Vickie Reed,
Plaintiff-Appellant,
v.
County of Casey, Commonwealth of Kentucky,
Defendant-Appellee. No. 98-6021
Appeal from the United States District Court
for the Western District of Kentucky at Bowling Green.
No. 96-00191--Joseph H. McKinley, Jr., District Judge.
Submitted: May 28, 1999
Decided and Filed: August 2, 1999
Before: MERRITT and DAUGHTREY, Circuit Judges; TARNOW, District
Judge.(*)
_________________
COUNSEL
ON BRIEF: Theodore H. Lavit, Stephen B. Humphress, THEODORE H.
LAVIT & ASSOCIATES, Lebanon, Kentucky, for Appellant. Brett A.
Reynolds, Kurt W. Maier, ENGLISH, LUCAS, PRIEST & OWSLEY, Bowling
Green, Kentucky, for Appellee.
_________________
OPINION
_________________
MERRITT, Circuit Judge. Plaintiff Vickie Reed was a deputy
jailer at the Casey County (Kentucky) Jail. She filed suit in
federal district court seeking to recover damages from Casey
County for injuries and damages she allegedly sustained as a
result of her gender-based transfer from the first work shift
(8:00am - 4:00pm) to the third shift (midnight - 8:00am). Reed
alleged that her shift transfer constituted a violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
She also raised pendent state law claims for a violation of the
Kentucky Civil Rights Act, Ky. Rev. Stat. Ann. § 344.040 (Michie
1999); breach of implied covenant of good faith and fair dealing;
negligent training and supervision; and intentional infliction of
emotional distress. The district court granted summary judgment
to defendant Casey County, dismissing plaintiff's claims under
Title VII. The court also refused to exercise pendent
jurisdiction over Reed's pendent state law claims and thus
dismissed them without prejudice. This appeal ensued. For the
following reasons, the judgment of the district court is
affirmed.
* * *
In November 1995, Tommy Miller was elected Jailer of Casey
County. At that time, plaintiff Reed was already employed as a
deputy at the jail, where she first began working in 1981, with a
recess from 1986-1990. When she returned to work at the Jail in
1991, she was hired by her mother, Mildred Brown, who was the
Jailer at the time. During her employment at the Jail, Reed
always worked the first shift.
According to the Kentucky Department of Corrections'
regulations, a female prisoner may not be lodged in a county jail
unless a female deputy is present to provide supervision. This
regulation is explicitly incorporated into the Casey County
Jail's Policies and Procedures Manual. See JA 44, 46 ("Management
of Female Inmates: When female inmates are lodged in the Casey
County jail, the jail shall provide a female deputy to perform 24-
hour awake supervision."). When Tommy Miller began operating the
Jail, the majority of female prisoners who were booked were
brought into the jail during the third shift, that is, between
the early morning hours of midnight and 8:00 am. There was no
female deputy working on the third shift. As a result, whenever a
female prisoner was brought in on the third shift, either Miller
himself or one of his deputies would have to leave their home
during the third shift, come to the Jail, and transport the
female prisoner to a jail in one of two nearby counties that
housed female prisoners. Such action was necessary in order to
comply with the Kentucky Department of Corrections regulation.
Whenever this occurred, Casey County had to pay overtime wages to
the deputy who transported the female prisoner(s) to the
neighboring county jail. That deputy would then have to work his
regular shift the next day. This arrangement cost the county in
terms of both additional expenditures and reduced efficiency
resulting from fatigued deputies working their regular shifts.
The situation was no less complicated before Miller took over as
Jailer. During Mildred Brown's tenure, a male deputy always
worked the third shift alone. Whenever a female prisoner was
booked in the jail between midnight and 8:00am, the male deputy
on duty would phone Brown at home so that she could come spend
the night in the jail in order to comply with the State's
regulation. In those instances, Brown would stay at the jail
until her daughter reported to work on the first shift. If for
some reason Brown could not remain at the jail, either she or one
of the deputies would transport the female prisoner to a
neighboring county jail that had the personnel available to house
the female prisoner.
Well aware of the logistical gymnastics required to satisfy
the state law with respect to the supervision of female
prisoners, Tommy Miller took affirmative steps to address the
situation. In February 1996, Miller announced new shift
assignments. In particular, plaintiff was moved from the first
shift to the third shift in order to accommodate the Jail's need
for an on-duty female deputy when female prisoners were booked
during the third shift. This schedule change did not affect
plaintiff's job title, her salary, her benefits, or her job
responsibilities. Nevertheless, plaintiff refused to work the
third shift and quit her job. After repeated efforts over the
course of several months to hire another female deputy jailer for
the third shift, Miller was finally able to do so. There is no
debate with respect to Miller's motivation for transferring
plaintiff to the third shift. He readily admits that his decision
was based solely on Reed's gender, as the jail needed female
supervision during the third shift in order to comply with
Kentucky state law.
