Assignment – Draft Factual Background Section of the Position Statement: JCF’s Response to Complainant’s Charge.

Due: February 6, 2017

Page Limit: Maximum of 2 pages single space

 

 

Charge of Discrimination:

I, Cami Smith worked as a correctional officer at the Indiana Department of Correction’s Jasper Correctional Facility. I was employed there from September 2011 through December 2016. I asked to transfer from the third shift to the second shift, but was denied the transfer because it was a “male” position. I believe that the denial of my transfer was discriminatory on the basis of my gender, in violation of Title VII of the Civil Rights Act of 1964. I further believe that Jasper Correctional Facility’s identification of certain positions as “male” positions had a disparate impact on me due to my gender.

Summary of Investigation

Jasper Correctional Facility (“JCF”) is a minimum security male prison facility within the Indiana Department of Correction (“IDC”). At all times between 2000 and today, JCF has housed between 170 and 200 inmates and employed 34 custodial staff. In 2016, of the 34-custodial staff, 24 were male.

There are three shifts at JCF: first shift, midnight to 8:00 a.m.; second shift, 8:00 a.m. to 4:00 p.m. and third shift, 4:00 p.m. to 12:00 a.m. There are five correctional officers scheduled to work each shift. Schedules are set monthly. Correctional officers generally work for six days straight and then two days off. In addition to correctional officers, JCF employs road crew officers and utility officers who work Monday through Friday from 8:00 to 4:00 p.m. Road crew officers accompany inmates who work outside the facility during the day, utility officers assist road crew with supervision, and also help strip search inmates when they return to the facility. Lieutenant Bill Wishmeir has been responsible for scheduling at JCF since 1999. Prior to 1999, Lt. Wishmeir worked as a correctional officer.

 

Notes from Cami Smith’s personnel file

Employment Application -- requested to work days, but agreed to work any shift she was assigned. From hire date to resignation date she worked third shift. Occasionally filled in for other shifts, and also worked overtime on other shifts.

Performance Evaluations -- conducted every year and always received either a “meets expectation” or “exceeds expectations.” Her attendance was good, with only 3 tardies.

She received a written warning in 2013 for inappropriate conduct with an inmate.

She received written warning in 2015 for the use of excessive force when she elbowed an inmate in the stomach when he refused to get back in line.

In November of 2016 asked to be moved to second shift. Request was denied. Lt. Wishmeir specifically noted only a “male” position was open on second shift at that time. In November of 2016, Cami sent an email to Lt Wishmeir saying that officers who worked on second shift were getting more overtime opportunities than those working first or third shifts. She received no response to her complaint.

In December of 2016, Cami sent Lt. Wishmeir an email requesting to switch to first shift. Lt Wishmeir again responded denying her request, telling her only a “male” position was open at that time. Lt Wishmeir further stated that he believed there may be a second shift position available in February and depending on her seniority he may be able to give that to her. Cami voluntary resigned her position on December 22 to spend more time with her 12-year-old daughter.

 

Notes from Interview with Bill Wishmeir

Bill never scheduled more than three female officers on any single shift.

When he first started scheduling he had problems because if a male officer was absent he would have an all-female staff which would conflict with policy on searches and seizures. He does not remember how many times this occurred, but believes it was more than 5 less than 10. He would then need to have a male staff member work overtime to avoid an all-female shift.

According to Bill, his scheduling practice ensures the male inmates’ right to privacy by limiting the possibility of cross-gender strip searches to emergency situations only per the IDOC policy. It also protects female offices from violating the policy.

Bill did not conduct any studies on how frequently strip searches were required on each shift, nor did he review logs of strip searches to determine how frequently they were conducted prior to creating his practice. He also did not talk to the prior scheduling Lt. to determine how he handled the situation.

Bill believed that based on his experience, his policy of limiting any one shift to three females was the best practice considering inmates’ rights to be free from cross-gender searches. It was not his experience that female officers were less likely to get their desired shifts than males. In fact, in 2014, he received a request to change shifts from Melanie Brie and was able to accommodate her request. In November of 2016, a position became open on second shift because Curt Larkin was retiring. Three correctional officers requested the transfer: Mike Cool, Cami Smith and Alberto Vasquez. Mike Cool was given the transfer because he was a man and Bill already had three women at any given time on second shift. Mike also had more seniority than Alberto.

Second shift is the most desirable shift and generally the correctional officers with the most seniority are placed on that shift if that is what they request. In 2016, second shift was staffed as follows: Jenny Sugden – 15 years as a correctional officer; Don Archer – 20 years as a correctional officer; Mike Cool – 9 years as a correctional officer (moved to this shift in November of 2016 after Curt Larkin retired after 30 years as a correctional officer), Beth Ware 22 years as a correctional officer; John Splawn – 12 years as a correctional officer; Danielle Hayes – 14 years as a correctional officer. Ms. Ware has indicated that she will be retiring in February of 2017.

