Opposition Brief — Ayers v. Freitag, 127 S. Ct. 1918 (2007) (No. 06-1085)

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No. 06-1085

IN THE

Supreme Court of the United States

Ropert J. AYERS, JR., ET AL.,

Petitioners,

Vv.

DEANNA FREITAG,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UnNitTED STATES COuRT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

a erappunninpisiemneeaiiensmmneall

on i constentntient aamedinaenmenitetiontamel

CHARLES STEPHEN RALSTON PAMELA Y. PRICE

Attorney at Law Counsel of Record

2421 Valley Street PRICE AND ASSOCIATES

Berkeley, CA 94702 A Professional I.aw Corporation

(510) 540-9683 1611 Telegraph Avenue

Suite 1450

JOHN L. Burris

Law OFFICES OF

Joun L. Burris

7677 Oakport Street

Suite 1120

Oakland, CA 94621

(510) 839-5200

Counsel for Respondent

Oakland, CA 94612

(510) 452-0292

i

COUNTERSTATEMENT OF THE QUESTION PRESENTED

Did a correctly instructed jury, applying well-

established Title VII law, properly find that (a) the plaintiff-

respondent was subjected to a sexually hostile work

environment and that (b) the defendant-petitioner failed in iis

duty to take prompt effective remedial action once it was on

notice of the sexually hostile work environment?

ii

TABLE OF CONTENTS

Page:

COUNTER STATEMENT OF THE QUESTION PRESENTED .... i

TP PARITUMIEEED gece cc ccccccccccesecesecs ili

ee lec acces eevceetec ]

ee 2

ES 3

REASONS FOR DENYING THE PETITION .............-. 14

I. THE DECISION BELOW IS FULLY CONSISTENT

WITH DECISIONS OF THIS COURT ....... 14

A. Th isio elow_is Consist

i e Clark Cou d

wi niversity of Pennsylvania _y.

ee ok a 8 40s 4% pee 14

B. ision Below I ll

Consistent With Decisions

Regarding Deference to.

Prison Administrators ......... 18

I. THE DECISION BELOW DOES NoT CONFLICT

WITH DECISIONS OF OTHER CIRCUITS ... 20

If. THIS CASE DOES NOT PRESENT AN ISSUE OF

NATIONAL IMPORTANCE THAT NEEDS TO BE

RESOLVED BY THIS COURT ............ 22

eo vac eeeccceueese 24

il

TABLE OF CONTENTS

Page:

COUNTER STATEMENT OF THE QUESTION PRESENTED .... 1

BAR RAI 6 vk ode cednnetbecadivaetens lil

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I OE a. 6 cend chnncécedeéaneeereeas 2

UATE GE TRIG 4h ek eh dCi doen cncékeres es 3

REASONS FOR DENYING THE PETITION ............--.- 14

I. THE DECISION BELOW IS FULLY CONSISTENT

WITH DECISIONS OF THIS COURT ....... 14

A. e cision Below is Full

Consistent With This Court’s

Decisions in Oncale and Clark County

and University of Pennsylvania _v.

RR pe er Gre ee 14

B. The Decision Below Is Fully

Consistent With Decisions

Regarding Deference t

Prison Administrators ......... 18

Ul. THE DECISION BELOW DOES NOT CONFLICT

WITH DECISIONS OF OTHER CIRCUITS ... 20

Il. THIS CASE DOES NOT PRESENT AN ISSUE OF

NATIONAL IMPORTANCE THAT NEEDS TO BE

RESOLVED BY THIS COURT ............ 22

8 ARES Tega NR at Nh ta Tone a MORN ne BRS eee 24

ill

TABLE OF AUTHORITIES

Cases: Page:

Clark County School District v. Breeden,

De te RG Ki cod wedi sunenes 14, 15

Crist v. Focus Homes, Inc., 122 F.3d 1107

Pra CUE eas via rank vakecaweskies 19, 21

Dothard v. Rawlinson, 433 U.S. 321 (1977) ....... 17, 18

Farragher v. Bzca Raton, 524 U.S. 775 (1998) ....... 22

Garcetti v. Ceballos, 547 U.S. ___, 126 S. Ct. 1951,

ha PG GEEED one ben vacveedes canes. 3

Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) ... 22

Oncale v. Sundowner Offshore Services, Inc.,

ee See PORE A nod ook canes baseoens 14, 15

Powell v. Morris, 37 F.Supp.2d 1011 (S.D. Ohio) ..... 21

Robino v. Iranon, 145 F.3d 1109 (9" Cir. 1998) ....... 18

Slayton v. Ohio Department of Youth Services,

206 F.3d 669 (6" Cir. 2000) ...... 1, 19, 20, 21 23

University of Pennsylvania v. EEOC,

493 U.S. 182 (1990) ........... 1, 14, 15, 16, 17

Statute:

