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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007

## Text

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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
wx o-6. 8 Sew 5.o0n 080045320008 eu eeEeS |
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2132%3A2. Public record. Not legal advice.