Freitag v. Ayers

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEANNA L. FREITAG, 
Plaintiff-Appellee,
v.
ROBERT J. AYERS, JR.; TERESA
SCHWARTZ; AUGUSTINE LOPEZ; No. 03-16702
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND REHABILITATION,  D.C. No.
CV-00-02278-TEH
Defendants-Appellants,
and
DAVID A. CARMICHAEL; G.
RODMAN; PAUL DILLARD; BARRY
O’NEILL; GEORGE NEOTTI,
Defendants.

18111
18112 FREITAG v. AYERS
DEANNA L. FREITAG, 
Plaintiff-Appellee,
v.
ROBERT J. AYERS, JR.; TERESA
SCHWARTZ; AUGUSTINE LOPEZ; No. 03-17184
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND REHABILITATION,  D.C. No.
CV-00-02278-TEH
Defendants-Appellants,
and
DAVID A. CARMICHAEL; G.
RODMAN; PAUL DILLARD; BARRY
O’NEILL; GEORGE NEOTTI,
Defendants.

DEANNA L. FREITAG, 
Plaintiff-Appellee,
v.
No. 03-17398
ROBERT J. AYERS, JR.; TERESA
D.C. No.
SCHWARTZ; AUGUSTINE LOPEZ;
CV-00-02278-TEH
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND REHABILITATION,  ORDER
Defendants-Appellants, AMENDING
OPINION AND
and
AMENDED
DAVID A. CARMICHAEL; G. OPINION
RODMAN; PAUL DILLARD; BARRY
O’NEILL; GEORGE NEOTTI,
Defendants.

FREITAG v. AYERS 18113
Appeal from the United States District Court
for the Northern District of California
Thelton E. Henderson, District Judge, Presiding
Argued March 15, 2006
Submitted September 13, 2006
San Francisco, California
Filed September 13, 2006
Amended November 3, 2006
Before: Stephen Reinhardt, John T. Noonan, and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Reinhardt
18116 FREITAG v. AYERS
COUNSEL
Jacob A. Appelsmith, Senior Assistant Attorney General, Vin-
cent J. Scally, Supervising Deputy Attorney General, and Bill
FREITAG v. AYERS 18117
Lockyer, Attorney General, Sacramento, California, for the
defendants-appellants.
Pamela Y. Price and John L. Burris, Oakland, California, and
Charles Stephen Ralston, Berkeley, California, for the
plaintiff-appellee.
ORDER
The opinion filed September 13, 2006, slip op. 11183, and
appearing at 463 F.3d 838 (9th Cir. 2006), is hereby amended
as follows:
1. At slip op. at 11205, line 4: insert “sufficiently”
after “failed to invoke”.
2. At slip op. at 11205, line 4: after the sentence
ending with “in this case.” insert the following
footnote: The jury had before it evidence offered
by the defendants regarding disciplinary mea-
sures taken, including a belated referral for
criminal prosecution of a principal offender after
Freitag had filed her formal complaint with the
California Department of Fair Employment and
Housing, and after she had sent two letters to
State Senator Polanco that precipitated the
investigation by the Inspector General. The
belated referral, however, attempted to address
the conduct of only one of the 20 inmates who
were responsible for 56 incidents of exhibition-
ist masturbation in the security housing unit, as
identified in the Inspector General’s report.
Moreover, the jury heard the Inspector General’s
findings that the “institution has stopped refer-
ring exhibitionist masturbation cases to the dis-
trict attorney” and that “[c]ases that would be
appropriate for prosecution are not referred.”
18118 FREITAG v. AYERS
3. At slip op. at 11208, line 2: after “Polanco,”
strike the rest of the sentence from line 2 to line
5, beginning with “and Schwartz temporarily”
and ending with “complaints of inmate harass-
ment.” After “Polanco,” on line 2, insert the fol-
lowing: “and Schwartz requested at least one IA
investigation in the months after Freitag’s com-
plaints of sexual harassment.”
With these amendments, the panel has voted to deny the
petitions for panel rehearing and rehearing en banc. The full
court has been advised of the petition for rehearing en banc
and no judge of the court has requested a vote on it. The peti-
tions for rehearing and rehearing en banc are DENIED. No
further petitions for rehearing or rehearing en banc may be
filed.
OPINION
REINHARDT, Circuit Judge:
May a state department of corrections be held liable for
prison officials’ failure to correct a hostile work environment
that is the result of male prisoners’ sexual harassment of
female guards? We answer that question, “Yes.”
The California Department of Corrections and Rehabilita-
tion (CDCR) and three Pelican Bay State Prison (Pelican Bay)
administrators appeal a judgment in favor of Deanna Freitag,
a former correctional officer in the prison’s Secure Housing
Unit. Freitag alleged that the CDCR and Pelican Bay were
delinquent in addressing the sexually hostile environment cre-
ated by prison inmates — particularly in confronting the per-
vasive practice at Pelican Bay of inmate exhibitionist
masturbation directed at female officers — and that she was
retaliated against and ultimately terminated due to her
FREITAG v. AYERS 18119
repeated complaints regarding the problem. A jury agreed,
finding that the CDCR maintained a hostile work environment
and retaliated against Freitag in violation of Title VII of the
Civil Rights Act of 1964, and that the three administrators
retaliated against her for engaging in constitutionally pro-
tected speech in violation of 42 U.S.C. § 1983. We conclude
that substantial evidence supports the jury’s verdict that the
CDCR violated Freitag’s rights under Title VII, but we
remand her First Amendment claim to the district court for
reconsideration in light of the Supreme Court’s decision in
Garcetti v. Ceballos, 126 S. Ct. 1951 (2006). As a result, we
also remand the jury’s damages award to the same extent. We
affirm the district court’s grant of injunctive relief, however.
I
In January 1996, Deanna Freitag transferred to Pelican Bay
State Prison from Chuckwalla Valley State Prison, where she
had been a correctional officer for several years, in order to
be closer to her family. Pelican Bay, a maximum security
prison in Crescent City, California, includes a Secure Housing
Unit (SHU) which incarcerates many of the state’s most vio-
lent criminals. Inmates in the SHU are subjected to harsher
and more restrictive conditions than exist at any other prison
in the state system.1
On September 12, 1998, Freitag was working a relief shift
in the SHU control tower when she witnessed Inmate X stand-
ing naked in the exercise yard masturbating. Freitag opened
a prison pod door and directed Inmate X, over an intercom,
to return to his cell, at which point he ripped a temperature
gauge off the pod wall, screamed sexually derogatory obscen-
ities, and threatened to kill her. Freitag was instructed by her
direct supervisor not to document the incident, but she never-
theless completed a disciplinary report, or 115 Form, charging
Inmate X with threatening a public official. Freitag reported
1
The material facts in this case are not in dispute.
18120 FREITAG v. AYERS
several additional incidents of inmate exhibitionist masturba-
tion in late 1998 in documents called “chronos,” or 128
Forms, which are placed in inmates’ central files but ordinar-
ily do not form the basis for disciplinary action. In one
instance, Freitag was working a meal shift in the SHU when
an inmate ejaculated onto a tray she was clearing.
