Case 3:11-cv-05760-BHS Document 1 Filed 09/21/11 Page 1 of 10

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

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AT TACOMA

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10 TEAMSTERS LOCAL UNION NO. 117, a

II Washington labor organization,

No. ---------------

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COMPLAINT FOR DECLARATORY

Plaintiff,

mDGMENT AND INJUNCTIVE

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v.

RELIEF

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15 WASHINGTON STATE DEPARTMENT 16 OF CORRECTIONS,

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Defendant.

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Plaintiff Teamsters Local Union No. 117 complains and alleges as follows:
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I. PARTIES

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1. Teamsters Local Union No. 117 ("Local 117'' or "the Union"), is a labor organization

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with its principal place of business in King County, Washington. Local 117 is the

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exclusive certified bargaining representative of approximately 6,000 State employees

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COMPLAINT - I Case No. _ _ _ _ _ __

TEAMSTERS LOCAL UNION NO. 117 14675 INTERURBAN AVENUE SOUTII,
SUITE307 TUKWILA. WASHINGTON 98168 Office (206) 441-4860 I Fax (206) 441-3 I 53

Case 3:11-cv-05760-BHS Document 1 Filed 09/21/11 Page 2 of 10

employed by the Washington State Department of Corrections ("DOC" or "Defendant")

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in the Prisons Division.

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2. DOC is a state agency with its principal place of business in Thurston County,

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Washington. DOC employs individuals represented by Local 117. DOC operates twelve

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(12) adult prison facilities in Washington State, including the Washington Corrections

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Center for Women ("WCCW") and the Mission Creek Corrections Center for Women
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("MCCCW"). WCCW and MCCCW are the only state prisons that house female
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inmates, and both male and female DOC employees work at these women's correctional
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facilities.

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3. WCCW is located in Gig Harbor, Washington.

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4. MCCCW is located in Belfair, Washington.

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5. DOC is, and at all relevant times was, an employer engaged in an industry affecting

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commerce within the meaning of section 701 et seq. of Title VII, 42 U.S.C., Sections
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2000e-(b), (g), and (h).
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II. JURISDICTION AND VENUE
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6. Jurisdiction ofthis Court is invoked pursuant to 28 U.S.C. Section 1331.

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7. This action is authorized and instituted pursuant to Title VII of the Civil Rights Act of

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1964, as amended, 42 U.S.C. Sections 2000e, et seq. ("Title VII").

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8. Venue in this District is proper as the employment practices alleged to be unlawful were

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committed within the jurisdiction of the United States District Court for this District.
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COMPLAINT- 2 Case No. _ _ _ _ _ __

TEAMSTERS LOCAL UNION NO. 117 14675 INTERURBAN AVENUE SOUTH,
SUITE307 TUKWILA, WASHINGTON 98168 Office (206) 441-4860 I Fax (206) 441-3153

Case 3:11-cv-05760-BHS Document 1 Filed 09/21/11 Page 3 of 10

III. STATEMENT OF FACTS

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9. In July of 2007, a lawsuit was filed on behalf of female inmates against DOC and

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individual defendants, alleging that certain staff had engaged in sexual misconduct ("the

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Jane Doe lawsuit").

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10. The Jane Doe lawsuit is the first lawsuit of its kind against the State of Washington.

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11. DOC responded to the Jane Doe lawsuit by conducting an investigation and hiring

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consultants to review the issue of sexual misconduct within women's correctional
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facilities.
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12. The consultants hired by DOC recommended, in part, that DOC address sexual

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misconduct in women's correctional facilities by increasing the number of female

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correctional officers.

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13. The consultants hired by DOC never recommended that DOC address sexual misconduct

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by decreasing the number of male correctional officers.
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14. The plaintiffs' experts in the Jane Doe lawsuit argued that an increase in the number of
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female correctional officers would limit the potential for sexual misconduct in women's
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correctional facilities.

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15. The plaintiffs' experts in the Jane Doe lawsuit did not argue for a reduction in the

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number of male correctional officers.

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16. The National Prison Rape Elimination Commission recommends increasing overall

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staffing levels and utilizing technological aides to improve safety in women's
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correctional facilities.
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COMPLAINT - 3 Case No. _ _ _ _ _ __

TEAMSTERS LOCAL UNION NO. 117 14675 INTERURBAN AVENUE SOUTII,
SUITE 307 TUKWILA, WASHINGTON 98168 Office (206) 441-4860 I Fax (206) 441-3153

Case 3:11-cv-05760-BHS Document 1 Filed 09/21/11 Page 4 of 10

17. The Department of Justice and the National Institute of Corrections Information Center

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likewise recommend increasing overall staffing levels at women's correctional facilities

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to improve safety.

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18. Adding positions for both male and female correctional officers in women's correctional

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facilities, or reassigning certain duties to female only staff, could address DOC's

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concerns about sexual misconduct without displacing existing male workers.
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19. On May 15, 2008, DOC submitted a request to the Washington State Human Rights
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Commission ("WSHRC") to designate numerous existing correctional officer positions at
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several women's correctional facilities as female-only, asserting that gender is a bona

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fide occupational qualification ("BFOQ") for those positions.

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20. The number of BFOQ positions requested was approximately one-hundred and ten (II 0).

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21. WCCW and MCCCW were among the correctional facilities affected by the broad-

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sweeping BFOQ designation request.
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22. The Jane Doe lawsuit makes no allegations of any misconduct with respect to the large
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majority of correctional staff working at WCCW and MCCCW.
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23. There are no founded allegations of sexual misconduct with respect to existing employees

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at WCCW or MCCCW.

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24. On February 5, 2009, without conducting a hearing, the WSHRC approved DOC's

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request to designate all of the requested correctional officer positions as female-only.

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25. Upon receipt of the WSHRC approvals, DOC indicated to the Union its intent to
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designate the positions as female-only and begin recruiting and reassigning employees
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accordingly.

COMPLAINT - 4 Case No. _ _ _ _ _ __

TEAMSTERS LOCAL UNION NO. 117 14675 INTERURBAN AVENUE SOUTH,
SUITE307 TUKWILA, WASHINGTON 98168 Office (206) 441-4860 I Fax (206} 441-J 153

Case 3:11-cv-05760-BHS Document 1 Filed 09/21/11 Page 5 of 10

26. The reclassified positions include housing positions, response and movement positions,

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programs and activities positions, industries positions, transportation positions,

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reception/intake positions, and relief positions.

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27. Between these various categories of positions, there is a high degree of variation

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regarding isolation, search requirements, and reasonable available alternatives to address

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privacy and/or safety concerns of female imnates.

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28. DOC failed to undertake any individualized analysis of each position before designating
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all of the approximately 110 positions as female-only.
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29. Many positions were improperly designated as female-only.

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30. When choosing between two positions in a single location on the same shift, where one

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of the positions had a female correctional officer as the incumbent, DOC chose to

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designate the other position that was not occupied by a female as the female-only

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position.
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31. DOC denied the Union's request to have the first position, which already had a female
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incumbent, designated as the female-only position.
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32. Had DOC honored the Union's request, a male incumbent would not have been displaced

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and DOC's intended result of having one ofthe two positions be classified as female-only

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would have been achieved.

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33. The Union and DOC have been parties to a series of collective bargaining agreements

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over a period of several years.
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34. All correctional officers obtained their positions pursuant to the seniority-based bid
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system set forth in one of the above referenced collective bargaining agreements between

DOC and the Union.

COMPLAINT - 5 Case No. _ _ _ _ _ __

TEAMSTERS LOCAL UNION NO. 117 14675 INTERURBAN AVENUE SOUTH,
SUITE307 TUKWILA. WASHINGTON 98168 Office (206) 441-4860 f Fax (206) 441·3153

Case 3:11-cv-05760-BHS Document 1 Filed 09/21/11 Page 6 of 10

35. On June 30, 2009, the date that the previous collective bargaining agreement expired,

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DOC unilaterally moved male correctional officers out of most of the positions it had

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decided would be female-only positions.

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36. DOC has refused to consider male applicants for correctional officer positions designated

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as female-only positions.

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37. DOC has displaced male correctional officers holding positions pursuant to a seniority-
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based bid, because those correctional officers were male.
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38. As a result of the female-only designations, male correctional officers were forced to
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transfer to less desirable positions, and in some cases transfer to different facilities,

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causing great disruption to their professional and personal lives.

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39. As a result of the female-only designations, female staff are required to work more

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overtime hours, as they are being used for both female-only and gender-neutral

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vacancies.
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40. As a result of the female-only designations, despite having contractual seniority on the
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voluntary overtime list, male staff are being skipped-over on overtime opportunities,
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since they cannot work overtime in female-only positions.

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41. As a result of the female-only designations, senior female staff who received layoff

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notices and submitted bids for gender-neutral positions, and who should have been

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awarded such positions based on their contractual seniority, have been selected for less

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desirable positions designated as female-only, while less senior male staff were selected
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for the gender-neutral positions.
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COMPLAINT - 6 Case No. - - - - - -

TEAMSTERS LOCAL UNION NO. 117 14675 INTERURBAN AVENUE SOUTH,
SUITE307 TUKWILA. WASHINGTON 98168 Office (206) 441-4860 f Fax (206) 441-3153

Case 3:11-cv-05760-BHS Document 1 Filed 09/21/11 Page 7 of 10

42. As a result of the female-only designations, senior male staff are receiving layoff notices

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due to limited gender-neutral positions, while junior female staff with less seniority are

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still employed due to female-only position vacancies.

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43. As a result of the female-only designations, probationary female staff and non-permanent

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(on-call) female staff were retained, while permanent male staff were laid off.

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44. As a result of the female-only designations, female staff have an increased workload
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since they must perform all of the pat searches and strip searches of female inmates, and
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the second correctional officer must now also be female.
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45. As a result of the female-only designations, female staff are frequently missing scheduled

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rest breaks and lunch breaks while serving in female-only positions due to a lack of

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female relief staff, while male staff are receiving scheduled rest breaks and lunch breaks.

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46. As a result of female-only designations, DOC has had to move female staff out of their

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gender-neutral bid posts to cover for vacant female-only positions, thereby violating the
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contractual bid rights of female staff.
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47. As a result of female-only designations, female staff are more frequently left alone with
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offenders because they cannot self relieve for breaks while male correctional officers can.

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48. DOC employees have reported that violence against staff by inmates has increased since

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the creation of female-only positions.

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49. DOC employees have reported that violence between inmates has increased since the

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creation of female-only positions.
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50. DOC employees have reported that a lack of male staff presence in the female living
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units has emboldened violent offenders to act out.

COMPLAINT - 7 . Case No. _ _ _ _ _ __

TEAMSTERSLOCALUNIONNO.ll7 14675 INTERURBAN AVENUE SOUTH,
SUITE 307 TUKWTI..A, WASHINGTON 98168 Office (206) 441-4860 I Fax (206) 441-3153

Case 3:11-cv-05760-BHS Document 1 Filed 09/21/11 Page 8 of 10

51. All conditions precedent to the institution of this lawsuit have been fulfilled. More than

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thirty (30) days prior to the institution of this lawsuit, Plaintiff filed charges of unlawful

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discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging

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that Defendant violated Title VII.

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52. EEOC investigated the claim, and on July 18, 2011 issued its Right to Sue Notice to

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Plaintiff, who then timely filed this complaint.
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IV. CAUSES OF ACTION

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Count 1: Gender Discrimination in Violation of Title VII

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53. Plaintiffs herein re-allege each and every fact set forth above.
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54. DOC improperly designated many positions as female-only without undertaking a proper
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analysis of those positions to determine whether being female was, in fact, a bona fide
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occupational qualification for each designated position.

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55. Many of the positions are wrongfully designated as female-only without adequate proof

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that being female is, in fact, a bona fide occupational qualification for the designated

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position.

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56. The male correctional officers impacted by DOC's female-only designations were
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qualified for the positions they held, and despite those qualifications, DOC wrongfully
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denied the male correctional officers the right to continue to hold those positions because
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of their gender.

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57. As a direct and proximate result of the aforesaid acts of Defendant, male correctional

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officers have been laid-off, displaced, and transferred to less desirable positions or

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different correctional facilities.

COMPLAINT - 8 Case No. _ _ _ _ _ __

TEAMSTERS LOCAL UNION NO. 117 14675 INTERURBAN AVENUE SOUTH,
SUITE307 TUKWILA, WASHINGTON 98168 Office (206) 441-4860 I Fax (206) 441-3153

Case 3:11-cv-05760-BHS Document 1 Filed 09/21/11 Page 9 of 10

58. As a direct and proximate result of the aforesaid acts of Defendant, male correctional

officers have suffered a loss of earnings and other damages.
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59. As a direct and proximate result of the aforesaid acts of Defendant, male correctional

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officers have suffered loss of status, diminished sense of self-worth, anxiety, emotional

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distress, embarrassment, humiliation, mental anguish, and other related damages.

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60. As a direct and proximate result of the aforesaid acts of Defendant, female correctional

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officers have been forced to work excessive overtime.
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61. As a direct and proximate result of the aforesaid acts of Defendant, female correctional
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officers have been subjected to unsafe working conditions.

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62. As a direct and proximate result of the aforesaid acts of Defendant, both male and female

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correctional officers have been subjected to violations of contractual protections in

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working conditions guaranteed by collective bargaining agreements between the Plaintiff

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and Defendant.
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v. PRAYER FOR RELIEF

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WHEREFORE, Plaintiff prays for relief as follows:

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A. Order of equitable remedies and remedial relief, including an injunction
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prohibiting Defendant from denying male correctional officers the right to hold positions
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for which they are qualified and for which there is no legitimate need for a female-only
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designation;

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B. Order requiring Defendant to undertake an individual analysis of each position

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before designating it as female-only, including those positions already designated as

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COMPLAINT - 9 Case No. _ _ _ _ _ __

TEAMSTERS LOCAL UNION NO. 117 14675 INTERURBAN AVENUE SOUTII,
SUITE307 TUKWILA, WASfllNGTON 98168 Office (206) 441-4860 I Fax (206) 441-3153

Case 3:11-cv-05760-BHS Document 1 Filed 09/21/11 Page 10 of 10

such, and an opportunity for the Union to present evidence to an impartial arbitrator who

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will have the ultimate authority to rule regarding such designations;

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C. Order requiring Defendant to cure all Title VII violations;

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D. Award Plaintiff its attorneys' fees; and

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E. Award such other relief as the Court may deem just, proper and equitable.

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t;"y Zt 7 RESPECTFULLY SUBMITTED this

of September, 2011.

