MALINOWSKI v. NEW YORK STATE DIVISION OF HUMAN RIGHTS ON COMPLAINT OF MALINOWSKI NYSDHR 10175288

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Supreme Court, Albany County, New York.

Keith A. MALINOWSKI, Petitioner, v. NEW YORK STATE DIVISION OF HUMAN RIGHTS ON the COMPLAINT OF Keith A. MALINOWSKI, (NYSDHR Case No. 10175288), New York State Department of Corrections and Community Supervision, and New York State, Respondents.

Michael Powers, as President of the New York State Correctional Officers & Police Benevolent Association, Inc., Petitioner, v. New York State Division of Human Rights on the Complaint of Michael Powers, as President of the New York State Correctional Officers & Police Benevolent Association, Inc., (NYSDHR Case No. 10175290), New York State Department of Corrections and Community Supervision, and New York State, Respondents.

206–16

Decided: June 14, 2016

Lippes Mathias Wexler Friedman, LLP, Lawrence H. Schaefer, of counsel, Attorneys for Petitioners, 54 State Street, Suite 1001 Albany, New York 12207 Caroline J. Downey, General Counsel, Attorney for Respondent State Division of Human Rights, One Fordham Plaza, Bronx, New York 10458 Eric T. Scheiderman, Attorney General of the State of New York, Rachel Maman Kish, of counsel, Attorney for Respondent, Department of Corrections and Community Supervision The Capitol Albany, New York 12224–0341

In these Executive Law § 298 proceedings, petitioners Keith Malinowski, a correction officer at Albion Correctional Facility, and Michael Powers, as president of the New York State Correctional Officers and Police Benevolent Association, Inc. (NYSCOPBA), seek orders (1) vacating two separate determinations of no probable cause made by respondent New York State Division of Human Rights (SDHR) and (2) reinstating their administrative complaints with findings of probable cause. Because SDHR's determinations of no probable cause are not arbitrary and capricious and are supported by a rational basis, the petitions are denied.

Background

In 2015, the Department of Corrections and Community Supervision (DOCCS) made a policy change prohibiting assignment of correction officers not of the same gender to special watch and suicide watch of inmates at all DOCCS facilities across the State. Special watch entails an officer observing an inmate suspected of ingesting contraband. The inmate is placed under a one-on-one surveillance in an empty cell with no access to water or a toilet, until that inmate has a bowel movement, to prevent destruction or secretion of any contraband before it can be recovered. An inmate under suicide watch is similarly placed in a cell for constant one-on-one surveillance. The inmate is provided an open smock to minimize the risk of self-injury. Although an inmate under suicide watch has an in-cell toilet, it is in the open and visible to the correction officer to ensure the safety of the inmate. An inmate under either special watch or suicide watch must urinate and defecate in full view of the assigned officer. DOCCS asserts that these provisions were added to Directive No. 2230 to bring it into compliance with national standards promulgated in 2012 pursuant to the federal Prison Rape Elimination Act (PREA) (42 USCS § 15607;  28 CFR § 115.15).1

Correction Officer Keith Malinowski and NYSCOPBA filed an administrative complaint with SDHR, alleging that the special and suicide watch gender restrictions imposed by Directive # 2230 constitute an unlawful discriminatory practice under the New York Human Rights Law and the Civil Rights Act of 1964. According to the complaint, C.O. Malinowski, who works at an all-women prison in Albion, New York, was denied overtime to which he was entitled based on seniority and the applicable collective bargaining agreement, when a female officer was given an overtime assignment instead of him. Petitioners asked that SDHR strike the special and suicide watch gender rules imposed by Directive # 2230 and award C.O. Malinowski damages.