Title Vil of the Civil Rights Act of 1964, as amended by the

iv

Page:

Equal Employment Opportunity Act of 1972 ..... passim

Regulation:

ple 2 Oe 8 err er re rare oe ee py +

l

INTRODUCTION

Petitioners have presented no “compelling reasons”

for their Petition for a Writ of Certiorari to be granted. See

Sup. Ct. R. 10. The decision of the Ninth Circuit is not in

conflict with a decision of this Court. Indeed, Petitioners’

contention, that state departments of correction are exempt

from an important aspect of Title VII’s prohibition against

sexual harassment, conflicts with the decision of this Court in

University of Pennsylvania v. EEOC, 493 U.S. 182 (1990).

Further, the decision below does not conflict with

decisions of any other Court of Appeals. To the contrary, as

the Ninth Circuit demonstrates, its decision is in accord with

every other Court of Appeals that has addressed the issue.

Finally, the petition does not present an unresolved

issue of law that is of national importance or significance.

Contrary to the assertions of petitioners, there are not a

substantial number of cases in the lower federal courts

involving sexual harassment of female correctional officers

by prisoners and the failure of prison officials to take steps to

protect their employees from such conduct. Rather, as noted

recently by the Sixth Circuit, there have been only a few such

cases,' the decisions of the lower courts with regard to the

legal obligations of correctional departments as employers are

consistent, and, as established by testimony considered by the

jury in this case, other prison officials have taken appropriate

steps to control inmate sexual behavior that would create a

hostile working environment for their employees.

‘Slayton v. Ohio Department of Youth Services, 206 F.3d

669, 677-78 (6" Cir. 2000).

2

REGULATION INVOLVED

29 C.F.R. § 1604.11 provides in pertinent part:

Sexual harassment.

(a) Harassment on the basis of sex is a

violation of section 703 of title VIL

Unwelcome sexual advances, requests for

sexual favors, and other verbal or physical

conduct of a sexual nature constitute sexual

harassment when... (3) such conduct has the

purpose or effect of unreasonably interfering

with an individual's work performance or

creating an intimidating, hostile, or offensive

working environment.

(b) In determining whether alleged conduct

constitutes sexual harassment, the

Commission will look at the record as a whole

and at the totality of the circumstances, such

as the nature of the sexual advances and the

context in which the alleged incidents

occurred. The determination of the legality of

a particular action will be made from the facts,

on a case by case basis.

* * *

(e) An employer may also be responsible

for the acts of non-employees, with respect to

sexual harassment of employees in the

workplace, where the employer (or its agents

or supervisory employees) knows or should

have known of the conduct and fails to take

immediate and appropriate corrective action.

In reviewing these cases the Commission will

3

consider the extent of the employer's control

and any other legal responsibility which the

employer may have with respect to the

conduct of such non-employees.

[45 FR 74677, Nov. 10, 1980, as amended at 64 FR 58334,

Oct. 29, 1999] [footnote omitted].

STATEMENT OF THE CASE

This is an action brought pursuant to Title VII of the

Civil Rights Act of 1964, as amended by the Equal

Employment Opportunity Act of 1972, by Respondent, a

female correctional officer, against her employer, the

California Department of Corrections.’ Her essential claim

was that she had been subjected to a hostile working

environment because of sexual harassment by prisoners while

she worked at the facility at Pelican Bay, that her employer

knew of the harassment, and that it had failed to take

appropriate corrective action.

The case was tried before a jury, and after a lengthy

trial the jury, which had been instructed properly and in

accord with established Title VII law, rendered a verdict in

her favor.’ The jury was given a special verdict form with the

"In addition to other Title VII claims, respondent raised a

claim that she had been retaliated against for exercising her rights

under the First Amendment to the Constitution of the United

States. That claim was remanded by the Court of Appeals to the

District Court for further proceedings in light of this Court's

intervening decision in Garcetti v. Ceballos, 547U.S.__, 126S.

Ct. 1951, 164 L. Ed. 2d 689 (2006). Appendix to the Petition for

Writ of Certiorari (hereinafter, “App.”) at 5, 32-33.

>The Petitioners did not challenge below the instructions

given to the jury as they pertained to her Title VII sexual

4

following questions to which it gave the indicated answers:

Did Plaintiff prove, by a preponderance of the

evidence, that she was exposed to a sexually

hostile work environment because of inmate

conduct?

Answer: Yes.

Did Plaintiff prove, by a preponderance of the

evidence, that Defendant California

Department of Corrections knew or should

have known that she was being subjected to

inmate sexual misconduct?

