The opinion
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
TOM NOWACKI and All Others Similarly Situated, UNPUBLISHED
September 21, 2023
Plaintiffs-Appellants,
v No. 361201
Washtenaw Circuit Court
DEPARTMENT OF CORRECTIONS, LC No. 11-000852-CD
Defendant-Appellee.
Before: GLEICHER, C.J., and JANSEN and RICK, JJ.
PER CURIAM.
Sexual abuse perpetrated by male corrections officers (COs) on female inmates precipitated
lengthy and costly litigation in federal and Michigan courts. Class action settlements reached in
more than one case granted recovery and promised protection to Michigan’s female prisoners. The
settlements triggered the adoption of special job descriptions for many positions in Michigan’s
female-only prisons requiring that certain positions be filled only by female COs. These job
descriptions are known as bona fide occupational qualifications (BFOQs). These BFOQs have
been affirmed by Michigan and federal courts.
Circumstances have changed over time. Michigan now incarcerates all female prisoners
in one prison. That prison includes both housing and nonhousing units. Tom Nowacki, on behalf
of a class of male COs, filed suit to challenge BFOQs restricting the employment of male COs in
many areas of the Women’s Huron Valley Correctional Facility (WHV). As of this appeal, the
challenges are limited to certain positions in nonhousing units, such as the cafeteria, gym, and
classrooms.
The parties zealously battled over whether the Department of Corrections (DOC) met its
steep burden of supporting the gender-based distinctions. The circuit court found that the DOC
had met its burden, denied Nowacki’s motions for partial summary disposition and directed
verdict, and took judicial notice of the validity of the BFOQs at trial. The court also rejected
Nowacki’s motion for judgment notwithstanding the verdict (JNOV) after the jury found in the
DOC’s favor.
We discern no error and affirm.
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I. BACKGROUND
Before 2009, several lawsuits were brought against [the DOC] alleging that
some of its staff were sexually abusing female prisoners. Settlement agreements
were reached in these cases. In response [the DOC] sought, and the Michigan Civil
Service Commission [MCSC] approved, the use of [BFOQs], which ensured that
only women could be employed for certain positions at [WHV]. [Nowacki v Dep’t
of Corrections, unpublished per curiam opinion of the Court of Appeals, issued
August 19, 2014 (Docket No. 315969) (Nowacki I), slip op at 1, lv den 498 Mich
859 (2015).]
The initial BFOQs applied to approximately 250 housing-unit positions in Michigan
women’s prisons. Once the DOC consolidated all female prisoners at WHV, it realized that certain
newly created positions in nonhousing units carried the same risks of sexual impropriety.
Specifically, some positions placed prisoners in isolated situations with guards, allowing guards
to observe prisoners in a state of undress, or requiring them to conduct pat-down searches. In
March 2009, DOC Operations Support Administrator Gary Manns requested permission of the
MCSC to adopt additional BFOQs, stating:
If approved, this will result in the utilization of only female staff in positions with
regular work assignments that affects the privacy and security of female prisoners.
Custody and security duties include those that affect the privacy of female prisoners
such as observance of showers, dressing and undressing, use of toilet facilities, and
conducting multiple daily searches, including clothed body and unclothed strip
searches. . . .
The mission of the []DOC is to provide a safe and secure environment,
while respecting the privacy of prisoners, and to provide staffing which is consistent
with the appropriate federal and state laws regarding equal employment
opportunity. The []DOC has been involved with litigation involving alleged sexual
misconduct between male staff and female prisoners and their privacy rights. This
litigation, along with the []DOC’s desire to maximize the safety and security of its
staff and prisoners, has demonstrated the critical need to expand a limited number
of BFOQ positions. Each of the identified positions is either an isolated position,
involves potential privacy concerns on the part of the prisoners, or requires an
officer to conduct pat-down searches on the female prisoners. Thus, each position
touches on the []DOC’s legitimate concerns of safety, security, and privacy.
The [DOC] has made a number of changes responding to allegations of
inappropriate behavior and complaints regarding privacy of female prisoners.
These include physical plant modification, policy, procedure, and employee
handbook changes, improvements in staff training, staffing level increases, and
improved prisoner education. Notwithstanding these changes, however, the [DOC]
has determined that additional steps would further increase the safety and security
of its staff and prisoners. The []DOC has reasonably concluded that the BFOQ
positions would accomplish the issues at hand – the security of the prison, the safety
of prisoners, and the protection of the privacy rights of prisoners.
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Manns requested certain nonhousing-unit positions be designated as female-only, including in the
industries building, healthcare and medical transport, classrooms, food service areas, the control
center, property room, and prisoner intake. The MCSC approved these additional BFOQs.
Tom Nowacki filed suit in 2011, alleging that the DOC violated the Elliott-Larsen Civil
Rights Act, MCL 37.2101 et seq., by applying the BFOQs “over broadly, improperly denying him
and other men opportunities for various job assignments and overtime work.” Id. The circuit court
certified a class action and this Court affirmed. Id.
Trial was a long time coming. Following this Court’s affirmance of the class certification,
the DOC “transferred the equitable and declaratory claims to the Court of Claims . . ., leaving the
claims for monetary damages pending and stayed in the circuit court.” Nowacki v Dep’t of
Corrections, 319 Mich App 144, 146; 900 NW2d 154 (2017) (Nowacki II). Nowacki voluntarily
dismissed the equitable and declaratory counts to allow the monetary damages claims to proceed
in the circuit court. Id. at 148. The DOC appealed the dismissal, but this Court affirmed in
Nowacki II.
Shortly after Nowacki II, the DOC discontinued eight of the 11 challenged nonhousing-
unit BFOQs. In notifying the MCSC of this change, DOC Human Resources Director Tony Lopez
explained:
[W]ith the continuing technological advances that have been made at [WHV] since
the original approval for the BFOQs was granted, primarily the placement of over
1,300 cameras throughout the facility, monitoring of cameras and high capacity
storage recorders, the [DOC] does not believe that some of the previously approved
BFOQs remain necessary.
Once back in the circuit court, the parties filed countermotions for summary disposition
under MCR 2.116(C)(10). The DOC asserted that the validity of the gender-based distinctions in
the 2009 nonhousing-unit BFOQs had been established by the many judicial approvals of the
housing-unit BFOQs. And the need for the new BFOQs was supported by the history of sexual
abuse that lead to several lawsuits and settlement agreements involving the DOC. The DOC
emphasized that 233 additional complaints of sexual abuse, harassment, and “over familiarization”
had been raised between 2004 and 2009. Since the implementation of the 2009 BFOQs, less than
50 such complaints had been filed. The DOC described that the BFOQs were developed by a
group of DOC administrators using the criteria set forth by the United States Court of Appeals for
the Sixth Circuit in Everson v Dep’t of Corrections, 391 F3d 737 (CA 6, 2004).
