                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 06-2553
                                 ___________

                                        *
Deana Tipler,                           *
                                        *
            Plaintiff – Appellant,      *
                                        * Appeal from the United States
     v.                                 * District Court for the
                                        * District of Nebraska.
Douglas County, Nebraska;               *
Robert Houston, Director of             *
Douglas County Corrections,             *
                                        *
            Defendants – Appellees.     *
                                        *
                                        *
                                   ___________

                           Submitted: December 14, 2006
                              Filed: April 12, 2007
                               ___________

Before BYE, COLLOTON, and BENTON, Circuit Judges.
                           ___________

BENTON, Circuit Judge.

       Deanna N. Tipler sued Robert P. Houston and Douglas County, Nebraska,
alleging gender discrimination under 42 U.S.C. § 1983 and Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-2. The district court1 granted the defendants
summary judgment. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

                                           I.

        Tipler, a female, began working as a correctional officer I at the County
correctional center in September 2002. She worked the B shift. There were three
shifts: the A shift (11:00 p.m. to 7:00 a.m.), B shift (7:00 a.m. to 3:00 p.m.), and C
shift (3:00 p.m. to 11:00p.m.). Twice a year, employees submit their first and second
choices for the next six months.

       A shift-bid was held, effective for July 2003. Tipler requested the B shift first,
and the A shift second. Based solely on seniority, Tipler would have continued on the
B shift. The bid results, however, did not produce the minimum number of female
officers to supervise the female inmates. As a result, Tipler and eight other officers
(four females and four males) were reassigned.

      The five least senior females on the B shift (including Tipler) were moved to
the A or C shift. Tipler ended up with her second choice, the A shift. The four least
senior males were reassigned from the A shift to the B or C shift. Three of the four
males had greater seniority than Tipler.

       Tipler worked the A shift for three months. She claims the shift change caused
her to suffer headaches, work more overtime, spend less time with her children, and
pay increased medical and childcare costs.




      1
        The Honorable Thomas D. Thalken, United States Magistrate Judge for the
District of Nebraska, to whom the case was referred for decision by consent of the
parties pursuant to 28 U.S.C. § 636(c).

                                          -2-
       In September 2003, due to the hiring of more female officers, Tipler was moved
to her first choice, the B shift. She received her first choice for each shift afterwards.
She was promoted to corrections officer II in May 2005.

       Tipler sued the County (and its corrections director Houston in his official
capacity) alleging gender discrimination based on the County's "facially
discriminatory staffing policies." The district court found that the County had a
reasonable gender-based job assignment policy, and that Tipler "failed to establish any
right to a particular shift assignment or that the assignment resulted in more than a
minimum restriction on her employment." The court granted the County summary
judgment.

                                           II.




                                           A.




                                         42 U.S.C. § 2000e-2(a). The County
"acknowledges that Appellant's gender was a factor in moving her to a different shift."
An employer may treat employees differently based on gender when it is "a bona fide



                                           -3-
occupational qualification reasonably necessary to the normal operation of that
particular business." See 42 U.S.C. § 2000e-2(e).

       Where the employer is a prison, a bona fide occupational qualification analysis
is unnecessary if (1) the policy requiring female-only supervision of female inmates
is reasonable, and (2) such a policy imposes only a "minimal restriction" on the
employee. See Tharp v. Iowa Dep't of Corrections, 68 F.3d 223, 225, 226, 227 (8th
Cir. 1995), cert. denied, 517 U.S. 1135 (1996); Robino v. Iranon, 145 F.3d 1109,
1110 (9th Cir. 1998) ("The policy limits eligibility for such a small number of
positions (six out of forty-one) that it imposes such a de minimus restriction on the
male [correctional officers'] employment opportunities that it is unnecessary to decide
whether gender is a BFOQ for the few positions affected").