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Spencer Nathan Thai, WSBA No. 20074

General Counsel

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spencer.thal@teamsters 117 .org

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Daniel Aaron Swedlow, WSBA No. 37933

Staff Attorney

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daniel.swedlow@teamstersll7.org

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James Varro Smith II, WSBA No. 38871

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Staff Attorney/Director of Corrections & Law Enforcement

jim.smith@teamstersl17.org

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Teamsters Local Union No. 117

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14675 Interurban Avenue South, Suite 307

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Tukwila, WA 98168

(206) 441-4860

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Attorneysfor Plaintiff

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COMPLAINT -10 Case No. _ _ _ _ _ __

TEAMSTERS LOCAL UNION NO. 117 14675 INTERURBAN AVENUE SOUTH,
SUITE 307 TUKWU..A. WASHINGTON 98168 Office (206) 441-4860 I Fax (206) 441-3153

 
 1

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5 UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON AT TACOMA

7 TEAMSTERS LOCAL UNION NO. 117,
8 Plaintiff,

9 v.

10 WASHINGTON DEPARTMENT OF
11 CORRECTIONS,

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Defendant,

CASE NO. C11-5760 BHS
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING AS MOOT INTERVENOR’S MOTION FOR SUMMARY JUDGMENT

13 JANE DOE 3, JANE DOE 4, and a class of similarly situated individuals,
14 Intervenors.
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This matter comes before the Court on Intervenor Defendant Jane Doe Class’s

17 (“Class”) motion for summary judgment (Dkt. 25) and Defendant Washington

18 Department of Corrections’ (“DOC”) motion for summary judgment (Dkt. 26). The

19 Court has considered the pleadings filed in support of and in opposition to the motions

20 and the remainder of the file and hereby grants the DOC’s motion and denies as moot the

21 Class’s motion for the reasons stated herein.

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ORDER - 1

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I. PROCEDURAL HISTORY

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On September 21, 2011, Plaintiff Teamsters Local Union No. 117 (“Union”) filed

3 a civil rights complaint against the DOC alleging employment discrimination. Dkt. 1.

4 On December 2, 2011, the Court granted the parties’ stipulated motion allowing the Class

5 to intervene. Dkt. 10.

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On February 27, 2013, the Class filed a motion for summary judgment (Dkt. 25)

7 and the DOC filed a motion for summary judgment (Dkt. 26). On March 18, 2013, the

8 Union filed a combined response. Dkt. 32. On March 22, 2013, the DOC replied (Dkt.

9 35) and the Class replied (Dkt. 36).

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II. FACTUAL BACKGROUND

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This case requires the Court to review the DOC’s hiring practices at two of its

12 correctional facilities for women inmates. The DOC operates two such facilities: the

13 Washington Corrections Center for Women (“WCCW”) located in Gig Harbor, and the

14 Mission Creek Corrections Center for Women (“MCCCW”) located in Belfair.

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In 2007, a class of female offenders filed a lawsuit alleging sexual misconduct by

16 male officers. In response to the lawsuit, the DOC retained three consultants to review

17 security procedures for protecting female offenders from sexual misconduct, review

18 DOC’s sexual misconduct enforcement practices, and examine specific sexual

19 misconduct complaints. Dkt. 27, Declaration of Kara A. Larsen (“Larsen Dec.”), Exh. D

20 at 3. During the pendency of that lawsuit, the DOC, based on the consultants’

21 recommendations, began to implement measures that would increase the security, safety,

22 and privacy of female inmates. In 2010, the parties settled the lawsuit with the DOC

ORDER - 2

1 agreeing to implement specific measures to prevent sexual misconduct. Id. at 2. In

2 addition to these measures, the DOC determined that it also needed to designate certain

3 positions to be staffed only by female corrections officers. Id., Exh. 1 at 48.

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Prior to designating any positions as female-only, the DOC sought review of the

5 proposed bona fide occupational qualification (“BFOQ”) designations by the Washington

6 Human Rights Commission (“HRC”). The HRC is the state agency charged with

7 administering and enforcing the state law against discrimination. RCW 49.60. On May

8 15, 2008, the DOC sent a letter and a “Privacy Post Request” and Position Description

9 supporting each position it was seeking to designate female-only. See Larsen Dec., Ex. D

10 (“HRC Request”). The DOC asked the HRC to authorize sixty-six (66) positions at

11 WCCW and eighteen (18) positions at MCCCW as follows:

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WCCW: Twenty-seven (27) housing unit positions, four (4)

response and movement (“R&M”) positions, two (2) work crew positions,

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twenty-three (23) relief positions, one (1) visiting position, one (1)

intake/reception position, two (2) industries positions, two (2) programs &

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activities positions, one (1) external movement position, and three (3)

hospital watch positions.

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MCCCW: Three (3) housing unit positions, one (1) R&M position,

four (4) work crew positions, one (1) programs and activities, and nine (9)

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relief positions.

17 Id.

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The DOC explained its reasons for requiring the positions and benefits of

19 imposing the female-only positions. First, the DOC stated that

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These positions are required to search and process offenders including pat

search and strip search requirements. Additionally, female staff is necessary

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to accommodate Sick Leave (S/L) Relief, Authorized Leave (AIL) Relief,

and Regular Day-Off (ROO) relief positions.

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ORDER - 3

1 Id. Second, the DOC stated that the positions would “reduce the risk of sexual

2 misconduct, reduce allegations of sexual misconduct, and protect male staff exposed to

3 vulnerable situations.” Id. at 1. The female-only positions would result in improved

4 security of the facilities and safety of offenders. Id. The positions identified needs to

5 conduct pat and strip searches, observe urinalysis collection, and observe female

6 offenders in various states of undress while showering, toileting, and changing clothes.

7 See, e.g., id. at 8.

8

The HRC reviewed the DOC’s requested female-only positions, conducted site

9 visits, interviewed staff and administrators, sought additional information in writing, and

10 reviewed related materials. See Larsen Dec., Ex. E. On February 5, 2009, the HRC

11 issued its opinion in a series of letters that designating the positions as female-only were

12 justified as a “BFOQ” and there were no reasonable alternatives to female-only positions.

13 See Larsen Decl., Ex. F.

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III. DISCUSSION

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As a threshold matter, the Court must determine what positions the Union actually

16 disputes. In the complaint, the Union alleges that

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DOC improperly designated many positions as female-only without

undertaking a proper analysis of those positions to determine whether being

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female was, in fact, a bona fide occupational qualification for each

designated position.

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Dkt. 1, ¶ 54. Both the DOC and the Intervenors move the Court to enter judgment as a

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matter of law that the “DOC’s designation of eighty-four (84) corrections officer

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positions at its women’s correctional facilities as female-only meets the criteria for the

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ORDER - 4

1 [BFOQ] exception to the prohibition on gender discrimination.” Dkt. 26 at 2. With

2 regard to some of the positions in dispute, the Union has either conceded the issue or

3 failed to dispute the DOC’s contention that the position meets the BFOQ exception. For

4 example, the Union “does not dispute the BFOQ designations for the R&M positions, so

5 this resource will remain available to meet the operational need to pat search female

6 inmates.” Dkt. 32 at 6. The Union also does not contest the DOC’s assertion that the

7 Union conceded that one-on-one suicide watch positions and intake positions meet the

8 BFOQ exception. Dkt. 26 at 7. Therefore, the Court grants the DOC’s motion for

9 summary judgment on these positions.

10

With regard to other specific positions, the DOC contends that the Union

11 necessarily conceded that some positions meet the BFOQ exception. Dkt. 35 at 11–12.

12 First, the DOC argues that the Union implicitly concedes that positions in minimum

13 security housing units meet the BFOQ exception based on the substance of an expert

14 report stating that “the large majority of the incidents of sexual assault occurred in the

15 minimum security living arrangements.” Dkt. 32 at 25. Upon review of the Union’s

16 brief, the Court agrees with the DOC’s contention. Therefore, the Court grants the

17 DOC’s motion as to minimum security housing positions and will address the merits of

18 the medium and close security housing positions.

19

Second, the DOC argues that the Union necessarily conceded that certain relief

20 positions meet the BFOQ exception. Specifically, the DOC argues that the Union

21 “necessarily acknowledges that relief positions that cover BFOQ posts on the two regular

22 days off each week are appropriately BFOQ.” Dkt. 35 at 12. The Court agrees because

ORDER - 5

1 the Union “submits that DOC’s designation of vacation and sick leave relief positions as

2 BFOQ female only is overbroad.” Dkt. 32 at 29. Therefore, the Court grants the DOC’s

3 motion as to regular relief positions and will assess the merits as to non-regular relief

4 positions, such as vacation and sick leave.

5 A. Summary Judgment Standard

6

Summary judgment is proper only if the pleadings, the discovery and disclosure

7 materials on file, and any affidavits show that there is no genuine issue as to any material

8 fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

9 The moving party is entitled to judgment as a matter of law when the nonmoving party

10 fails to make a sufficient showing on an essential element of a claim in the case on which

11 the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317,

12 323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole,

13 could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec.

14 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must

15 present specific, significant probative evidence, not simply “some metaphysical doubt”).

16 See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists

17 if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or

18 jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477

19 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d

20 626, 630 (9th Cir. 1987).

21

The determination of the existence of a material fact is often a close question. The

22 Court must consider the substantive evidentiary burden that the nonmoving party must

ORDER - 6

1 meet at trial – e.g., a preponderance of the evidence in most civil cases. Anderson, 477

2 U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual

3 issues of controversy in favor of the nonmoving party only when the facts specifically

4 attested by that party contradict facts specifically attested by the moving party. The

5 nonmoving party may not merely state that it will discredit the moving party’s evidence

6 at trial, in the hopes that evidence can be developed at trial to support the claim. T.W.

7 Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, 477 U.S. at 255). Conclusory,

8 nonspecific statements in affidavits are not sufficient, and missing facts will not be

9 presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888-89 (1990).

10 B. The Instant Motions

11

Under Title VII, it is unlawful for an employer to discriminate on the basis of sex

12 with respect to an employee’s compensation or in the terms, conditions, or privileges of

13 employment, or to “limit, segregate, or classify” on the basis of sex in any way that

14 deprives an employee of employment opportunities or adversely affects his or her

15 employment status. 42 U.S.C. § 2000e–2(a)(1) & (2). A defense exists when an

16 employee’s sex qualifies as a BFOQ that is “reasonably necessary to the normal

17 operation of that particular business or enterprise.” 42 U.S.C. § 2000e–2(e). The BFOQ

18 defense is an “extremely narrow exception to the general prohibition of discrimination on

19 the basis of sex” that may be invoked “only when the essence of the business operation

20 would be undermined” by hiring individuals of both sexes. Dothard v. Rawlinson, 433

21 U.S. 321, 333–34 (1977) (citing Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 388

22 (5th Cir. 1971)). To justify discrimination under the BFOQ exception, an employer must

ORDER - 7

1

prove by a preponderance of the evidence: 1) that the job qualification

justifying the discrimination is reasonably necessary to the essence of its

2

business; and 2) that [sex] is a legitimate proxy for the qualification

because (a) it has a substantial basis for believing that all or nearly all

3

[men] lack the qualification, or . . . (b) it is impossible or highly impractical

. . . to insure by individual testing that its employees will have the

4

necessary qualifications for the job.

5 EEOC v. Boeing Co., 843 F.2d 1213, 1214 (9th Cir. 1988) (quotations omitted).

6

Under these standards, the Court will first address the issues of injury and

7 deference to the DOC’s decisions. The Court will then proceed to consider whether each

8 challenged position meets the BFOQ exception.

9

1. Injury

10

If the challenged employment policy imposes only a de minimus restriction on

11 employees’ employment opportunities, then the employees have failed to show a tangible

12 job detriment that amounts to actionable injury under Title VII. Robino v. Iranon, 145

13 F.3d 1109, 1110 (9th Cir. 1998).

14

In this case, the DOC argues that the Union has failed to present any evidence to

15 any specific member. Dkt. 35 at 11. The Court agrees and finds that the hypothetical

16 injury submitted via the testimony of the Union representative is not evidence that creates

17 a material question of fact as to the issue of injury. Dkt. 32 at 14. Therefore, the Court

18 grants the DOC’s motion for summary judgment because the Union has failed to submit

19 evidence of actual injury. In the event that an inference of injury may be drawn from the

20 Union’s “evidence,” the Court will alternatively address the merits of the dispute.

21

22

ORDER - 8

1

2. Deference

2

The DOC and the Intevenors argue that the prison administrators’ decisions are

3 entitled to deference. Dkt. 26 at 9–10; Dkt. 25 at 13. The Union disagrees and asserts

4 that “[a]bsolutely every case cited by [the DOC] in support of its plea for deference

5 involves prison inmates.” Dkt. 32 at 17 n. 3. While some cases cited by the DOC

6 involve conditions of confinement issues (Dkt. 26 at 9–10), the DOC cites cases where

7 the rule of deference has been applied to Title VII issues. For example, in Breiner v.

8 Nevada Dept. of Corrections, 610 F.3d 1202 (9th Cir. 2010), the Ninth Circuit stated that

9 “[j]udgments by prison administrators that are the product of a reasoned decision-making

10 process, based on available information and experience, are entitled to some deference.”

11 Id. at 1212, n. 6 (citation and internal quotation omitted). Therefore, although some

12 qualifications must be met before the Court may afford deference, the Court may defer to

13 the DOC’s hiring policies and the Union’s arguments to the contrary are rejected.

14

3. The Positions

15

In this case, the Union challenges the DOC’s designation decisions as to (1)

16 programs and activities positions (Dkt. 32 at 24–25); (2) housing unit positions (id. at 25–

17 27); (3) work crew positions (id. at 27); and (4) relief positions (id. at 28–29). The Court

18 considers each position below.

19

a. Programs and Activities

20

The DOC designated three program and activities positions as female only. Dkt.

21 26 at 6. The Union contends that these designations are “indefensible.” Dkt. 32 at 24.

22 The Union asserts that the “only proffered rationale in the record for these designations is

ORDER - 9

1 the need to perform pat searches.” Id. The DOC disagrees and cites substantial evidence

2 in the record in support of the exception. Dkt. 35 at 7–8. For example, the DOC’s

3 request for review of the proposed exception provides in part as follows:

4

This position must conduct pat and strip searches of female

offenders entering and leaving the facility. The officer must do hourly

5

checks (or more often) within all areas within their zone of responsibility.

When relieving unit officers for breaks they would conduct room checks

6

and monitor through observation windows and may encounter female

offenders in varying states of undress while showering, toileting, and

7

dressing. Random urinalyses draws must be conducted, as necessary.

