DEANNA L. FREITAG, Plaintiff - Appellee, v. CALIFORNIA DEPARTMENT OF CORRECTIONS; et al., Defendants, and ROBERT J. AYERS, JR.; et al., Defendants - Appellants.

No. 07-16200

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

289 Fed. Appx. 146; 2008 U.S. App. LEXIS 8323

April 8, 2008 ** , Submitted, San Francisco, California


** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
April 11, 2008, Filed

NOTICE: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.


[*147] MEMORANDUM *

FOOTNOTES

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.


Before: REINHARDT, NOONAN, and HAWKINS, Circuit Judges.

This case returns to us after a limited remand to the district court. Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006) [hereinafter Freitag I].

I.

We agree with the district court that Freitag's letter to Terhune was made as a citizen and not as a government [**2] employee. First, unlike in Garcetti v. Ceballos, Freitag's speech did not "owe[] its existence to [Freitag's] professional responsibilities" as a correctional officer. 547 U.S. 410, 126 S. Ct. 1951, 1960, 164 L. Ed. 2d 689 (2006). Neither party contends that Freitag's letter was part of the grievance process. Indeed, both Freitag's union representative and Defendant Ayers acknowledged during trial that they did not construe the letter as a grievance. Second, Freitag's letter was written outside of working hours, on her personal stationary, and listing her home address. The private nature of the correspondence is further evidenced by the fact that Terhune responded to the letter by calling Freitag at home to discuss its contents. Third, Freitag's letter did not request any specific remedy, such as a job reassignment. Rather, it described the events taking place at Pelican Bay, criticized the supervisors' failure to take action, and noted CDCR's obligations to the public to ensure that dangerous inmates were not "release[d] . . . due to slothful negligence or callous indifference." Accordingly, we agree with the district court that Freitag's letter to Terhune constitutes protected speech. 1

FOOTNOTES

1 We reject Defendants' arguments [**3] that "[b]ecause [Freitag's] letter . . . had official consequences, the letter owed its existence to her professional responsibilities . . . ." As this case illustrates, many actions taken as a citizen, including writing a letter to a Senator or an Inspector General, may have "official consequences[,]" such as the initiation of investigations into misconduct. Such consequences are not necessarily the mark of employee speech; in some cases, as in this one, they are an indicator of a citizen's successful advocacy.


[*148] II.

We also agree with the district court that the error in the jury instruction was "more probably than not harmless." Swinton v. Potomac Corp., 270 F.3d 794, 805 (9th Cir. 2001) (internal citation omitted). First, in its instructions, the district court provided the jury with six examples of protected speech, only two of which we determined were unprotected in light of Ceballos. See Freitag, 468 F.3d at 544. Moreover, the special verdict form framed the First Amendment question primarily in terms of protected speech, citing as "protected activity . . . [Freitag's] complaints about inmate sexual misconduct or her complaints about Defendant California Department of Corrections' [**4] response to inmate exhibitionist masturbation." Second, the "overwhelming evidence presented at trial" reflects that the retaliatory acts were based on protected speech. Swinton, 270 F.3d at 806. Freitag testified that eight days after she sent her letter to Director Terhune, she saw Terhune and Defendant Ayers walking together in the prison area. That same day, Freitag was relieved of her position in the Security Housing Unit pending a psychiatric evaluation. 2 In July and August 1999, Freitag was the subject of two internal affairs investigations initiated by Ayers and, following her letters to Senator Polanco, she was investigated two more times. Freitag, 468 F.3d at 535. Ultimately, Defendant Schwartz sent Freitag preliminary and final notices of adverse action arising out of these internal affairs investigations and Freitag was terminated, effective June 23, 2000. Id. at 535-36. See Freitag v. Cal. Dep't of Corrections, 2007 U.S. Dist. LEXIS 43769, 2007 WL 1670307, at *6 (describing how defendant "Schwartz's actions contributed to the building of an unfavorable personnel file and to the perception that Plaintiff was a dishonest officer, the grounds on which Ayers relied in dismissing her from her position"). Third, there is no dispute [**5] that Freitag's counsel's closing argument emphasized retaliation taken for protected activities, including the letter to Terhune and reports to public officials.