Answer: Yes

Did Plaintiff prove, by a preponderance of the

evidence, that Defendant California

Department of Corrections failed to take

prompt and effective remedial action

reasonably calculated to curb or stop the

inmate sexual misconduct once it knew or

should have known that Plaintiff was being

subjected to this inmate behavior?

Answer: Yes.

Court of Appeals Excerpts of Record (“ER”), 2350-51.

The evidence presented at trial overwhelmingly

supported the jury’s verdict. Both Respondent and a number

of other female correctional officers testified as to the

deplorable conditions to which they were subjected. The

main problem was that inmates engaged in public

masturbation in front of female correctional officers. This

harassment claims.

5

conduct was long-standing, having begun in the 1990's.

Witnesses testified as to its pervasiveness, the impact the

conduct had on their ability to perform their duties, and the

failure of prison officials to take action in spite of being aware

of the conditions.‘

The constant and unchecked sexual harassment by the

inmates caused stress and anxiety for female officers that

interfered with their ability to perform their duties. Officer

Mayo testified that the incidents degraded her, made her feel

like the inmates were in control, and made her not want to do

her job. She further testified that she started getting

stomachaches and headaches, and on one occasion she had an

anxiety or panic attack. She eventually came to the point that

she would leave the unit in tears. SER 20; 28-29.

Officer Cruse testified that one inmate’s conduct gave

her nightmares. She stressed out and cried while she worked

in the control booth. At one point she told a sergeant that she

was quitting, saying, “I can’t take this any more. And I was

an emotional wreck.” Officer Aguirre had to go to the doctor

and “ended up on anti-depressants and sleeping pills because

I couldn’t sleep at night.” Eventually, if she was scheduled to

work in the yard she started calling in sick so that she did not

have to work in that unit. SER 65; 95-96.

Respondent testified that the actions of the inmates

and the resistance of the prison authorities against taking

*The Court of Appeals summarized Respondent’ s evidence

at App. 5-8. Record citations that follow are to the Supplementary

Excerpts of Record (“SER”) filed by Respondent in the Court of

Appeals.

6

action made her physically unable to go to work.’ She would

throw up and she began using sick time. Subsequently, she

sought help from her family physician, who referred her to a

psychiatrist. SER 381; 411; 489.

Respondent and other female correctional officers

complained on many occasions to their superiors of the

inmate’s behavior and its effects on them. Thus, female

officers informed Pelican Bay officials of the exhibitionist

behavior of the inmates and attempted to have them take

action to control the offensive activities and, thereby, to

ameliorate the hostile working environment the officers were

subjected to. As early as 1995, Officer Fraser went to the

Pelican Bay Equal Employment Opportunity officer and

asked that the problem be addressed. The EEO officer took

the position, in conformity with CDC policy, that inmate

behavior was not an EEO issue, since only actions of co-

workers were considered to give rise to sexual harassment

claims. Therefore, no action was taken on Officer Fraser’s

attempted complaint. SER 959.

Officer Mayo reported inmate threats and misconduct

to her supervisors, but “they were not receptive to my

complaints ....I felt they didn’t care. I felt they kind of

weren’t upset at all that 1 was having a bad time.” Because

her supervisors did not respond she then talked to prison

managers, including Petitioners Schwartz and Ayers, the

Associate Warden and Warden, respectively. She told them

about the problems she was having with an inmate “and that

*For example, Ms. Freitag testified regarding an occasion

when an inmate in a shower room masturbated and yelled, “Oh

God, I’m coming. I am up inside you Freitag.” As he was yelling,

other inmates joined in. Ms. Freitag testified that she felt “like |

was being publicly raped.” SER 300-01.

7

my supervisors were not providing me any support.”

However, nothing was done to offer her “any sort of

protection” by CDC. SER 14; 15-17. In March of 1998 she

filed an EEO complaint with the EEO officer, but it was

dismissed. SER 33-35.

Other female officers complained to supervisory and

administrative staff about the effect the inmate behavior had

on them. Officer Aguirre testified that she used to document

exhibitionist masturbation “all the time,” but eventually gave

up writing reports because “I felt nothing was being done or

that there wasn’t really anything being done.” SER 92.

Officer Cruse was told by her supervisor “You work in a male

institution. You need to deal with the problem.” SER 67.