In early January 1999, Freitag accepted a permanent posi-
tion in the SHU. Shortly thereafter, on January 6, she was in
the SHU control tower when she witnessed Inmate Y openly
masturbating in the prison yard. Freitag demanded that Inmate
Y stop, but he refused; he continued to masturbate in view of
the control tower for approximately thirty minutes until his
yard shift ended. Freitag documented the incident in a 128
Form. On February 17, 1999, Inmate Z exited the upper tier
shower room and, while looking at Freitag in the control
tower, into which he had a direct view from the tier, mastur-
bated while shouting her name and proclaiming that he was
“coming inside” her. Freitag completed a 128 Form detailing
the incident and attempted to discipline Inmate Z with ten
days of escort status, which was approved by a supervising
captain. However, Lieutenant David Carmichael discarded the
128 Form and informed Freitag that she could not place
Inmate Z on escort status, explaining to her that she was the
only officer who had a problem with Inmate Z, and that “it’s
only sex.”
On March 17, Inmate X again openly masturbated in the
SHU yard while Freitag was on duty in the control tower. She
submitted a 115 Form charging Inmate X with indecent expo-
sure, to which he pled guilty, but he was not assessed good-
time credit forfeiture as a result of the disciplinary proceeding
because prison administrators delayed in processing the
paperwork. Also on March 17, Freitag sent a memorandum to
Barry O’Neill, Carmichael’s supervisor, with a copy to Robert
Ayers, the warden at Pelican Bay, complaining that her
reports of inmate misbehavior were being “denied or thrown
away,” thus causing her “authority and discretion [to be]
FREITAG v. AYERS 18121
undermined.” On March 18, she issued Inmate X another 115
Form for indecent exposure.
On April 7, 1999, Inmate X requested that Freitag open the
shower door to allow him to return to his cell. When she did
so, he pushed his towel into the doorway and, standing naked,
masturbated in front of her until she and another correctional
officer escorted him back to his cell. Freitag submitted a 115
Form charging Inmate X with indecent exposure, but the vio-
lation was subsequently changed by a supervisor to willful
delay of a peace officer, a lower-level offense. Later that day,
Freitag sent a letter to Teresa Schwartz, the associate warden
in charge of the SHU, chronicling the conduct of Inmates X
and Z, complaining that her supervisors were “procrastinat-
ing” in responding to the sexually abusive behavior, and rec-
ommending enforcement of the CDCR’s policy of referring
repeat offenders to the district attorney’s office for prosecu-
tion. She also stated: “For the supervisors’ calloused
exchange of me, and other female staff, as a sexual favor to
gain [Inmate X’s] cooperation, I should be recompensed for
my injury.”
On April 15, 1999, Freitag wrote a letter to Cal Terhune,
the CDCR’s director, in which she alleged that Inmate X was
“causing a hostile worksite,” that her “[s]upervisors have
delayed responding and been reluctant to respond,” and that
“[t]here has been no support to prosecute [Inmate X] for his
sexual attacks and harassment.” Several days later, on April
23, Freitag was called to a meeting with Schwartz and
O’Neill. At the meeting, Schwartz informed Freitag that she
was being relieved of her duty in the SHU pending a psychiat-
ric evaluation; Schwartz stated that the prison was taking the
action in response to Freitag’s “incoherent” memoranda
regarding inmate harassment. Schwartz also threatened to ter-
minate her. Freitag was permitted to return to the SHU only
after the evaluation deemed her fit for duty.
On July 7, the day after Freitag returned to the SHU, she
witnessed Inmate Y masturbating in the yard. She submitted
18122 FREITAG v. AYERS
a 115 Form charging him with indecent exposure, but her
supervisors declined her recommendation that he be disci-
plined with escort status. On July 15, Freitag wrote another
memorandum to Ayers requesting that officers in the SHU
receive additional training on how to manage inmates with
behavioral problems. She detailed an incident that occurred
the day before in which Inmate Y refused to be handcuffed by
two correctional officers, one of whom allegedly responded
by slamming the cuff port door on the prisoner’s hands.
On July 26, Pelican Bay initiated an internal affairs (IA)
investigation of Freitag. The investigation was initiated by
Ayers and arose from purported factual inaccuracies in
Freitag’s memorandum regarding the July 14 incident involv-
ing Inmate Y. On August 6, Ayers initiated another IA inves-
tigation of Freitag’s allegations that her supervisors were
destroying her disciplinary reports. The request submitted by
Ayers alleged that Freitag had made “slanderous accusations
against other staff.”
On August 11, 1999, Freitag filed a formal complaint with
the California Department of Fair Employment and Housing
(DFEH). She alleged that she had been sexually harassed by
Pelican Bay inmates, that she complained about the harass-
ment to supervisors Glen Rodman, Carmichael, Schwartz,
Ayers, and Terhune, that “my employer did not take the
proper steps to address my complaint,” and that in retaliation
for her complaints she was threatened by Schwartz with ter-
mination and temporarily relieved of duty in the SHU. Augus-
tine Lopez, the prison’s Equal Employment Opportunity
Coordinator, prepared the institution’s response, which con-
cluded that Freitag’s allegations were unsubstantiated. As part
of his investigation, Lopez interviewed Ayers and several
other Pelican Bay administrators, but he acknowledges that he
later destroyed the notes from those interviews.
On August 17, 1999, Freitag sent a letter to California State
Senator Richard Polanco in which she alleged that she and
FREITAG v. AYERS 18123
other female correctional officers were regularly subjected to
sexually abusive behavior in the SHU and that supervisors
failed to respond adequately to her complaints regarding the
inmate conduct. She also claimed that her disciplinary reports
either were ignored completely or were not acted upon in suf-
ficient time to permit the disciplining of inmates. She sent a
second letter to Polanco dated September 24, 1999, with a
copy to Terhune, in which she further described the mistreat-
ment that she received from Pelican Bay inmates and staff. In
October, Polanco contacted the California Office of the
Inspector General (IG), a state agency that oversees the
CDCR, and requested that it initiate an investigation of the
allegations in Freitag’s letters. The IG sent several investiga-
tors, including Senior Deputy Inspector General Richard
Ramsdell, to Pelican Bay; from November to December 1999,
they interviewed dozens of prison inmates and employees,
including Freitag, reviewed the inmates’ central files, and
contacted the Del Norte County District Attorney’s Office
regarding the referral of indecent exposure complaints from
the prison. Freitag also exchanged letters with Ramsdell dur-
ing the investigation.
The IG published a report of its investigation on July 11,
2000. The findings were uniformly and pointedly damning:
The agency determined that (1) inmates in the SHU “regularly
subject female correctional officers to lewd exhibitionism and
exhibitionist masturbation”; (2) “supervisors and top adminis-
trative staff at Pelican Bay have not responded appropriately
to complaints about inmates directing exhibitionist masturba-
tion toward female staff members and have made little effort
to take advantage of the options available to control exhibi-
tionist masturbation behavior”; (3) “the security housing unit
is not effectively using the prison disciplinary process and
available legal sanctions in handling exhibitionist masturba-
tion cases”; (4) Pelican Bay had “stopped referring exhibition-
ist masturbation cases to the district attorney”; and (5)
Warden Ayers had taken “no definitive actions . . . to address
exhibitionist masturbation directed at female correctional offi-
18124 FREITAG v. AYERS
cers by male inmates.” The IG also reported that Lopez
informed one state investigator that “[t]he reason the inmates
hit on [the female correctional officers] is that they’re a bunch
of lesbians.”