Nowacki, on other hand, contended that the DOC’s arguments were red herrings. Nowacki
asserted that the housing-unit BFOQs alone reduced the number of complaints, that the DOC
pretextually added new strip-search and pat-down duties into job descriptions in nonhousing
positions, and that prisoners were never in a state of undress in the food-service, classrooms, gym,
or other nonhousing units. Nowacki further argued that Everson was inapplicable as its reasoning
applied to housing-unit BFOQs. Most importantly, Nowacki insisted that the DOC was required
to present the actual decisionmakers behind the 2009 BFOQs and yet could not identify them.
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The circuit court denied both parties’ motions, reasoning “that there are genuine issues of
material fact regarding whether the BFOQs at issue violate the Elliott-Larsen Civil Rights Act.”
The DOC filed an interlocutory application for leave to appeal, but this Court denied it “for failure
to persuade the Court of the need for immediate appellate review.” Nowacki v Dep’t of
Corrections, unpublished order of the Court of Appeals, entered August 23, 2018 (Docket No.
342317).
Moving forward, Nowacki filed a motion in limine “to exclude after-the-fact justifications
for BFOQs.” Nowacki argued, “To justify gender classifications like the BFOQ female-only
positions at issue here, the law requires proof of the actual decision-makers’ justification.”
Relying on federal cases, Nowacki argued that the DOC could not cite “hypothesized or invented
post hoc” justifications “in response to litigation.” Nowacki complained that the individuals
identified by the DOC “admitted that they played no role in developing the BFOQs” and the actual
decisionmakers had not been identified. Accordingly, Nowacki sought exclusion of the testimony
of several high-level DOC and WHV administrators. Without this evidence, Nowacki contended,
“there is no question of fact on the issue.”
The DOC complained that Nowacki’s motion to preclude evidence was actually a renewed
motion for summary disposition. The DOC further contended that the witnesses did not provide
inadmissible after-the-fact justifications for the BFOQ classifications. Rather, the experienced
witnesses described the day-to-day operation of a prison, the duties required in the challenged
positions, and why the institution determined that the gender distinctions were required.
The DOC also filed its own motion in limine to preclude Nowacki from arguing that the
DOC’s 2016 abolishment of eight nonhousing-unit BFOQ classifications was evidence that the
BFOQs were not supportable when adopted in 2009. The DOC further sought to prevent the
admission of evidence that the United States Department of Justice (DOJ) had filed suit against
the DOC on behalf of female COs at WHV.
The circuit court did not contemporaneously consider the parties’ motions. Instead, the
trial was adjourned several times and settlement attempted. The DOC renewed its motion to
exclude evidence in 2021, while Nowacki raised his arguments anew in his trial brief. The court
again did not resolve the parties’ requests.
At trial, various COs at WHV, both male and female, described that male officers had been
transferred to other positions as a result of the BFOQs and had lost overtime opportunities. These
witnesses offered several reasons the BFOQs were unnecessary.
First, the witnesses claimed the DOC artificially inserted pat-down and strip-search
requirements into job descriptions that had not previously included those duties. Even for positions
that did require pat-downs, the witnesses asserted that male COs could fulfill the job requirements
by requesting the assistance of a female CO or rover. This “team approach” had been used for
years without incident and without noticeable delays, the witnesses testified. Moreover, strip
searches were never conducted in any nonhousing unit. If a strip search was required, a CO would
escort the prisoner to the designated strip-search area, which had always been staffed by female
COs. Indeed, two COs testified that they had never seen a prisoner in a state of undress in many
of the BFOQ positions.
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Second, the witnesses contended that WHV had a state-of-the-art video and audio
recording system with high resolution cameras covering almost every inch of the facility. These
cameras made it nearly impossible to stumble into a secluded area or one-on-one situation with a
prisoner. The witnesses asserted that this system was in place in 2009 and that there had been no
“dramatic improvement in the cameras” between 2009 and 2016, when the DOC relied on the
camera system to discontinue eight of the 11 nonhousing-unit BFOQs.
Third, Nowacki contended that the 2009 BFOQs were not supportable because the
concerning misconduct had occurred at three since-shuttered facilities, not at WHV. Nowacki and
another CO opined that there were no issues at WHV and “the facility operated just fine” between
2005 and 2011.
Fourth, the witnesses pointed to their training in avoiding one-on-one and secluded
encounters with female prisoners. The witnesses insisted that the BFOQs were unnecessary
because the COs were trained not to fall into situations in which they could be accused of sexual
impropriety.
Finally, the witnesses testified that the BFOQs could not be supported because the DOC
could not present testimony from individuals who were actually involved in the decision-making
process.
The DOC presented the various settlements, judgments, and reports related to the prior
lawsuits involving sexual misconduct at Michigan’s women’s prisons. The first settlement reached
was in the United States District Court for the Eastern District of Michigan in United States v State
of Michigan, Docket No. 97-CVB-71514-BDT. The May 25, 1999 settlement arose from a lawsuit
filed on behalf of female prisoners, in part, based on a violation of their right “to be free from
sexual misconduct and unlawful invasions of privacy. . . .” The DOC agreed to “revise its current
policies and procedures relating to sexual misconduct, sexual harassment, overfamiliarity, and
other concepts encompassed by this Settlement Agreement.” One change was to prescreen
employment candidates and use “reasonable measures to determine applicants’ fitness to work in
a female facility prior to hiring correctional staff for a women’s facility.” Increased staff training,
prisoner education, and protections for prisoners reporting sexual abuse were promised. The
settlement agreement continued:
A. Minimization of One on One Situations. []DOC will implement a new
policy that restricts inmates and male staff from being alone in one-on-one
situations together . . . in areas not clearly visible to inmates or other staff, with the
following exceptions: emergencies, medical care, counseling, questioning during
investigations, and reporting of confidential information.
B. Minimization of Access to Secluded Areas. []DOC has and will
continue to take reasonable measures to eliminate access to secluded areas that are
not necessary to the operation of [the women’s prison].
C. Monitoring/Protection For Secluded Areas. []DOC has and will
continue to increase the visibility and observability of secluded areas . . . to which
inmates have access, including, but not limited to, retrofitting as necessary doors
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with windows, screens, or other devices which will facilitate surveillance, installing
convex mirrors to provide a line of sight beyond areas not viewable from front door
windows or other observation points, and rekeying to further restrict access to
secluded areas. []DOC will require that supervisors conduct rounds of such areas
at periodic intervals sufficient to guard against sexual misconduct, sexual
harassment, overfamiliarity or other conduct prohibited by policies establish
pursuant to this Agreement.
* * *
H. Staffing. Within [90] days after execution of this Settlement Agreement,
[]DOC will conduct a staffing study to explore the feasibility of: 1) redeploying
[COs] to increase the presence of female [COs] in the housing units at the [women’s
prisons]; and 2) rotating staff assignments to housing units at [the women’s
prisons]. If feasible, []DOC will develop and implement a plan consistent with this
study.