A typical response was that “It’s only sex” and should

be expected in a facility for men. SER 304. Lieutenant David

Carmichael, the supervisor of the Special Housing Unit, did

not deny that he had responded to complaints about

exhibitionist masturbatory behavior by saying, “What’s the

big deal” and that he had told women correctional officers “to

just get over it, it’s part of the job.” SER 689

Respondent Freitag testified at length about her efforts

to bring the harassment to the attention of Pelican Bay and

CDC officials and to get them to take action. After a series of

futile attempts to have her immediate superiors take action,

she wrote to Petitioner Schwartz, one of the defendants, with

a copy to the warden, Petitioner Ayers, another defendant, on

April 7, 1999. The memorandum urged that action be taken

to prosecute inmates for indecent exposure and stated:

I should not have to feel raped every time

[named inmates] decides to target me or any

staff and for the supervisors’ callous exchange

_of me and other female staff, as a sexual favor

8

to gain [a named inmate]’s cooperation. ....

I have not named specific supervisors. My

object is to enforce the prosecution and

conviction of repeat offenders, offering

punitive action as a deterrent. Unless we can

prosecute at least the extreme offenders, then

every victim is a prostitute, treated like a

prostitute, exchanging cooperation for sexual

favors to alleviate paperwork and risk of

injury for other staff and supervisors.

SER 328-31; 1263.

In addition to the testimony of the Respondent and her

fellow correctional officers, she presented testimony from an

expert in correctional matters and the report of the Petitioner’s

own Inspector General in support of her claim.

William Katsaris, plaintiffs expert on prison

administration, first testified as to the deleterious effects of

the failure to control the harassment engaged in by the

inmates would have on the overall operation of the institution

as it related to controlling inmate behavior. Asked whether

the failure to address the complaints of officers that are

offended effects the prison environment, Mr. Katsaris stated:

Well, the inmates know a lot... . If, indeed

they know they can get away with something

and do, they simply work at it. . . . [W]here

you have got someone you dislike and you

believe that you have got some power or

control or something that you can do that

upsets them and nothing can be done about it

or is done about it, then it changes the nature

of the relationship. Well, in the institution, it

changes the condition of employment. And if

9

it’s serious and pervasive and is unwelcome,

then you have a hostile work environment .

SER 124.

Mr. Katsarsis further explained that the administration

has aresponsibility to both the inmates and the staff to control

the behavior of the inmates since, “if the inmates know that

nothing is being done about a particular issue, then the

inmates start to run the institution.” SER 125. In the case of

Pelican Bay, the administration gave control away to the

inmates. “They gave the inmate control. They empowered

the inmate by simply doing nothing.” SER 129.

Mr. Katsarsis testified in particular as to the three

inmates who were responsible for most of the masturbation in

the Security Housing Unit. He found that these inmates

“started exhibitionist masturbating to irritate the women

specifically.” With inmates exhibiting such behavior, it was

necessary “to start from day one to show them who is boss.”

SER 129. However, he testified,

1 found that they did not respond to the

exhibitionist masturbation issue and primarily

I believe that it was due to male supervisors

not having the belief that it was a problem or

if, indeed, they . . . did not have a paper trail

on these individuals, it wouldn’t look bad for

the institution. .... My opinion is that due to

the lack of intervention with this outburst of

behavior that continued from 1991 almost

unabated at the Security Housing Unit, created

that environment, empowered the inmates and

created a very hostile work environment for

the females.

It [the hostile work environment] was

10

most severe and most pervasive. I have a

listing of 101 women who were affected , and

complaining is not the problem.

SER 130-31.

Mr. Katsaris testified that there were many actions that

CDC officials could have taken to control the inmate’s

behavior but did not. For example, one of the prime offenders

was not controlled despite masturbation being a pervasive

action by him.

What is he doing not restrained? What is he

doing not on escort status? What is he doing

having the capability to do that when since

199] he has been that kind of problem. He

should have been on escort status all the time.

SER 132.

Mr. Katsaris outlined a number of actions that could

have been taken, including taking meaningful disciplinary

actions; taking away yard privileges if an inmate masturbated

in the yard; putting inmates in restraints while in the yard;

covering an inmate’s cell door window with a one-way

opaque covering; covering the windows of the control room

with a one-way mirrored finish so the inmates could not see

when there is a female officer on duty; videotaping inmate

behavior and using it during disciplinary proceedings; and

working with the District Attorney to prosecute the most

serious offenders for felony indecent behavior so as to

increase their sentences. SER 135-44; 164-65.

Mr. Karsaris emphasized that none of these measures

were expensive and that other institutions had instituted

them. In fact, Pelican Bay was “the only institution I have

come across that has a serious problem” with inmate

11

masturbation. SER 160. The Los Angeles County Jail, the

maximum facilities in Colorado and Texas, and Federal

institutions in Florence, Colorado, Marion, Illinois, and

Atlanta, Georgia, used mirrored material. SER 195-96.