During the entire process of urinalysis collection, the officer must observe

8

the female offender. Failure to properly search female offenders assigned to

outside work crews has resulted in two prior incidents of offenders being

9

able to escape from outside work crews.

***

10

This living unit has the potential for invasions of female offenders’

privacy. The officer does room Checks, enters rooms, rest rooms, and

11

shower areas at any time to maintain the security and safety of the facility.

Security and safety concerns do not allow the use of privacy curtains and

12

courts have determined that these types of partitions do not provide

sufficient privacy from male staff. To assist in performing the duties of

13

pat/strip searches and avoid removing female officers from their assigned

posts, a female Corrections Officer is being requested as a BFOQ post.

14

***

No options other than a BFOQ for female staff are available to

15

prevent the issue of privacy invasion as applied by the courts. Washington

State law does not allow cross-gender pat searches and strip searches to be

16

conducted by male staff on female offenders. Eliminating the strip search of

offenders upon reentry to the facility would increase the introduction of

17

contraband into the facility. This position may be required to observe

urinalysis collection. Not observing the offenders during the entire process

18

of urinalysis collection significantly impacts the reliability of the test results

and impacts the ability to control chain of evidence, so is not feasible.

19

Substitution of a female staff from another post is not viable, due to the

negotiated labor contracts that require assignments of posts determined by

20

seniority of staff. Removing a female staff, if available, from one post to

cover another post or to perform a search, creates a gap for dealing with

21

privacy issues at the post vacated.

22

ORDER - 10

1 HRC Request at 77–78 (MCCW request); see also id. at 462–463 (WCCW request shift

2 3) & 472–473 (WCCW request shift 2). The Court finds that these judgments are

3 products of a reasoned decision-making process, based on available information and

4 experience, and are, therefore, entitled to some deference. Breiner, 610 F.3d at 1212.

5 This finding, however, does not end the inquiry because a “BFOQ can be established

6 only by ‘objective, verifiable requirements [that] concern job-related skills and

7 aptitudes.’” Id. at 1216 (quoting Int’l Union, UAW v. Johnson Controls, 499 U.S. 187,

8 202 (1991)).

9

In Breiner, the Ninth Circuit reversed the district court’s order granting summary

10 judgment on the BFOQ issue. Although the court concluded that the Nevada Department

11 of Corrections’ (“NDOC”) decisions were entitled to deference, the decisions were based

12 on assumptions of the comparative employment characteristics of men in general and

13 could not support BFOQ designation. Id. Specifically, the court concluded that the

14 NDOC failed to meet its burden in showing a basis in fact for the conclusions

15

that all male correctional lieutenants would tolerate sexual abuse by their

subordinates; that all men in the correctional lieutenant role would

16

themselves sexually abuse inmates; or that women, by virtue of their

gender, can better understand the behavior of female inmates.

17

Id. Contrary to the proposed basis in fact in Breiner, the DOC has shown specific and

18

legitimate basis in fact to support the female only BFOQ. For example, the position in

19

question requires that the officer perform searches of the inmates and allows for

20

situations where the officer must be present when the inmate is either partially or fully

21

nude. Moreover, the officer must conduct urinalysis of inmates, which requires strict

22

ORDER - 11

1 chain of custody demands and observing the inmate urinating. The Court finds that the

2 DOC has met its burden in providing a basis in fact for the female-only position.

3

The Union, however, argues that there are reasonable alternatives and asserts that

4 the DOC has failed to provide a legitimate reason why the female-only required tasks

5 could not be performed by an R&M officer “as was the case for decades.” Dkt. 32 at 24.

6 First, it’s undisputed that the way matters were handled in the past led to civil rights

7 lawsuits. Second, the DOC’s request specifically addresses the issue of reasonable

8 alternatives:

9

Substitution of a female staff from another post is not viable, due to the

negotiated labor contracts that require assignments of posts determined by

10

seniority of staff. Removing a female staff, if available, from one post to

cover another post or to perform a search, creates a gap for dealing with

11

privacy issues at the post vacated.

12 HRC Request at 77–78 (MCCW request). Based on these facts, the DOC has shown that

13 requiring an R&M officer to respond to every female-only situation is not a viable

14 alternative. Therefore, the Court grants the DOC’s motion for summary judgment as to

15 the program and activities positions.

16

b. Housing Unit Positions

17

The DOC implemented BFOQ female-only positions for three housing unit

18 positions at MCCCW and twenty-seven housing unit positions at WCCW. The Union

19 concedes any argument with regard to minimum security, single staffed positions. See

20 above. This concession leaves eighteen positions at WCCW in dispute. These positions

21 are apparently double staffed and the DOC implemented the BFOQ female-only positions

22 for the first position on each shift in each particular higher security unit. The Union

ORDER - 12

1 contends that “there is absolutely no evidence to support the conclusion that designating

2 the first position on every shift in every housing unit as female only increases the safety

3 of inmates.” Dkt. 32 at 26. While there appears to be questions of fact regarding whether

4 this specific designation increases the safety of inmates, the questions are not material

5 because the DOC’s reasons for the BFOQ request were not based on inmate safety.

6 Therefore, the Court will address the DOC’s stated reasons for the requests.

7

The DOC contends that “women staff are necessary to perform the basic security

8 searches and to protect women prisoners’ privacy interests.” Dkt. 25 at 18. Specifically,

9 a sample BFOQ privacy post request provides in part as follows:

10

This position must conduct strip searches of female offenders

entering and leaving the unit and observe showers, toileting, and dressing.

11

Officer must do hourly (or more often,) room checks and monitor through

observation windows. During the room checks the officer may encounter

12

female offenders in varying states of undress. Random urinalyses draws

must be conducted, as necessary. During this process, the officer must

13

observe the female offender.

***

14

This unit houses female offenders allowing for potential invasions of

privacy, as offenders must be observed as they shower, dress, and use the

15

toilet. Male staff cannot observe the female offenders when they are

engaged in these activities.

16

***

The Medium Security Unit houses up to 256 offenders. A female

17

Correctional Officer is required for site operations in order to maintain the

security and safety of the facility, and to ensure that the privacy of female

18

offenders is adhered to according to Department policy and case law.

***

19

The use of privacy curtains/partitions may present safety and

security concerns, and have been determined by the courts to not provide

20

adequate privacy from male staff. To assist in performing the duties of pat

and strip searches and avoid removing female officers from their assigned

21

posts, a female Corrections Officer is being requested as a BFOQ post.

***

22

ORDER - 13

1

No options other than a BFOQ for female staff are available to

prevent the issue of privacy invasion as applied by the courts. Washington

2

State law does not allow cross-gender pat searches and strip searches to be

conducted by male staff on female offenders. Eliminating the strip search of

3

offenders at the end of visiting or upon their admission to segregation

would increase the introduction of contraband into the facility. This

4

position may be required to observe urinalysis collection. Not observing the

offenders during the entire process of urinalysis collection significantly

5

impacts the reliability of the test results and impacts the ability to control

chain of evidence, so is not feasible.

6

Substitution of a female staff from another post is not viable, due to

the negotiated labor contracts that require assignments of posts determined

7

by seniority of staff. Removing a female staff, if available, from one post to

cover another post or to perform a search, creates a gap for dealing with

8

privacy issues at the post vacated.

9 HRC Request at 326–327. In light of these concerns, the Court finds that the DOC’s

10 judgments are entitled to deference and that the DOC has met its burden in providing a

11 basis in fact for the female-only position. Regardless, the Union attacks both inmate

12 privacy concerns and the women-only job functions.

13

With regard to the privacy concerns, the Union argues that “female inmates are

14 inmates, and therefore are not entitled to expect the same degree of privacy as men and

15 women who are not incarcerated.” Dkt. 32 at 26. While this may be true as to some

16 privacy issues, observation by a male officer while nude does not appear to be a justified

17 condition of confinement for female inmates. With regard to the less intrusive pat

18 searches, federal law and DOC policy reserve such searches by male guards on female

19 inmates to the most serious emergencies. See, e.g., 28 C.F.R. § 115.5 (“Exigent

20 circumstances means any set of temporary and unforeseen circumstances that require

21 immediate action in order to combat a threat to the security or institutional order of a

22 facility.”) Moreover, the Union fails to supply any facts refuting the DOC’s contention

ORDER - 14

1 that the BFOQ exception is being requested to “to ensure that the privacy of female

2 offenders is adhered to according to Department policy and case law.” HRC Request at

3 326. Therefore, the Court finds that the Union has failed to establish material questions

4 of fact as to this legitimate basis in fact.

5

With regard to female-only job functions (pat searches, strip searches, and

6 urinalysis samples), the Union contends that “those duties can be (and have been)

7 performed by R&M officers . . . .” Dkt. 32 at 27. The fact that privacy issues were

8 handled differently in the past does not create a material question of fact as to the DOC’s

9 BFOQ request. The DOC is required to show that, without the job qualification, “the

10 essence of the business operation would be undermined . . . .” Dothard, 433 U.S. at 333.

11 The DOC has show that, by requiring an R&M officer to respond to a housing unit, may

12 not be feasible and “creates a gap for dealing with privacy issues at the post vacated.”

13 HRC Request at 327. Failing to respect the privacy interests of all inmates at all posts

14 obviously undermines the essence of the center’s operations by exposing inmates to

15 potential privacy violations and the DOC to potential civil rights violations. Therefore,

16 the Court grants the DOC’s motion for summary judgment on these housing unit

17 positions.

18

c. Work Crew Positions

19

The DOC designated six work crew positions as female-only. Dkt. 26 at 6. The

20 Union argues that these designations were “improper.” Dkt. 32 at 27. The Union’s

21 arguments appear to be based on the fact that there was no allegation that sexually

22 inappropriate activity occurred with respect to officers on work crew. The DOC,

ORDER - 15

1 however, based its request on the actual duties of the work crew officer. See, e.g., HRC

2 Request at 141–142. For example, the DOC stated that the officer is responsible for

3 individually escorting groups of inmates to work projects outside the institution and, as a

4 result, “[a]pproximately 80% of the duties assigned to this post are related to pat/strip

5 searches of female offenders.” HRC Request at 141. Moreover, “[e]scorting officers are

6 required to keep constant audio or visual surveillance of offenders working in the

7 community and includes the offenders’ access to restroom facilities.” Id. The Court

8 finds that the DOC has shown that the female only job qualification is necessary to

9 properly perform the duties of the work crew position. Therefore, the Court grants the

10 DOC’s motion for summary judgment on these positions.

11

d. Relief Positions

12

The DOC designated as BFOQ female only twenty-three relief positions at

13 WCCW and nine relief positions at MCCCW. Dkt. 26 at 6. In support of these positions,

14 the DOC made specific BFOQ requests (see, e.g, HRC Request at 642–643) and the

15 Human Rights Commission issued an opinion granting the qualified positions (Larsen

16 Dec., Exh. F at 45–50). The Union asserts, without support, that the DOC “overstated”

17 the required number of such positions. Dkt. 32 at 28. The Union argues that “this is a

18 matter that must be reserved for trial because the Court cannot assess whether the relief

19 sought was excessive without conducting a careful analysis of all such positions.” Id.

20 Contrary to the Union’s position, the Union may not merely state that it will discredit the

21 DOC’s evidence at trial, in the hopes that evidence can be developed at trial to support

22 the claim. T.W. Elec. Serv., Inc., 809 F.2d at 630. Conclusory, nonspecific statements in

ORDER - 16

1 affidavits are not sufficient, and missing facts will not be presumed. Lujan, 497 U.S. at

2 888–89 (1990). The Court finds that the Union has failed to show that any material

3 questions of fact exist to overcome the DOC’s motion for summary judgment and

4 abundance of evidence in support of its motion. The DOC’s judgments are entitled to

5 deference and it has shown legitimate basis in fact for each position. Therefore, the Court

6 grants the DOC’s motion for summary judgment as to the relief positions.

7

IV. ORDER

8

Therefore, it is hereby ORDERED that the DOC’s motion for summary judgment

9 (Dkt. 26) is GRANTED and, although informative and helpful, the Intervenor’s motion

10 for summary judgment (Dkt. 25) is DENIED as moot. The Clerk shall enter

11 JUDGMENT for the DOC against the Union and close this case.

12

Dated this 8th day of April, 2013.

13 14

A

15

BENJAMIN H. SETTLE United States District Judge

16

17

18

19

20

21

22

ORDER - 17

 
 Case: 3:11-cv-5760 As of: 06/26/2015 05:46 AM PDT 1 of 6
APPEAL,CLOSED,PROTO
U.S. District Court United States District Court for the Western District of Washington (Tacoma)
CIVIL DOCKET FOR CASE #: 3:11−cv−05760−BHS

Teamsters Local Union No. 117 v. Washington State Department of Corrections Assigned to: Judge Benjamin H. Settle Cause: 42:1983 Civil Rights (Employment Discrimination)
Plaintiff

Date Filed: 09/21/2011 Date Terminated: 04/08/2013 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Teamsters Local Union No 117 a Washington corporation

represented by Daniel A Swedlow TEAMSTERS LOCAL UNION NO 117 14675 INTERURBAN AVE S STE 307 TUKWILA, WA 98168 206−441−4860 Email: dan.swedlow@teamsters117.org ATTORNEY TO BE NOTICED

Spencer Nathan Thal TEAMSTERS LOCAL UNION NO 117 14675 INTERURBAN AVE S STE 307 TUKWILA, WA 98168 206−441−4860 x1238 Email: spencer@teamsters117.org ATTORNEY TO BE NOTICED

V.
Defendant
Washington Department of Corrections

represented by Kara Anne Larsen ATTORNEY GENERAL'S OFFICE (40145−OLY) P O BOX 40145 OLYMPIA, WA 98504−0145 360−586−0210 Fax: 360−664−4170 Email: karal@atg.wa.gov ATTORNEY TO BE NOTICED
Kari Hanson ATTORNEY GENERAL OF WASHINGTON (MS: 40109) 7141 CLEANWATER DRIVE SW MS 40109 OLYMPIA, WA 98504−0109 360−664−4189 Email: karih@atg.wa.gov TERMINATED: 12/28/2012
Ohad M Lowy ATTORNEY GENERAL'S OFFICE (40116−OLY) PO BOX 40116 OLYMPIA, WA 98504−0116 360−586−1445 Email: ohadl@atg.wa.gov ATTORNEY TO BE NOTICED

Case: 3:11-cv-5760 As of: 06/26/2015 05:46 AM PDT 2 of 6
Stewart A Johnston ATTORNEY GENERAL OF WASHINGTON (MS: 40109) 7141 CLEANWATER DRIVE SW MS 40109 OLYMPIA, WA 98504−0109 360−664−4167 Email: stewartj@atg.wa.gov ATTORNEY TO BE NOTICED