Bill received Cami’s complaint in November of 2016 regarding overtime opportunities, but he knew she was just mad she did not get the transfer and he ignored it.

 

Notes from Interview with Superintendent Jay Irons

Jay has been Superintendent of JCF since 1995. He does not handle scheduling at all, including who works on what shifts. JCF has been subject to six lawsuits since 1995 involving inmates’ alleged violations of right to privacy. Each lawsuit dealt with cross-gender strip searches. Each lawsuit was dismissed.

Over the past 10 years, at least three correctional officers were injured by inmates. In 2008, a male correctional officer’s nose was broken when he slammed into the wall by an inmate. In 2010, a female correctional officer was hospitalized after she was severely beaten by two male inmates.  In 2014, a male correctional officer was stabbed in the throat by an inmate.

As the superintendent, Jay does not decide what policies govern employment. Since JCF is a division of the Indiana Department of Corrections, all policies are created by IDOC and implemented by JCF.

A correctional officer’s seniority is determined by how long they have worked in total for IDOC, not just how long they have worked for JCF.

On or about September of 2016, Jay received an anonymous complaint that two correctional officers, Mike Cool and Cami Smith, were engaging in inappropriate conduct while on duty. An investigation was completed and the allegations were unsubstantiated.

 

Notes from Interview with Correctional Officer Mike Cool

Mike has been employed by JCF since 2013. He transferred to JCF from the Bedford Correctional Facility where he started working as a correctional officer in about 2008. He transferred to JCF to be closer to home. His wife died in 2013 and he needed to be closer to home for his kids. When he transferred to JCF he started on third shift, but was able to transfer to second shift in November when Curt Larkin retired.

Performance Evaluations – was given a Performance Evaluation every year and every year given an exceeds expectations. In 2012 was given the Governor’s Medal of Service when he performed an emergency tracheotomy on an inmate who was choking on a piece of meat.

 

Notes from Interview with Correctional Officer Alberto Vasquez

Alberto has been employed by JCCF since 2014 as a correctional officer. He has always worked first shift.

His performance evaluations have always been meets expectations. He has had multiple attendance problems, which he claims is based on the fact that he does not have reliable transportation. He has received verbal warnings regarding attendance, but not written warnings.

He asked to transfer to second shift in November of 2016 so he could start taking the bus to work. His transfer request was denied. He was told the request was denied because he did not have seniority. He understood and believes this was a fair reason. He believes a position will be open on second shift in February of 2017, and he is hopeful he will get a transfer then.

 

Notes from Interview with Correctional Officer Beth Ware

Beth feels like she is treated fairly. Has never been treated differently because she is a woman. She worked on first shift for 9 years before she could transfer to second shift. She requested to transfer to second shift on multiple occasions, but was generally denied due to seniority issues. She does not believe she was ever told she was not being transferred because she was a woman, but she would understand it if they said that.

Beth has had excellent performance evaluations and no written warnings.

 

Notes from Interview with Correctional Officer Lindsey Elfman

Lindsey has been employed as a correctional officer since 2015. She works 3^rd shift and has never requested a transfer. No performance evaluations were completed.

Received a written warning within her 90-introductory period for inappropriate language.

Received a written warning in December of 2015 for excessive force when she dislocated an inmate’s shoulder during a take down.

Received a final written warning in June of 2016 for excessive force when she used an illegal hold and caused an inmate to lose consciousness.  

Lindsey states that Lt. Wishmeir is a chauvinist jerk. According to Lindsay, Lt. Wishmeir thinks women need to be protected and are not strong enough to be correctional officers. Cami told her Lt. Wishmeir denied her request to transfer shifts because she was a woman and Lindsey believes her. Lindsey knows that Mike Cool was transferred to second shift in November and he had not worked at JCF very long, and she thinks this is discriminatory.

 

Interview Notes from Melanie Brie

Melanie has worked at JCF as a correctional officer since 2006. She worked third shift from 2006 to 2014. In 2014, she requested a transfer to first shift so she could be home after school with her kids. Melanie’s transfer request was granted. There were only two other women regularly scheduled on first shift at that time, and no one else applied for the open position.

Melanie has always received “exceeds expectations” on her performance evaluations. She has never received any written warnings. She did receive a verbal warning for wearing non-regulation socks with her uniform on one occasion in 2009.

IDOC’s Equal Employment Opportunities Policy

 

It is the policy of IDOC to ensure equal employment opportunity without discrimination or harassment on the basis of race, color, religion, sex, age, disability, marital status, citizenship, or any other characteristic protected by law.  IDOC prohibits any such discrimination or harassment.

 

IDOC Policy No. 0629 –“Searches and Shakedowns”

 

PURPOSE This directive outlines procedure for searches of persons under the supervision of the Indiana Department of Corrections (IDOC). Contraband in correctional facilities presents a myriad of safety and security concerns for staff, inmates, volunteers, and visitors. In order to improve safety and security, it is necessary that corrections staff has the authority to conduct searches of persons and possessions entering the secure part of correctional facilities.