SDHR assigned separate case numbers to reflect the circumstances of the two different petitioners, and conducted an investigation. SDHR invited written submissions and held a conference/interview at which C.O. Malinowski, DOCCS Associate Commissioner Jason Effman, and counsel for petitioners were heard. SDHR issued two separate but nearly identical determinations of no probable cause and dismissed the complaints. In both determinations, SDHR stated that its “investigation revealed that assigning an officer of the same sex during [special and suicide] watches preserves the privacy rights and human dignity of the inmate, whose genitalia will likely be exposed to the officer during the course of the officer's one-on-one surveillance of the inmate.” SDHR further determined that such privacy protection was required by the PREA. SDHR also found no “reasonable alternative to assigning an officer of the same sex to these watches, inasmuch as alternatives could reasonably pose a risk to the safety and security of the prison's population or pose a privacy risk to the inmate.” Accordingly, SDHR determined that assignment of officers of the same gender as the inmate on special and suicide watches was a bona fide occupational qualification. SDHR's determinations were each supported by a Final Investigation Report and Basis of Determination. Petitioners now challenge SDHR's determinations.

Legal Standard

Executive Law § 296 (1) (a) 2 forbids employers from discriminating against employees based on gender. Aggrieved parties may file an administrative complaint with SDHR, which then must determine whether it has jurisdiction and “whether there is probable cause to believe that the [employer] has engaged or is engaging in an unlawful discriminatory practice (Executive Law § 297 1, 2 [a] ). If SDHR determines that probable cause does not exist, it must dismiss the complaint (Executive Law § 297 [2] [a] ). A party wishing to challenge a no-probable—cause determination may commence a proceeding in Supreme Court (Executive Law § 298). SDHR's findings of fact “shall be conclusive if supported by sufficient evidence on the record considered as a whole” (id.). And courts may “only disturb a determination of no probable cause if it is arbitrary, capricious or lacks a rational basis,” giving “deference to SDHR due to its experience and expertise in evaluating allegations of discrimination” (Matter of Curtis v. NY State Div. of Human Rights, 124 AD3d 1117, 1118 [3d Dept 2015] ).

The initial burden for a gender discrimination claim under both Executive Law § 296 and Federal Civil Rights Act of 1964 Title VII cases lies with the complainant, who must show (1) membership in a protected class, (2) adverse employment action, and (3) “circumstances giving rise to a an inference of discrimination” (Mittl v. NY State Div. of Human Rights, 100 NY2d 326, 330 [2003] ). Once a complainant has established a prima facie claim of discrimination, “the burden of production shifts to the employer to rebut the presumption with evidence that the complainant was discharged for a legitimate, nondiscriminatory reason” (id.). One such reason is known as the bona fide occupational qualification defense, which applies where discrimination is “reasonably necessary to the normal operation of [a] particular business or enterprise” (Executive Law § 296 [1] [d];  42 USC § 2000e–2 [e] [1];  NY State Div. of Human Rights v. N.Y.–Penn. Prof. Baseball League, 36 AD2d 364, 368 [4th Dept 1971], affd 29 NY2d 921 [1972] ).

While few jobs qualify for bona fide occupational qualification defense, the courts have sometimes found gender-based classifications appropriate in the “unique context of prison employment (Teamsters Local Union No. 117 v. Washington Dept. of Corr., 789 F3d 979, 987 [9th Cir 2015] [internal quotation marks omitted];  see Dothard v. Rawlinson, 433 US 321, 334 [1977];  White v. Dept. of Corr. Servs., 814 F Supp 2d 374, 384 [SDNY 2011];  State Div. of Human Rights ex rel. Johnson v. Oneida County Sheriff's Dept., 119 AD2d 1006 [4th Dept 1986], affd 70 NY2d 974 [1988] ). But while some deference may be afforded where prison officials exercise reasoned judgment and expertise, there must be a factual basis for concluding that gender restrictions are reasonably necessary to protect the inmates' rights under the PREA and the Constitution, and that no reasonable alternatives exist (see Teamsters Local Union No. 117, 789 F3d at 988;  White v. Dep't of Corr. Servs., 814 F Supp 2d at 385).