V. Intervenor Defendant Jane Doe Class

represented by Gavin Keith Thornton COLUMBIA LEGAL SERVICES (SEA) 101 YESLER WAY STE 300 SEATTLE, WA 98104−2552 206−464−0838 Email: gavin.thornton@columbialegal.org TERMINATED: 06/20/2012
Hank L Balson PUBLIC INTEREST LAW GROUP 705 SECOND AVE STE 1000 SEATTLE, WA 98104 206−838−1800 Fax: 206−838−3330 Email: hbalson@pilg.org ATTORNEY TO BE NOTICED
Lori Isley COLUMBIA LEGAL SERVICES (YAKIMA) 6 S 2ND ST STE 510 LARSON BLDG YAKIMA, WA 98901 509−575−5593 Email: lori.isley@columbialegal.org ATTORNEY TO BE NOTICED
Melissa R Lee COLUMBIA LEGAL SERVICES (SEA) 101 YESLER WAY STE 300 SEATTLE, WA 98104−2552 206−464−0838 Email: melissa.lee@columbialegal.org ATTORNEY TO BE NOTICED
Nancy S. Chupp PUBLIC INTEREST LAW GROUP 705 SECOND AVE STE 1000 SEATTLE, WA 98104 206−447−0103 Email: nchupp@pilg.org ATTORNEY TO BE NOTICED
Nicholas Broten Straley COLUMBIA LEGAL SERVICES (SEA) 101 YESLER WAY STE 300

Case: 3:11-cv-5760 As of: 06/26/2015 05:46 AM PDT 3 of 6
SEATTLE, WA 98104−2552 206−464−5933 Fax: 425−259−3421 Email: nick.straley@columbialegal.org ATTORNEY TO BE NOTICED

Date Filed 09/21/2011
09/22/2011 09/22/2011 09/23/2011 09/23/2011
09/27/2011 10/06/2011 10/17/2011 11/18/2011 11/18/2011
11/18/2011
11/21/2011
12/02/2011 12/06/2011 12/07/2011 12/07/2011
02/22/2012 02/27/2012

# Docket Text
1 COMPLAINT against defendant(s) Washington State DOC (Receipt # 0981−2564162), filed by Teamsters Local 117. (Attachments: # 1 Summons, # 2 Civil Cover Sheet)(Swedlow, Daniel) (Entered: 09/21/2011)
Judge Benjamin H. Settle added. (DJ) (Entered: 09/22/2011)
Summons issued via U.S. Postal Service as to defendant(s) Washington State Department of Corrections. (DJ) (Entered: 09/22/2011)
2 MINUTE ORDER REGARDING DISCOVERY AND DEPOSITIONS by Judge Benjamin H Settle. (TG) (Entered: 09/23/2011)
3 MINUTE ORDER REGARDING INITIAL DISCLOSURES, JOINT STATUS REPORT AND EARLY SETTLEMENT by Judge Benjamin H Settle: Joint Status Report due by 1/23/2012, FRCP 26f Conference Deadline is 1/3/2012, Initial Disclosure Deadline is 1/17/2012. (TG) (Entered: 09/23/2011)
4 PRAECIPE TO ISSUE SUMMONS by Plaintiff Teamsters Local Union No 117. (MET) Summons issued at Seattle intake counter. (Entered: 09/28/2011)
5 NOTICE of Appearance by attorney Kara Anne Larsen on behalf of Defendant Washington State Department of Corrections. (Larsen, Kara) (Entered: 10/06/2011)
6 ANSWER to 1 Complaint by Washington State Department of Corrections. (Attachments: # 1 Certificate of Service)(Larsen, Kara) (Entered: 10/17/2011)
7 NOTICE of Appearance by attorney Nicholas Broten Straley on behalf of Intervenor Defendant Jane Doe Class. (Straley, Nicholas) (Entered: 11/18/2011)
8 Agreed MOTION to Intervene by Intervenor Defendant Jane Doe Class, Plaintiff Teamsters Local Union No 117, Defendant Washington State Department of Corrections. (Attachments: # 1 Proposed Order) Noting Date 11/18/2011, (Straley, Nicholas) (Entered: 11/18/2011)
9 Agreed MOTION for Protective Order by Intervenor Defendant Jane Doe Class, Plaintiff Teamsters Local Union No 117, Defendant Washington State Department of Corrections. Noting Date 11/18/2011, (Straley, Nicholas) (Entered: 11/18/2011)
Pursuant to parties' request, FRCP 26f Conference Deadline is 2/8/2012, Initial Disclosure Deadline is 2/22/2012, Joint Status Report due by 2/23/2012. (TG) (Entered: 11/21/2011)
10 ORDER by Judge Benjamin H Settle granting 8 Motion to Intervene.(TG) (Entered: 12/02/2011)
11 ANSWER to 1 Complaint by Jane Doe Class.(Straley, Nicholas) (Entered: 12/06/2011)
12 ORDER by Judge Benjamin H Settle granting 9 Motion for Protective Order.(TG) (Entered: 12/07/2011)
NOTICE TO ATTORNEYS NOT SIGNED UP ELECTRONICALLY (Kari Hanson and Stewart A Johnston): The docket reflects that you are not signed up to receive electronic notification of documents filed in this case and you must do so in order to receive said notification. (TG) (Entered: 12/07/2011)
13 CERTIFICATE OF SERVICE by Intervenor Defendant Jane Doe Class re Intervenors' Initial Disclosures. (Straley, Nicholas) (Entered: 02/22/2012)
Set/Reset Deadlines: Joint Status Report due by 3/2/2012. (TG) (Entered: 02/27/2012)

Case: 3:11-cv-5760 As of: 06/26/2015 05:46 AM PDT 4 of 6

02/27/2012 03/02/2012 03/07/2012
03/08/2012
06/20/2012 07/11/2012 07/20/2012 07/20/2012
12/27/2012 12/28/2012 01/02/2013

14 CERTIFICATE OF SERVICE by Plaintiff Teamsters Local Union No 117. (Swedlow, Daniel) (Entered: 02/27/2012)
15 JOINT STATUS REPORT signed by all parties estimated Trial Days: 15.. (Attachments: # 1 Certificate of Service)(Swedlow, Daniel) (Entered: 03/02/2012)
16 MINUTE ORDER SETTING TRIAL AND PRETRIAL DATES − *FIFTEEN DAY* Jury Trial is set for 2/5/2013 at 9:00 AM in Courtroom E before Judge Benjamin H. Settle. Joinder of Parties due by 4/6/2012, Amended Pleadings due by 4/17/2012, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 7/30/2012, Rebuttal Expert Disclosure/Reports due by 8/29/2012, Motions due by 9/10/2012, Discovery completed by 10/9/2012, Dispositive motions due by 11/7/2012, Settlement conference to be held by 12/7/2012, 39.1 mediation to be completed by 12/27/2012, Motions in Limine due by 12/31/2012, 39.1 Settlement Report due by 1/7/2013, Pretrial Order due by 1/14/2013, trial briefs/proposed voir dire/jury instructions due by 1/15/2013, Pretrial Conference set for 1/22/2013 at 10:00 AM in Courtroom E before Judge Benjamin H. Settle. (MGC) (Entered: 03/07/2012)
17 AMENDED MINUTE ORDER SETTING TRIAL AND PRETRIAL DATES − *FIFTEEN DAY* Bench Trial is set for 2/5/2013 at 9:00 AM in Courtroom E before Judge Benjamin H. Settle. Joinder of Parties due by 4/9/2012, Amended Pleadings due by 4/18/2012, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 7/30/2012, Rebuttal Expert Disclosure/Reports due by 8/29/2012, Motions due by 9/10/2012, Discovery completed by 10/9/2012, Dispositive motions due by 11/7/2012, Settlement conference to be held by 12/7/2012, 39.1 mediation to be completed by 12/27/2012, Motions in Limine due by 12/31/2012, 39.1 Settlement Report due by 1/7/2013, Pretrial Order due by 1/14/2013, Trial briefs to be submitted by 1/15/2013, Pretrial Conference set for 1/22/2013 at 10:00 AM in Courtroom E before Judge Benjamin H. Settle. (MGC) (Entered: 03/08/2012)
18 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Gavin Keith Thornton for Intervenor Defendant Jane Doe Class. (Thornton, Gavin) (Entered: 06/20/2012)
19 PROPOSED ORDER (Unsigned) AGREED MOTION AND ORDER AMENDING PRETRIAL DATES. (Lee, Melissa) (Entered: 07/11/2012)
MINUTE ORDER: The parties have agreed to a three−month extension of the trial date and accompanying pretrial dates in this case. Accordingly, the trial date is RESET to 5/28/2013 at 09:00 AM before Judge Benjamin H Settle. The clerk will issue an amended scheduling order to reflect the new trial date and accompanying pretrial deadlines. (TG) (Entered: 07/20/2012)
20 MINUTE ORDER SETTING TRIAL AND PRETRIAL DATES − *FIFTEEN DAY* Bench Trial is set for 5/28/2013 at 9:00 AM in Courtroom E before Judge Benjamin H. Settle. Joinder of Parties due by 8/20/2012, Amended Pleadings due by 8/30/2012, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 11/19/2012, Rebuttal Expert Disclosure/Reports due by 12/19/2012, Motions due by 12/31/2012, Discovery completed by 1/28/2013, Dispositive motions due by 2/27/2013, Settlement conference to be held by 3/29/2013, 39.1 mediation to be completed by 4/18/2013, Motions in Limine due by 4/22/2013, 39.1 Settlement Report due by 4/29/2013, Pretrial Order due by 5/6/2013, Trial briefs to be submitted by 5/7/2013, Pretrial Conference set for 5/13/2013 at 2:30 PM in Courtroom E before Judge Benjamin H. Settle. (MGC) (Entered: 07/20/2012)
21 Agreed MOTION for Extension of Time to Complete Discovery by Intervenor Defendant Jane Doe Class, Plaintiff Teamsters Local Union No 117, Defendant Washington Department of Corrections. (Attachments: # 1 Proposed Order) Noting Date 12/27/2012, (Straley, Nicholas) (Entered: 12/27/2012)
22 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Kari Hanson for Defendant Washington Department of Corrections. (Hanson, Kari) (Entered: 12/28/2012)
23 STIPULATION AND ORDER by Judge Benjamin H Settle re 21 Agreed MOTION for Extension of Time to Complete Discovery filed by Jane Doe Class, Teamsters Local Union No 117, Washington Department of Corrections.

Case: 3:11-cv-5760 As of: 06/26/2015 05:46 AM PDT 5 of 6

02/22/2013 02/27/2013 02/27/2013 02/27/2013
02/27/2013 02/27/2013 03/05/2013 03/14/2013 03/18/2013 03/18/2013
03/22/2013 03/22/2013 03/22/2013

Discovery completed by 1/28/2013 and 3/22/2013, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 1/14/2013, Rebuttal Expert Disclosure/Reports due by 2/13/2013. (TG) (Entered: 01/02/2013)
24 MOTION for Leave to File Excess Pages by Intervenor Defendant Jane Doe Class. (Attachments: # 1 Appendix, # 2 Proposed Order) Noting Date 2/22/2013, (Lee, Melissa) (Entered: 02/22/2013)
25 MOTION for Summary Judgment by Intervenor Defendant Jane Doe Class. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Proposed Order) Noting Date 3/22/2013, (Lee, Melissa) (Entered: 02/27/2013)
26 MOTION for Summary Judgment by Defendant Washington Department of Corrections. Noting Date 3/22/2013, (Larsen, Kara) (Entered: 02/27/2013)
27 DECLARATION of Kara A. Larsen filed by Defendant Washington Department of Corrections re 26 MOTION for Summary Judgment (Attachments: # 1 Exhibit A−B, # 2 Exhibit C−D pages 1−15, # 3 Exhibit D pages 16−55, # 4 Exhibit D pages 56−97, # 5 Exhibit D pages 98−140, # 6 Exhibit D pages 141−182, # 7 Exhibit D pages 183−227, # 8 Exhibit D pages 228−273, # 9 Exhibit D pages 274−315, # 10 Exhibit D pages 316−364, # 11 Exhibit D pages 365−422, # 12 Exhibit D pages 423−471, # 13 Exhibit D pages 472−515, # 14 Exhibit D pages 516−561, # 15 Exhibit D pages 562−613, # 16 Exhibit D pages 614−668, # 17 Exhibit D pages 669−710, # 18 Exhibit D pages 711−753, # 19 Exhibit D pages 754−793, # 20 Exhibit E, # 21 Exhibit F pages 1−15, # 22 Exhibit F pages 16−25, # 23 Exhibit F pages 26−38, # 24 Exhibit F pages 39−50, # 25 Exhibit F pages 51−68, # 26 Exhibit F pages 69−80, # 27 Exhibit F pages 81−86, # 28 Exhibit G−I)(Larsen, Kara) (Entered: 02/27/2013)
28 DECLARATION of Emily J. Salisbury Ph.D. filed by Defendant Washington Department of Corrections re 26 MOTION for Summary Judgment (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Larsen, Kara) (Entered: 02/27/2013)
29 DECLARATION of Nicholas B. Straley filed by Intervenor Defendant Jane Doe Class re 25 MOTION for Summary Judgment (Lee, Melissa) (Entered: 02/27/2013)
30 ORDER granting 24 Motion for Leave to File Excess Pages by Judge Benjamin H Settle.(TG) (Entered: 03/05/2013)
31 NOTICE of Appearance by attorney Ohad M Lowy on behalf of Defendant Washington Department of Corrections. (Lowy, Ohad) (Entered: 03/14/2013)
32 RESPONSE, by Plaintiff Teamsters Local Union No 117, to 26 MOTION for Summary Judgment , 25 MOTION for Summary Judgment . Oral Argument Requested. (Attachments: # 1 Certificate of Service)(Swedlow, Daniel) (Entered: 03/18/2013)
33 DECLARATION of Spencer Nathan Thal in Support of Plaintiff's Opposition to the Motions for Summary Judgment filed by Plaintiff Teamsters Local Union No 117 re 26 MOTION for Summary Judgment , 25 MOTION for Summary Judgment (Attachments: # 1 Exhibit 1 − Payne Dep., # 2 Exhibit 2 − Vail Dep., # 3 Exhibit 3 − Cole Dep., # 4 Exhibit 4 − Gladwin Report, # 5 Exhibit 5 − Dr. Ewing Report, # 6 Exhibit 6 − McNabb Report, # 7 Exhibit 7 − Kelchner Report, # 8 Proposed Order)(Swedlow, Daniel) (Entered: 03/18/2013)
34 NOTICE of Appearance by attorney Spencer Nathan Thal on behalf of Plaintiff Teamsters Local Union No 117. (Thal, Spencer) (Entered: 03/22/2013)
35 REPLY, filed by Defendant Washington Department of Corrections, TO RESPONSE to 26 MOTION for Summary Judgment (Larsen, Kara) (Entered: 03/22/2013)
36 REPLY, filed by Intervenor Defendant Jane Doe Class, TO RESPONSE to 25 MOTION for Summary Judgment (Attachments: # 1 Certificate of Service, # 2 Exhibit)(Lee, Melissa) (Entered: 03/22/2013)