FOOTNOTES

2 Defendants dispute that they knew of the letter to Director Terhune on April 23, 1999, when Freitag was reassigned and sent for a psychiatric examination. Freitag's testimony that she saw Terhune and Ayers together at the prison that day contradicts this assertion. Even assuming that the jury did not believe Freitag's testimony in this respect, it is clear that Defendant Ayers was aware of the letter by May 18, 1999, the day after the regional administrator sent Ayers notice that Terhune had received a staff complaint from Freitag. There is overwhelming evidence that the defendants engaged in retaliatory action after this date.


Taking into consideration the jury instructions as a whole, counsel's closing arguments, and the overwhelming evidence presented at trial that the defendants' retaliatory acts were committed after Freitag engaged in protected speech, we agree with the district court that the erroneous inclusion of two examples of unprotected speech in the jury instructions was "more probably than not harmless." Swinton, 270 F.3d at 805. [**6] 3

FOOTNOTES

3 In their briefing, both parties raise additional issues that are beyond the limited scope of our remand. Freitag argues that Defendants failed to preserve the issue of erroneous jury instructions. Brief for Appellee at 25 n.7. Defendants raise evidentiary objections as well as a qualified immunity defense. Brief for Appellants at 56-65. We decline to address any issues beyond the scope of those that we asked the district court to reconsider. We do note with approval, however, the district court's rejection of Defendants' qualified immunity defense. As the district court said, "there was no uncertainty - nor is there any now, following Ceballos - that a public employee speaking as a citizen on a matter of public concern is entitled to the protections of the First Amendment . . . . Ceballos did not establish a new right; it only narrowed the scope of an existing one. Freitag's First Amendment right to contact the director of the CDC, a state senator, and the Inspector General as a concerned citizen were clearly established during the relevant time period, and Defendants could not have reasonably believed that their actions against Freitag were lawful." Freitag v. Cal. Dep't of Corrections, 2007 U.S. Dist. LEXIS 43769, 2007 WL 1670307 (N.D. Cal. June 6, 2007), at *5.


[*149] III.

Because [**7] we affirm the district court's findings that the Terhune letter constitutes protected speech and that the instructional error was more probably than not harmless, we leave intact its determination that the jury's compensatory and punitive damages awards should remain undisturbed. It follows that the district court's decision not to alter the attorneys' fees award was correct.

For the reasons set forth above, the decision of the district court is AFFIRMED.


DISSENT

NOONAN, Circuit Judge, dissenting:

As the Supreme Court acknowledged in its 5-4 decision in Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006), it has been difficult to differentiate between citizen speech and employee speech "that has some potential to affect the entity's operation." Difficult, delicate as the differentiation is, it seems to me that Freitag wrote Terhune as a professional prison employee.

DEANNA L. FREITAG, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., Defendants.

NO. C00-2278 TEH

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

2007 U.S. Dist. LEXIS 43769; 26 I.E.R. Cas. (BNA) 634


June 6, 2007, Decided
June 6, 2007, Filed

OPINION


ORDER GRANTING PLAINTIFF'S MOTION RE: REMANDED ISSUES

This matter came before the Court on Monday, June 4, 2007, on Plaintiff Deanna Freitag's motion regarding the issues remanded to this Court by the United States Court of Appeals for the Ninth Circuit. [*2] After carefully reviewing the parties' written and oral arguments, the record, and relevant law, the Court now GRANTS Freitag's motion for the reasons discussed below.