New knock-and-announce procedures would be implemented in “areas where inmates normally
could be in a state of undress.” Relating to pat-down searches, the settlement agreement provided:
Absent exigent circumstances or a reasonable suspicion that the inmate is
in possession of contraband, and subject to legitimate penological concerns, pat
down searches of female inmates will only be conducted by female [COs] during
an evaluation period of at least six months. During the evaluation period []DOC
will (a) conduct training and make any needed policy revisions to further clarify
that pat down searches are not used to sexually harass inmates, and (b) evaluate the
feasibility of modifying or eliminating the current requirement of five daily pat
down searches per [CO]. Should the []DOC decide to resume the routine search of
inmates by male [COs], institutional management will routinely observe line staff
conducting pat down searches and give instruction or guidance as needed.
In June 2000, an expert hired by the DOC, Michael J. Mahoney, presented a report “to
determine whether certain custody positions at MDOC women’s facilities should be filled only by
female custody staff or if there is a less intrusive means to ensure the safety and reasonable privacy
needs of female inmates.” Mahoney considered the completed litigation in United States v State
of Michigan, and the ongoing litigation in Nunn v Mich Dep’t of Corrections and Neal v Mich
Dep’t of Corrections, which will be discussed below. Mahoney noted:
When allegations of inappropriate sexual behaviors are made against staff,
the staff person identified is generally removed from their assignment and placed
into a non-inmate contact assignment . . . and negatively labeled. Similarly,
prisoners who make such allegations claim fear of retaliation by corrections
staff. . . . Prisoners can suffer the consequences of disciplinary charges for
allegations that are unfounded.
Mahoney outlined the changes already made by the DOC, such as reconfiguring showering,
toilet, and dressing areas, and limiting access to areas without adequate visibility. Mahoney further
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noted the change in pat-down procedures and knock-and-announce rules, new prescreening
practices, staff training, and prisoner education.
Mahoney recommended:
There are legitimate penological reasons for having only women staff supervise
female prisoners in limited situations. These include:
o Same sex supervision would reduce the likelihood of sexual misconduct. In
most correctional facilities, the majority of sexual misconduct activities and
allegations involved male staff and female prisoners. Utilization of female
supervision of female prisoners in limited but specific areas of vulnerability
will reduce the likelihood of such incidents.
o The reduction of the potential or fear of sexual misconduct will enhance the
[]DOC’s ability to achieve the mission and essence of the [DOC].
o Observation is the key to supervising prisoners. Male staff, in supervising
housing units where women change clothes, shower and use the toilet
facilities, are sometimes reluctant to discharge these responsibilities
because of their natural aversion to observing such activities. If they act on
this natural reluctance, it provides for less security. If they actively pursue
these visual activities, then it creates the potential for problems.
o Housing units are where the most long-term and isolated continuing
contacts between staff and prisoners occur. [COs] working in housing units
tend to be assigned there for longer periods of time and tend to be isolated
during the evening and night work hours. These situations can provide
opportunities for relationships between staff and prisoners which can lead
to over-familiarity and sexual misconduct. Female only staff in female
housing units would reduce the likelihood of such occurrences.
* * *
Additional employee concerns relevant to this issue include the reduction
of the fear of male staff from retaliation by the filing of false complaints by female
prisoners against them for pat-down searches, visual observations and other
activities. The removal of male staff from these limited assignments reduces the
probability of false claims by prisoners of sexual misconduct and the reassignment
of staff pending the outcome of the investigation.
. . . Current policy pursuant to policy variance issued by the Director
requires that only female staff members shall pat-down search female prisoners at
the female facilities. More female staff available in the female facilities will result
in more pat-down searches and better security.
Problems have been identified since the new policy on the moratorium of
male pat-down searches of female prisoners have occurred. Instances of increased
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levels of contraband, decrease in staff morale, and perceptions of a lessening of
security have occurred.
Assuming the continuation of this pat-down policy, there should be an
increase in female staff available to conduct them in a professional manner.
Ultimately, Mahoney concluded that female-only staff should be used in housing, segregation, and
intake units.
Nunn v Mich Dep’t of Corrections was a private lawsuit filed in 1996 by female prisoners
in Michigan’s women’s prisons, alleging sexual abuse and sexual misconduct. The parties entered
into a settlement agreement on July 31, 2000, requiring the DOC to “develop and maintain one
policy which implements prohibitions against sexual misconduct, sexual harassment, and
retaliation, and identifies the reporting and complaint mechanisms, the investigation procedures
and discipline for sexual misconduct, sexual harassment, and retaliation.” The settlement further
required screening of job applicants and current employees, additional staff training, and prisoner
education.
The Nunn settlement required the maintenance of “a written procedure that restricts male
staff from being alone in one-on-one situations with prisoners at facilities and centers in areas not
clearly visible to prisoners or other staff,” and to “maintain reasonable measures to eliminate
prisoner access to secluded areas that are not necessary to the operation of the facility or center.”
The DOC was required to institute “a tracking system to store allegations and information” about
sexual misconduct claims, “whether substantiated or not.” And “[a]bsent emergency
circumstances or a reasonable suspicion that the prisoner is in possession of contraband, pat down
searches of prisoners [would] only be conducted by female [COs] during an evaluation period of
at least [12] months.” The DOC was required “to limit the assignment of staff in facility housing
units to female [COs],” and any male entering the area was directed to sign in and knock and
announce his presence. “Except when a female [CO] is not available and immediate transport is
deemed necessary, at least one female [CO] [would] be assigned to transport a prisoner.” Further,
“[o]n medical runs where it is probable the prisoner will be seen fully or partially nude, no male
[CO] [could] remain in the examination room absent an emergency or a request from the
examining physician.” Additional stringent reporting, antiretaliation, investigation, discipline, and
victim treatment duties were imposed on the DOC.
The United States Sixth Circuit Court of Appeals decision in Everson v Dep’t of
Corrections, 391 F3d 737, 739 (CA 6, 2004), was released on December 3, 2004, following a
lawsuit filed by male and female COs challenging the creation of 250 female-only BFOQ positions
in Michigan’s women’s prisons. These included all housing-unit positions, as well as nonhousing-
unit intake and transportation officers. Intake officers were required to strip search new prisoners,
as well as supervise them as they showered. Transportation officers took female prisoners to
medical appointments and assisted restrained prisoners with toileting. Id. at 740. The Court
described studies uncovering sexual abuse and misconduct against female prisoners in Michigan
prisons by male staff. Id. at 741. The Everson Court continued by discussing the Neal, Nunn, and
United States lawsuits, as well as an investigation by the DOJ, and the promises made by the DOC
in connection with those disputes. Id. at 742-744. The Court discussed the 1998 creation of a
Gender Specific Assignment Committee, which “recommended gender-specific assignments to
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certain tasks, such as strip searches, pat-down searches, and urine collection.” Id. at 744. That
committee did not recommend female-only staffing in housing units, instead promoting the use of
teams of female and male COs. Id. The Court outlined two expert studies commissioned by the
DOC to further consider classifying positions as gender specific. Id. at 744-745.