POLICY It is the policy of the IDOC to promote the safety and security within state correctional facilities, and field offices, by conducting routine, random, and reasonable suspicion searches of all inmates, offenders, or any other person who may enter the secure part of a correctional facility. All searches shall be carried out in a professional manner, where the dignity of the person subjected to the search is maintained.

Physical Searches of Person and Property and Drug Testing Observations

a. Inmate strip searches, inmate pat searches, and drug testing observations, will be conducted by staff members of the same birth-sex, except when exigent circumstances exist; such as no male staff is on shift, or in an emergent situation when the search of an inmate is imperative to the safety and security of an inmate, or to the operations of a facility.

b. Inmates who identify as transgendered or intersex will be pat searched by a staff member of the gender identified by the inmate on the Gender of Preference Form. Strip searches of inmates who identify as transgendered or intersex will be strip searched by an IDOC staff member who has the same current gender status as the inmate. In exigent circumstances, such as no male staff is on shift or in an emergent situation when the search of an inmate is imperative to the safety and security of an inmate, or to the operations of a facility, a staff member of any gender may conduct the search. Any employee conducting or observing a cross-gender search shall complete an incident report pursuant to IDOC Administrative Directive #405 Reporting Incidents.

 

c. All strip searches must be observed by at least one other correctional officers. Correctional officers conducting or observing a strip search shall be of the same gender as the inmate subjected to the search except when exigent circumstances are such that delay would jeopardize the safety of the inmate, the officers, or to the safety and security of the facility.

 Dear EEOC Investigator,

 

 

This letter, along with its supporting documentation, constitutes Jasper Correctional Facility’s (“JCF”) response to the above-referenced charge of discrimination. It is based on the facts presently known from JCF’s investigation, and may be supplemented or modified in the event the organization becomes aware of new or additional information. JCF’s submission of information during the course of the EEOC’s investigation in no way constitutes a waiver of any available defenses or objections that it may seek to raise at a later time in this or any other proceeding. Finally, the information provided by JCF during the course of the EEOC’s investigation should be treated as sensitive, kept confidential and not disclosed to any third parties, except as required by law.

 

Ms. Smith claims that her request to transfer to a more desirable shift was denied based on her gender and that JCF’s scheduling policy had a disparate impact on her because of her gender in violation of Title VII of the Civil Rights Act of 1964.

 

As we will demonstrate below, Ms. Smith’s allegations are without merit and should be dismissed.

 

I.          GENERAL INFORMATION

 

            A.        Name and Address of Organization

 

                        Jasper Correctional Facility

                        1 Walnut Street

                        Jasper, IN 47462

 

            B.        Representative of Organization

 

                        __________________________

                        HR Director

                        Jasper Correctional Facility

                        1 Walnut Street

                        Jasper, IN 47462

 

 

            C.        Nature of Business

                       

                        JCF is a minimum security correctional facility for men.

 

            D.        Number of Employees

 

                        JCF employs approximately 50 employees.

 

 

II.        FACTUAL BACKGROUND

 

 

 

 

 

III.       RESPONSE TO MS. SMITH’S COMPLAINT

 

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). However, a narrow exception exists if a person’s sex is a bona fide occupational qualification (“BFOQ”). Id. §2000e-2(e). An employer must show that the BFOQ is “reasonably necessary to the normal operation of that particular business or enterprise.” Id. § 2000e–2(e). Further, A BFOQ is only valid “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). Ms. Smith is unable to establish her disparate treatment claim based on her gender, because JCF had a BFOQ for working on any available shifts. Ms. Smith’s request to transfer shift was denied solely as a result of this BFOQ, and Ms. Smith has not shown otherwise. The decisions of prison officials are “entitled to substantial weight when they are the product of a reasoned decision-making process, based on available information and experience. See Henry v. Milwaukee Cty., 539 F.3d 573, 579-80 (7th Cir. 2008). Ms. Smith has not produced any evidence to show that JCF’s scheduling practice was not necessary in light of the particular business needs of JCF.

 

In addition, Ms. Smith’s disparate impact claim fails as well. A prima facie case under a disparate impact theory requires Ms. Smith 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). Ms. Smith must also present “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).  Ms. Smith has produced no 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 that there was a quota of three female correctional officers per shift is not sufficient to show a negative impact. Regardless, even if Ms. Smith could establish a prima facie case for gender discrimination based on disparate impact, JCF has already establish it had a legitimate business reason for its policy.

 

IV.       CONCLUSION

 

In sum, Ms. Smith is unable to establish the allegations contained in her Complaint of discrimination. Accordingly, JCF respectfully requests the EEOC complete its investigation and dismiss this Complaint.  In the meantime, if you have questions or would like JCF to submit additional evidentiary materials, please do not hesitate to contact me.

 

 

Yours truly,