Case: 3:11-cv-5760 As of: 06/26/2015 05:46 AM PDT 6 of 6

03/25/2013 03/25/2013 04/08/2013 04/08/2013 04/19/2013
04/19/2013 04/19/2013
06/12/2015 06/23/2015

37 PRAECIPE re 36 Reply to Response to Motion by Intervenor Defendant Jane Doe Class. (Attachments: # 1 Errata, # 2 Errata)(Lee, Melissa) (Entered: 03/25/2013)
38 CERTIFICATE OF SERVICE by Intervenor Defendant Jane Doe Class re 37 Praecipe−Other . (Lee, Melissa) (Entered: 03/25/2013)
39 ORDER by Judge Benjamin H Settle finding as moot 25 Motion for Summary Judgment; granting 26 Motion for Summary Judgment.(TG) (Entered: 04/08/2013)
40 JUDGMENT BY COURT. (MGC) (Entered: 04/08/2013)
41 NOTICE OF APPEAL (13−35331) to Ninth Circuit re 40 Judgment by Court, 39 Order on Motion for Summary Judgment, by Plaintiff Teamsters Local Union No 117. Filing Fee $455, Receipt number 0981−3181173. (Thal, Spencer) Modified on 4/19/2013; added CCA case number (LMK). (Entered: 04/19/2013)
42 REPRESENTATION STATEMENT, by Plaintiff Teamsters Local Union No 117, (re: 41 Notice of Appeal.) (Thal, Spencer) (Entered: 04/19/2013)
43 TIME SCHEDULE ORDER (13−35331) as to 41 Notice of Appeal, filed by Teamsters Local Union No 117 : The schedule is set as follows: Mediation Questionnaire due on 04/26/2013. Appellant Teamsters Local Union No 117 opening brief due 07/29/2013. Appellees Jane Doe Class and Washington Department of Corrections answering brief due 08/27/2013. Appellant's optional reply brief is due 14 days after service of the answering brief. (LMK) (Entered: 04/19/2013)
44 OPINION of USCA (NOT THE MANDATE 13−35331) as to 41 Notice of Appeal, filed by Teamsters Local Union No 117. AFFIRMED. (RE) (Entered: 06/12/2015)
45 ORDER of USCA (13−35331) as to 41 Notice of Appeal, filed by Teamsters Local Union No 117. Teamsters Local Union No. 117's motion for an extension of time to file its petition for rehearing en banc is GRANTED. The petition shall be filed on or before July 6, 2015. (RE) (Entered: 06/24/2015)

 
 Case: 13-35331, 06/12/2015, ID: 9571947, DktEntry: 50-1, Page 1 of 31

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

TEAMSTERS LOCAL UNION NO. 117, a Washington corporation,
Plaintiff-Appellant,
v.

No. 13-35331
D.C. No. 3:11-cv-05760-
BHS

WASHINGTON DEPARTMENT OF CORRECTIONS,
Defendant-Appellee,

OPINION

JANE DOE CLASS, Intervenor-Defendant–Appellee.

Appeal from the United States District Court for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted December 9, 2014—Seattle, Washington
Filed June 12, 2015
Before: Michael Daly Hawkins, M. Margaret McKeown, and Richard C. Tallman, Circuit Judges.
Opinion by Judge McKeown

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2 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR. SUMMARY*
Labor Law Affirming the district court’s summary judgment, the panel held that the Washington Department of Corrections did not discriminate against male correctional officers on the basis of sex in violation of Title VII by designating a number of female-only correctional positions in women’s prisons. The panel denied the Department’s motion to dismiss the appeal, holding that the record, as supplemented on appeal, established standing on the part of the correctional officers’ union. On the merits, the panel concluded that the Department’s individualized, well-researched decision to designate discrete sex-based correctional officer categories was justified because sex was a bona-fide occupational qualification reasonably necessary to the normal operation of the women’s prisons. The panel stated that the Department was well-justified in concluding that rampant abuse should not be an accepted part of prison life and taking steps to protect the welfare of female inmates under its care.
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR. 3
COUNSEL
Spencer Nathan Thal (argued), General Counsel, and Daniel A. Swedlow, Senior Staff Attorney, Teamsters Local Union No. 117, Tukwila, Washington, for Plaintiff-Appellant.
Peter B. Gonick (argued), Robert W. Ferguson, Attorney General, Kara A. Larsen, Senior Counsel, and Ohad M. Lowy, Assistant Attorney General, Washington State Office of the Attorney General, Olympia, Washington, for Appellee.
Nicholas B. Straley (argued) and Melissa R. Lee, Columbia Legal Services, Seattle, Washington, for IntervenorDefendants–Appellees.
OPINION
McKEOWN, Circuit Judge:
For years, Washington faced problems common to a number of states in their women’s prisons: sexual abuse and misconduct by prison guards, breaches of inmate privacy, and security gaps. A primary driver, according to prison authorities, was the lack of female correctional officers to oversee female offenders and administer sensitive tasks, such as observing inmates showering and dressing and performing the pat (or “pat-down”) and strip searches that are stitched into the fabric of day-to-day prison life. After long wrestling with this gender gap, the state undertook a comprehensive assessment and ultimately designated a limited number of female-only correctional positions—specifically, 110 positions to patrol housing units, prison grounds, and work sites. The prison guards’ union, Teamsters Local No. 117

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4 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR.
(“Teamsters” or the “Union”), challenged this practice, though it acknowledges the legitimacy of 50 of the femaleonly designations. This case juxtaposes the prison’s penological interests against male correctional officers who claim the staffing policy discriminates against them on the basis of sex in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e.
We conclude that the Washington Department of Corrections’ (the “Department” or the “state”) individualized, well-researched decision to designate discrete sex-based correctional officer categories was justified because sex is a bona-fide occupational qualification (“BFOQ”) for those positions. The Union’s thin evidentiary submissions—coupled with expert claims that were largely unsubstantiated or missed the point—failed to raise a material factual issue. Indeed, the startling statement by one of the Union’s experts underscores the legitimacy of the state’s efforts to combat sexual abuse: “Sexual abuse is present in all areas of our society. . .[F]emale inmates must be taught as part of the rehabilitation process to deal with all abusive staff: males and females . . .” The Department was well-justified in concluding that rampant abuse should not be an accepted part of prison life and taking steps to protect the welfare of inmates under its care. We affirm the district court’s grant of summary judgment in favor of the Department.
BACKGROUND
The Department runs two women’s prisons. The Washington Corrections Center for Women in Gig Harbor has a capacity of 738 inmates, although it is often overcrowded. That prison runs the gamut from minimum security facilities to housing for violent offenders and those

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with mental health issues. It also houses Washington’s death row for female prisoners. The second facility is Mission Creek Corrections Center for Women in Belfair, a smaller minimum-security prison that houses around 300 inmates.
For decades, men dominated the ranks of prison guards, though neither party has provided precise figures. Facing a shortage of female guards in the late 1980s, state prison administrators began allowing male guards to perform random, clothed body searches—commonly known as pat searches—of the female inmates at Washington Corrections Center. Female inmates challenged these cross-gender searches as unconstitutional. The district court granted an injunction and halted the practice. Sitting en banc, we affirmed, concluding that cross-gender body searches inflict unnecessary and wanton pain on female inmates, many of whom have suffered a history of sexual abuse before incarceration, and, therefore, violate the Eighth Amendment.1 Jordan v. Gardner, 986 F.2d 1521, 1531 (9th Cir. 1993) (en banc). Under both Jordan and a later-enacted Washington law, female correctional officers must perform all nonemergency pat searches of female inmates. Wash. Rev. Code § 9.94A.631(2) (2012).
In the years following Jordan, the Department struggled with the challenges posed by having an overwhelmingly male workforce. In 1998, it asked the Washington Human Rights Commission (the “Commission”) for an opinion on proposed correctional assignments reserved exclusively for female
1 Experts in the case noted that 85% of female offenders reported a preincarceration history of sexual abuse. Jordan, 986 F.2d at 1525–26.

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6 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR.
officers. The Commission did not favor the Department’s approach at that time.2
In 2003, Congress passed the Prison Rape Elimination Act, which included findings that, based upon experts’ conservative estimates, 13% of prisoners had been sexually assaulted while in prison. See 42 U.S.C. § 15601. The legislation also noted that many instances of abuse go unreported and prison personnel were inadequately trained to deal with these issues. See id. §§ 15601–09. Under the Act, the Department received a $1 million grant to hire two fulltime employees to investigate sexual misconduct allegations in prisons.
In the years that followed, the Department fielded widespread allegations of sexual abuse in its women’s prisons. State officials, for example, substantiated 46 instances of misconduct in a single two-and-a-half-year stretch. In the aftermath, in 2007, female inmates brought a class action in state court alleging misconduct at the Washington Corrections Center. The complaint detailed incidents where guards assaulted and fondled female inmates and forced them to perform oral sex and masturbate in the presence of male officers. Complaint, Jane Doe v. Clarke,
2 The Human Rights Commission, established in 1949, is the administrative agency responsible for administering and enforcing the state’s antidiscrimination laws. See Wash. Rev. Code § 49.60.120 (2007). The Commission’s view is treated as an “advisory interpretative statement” under Washington Revised Code Section 34.05.010(8). Before adopting female-only guard positions, the Department requested opinion letters from the Commission. Teamsters Local Union No. 117 v. State of Wash. Human Rights Comm’n, 235 P.3d 858, 860 (Wash. Ct. App. 2010).

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TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR. 7
No. 07-2-01513-0, Dkt. No. 4 (Thurston Co. Super. Ct. July 31, 2007).
Within a week of the filing of that lawsuit, the Department hired a consultant to investigate sexual activity and misconduct. After a four-month internal investigation, the consultant detailed the facts in a 240-plus-page report. The investigation included interviews with 72 “Jane Doe” inmates, who alleged that they faced sexual advances and harassment from prison guards. Among the lurid details, male guards twice impregnated inmates and smuggled contraband in exchange for sexual favors.
The Department also hired two additional consultants to review prison practices. Marianne McNabb, of the Social Research Institute based in Olympia, Washington, wrote:
Cross-sex supervision is currently one of the most significant issues facing the administration of women’s prisons. Today in many states, over 50 percent of the custody force in prisons for women are men. The fact that so many women in prison have experienced sexual abuse by men makes them different from male prisoners who do not share that history and therefore do not experience the same level of anxiety or violation as do women, when under the custody or supervision of an officer of the opposite sex.
McNabb noted that several jurisdictions, including Idaho and Michigan, “have established sex-specific posts in female institutions” in response to these dynamics. Her report

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8 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR.
concluded, “While this may seem to be a solution for many of the concerns identified, this practice is generally not fully understood or accepted by staff and has faced some legal challenges.”
Donald Kelchner, superintendent of the Pennsylvania Department of Corrections, urged the Department to adopt a host of reforms, including guard assignments reserved specifically for women. In particular, Kelchner recommended that the state ensure any double-staffed housing units have at least one female guard. Kelchner concluded, “It is more desirable in an institution housing females to have a higher number of female staff, to work with and supervise the inmates.”
Following the expert recommendations, the Department in January 2008 implemented an array of reforms to “reduce prison sexual assaults and related behavior.” Those efforts included aggressive recruitment of female prison guards; pre-hiring psychological testing; training programs to enhance “gender awareness”; and the installation of privacy curtains, security cameras, and restricted access entry cards.
Then, in May 2008, prison administrators again requested guidance from the Commission on the Department’s proposed 110 female-only guard post assignments at the two prisons. The Department submitted a tailored request for each post, explaining the job responsibilities and why the positions needed a female officer. The state told the Commission that “[i]ncreasing the number of female staff will reduce the risk of sexual misconduct, reduce allegations of sexual misconduct, and protect male staff exposed to vulnerable situations” and unfounded complaints of abuse. The state also emphasized the privacy requirements of female

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TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR. 9
inmates and the operational need to have female officers on hand to perform necessary searches and other tasks. The requested staffing changes, according to the state, would “ensure the security of the prisons, safety of incarcerated offenders, and protection of the privacy and dignity of female offenders.”
After touring the prisons, interviewing administrators, and collecting detailed documentation, the Commission in February 2009 approved the Department’s request for all 110 positions. The Commission offered Teamsters the chance to provide input but none was forthcoming. The Commission determined that, with the then-existing staff makeup at the prisons, the state was “unable to ensure a proper balance between security considerations and the privacy rights of offenders” and that there were no reasonable alternatives to sex-based staffing.
The class action settled soon after. As part of the settlement agreement, the Department agreed to enforce a “zero tolerance” policy regarding sexual misconduct, not to rehire five male correctional officers accused of abuse, and to submit regular reports on staff misconduct in women’s prisons. The settlement also included an undisclosed payout to abused prisoners. Stipulation and Proposed Order, Jane Doe v. Clarke, No. 07-2-01513-0, Dkt. No. 170 (Thurston Co. Super. Ct. Aug. 6, 2010).
The Department’s reprieve from the courtroom did not last long. In September 2011, Teamsters, which represents some 6,000 state correctional workers, filed this federal lawsuit, alleging that the sex-based staffing policy

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10 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR.
implemented in 2009 violates the civil rights of male prison guards.3
At the conclusion of discovery, the district court granted summary judgment for the state. Teamsters Local Union No. 117 v. Wash. Dep’t of Corr., No. C11-5760 BHS, 2013 WL 1412335 (W.D. Wash. Apr. 8, 2013). The district court first found that the Union had failed to demonstrate the type of “cognizable injury” required to trigger Title VII liability. The court noted that the record developed by Teamsters included only “hypothetical evidence” of the damages its members would face, thus entitling the state to summary judgment. Id. at *4. Alternatively, the district court also granted summary judgment for the state on the question of sex discrimination. As an initial matter, the district court ruled that judicial deference to state prison officials was warranted. Id. The court concluded that, although there may have been factual questions on whether female guards were needed inside the housing units to prevent sexual assaults, the staffing policy was justified as a BFOQ to protect the privacy of inmates for each job category. Id. at 5–9.
ANALYSIS
I. STANDING
This case is a cautionary tale about the threshold importance of standing. The state argues, for the first time on
3 Teamsters also represents female correctional officers. The Union asserts in its brief that the female-only correction positions result in “an increase in mandatory overtime” for female guards. The Union presented no evidence to support that contention. Our analysis therefore focuses on the male guards.