The federal district court invalidated the BFOQs, finding that there were reasonable
alternatives to the gender-based distinctions. Id. at 747. After outlining the standards for
reviewing a BFOQ, id. at 747-749, the Court overruled the district court, concluding, “Though it
did not exhaust its institutional resources, the []DOC made a considered decision that a BFOQ was
necessary to address the grave problems of sexual abuse of female inmates.” Id. at 751. The DOC
made its decision only after commissioning several studies and negotiating several settlements.
“Clearly, the []DOC’s plan was the product of a reasoned decision-making process.” Id. at 752
(quotation marks and citation omitted). The Court specifically cautioned against court interference
limiting the DOC’s “freedom to evolve and innovate.” Id. at 752-753.
The Everson Court held, “[T]he exclusion of males from these positions is ‘reasonably
necessary’ to ‘the normal operation’ of the []DOC’s female facilities” as they “would materially
advance a constellation of interests related to the ‘essence’ of the []DOC’s business,” specifically
security, safety, and the protection of privacy rights. Id. at 753. Alternatives had been considered
and were deemed inadequate to protect both the female prisoners and the male COs. Id. at 753-
754.
The Everson Court also described the statistics that had been presented in the litigation.
Somewhere between 39% and 57% of sexual misconduct arose in the housing units. Id. at 755.
(Relevant to the current matter, 43% to 61% happened outside of the housing units.) The Court
held that the DOC established that the exclusion of male COs from the housing units would
“decrease the likelihood of sexual abuse.” Id. Although no measure could completely eradicate
risks, the DOC proved that this measure was necessary to make any headway. Id. at 756. The
Sixth Circuit concluded that “given the endemic problem of sexual abuse in Michigan’s female
facilities, given the constellation of issues addressed by the MDOC’s plan (security, safety, and
privacy), and given the deference accorded the MDOC’s judgment, the MDOC’s plan is
reasonably necessary to the normal operation of its female prisons.” Id. at 761.
Several years later, an arbitration award entered following a grievance filed by the
Michigan Corrections Organization against the DOC on October 3, 2006. The grievance was filed
following the settlement in United States v State of Michigan and challenged the creation of
female-only housing-unit BFOQs and restrictions on pat-down and strip searches. The DOC had
recently expanded the limitations to other positions. Of particular interest were the connected
“gate” and “bubble” positions. The DOC determined that at least one position must be filled by a
female. As the bubble officer was then male, the gate position had to be filled by a female despite
that no BFOQ had been approved. The arbitrator agreed that “the vast majority of positions” at
the women’s prison were “female only BFOQ’s,” leading to “limited opportunities for male COs
to obtain regular or overtime assignments.” The arbitrator found no legal impediment to
designating the gate position as a female-only BFOQ position as well, but ruled that the warden
had to go through the proper channels. In supporting this ruling, the arbitrator relied on the
testimony of DOC officials that the “team approach” of pulling a female CO from another location
to assist a male CO in a pat-down search “would be disruptive and impractical.”
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Finally, a settlement agreement was reached in the 1996 lawsuit filed in Neal v Mich Dep’t
of Corrections on July 15, 2009. This settlement paid out millions of dollars to several female
prisoner class members in exchange for dismissal of their claims arising from sexual misconduct
they faced while in Michigan’s women’s prisons. In relation to the class members’ claims for
equitable relief, the DOC
believe[d] it has implemented policy and training changes to improve its
investigations of grievances and complaints related to sexual assaults and sexual
harassment by male []DOC staff against female prisoners over the course of several
years, beginning in 2000. Most particularly, beginning in 2006, under this
administration, [the DOC] made significant changes in the staffing of the housing
units in female correctional facilities to specifically address and reduce sexual
assaults and sexual harassment by male staff toward female prisoners.
The DOC agreed to implement additional protections, including informing complainants when
investigations are completed, advising prisoners that assault claims may be filed with the police,
establishing a retaliation review committee, forbidding the issuance of misconduct tickets for filing
a complaint “which is not sustained, unless it is shown by a preponderance of the evidence that the
complaint was intentionally false,” providing counseling and psychological treatment for abuse
victims, creating counseling groups, referring sexual abuse and harassment grievances to internal
affairs, and appointing a staff member to review “the Prison Rape Elimination Act (PREA) Report
and Recommended Standards for reducing rape and sexual misconduct in correctional facilities.”
Lopez served as the DOC’s lead witness. Although Lopez was not involved in drafting the
2009 BFOQs, his direct superior Gary Manns, was. Lopez was involved in many meetings leading
up to the settlement agreements and judgments in the prior suits related to sexual abuse in the
prison system and the housing-unit BFOQs, and he was tasked with communicating with the
corrections officer union about these decisions. Lopez served on a committee in connection with
a settlement with the DOJ. “The committee was to review assignments within the correctional
facilities for feasibly making them gender specific and then evaluating the positive and negative
impacts such . . . assignments would have on the work force.”
With regard to the various settlement agreements and the BFOQs, Lopez asserted that the
DOC had two goals: “to minimize the impact on the affected employees” and “the protection of
female prisoners.” Lopez summarized that the focus in the DOJ settlement was “observation by
supervisors,” but things got “stronger” in other matters. In the Nunn settlement, for example, pat-
down searches of female prisoners by male COs was forbidden. During the Nunn negotiations,
the DOC “talked about redeploying . . . female staff to housing units,” “covering positions with
female” COs, “additional recruitment for female [COs],” and additional training for staff at female
prisons. The DOC commissioned an expert report by Michael Mahoney “to explore the feasibility
of BFOQs.” Lopez asserted that the 2009 BFOQs were recommended “in response to” litigation
involving the DOJ and Nunn. The Neal settlement was not reached until after the BFOQs were
submitted to the MCSC, but the negotiations in that action played a role as well. Lopez asserted
that the DOC was also “guided by the [Everson] decision.”
Lopez attended the arbitration hearings in the union grievance matter regarding the BFOQ
for the “gate” position. Lopez noted that prisoners travel through these gates from a secure
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perimeter to other units. Traffic of female prisoners is “on a continuous basis almost” at that
position. And pat-down searches were required at each passing. Accordingly, the DOC
determined that that gate must be staffed with a female CO. Lopez noted that the arbitrator
determined that the “team approach” would not work, finding “repeatedly pulling female
employees from other critical assignments to supplement the work, [‘]shakedowns[’], . . . of a male
gate employee would be disruptive and impractical.”