In addition to the two IA investigations of her initiated by
Ayers in July and August 1999, Freitag was targeted by at
least two more investigations following her DFEH complaint
and letters to Polanco. On September 15, 1999, Ayers
requested an IA investigation regarding Freitag’s purported
improper use of state resources, such as copy machines and
telephones, for the purpose of pursuing her complaints. On
October 22, Correctional Captain Paul Dillard sent Ayers a
memorandum recommending that IA investigate allegedly
false claims by Freitag that a correctional officer contami-
nated an inmate’s food in May of that year. Freitag was for-
mally interviewed regarding the latter charge on November
19, 1999.
On January 13, 2000, while the IG’s investigation was
being conducted, Schwartz sent Freitag a preliminary notice
of adverse action stemming from the IA investigation into
Freitag’s report of the July 14, 1999, incident involving
Inmate Y. Ayers recommended that Freitag be suspended for
five days as a result of the investigation’s determination that
she falsified facts in her written memorandum describing the
incident. On February 8, while the agency investigation was
still in progress, Schwartz sent a second notice of adverse
action, this time arising out of the prison’s finding that Freitag
made false accusations regarding her fellow officer contami-
nating the inmate’s food. As a result of the findings of the two
IA investigations, Freitag was terminated shortly before the
Office of the Inspector General issued its report. Freitag then
initiated an administrative appeal of her termination before
the California State Personnel Board. As far as the record
before us reveals, the administrative appeal was still pending
at the time the parties filed their briefs with this court.
FREITAG v. AYERS 18125
II
Freitag filed her initial complaint in the district court on
June 27, 2000. She alleged that (1) the CDCR is liable under
Title VII of the Civil Rights Act of 1964 for sexual harass-
ment pursuant to a hostile work environment theory; (2) the
CDCR is liable under Title VII for retaliation; (3) Ayers, Sch-
wartz, Carmichael, Rodman, Dillard, O’Neill, George Neotti,2
and Lopez are liable under 42 U.S.C. § 1983 for violating var-
ious of her constitutional rights; and (4) all of the defendants
are liable under 42 U.S.C. § 1985 for conspiring to violate her
constitutional rights. Freitag sought compensatory and puni-
tive damages as well as injunctive relief.
On March 25, 2002, the district court granted in part and
denied in part the defendants’ motion for summary judgment.
It denied the motion with respect to the following claims: (1)
the Title VII hostile work environment claim against the
CDCR, (2) the Title VII retaliation claim against the CDCR
based upon adverse employment actions not including
Freitag’s termination, and (3) the § 1983 claim that the indi-
vidual defendants retaliated against Freitag in violation of her
First Amendment rights. A jury trial commenced in March
2003. Freitag and several of her fellow female correctional
officers testified regarding the sexually abusive environment
in the SHU and the lack of an adequate institutional response.
Freitag’s expert on prison administration, William Katsaris,
testified that Pelican Bay was “the only institution I have
come across that has a serious problem with [exhibitionist
masturbation].” He stated that prisons throughout the country
have controlled the problem in part by installing semi-opaque
finish to control booth windows so that officers can see out
but inmates cannot see in.3 He further testified that Pelican
2
Neotti was Pelican Bay’s employee relations officer.
3
Pelican Bay did install opaque material on SHU cell doors, which pre-
vented officers from viewing celled inmates from the waist down, but it
did not do so until late 2000 or early 2001, after Freitag was terminated.
Further, it did not install the material on control booth windows and thus
did not address the problem of inmates masturbating in the prison yard
knowing that female correctional officers are on duty.
18126 FREITAG v. AYERS
Bay administrators could have taken, but failed to take, other
corrective actions such as imposing serious disciplinary mea-
sures for sexual misconduct, restraining sexually abusive
inmates or taking away their yard privileges, and working
with the district attorney’s office to prosecute serious and
repeat offenders. In addition, the IG’s report was admitted
into evidence over the defendants’ objection, and Ramsdell
testified extensively regarding the agency’s investigation into
Freitag’s complaints and the prison’s failure to take the requi-
site corrective actions.
The jury returned a unanimous verdict on April 3, 2003. It
found the CDCR liable under Title VII for sexual harassment
and retaliation, and Ayers, Schwartz, and Lopez liable under
§ 1983 for retaliation in violation of Freitag’s First Amend-
ment rights. It awarded Freitag $500,000 in economic dam-
ages and $100,000 in non-economic damages, and $100 in
punitive damages against each Ayers, Schwartz, and Lopez.
The verdict form did not require the jury to determine how
much each defendant was liable for on each claim — it found
the CDCR and Ayers, Schwartz, and Lopez jointly and sever-
ally liable for the entire amount of compensatory damages.
On May 15, 2003, Freitag moved to amend the judgment
to include permanent injunctive relief. The district court
granted her motion in part, finding that “this Court has the
authority to fashion an injunction that benefits not only Plain-
tiff, but all female correctional officers and other staff mem-
bers at Pelican Bay who have been or may be harmed by
CDC’s unlawful conduct.” The court entered the following
permanent injunction:
The California Department of Corrections,4 its
4
At the time the district court granted injunctive relief, the agency was
called the California Department of Corrections. In May 2005, it reorga-
nized and changed its name to the California Department of Corrections
and Rehabilitation.
FREITAG v. AYERS 18127
agents, officers, successors in office, employees and
all persons acting in concert or participating with the
department are permanently enjoined from engaging
in any employment practices, or taking any other
personnel action, for the purpose or with the effect
of maintaining a sexually hostile work environment
at Pelican Bay State Prison, or otherwise discrimi-
nating against any Pelican Bay State Prison
employee on the basis of sex. The California Depart-
ment of Corrections, its agents, officers, successors
in office, employees and all persons acting in concert
or participating with the department are further
enjoined from engaging in any employment prac-
tices, or taking any other personnel action, for the
purpose or with the effect of retaliating against any
Pelican Bay State Prison employee for complaining
about, or otherwise opposing, practices made unlaw-
ful by Title VII.
The district court denied Freitag’s request that the court man-
date specific measures to alleviate the problems she raised,
opting instead to refer the matter to a special master with the
authority to monitor compliance with the injunction and to
develop a remedial plan. The court also awarded Freitag attor-
neys’ fees.
The CDCR, Ayers, Schwartz, and Lopez appealed, raising
the following arguments: (1) the CDCR cannot as a matter of
law be liable under Title VII for a hostile work environment
created by inmates and, even if it could be liable, substantial
evidence does not support the jury’s verdict of liability in this
case; (2) substantial evidence does not support the jury’s ver-
dict that the CDCR is liable for retaliation under Title VII; (3)
substantial evidence does not support the verdict against
Ayers, Schwartz, and Lopez; (4) the award of compensatory
and punitive damages is not supported by substantial evi-
dence; and (5) the district court abused its discretion in grant-
ing injunctive relief.