BACKGROUND

On April 2, 2003, a jury found that Defendant California Department of Corrections ("CDC"), now the California Department of Corrections and Rehabilitation ("CDCR"), violated Freitag's rights under Title VII and that Defendants Robert J. Ayers, Jr., Teresa Schwartz, and Augustine Lopez retaliated against Freitag in violation of her First Amendment rights. Judgment was entered on May 5, 2003, and Freitag subsequently brought a motion to amend the judgment to include permanent injunctive relief. On August 18, 2003, this Court granted in part and denied in part Freitag's motion and entered the following permanent injunction:

The California Department of Corrections, its 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 [*3] State Prison, or otherwise discriminating against any Pelican Bay State Prison employee on the basis of sex. The California Department 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 practices, 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 unlawful by Title VII.

Aug. 18, 2003 Order Granting in Part & Denying in Part Pl.'s Mot. to Am. J. to Include Perm. Inj. Relief at 8. The Court also referred this case to Special Master John Hagar and the Madrid v. Gomez (now Madrid v. Tilton) team for "development of a remedial plan to address the problem of inmate exhibitionist masturbation" at Pelican Bay State Prison. Id. at 9-10. On July 16, 2004, the Court adopted the Special Master's report and recommendations with minor modifications and, on October 18, 2004, denied Freitag's request for additional, more specific injunctive relief to prohibit retaliation.

Defendants timely appealed [*4] the jury's verdict and the permanent injunction entered by the Court. The United States Court of Appeals for the Ninth Circuit issued its decision affirming in part, reversing in part, and remanding in part on September 13, 2006, and made minor amendments to that decision on November 3, 2006. Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006), cert. denied, 127 S. Ct. 1918, 167 L. Ed. 2d 567 (2007). The appellate court affirmed the jury's verdict on Freitag's Title VII claims and also affirmed this Court's grant of injunctive relief. Id. at 548. The court reversed the First Amendment retaliation judgment against Defendant Lopez based on insufficiency of the evidence. Id. at 543 n.8.

The Ninth Circuit remanded the remainder of Freitag's First Amendment claims to this Court "due to an intervening Supreme Court decision" affecting the types of speech by a public employee that are protected by the First Amendment. Id. at 548. This Court instructed the jury that the following six items were examples of protected speech:

(a) Reporting sexually hostile inmate conduct to agents of the California Department of Corrections, [*5] either formally or informally;

(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 sexually hostile conduct or of Pelican Bay State Prison's responses or failures to respond;

(d) Informing State Senator Richard Polanco either of sexually hostile inmate conduct or of 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.

Id. at 544. The Ninth Circuit considered the validity of this instruction in light of the intervening Supreme Court decision in Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006). The court held that the last three examples listed in the jury instruction were "communications . . . . protected under the First Amendment" because Freitag was acting as a citizen and not an employee when she made [*6] the communications and because Freitag's complaints addressed a matter of public concern. Freitag, 468 F.3d at 545-46. However, the court also held that, "[t]o 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 pursuant to her official duties as a correctional officer and thus not in her capacity as a citizen." Id. at 546. The court remanded to this Court the issue of "[w]hether Freitag's April 15, 1999 letter to Terhune is protected under the First Amendment" because the court was "unsure whether prison guards are expected to air complaints regarding conditions in their prisons all the way up to the Director of the CDCR at the state capitol in Sacramento." Id. The court added that it was "not aware, for example, what the union contract provides with respect to the persons to whom such grievances may or must be presented." Id.

The Ninth Circuit also remanded to this Court the issue of "whether the jury instruction, which included as examples of [*7] protected speech either two or three items of unprotected speech, was more probably than not harmless." Id. Because the court remanded Freitag's § 1983 First Amendment claim, it also remanded "the jury's damages award with instructions to reconsider, if necessary [after addressing the harmless error question], whether the $ 600,000 award of compensatory damages remains valid," as well as remanding "the issue of attorneys' fees for reconsideration, if necessary." Id. at 547.