Lopez drafted the 2009 letter from Manns to the MCSC seeking to implement the 11
challenged BFOQs. The letter “was drafted after discussions with the . . . correctional facility
administration about the need for additional BFOQ positions to address the continuing complaints
of sexual misconduct by male [COs] against female inmates.” In drafting the letter, Lopez relied
on discussions surrounding the Neal settlement, the DOJ and Nunn settlements, the Everson
resolution, the Mahoney report, and a gender-based classification study.
Lopez further testified that the DOC had considered alternatives to imposing BFOQs. The
DOC continually improved the surveillance system until it reached a point that most of the
challenged BFOQs could be withdrawn. The DOC considered relying on the team approach to
searches, but determined “it was disruptive, pulling females from other - - their work areas because
you might have to close that position down or maybe get someone else from another area, you
know, from a further away area to cover that position.” The team approach was ultimately too
expensive. The facilities also changed the configuration of the showers and toilet stalls to provide
as much privacy as could be safely handled.
Before drafting Manns’s 2016 letter requesting to discontinue eight BFOQs, Lopez visited
WHV and observed the camera system. By that time, more than 1,000 additional cameras had
been installed. The technology included “high capacity fiberoptic lines” and high-capacity storage
so information could be saved for the protection of both the COs and the prisoners.
When asked on cross-examination to explain how the other case negotiations were used to
support the BFOQs, Lopez testified:
[W]e had numerous meetings with the facility correction administration,
that’s the administration that the facilities report up through. We had meetings with
Warden Warren and facility administration administrators and Neal was brought up
in those discussions saying that we’re in the process of negotiating under [Neal]
and we need to get these BFOQs.
So it wasn’t just [Nunn] or USA, [Neal] was brought into those because they
were having - - which I wasn’t involved with, but the individuals that were . . .
meeting with me saying we’re over here looking at potential settlement, and it’s
because of the claims by inmates under [Neal] that they were still being subject to
sexual harassment, abuse, misconduct, privacy. So that was a consideration I guess
I want to say.
Lopez denied that the DOC was attempting to remove all male COs from WHV. When
asked, “Do you think it’s fair to penalize male [COs] in 2009 for what unrelated people did in the
1990s,” Lopez responded:
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What I think is fair is to ensure the safety of the prison and the rights of the
inmates, you know, to a certain degree, they are inmates, but any individual should
be free from sexual harassment, sexual abuse, privacy issues, and sexual
misconduct. And we tried to identify those individuals that did this and we did it
to the best of our ability.
The DOC also presented the testimony of Edward Vallard, a 36-year employee of the
department who retired as the physical plant division administrator. Vallard testified that the DOC
began a multi-million-dollar project in 2009 to replace the “analog CCTV type cameras” located
in the WHV facility. The images captured by this system were of lower resolution and the system
had only 30 days of storage. The upgrade project lasted from 2009 through 2018. The goal was
to achieve “as much coverage” as possible to “provide safety and security to prisoners [and] staff.”
Vallard testified that the COs in the building would certainly know that cameras were being
installed, but would not necessarily have known that the system was not fully operational. By
2016, there were over 2,000 cameras installed at WHV.
Tonya Allen transferred to WHV as a captain in 2012. At the time of trial, she was the
Assistant Deputy Warden at the facility. Allen testified that the goals of the DOC and the BFOQs
were to protect both the prisoners and the staff. The BFOQs “prevented and eliminated the male
staff and the female prisoner from being one on one” and “[t]he camera system allowed” the staff
to “supervise and monitor where [they] weren’t always physically able to be.” Allen further
described that during her tenure at WHV, the number, quality, and coverage of cameras increased,
leading to the discontinuance of some BFOQs in 2016. Allen opined that there was a lack of
reasonable alternatives to the BFOQss until the camera system was completed:
Q. Prior to the camera system being substantially completed in your view
were there any practical or reasonable alternatives to the BFOQs in terms of
fulfilling these objectives?
A. If there is, I don’t know of one. I mean we had 2,200 prisoners. Our
facility is almost two acres. As a captain and a shift supervisor, you know, just
rounding to the different areas I have 150 staff, 12 supervisors. I means it’s - - it’s
busy, it’s ongoing. We can’t be everywhere all the time, so I think it was a great
tool for us, you know, to help monitor the cameras, record so we can, you known,
go back and see if something happened or didn’t happen so.
Q. How would you respond to the Plaintiffs’ claim that the team approach
would be a reasonable alternative to BFOQs before the camera system was
substantially upgraded?
A. Well, you know, the female [COs] complained that the male [COs] are
not doing enough as it is to be quite honest. Their assignments are the programming
assignments, the yard assignments where they, you know, they can move about and
they’re not as restricted time wise whereas the female [CO] has to be on their
assignment, in a specific place all of the time; so to have them further assist, I mean,
we all work together as a team don’t get me wrong but to have the female [CO]
now do the male’s job would be a big problem.
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While Allen admitted that there was less overtime available for male COs following the BFOQs,
Allen found it “ridiculous” to accuse the DOC of generating the BFOQs for that purpose. Allen
conceded that she was not involved in creating the BFOQs, asserting that they were a collaboration
between the DOC and MCSC. When pressed by Nowacki’s attorney to explain why the BFOQs
were created and continued despite a lack of more recent substantiated claims of abuse, Allen
responded that “unsubstantiated” does not mean the abuse did not occur, only that it could not be
proven.
DOC Assistant Deputy Director Shawn Brewer had moved up the ranks for 25 years, but
worked at WHV for a period of time ending in 2020. Brewer described that based on the earlier
lawsuits, the DOC determined that they should not have male COs conduct pat-down searches, or
work in areas where they could potentially be isolated with a female prisoner or in areas where the
female prisoners could be in a state of undress. Medical areas required female COs as the prisoners
could be in a state of undress. Food services was an “extremely large” area with a danger of being
secluded one-on-one with a prisoner. Further, the COs were required to pat down the prisoners
working in that area upon their departure. The classrooms were often staffed with only one person,
creating a danger of being alone with a prisoner. Electronic monitoring in the control center
required a female CO as the video feeds could show an inmate in a state of undress. The property
room was a small, confined space with the possibility of seclusion. That area had been moved,
however, eliminating the dangers posed. The gate position required a female CO because full
body searches could be required not only of female prisoners, but also of visitors and vendors.
According to Brewer, the main reason the nonhousing-unit BFOQs could be eliminated in
2016 was the improvement of the camera system:
When I arrived at WHV I began sitting in on the construction meetings . . . .
The goal when I go there was to enhance the quality of the cameras in this
project to eliminate isolated or blind spot areas, so there was an extensive review
of where cameras were placed and/or which way they were focused. A continual
video evidence recording of the entire perimeter, entrances into doors or housing
units and unique to WHV is like porter closets have cameras in them, stairwells
have cameras in them, basements have cameras in them. And then audio. The male
prisons do not have audio recording. The areas inside the housing units and inside
the buildings of WHV have audio recording as well, which is totally different than
the males. And then there was a need for a large increase of the retention system
for that empirical evidence if you will. The system when it was first installed before
I got to WHV was good as it was when it was installed we know that technology
dates itself very quickly, so it became quite cumbersome to pull so this included a
much larger and more centralized retention for that evidence.