18128 FREITAG v. AYERS
III
We review a district court’s conclusions of law de novo.
See Tritchler v. County of Lake, 358 F.3d 1150, 1154 (9th Cir.
2004). A jury’s verdict, including a damages award, must be
upheld if supported by “substantial evidence.” See Pavao v.
Pagay, 307 F.3d 915, 918 (9th Cir. 2002). The district court’s
grant of injunctive relief is reviewed for an abuse of discretion
and for the application of correct legal principles. See For-
tyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1079
(9th Cir. 2004).
IV
Hostile Work Environment
We first address the CDCR’s contention that it cannot, as
a matter of law, be liable under Title VII for maintaining a
hostile work environment caused by inmate misconduct. The
contention is unsupported by the entire weight of case author-
ity in this circuit and others, and we are compelled to reject
it.
[1] In the Ninth Circuit, employers are liable for harassing
conduct by non-employees “where the employer either ratifies
or acquiesces in the harassment by not taking immediate and/
or corrective actions when it knew or should have known of
the conduct.” Folkerson v. Circus Circus Enters., Inc., 107
F.3d 754, 756 (9th Cir. 1997); see also Little v. Windermere
Relocation, Inc., 301 F.3d 958, 968 (9th Cir. 2002). In recog-
nizing that employers may be liable for third-party conduct,
we, along with several other circuits, see, e.g., Berry v. Delta
Airlines, Inc., 260 F.3d 803, 811-12 (7th Cir. 2001); Turnbull
v. Topeka State Hosp., 255 F.3d 1238, 1244 (10th Cir. 2001);
Crist v. Focus Homes, Inc., 122 F.3d 1107, 1111 (8th Cir.
1997), have relied in part upon a regulation of the Equal
Employment Opportunity Commission that provides that
employers may be held liable for the acts of non-employees
FREITAG v. AYERS 18129
where the employer “knows or should have known of the con-
duct and fails to take immediate and appropriate corrective
action.” 29 C.F.R. § 1604.11(e). This theory of liability is
grounded not in the harassing act itself — i.e., inmate miscon-
duct — but rather in the employer’s “negligence and ratifica-
tion” of the harassment through its failure to take appropriate
and reasonable responsive action. See Galdamez v. Potter,
415 F.3d 1015, 1022 (9th Cir. 2005).
Notwithstanding the clarity of our law on this point, the
defendants request that we become the first court in the coun-
try to carve out an exception to Title VII whereby prisons, due
to their distinctive character and problems, and in particular
their “inherently hostile environment,” are immune from law-
suits by correctional officers arising from sexual harassment
by inmates. In support of this position, the defendants cite
several cases in which federal courts have treated prisons dif-
ferently in the context of civil rights claims. For example, in
Slayton v. Ohio Department of Youth Services, 206 F.3d 669,
677 (6th Cir. 2000), in which a female correctional officer at
a juvenile detention center alleged that the institution main-
tained a sexually hostile work environment caused in large
part by inmate misconduct, the Sixth Circuit noted:
Prisoners, by definition, have breached prevailing
societal norms in fundamentally corrosive ways. By
choosing to work in a prison, corrections personnel
have acknowledged and accepted the probability
they will face inappropriate and socially deviant
behavior.
Nevertheless, the Slayton court upheld a jury verdict in favor
of the plaintiff, ruling that, although allegations of inmate
misconduct alone cannot support a hostile work environment
claim, “this general rule against prison liability for inmate
conduct does not apply when the institution fails to take
appropriate steps to remedy or prevent illegal inmate behav-
ior.” Id.
18130 FREITAG v. AYERS
The defendants also cite the following language from Pow-
ell v. Morris, 37 F. Supp. 2d 1011, 1017 (S.D. Ohio 1999):
The propensity of courts to decline imposing liability
for prisoner acts is based on solid logical and practi-
cal foundations: anyone who works at a prison . . .
must expect some off-color interactions. . . . It is
absurd to expect that a prison can actually stop all
obscene comments and conduct from its inmates —
people who have been deemed unsuited to live in
normal society.
However, the defendants neglect to cite the very next sentence
of the Powell opinion: “The most we can expect and require
prisons to do is to implement and enforce policies reasonably
calculated to minimize such harassment and protect the safety
of its employees.” Id. The defendants also cited Powell in the
district court but there too failed to include the abovemen-
tioned sentence, an act the district judge characterized as “il-
lustrative of Defendants’ tendency to mischaracterize the
relevant case law.” Notably, although the defendants cite
Powell in support of their argument that “Title VII does not
impose liability on a prison employer for a hostile work envi-
ronment caused by inmates under a negligence theory of
direct liability,” they fail to refer to a passage in the opinion
that is far more pertinent to the present case: “Courts have
repeatedly declined to impose sexual harassment liability
upon correctional institutions for the sexually offensive con-
duct of inmates, as long as the defendant institution took
proper preventative and remedial steps with regard to inmate
behavior.” Id. (emphasis added).
[2] In short, the defendants cite no authority, and we have
found none, holding that prisons are uniquely exempt from
liability for sexual harassment under Title VII, nor have they
proffered any evidence that Congress intended prison employ-
ers to be thus exempt. Further, we see no persuasive argu-
ment, legal or otherwise, to support the novel position that the
FREITAG v. AYERS 18131
defendants take on this issue. Nothing in the law suggests that
prison officials may ignore sexually hostile conduct and
refrain from taking corrective actions that would safeguard
the rights of the victims, whether they be guards or inmates.
As the district court found, “even in an inherently dangerous
working environment, the focus remains on whether the
employer took reasonable measures to make the workplace as
safe as possible.” The CDCR is not, by simple virtue of its
status as a correctional institution, immune under Title VII
from a legal obligation to take such measures and to protect
its employees to the extent possible from inmate sexual abuse.
[3] The next question is whether substantial evidence sup-
ports the jury’s finding that the CDCR is liable for maintain-
ing a hostile work environment in this case. A plaintiff
asserting a Title VII claim under a hostile work environment
theory must show (1) the existence of a hostile work environ-
ment to which the plaintiff was subjected, and (2) that the
employer is liable for the harassment that caused the hostile
environment to exist. See Little, 301 F.3d at 966 (citing
Faragher v. City of Boca Raton, 524 U.S. 775, 787-89
(1998)). To establish the existence of a hostile work environ-
ment, “a plaintiff must prove that (1) she was subjected to
verbal or physical conduct of a sexual nature, (2) this conduct
was unwelcome, and (3) this conduct was sufficiently severe
or pervasive to alter the conditions of . . . employment and
create an abusive working environment.” Id. (internal quota-
tions omitted). The third element requires us to consider the
totality of the circumstances and whether the harassment was
both objectively and subjectively abusive. Id. With respect to
the question of liability for harassment caused by a third
party, the employer’s corrective measures must be “reason-
ably calculated to end the harassment”; the reasonableness of
the corrective action will depend on, inter alia, the employ-
er’s ability to stop the harassment and the promptness of the
response. See Ellison v. Brady, 924 F.2d 872, 882 (9th Cir.
1991) (internal quotations omitted); see also Galdamez, 415
F.3d at 1024.