Indeed, he “could go around the country where they use this

mirrored material just so they [the inmates] can’t see what

they are doing.” SER 144-45.

On cross-examination, Mr. Katsaris summed up his

testimony by re-emphasizing the vital importance of

controlling the inmates rather than having them control the

situation. Disciplining them, prosecuting them, taking away

yard privileges, requiring them to be shackled whenever they

move “takes control completely away from the inmate. Does,

indeed, restrict and control the inmate and to some degree

punish them for their deed.” SER 185-90.

{In addition to the testimony of Mr. Katsaris, testimony

from CDC personnel established that there had been a failure

to take steps that could have ended the hostile working

environment created by inmate behavior. In response to a

letter Respondent Freitag wrote to a state legislator, the CDC

Inspector General investigated the situation. Richard

Ramsdell, who was in charge of the Inspector General’s

investigation, testified that the office had oversight of the

Department of Corrections and had the ability to go in

pursuant to California Penal Code § 6126 “and look at issues

regarding how the practices of the prison, how things are

managed or not managed and conduct investigations if

needed.” SER 417.

The state investigative tearm went to Pelican Bay and

was provided documents regarding complaints made by

female staff members regarding indecent exposure and

masturbation by inmates. On the basis of the complaints and

other assessments, the team decided to go ahead with the

12

investigation. The purpose of the investigation was to assess

what management had done or not done regarding the

complaints by female staff members. Further, the

investigation would look into the disciplinary process for the

inmates committing the acts and whether cases were being

properly forwarded to the ‘ucal district attorney’s office for

prosecution. SER 423-27.

The team for the Inspector General’s office

interviewed approximately forty-six persons as part of its

investigation. The majority interviewed were employees,

along with several inmates. The team also looked at

documents, observed the physical layout of the security

housing unit, took photographs, and met with the district

attorney’s office regarding prosecution of inmates for

indecent exposure. The on-site investigation took place

between November and December 1999. SER 429-30.

Eventually, a report was prepared and presented to the

Director of Corrections. SER 4531-64.

The investigators determined, first, that there were

approximately twenty inmates who were subjecting female

staff to lewd, vulgar language and exhibitionist masturbation.

Further, the chief psychiatrist stated that “there is a

cumulative effect of female correctional officers being

repeatedly exposed to exhibitionist masturbation and could be

stress and depression.” The investigators found that:

... [T]he supervisors and top administrative

staff at Pelican Bay have not icsponded

appropriately to complaints about inmates

directing exhibitionist masturbation toward

female staff members and have made little

effort to take advantage of the options

available to control this behavior.

13

SER 440-41.

The report made a number of recommendations as to

what could be done, including moving problem inmates to

cells with limited visual access to the control booth, covering

the window on the door leading to the exercise yard so that

inmates could not see whether a female officer was

monitoring the yard surveillance camera, covering cells of

problem inmates with one-way mirrored film, providing

psychological counseling to problem inmates, making full use

of prison disciplinary process, forwarding matters to the

district attorney’s office, and providing training for all

existing correctional and supervisory staff on the effects on

staff members and appropriate handling of exhibitionist

masturbation behavior.° SER 446-48.

Based on this evidence, the jury rendered its verdict in

favor of Respondent and the District Court issued injunctive

relief requiring the CDC to develop a plan to control the

behavior of the inmates. Subsequently, the plan was put into

effect and CDC officials have claimed that the problem of

inmate indecent exposure at Pelican Bay has largely been

corrected.

The Court of Appeals, in a well-reasoned and

comprehensive opinion, rejected the argument of the

Petitioners that state correctional facilities are exempt from

the requirement of Title VII that employers must take action

to protect their employees Attorney at Law from sexual

°The assertion in the Question Presented in the Petition for

Writ of Certiorari that “guards are hired and trained to confront”

prisoner’s sexual misconduct is contradicted by the Inspector

General’s recommendation that correctional staff be trained as to

appropriate handling of exhibitionist masturbation behavior.

14

harassment by third parties. The court affirmed the findings

of the jury as fully supported by the evidence introduced at

trial.

REASONS FOR DENYING THE PETITION

The decision below does not conflict with decisions

of this Court or any Court of Appeals. Nor does it raise an

unresolved question of federal law that is of such importance

that it warrants review. Rather, the case involves the correct

application of established legal principles to the particular

facts as found by the jury. Accordingly, petitioners have not

demonstrated any compelling reason for the petition to be

granted.

I.

THE DECISION BELOW IS FULLY CONSISTENT

WITH DECISIONS OF THIS COURT.