On remand, the Court referred this case back to Magistrate Judge Maria-Elena James for a further mandatory settlement conference. Judge James conducted a settlement conference on March 16, 2007. The case did not settle, and this motion followed. The Court now discusses in turn below each issue raised by Freitag's motion.

DISCUSSION

I. Whether Freitag's Letter to Cal Terhune Was Protected Speech

The Court first considers whether Freitag's April 15, 1999 letter to Cal Terhune, the then-director of the CDC, constitutes protected First Amendment speech. A public employee's speech is constitutionally protected if the speech relates to a matter of "public concern" and the [*8] employee's interests in making that speech as a concerned citizen outweigh the state's interests in controlling and managing its employees. Connick v. Myers, 461 U.S. 138, 143, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983); Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968). The Ninth Circuit held that Freitag's "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" clearly address a matter of public concern. Freitag, 468 F.3d at 545-46. Although the court made this statement with respect to Freitag's letter to Senator Polanco and communications with the Inspector General, it applies equally to her letter to Terhune since all three communications concerned the same subject matter.

Defendants next argue that even if Freitag's letter to Terhune was written as a concerned citizen rather than as a public employee, it was nonetheless not subject to First Amendment protections because the value of allowing her speech does not outweigh "the government's interest in effective and efficient fulfillment of its responsibilities to the public." [*9] Connick, 461 U.S. at 150. 1 However, not only was this issue apparently not raised by Defendants on appeal, but Ceballos and the error in the jury instruction identified by the Ninth Circuit also have no bearing on the question of disruption of the workplace. In reaching a verdict for Freitag on her First Amendment claim, the jury necessarily rejected Defendants' disruption argument; the jury could not have reached a verdict for Freitag had it found sufficient disruption to the workplace to outweigh Freitag's right to free speech.

FOOTNOTES

1 Defendants incorrectly cite to page 146 of the Connick opinion. Opp'n at 11.


Thus, the only issue remaining for this Court's resolution is whether Freitag's letter to Terhune was speech made as a citizen or as an employee. In Ceballos, the Supreme Court held "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 [*10] communications from employer discipline." 126 S. Ct. at 1960. Ceballos was therefore not entitled to First Amendment protection for writing an internal memorandum to his supervisors regarding what he believed to be misconduct in an investigation because writing such memoranda "is part of what he, as a calendar deputy, was employed to do. . . . [T]he memo was written pursuant to Ceballos' official duties. Restricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen." Id.

Here, the Court is convinced that Freitag's letter to Terhune did not "owe[] its existence to [Freitag's] professional responsibilities." Id. Although it is undisputed that Terhune, as the departmental director, represented the third level in the grievance process, there is no evidence that Freitag's letter was part of any grievance; in fact, the evidence at trial points to the contrary. For example, Warden Ayers testified that he was not "ever presented with the [sic] grievance by or on behalf of Officer Freitag concerning Pelican Bay's response or lack thereof to her [*11] complaints of indecent inmate exhibitionism." Trial Tr. at 2235:17-23. 2 Similarly, a union representative at Pelican Bay testified that Freitag did not "ever ask [him] to file a union grievance over inmate masturbation at Pelican Bay State Prison." Id. at 878:14-16. Nor have Defendants pointed to any evidence that Freitag was in any way required by her official job duties to raise her concerns with Terhune, even if she had the right to do so as part of the grievance process after first attempting resolution with her immediate supervisor and with the warden. In addition, Freitag's letter to Terhune was not written on official or departmental stationery and, instead, listed Freitag's home address. Trial Ex. 69 (Ex. C to Manford Decl.). Beyond that, the contents of the letter fail to ask Terhune for any remedy specific to Freitag, such as a request for a job reassignment that Defendants mentioned during oral argument, and Freitag even referenced the CDC's obligations to the public: "And, the Department of Corrections owes more to the public than to release an injury [sic, presumably should have been inmate] due to slothful negligence or callous indifference." Id. Such language [*12] "undoubtedly 'bore similarities to letters submitted by numerous citizens every day.'" Freitag, 468 F.3d at 545 (quoting Ceballos, 126 S. Ct. at 1960). Based on the evidence presented at trial, the Court therefore concludes that Freitag's letter to Terhune was written not as an employee, but as a citizen. 3