18132 FREITAG v. AYERS
[4] The jury found that Freitag was subjected to a hostile
work environment due to inmate sexual misconduct, and that
the CDCR was liable because it failed to take prompt and
effective remedial action reasonably calculated to address the
misconduct. We conclude with little difficulty that substantial
evidence supports each finding. With respect to the finding
that Freitag was subjected to a hostile employment environ-
ment: First, there is sufficient evidence that Freitag was
repeatedly exposed to conduct of a sexual nature. The jury
heard testimony and reviewed exhibits that established that
Freitag witnessed inmates masturbating in an exhibitionist
manner, oftentimes while they directed verbal taunts and
crude remarks at her. Second, the defendants’ argument to the
contrary notwithstanding, there was substantial evidence that
Freitag did not welcome the sexually abusive conduct merely
by accepting a job in the SHU. Although it certainly would
have been reasonable for Freitag to anticipate substantial
inmate misbehavior, given the severity of the crimes commit-
ted by those incarcerated at Pelican Bay, see Slayton, 206
F.3d at 677, she also had reason to expect that prison officials
would seek in good faith to control the most extreme forms
of sexual misconduct. In any event, contemplating some diffi-
culties is a far cry from welcoming a constant barrage of sex-
ual abuse that, according to the testimony at trial, was allowed
to continue virtually unfettered for the duration of Freitag’s
employment at the prison. Third, substantial evidence sup-
ports the jury’s finding that the exhibitionist masturbation was
sufficiently severe or pervasive to constitute abuse. On this
point, the defendants argue that, following Freitag’s April 7,
1999 memorandum to Schwartz, which they characterize as
her first complaint to prison administrators, she “witnessed
only three incidents of inmate masturbation.” Even accepting
the defendants’ argument that the CDCR did not know about
such behavior until April 7, 1999, a single incident of severe
abuse can constitute a hostile work environment. See Little,
301 F.3d at 967 (citing Clark County Sch. Dist. v. Breeden,
532 U.S. 268 (2001)). More important, however, the defen-
dants’ time line misrepresents the record — it ignores
FREITAG v. AYERS 18133
Freitag’s March 17, 1999 memorandum to O’Neill and Ayers
in which she complained that her disciplinary reports on
inmate sexual misconduct were being ignored. The defen-
dants’ tally thus does not account for the March 18 and April
7 incidents in which Freitag was exposed to exhibitionist mas-
turbation. We find no basis to overturn the jury’s determina-
tion on this issue.
[5] The jury’s second principal finding — that the CDCR
failed to take prompt, corrective, and reasonable action to
address the issue of inmate sexual misconduct — is also sup-
ported by substantial evidence. The jury heard testimony on
this question from, among others, Katsaris, who testified that
Pelican Bay is the only institution he has encountered with
such a pervasive problem of inmate sexual misconduct. He
testified regarding the corrective measures that other prisons
have undertaken but that Pelican Bay had to that point
ignored, including installing semi-opaque film on control tow-
ers and cells and imposing serious disciplinary measures on
repeat offenders. The jury also had before it the IG’s report,5
which enumerated the agency’s findings that, among other
things, the administrative staff at Pelican Bay had not
responded appropriately to the concerns expressed by female
5
The district court did not err in admitting the IG’s report into evidence
at trial. Under the hearsay exceptions for business records, FED. R. EVID.
803(6), and public records, id. 803(8), the report was afforded a presump-
tion of reliability and trustworthiness that the defendants failed to rebut.
See Gilbrook v. City of Westminster, 177 F.3d 839, 858 (9th Cir. 1999).
Specifically, Rule 803(8) allows the admission of reports of public agen-
cies “setting forth . . . factual findings resulting from an investigation
made pursuant to authority granted by law, unless the sources of informa-
tion or other circumstances indicate lack of trustworthiness.” FED. R. EVID.
803(8); see also Johnson v. City of Pleasanton, 982 F.2d 350, 352 (9th
Cir. 1992) (holding that, under Rule 803(8), reports of public agencies
shall be admitted where the challenging party fails to meet its burden to
show untrustworthiness). The defendants had a fair opportunity to chal-
lenge the reliability of the report through their cross-examination of Rams-
dell. The district court did not abuse its discretion in finding the report
reliable.
18134 FREITAG v. AYERS
officers about exhibitionist masturbation, and the institution
had not taken adequate steps to correct the problem. The
defendants’ own brief acknowledges that “[t]he correctional
staff controls inmates primarily by the inmate disciplinary
process, physical restraints, revocation of privileges, and
referral for criminal prosecution,” all measures the evidence
shows it failed to invoke sufficiently in this case.6 Accord-
ingly, there was more than enough evidence to support the
jury’s finding that the prison failed to respond adequately or
reasonably to the sexual abuse directed at Freitag and other
female correctional officers.
[6] For these reasons, we affirm the jury’s verdict that the
CDCR may be, and is in this case, liable under Title VII for
maintaining a hostile work environment at Pelican Bay.
Title VII Retaliation
The defendants urge that substantial evidence does not sup-
port the jury’s finding that the CDCR is liable under Title VII
for retaliating against Freitag. A plaintiff may meet his burden
of proof for a claim of retaliation under Title VII by showing,
by a preponderance of the evidence, (1) involvement in pro-
tected activity opposing an unlawful employment practice, (2)
an adverse employment action, and (3) a causal link between
the protected activity and the adverse action. See Texas Dep’t
6
The jury had before it evidence offered by the defendants regarding
disciplinary measures taken, including a belated referral for criminal pros-
ecution of a principal offender after Freitag had filed her formal complaint
with the California Department of Fair Employment and Housing, and
after she had sent two letters to State Senator Polanco that precipitated the
investigation by the Inspector General. The belated referral, however,
attempted to address the conduct of only one of the 20 inmates who were
responsible for 56 incidents of exhibitionist masturbation in the security
housing unit, as identified in the Inspector General’s report. Moreover, the
jury heard the Inspector General’s findings that the “institution has
stopped referring exhibitionist masturbation cases to the district attorney”
and that “[c]ases that would be appropriate for prosecution are not
referred.”
FREITAG v. AYERS 18135
of Community Affairs v. Burdine, 450 U.S. 248, 252-53
(1981) (citing McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973)). With respect to the first element, “opposition
clause protection will be accorded whenever the opposition is
based on a reasonable belief that the employer has engaged
in an unlawful employment practice.” Moyo v. Gomez, 40
F.3d 982, 984 (9th Cir. 1994) (internal quotes omitted)
(emphasis in original).
The defendants make two related arguments as to CDCR
retaliation. First, they contend that Freitag’s belief that she
opposed an unlawful employment action was unreasonable
because “Title VII proscribes neither harassment by prison
inmates nor a prison’s failure to take adequate steps to address
the harassment.” That argument is foreclosed by our analysis
in the previous section, which requires no repetition here.