A. The Decision Below is Consistent With

Oncale and Clark County and with University

of Pennsylvania v. EEQC

The facts in this case establish that the Respondent,

and other female correctional officers, was subjected to the

most egregious sexual harassment possible, short of actual

rape. Inmates committed gross acts of criminal indecent

behavior, including masturbation directed at them and with

the specific intent of harassing them and interfering with their

ability to perform their duties.

Petitioners totally failed in their obligation to take

reasonable and effective action even to control the atrocious

conduct of the inmates. The repeated complaints and

requests of Respondent and her fellow officers were met with

15

callous indifference, inaction, and contempt. They were told

to “get over it” because it was “only sex.” The inevitable

effect of the sexual conduct and the Petitioner’s inaction in

the face of it was to create a working environment so hostile

and degrading as to make it virtually impossible for

Respondent and other female correctional officers to carry out -

their duties.

Petitioners’ argument that the decision below is

inconsistent with this Court’s decisions in Oncale vy.

Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) and

Clark County School District v. Breeden, 532 U.S. 268 (2001)

and the other cases they cite, cannot be taken seriously. It is

hard to imagine a set of facts that more clearly establishes

“behavior . . . so objectively offensive as to alter the

conditions of the victim’s employment” (Oncale, 523 U.S. at

81) or sexual harassment “‘so severe or pervasive as to alter

the conditions of [the victim’s] employment and create an

abusive working environment’” (Clark County, 532 U.S. at

270). To compare the single incident concerning a vulgar

statement in a job statement involved in Clark County to the

barrage of vile language and disgusting conduct to which

Respondent was subjected to is absurd.

Petitioners claim that “The Ninth Circuit’s decision

eviscerates the application of Oncale and Clark County to

prisons” (Petition at pp. 11-12). To the contrary, what they

seek is the evisceration of Title VII’s protection against

sexual harassment as it applies to prisons. However, there is

no basis in either the statute or policy to exempt prisons from

this important protection for their employees. To do so would

conflict with this Court’s decision in University of

Pennsylvania v. EEOC, 493 U.S. 182 (1990)

In University of Pennsylvania. this Court refused to

allow a special privilege to academic institutions for peer

16

tenure reviews based on the special nature of university

employment proceedings. The Court noted that in 1972,

when Congress eliminated the exemption of institutions of

higher education from Title VII (and when it also eliminated

the exemption of state employers such as CDC), the

extension of Title VII was Congress’

considered response to the widespread and

compelling problem of invidious

discrimination in educational institutions. The

House Report focused specifically on

discrimination in higher education, including

the lack of access for women and minorities to

higher ranking (i. e., tenured) academic

positions. See H. R. Rep. No. 92-238, pp. 19-

20 (1971). Significantly, opponents of the

extension claimed that enforcement of Title

VII would weaken institutions of higher

education by interfering with decisions to hire

and promote faculty members. Petitioner

therefore cannot seriously contend that

Congress was oblivious to concerns of

academic autonomy when it abandoned the

exemption for educational institutions.

The effect of the elimination of this

exemption was to expose tenure

determinations to the same enforcement

procedures applicable to other employment

decisions.

493 U.S. at 190 (emphasis added; footnote omitted).

Hence, the Court held, unless Title VII specifically

provides that a particular employer is subject to different rules

of law than others, the statute will be applied uniformly. For,

17

“Congress has made the choice. If it dislikes the result, it of

course may revise the statute.” 493 U.S. at 194.

There is nothing in Title VII that even suggests that a

state correctional department enjoys any special status. See,

Dothard v. Rawlinson, 433 U.S. 321 (1977) where the Court

applied the same standard that governed private employers for

determining business necessity to height and weight

requirement imposed by state prison authorities. In Dothard,

the state contended that “the establishment of the minimum

height and weight standards by statute requires that they be

given greater deference than is typically given private

employer-established job qualifications.” 433 U.S. at 331-32,

n. 14. The Court rejected the argument since in the legislative

history of the 1972 amendments that extended Title VII to the

states “Congress expressly indicated the intent that the same

Title VII principles be applied to governmental and private

employers alike.” Jbid.

To accept the arguments made by Petitioners would

have precisely the result this Court warned against when it

rejected the argument made in University of Pennsylvania v.

EEOC for a special privilege rule for universities:

Acceptance of petitioner’s claim would also

lead to a wave of similar privilege claims by

other employers. ... We perceive no limiting

principle in petitioner’s argument.

493 U.S. at 194. Similarly, here, if the Court accepted CDC’s

argument that it should be governed by different legal

standards under Title VII because of the nature of its business,

other employers in the public sector can make the same claim.

The issue raised by the facts of this case is whether

Respondent is entitled to the same protection against

pervasive, severe, and objectively offensive sexual

18

harassment as are all other employees who are protected by

Title VII. The decision of the Ninth Circuit that she is so

entitled does not conflict with any decisions of this Court.