FOOTNOTES

2 Although Freitag cited this page of the transcript in her reply brief, she failed to submit a copy to the Court via a supporting declaration. Nor did Freitag submit copies of any of the portions of the trial transcript or other trial documents cited in her opening or reply briefs. It is insufficient simply to cite to entries in the Court's docket. Copies of cited documents must be submitted via a supporting declaration. If either party fails to comply with this rule in the future, they may expect the imposition of monetary sanctions.

3 The Court considered only the evidence at trial and did not rely on any of the disputed declarations submitted by Freitag in connection with the instant motion.


[*13] The Terhune letter is indistinguishable in all material respects from Freitag's letter to Senator Polanco. Defendants apparently acknowledge this fact by arguing that, just as the Terhune letter was part of Freitag's official job responsibilities, so was the Polanco letter. For instance, Defendants argue that, like her letter to Terhune, Freitag's letter to Senator Polanco, as chair of the joint legislative prison operations committee, "could also be considered to have been in Freitag's chain of command" and thus part of her "official responsibilities." Opp'n at 7. Defendants later assert that Terhune and Polanco were in Freitag's "chain of command" and had "oversight authority" at Pelican Bay, and that therefore Freitag's job responsibilities "oblige[d] her to report her concerns about inmate harassment, and PBSP's response to it" to both individuals. Id. at 15. A primary flaw in Defendants' argument is that the Ninth Circuit squarely held that Freitag was not acting pursuant to her official job duties when writing to Polanco. Freitag, 468 F.3d at 545. By analogy, it can be said that she also was not acting pursuant to her official job duties when writing to [*14] Terhune outside of the formal grievance process. "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.

II. Whether Defendants Are Protected by Qualified Immunity

Defendants next argue that Ceballos created such a change in the law that Defendants Ayers and Schwartz are entitled to qualified immunity on Freitag's First Amendment claim. The Court rejects this argument. 4 The only rights at issue in this case that were not clearly established in light of Ceballos were a public employee's rights regarding speech made in the course of performing his or her official duties. Ceballos did not change the long-standing right of a public employee to speak out on matters of public concern as a citizen, as long as that right was not outweighed by the government's interests in suppressing such speech. See, e.g., Connick, 461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed. 2d 708; Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 99 S. Ct. 693, 58 L. Ed. 2d 619 (1979); Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972); Pickering, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811. Prior to [*15] Ceballos, there may have been some uncertainty regarding the legality of retaliating against a public employee who spoke as part of his or her official job responsibilities on a matter of public concern; however, there was no uncertainty - nor is there any now, following Ceballos - that a public employee speaking as a citizen on a matter of public concern is entitled to the protections of the First Amendment (unless the employer is justified in restricting such speech due to factors, such as disruption of the workplace, not present here). Ceballos did not establish a new right; it only narrowed the scope of an existing one. Freitag's First Amendment right to contact the director of the CDC, a state senator, and the Inspector General as a concerned citizen were clearly established during the relevant time period, and Defendants could not have reasonably believed that their actions against Freitag were lawful.

FOOTNOTES

4 Additionally, the Court notes that qualified immunity was not an issue that the Ninth Circuit remanded to this Court for further consideration.


[*16] III. Whether the Erroneous Jury Instruction on Protected Speech Was Harmless

The Court now turns to the second issue remanded by the Ninth Circuit:

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 erroneous 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.