* * *
Title VII of the Civil Rights Act of 1964 provides, in
pertinent part, that "[it] shall be an unlawful employment
practice for an employer . . . to discriminate against any
individual with respect to [her] compensation, terms, conditions,
or privileges of employment, because of such individual's . . .
sex[.]" 42 U.S.C. § 2000e. In the instant matter, plaintiff
asserts a Title VII sex-discrimination case based upon a facially
discriminatory employment policy. Indeed, defendant Casey County
readily admits that Miller used gender as the motivating factor
in reassigning Reed to the third shift. In Healey v. Southwood
Psychiatric Hospital, 78 F.3d 128 (3d Cir. 1996), the Third
Circuit made clear that "[w]hen open and explicit use of gender
is employed, as is the case here, the systematic discrimination
is in effect 'admitted' by the employer, and the case will turn
on whether such overt disparate treatment is for some reason
justified under Title VII." Id. at 132. Title VII permits overt
discrimination if the disparate treatment is part of a legally
permissible affirmative action program, or based on a bona fide
occupation qualification ("BFOQ"). The Act provides:
Notwithstanding any other provision of this [title], (1) it
shall not be an unlawful employment practice for an employer
to hire and employ employees . . . on the basis of his
religion, sex, or national origin in those certain instances
where religion, sex, or national origin is a bona fide
occupational qualification reasonably necessary to the
normal operation of that particular business.
42 U.S.C. § 2000e-2(e). Thus, under the BFOQ defense, facial
gender-based discrimination is permitted if gender "is a bona
fide occupational qualification reasonably necessary to the
normal operation of [a] particular business or enterprise." Id. §
2000e-2(e)(1). In International Union v. Johnson Controls, Inc.,
499 U.S. 187, 221-22 (1991), the U.S. Supreme Court interpreted
the BFOQ exception to mean that discrimination is permissible
only if those aspects of a job that allegedly require
discrimination fall within the "essence of a particular
business." Id. at 206. In other words, gender discrimination is
valid "when the essence of the business operation would be
undermined if the business eliminated its discriminatory policy."
Dothard v. Rawlinson, 433 U.S. 321, 332 (1997). In the instant
matter, the district court found that Tommy Miller's decision to
place Reed on the third shift was justified as a BFOQ and is
therefore exempt under Title VII.(1) We agree.
The "essential nature" of the Casey County Jail is to lodge,
keep, transport, feed and care for prisoners. In so doing, the
jail must abide by state regulations established by the Kentucky
Department of Corrections, one of which requires a female jailer
to be present when a female prisoner is lodged in the jail.
Despite her protestations that the third shift presents
unreasonable danger for a female deputy, plaintiff Reed was not
the first female deputy ever to work the third shift. In fact,
Mildred Brown, Reed's own mother, had worked the early morning
shift for some time without incident. Immediately prior to the
plaintiff being transferred to the third shift, however, there
were no female deputy jailers working the third shift. This
situation resulted in considerable inefficiencies and additional
expenses for the Jail. Indeed, in light of the Department of
Corrections' regulation, transferring the plaintiff to the third
shift was vital to the proper and legal functioning of the Casey
County Jail. The "essence" of the jail's function and business
operations was being, and would continue to have been, undermined
without the presence of the plaintiff or another female on the
third shift. There is no doubt that the plaintiff's gender was
manifestly related to the jail's ability to lodge and/or
transport female prisoners in compliance with state law. The
district court thus concluded that the plaintiff's gender was a
bona fide occupational qualification and that Casey County had no
other reasonable alternative but to transfer the plaintiff, an
action that was "reasonably necessary to the normal operation of
the jail." JA 21.
Defendant Casey County has the burden of establishing that
no reasonable alternatives existed other than transferring the
plaintiff to the third shift. See Healey v. Southwood Psychiatric
Hosp., 78 F.3d 128, 132 (3d Cir. 1996). As the district court
duly noted, Casey County had three possible alternatives from
which to choose in order to comply with the State Department of
Correction's regulation. First, it could have continued the
policy that was in place before Miller's arrival and had a deputy
jailer immediately transport any female prisoner booked during
the third shift; second, the Jail could have called the plaintiff
at home and had her come to the Jail and spend the night with the
prisoner; or third, the Jail could (and did) transfer the
plaintiff to the third shift in order to avoid the additional
costs and inefficiencies associated with the first two options.
While Miller, as County Jailer, could have chosen an
alternative solution to the problem confronting the Jail, neither
of the first two options was very good. The first, transporting
female prisoners to neighboring counties in the middle of the
night, placed financial strains on the Jail when it was forced to
pay overtime and caused fatigue to the deputy jailer overseeing
the transfer, who then had to work the next day. The second
option was an option in theory alone. Unlike Miller's
predecessor, Mildred Brown, who was personally willing to work
the third shift when a female was booked, Tommy Miller did not
have that alternative, nor could he reasonably call upon the
plaintiff for assistance, as she admitted to never even once
having willingly assisted the Jail in a time of need during the
third shift. On the only occasion that Miller requested that she
assist him on that shift, plaintiff protested and made abundantly
clear that her assistance could not be relied upon in the future.
Miller thus had no choice but to reassign the plaintiff
permanently to the third shift in order to satisfy the legal
prohibition against male deputy jailer supervising female
prisoners alone and to comply economically and efficiently with
the Kentucy Department of Corrections Regulation.
For the foregoing reasons, the judgment of the district
court granting defendant's Motion for Summary Judgment and
dismissing the plaintiff's pendent state law claims without
prejudice is AFFIRMED.
Footnotes
*The Honorable Arthur J. Tarnow, United States District Judge for
the Eastern District of Michigan, sitting by designation.
1The BFOQ exception to Title VII applies to numerous employment
decisions, including, inter alia, the transfer of an employee to
another shift. See Moteles v. University of Pa., 730 F.2d 913,
920 (3d Cir. 1984) ("[A]n enterprise may legally exclude a person
from a position either on the initial hiring or by transfer
during the term of employment.); id. ("[T]ransfering or refusing
to transfer are both encompassed within the meaning of
'employ.'").
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