Second, the defendants argue that “[a]n employer cannot
engage in unlawful retaliation if it does not know the
employee has opposed or is opposing a violation of Title
VII.” To the extent that their contention is that they did not
know Freitag was opposing unlawful sexual harassment, it is
belied by (1) Freitag’s April 7, 1999 memorandum to Sch-
wartz, which stated that she should be “recompensed” for the
injury she suffered due to the inmate misconduct she
described and the prison’s failure to respond; (2) her April 15,
1999, memorandum to Terhune, which alleged that the prison
was doing nothing to address the “hostile worksite” created
by inmate exhibitionist masturbation; and (3) her filing of a
formal complaint with DFEH in August 1999 specifically
alleging retaliation and harassment based upon her sex. To the
extent that the defendants argue that they did not understand
that the facts Freitag alleged regarding their failure to respond
to the problems constituted a violation of Title VII, their argu-
ment is also without merit. The dispositive question is not
whether the administrators at Pelican Bay believed that their
failure to correct the complained of conditions constituted a
violation of Title VII, but rather (1) whether they were aware
that Freitag had “opposed” that failure and (2) whether
18136 FREITAG v. AYERS
Freitag’s belief that their conduct was unlawful was reason-
able. See Burdine, 450 U.S. at 252-53. Notwithstanding the
defendants’ erroneous opinion of the law, they had the requi-
site knowledge regarding Freitag’s complaints. As Freitag
points out in her brief, “the inability of the defendants to grasp
the mandate of Title VII, particularly in light of the clear lan-
guage of 29 C.F.R. 1604.11, [ ] did not give them carte
blanche to retaliate against [her] just because she evidently
understood the law better than they did.”
[7] Because the defendants raise no meritorious challenge
to the jury’s finding that the CDCR is liable under Title VII
for retaliating against Freitag, we affirm the verdict on this
claim.7
First Amendment Retaliation
[8] The jury found that Ayers, Schwartz, and Lopez retali-
ated against Freitag in violation of her First Amendment
rights. On appeal, the defendants challenge the jury’s finding
7
On June 22, 2006, the defendants submitted a letter pursuant to Federal
Rule of Appellate Procedure 28(j) in which they request that we consider
the Supreme Court’s recent decision in Burlington Northern & Sante Fe
Railway Co. v. White, 126 S. Ct. 2405 (2006). They argue that Burlington
rejected the Ninth Circuit’s definition of what constitutes an adverse
employment action and, accordingly, that we must reverse the Title VII
retaliation verdict because the jury was not instructed that the employment
actions must be considered adverse by a reasonable employee. See Bur-
lington, 126 S. Ct. at 2415. We conclude that any instructional error was
harmless. The instruction given to the jury stated that an adverse action “is
defined as any action that is reasonably likely to deter the plaintiff or oth-
ers from engaging in protected activity.” The instruction, if erroneous, was
harmless because the jury almost certainly would have found that the
adverse employment actions it considered with respect to Freitag’s Title
VII claim — her temporary removal from duty in the SHU, the psychiatric
evaluation, and the internal affairs investigations — would be considered
materially adverse by a reasonable employee. See Swinton v. Potomac
Corp., 270 F.3d 794, 805 (9th Cir. 2001) (holding that an instructional
error in a civil case requires reversal only where the error is not “more
probably than not harmless”).
FREITAG v. AYERS 18137
with respect to each element required to establish a First
Amendment claim against a public employer: (1) The
employee engaged in constitutionally protected speech, (2)
the employer took adverse employment action against the
employee, and (3) the employee’s speech was a “substantial
or motivating” factor in the adverse action. See Coszalter v.
City of Salem, 320 F.3d 968, 973 (9th Cir. 2003). There can
be no serious dispute that substantial evidence supports the
jury’s findings that the second and third elements were met
with respect to Ayers and Schwartz.8 Ayers initiated several
IA investigations of Freitag shortly after she contacted
Polanco, and Schwartz requested at least one IA investigation
in the months after Freitag’s complaints of sexual harassment.
Both also approved her suspension and termination,9 and there
was sufficient evidence from which the jury could have
inferred that Freitag’s speech was a substantial or motivating
factor in these adverse actions. See Coszalter, 320 F.3d at 977
(holding that a proximity in time of between three and eight
months could support an inference of retaliation). However,
because the Supreme Court’s recent decision in Garcetti v.
Ceballos, 126 S. Ct. 1951 (2006), modified prior First
Amendment jurisprudence with respect to the first element —
employee protected speech — we remand Freitag’s § 1983
8
There is no evidence that Lopez is liable for retaliation under § 1983
because there is no evidence that he was responsible for, participated in,
or even had knowledge of, any adverse employment action taken against
Freitag. He did not contribute to the decision to relieve Freitag from her
duty in the SHU, to refer her for psychiatric evaluation, to initiate the
internal affairs investigations, or to terminate her. Thus, we reverse the
jury verdict with respect to Lopez.
9
The defendants argue that the district court’s grant of summary judg-
ment to the CDCR on Freitag’s termination claim under Title VII neces-
sarily barred consideration of her claim for termination under § 1983. That
argument is foreclosed by our precedent. See Allen v. Iranon, 283 F.3d
1070, 1074 (9th Cir. 2002) (rejecting the defendants’ attempt to import a
Title VII standard in a § 1983 case because “the Title VII [burden-
shifting] formula . . . allocates burdens of proof more favorably to defen-
dants”).
18138 FREITAG v. AYERS
claim to the district court for reconsideration in light of that
decision.10
In Ceballos, the Supreme Court considered whether an
internal memorandum written by a deputy district attorney to
his supervisors regarding what he believed to be misconduct
in an investigation was protected speech under the First
Amendment. 126 S. Ct. at 1955-57. It concluded that, under
Connick v. Myers, 461 U.S. 138, 147 (1983), the issue is not
only whether the speech in question addresses a matter of
public concern, but also whether it is made as a citizen. See
id. at 1956 (citing Connick, 461 U.S. at 146-47). The Court
then determined that Ceballos did not speak as a citizen when
he wrote the memorandum and thus did not engage in consti-
tutionally protected speech, holding:
The controlling factor in Ceballos’ case is that his
expressions were made pursuant to his duties as a
calendar deputy. That consideration — the fact that
Ceballos spoke as a prosecutor fulfilling his respon-
sibility to advise his supervisor about how best to
proceed with a pending case — distinguishes Cebal-
los’ case from those in which the First Amendment
provides protection against discipline. We hold that
when public employees make statements pursuant to
their official duties, the employees are not speaking
as citizens for First Amendment purposes, and the
Constitution does not insulate their communications
from employer discipline.
Id. at 1959-60 (internal citations omitted). Ceballos’s First
Amendment claim failed because, “[w]hen he went to work
and performed the tasks he was paid to perform, Ceballos
acted as a government employee” as opposed to a citizen for
purposes of the First Amendment. Id. at 1960.
10
Subsequent to the issuance of Ceballos, we requested supplemental
briefs from the parties addressing its effect on this case.
