PBA LOCAL 378 v. COUNTY OF SUSSEX, OFFICE SHERIFF

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0375-05T50375-05T5

PBA LOCAL 378,

Plaintiff-Appellant,

v.

COUNTY OF SUSSEX, OFFICE OF THE

SHERIFF,

Defendants-Respondents.

______________________________________

 

Argued May 8, 2006 - Decided May 30, 2006

Before Judges Miniman and Newman.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, SSX-L-216-04.

Sasha A. Wolf argued the cause for the appellant (Oxfeld Cohen, attorneys; Ms. Wolf on the brief).

Robert B. Campbell argued the cause for respondents (McDonnell, Lenard & Campbell, attorneys; Dennis R. McConnell, County Counsel, of counsel; Mr. Campbell, on the brief).

PER CURIAM

Plaintiff PBA Local 378 appeals from an order granting defendant County of Sussex, Office of the Sheriff's cross- motion for summary judgment dismissing plaintiff's complaint with prejudice. We affirm.

The facts herein are not in dispute even viewed in a light most favorable to plaintiff. They may be summarized as follows. Plaintiff is the collective bargaining unit for the corrections officers, sergeants and lieutenants at Sussex County's Keogh Dwyer Correctional Facility (the Facility). Plaintiff represents Officer Melanie Mitchell and Officer Margaret M. Zill, both members of Local 378. Plaintiff and defendant are parties to a collective bargaining agreement, currently in effect.

On July 25, 2000, Sheriff Robert Untig applied to the New Jersey Department of Personnel, Division of Equal Employment Opportunity and Affirmative Action (the Department), for gender-based Bona Fide Occupational Qualification (BFOQ) for female corrections officers that were needed to staff certain shifts at the Facility. On January 8, 2001 the Director of the Division approved the County's application.

On February 4, 2005 David DiMarco, the Undersheriff for the County of Sussex, applied for a second BFOQ to establish three additional female corrections officers positions to fill the day and afternoon shifts in the female cell block and intake/processing areas. Undersheriff DiMarco has managerial and supervisory responsibilities at the Facility, which includes the scheduling of shift assignments and regular days off (RDOs) for corrections officers. Undersheriff DiMarco certified in support of his application for a BFOQ that the gender of the corrections officer was a valid consideration for hiring and shift assignment purposes in the female cell block and processing area.

On April 18, 2005, the Department approved the BFOQ based on the justification set forth in the County's application. Neither Local 378 nor Officers Mitchell and Zill appealed the Department's grant of the BFOQ applications.

Officer Mitchell worked the Facility's afternoon shift from 3:00 p.m. to 11:00 p.m. From April 2001 until March 2004, Officer Mitchell had Friday and Saturday as her RDOs. In March 2004, a senior female officer was transferred to the afternoon shift, and Officer Mitchell's RDOs were changed from Friday and Saturday to Wednesday and Thursday.

Officer Mitchell asserts that she filed a grievance alleging that it was discriminatory for a male officer not to have their RDOs changed. There are two male officers with less seniority then Officer Mitchell on the afternoon shift. Officer Mitchell asserts that two less senior male officers who have Sunday and Mondays off did not have their RDOs changed.

Officer Zill worked the Facility's day shift from 7:00 a.m. to 3:00 p.m. In March 2003, Officer Zill was awarded Thursdays and Fridays as her RDOs based upon her seniority. In March 2004, Officer Zill's RDOs were changed to Wednesdays and Thursdays. With only ten female officers and three shifts per day, two shifts have only three officers working them and one shift has four officers. The sheriff does not permit female officers to have overlapping regular days off in order to have at least two officers on each shift at all times, presumably one for the female cell blocks and another for the female intake unit. This is the practice that plaintiffs attack, contending that seniority in title trumps gender in shift coverage.

PBA Local 378 filed a complaint against the County alleging an unlawful employment discrimination practice in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -12. Judge McGovern held that plaintiff failed to establish a prima facie showing of discrimination in violation of LAD, granted summary judgment in favor of defendant, and dismissed plaintiff's complaint.