Freitag, 468 F.3d at 546 (citing Swinton v. Potomac Corp., 270 F.3d 794 (9th Cir. 2001)). 5 Thus, this Court must determine whether it is more probable than not that the jury would have reached the same verdict had it not considered "Freitag's internal reports of inmate sexual misconduct and documentation of the prison's failure to respond," but instead only considered the speech that remains protected following [*17] Ceballos -- i.e., Freitag's letter to Terhune, her letters to Polanco, and her oral and written communication with the Office of the Inspector General. Id. at 546; see also, e.g., Haddad v. Lockheed Cal. Corp., 720 F.2d 1454, 1459 (9th Cir. 1983) (holding that the harmless error standard in the context of an erroneous civil jury instruction is whether "the jury's verdict is more probably than not untainted by the error"). The question is not whether the jury considered the unprotected speech; instead, the question is whether the jury would still more probably than not have found Defendants Schwartz and Ayers liable for First Amendment retaliation even if it did not consider such speech. The harmless error standard differs from the standard for reviewing a verdict for sufficiency of the evidence in that "[i]n reviewing a civil jury instruction for harmless error, the prevailing party is not entitled to have disputed factual questions resolved in his favor because the jury's verdict may have resulted from a misapprehension of law rather than from factual determinations in favor of the prevailing party." Caballero v. City of Concord, 956 F.2d 204, 207 (9th Cir. 1992). [*18]

FOOTNOTES

5 In light of the Ninth Circuit's specific instruction to this Court to decide this issue, Freitag's argument that Defendants failed to preserve the issue of erroneous jury instructions is unpersuasive. The appellate court evidently found the issue to be preserved on appeal.


Based on this Court's knowledge of the facts presented at trial, it concludes that the erroneous jury instruction was harmless for the reasons discussed below. Defendants do not dispute that Freitag's counsel's arguments at trial focused the retaliation claims on the communications Freitag made with Terhune, Polanco, and the Office of the Inspector General, nor do they dispute that Freitag's "testimony at trial regarding retaliatory acts by [Ayers and Schwartz] dealt with what happened to her after she had exercised her First Amendment rights by writing to Director Terhune and Senator Polanco." Mot. at 5. Although Freitag's case may have been bolstered by the evidence regarding Freitag's internal complaints and documentation of Pelican [*19] Bay's failure to respond, the Court is confident that the jury would more probably than not have reached the same verdict had the jury only considered Freitag's letters to Terhune and Polanco and her written and oral communications with the Office of the Inspector General. As the Ninth Circuit explained, "[t]here can be no serious dispute that substantial evidence supports the jury's findings" that Defendants Schwartz and Ayers took adverse employment actions against Freitag -- including Ayers's and Schwartz's initiation of several internal affairs investigations and both Defendants' approval of Freitag's suspension and termination -- and that Freitag's speech was a substantial or motivating factor in those adverse actions. Freitag, 468 F.3d at 543. Defendants' assertions to the contrary are simply unavailing. For example, in denying Defendants' motion for a new trial, this Court made the following findings regarding Defendant Schwartz:

Defendants do not dispute that Schwartz signed off on the preliminary notice of adverse action that led to Plaintiff's termination, recommended the initiation of at least one Internal Affairs investigation of Plaintiff, and [*20] chose not to include Plaintiff in a meeting with female officers to discuss their concerns about inmate exhibitionist masturbation. Defendants also do not dispute that Schwartz reduced a rules violation report that Plaintiff wrote regarding inmate "Goldwire" Jackson from a Division B offense to a Division F offense, though they contend that the reduction was actually ordered by another CDC official, and that Schwartz's role was a ministerial one.

. . . . Schwartz's actions contributed to the building of an unfavorable personnel file and to the perception that Plaintiff was a dishonest officer, the grounds on which Ayers relied in dismissing her from her position at Pelican Bay. Moreover, Plaintiff's own testimony supports her position that Schwartz's actions caused her emotional distress.

Aug. 11, 2003 Order Denying Defs.' Mot. for New Trial at 14. Notably, the evidence regarding Schwartz's actions against Freitag extend far beyond the fitness-for-duty examination on which Defendants' opposition focuses.