Brewer asserted that the team approach was not a reasonable alternative to the BFOQs:
[T]he thought of two persons working side by side seeing the same things
and having the same interactions throughout an entire shift is impractical.
Somebody has to have a meal; both of them can’t go. Somebody could let a
prisoner into an isolated area - - it’s just not practical. And then the recruiting
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element would add a huge financial burden to a facility’s operating costs. It would
double each of those identified assignments. It would go from one full-time
employee to two and then when you consider the relief factors into the custodial
assignment, it would be a very large financial impact for the operating procedures
or costs.
Brewer also asserted that just because the prison did not have a log of substantiated abuse claims
after 2004, did not mean abuse had not occurred or that the BFOQs were unnecessary. “They
could report it through their family or through an outside advocacy group, to an outside attorney.”
In such cases, WHV would have no record.
At the end of the trial, Nowacki sought a directed verdict on the DOC’s BFOQ affirmative
defense. Nowacki summarized that the DOC was required to establish that “the BFOQs were
reasonably necessary to the operation of the prison,” that “the BFOQs were central to the mission
of the” DOC, and that the DOC considered other alternatives. Nowacki contended that the DOC
had produced no evidence to establish the DOC’s motivation for creating the 2009 BFOQs. The
circuit court denied Nowacki’s motion.
Before trial, the DOC had requested that the court take judicial notice of certain facts
ascertained in the earlier related proceedings. The court granted this request midway through the
trial with revisions and over Nowacki’s objections. As a result, the court instructed the jury as
follows:
In this case you must accept the fact that the Sixth Circuit Court of [A]ppeals
approved the []DOC’s implementation of [BFOQs] for use in the housing units at
[WHV] due to privacy issues that exist with a female prisoner population. The
court found that situations where a prisoner could be seen in a state of undress were
such private situations that only female [COs] could fill such positions. A person
subject to this article may apply to the [MCSC] for an exemption on the basis that
religion, national origin, age, height, weight or sex is a [BFOQ] reasonably
necessary to perform a normal operation of the business or enterprise. Upon
sufficient showing the [MCSC] may grant an exemption to the appropriate section
of this article. An employer may have a [BFOQ] on the basis of religion, national
origin, sex, age or marital status, height and weight without obtaining prior
exemption from the [MCSC] provided that an employer who does not . . . obtain an
exemption shall have the burden of establishing that the qualification is . . .
reasonably necessary to the normal operation of the business.
Request number one, the BFOQs where female prisons housing unit were
found to be reasonably necessary to the normal operation of []DOC’s female
facilities in [Everson] and in doing so the court recognized that the []DOC made a
considered decision that a BFOQ was necessary [“]to address the grave problem of
sexual abuse of female inmates” . . . .
Number two, an arbitrator was satisfied that in light of the decision in
[Everson,] female prisons could be within the scope of allowable overtime . . .
assignment practices when making female only . . . “overtime assignments” . . . to
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non-bid . . . “gate positions” . . . . And would also support a facility practice of
making overtime assignments on women only to the BFOQs within the facility in
the Michigan corrections organization and [DOC] grievance number 2112805.
Number three, that on May 25th of 1999 []DOC entered into a settlement
agreement with the [DOJ] regarding sexual misconduct and unlawful invasions of
privacy in women’s prisons, [United States v State of Michigan], US District Court,
Eastern District case 97-CVB-71514-BDT. The terms of this settlement agreement
imposed certain restrictions on staffing . . . at Defendant’s women’s prisons.
Number four, on July 31 of 2000 MDOC entered into a similar settlement
agreement concerning women prisoners under jurisdiction of the []DOC and which
further imposed restriction on a pat down search - - searches and prison staffing
issues during the agreed evaluation monitoring period. [Nunn.]
Number five, in 2009 MDOC entered into a settlement agreement which
also addressed MDOC’s significant changes in staffing of the housing units in
female correctional facilities to specifically address issues to reduce sexual assault
and sexual harassment by male staff toward female prisoners. [Neal,] Washtenaw
County Case number 96-6986-CZ.
Number six, in March of 2009 Gary Manns administrator of the []DOC
operations support administration sent letters . . . to the [MCSC] requesting and
providing justifications for expanding the established . . . BFOQ positions that if
approved . . . , “will result in the utilization of only female staff in positions with
regular work assignments that affects the privacy and security of female prisoners.”
Number seven, in April 2009 Jeremy Stevens, a state personnel director of
the [MCSC] responded to Mr. Manns’[s] letter and determined that it was
appropriate that only female employees be assigned to regular work assignments in
these positions that affect the privacy and security of female prisoners including
but not limited to observing showers, dressing, undressing, use of toilet facilities
and conducting clothed and unclothed strip searches.
And Number eight on June 23, 2000 the []DOC provided the . . . Mahoney
expert report, which made recommendations that there are legitimate penological
reasons for having only women staff supervise female prisoners in the limited
situations which the report identified.
The jury returned a verdict in the DOC’s favor. Nowacki then filed a motion for judgment
notwithstanding the verdict (JNOV). Nowacki again contended that to support the BFOQ
affirmative defense, the DOC had to provide “the actual justifications relied upon by the
decisionmaker(s) at the time the decision was made,” and yet failed to do so. Nowacki asserted
that the DOC “admitted it does not and cannot know what the decisionmaker’s reasons were for
designating the positions as BFOQs because it does not know who made the decision.” The circuit
court denied that motion as well.
Nowacki now appeals as of right on behalf of the class.
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II. RELEVANT LAW
“Title VII of the Civil Rights Act of 1964 broadly proscribes gender-based discrimination
in the workplace.” Everson, 391 F3d at 747. “Title VII permits overt discrimination if the
disparate treatment is based on a bona fide occupation qualification, or BFOQ.” Id. “The BFOQ
defense countenances gender-based discrimination ‘in those certain instances where . . . sex . . . is
a bona fide occupational qualification reasonably necessary to the normal operation of that
particular business or enterprise.’ ” Id. at 747-748, quoting 42 USC § 2000e-2(e) (2001). The
BFOQ defense is written narrowly and must “be read narrowly.” Everson, 391 F3d at 748. See
also Int’l Union v Johnson Controls, 499 US 187, 201; 111 S Ct 1196; 113 L Ed 2d 158 (1991).
The employer bears the burden of establishing a BFOQ defense. Everson, 391 F3d at 748.
The employer must prove three elements: (1) that there is “a ‘basis in fact’ for its belief that gender
discrimination is ‘reasonably necessary’—not merely reasonable or convenient—to the normal
operation of its business”; (2) that the challenged job qualification “relate[s] to the essence, or to
the central mission, of the employer’s business”; and (3) “that no reasonable alternatives exist to
discrimination on the basis of sex.” Id. at 748-749 (quotation marks and citations omitted). When
faced with judicial review, “the reasoned decisions of prison officials are entitled to deference
and . . . the goals of security, safety, privacy, and rehabilitation can justify gender-based
assignments in female correctional facilities.” Id. at 750.
