On Appeal from the United States District Court for the Middle District of Pennsylvania, D.C. No. 86-1536.
Seitz, Scirica and Garth, Circuit Judges.
Barry L. Rider and fourteen other male prison guards (referred to collectively as "the male guards") commenced this action against the Commonwealth of Pennsylvania and state agencies and officials challenging the hiring of only female guards for certain guard positions at the State Correctional Institution in Muncy, Pennsylvania, as violative of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the Equal Pay Act, 29 U.S.C. § 206 et seq., 42 U.S.C. § 1983, and Pennsylvania state law. The district court dismissed the male guards' Title VII claim pursuant to Fed. R. Civ. P. 12(b)(6) on the ground that it was barred by res judicata as the result of a Pennsylvania Commonwealth Court judgment holding that the hiring of female guards to monitor female prisoners did not constitute unlawful discrimination against the male guards.*fn1 We will affirm.
The State Correctional Institution at Muncy, Pennsylvania ("SCI-Muncy") is a medium-security prison and the only facility in the Commonwealth's correctional system that houses both male (140) and female (400) inmates. Because SCI-Muncy is not a maximum-security facility, both the male and the female prisoners reside in housing units. Female inmates live in rooms which accommodate two inmates and which contain a sink and a toilet. Female inmates are required to share communal showers located on each floor of each house. Male inmates, on the other hand, are housed in single story units, each with a large common dormitory room containing numerous beds, a communal shower area, and a small recreational area. In addition to these living arrangements, the prison maintains a restricted housing unit for both male and female inmates who have caused, or may cause, disturbances within the institution.
Because inmates of both sexes are incarcerated at the facility, SCI-Muncy hires both male and female guards to monitor the inmates. As of October 27, 1986, the date on which the male guards filed their complaint, the male housing unit was staffed by male guards and the female housing unit by female guards. The restricted housing unit was staffed by four to six guards of both sexes, and a woman sergeant.*fn2
Decisions pertaining to the hiring of guards at SCI-Muncy are governed by: (1) a collective bargaining agreement between the American Federation of State County and Municipal Employees (the "Union") and the Commonwealth's Department of Correction (the "Department"); and (2) a hiring policy statement issued by the Department. Article 30, Section 10 of the collective bargaining agreement directs that all hiring decisions be made on the basis of seniority:
In making shift assignments to shift openings, preference shall be granted on a seniority basis unless the Employer feels it is necessary to assign otherwise in order to protect the efficiency of operation. Seniority status in this regard shall be classification seniority attained at the work site.
In addition, Article 33 of the collective bargaining agreement specifically proscribes employment discrimination:
Both the Employer and the Union agree not to discriminate against any employee on the basis of race, creed, color, ancestry, sex, marital status, age, national origin, non-job related handicap or disability, union membership or political affiliation.
These provisions of the collective bargaining agreement are augmented by the Department's hiring policy guidelines, which state:
a. Guards will not be assigned to work in open view of unclothed inmates of the opposite sex;
b. External escort of prisoners must be by at least one officer or the same sex;
c. Assignments to housing units will involve at least one officer of the same sex as the inmates; and
d. Guards will not conduct strip or frisk searches of inmates of the opposite sex except in case of emergency.
See Appellee's Brief at 7.
Under the hiring guidelines established by the Department--with the imprimatur of the Pennsylvania Civil Service Commission*fn3--a number of the guard assignments at SCI-Muncy have been designated as being available to female applicants only, notwithstanding the requirement in the collective bargaining agreement that all assignments be based upon seniority. Thus, in February of 1984, a number of the Department's shift vacancy announcements at SCI-Muncy were labeled "C.O.I. VACANCY--FEMALE" and addressed to "All Female C.O.I.'s."*fn4
In response to the Department's refusal to allow male guards to enter bids for certain guard assignments, the Union filed two grievances claiming that SCI-Muncy had violated the provisions of the collective bargaining agreement that prohibit sex-based discrimination and that require that positions at the prison be filled on the basis of seniority unless the operational needs of the institution dictate otherwise. The grievances, after initial rejection by the Department, were heard by an arbitrator by mutual consent of the parties.
After considering both the Department's policy guidelines and the collective bargaining agreement, the arbitrator concluded that the vacancy announcements which were restricted to females, violated the provisions of the agreement. The arbitrator recognized that the essential issue in the dispute was whether the gender-based distinctions drawn by SCI-Muncy were predicated on a "bona fide occupational qualification" ("BFOQ") and determined that they were not. See App. at 99. The arbitrator expressly rejected the Department's assertion that female prisoners have a privacy interest in not being viewed by male guards when undressed or when performing intimate bodily functions.
In reaching his conclusion, the arbitrator relied primarily on Griffin v. Michigan Dept. of Corrections, 654 F. Supp. 690, 30 Fair Empl. Prac. Cas. (BNA) 638 (E.D. Mich. 1982). In Griffin, the district court rejected the prison management's claim that inmates had a right to privacy that created a BFOQ for guard assignments, stating:
Defendant's [Department of Corrections] argument is without merit because (1) it assumes that inmates retain an unqualified protected right of privacy under the Constitution, and (2) it is based on a stereotypical sexual characterization that a viewing of an inmate while nude or performing bodily functions, by a member of the opposite sex, is intrinsically more odious than ...