Given the substantial evidence of retaliation presented in this case, this Court finds that the erroneous inclusion of two examples of unprotected speech in the jury [*21] instructions was harmless under the governing standard. Even if it is assumed that the jury believed that Defendants Schwartz and Ayers were liable for retaliation based on Freitag's unprotected speech, the weight of the evidence regarding retaliation for Freitag's protected speech more than amply supports a finding of liability on that conduct as well. Thus, while not an absolute certainty, it is more likely than not that the jury's verdict would have been the same had the jury been given the proper instruction. Accordingly, the Court finds that the erroneous jury instruction resulted in only harmless error.

IV. Whether the Damages or Attorneys' Fees Awards Must Be Reduced

Finally, the Ninth Circuit remanded the jury's compensatory and punitive damages awards, as well as the issue of attorneys' fees, for reconsideration "if necessary." Freitag, 468 F.3d at 547. The appellate court indicated that it would have upheld the damages award had it not remanded Freitag's § 1983 claim, and this Court was instructed to reconsider the damages and attorneys' fees awards only if it were to find that the erroneous jury instruction was not harmless and that the § 1983 [*22] verdict had to be modified. The court made these statements after it reversed the verdict against Defendant Lopez; thus, it implicitly rejected Defendants' argument that reversal of the verdict against Lopez requires reversal of the entire damages award because the special verdict form failed to apportion damages among Defendants. In addition, Defendants did "not challenge on appeal the fact that the jury held them jointly and severally liable for the entire award." Id. Because this Court has ruled that the error in the jury instruction was harmless, and that the § 1983 verdict against Defendants Schwartz and Ayers must therefore be allowed to stand, the Court finds it unnecessary to review the compensatory and punitive damages awards on remand.

As to the attorneys' fees award, because the Ninth Circuit reversed the § 1983 verdict against Defendant Lopez, Freitag obviously can no longer be considered a prevailing party as to that claim. However, the Court does not find any reason to alter its attorneys' fees award. Prior to the appeal, Defendants argued that Freitag's attorneys' fees award must be reduced because the jury found five out of eight individual defendants not liable [*23] on Freitag's § 1983 First Amendment claim. Oct. 17, 2003 Order Awarding Attorneys' Fees & Costs, at 8 [now reported at: 2003 U.S. Dist. LEXIS 26579]. The Court explained that in cases such as this one, where a plaintiff prevails on some issues but is unsuccessful on others, a reduction in fees may be appropriate if the unsuccessful claims are not "related" to the successful claims or if the plaintiff failed to obtain an "excellent result" at trial. 2003 U.S. Dist. LEXIS 26579, at *16 (citations omitted). This Court found that no reduction in fees was necessary because the retaliation claims were all intertwined and because Freitag did obtain an excellent result. 2003 U.S. Dist. LEXIS 26579, at *17. That Freitag is no longer prevailing as to one additional defendant does not sufficiently alter the Court's analysis such that any reduction in the attorneys' fees award is necessary.

CONCLUSION

For all of the reasons discussed above, this Court GRANTS Freitag's motion regarding the remanded issues in its entirety. It appears that the only remaining issues in this case concern Freitag's intention to file a motion for supplemental attorneys' fees and costs and her collection of the full amount of fees and costs awarded by the Court on October 17, 2003. The parties [*24] shall first attempt to resolve these issues by meeting and conferring. If they are unable to do so, they may request a referral back to Magistrate Judge James or to any other magistrate judge in San Francisco. The parties shall file a joint status statement regarding their meet-and-confer efforts and any other outstanding issues in this case on or before Monday, July 16, 2007. After reviewing this joint statement, the Court may schedule a further case management conference if it appears that one would be helpful, or the Court may instead choose to issue an appropriate scheduling order.

IT IS SO ORDERED.