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TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR. 11
appeal, and after receiving Teamsters’ opening brief, that the Union lacks standing because it produced no evidence that any of its members suffered concrete injury. The issue is not, as Teamsters urges, whether the question was addressed by the district court; rather, as a jurisdictional matter, “a challenge to constitutional standing is one which we are required to consider” apart from whether it was argued or addressed below. Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1085 (9th Cir. 2003) (internal quotation mark and citation omitted).
The standing inquiry is governed by the familiar elements of injury-in-fact, traceability, and redressability. “To establish Article III standing, an injury must be concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (internal quotation marks and citation omitted). For associational standing, Teamsters must show in addition that “its members would otherwise have standing to sue in their own right.” Associated Gen. Contractors of Am., San Diego Chapter v. Cal. Dep’t of Transp., 713 F.3d 1187, 1194 (9th Cir. 2013). In other words, the Union “must show that a member suffers an injury-in-fact that is traceable to the defendant and likely to be redressed by a favorable decision.” Id.
The complaint posited varied theories of injury: male guards were forced to transfer jobs and prisons; suffered lost earnings, including overtime pay; were laid off; and experienced “loss of status, diminished sense of self-worth, anxiety, emotional distress, embarrassment, humiliation, mental anguish, and other related damages.” Surprisingly, proof of these general allegations did not materialize as

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12 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR.
evidence. The Union’s submissions on summary judgment are thin, at best, in terms of identifying one or more specific members who suffered injury. Ironically, it is the testimony the Union elicited from the state that provides the strongest support for the Teamsters’ constitutional standing. Throughout discovery, the state did not dispute the general allegations that its staffing policy resulted in the transfer of male guards and lost overtime opportunities. While no evidence linked a specific officer with a discrete wage loss, Superintendent Doug Cole indicated that six male officers had been displaced from their regular shifts—mentioning two by name—and agreed with the Union’s lawyer that, with respect to male correctional officers, the staffing changes would result in “some reduction in their overtime opportunity . . .” Every male correctional officer who was displaced from his regular shift, however, was offered a position on a different shift.
As the state points out, when a challenge to standing is raised at summary judgment, a plaintiff organization must “submit competent evidence, not mere allegations, to demonstrate that at least one of its members had standing.” Associated General, 713 F.3d at 1194. This is a settled proposition, though curiously the state never moved for summary judgment on standing nor contested the Union’s standing allegations. Nonetheless, a party is not excused from establishing standing simply because the opposing party did not tumble to the issue until the appeals stage. See Gest v. Bradbury, 443 F.3d 1177, 1181 (9th Cir. 2006) (“The[] elements of standing must be supported in the same way as any other matter for which a plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.”).

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In response to the state’s motion to dismiss on appeal, Teamsters moved to supplement the record with affidavits from five Union members and an administrator. Why this evidence surfaced only on appeal is a mystery. Ordinarily, we do not allow parties to supplement the record on appeal absent “extraordinary circumstances.” United States v. Boulware, 558 F.3d 971, 975–76 (9th Cir. 2009). Here, however, we accept the affidavits for the limited purpose of confirming the job-related harms that the Department acknowledged in general terms during discovery. Doing so is “in the interests of justice and efficiency,” Ouachita Watch League v. Jacobs, 463 F.3d 1163, 1170 (11th Cir. 2006) (internal citation omitted), since the hiring policy has been on the books since 2009 and has been the subject of multiple proceedings; a remand or dismissal on procedural grounds would merely prolong resolution of the underlying issues. In the affidavits, male correctional officers assert that they have suffered precisely the types of harm that the state acknowledged in discovery—most importantly, lost overtime.
Although the Union hardly made a slam-dunk showing of prospective harm, the record as supplemented on appeal reflects the bare minimum necessary to satisfy the threshold requirement of standing. The Department’s motion to dismiss the appeal on standing grounds is denied.
II. TITLE VII AND THE BONA FIDE OCCUPATIONAL QUALIFICATION
Title VII of the Civil Rights Act of 1964 prohibits employment practices that discriminate on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2. Nevertheless, a facially discriminatory employment practice, such as the sex-based hiring practice we have here, may pass

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legal muster if sex is a bona fide occupational qualification or BFOQ. That narrow exception—found in § 2000e-2(e)(1)— provides:
[I]t shall not be an unlawful employment practice for an employer to hire and employ employees . . . on the basis of . . . sex . . . where . . . sex . . . is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.
The Supreme Court has emphasized that “[t]he BFOQ defense is written narrowly, and this Court has read it narrowly.” UAW v. Johnson Controls, Inc., 499 U.S. 187, 201 (1991). The BFOQ defense applies to “special situations” where employment discrimination is based upon “objective, verifiable requirements” that “concern job-related skills and aptitudes.” Id. An “occupational qualification” means a “qualification[] that affect[s] an employee’s ability to do the job.” Id.
Under our precedent, the BFOQ defense “may be invoked only when the essence of the business operation would be undermined by hiring individuals of both sexes.” Breiner v. Nev. Dep’t of Corr., 610 F.3d 1202, 1210 (9th Cir. 2010) (emphasis in original) (internal quotation marks and citation omitted). To justify discrimination under the BFOQ exception, an employer must show, by a preponderance of the evidence, that: (1) the “job qualification justifying the discrimination is reasonably necessary to the essence of its business”; and (2) that “sex is a legitimate proxy for determining” whether a correctional officer has the necessary job qualifications. Ambat v. City & Cty. of San Francisco,

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757 F.3d 1017, 1025 (9th Cir. 2014) (quoting Breiner, 610 F.3d at 1210).
In light of these demanding legal standards, BFOQs are few and far between. In many industries, it is difficult to imagine any jobs that would qualify as BFOQs. However, the “unique context of prison employment,” id. at 1028, is one area where courts have found sex-based classifications justified. The Supreme Court directly addressed the prison environment in just one case, Dothard v. Rawlinson, 433 U.S. 321 (1977). The Court held that, in the context of a maximum-security facility “where violence is the order of the day” and sex offenders were interspersed with other prisoners, a female guard’s sex may “undermine her capacity to provide the security that is the essence of a correctional counselor’s responsibility.” Id. at 335–36. Referencing Dothard, the Court in Johnson Controls explained that “[s]ex discrimination was tolerated because sex was related to the guard’s ability to do the job—maintaining prison security.” 499 U.S. at 202.
When justified under the circumstances, we and other circuits similarly have upheld sex-based correctional officer assignments in women’s prisons. See Robino v. Iranon, 145 F.3d 1109, 1110 (9th Cir. 1998) (per curiam) (BFOQ designation of six correctional officer positions at Hawaii women’s prison); Everson v. Mich. Dep’t of Corr., 391 F.3d 737, 749–50 (6th Cir. 2004) (BFOQ designation of 250 correctional officer positions at Michigan women’s prisons); Tharp v. Iowa Dep’t of Corr., 68 F.3d 223, 224 (8th Cir. 1995) (BFOQ designation of all correctional officer positions in women’s residential unit within a mixed-gender minimum security prison); cf. Torres v. Wisc. Dep’t of Health and Soc. Servs., 859 F.2d 1523, 1532 (7th Cir. 1988) (en banc) (noting

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that prison officials are not required to provide “objective evidence, either from empirical studies or otherwise,” and remanding the denial of a BFOQ designation for evaluation “on the basis of the totality of the circumstances contained in the entire record.”).
Although limited gender discrimination may be permissible in the prison employment context, prison administrators do not get a free pass. The Department must have an objective “basis in fact” for “its belief that gender discrimination is ‘reasonably necessary’—not merely reasonable or convenient—to the normal operation of its business.” Everson, 391 F.3d at 748 (citing W. Air Lines, Inc. v. Criswell, 472 U.S. 400, 414 (1985)). This means prison administrators “seeking to justify a BFOQ must show a high correlation between sex and ability to perform job functions.” Breiner, 610 F.3d at 1213 (internal quotation marks and citation omitted). Speculation about gender roles is insufficient—the evidence must demonstrate that prison administrators had a “concrete, logical basis for concluding that gender restrictions are reasonably necessary” and that alternatives to sex discrimination have been “reasonably considered and refuted.” Ambat, 757 F.3d at 1028 (internal quotation marks and citation omitted).
An additional significant factor is at play: deference to prison officials. “Judgments by prison administrators that are the product of a reasoned decision-making process, based on available information and expertise, are entitled to some deference.” Breiner, 610 F.3d at 1212 n.6 (internal quotation marks omitted); see also Robino, 145 F.3d at 1110 (holding that, where Hawaii prison administrators appointed a task force to review prison policies, their “professional judgment is entitled to deference”).

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Although we have not offered up a cookbook for a “reasoned decision-making process,” cases that have invoked the deference principle point to undertakings that address systemic issues, consider outside views and data, and weigh reasonable alternatives. See Robino, 145 F.3d at 1111 (deferring to Hawaii prison administrators who directed a “specially appointed task force” to study prison problems); Everson, 391 F.3d at 741–45 (deferring to Michigan prison administrators where they conducted three studies, one pursuant to a settlement with the Department of Justice). To be sure, although studies and empirical data are indicia of a deliberative approach, we have emphasized that “the decision-making process supporting a discriminatory policy” need not “take any particular form.” Ambat, 757 F.3d at 1026. Deference is a threshold legal determination.
The Department’s exhaustive process fits well within the rubric of “reasoned decision making” and is entitled to deference. After the Jane Doe prisoner class action was filed in 2007, the Department did not rush headlong into sex-based staffing. Instead, it hired experts, consulted with other states, reviewed relevant caselaw, documented scores of sexual misconduct allegations and investigated many more, and sought advice from the Human Rights Commission. Drawing on its decades of experience, the state did not view sex-based staffing as a panacea, instead proposing a package of reforms that included measures such as applicant psychological testing, sex-awareness training, and security cameras.
Teamsters argues that the Department implemented sexbased staffing “during a time of Departmental crisis” and in a “panic” that was little more than a “desperate attempt” to settle the state court class action. The Union’s characterization begs the question: If sordid details of sexual

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abuse and constitutional violations do not inspire a “crisis” and feelings of “panic,” then what does? The state shouldn’t be demonized for kicking into gear to find a remedy for its long-running challenges. In any event, our inquiry does not turn on the subjective state of mind of the Department’s leadership. The Department undertook a rigorous review of its staffing policies to address the issues raised in the report and the class action.
The Department’s thorough, thoughtful approach stands in stark contrast to the sheriff in Ambat, who rejected out of hand alternatives to discrimination—such as pre-hiring screening, surveillance cameras, and training—and declined to order an internal investigation or hire outside consultants. See 757 F.3d at 1022, 1026. The sheriff did not consult deputies directly responsible for prisoner supervision or other jurisdictions with similar policies, and no internal review documented the extent of misconduct. Id.
Ambat instructs that “[d]etermining whether a corrections official is entitled to deference is a fact-intensive and case-specific inquiry” that is “generally within the discretion of the district court.” Id. at 1026. The district court found that the Department’s process merited deference, and we see no reason to conclude otherwise. Accordingly, we give “some deference,” Robino, 145 F.3d at 1110, to Washington’s prison administrators, although we remain mindful of the antidiscrimination mandate of Title VII.
III. THE PRISON POLICY AND BFOQ REQUIREMENTS
In 2009 the Department determined that designating 110 female-only guard positions at the two prisons would substantially improve prison security, protect the privacy of

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female inmates, and prevent sexual assaults. Teamsters challenges approximately sixty of those positions, which fall into four general categories: medium- and high-security housing units (18 positions); programs and activities supervisors (3 positions); work crew supervisors (6 positions); and relief posts to replace female guards who are on breaks or absent from work (32 positions).4
The Union paints the Department staffing policy as “broad and overreaching”—a “blunderbuss approach to the issue.” The record demonstrates the opposite. Instead of a blanket ban on male prison personnel, the Department crafted the staffing needs to fit each specific facility and guard post. It targeted only guard assignments that require direct, day-today interaction with inmates and entail sensitive job responsibilities such as conducting pat and strip searches and observing inmates while they shower and use the restroom.
As the Union’s expert acknowledged, “[n]o remedy is perfect nor perfectly effective.” We couldn’t agree more. This reality underscores the rationale for deference to prison administrators and the hazard of nitpicking the state’s thoughtful response to deep-rooted problems in its women’s prisons.
4 The Union acknowledges that the remaining 50 positions—such as guard assignments in minimum-security housing units and those on the graveyard shift, where repeated instances of sexual misconduct occurred—are properly designated as female-only.