Analysis

Here, SDHR's determinations of no probable cause are neither arbitrary and capricious nor unsupported by a rational basis. Rather, evidence in the record supports the determination that gender discrimination in assigning correction officers to special and suicide watches is reasonably necessary to the operation of the correctional facility, and thus qualifies as a bona fide occupational qualification.

Initially, the parties do not dispute that Directive # 2230 is prima facie discriminatory, inasmuch as it provides for gender-based assignments (see Windhauser v. Bausch & Lomb, Inc., 302 F Supp 2d 139, 143—144 [WDNY 2003];  Schweizer Aircraft Corp. v. NY State Div. of Human Rights, 220 AD2d 855, 857 [3d Dept 1995], lv denied 87 NY2d 805 [1996] ). Nor do the parties dispute that DOCCS's policy resulted in an adverse employment action:  C.O. Malinowski was deprived of overtime to which he was otherwise entitled pursuant to the collective bargaining agreement.

Here, however, as SDHR rationally determined, DOCCS demonstrated that the same-gender special and suicide watch requirement qualifies as a bona fide occupational qualification. DOCCS explained that it amended Directive # 2230 to add the gender-based requirements for special and suicide watches as part of an overall effort to bring its policies into compliance with the PREA. The federal law requires prisons to “implement policies and procedures that enable inmates to shower, perform bodily functions, and change clothing without nonmedical staff of the opposite gender viewing their breasts, buttocks, or genitalia, except in exigent circumstances or when such viewing is incidental to routine cell checks” (28 CFR § 115.15 [d];  cf. Harris v. Miller, 818 F3d 49 [2d Cir 2016] [“While all forced observations or inspections of the naked body implicate a privacy concern, it is generally considered a greater invasion to have one's naked body viewed by a member of the opposite sex.”] ). SDHR found that DOCCS was required to comply with the PREA and its failure to do so could result in the loss of federal funding. And, as a factual matter, SDHR found that “assigning an officer of the same sex during [suicide and special] watches preserves the privacy rights and human dignity of the inmate, whose genitalia will likely be exposed to the officer during the course of the officer's one-on-one surveillance of the inmate.” Accordingly, SDHR determined that same gender assignments on suicide and special watches qualifies as a bona fide occupational qualification.

Evidence in the record supports SDHR's factual findings. SDHR interviewed Jason Effman, DOCCS Associate Commissioner and PREA Coordinator, who explained that DOCCS issued Directive # 2230 to comply with the PREA. According to Mr. Effman, failure to comply would result in loss of federal funding. Petitioners do not contend that DOCCS is not required to comply with the PREA, but they argue that the PREA does not specifically forbid assignment of same-sex officers to suicide and special watches. But what the PREA does forbid is cross-gender “viewing [of] breasts, buttocks, or genitalia, except in exigent circumstances” (28 CFR § 115.15 [d] ). As described in an email from Michele Simmons, DOCCS Deputy Superintendent for Security Services, an inmate under special watch must be placed in a bare cell lacking water or toilet so that the inmate cannot destroy any expelled contraband. She explained that “[a]n inmate is under constant watch and will urinate or defecate in front of the officer. The inmate will be seen in a mode of undress or nakedness during these times ․ [V]iewing of the inmate's genitals is necessary to confirm the integrity of the sample given.” Ms. Simmons also reported that inmates on suicide watch wear smocks rather than ordinary prison garb and that the officer on watch must view the inmate even when using the toilet to ensure safety. Although she added the caveat that suicide watch was “the one situation that i [f] exigent circumstances exist we can use cross gender coverage,” sufficient evidence in the record supports SDHR's factual findings that gender-restricted assignments to suicide watches are reasonably necessary to protect inmates' privacy. Thus, with respect to both special and suicide watch restrictions, SDHR's bona fide occupational qualification determination was rational. By extension, its determination of no probable cause was also rational.