FREITAG v. AYERS 18139
The Court in Ceballos relied in large part upon its ruling in
Pickering v. Board of Education, 391 U.S. 563 (1968). It con-
sidered the case a “useful starting point” in its First Amend-
ment analysis, and the speech at issue in Pickering a material
contrast to that in the case before it. 126 S. Ct. at 1957. In
Pickering, a school teacher wrote a letter to a local newspaper
criticizing the school board’s allocation of financial resources
and the district superintendent’s alleged attempt to prevent
teachers from opposing a proposed school bond. 391 U.S. at
566. The teacher was subsequently dismissed and he sued,
claiming that the letter was protected by the First Amend-
ment. Id. at 567. The Supreme Court agreed, ruling that the
teacher did not, by accepting his job, “relinquish the First
Amendment rights [he] would otherwise enjoy as [a] citizen[ ]
to comment on matters of public interest.” Id. at 568. In addi-
tion, the Court noted that teachers are
the members of a community most likely to have
informed and definite opinions as to how funds allot-
ted to the operation of the schools should be spent.
Accordingly, it is essential that they be able to speak
out freely on such questions without fear of retalia-
tory dismissal.
Id. at 572.
We are confronted with two issues: (1) whether the jury
was instructed to consider only speech that, in light of Cebal-
los, is protected under the First Amendment, and (2) whether,
if the jury was permitted to consider speech that is not pro-
tected, the instruction was harmless. With respect to the first
issue, the jury was instructed in pertinent part as follows:
Examples of speech protected by the First Amend-
ment include:
(a) Reporting sexually hostile inmate conduct to
agents of the California Department of Corrections,
either formally or informally;
18140 FREITAG v. AYERS
(b) Documenting Pelican Bay State Prison’s
responses or failures to respond to Plaintiff’s reports
of sexually hostile inmate conduct;
(c) Informing Cal Terhune, Director of the California
Department of Corrections, of either the inmates’
sexually hostile conduct or of Pelican Bay State Pris-
on’s responses or failures to respond;
(d) Informing State Senator Richard Polanco either
of sexually hostile conduct or of the Pelican Bay
State Prison’s responses or failures to respond;
(e) Reporting either the sexually hostile conduct or
Pelican Bay State Prison’s responses or failures to
respond to the Office of the Inspector General; or
(f) Cooperation with the investigation conducted by
the Office of the Inspector General.
The defendants proffer two arguments why, in view of Cebal-
los, this instruction is erroneous and requires us to reverse the
jury’s verdict with respect to the § 1983 claim. First, they
assert that Freitag did not in any instance speak “as a citizen”
for purposes of constitutional analysis. Second, they contend
that Freitag’s speech did not address a matter of public con-
cern. We disagree with respect to items (d), (e), and (f) —
Freitag’s letters to Senator Polanco and her written and oral
communications with the Inspector General — all of which is
related to the sexual abuse that she and other female correc-
tional officers suffered at Pelican Bay. We think it clear that
these communications are protected under the First Amend-
ment.
With respect to the defendants’ first argument, Pickering
and Ceballos require the conclusion that Freitag acted as a cit-
izen when she wrote letters to Senator Polanco and communi-
cated with the Inspector General regarding her complaints of
FREITAG v. AYERS 18141
sexual harassment. Her right to complain both to an elected
public official and to an independent state agency is guaran-
teed to any citizen in a democratic society regardless of his
status as a public employee. See Pickering, 391 U.S. at 568.
Indeed, these particular communications undoubtedly “bore
similarities to letters submitted by numerous citizens every
day.” Ceballos, 126 S. Ct. at 1960 (citing Pickering). Under
Ceballos, Freitag does not lose her right to speak as a citizen
simply because she initiated the communications while at
work or because they concerned the subject matter of her
employment. Id. at 1959. The critical inquiry is instead
whether Freitag engaged in the relevant speech “pursuant to
[her] official duties.” 126 S. Ct. at 1960. With respect to her
contact with Senator Polanco and the IG, the answer is “No.”11
It was certainly not part of her official tasks to complain to the
Senator or the IG about the state’s failure to perform its duties
properly, and specifically its failure to take corrective action
to eliminate sexual harassment in its workplace. Rather, it was
Freitag’s responsibility as a citizen to expose such official
malfeasance to broader scrutiny. Accordingly, in these
instances, for purposes of the First Amendment she spoke as
a citizen.
As to the defendants’ second argument that Freitag’s com-
plaints did not address a matter of public concern, we strongly
disagree. Her assertions that inmates at Pelican Bay engaged
in sexually abusive behavior with respect to the female guards
while the prison’s administrators failed to take appropriate
corrective measures is “relevan[t] to the public’s evaluation of
the performance of governmental agencies.” Coszalter, 320
F.3d at 973-74. Notably, several female correctional officers,
11
We note that one IA investigation of Freitag arose from her purported
improper use of state resources while on the job. That the defendants con-
sidered Freitag’s use of copy machines and telephones to complain to out-
siders about the harassment to which she was subjected improper and
outside the scope of her employment is further evidence that her com-
plaints were not made pursuant to her official duties.
18142 FREITAG v. AYERS
including Freitag, testified at trial that the hostile work envi-
ronment at Pelican Bay made it very difficult for them to per-
form their duties, and Katsaris testified that, in such
circumstances, the prison’s authority over its inmates is sig-
nificantly eroded. Further, although the proper administration
of our prisons generally is undoubtedly of great public inter-
est, the specific allegations in this case address a matter of
acute concern to the entire community. A vast majority of our
state’s prisoners will reenter the general population some day,
some sooner than others.12 It certainly would be of grave con-
cern if those inmates were being released into our neighbor-
hoods from an environment in which the State of California
condoned sexually abusive behavior and the harassment of
women.
[9] For these reasons, we hold that Freitag’s communica-
tions with Senator Polanco and the California Inspector Gen-
eral constitute constitutionally protected speech. However,
under the district court’s instruction, those were not the only
communications the jury was entitled to consider in determin-
ing whether Ayers and Schwartz retaliated against Freitag in
violation of her First Amendment rights. The relevant jury
instruction also listed, as examples of protected speech,
Freitag’s internal reports of inmate sexual misconduct and
documentation of the prison’s failure to respond, as well as
her communications with Terhune, the director of the CDCR.
To the extent that the jury may have considered internal forms
prepared by Freitag, it is clear that, under Ceballos, such
activity is not constitutionally protected. For purposes of First
Amendment analysis, Freitag submitted those reports pursu-
ant to her official duties as a correctional officer and thus not
in her capacity as a citizen. Whether Freitag’s April 15, 1999
letter to Terhune is protected under the First Amendment is a
closer question. We are unsure whether prison guards are
12
The record is unclear as to whether any specific inmate who Freitag
alleges contributed directly to the sexually hostile work environment has
been released.
FREITAG v. AYERS 18143
expected to air complaints regarding the conditions in their
prisons all the way up to the Director of the CDCR at the state
capitol in Sacramento. We are not aware, for example, what
the union contract provides with respect to the persons to
whom such grievances may or must be presented. The district
court, having presided over this and related litigation for sev-
eral years, may be in a better position to make the relevant
factual determinations and, accordingly, we remand to it the
issue of whether the Terhune letter is covered by the First
Amendment.
[10] Because the relevant instruction permitted the jury to
consider, along with speech that we hold to be constitutionally
protected, at least some unprotected speech as well, we
remand Freitag’s § 1983 claim to the district court for recon-
sideration. On remand, the district court shall make two deter-
minations: (1) whether the Terhune letter constitutes protected
speech, and (2) whether the jury instruction, which included
as examples of protected speech either two or three items of
unprotected speech, was more probably than not harmless.