B. The Decision Below Is Fully Consistent With

Decisions Regarding Deference to Prison

Administrators

Petitioners further argue that the decision below ©

somehow conflicts with decisions of this Court holding that

federal courts should defer to the discretion of prison

administrators. There is no such conflict in the application

of the standards of Title VII to protect prison personnel

against sexual harassment by inmates.

To begin with, cases holding that Title VII’s bona fide

occupational qualification provision can permit prison

officials not to assign female guards to male institutions, and

vice versa, are inapplicable. The California Department of

Corrections has decided to assign female guards to Pelican

Bay and, once having done so, is not exempt from the

requirement that it comply with Title VII regarding their

working conditions. See, Dothard v. Rawlinson, 433 U.S. at

331-32, n. 14.

More importantly, the facts in this case did not involve

a dispute as to whether measures taken by prison officials

were, in their opinion, adequate or were all that could be

done. For example, in the case of Robino v. Iranon, 145 F.3d

1109 (9" Cir. 1998), cited by Petitioners, the Ninth Circuit

held that the judgments of the prison officials were “entitled

to substantial weight when they are the product of a reasoned

decision-making process, based on available information and

experience.” 145 F.3d at 1110. In the present case, CDC did

not present any evidence at trial of a reasoned decision-

making process addressing the issue of sexual harassment by

19

inmates. To the contrary, the evidence established that the

failure of CDC to control the inmate behavior had a

devastating impact on the ability of female officers to do their

jobs. Moreover, there was ample evidence that the failure of

the CDC to take appropriate remedial steps was due more to

the attitude of male supervisory personnel that the conduct of

the prisoners was “no big deal” and should be expected, than

to any “reasoned decision-making process.”

Thus, the evidence fully supports the jury’s conclusion

that the Petitioners failed to take “prompt and effective”

action to correct the conditions.* In the present case there

was a factual dispute as to whether the CDC and its agents

had taken action that was either prompt or effective, and the

evidence clearly supports the jury’s conclusion that they had

not.” Petitioners fail to note that the report of the CDC’s own

’The Inspector General’s investigator testified that the

prison’s EEO officer told him that he believed that the inmates’

actions were because the female officers were “a bunch of

lesbians.”

®The lower courts have consistently held that whether the

action taken was “immediate and effective” is a question of fact to

be determined, as in this case, by the jury. See, e.g., Crist v. Focus

Homes, Inc., 122 F.3d 1197, 1112 (8" Cir. 1997); Slayton v. Ohio

Department of Youth Services, 206 F.3d 669 (6" Cir. 2000).

*The jury was instructed that “The defendants contend that

they took all reasonable steps to reduce the frequency of SHU

inmate masturbation,” and that “Plaintiff must show that the

California Department of Corrections’ Responses to that

environment were legally inadequate”, that is, that the CDC “failed

to take prompt, effective remedial action reasonably calculated to

end the harassment.” Further, if the CDC “identified prompt

remedial action which was reasonably calculated to curb or stop

20

Inspector General found that the CDC had failed to act to

control the inmate’s behavior and provided numerous

examples of actions CDC and the Pelican Bay officials could

have taken consistent with good prison administration.

18

THE DECISION BELOW DOES NoT CONFLICT WITH

DECISIONS OF OTHER CIRCUITS

Despite Petitioners’ suggestions to the contrary, the

holding of the Ninth Circuit is fully consistent with decisions

of other circuits. Thus, the lower court appropriately noted

that prisons and similar institutions were different than other

employers, and that the differences must be taken into account

in deciding whether a correctional department is liable for

prisoner misconduct. It discussed Slayton v. Ohio

Department of Youth Services, 206 F.3d 669 (6" Cir. 2000),

which held that prisoner conduct without more was not

enough for liability, given the nature of the prison

environment, but went on to hold:

However, this general rule against prison

liability for inmate conduct does not apply

where the institution fails to take appropriate

the inmate conduct” the jury “must find for the defendant.” The

trial court instructed that “whether the defendant’s remedial action

is reasonable and adequate depends upon the remedy’s ability to

curb or stop the sexually hostile inmate conduct from continuing

and to discourage other potential inmate offenders from engaging

in similar sexually hostile conduct.” The court listed a number of

factors for the jury to consider in determining whether any

remedial action was “reasonably calculated” to prevent the

sexually hostile conduct. ER 2312-18. The Petitioners did not

object to these instructions or challenge them in the Court of

Appeals.

21

steps to remedy or prevent illegal inmate

behavior.