Petitioners contend that the only aspect of the special and suicide watches that involves impermissible cross-gender surveillance is the observance of defecation and toilet facilities. According to petitioners a female officer could be summoned to observe the inmate's defecation at the appropriate time. Although, as petitioner argues, “convenience does not establish a [bona fide occupational qualification]” (see Diaz v. Pan Am. World Airways, Inc., 442 F2d 385, 388 [5th Cir 1971] (bona fide occupational qualification analysis is “a business necessity test, not a business convenience test”), record evidence supports SDHR's finding contained in its Basis for Determination that “alternatives [to same-sex suicide and special watches] could reasonably pose a risk to the safety and security of the prison's population or pose a privacy risk to the inmate.” Mr. Effman stated to the SDHR investigator that the female officer summoned to observe the inmate would have to wait for coverage of her post and then travel to the watch location. But a bowel movement may not wait for the officer on watch to obtain coverage. If a female officer is not secured before contraband is excreted, the contraband may be re-ingested or destroyed. The Court agrees with SDHR that petitioners' proposed alternative “would defeat the purpose of the special watch” (see Final Investigation Rpt., at 3;  Admin. Rec., Attachment D). Likewise, in the context of a suicide watch, an inmate should not be forced to wait to use toilet facilities while a female officer is summoned. Alternatively, a male officer would be compelled to view the inmate's private activities in violation of the PREA and the inmate's right to privacy (see Harris v. Miller, 818 F3d 49 [2d Cir 2016] ).

White v. Department of Correctional Services (814 F Supp 2d 374 [SDNY 2011] ) does not compel a different result. In that case, plaintiff alleged that the defendants had engaged in discriminatory hiring practices in violation of Civil Rights Law Title VII by restricting an Officer in Charge of the Release Process Booth position to only male correction officers (id. at 379). In support of their summary judgment motion, defendants argued that, because the position required the officer to “take and/or ensure that Urines [were] taken” and conduct strip frisks, gender was a bona fide occupational qualification for the position (id. at 383—384). In opposition, the “plaintiff ․ presented evidence that the [Officer in Charge] was not required to conduct [strip frisks or urine collection] personally, but only to ensure that they were conducted” (id. at 385). The court reasoned that “evidence that the privacy-related job functions were only a minimal part of the [Officer in Charge] position weakens the defendants' [bona fide occupational qualification] defense” (id.). The court therefore denied summary judgment, holding that “a reasonable jury could find that sex was not a” bona fide occupational qualification for the Officer in Charge position (id. at 387).

This case is distinguishable from White both procedurally and factually. Whereas in White, the district court was bound to deny the motion for summary judgment if “any evidence” existed to allow the trier of fact to reasonably find in favor of the non-moving party, here, the Court must defer to SDHR's findings of fact so long as they are supported by sufficient evidence, and it must not disturb SDHR's determination of no probable cause unless it is arbitrary and capricious or without a rational basis (Executive Law § 298;  Matter of Curtis, 124 AD3d at 1118). White is also factually different because here the privacy-related tasks are critical to the duties of the officers assigned to special and suicide watches. Ms. Simmons and Mr. Effman provided evidence of “ ‘a high correlation between sex and ability to perform job functions' ” of such assignments (White, 814 F Supp 2d at 385 [quoting Int'l Union v. Johnson Controls, 499 US 187 (1991) ] ). Observing the subject inmate's private toilet activities is not incidental to the job;  it is the job. Ms. Simmons and Mr. Effman also provided evidence that the alternative proposed by petitioner would involve more than “ ‘minor additional costs or inconveniences,’ ” and would undermine the purpose of the special watch and create a risk that a subject inmate's privacy would be violated when she had an urgent need to perform a bodily function during both special and suicide watches (see id. at 386 [quoting Henry v. Milwaukee County, 539 F3d 573 [7th Cir 2008] ).