See Swinton, 270 F.3d at 805. In other words, is it more likely
than not that the jury verdict was not affected by the errone-
ous inclusion of the two or three examples of unprotected
speech? Given the district judge’s expertise and his familiarity
with the facts in the lengthy trial over which he presided, we
think that he is best equipped to answer these questions in the
first instance.
Damages
The defendants also challenge the jury’s damages award,
arguing that it is not supported by substantial evidence. The
jury heard testimony from two expert witnesses regarding the
economic damages that Freitag suffered as a result of the
harassment and retaliation inflicted upon her by the CDCR
and Pelican Bay prison administrators, as well as testimony
from her treating psychiatrist regarding non-economic dam-
ages resulting from the same. The jury determined that, as a
18144 FREITAG v. AYERS
result of the harassment and the various retaliatory acts by the
defendants, including the internal affairs investigations that
eventually led to Freitag’s termination, and the termination
itself, she suffered $500,000 in economic damages. It also
found that, as a result of the defendants’ actions, she suffered
$100,000 in non-economic damages.
The special verdict form did not require the jury to deter-
mine how much each defendant is liable for under each claim.
Instead, the jury found all four appellants — the CDCR,
Ayers, Schwartz, and Lopez (whom we have ordered dis-
missed) — jointly and severally liable for the entire $600,000
in compensatory damages. The defendants do not challenge
on appeal the fact that the jury held them jointly and severally
liable for the entire award. They argue only that the amount
is not supported by substantial evidence.
[11] Assuming that the jury’s findings as to all of the vari-
ous claims were to stand, we would have no difficulty holding
that the total sum awarded was supported by substantial evi-
dence. We are left in a difficult position vis-à-vis the damages
award, however, because although we affirm the jury’s ver-
dict with respect to Freitag’s Title VII claims, we are remand-
ing her § 1983 claim. We do not wish to speculate whether
the entire amount of compensatory damages would be justi-
fied if only Freitag’s Title VII claims remained following the
district court’s reconsideration on remand, or what effect a
modification of the verdict as to the § 1983 claim might have
on the amount to be awarded. We prefer to leave that question
to the district court for its initial review, if such review is nec-
essary after it has addressed the harmless error question we
have asked it to consider with respect to the § 1983 claim.
Thus, we remand the jury’s damages award with instructions
to reconsider, if necessary, whether the $600,000 award of
compensatory damages remains valid. See Maynard v. City of
San Jose, 37 F.3d 1396, 1406 (9th Cir. 1994). Because the
award of $100 in punitive damages against each Ayers and
Schwartz was in connection with the § 1983 claim, we
FREITAG v. AYERS 18145
remand that award for reconsideration, if necessary, as well.
In addition, because the district court may wish to reconsider
the extent to which Freitag remains a prevailing party after it
determines what, if any, adjustments it must make with
respect to liability and damages, we also remand the issue of
attorneys’ fees for reconsideration, if necessary.
Injunctive Relief
The defendants assert that the district court abused its dis-
cretion in granting permanent injunctive relief. The sole con-
tention in support of their argument is that Freitag no longer
works for the CDCR and thus cannot benefit from the injunc-
tion.
The defendants cite only Rau v. Apple-Rio Management
Company, Inc., 85 F. Supp. 2d 1344 (N.D. Ga. 1999), in
which the district court granted a plaintiff limited injunctive
relief following a favorable jury verdict on her Title VII
claims. The court did not grant the plaintiff’s request that her
employer remove documents from her personnel file in part
because she was no longer an employee, despite the fact that
she opined that she could be reinstated if successful in a sepa-
rate claim for constructive discharge. Rau, 85 F. Supp. 2d at
1351 n.4. The defendants urge that Freitag’s re-employment
with the CDCR is similarly “speculative,” and thus that
injunctive relief on her behalf is not appropriate.
Without endorsing the Georgia district court decision, we
acknowledge that Freitag’s reinstatement to employment with
the CDCR is not certain. Nevertheless, when the district court
issued its injunction, Freitag was still in the process of pursu-
ing her state administrative appeal in which she maintains that
she is entitled to retain her position as a correctional officer
at Pelican Bay. Our decision in Nanty v. Barrows Co., 660
F.2d 1327 (9th Cir. 1981) (overruled on other grounds, O’Day
v. McDonnell Douglas Helicopter Co., 79 F.3d 756 (9th Cir.
1996)), is pertinent. In Nanty, we held that a Native American
18146 FREITAG v. AYERS
truck driver was unlawfully discriminated against under Title
VII when a company failed to hire him because of his race.
660 F.2d at 1332. Although we remanded Nanty’s request for
an injunction requiring the company to hire him because the
record was not clear whether it would have given him the job
absent its discriminatory actions, we held that he nevertheless
was entitled to an injunction prohibiting the company from
discriminating on the basis of race in its future hiring. Id. at
1333. We affirmed the injunction in part because the question
whether the plaintiff was entitled to the job he sought had not
been finally resolved and, thus, he retained a personal interest
in ensuring that the company’s discriminatory activity be
enjoined. See id.
[12] In California, permanent state employees possess a
property interest in their job, guaranteed by statute, with
attendant due process rights in their continued employment.
See Skelly v. State Personnel Bd., 539 P.2d 774, 784 (Cal.
1975). That interest and the attendant rights are not lost upon
termination but continue post-termination pending the final
resolution of the administrative proceeding before the Person-
nel Board. See id. at 789; see also CAL. GOV’T CODE
§§ 19575-78. The administrative process that will determine
whether Freitag remains entitled to her job with the CDCR is
pending, and thus her property interest and due process rights
have not been extinguished. More important, at the time the
district court issued the injunction, Freitag possessed a prop-
erty interest in her job and thus possessed a sufficient connec-
tion to her employment with the prison to support the issuance
of an injunction in her favor. We conclude, as did the district
court, that she has standing to seek an injunction affecting the
employment practices of the CDCR.
V
There was overwhelming evidence presented to the jury
that the CDCR maintained a hostile work environment at Peli-
can Bay by failing to take prompt and reasonable corrective
FREITAG v. AYERS 18147
action with respect to Freitag’s multiple complaints regarding
inmate exhibitionist masturbation directed at her and other
female correctional officers. There was also overwhelming
evidence that agents of the CDCR retaliated against Freitag as
a result of those complaints. For these reasons, we affirm the
jury’s verdict with respect to the CDCR’s liability under Title
VII. However, due to an intervening Supreme Court decision,
we remand for reconsideration of the jury’s finding that
Freitag’s superiors retaliated against her in violation of her
First Amendment rights in light of the instructional error
regarding constitutionally protected speech. In this connec-
tion, we direct the district court to determine whether such
error was harmless. Accordingly, we remand the damages
award and attorneys’ fees award as well. Because of insuffi-
ciency of the evidence, we reverse the § 1983 judgment
against Lopez. Finally, we affirm the district court’s grant of
injunctive relief.
AFFIRMED IN PART, REVERSED IN PART,
REMANDED IN PART.