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20 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR.
A. The Department’s Policy Rationales Are Reasonably Necessary to the Essence of Prison Administration
At issue on appeal is whether the state established as a matter of law that sex-based restrictions are “a bona fide occupational qualification reasonably necessary” to normal prison operations. Under the well-worn standard of Federal Rule of Civil Procedure 56, we affirm the district court’s grant of summary judgment because there is “no genuine dispute as to any material fact and the [state] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Teamsters failed to produce “specific facts showing there is a genuine issue for trial” to survive summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(e)).
Curiously, Teamsters did not offer specific testimony from its members, former guards, or others with actual knowledge of on-the-block operations at the prisons. Although Teamsters offered up the reports of two experts, in the end their testimony does not create a material factual issue. For starters, the reports generally fail to address the specific posts at issue. Instead, they rehash alternatives to sex-based staffing that were exhausted and rejected by prison administrators or serve up proposals without any evidence of efficacy or practicality. Finally, the Union’s experts opine on the interpretation of social science research that is not central to the state policy in any event.
Although the sexual assaults that spawned the Jane Doe class action permeate this lawsuit, the state did not justify its BFOQ positions solely as a means to prevent sexual assaults. Instead, it identified several intertwined reasons for

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designating the female-only positions. In the initial request to the Human Rights Commission, the Department cited the need to “enhance the security of the prisons, safety of staff and offenders, and to protect the privacy and dignity of female offenders.” The Commission, in turn, concluded that absent the BFOQ designations, the prison is “unable to ensure a proper balance between security considerations and privacy rights of offenders” and endorsed the female job assignments “for the explicit purpose of ensuring privacy rights of female offenders.”
Not surprisingly, under our precedent all of these interrelated objectives go to the heart of prison operations. In Ambat, we held that, as a matter of law, “protecting female inmates from sexual misconduct by male deputies, maintaining jail security, [and] protecting inmate privacy” were all reasonably necessary to the essence of prison administration. 757 F.3d at 1027–28. The same holds true here.
Security, of course, is the paramount concern of prison administrators. As the Supreme Court has noted: “The essence of a correctional counselor’s job is to maintain prison security.” Dothard, 433 U.S. at 335; see also Everson, 391 F.3d at 753 (“Unquestionably, the security of the prisons relates to the essence of [prison business].”). That maxim is no less true today. Security concerns are necessarily intertwined with prison programs and objectives.
Inmate privacy encompasses the inmate’s “interest in not being viewed unclothed by members of the opposite sex”—an interest that “survives incarceration” despite prisoners’ diminished privacy expectations. See Robino, 145 F.3d at 1111. In the same vein, inmates have a privacy interest in

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having non-emergency strip and pat searches—a pervasive fact of prison life—performed by guards of the same sex. See Jordan, 986 F.2d at 1524; Tharp, 68 F.3d at 226.
Preventing sexual assaults is also a legitimate prison objective. First and foremost, prison administrators have a high interest in shielding inmates from abusive and inherently coercive encounters. Indeed, even allegations of sexual misconduct can destabilize prison life: they can breed mistrust and damage morale among officers and prisoners; drain prison resources; and undercut the effectiveness of male officers with the looming threat of a career-ending accusation. See Robino, 145 F.3d at 1111 (discussing damage to prison morale caused by allegations of male staff sexual misconduct); Everson, 391 F.3d at 753 (“[A]llegations of sexual abuse, whether true or not, create a ‘poisoned atmosphere’ that breeds misconduct on the part of inmates and guards.”).
Amazingly, one of the Union’s experts offered the following view:
Female inmates cannot be shielded from the world in which we live. If they are to reintegrate into society, they have to be taught how to deal with abusive staff, male or female. They have to be taught what constitutes a healthy interaction and what does not. They cannot learn those skills if they are sheltered from contact with males in a position of authority. ¶ Sexual abuse is present in all areas of our society: in schools, (at all levels), business, government, military and families. Just as females have to be

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taught how to deal with those abuses in the larger society, female inmates must be taught as part of the rehabilitation process how to deal with all abusive staff: males and females, custody staff and civilian staff.
To state something so obvious we never imagined it would need to be written: we reject any suggestion that female prisoners would benefit from being subjected to abusive prison guards as “part of the rehabilitation process” so that they may better “reintegrate into society.” See, e.g., Prison Rape Elimination Act, 42 U.S.C. § 15601(11) (“Victims of prison rape suffer severe physical and psychological effects that hinder their ability to integrate into the community and maintain stable employment upon their release from prison.”).
We have little difficulty holding that the state’s reasons for adopting the BFOQ designations—improving security, protecting inmate privacy, and preventing sexual assaults—are each reasonably necessary to the essence of operating Washington’s women’s prisons. That conclusion does not end the analysis, however. The state also must demonstrate that sex is a “legitimate proxy” to achieve one or more of these goals, meaning that there is a “high correlation between sex and ability to perform job functions.” Breiner, 610 F.3d at 1213 (quoting Johnson Controls, 499 U.S. at 202). In addition, the state must show that alternatives to the sex-based classification were “reasonably considered and refuted.” Ambat, 757 F.3d at 1028.
Before addressing these remaining requirements in the context of specific positions, we consider Teamsters’ overarching arguments that the staffing policy is based on

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stereotypes and that the state failed to consider nondiscriminatory alternatives.
Teamsters argues at length that the state policy is based on an impermissible stereotype that male guards are more likely to commit sexual misconduct than their female counterparts. This stereotyping argument misses the mark. To begin, the Union acknowledged that the policy was adopted in the face of documented allegations of abuse.5 The Department also did not rest on assumptions; it provided objective legal and operational justifications for why only women can perform particular job functions, like observing inmates unclothed and conducting non-emergency searches.
We also reject Teamsters’ argument that the Department could simply have hired new executives or reconfigured prison layouts. As our discussion of the day-to-day realities of the positions at issue demonstrates, neither of those alternatives actually addresses the specific operational challenges of maintaining prison security, preserving inmates’ privacy, and stopping abuse.
5 Because the 2009 policy stemmed from a documented history of sexual misconduct in Washington prisons, this case is distinguishable from Breiner. There, Nevada prison officials designated as female-only three upper-management positions based on the assumption that men were “incapable of adequately supervising front line staff in female prisons.” 610 F.3d at 1213. The record disclosed no evidence that anyone in upper-management had ever abused an inmate. Id. at 1214. Here, by contrast, the sex-based job assignments are all “front line” positions that require direct, day-to-day interaction with female inmates. Washington has substantiated dozens of instances of sexual abuse implicating every job category at issue in this lawsuit.

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B. Sex is an Objective, Verifiable Job Qualification for the Designated Positions
We conclude that sex is an objective, verifiable job qualification for the posts designated as female-only by the Department and that the Department appropriately considered reasonable alternatives.
1. Housing Units
The staffing restriction with the “largest impact,” according to the Union, involves 18 positions at the mediumand high-security housing units at Washington Corrections Center.6 The housing units have two guards on duty on each shift. Unlike other states, the Department did not ban male guards entirely; rather, the staffing policy requires at least one female guard per shift, an approach recommended by one of the state’s consultants.
In the housing units, correctional officers “must conduct pat and strip searches of female offenders entering and leaving the facility” as well as frequent random and suspicion-based searches within the housing units. In the segregation and mental illness units, inmates are strip searched every time they enter or leave their cells. Except in emergency circumstances, male guards cannot legally perform any of these searches. Jordan, 986 F.2d at 1523; see also Wash. Rev. Code § 9.94A.631(2).
6 The Union concedes that positions in minimum-security housing units are properly designated female-only. Because Mission Creek is a minimum-security facility, the housing-unit positions at that prison are not at issue here.

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26 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR.
Beyond searches, officers in the housing units also “may encounter female offenders in varying states of undress while showering, toileting, and dressing.” Guards must collect urine samples from inmates, and a failure to “observ[e] the offenders during the entire process of urinalysis collection significantly impacts the reliability of the test results . . .” According to the state, “[m]ale staff cannot observe female offenders when they are engaged in these activities.”
Given these operational needs, there is no reasonable substitute for having female guards inside housings units, according to the Department. Notably, temporarily removing a female guard from another part of the prison to cover in a housing unit “creates a gap for dealing with privacy issues at the post vacated.” At best, that solution fixes one problem but creates another.
The evidence Teamsters puts forward to counter the Department’s justifications is entirely inapposite. One of its experts points out that sexual assault is not a severe problem in medium- and high-security housing because “as the level of security increases, the opportunity for sexual assault decreases.” This may be true, but it fails to acknowledge that the staffing decisions were designed to protect inmate privacy, which is “essential to the operation of a corrections facility and has been recognized as justifying facially discriminatory policies in other contexts.” Ambat, 757 F.3d at 1028. The Union’s other expert quarrels with citations to social science regarding female inmates’ privacy needs and matters relating to sexual relationships between inmates and guards. This testimony again fails to raise any genuine dispute of material fact as to the Department’s reasoned determination that the realities of operating Washington’s

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women’s prisons necessitate designating these specific positions as female-only.
2. Programs and Activities
Programs and activities officers directly supervise inmate activities such as educational and religious classes, gym, crafts, and visitation hours. During these programs and activities, inmates are searched at random and if suspected of hiding contraband. Guards must collect urine samples from inmates and at times relieve housing unit officers, which requires “room checks” where they may “encounter female offenders in varying states of undress. . . .” These guards also supervise visitation hours, after which 50% of inmates are pat searched and 50% are strip searched. To fulfill these job functions, the state designated three programs and activities positions as female-only.
The Union’s proposed alternative to designating these positions as female-only is a return to the system employed for the last two decades: dispatching female officers as rovers—or “response and movement” guards, in prison lingo—who could be paged when needed for searches.7 The Union offers no data, expert testimony, or other evidence to support the efficacy of this approach. Instead, undisputed evidence established that the rover system was rife with problems, to say the least. During this era, prison administrators “shuttle[d] women staff from location to location throughout the prisons to perform essential security
7 Union expert Gladwin says the female-only designation of programs and activities posts is “arbitrary,” because the programs and activities officer who supervises the bike program can be a male guard. That officer, however, is not required to perform searches.

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procedures, leaving other areas of the prison without appropriate staffing.” Wait times for searches lasted an hour or more. With female guards stretched thin, inmates went unsupervised showering, using the restroom, or dressing—raising security and safety risks. Superintendent Eldon Vail testified that, before the BFOQ positions were implemented, the prison functioned “in the broadest sense” but the shortage of female guards restricted the prison’s ability to deploy unannounced, random pat searches, an important tool in preventing the flow of contraband.
In light of this checkered history, the Union’s conclusory assertion that the Department successfully “managed [privacy and search] issues for at least two decades” rings hollow. FTC v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997) (“[C]onclusory, self-serving statements in appellate briefs . . . are insufficient to create a genuine issue of material fact.”). We will not displace prison administrators’ experience and expertise in favor of an alternative that boils down to the “same old, same old.” Cf. Torres, 859 F.2d at 1529 (“[P]rison administrators always have been expected to innovate and experiment.” (citing Turner v. Safley, 482 U.S. 78, 107 (1987) (prison administrators must be allowed “to adopt innovative solutions to the intractable problems of prison administration”)).
3. Work Crews
Work crew officers escort groups of ten prisoners to offsite work locations and supervise their workdays. Searches are again part and parcel of the job—comprising 70% of dayto-day responsibilities. Strip searches are required each time an inmate leaves and reenters the prison grounds. Before the 2009 staffing policy, female officers had to be “pulled from

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somewhere else in the facility” to conduct these searches, which can “creat[e] [] a staff shortage in another area of the facility” and pose “a potential security risk,” according to the Human Rights Commission. During the workday, officers also must accompany female inmates as they use the restroom. The Department concluded that, because of these job responsibilities, it needed female officers alongside work crews. The Department therefore designated six positions as female-only.
Nonetheless, with respect to work crews, the Union argues that the Department should merely station female guards at prison entry and exit points. If the need for a search arises “while work is in progress, this would constitute an ‘emergent’ search which is not prohibited for a male officer as a matter of law, policy or contract.” The Union produced no evidence or legal support for its emergency-search proposal. Even if the Department could disingenuously label every work-site search as an emergency, the state’s interest is broader than merely avoiding illegal searches. Having male officers conduct pat searches under any non-emergency circumstances is undesirable and harmful to prisoner privacy and security.
Staging female officers at entry and exit points also ignores the state’s interest in preserving security during work assignments. The record showed that at least two inmates escaped from public bathrooms while on work crews, when they were not watched by male guards and no female guards were on hand. The Union does not explain, much less provide evidence for, how its alternative proposal would address concerns about on-the-job observation.

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4. Relief Posts
Officers in the 32 relief positions substitute for female guards in female-only positions when they have a regular day off, are on vacation, or are out sick. The relief officers perform the job responsibilities described above in housing units and elsewhere. As the Human Rights Commission put it, the relief positions “alleviate understaffing of female officers, because a BFOQ position needs to be relieved by a BFOQ position.” In other words, if only male officers are available to fill in for BFOQ positions, it undermines the documented need of making those positions female-only in the first place.
According to the Union, 32 relief positions is too many, so the issue “must be reserved for trial because the Court cannot assess whether the relief sought was excessive without conducting a careful analysis of all such positions.” To survive summary judgment, however, the Union “may not merely state that it will discredit the moving party’s evidence at trial and proceed in the hope that something can be developed at trial in the way of evidence to support its claim.” T.W. Elec. Serv. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). Argument without evidence is hollow rhetoric that cannot defeat summary judgment.
CONCLUSION
We affirm the district court’s grant of summary judgment for the state. The Washington Department’s creation of a narrow category of female-only job assignments is a “bona

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TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR. 31 fide occupational qualification reasonably necessary to the normal operation” of the women’s prisons.8
AFFIRMED.
8 In light of our holding that the positions are lawful BFOQs, we need not decide whether the district court correctly granted summary judgment on the alternative ground that the Union has not shown that any of its members suffered cognizable injury under Title VII.

 
 General Docket United States Court of Appeals for the Ninth Circuit

Court of Appeals Docket #: 13-35331

Docketed: 04/19/2013

Nature of Suit: 3442 Jobs

Termed: 06/12/2015

Teamsters Local Union No 117 v. Washington Dept of Corrections, et al

Appeal From: U.S. District Court for Western Washington, Tacoma

Fee Status: Paid

Case Type Information: 1) civil 2) private 3) null

Originating Court Information:

District: 0981-3 : 3:11-cv-05760-BHS

Trial Judge: Benjamin H. Settle, District Judge

Date Filed: 09/21/2011

Date

Date Order/Judgment

Order/Judgment:

EOD:

04/08/2013

04/08/2013

Prior Cases: None

Date NOA Filed:
04/19/2013

Current Cases: None

Date Rec'd COA:
04/19/2013

TEAMSTERS LOCAL UNION NO 117, a Washington corporation
Plaintiff - Appellant,

Dmitri Iglitzin, Attorney Direct: 206-285-2828 [COR NTC Retained] Schwerin Campbell Barnard Iglitzin & Lavitt LLP Suite 400 18 W. Mercer Street Seattle, WA 98119-3971
Spencer Nathan Thal, General Counsel Direct: 206-441-4860 [COR NTC Retained] TEAMSTERS LOCAL UNION 117 14675 Interurban Avenue S Suite 307 Tukwila, WA 98168

v.
WASHINGTON DEPARTMENT OF CORRECTIONS
Defendant - Appellee,

Peter B. Gonick Direct: 360-753-6245 [COR NTC Dep State Aty Gen] AGWA - Office of the Washington Attorney General (Olympia)YMPIA) P.O. Box 40100 1125 Washington St., SE Olympia, WA 98504-0100
Ohad Michael Lowy, Assistant Attorney General Direct: 360-586-1445 [COR NTC Retained] AGWA - OFFICE OF THE WASHINGTON ATTORNEY GENERAL (OLYMPIA) Criminal Justice Division P.O. Box 40100 Olympia, WA 98504-0100

JANE DOE CLASS

Melissa R. Lee, Attorney

Intervenor-Defendant - Appellee, Direct: 206-464-0838

[COR NTC Retained]

COLUMBIA LEGAL SERVICES

Suite 300

101 Yesler Way

Seattle, WA 98104-2552

Nicholas Straley, Attorney Direct: 206-464-5933 [COR NTC Retained] COLUMBIA LEGAL SERVICES 300 101 Yesler Way Seattle, WA 98104-2552
TEAMSTERS LOCAL UNION NO 117, a Washington corporation,

Plaintiff - Appellant,

v.