Nor is this a case where DOCCS discriminated against male officers based on “stereotyped characterizations of the sexes” (compare Dothard, 433 US 321 [validating sex discrimination due to particular conditions in Alabama's prisons] with Westchester County Corr. Benevolent Assn. v. County of Westchester, 346 F Supp 2d 527, 534 [SDNY 2004] [gender discrimination not permissible “to prevent hypothetical safety risks posed by a small number of correction officers] ). Here, it is the very fact of the gender difference between the officer and the inmate that causes concerns about violating the inmate's privacy under the PREA and the Constitution.

In sum, SDHR reasonably determined that gender discrimination in assignments to special and suicide watches is “reasonably necessary to the normal operation of” the correctional facilities (see 42 USC § 2000e–2 [e] [1];  Teamsters Local Union No. 117, 789 F3d at 989—991). Under the facts and circumstances presented to it, SDHR's application of the bona fide occupational qualification defense was not arbitrary and capricious or irrational.

Finally, petitioners argue that “the only way to establish [a bona fide occupational qualification] is through a full, open hearing” and that failure to hold a full hearing is per se arbitrary and capricious. But SDHR “has broad discretion in determining the method to be employed in investigating a claim” (Albert v. Beth Israel Med. Ctr., 230 AD2d 695, 697 [1st Dept 1996] [internal quotation marks omitted] ). An investigation is sufficient so long as the complainant has an opportunity to present evidence and is “given a full and fair opportunity to rebut the evidence submitted by” the employer (id.). Petitioners do not deny that they were given the opportunity to present evidence and to rebut DOCCS's evidence. Accordingly, it was not arbitrary and capricious for SDHR to determine without holding a hearing that the bona fide occupational qualification exception applied.

For the reasons stated in this decision, it is

ORDERED that the petition of Keith Malinowski, Index Number 206–16, is denied, and the proceeding is dismissed;

ORDERED that the petition of Michael Powers, as President of the New York State Correctional Officers and Police Benevolent Association, Inc., Index Number 207–16, is denied, and the proceeding is dismissed.

This constitutes the Decision and Judgment of the Court. The original Decision and Judgment is being transmitted to counsel for respondent State Division of Human Rights. All other papers are being transmitted to the County Clerk for filing. The signing of this Decision and Judgment does not constitute entry or filing under CPLR 2220 or 5016 and counsel is not relieved from the applicable provisions of those rules respecting filing and service.

Papers Considered

Malinowski v. New York State Division of Human Rights

1. Notice of Petition and Petition, with Exhibits A—B

2. Petitioner's Memorandum of Law

3. Answer of State Division of Human Rights, with Exhibit A

4. Answer of Department of Corrections and Community Supervision

5. Affirmation of Nancy Steuhl, with Exhibits A—B

6. State Division of Human Rights Memorandum of Law in Opposition, with Exhibits A—C

7. State Division of Human Rights Administrative Record

8. Petitioner's Reply Letter dated March 3, 2016

Powers v. New York State Division of Human Rights

1. Notice of Petition and Petition, with Exhibits A—B

2. Petitioner's Memorandum of Law

3. Answer of State Division of Human Rights, with Exhibit A

4. Answer of Department of Corrections and Community Supervision

5. Affirmation of Nancy Steuhl, with Exhibits A—B

6. State Division of Human Rights Memorandum of Law in Opposition, with Exhibits A—C

7. State Division of Human Rights Administrative Record

8. Petitioner's Reply Letter dated March 3, 2016

FOOTNOTES

1.   Previously, the directive prohibited the assignment of officers not of the same gender to conducting or videotaping strip frisks and searches, and the assignment of such officers to congregate shower facilities. The 2015 amendments added prohibitions against assignment to special and suicide watches and, not challenged here, obtaining urine samples.

2.   Article 15 of the Executive Law is also known as the Human Rights Law (see Mittl v. NY State Div. of Human Rights, 100 NY2d 326, 330 [2003] ).

Denise A. Hartman, J.

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