206 F.3d at 677. Whether the institution had failed to take

appropriate steps was a question of fact, not one of law.

Slayton cited Powell v. Morris, 37 F.Supp.2d 1011 (S.D.

Ohio), which similarly stated:

Courts have repeatedly declined to impose

sexual harassment liability upon correctional

institutions for the sexually offensive conduct

of inmates, as long as the defendant

institution took proper preventive and

remedial steps with regard to inmate

behavior.

37 F.Supp.2d at 1017 (emphasis added).'°

Similarly, in Crist v. Focus Homes, Inc., 122 F.3d

1107 (8" Cir. 1997) the Eighth Circuit reversed a grant of

summary judgment against the plaintiff, who was employed

at a facility for mentally-incapacitated persons. The district

court had held, in essence, that the facility was not liable as a

matter of law because it could not control the patients. The

court of appeals disagreed, holding:

While we recognize that Focus Homes faced

multiple obstacles in immediately preventing

J.L. [the inmate] from acting out, including

J.L.’s limited ability to understand or respond

to directives and the regulatory framework

"The actual holding of Powell was that there was

insufficient evidence of sexual harassment since the plaintiff

pointed to only one incident. The record, here, of course, presents

a picture of pervasive and continual acts of sexual harassment.

22

within which Focus Homes must operate, that

does not end the inquiry. Focus Homes

clearly controlled the environment in which

J.L. resided, and it had the ability to alter

those conditions to a substantial degree.

122 F.3d at 1111-1112. '

iil.

THIS CASE DOES NOT PRESENT AN ISSUE OF NATIONAL

IMPORTANCE THAT NEEDS TO BE RESOLVED BY THIS COURT

In 1980 the Equal Employment Opportunity

Commission issued its guideline that employers may be held

liable for the acts of non-employees where the employer

“knows or should have know of the conduct and fails to take

immediate and appropriate corrective action.” 29 C.F.R. §

1604.11(e). See, Meritor Savings Bank v. Vinson, 477 U.S.

57, 65-66 (1986) (citing § 1604.11 as supporting the Court’s

interpretation of Title VII regarding sexual harassment);

Farragner v. Boca Raton, 524 U.S. 775, 799-80 (1998)

(citing with approval the similar standard in § 1604.1 1(d) for

employer liability for co-worker conduct). And the lower

federal courts have consistently applied the EEOC guideline

in a variety of contexts.

Petitioners urge the Court that it should review the

decision below “rather than wait for other circuit courts to

''The Eighth Circuit further held that what could be done

to control the patient’s conduct was the subject of a conflict of

opinion between the experts produced by the parties. Their

testimony raised a factual dispute, so that an inquiry into the facts

could not be foreclosed by ruling as a matter of law that there

could not be ability. 122 F.3d at 1112.

23

consider the issue further.” However, there is no basis to

conclude that the question of the applicability of standard

sexual harassment law to prison employees is either in doubt

or of general importance. Other than the two cases in

California and the handful of decisions in other circuits — all

of which are consistent with each other — the issue has not

been a matter of wide litigation. As the Sixth Circuit noted

in Slayton v. Ohio Department of Youth Services: “there is

scant appellate case law on this question.” 206 F.3d at 677

(discussing the cases as of 2000).

The reason for the few cases raising the issue of

sexual harassment by prisoners may lie in the fact that, as

testified to by Respondent’s expert, Pelican Bay was the only

institution he had come across that had a serious problem with

inmate masturbation, citing the Los Angeles County Jail, the

maximum facilities in Colorado and Texas, and Federal

institutions in Florence, Colorado, Marion, Illinois, and

Atlanta, Georgia, as having dealt effectively with the problem.

The Petitioners failed in their duty to take appropriate

steps to protect its employees at Pelican Bay from the

egregious behavior of inmates. The decision of the Ninth

Circuit is fully consistent with decisions of this Court, of

every other circuit that has considered the issue, and with

long-standing principles of Title VI. law. There is no reason,

let alone a compelling one, for this Court to review that

decision.

24

CONCLUSION

For the foregoing reasons, the Petition for Writ of

Certiorari should be denied.

Respectfully Submitted,

PAMELA Y. PRICE

Counsel of Record

PRICE AND ASSOCIATES

A Professional Law Corporation

1611 Telegraph Ave., Ste. 1450

Oakland, CA 94612

(510) 452-0292

CHARLES STEPHEN RALSTON

Attorney at Law

2421 Valley Street

Berkeley, CA 94702

(510) 540-9683

JOHN L. BURRIS

Law Offices of John L. Burris

7677 Oakport Street, Suite 1120

Oakland, CA 94621

(510) 839-5200

Attorneys for Respondent