WASHINGTON DEPARTMENT OF CORRECTIONS,

Defendant - Appellee,

JANE DOE CLASS,

Intervenor-Defendant - Appellee.

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DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND MQ: Yes. The schedule is set as follows: Mediation Questionnaire due on 04/26/2013. Appellant Teamsters Local Union No 117 opening brief due 07/29/2013. Appellees Jane Doe Class and Washington Department of Corrections answering brief due 08/27/2013. Appellant's optional reply brief is due 14 days after service of the answering brief. [8596633] (KM) [Entered: 04/19/2013 01:33 PM]
Filed (ECF) Appellant Teamsters Local Union No 117 Mediation Questionnaire. Date of service: 04/24/2013. [8602260] (SNT) [Entered: 04/24/2013 09:31 AM]
Filed (ECF) Appellee Jane Doe Class Mediation Questionnaire. Date of service: 04/24/2013. [8603744] (MRL) [Entered: 04/24/2013 04:42 PM]
Filed order MEDIATION (LW): Case referred to Mediation for assessment conference only. Telephone conference to be on 05/21/2013 at 09:30 am. (Pacific Standard Time) [8605277] (KM) [Entered: 04/25/2013 02:54 PM]
Filed (ECF) Streamlined request for extension of time to file Opening Brief by Appellant Teamsters Local Union No 117. New requested due date is 08/28/2013 at 11:59 pm. [8655891] (SNT) [Entered: 06/05/2013 11:53 AM]
Streamlined request [5] by Appellant Teamsters Local Union No 117 to extend time to file the brief is approved. Amended briefing schedule: Appellant Teamsters Local Union No 117 opening brief due 08/28/2013. Appellees Jane Doe Class and Washington Department of Corrections answering brief due 09/27/2013. The optional reply brief is due 14 days from the date of service of the answering brief. [8656303] (SB) [Entered: 06/05/2013 02:28 PM]
Filed order MEDIATION (CG): There will be an in-person settlement conference in this matter on July 29, 2013, at 9:00 a.m. Pacific Time at the Tacoma Attorney General’s office, 1250 Pacific Avenue, Tacoma, WA. Participants should report to Suite 105...[SEE ORDER] [8694923] (KM) [Entered: 07/08/2013 04:09 PM]

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Filed order MEDIATION (CG): This case is released from the mediation program. Counsel are requested to contact the mediator should circumstances develop that might warrant further settlement discussions. The briefing schedule previously established by the court remains in effect. [8723721] (KM) [Entered: 07/30/2013 03:47 PM]
Submitted (ECF) Opening Brief and excerpts of record for review. Submitted by Appellant Teamsters Local Union No 117. Date of service: 08/28/2013. [8760426]--[COURT UPDATE: Attached corrected brief. Resent NDA. 09/06/2013 by RY] (SNT) [Entered: 08/28/2013 02:39 PM]
Filed clerk order: The opening brief [9] submitted by Teamsters Local Union No 117 is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. Cover color: blue. The paper copies shall be printed from the PDF version of the brief created from the word processing application, not from PACER or Appellate ECF. The Court has reviewed the excerpts of record [9] submitted by Teamsters Local Union No 117. Within 7 days of this order, filer is ordered to file 4 copies of the excerpts in paper format, with a white cover. The paper copies must be in the format described in 9th Circuit Rule 301.6. [8772374] (WP) [Entered: 09/06/2013 01:59 PM]
Filed Appellant Teamsters Local Union No 117 paper copies of excerpts of record [9] in 4 volume(s). [8781107] (WP) [Entered: 09/13/2013 09:48 AM]
Received 7 paper copies of Opening brief [9] filed by Teamsters Local Union No 117. [8781636] (SD) [Entered: 09/13/2013 12:54 PM]
Filed (ECF) Appellees Jane Doe Class and Washington Department of Corrections Joint Motion to dismiss the case. Date of service: 09/25/2013. [8797188] (MRL) [Entered: 09/25/2013 05:40 PM]
Filed (ECF) notice of appearance of Dmitri Iglitzin for Appellant Teamsters Local Union No 117. Date of service: 09/26/2013. [8798799] (DI) [Entered: 09/26/2013 03:36 PM]
Added attorney Dmitri Iglitzin for Teamsters Local Union No 117, in case 13-35331. [8798840] (MT) [Entered: 09/26/2013 03:43 PM]
Filed (ECF) Appellant Teamsters Local Union No 117 Motion to extend time to file a response until 10/21/2013. Date of service: 09/27/2013. [8800729] (DI) [Entered: 09/27/2013 03:39 PM]

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Filed clerk order (Deputy Clerk: TSP): Appellant’s unopposed motion for an extension of time to file a response to appellees’ motion to dismiss this appeal is granted. Appellant’s response is now due October 21, 2013. The optional reply is due within 7 days after service of the response. [8805778] (BJB) [Entered: 10/02/2013 08:22 AM]
Filed (ECF) Appellant Teamsters Local Union No 117 response opposing motion (,motion to dismiss the case). Date of service: 10/21/2013. [8830038] (DI) [Entered: 10/21/2013 04:33 PM]
Filed (ECF) Appellees Jane Doe Class and Washington Department of Corrections Joint Motion to extend time to file a reply until 11/04/2013 at 11:59 pm. Date of service: 10/23/2013. [8833324] (KAL) [Entered: 10/23/2013 01:43 PM]
Filed clerk order (Deputy Clerk: TSP): Appellees unopposed motion for an extension of time to file a reply to appellants opposition to appellees joint motion to dismiss this appeal is granted. The response is due November 4, 2013. Briefing remains suspended pending further court order. [8836820] (BJB) [Entered: 10/25/2013 10:28 AM]
Filed (ECF) Appellees Jane Doe Class and Washington Department of Corrections reply to response (,motion to dismiss the case, ). Date of service: 11/04/2013. [8849772] (NS) [Entered: 11/04/2013 05:01 PM]
Filed order (Appellate Commissioner): Appellees’ motion to dismiss this appeal for lack of jurisdiction is denied without prejudice to renewing the arguments in the answering brief. See Nat’l Indus. v. Republic Nat’l Life Ins. Co., 677 F.2d 1258, 1262 (9th Cir. 1982) (stating that merits panel may consider appellate jurisdiction despite earlier denial of motion to dismiss). Appellant’s motion for a remand to the district court for additional factfinding, contained in the opposition to the motion to dismiss, is denied. Appellant’s motion for leave to supplement the record on appeal, contained in the opposition to the motion to dismiss, is referred to the panel assigned to decide the merits of this appeal for whatever consideration the panel deems appropriate. The opening brief has been filed. The answering brief is due within 30 days after the date of this order; and the optional reply brief is due within 14 days after service of the answering brief. (MOATT) [8941161] (IV) [Entered: 01/16/2014 11:04 AM]
Filed (ECF) Streamlined request for extension of time to file Answering Brief by Appellee Washington Department of Corrections. New requested due date is 03/04/2014 at 11:59 pm. [8979127] (OML) [Entered: 02/14/2014 10:36 AM]

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Filed (ECF) Streamlined request for extension of time to file Answering Brief by Appellee Jane Doe Class. New requested due date is 03/04/2014 at 11:59 pm. [8979157] (MRL) [Entered: 02/14/2014 10:49 AM]

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Streamlined request [24], [23] by Appellees Jane Doe Class and Washington Department of Corrections to extend time to file the brief is approved. Amended briefing schedule: Appellees Jane Doe Class and Washington Department of Corrections answering brief due 03/04/2014. The optional reply brief is due 14 days from the date of service of the answering brief. [8979387] (SB) [Entered: 02/14/2014 12:17 PM]

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Submitted (ECF) Answering Brief for review. Submitted by

66 pg, 725.55 KB Appellee Jane Doe Class. Date of service: 03/04/2014. [9001855]

(MRL) [Entered: 03/04/2014 03:16 PM]

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Filed clerk order: The answering brief [26] submitted by Jane Doe Class is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. Cover color: red. The paper copies shall be printed from the PDF version of the brief created from the word processing application, not from PACER or Appellate ECF. [9001917] (CT) [Entered: 03/04/2014 03:40 PM]

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Submitted (ECF) Answering Brief and supplemental excerpts of

2258 pg, 116.43 MB record for review. Submitted by Appellee Washington Department

of Corrections. Date of service: 03/04/2014. [9002030]--[COURT

UPDATE: Attached corrected brief. Resent NDA. 03/05/2014 by

RY] (OML) [Entered: 03/04/2014 04:19 PM]

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Filed clerk order: The answering brief [28] submitted by Washington Department of Corrections is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. Cover color: red. The paper copies shall be printed from the PDF version of the brief created from the word processing application, not from PACER or Appellate ECF. The Court has reviewed the supplemental excerpts of record [28] submitted by Washington Department of Corrections. Within 7 days of this order, filer is ordered to file 4 copies of the excerpts in paper format, with a white cover. The paper copies must be in the format described in 9th Circuit Rule 30-1.6. [9003761] (CT) [Entered: 03/05/2014 03:39 PM]

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Filed (ECF) Streamlined request for extension of time to file Reply Brief by Appellant Teamsters Local Union No 117. New requested due date is 04/18/2014. [9004294] (SNT) [Entered: 03/06/2014 09:04 AM]
Streamlined request [30] by Appellant Teamsters Local Union No 117 to extend time to file the brief is approved. Amended briefing schedule: the optional reply brief is due 04/18/14. [9005418] (KM) [Entered: 03/06/2014 02:44 PM]
Received 7 paper copies of Answering brief [26] filed by Jane Doe Class. [9009298] (SD) [Entered: 03/10/2014 02:19 PM]
Filed Appellee Washington Department of Corrections paper copies of supplemental excerpts of record [28] in 8 volumes. [9011848] (CT) [Entered: 03/11/2014 04:54 PM]
Received 7 paper copies of Answering brief [28] filed by Washington Department of Corrections. [9012204] (SD) [Entered: 03/12/2014 09:31 AM]
Submitted (ECF) Reply Brief and supplemental excerpts of record for review. Submitted by Appellant Teamsters Local Union No 117. Date of service: 04/18/2014. [9063616] (SNT) [Entered: 04/18/2014 11:32 AM]
Filed clerk order: The reply brief [35] submitted by Teamsters Local Union No 117 is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. Cover color: gray. The paper copies shall be printed from the PDF version of the brief created from the word processing application, not from PACER or Appellate ECF. The Court has reviewed the supplemental excerpts of record [35] submitted by Teamsters Local Union No 117. Within 7 days of this order, filer is ordered to file 4 copies of the excerpts in paper format, with a white cover. The paper copies must be in the format described in 9th Circuit Rule 30-1.6. [9063868] (CT) [Entered: 04/18/2014 01:29 PM]
Received 7 paper copies of Reply brief [35] filed by Teamsters Local Union No 117. [9072850] (SD) [Entered: 04/25/2014 01:43 PM]
Filed Appellant Teamsters Local Union No 117 paper copies of supplemental excerpts of record [35] in 1 volume. [9073175] (LA) [Entered: 04/25/2014 03:19 PM]

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Filed (ECF) Appellant Teamsters Local Union No 117 citation of supplemental authorities. Date of service: 07/16/2014. [9171056] (DI) [Entered: 07/16/2014 11:03 AM]
Filed (ECF) Appellee Washington Department of Corrections citation of supplemental authorities. Date of service: 07/25/2014. [9181523] (KAL) [Entered: 07/25/2014 09:40 AM]
Notice of Oral Argument on Tuesday, December 9, 2014 - 09:00 A.M. - SE 7th Flr Courtroom 2 - Seattle, WA.

View the Oral Argument Calendar for your case here.

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When you have reviewed the calendar, download the ACKNOWLEDGMENT OF HEARING NOTICE form, complete the form, and file it via Appellate ECF or return the completed form to: SEATTLE Office. [9261577] (SB) [Entered: 10/01/2014 01:31 PM]
Filed (ECF) Acknowledgment of hearing notice. Location: Seattle. Filed by Attorney Spencer Nathan Thal for Appellant Teamsters Local Union No 117. [9262951] (SNT) [Entered: 10/02/2014 11:14 AM]
Filed (ECF) Acknowledgment of hearing notice. Location: Seattle. Filed by Attorney Ohad Michael Lowy for Appellee Washington Department of Corrections. [9263198] (OML) [Entered: 10/02/2014 11:56 AM]
Filed (ECF) Acknowledgment of hearing notice. Location: Seattle. Filed by Attorney Mr. Nicholas Straley for Appellee Jane Doe Class. [9263730] (NS) [Entered: 10/02/2014 03:15 PM]
Filed (ECF) notice of appearance of Peter B. Gonick for Appellee Washington Department of Corrections. Date of service: 11/03/2014. [9299852] [13-35331] (PBG) [Entered: 11/03/2014 03:29 PM]
Added attorney Peter B. Gonick for Washington Department of Corrections, in case 13-35331. [9299937] (EL) [Entered: 11/03/2014 03:48 PM]
ARGUED AND SUBMITTED TO MICHAEL DALY HAWKINS, M. MARGARET MCKEOWN and RICHARD C. TALLMAN. [9342000] (SB) [Entered: 12/09/2014 10:08 AM]
Terminated Daniel Swedlow for Teamsters Local Union No 117 in 13-35331 (No longer with firm) [9362801] (TYL) [Entered: 12/26/2014 02:53 PM]
Terminated Kara A. Larsen for Washington Department of Corrections in 13-35331 (csl no longer with Washington State

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Attorney General’s Office) [9490407] (ASW) [Entered: 04/09/2015 04:22 PM]
FILED OPINION (MICHAEL DALY HAWKINS, M. MARGARET MCKEOWN and RICHARD C. TALLMAN) AFFIRMED., Judge: MMM Authoring,. FILED AND ENTERED JUDGMENT. [9571947] (RP) [Entered: 06/12/2015 07:35 AM]
Filed (ECF) Appellant Teamsters Local Union No 117 Unopposed Motion to extend time to file petition for rehearing until 07/06/2015. Date of service: 06/22/2015. [9583495] [13-35331] (DI) [Entered: 06/22/2015 04:48 PM]
Filed order (MICHAEL DALY HAWKINS, M. MARGARET MCKEOWN and RICHARD C. TALLMAN) Teamsters Local Union No. 117's motion for an extension of time to file its petition for rehearing en banc is GRANTED. The petition shall be filed on or before July 6, 2015. [9584647] (OC) [Entered: 06/23/2015 02:00 PM]