       This case is controlled by Tharp. There, the prison adopted a policy assigning
only women guards to the female unit. Two males, with the greatest job seniority, bid
to work the female unit. They lost to women guards with less seniority. The men
sued, arguing the gender-based policy violated Title VII. This court found that the
gender-based policy was reasonable: it "addresses female inmate privacy concerns,
improves the Facility's rehabilitative services to female inmates, and advances the
interests of female employees."                                court next determined
that "the policy of same-sex assignments to the Facility's women's unit was a minimal
restriction on plaintiffs' employment." Id. This court, balancing the reasonableness
of the policy against the restriction on employment, held that there was no violation
of Title VII. Id.2



      2
       Tipler argues that Tharp does not control her case because Tharp approves
only policies that are "favorable to the protected class of women employees." The
Tharp case is not so limited, as demonstrated by its reliance on Timm v. Gunter, 917
F.2d 1093 (8th Cir. 1990), which rejected the female guards' claim that a gender-based
assignment policy violated Title VII.

                                         -4-
      In this case, the reassignment policy is reasonable. Nebraska Revised Statute
§ 47-111 provides: "In every county jail where there is a female prisoner,
twenty-four-hour supervision shall be provided by a matron appointed by the county
board, whose duty it shall be to have entire charge of the female prisoners." Nebraska
law establishes the Jail Standards Board, which has adopted "Minimum Jail Standards
for Adult Jail Facilities, Title 81 Regulations," which include in chapter 2:

             004.02A Female employees shall provide around-the-clock
             supervision of all female inmates housed in a jail facility.

             004.02B The facility administrator shall insure that inmates are
             viewed personally by facility employees often enough to maintain
             their safekeeping, but in no event less than one time per hour and
             document it.

Jail standard 006.01C requires that all body cavity, pat, and strip searches shall be
conducted by employees of the same sex as the inmate. The County, in its care,
lodging, safekeeping and security of male and female inmates, must comply with the
jail standards.

      A collective bargaining agreement between the County and the Fraternal Order
of Police covers the correctional officers' employment. By the agreement, shift
assignments are controlled by seniority, "except where Nebraska State law and the
Nebraska jail standards dictate the staffing of female officers." The agreement grants
the County the right to adjust shift schedules if the shift-bid process does not produce
enough females to supervise women inmates.

       Tipler contends that the County's policy is not reasonable, claiming its
interpretation of state law is "unnecessarily strict" and "inconsistently applied." She
emphasizes that before January 2003, the County allowed male guards briefly to
relieve female officers (for personal breaks). The County temporarily ended this


                                          -5-
practice, adopting a new policy: "The practice of allowing male officers to provide
breaks to female officers working female modules must end immediately. No male
officers will be allowed to supervise female inmates, even for short periods of time."
On September 7, director Houston, based on female dissatisfaction with the new
policy, inquired whether male guards could relieve female officers for ten-minute
breaks. On October 22, a deputy county attorney advised: "Although current jail
standards require that female inmates be supervised by female officers around the
clock, we do not believe that male coverage during the female officers' personal
hygiene breaks constitutes a lack of female supervision." The County then re-
instituted the practice of allowing male officers to cover female guards' breaks.

       Tipler shows at most a fine-tuning of the gender-based policy, not a complete
change of policy. Such a fine-tuning is well within the discretion of prison
administrators, to which the courts defer. See Turner v. Safley, 482 U.S. 78, 85
(1987) ("Prison administration is, moreover, a task that has been committed to the
responsibility of those branches, and separation of powers concerns counsel a policy
of judicial restraint. Where a state penal system is involved, federal courts have . . .
additional reason to accord deference to the appropriate prison authorities"); Thomas
v. Gunter, 32 F.3d 1258, 1259 (8th Cir. 1994) ("judgments regarding prison security
'are peculiarly within the province and professional expertise of corrections officials,
and . . . courts should ordinarily defer to their expert judgment in such matters'"),
quoting Pell v. Procunier, 417 U.S. 817, 827 (1974). The County's reassignment
policy is reasonable. See Tharp, 68 F.3d at 226, citing Turner, 482 U.S. at 88-91.