As described by the United States Supreme Court:
The wording of the BFOQ defense contains several terms of restriction that indicate
that the exception reaches only special situations. The statute thus limits the
situations in which discrimination is permissible to “certain instances” where sex
discrimination is “reasonably necessary” to the “normal operation” of the
“particular” business. Each one of these terms—certain, normal, particular—
prevents the use of general subjective standards and favors an objective, verifiable
requirement. But the most telling term is “occupational”; this indicates that these
objective, verifiable requirements must concern job-related skills and aptitudes.
[Int’l Union, 499 US at 201.]
“In light of these demanding legal standards, BFOQs are few and far between.” Teamsters
Local Union No 117 v Wash Dep’t of Corrections, 789 F3d 979, 987 (CA 9, 2015). As described
by the United States Court of Appeals for the Ninth Circuit, “In many industries, it is difficult to
imagine any jobs that would qualify as BFOQs. However, the unique context of prison
employment is one area where courts have found sex-based classifications justified.” Id.
(quotation marks and citations omitted).
III. ANALYSIS
On appeal, Nowacki accuses the DOC of hiding the identity and reasoning of the actual
decisionmakers who advocated for and drafted the challenged BFOQs. Nowacki contends that the
witnesses identified asserted that they were not involved in the meetings and decisions that led to
the BFOQs at issue in this case. He also argues that the DOC cannot support the nonhousing
BFOQs with the previous cases affirming female-only housing-unit positions in Michigan’s
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former female-only prisons, or the decisionmakers’ reasoning in drafting the earlier housing-unit
BFOQs.
A. EVIDENTIARY SUPPORT FOR BFOQS
Nowacki has cited a variety of cases allegedly supporting his position that the DOC was
required to present the actual decisionmakers to describe their motivations at the moment the
BFOQs were adopted. Nowacki’s interpretation of the holdings in these cases is inaccurate. In
United States v Virginia, 518 US 515; 116 S Ct 2264; 135 L Ed 2d 735 (1996), the United States
Supreme Court considered the state of Virginia’s justifications for maintaining a state-sponsored
all-male military academy and its attempt to create a separate-but-equal program in response to a
court ruling against it. The Court reasoned:
To summarize the Court’s current directions or cases of official classification based
on gender: Focusing on the differential treatment or denial of opportunity for which
relief is sought, the reviewing court must determine whether the proffered
justification is exceedingly persuasive. The burden of justification is demanding
and it rests entirely on the State. The State must show at least that the challenged
classification serves important governmental objectives and that the discriminatory
means employed are substantially related to the achievement of those objectives.
The justification must be genuine, not hypothesized or invented post hoc in
response to litigation. And it must not rely on overbroad generalizations about the
different talents, capacities, or preferences of males and females. [Id. at 532-533
(cleaned up).]
In Haight v Thompson, 763 F3d 554 (CA 6, 2014), the United States Court of Appeals for
the Sixth Circuit considered whether a Michigan prison violated a Native American prisoner’s
religious rights in refusing a request for a sweat lodge. In that case, “[t]he prison officials add[ed]
several after-the-fact explanations for denying” the request. Id. at 562. “[E]xplanations offered
for the first time in litigation ought to come with a truth-in-litigating label, requiring the official to
disclose whether the new explanations motivated the prison officials at the time of decision or
whether they amount to post hoc rationalizations.” Id.
In Communities for Equality v Mich High Sch Athletic Assoc, 178 F Supp 2d 805 (WD
Mich, 2001), a federal district court considered the differential (and detrimental) treatment of girls’
sports seasons. The court noted:
The empirical evidence was wholly insufficient. The MHSSA chose to rely on
anecdotal and weak circumstantial evidence instead, which is not enough. . . .
Moreover, the logistics justification smacks of post hoc rationalization for a system
that only in the relatively recent past decided that girls were entitled to play sports
and must be treated fairly in athletics. [Id. at 851.]
None of these cases require the employer to present the actual decisionmaker to testify
about his or her motivations while drafting a BFOQ. In this case, the DOC did initially, and
incorrectly, assert that the WHV warden in 2009 and certain other officials were involved in the
decision-making. However, the DOC did present significant evidence regarding the decision-
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making process and a high-level administrator, Tony Lopez, who could lay out the history. The
DOC’s policies evolved over two decades as the department navigated through a maze of litigation
and grievances. Committees were formed, studies undertaken, and settlements negotiated. The
DOC consolidated its three women’s prisons into one and a line of administrators made decisions
to improve conditions for both prisoners and staff. This history was the decision-making process.
The reasons cited by the DOC were not imagined, after-the-fact justifications.
B. JUDICIAL NOTICE
Nowacki further contends that the circuit court erred in taking judicial notice of “facts,”
i.e. the prior lawsuits, settlements, arbitrations, and studies, related to previously designated
BFOQs. As a reminder, the circuit court instructed the jury that (1) the Everson Court held that
the housing-unit BFOQs were legally valid; (2) an arbitrator in a union grievance matter relied on
Everson to uphold the classification of the gate position and overtime assignments as female only;
(3) the DOC entered a settlement agreement with the DOJ that imposed staffing restrictions in
women’s prisons; (4) the DOC entered a settlement in the Nunn case that imposed further staffing
and pat-down restrictions; (5) the DOC entered a settlement agreement in the Neal case, addressing
“significant changes in staffing of the housing units”; (6) in 2009, Manns submitted a request to
the MCSC to expand the BFOQs to certain nonhousing-unit positions; (7) a month later, the MCSC
approved Manns’s request; and (8) the Mahoney report recommended that only female COs
supervise female prisoners in certain situations identified in the report.
“Judicial notice is discretionary and we review for an abuse of that discretion a trial court’s
decision whether to take judicial notice.” Lenawee Co v Wagley, 301 Mich App 134, 149; 836
NW2d 193 (2013) (citations omitted). MRE 201(a) grants trial courts the discretion to take judicial
notice of “adjudicative facts.” “Adjudicative facts” are “facts about the particular event which
gave rise to the lawsuit and . . . help[] explain who did what, when, where, how, and with what
motive and intent.” 2 McCormick, Evidence (8th ed), § 328, pp 640-641. “A judicially noticed
fact must be one not subject to reasonable dispute in that it is either (1) generally known within
the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be questioned.” MRE 201(b).1 See also
1
MRE 202 provides for judicial notice of law as follows:
(a) When discretionary. A court may take judicial notice without request by a party
of (1) the common law, constitutions, and public statutes in force in every state,
territory, and jurisdiction of the United States; (2) private acts and resolutions of
the Congress of the United States and of the Legislature of Michigan, and
ordinances and regulations of governmental subdivisions or agencies of Michigan;
and (3) the laws of foreign countries.