In arriving at his decision, Judge McGovern paid special attention to the operative provisions of the collective bargaining agreement insofar as they were relevant to the BFOQs. Article 2 Seniority, Section 2, which he read into the record, provided in pertinent part:

For all other purposes, including shift transfers, assignments to Regular days off (RDO), and special programs, seniority is defined as time in grade (date of appointment in current title) in the County's Correctional Facility.

He also read Section 3 of Article 2 into the record:

Seniority will be one of several criteria used by management when making personnel assignments. Other criteria to be used include employee preferences, possession of necessary or desired skills, expertise, gender (where a bona fide occupational qualification) specialized training, experience, proven capability, attendance and need for cross-training among others. Where all other qualifications are equal, seniority shall be determinative.

Judge McGovern also considered and read into the record Article 8, Management, regarding managerial rights retained by the County regarding scheduling staff.

It is mutually understood and agreed that the Employer retains the prerogatives of management, including but not limited to the rights of hiring, suspending, disciplining, or discharging for proper cause, promoting, transferring, and scheduling employees; to determine the standards of service to be offered by its agencies; to take necessary action in emergencies; to determine the standards of selection of employment; to maintain the efficiency of its operations are to be conducted; to introduce new or different methods of operating . . . .

Applying the Department approved BFOQs and in accordance with the collective bargaining agreement, Judge McGovern held that plaintiff failed to meet its burden of proof to establish that the RDO changes of Officers Mitchell and Zill were retaliatory or discriminatory. In rejecting plaintiff's claim of discrimination, Judge McGovern stated the following:

Quite frankly it is difficult for this Court to find even a colorable plan of discrimination by the Defendant given the facts in this case. While one can understand that the officers in question may be upset because they have had a particular RDO schedule for a significant period of time and understandably this causes disruption in their personal schedule and in their personal life, the collective bargaining agreement gives the Defendant, in the estimation of this Court, the managerial discretion and prerogative to reassign employees, in this case female correction officers, to provide adequate coverage for the smooth, safe and efficient operation of the correctional facility.

Judge McGovern also recognized that there was a shortage of female corrections officers, but that defendant was trying to fill new positions while experiencing difficulty in finding qualified candidates. Given the personnel limitations, Judge McGovern was convinced that defendant properly exercised its management prerogatives in order to operate its facility "in a safe, secure and efficient manner."

On appeal, plaintiff contends: (1) that the trial judge misapplied the law by holding that defendant's good faith efforts to hire additional female corrections officers shielded it from liability under the LAD, and (2) the court erred in holding that a valid BFOQ would allow defendant to contravene the collectively bargained right of corrections officers to use their seniority for preference of RDOs.

We reject defendant's arguments and affirm substantially for the reasons expressed by Judge McGovern in his comprehensive oral decision of August 11, 2005. We add however, the following brief comments.

To the extent that plaintiff contends that Judge McGovern misapplied the standard, we disagree. Judge McGovern found that plaintiff did not make a prima facie showing of discrimination given the facts presented. The reference to the good faith effort to fill the additional female positions at the facility was only made to underscore the fact that the shortage in the number of female corrections officers employees may only be temporary.

With regard to the validity of the BFOQ, it was clear that the Department of Personnel had approved the BFOQ's which were not limited merely to hiring but were necessary to fulfill the functions required of corrections officers in the prison, including pat-down searches and strip searches. Indeed, the collective bargaining agreement expressly recognized under section 3 of Article 2 "gender (where a bona fide occupational qualification)" as criterion to be used in making personnel assignments. Only where all qualifications were equal was seniority to be used as a tie-breaker. Here, a BFOQ was a recognized preference. Thus, where the corrections officers, among other duties, are expected to perform strip searches, including genital touching and also observe female inmates while showering, the privacy interest of the inmates, limited though they may be, would prevail over the corrections officers' desire to be free of gender-based discrimination in RDOs or work assignments.

Affirmed.

 

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A-0375-05T5

May 30, 2006