       The second inquiry is the extent of the restriction on Tipler's employment. On
this record, she was not denied any significant employment opportunities. See Timm
v. Gunter, 917 F.2d 1093, 1102 n.13 (8th Cir. 1990), cert. denied, 501 U.S. 1209
(1991) (a "staffing restriction does not violate Title VII" because "a minimal
restriction such as the Unit 5 gender-based staffing restriction does not deprive female
employees of any employment opportunities"). After working the A shift for three

                                          -6-
months, Tipler moved back to the B shift, and received her first choice for each shift
afterwards. Her assertion that the "shift change was accompanied by a loss of training
opportunities which affected [her] ability to be promoted" is not supported by the
record. In fact, she was later promoted to correctional officer II. See Tharp, 68 F.3d
at 226 (policy of same-sex assignments to women's unit was a "minimal restriction"
when plaintiffs "promotion opportunities were unaffected, and they were both later
promoted to parole and probation officer positions"). Tipler showed only that her
reassignment caused her some personal inconvenience and expense. Any restriction
on Tipler's employment was minimal.

       Balancing the County's reasonable reassignment policy with the minimal
restriction on Tipler's employment, the district court properly granted summary
judgment on her Title VII claim.

                                          B.

       Tipler next asserts gender discrimination under the Equal Protection Clause of
the Fourteenth Amendment, pursuant to 42 U.S.C. § 1983. The analysis is similar
when a plaintiff alleges both Title VII and § 1983 claims based on a violation of equal
protection. See Briggs v. Anderson, 796 F.2d 1009, 1021 (8th Cir. 1986) (analysis
under Title VII and § 1983 is essentially the same); Craik v. Minn. State Univ. Bd.,
731 F.2d 465, 468 n.5 (8th Cir. 1984) ("The issue of discriminatory intent is common
to analyses under the Fourteenth Amendment, § 1983, and Title VII"); Hicks v. St.
Mary's Honor Ctr., 970 F.2d 487, 490-91 (8th Cir. 1992), rev'd on other grounds, 509
U.S. 502, 506 n.1 (1993) ("We agree with the district court that the elements of
plaintiff's [§ 1983] discrimination claim against Long are the same as those which he
must prove against St. Mary's under Title VII").

       To establish a violation of § 1983, the plaintiff must show the deprivation was
(1) a right secured by the Constitution and laws of the United States, and (2) caused

                                         -7-
by a person or persons acting under the color of state law. See id.; Flagg Bros., Inc.
v. Brooks, 436 U.S. 149, 155 (1978); Creason v. City of Wash., 435 F.3d 820, 823
(8th Cir. 2006). "Prison authorities are clearly persons acting under color of state
law." Thomas v. Gunter, 32 F.3d 1258, 1259 (8th Cir. 1994).

       Tipler's right to be free from gender discrimination is secured by the equal
protection clause of the Fourteenth Amendment. See United States v. Virginia, 518
U.S. 515, 532 (1996) ("the Court has repeatedly recognized that neither federal nor
state government acts compatibly with the equal protection principle when a law or
official policy denies to women, simply because they are women, full citizenship
stature – equal opportunity to aspire, achieve, participate in and contribute to society
based on their individual talents and capacities").

       When the state makes a classification based on gender, "the reviewing court
must determine whether the proffered justification is 'exceedingly persuasive.'" Id. at
533. 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." Id. (internal quotations omitted);
Ways v. City of Lincoln, 331 F.3d 596, 600 (8th Cir. 2003) ("the state must
persuasively show that certain gender-based classifications serve important
governmental objectives and that the statute in question is substantially related to the
achievement of those objectives").

        In this case, the County has an important governmental objective: to implement
state law, the jail standards, the union agreement, and proper prison administration as
determined by corrections officials. The County must obey these rules, or risk
penalties, including closure of its jail. Tipler does not attack the constitutional validity
of the relevant laws, which she says are "not an issue before the Court."




                                            -8-
       The County employed means that were substantially related to achieving
important government objectives. The County reassigned Tipler in accordance with
the union agreement, by inverse seniority only after the shift-bid process did not yield
enough female officers to supervise the female inmates. Once sufficient female
officers were hired, the County then returned Tipler to her first-choice shift.3

      The district court properly granted summary judgment on Tipler's § 1983 claim.

                                          III.

      The judgment of the district court is affirmed.

                        ______________________________




      3
        Tipler does not contend, and makes no showing, that a different policy on
male officers covering breaks by female officers would have avoided her reassignment
from the B shift to the A shift.

                                          -9-
