violate Title VII's prohibition on sex discrimination because it fell within the statute's " bona fide occupational qualification" exception, 42 U.S.C. § 2000e-2(e)(1). We reverse the district court's grant of summary judgment to the County on the sex discrimination claims and vacate the denial of summary judgment to plaintiffs on those claims.
I. Facts and Procedural History
In October 2006, SFSD implemented a new policy prohibiting male deputies from supervising female inmates in the housing units of the jails operated by the County (the " Policy" ). Single-sex staffing policies in correctional facilities are not new, and we have considered before whether such polices violate Title VII by impermissibly discriminating on the basis of sex. See Breiner v. Nevada Dep't of Corr., 610 F.3d 1202 (9th Cir. 2010) (holding policy violated Title VII); Robino v. Iranon, 145 F.3d 1109 (9th Cir. 1998) (per curiam) (holding policy did not violate Title VII).
The adoption of the Policy coincided with SFSD's plan to consolidate all of its female inmates within a single facility, County Jail 8 (" CJ8" ). CJ8 has a " direct supervision" design, meaning that its housing units, or " pods," are composed of cells or sleeping bays arrayed around a central congregation space. Each pod has two tiers and between 56 and 88 beds. At the center of the pod is a podium from which a deputy can see into common areas and into the cells and sleeping bays. Each pod is staffed by two deputies, one of whom remains at the podium while the other makes rounds. Female inmates fill some, but not all, of the available housing pods in CJ8.
Even though CJ8 is not single-sex, all of its pods are single-sex. This is consistent with SFSD's long-standing practice of segregating female and male inmates.
Although housing pods are single-sex, CJ8's pod for inmates receiving medical or psychiatric care is not sex-segregated. Male deputies are not permitted under the Policy to work with female inmates in the housing pods; however, male deputies may be assigned to the mixed-sex medical pod or assigned to transport female inmates between CJ8 and other locations. Male deputies may also enter female housing pods in some circumstances, such as to assist with feeding female inmates.
According to San Francisco Sheriff Michael Hennessey (the " Sheriff" ), who had held his position since 1980, he adopted the Policy for four reasons: (1) to protect the safety of female inmates from sexual misconduct perpetrated by male deputies, (2) to maintain the security of the jail in the face of female inmates' ability to manipulate male deputies and of the deputies' fear of false allegations of sexual misconduct by the inmates, (3) to protect the privacy of female inmates, and (4) to promote the successful rehabilitation of female inmates.
Of the four reasons the Sheriff claims led him to enact the Policy, he identified protecting the safety of inmates from sexual misconduct as the most important. As the County pointed out, between 2001 and 2009, SFSD investigated twelve complaints of sexual misconduct or inappropriate sexual relationships between a male deputy and a female inmate. Ten of those incidents occurred before the Policy was implemented in 2006, and two occurred after. Notably, four of the twelve incidents occurred in 2005, the year immediately preceding the implementation of the Policy. SFSD sustained the allegations of misconduct and disciplined deputies in two of the incidents: a 2001 incident in which a male deputy had an inappropriate relationship with a female inmate with the intent to " cultivate a sexual relationship" and a 2007 incident, after the Policy had been adopted, in which a male deputy was present during a female inmate's strip search. Three additional investigations were followed by a deputy's resignation; these concerned inappropriate contact or sex acts. SFSD also faced lawsuits in 2000 and 2005 alleging that male deputies had engaged in unlawful sexual misconduct with female inmates.
With this concern for inmate safety in mind, the Sheriff asserts that he considered three responses, apart from enacting the Policy, to the problem of protecting female inmates from sexual misconduct: (1) implementing additional screening of male deputies to determine whether they were likely to engage in sexual misconduct with female inmates, (2) installing additional surveillance cameras to monitor activities in CJ8's housing pods, and (3) providing additional training to deputies. However, he claims to have rejected each of these alternatives as ineffective or unfeasible, so he proceeded to implement the Policy.
In July 2007, 35 deputies -- a majority of whom were female -- filed suit against the County, alleging that the policy constituted sex discrimination in violation of Title VII of the Civil Rights Act of 1964 (" Title VII" ), 42 U.S.C. § 2000e-2(a), and the California Fair Employment and Housing Act (" FEHA" ), Cal. Gov. Code § 12940. Title VII and FEHA both make it " unlawful, with narrow exceptions, 'to fail or refuse to hire . . . any individual, or otherwise to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual's . . . sex.'" Breiner, 610 F.3d at 1207 (quoting 42 U.S.C. § 2000e-2(a)(1)). Plaintiffs claimed that the Policy directly caused them a variety of harms related to the conditions of their employment. For example, they claimed that staffing restrictions caused by the Policy resulted in loss of control over when overtime was available or required, loss of opportunities to develop career-enhancing experience, and loss of preferred shifts and regular days off previously earned by seniority. Plaintiffs made additional claims based on their sex discrimination claims: for unlawful employment restrictions under Title VII and FEHA and for failure to prevent a violation of FEHA.
In response, the County first argued that any harm suffered by plaintiffs as a result of the Policy was exceedingly minor, or de minimis, and so was not actionable. Although it did not dispute that the Policy discriminates against deputies on the basis of sex, the County further argued that the discrimination that resulted from the Policy was permissible under the " bona fide occupational qualification" (" BFOQ" ) exception to Title VII and FEHA. See 42 U.S.C. § 2000e-2(e)(1) (" [I]t shall not be . . . unlawful . . . for an employer to hire and employ employees . . . on the basis of . . . sex . . . in those certain instances where . . . sex . . . is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." ). Where courts have permitted sex-based staffing restrictions in corrections facilities, it has ...