(b) When conditionally mandatory. A court shall take judicial notice of each matter
specified in paragraph (a) of this rule if a party requests it and (1) furnishes the
court sufficient information to enable it properly to comply with the request and (2)
has given each adverse party such notice as the court may require to enable the
adverse party to prepare to meet the request.
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McCormick, p 641 (“Further, either because they were facts so commonly known in the
jurisdiction or so manifestly capable of accurate verification, they were facts reasonably informed
people in the community would regard as propositions not reasonably subject to dispute.”).
Nowacki contends that the judicially noticed facts were actually conclusions of law and the
court and defense improperly used them for collateral estoppel purposes. “Collateral estoppel
precludes relitigation of an issue in a subsequent, different cause of action between the same parties
when the prior proceeding culminated in a valid final judgment and the issue was actually and
necessarily determined in that prior proceeding.” Rental Props Owners Ass’n v Kent Co
Treasurer, 308 Mich App 498, 528; 866 NW2d 817 (2014). The arbitration award followed a
union grievance, not a legal action. And the letters and expert report simply are not judgments.
Accordingly, Nowacki’s challenge is misplaced in this regard.
For the doctrine of collateral estoppel to apply, both parties in the current action must have
“had a full and fair opportunity to litigate the issue” in the prior action. Id. None of the plaintiff
class members were involved in the DOJ, Everson, Neal, or Nunn lawsuits. Accordingly, if
collateral estoppel were truly implicated in this case, it would preclude the admission of certain
evidence. But that is not what occurred. The circuit court did not instruct the jury that it was
bound by prior judgments and settlements. The court simply reiterated that the DOC had been
involved in many legal actions related to the sexual impropriety that had occurred in its women’s
prisons that resulted in the DOC creating the earlier housing-unit BFOQs. Significant evidence
was admitted at trial to support those facts, including copies of the settlement agreements and
judgments. It was up to the jury to decide whether and how those historical facts played a role in
the DOC’s development of the 11 challenged BFOQs.
Nowacki further contends that the judicially noticed facts were irrelevant to the current
action. “Relevant evidence is evidence ‘having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than it
would be without the evidence.’ ” Hardrick v Auto Club Ins Ass’n, 294 Mich App 651, 667; 819
NW2d 28 (2011), quoting MRE 401 (emphasis omitted). The DOC established the relevance of
the judicially noticed facts: they were integral to its decision to expand the BFOQs to the
challenged nonhousing-unit positions. The history of litigation and the studies commissioned by
the DOC established a roadmap for the DOC’s reasoning and actions.
Nowacki asserts that the “facts noticed run afoul of MRE 403.” MRE 403 precludes the
admission of otherwise relevant evidence “if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.” Citing Blakely v
City of Clarksville, 244 Fed Appx 681 (CA 6, 2007), Nowacki contends that after hearing the
circuit court take judicial notice of the prior lawsuit resolutions, the jury was likely to be misled
into giving those judgments and settlements “more weight than [they] warrant[].” Unlike in
Blakely, evidence regarding the prior lawsuits was not presented to convince the current jury to
reach a similar conclusion as a prior jury. Indeed, there were no prior jury verdicts. The purpose
of the evidence was to provide the historical background against which the DOC created the
challenged BFOQs. This was not overly prejudicial. Nowacki has not demonstrated that the
circuit court abused its discretion.
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C. MERITS OF THE ACTION
Moreover, the DOC met its burden of establishing a basis in fact for believing it was
reasonably necessary to the normal operation of the prison to designate the 11 challenged positions
as female-only. As noted in Everson, only a portion of the sexual misconduct allegations arose
within the housing units. A large number—43% to 61%—arose outside the housing units. See
Everson, 391 F3d at 755. Although the number of reports made to prison officials had gone down
by 2009, the DOC understood that not all allegations were captured by their reporting system.
Likely fearing retribution or discipline, many victims over the years had lodged their complaints
through family members, to outside advocacy groups, or waited until they were released to contact
the police. Moreover, Mahoney reported that “the majority of sexual misconduct activities and
allegations involved male staff and female prisoners.” Accordingly, the DOC had a basis in fact
to believe that employing female COs in female prisons would reduce the number of sexual
misconduct allegations.
The DOC also met its burden of establishing that making the 11 challenged positions
female-only related to its central mission. Manns’s 2009 letter requesting approval of the BFOQs
described the DOC’s mission as “provid[ing] a safe and secure environment, while respecting the
privacy of prisoners, and to provide staffing which is consistent with” federal and state equal
employment laws. The Everson Court described the mission of the DOC as security, safety, and
the protection of privacy rights. Everson, 391 F3d at 753. And Lopez asserted that the DOC had
two goals: “to minimize the impact on the affected employees” and “the protection of female
prisoners.” Requiring female COs to monitor female prisoners in positions that require pat-down
searches or where the officer might be alone or secluded with a prisoner meets those goals.
And the DOC went to great lengths to consider other options before deeming them
unreasonable solutions. Contrary to Nowacki’s assertions, there is no evidence that the DOC
suddenly and artificially inserted pat-down requirements into the BFOQ descriptions. Even the
class’s own witnesses admitted that pat-down searches were required in the posts; they simply
contended that the pat-downs could be accomplished by summoning a female CO from another
location. This team approach was considered and rejected as a reasonable alternative. WHV was
already short staffed and calling a female CO away from her post left other positions unstaffed. It
was not cost effective to pair each male CO with a female to provide the necessary coverage.
The DOC had taken many steps to reduce the risk of sexual misconduct in response to the
years of previous litigation. The DOC had reconfigured certain areas to ensure prisoners’ privacy,
secured secluded areas, and added convex mirrors to reflect blind spots. Most importantly, in
2009, the DOC began installing a sophisticated video recording system with high resolution
imaging, clear audio recording, and massive amounts of storage. By 2016, the DOC had the system
fully functional and had adjusted the components to ensure the greatest possible coverage. It was
not until 2016 that this system was a reasonable alternative to the BFOQs. When that goal was
met, the DOC withdrew eight of the 11 2009 BFOQs. This was not evidence that the BFOQs were
unnecessary as posited by Nowacki, but rather demonstrated the DOC’s successful drive to protect
female prisoners while also ensuring equal employment opportunities.
There simply is no evidence that the DOC was driven by any animus toward its male
employees or that it was trying to limit their opportunities. The DOC’s goals were to protect its
-20-
female prisoners after a long-ignored history of sexual abuse at the hands of their jailers, but also
to protect male COs from false claims of abuse. The DOC briefly classified eight positions as
requiring a female CO and removed that classification once technology permitted another type of
protection.
We affirm.
/s/ Elizabeth L. Gleicher
/s/ Kathleen Jansen
/s/ Michelle M. Rick
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