Dated: 06/06/07

THELTON E. HENDERSON, JUDGE

UNITED STATES DISTRICT COURT

DEANNA L. FREITAG, Plaintiff-Appellee, v. ROBERT J. AYERS, JR.; TERESA SCHWARTZ; AUGUSTINE LOPEZ; CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, DEANNA L. FREITAG, Plaintiff-Appellee, v. ROBERT J. AYERS, JR.; TERESA SCHWARTZ; AUGUSTINE LOPEZ; CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, Defendants-Appellants, and DAVID A. CARMICHAEL; G. RODMAN; PAUL DILLARD; BARRY O'NEILL; GEORGE NEOTTI, Defendants. DEANNA L. FREITAG, Plaintiff-Appellee, v. ROBERT J. AYERS, JR.; TERESA SCHWARTZ; AUGUSTINE LOPEZ; CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, Defendants-Appellants, and DAVID A. CARMICHAEL; G. RODMAN; PAUL DILLARD; BARRY O'NEILL; GEORGE NEOTTI, Defendants.

No. 03-16702, No. 03-17184, No. 03-17398

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

468 F.3d 528; 2006 U.S. App. LEXIS 27285

March 15, 2006, Argued; September 13, 2006, Submitted, San Francisco, California
November 3, 2006, Amended
September 13, 2006, Filed

OPINION


[*532] AMENDED 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 Rehabilitation (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 [**2] Housing Unit. Freitag alleged that the CDCR and Pelican Bay were delinquent in addressing the sexually hostile environment created by prison inmates--particularly in confronting the pervasive practice at Pelican Bay of inmate exhibitionist masturbation directed at female officers--and that she was retaliated against and ultimately terminated due to her 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 protected speech in violationof 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, 164 L. Ed. 2d 689 (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.

[**3] I

In January 1996, Deanna Freitag transferred to Pelican Bay State Prison from [*533] 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 violent criminals. Inmates in the SHU are subjected to harsher and more restrictive conditions than exist at any other prison in the state system. 1

FOOTNOTES

1 The material facts in this case are not in dispute.


On September 12, 1998, Freitag was working a relief shift in the SHU control tower when she witnessed Inmate X standing 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 obscenities, and threatened to kill her. Freitag was instructed by her direct supervisor not to document the [**4] incident, but she nevertheless completed a disciplinary report, or 115 Form, charging Inmate X with threatening a public official. Freitag reported several additional incidents of inmate exhibitionist masturbation in late 1998 in documents called "chronos," or 128 Forms, which are placed in inmates' central files but ordinarily 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 position 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 yardshift 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, masturbated while shouting her name and proclaiming that he was "coming inside" her. Freitag completed a 128 Form detailing [**5] 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 exposure, 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] 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 [**6] 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 [*534] X with indecent exposure, but the violation 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 "procrastinating" in responding to the sexually abusive behavior, and recommending enforcement of the CDCR's policy of referring repeat offenders to the district attorney's office for prosecution. 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 [**7] support to prosecute [InmateX] 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 psychiatric evaluation; Schwartz stated that the prison was taking the action in response to Freitag's "incoherent" memoranda regarding inmate harassment. Schwartz also threatened to terminate 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 a 115 Form charging him with indecent exposure, but her supervisors declined her recommendation that he be disciplined 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.

[**8] 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 involving Inmate Y. On August 6, Ayers initiated another IA investigation 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 harassment 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 termination and temporarily relieved of duty in the SHU. Augustine Lopez, the prison's Equal Employment Opportunity Coordinator, prepared the institution's response, which concluded that Freitag's allegations were unsubstantiated. As part of his [**9] investigation, Lopez interviewed Ayers and several other Pelican Bay administrators, but he acknowledges that he later destroyed the notes from those interviews.

[*535] On August 17, 1999, Freitag sent a letter to California State Senator Richard Polanco in which she alleged that she and 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 sufficient 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 mistreatment 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 investigators, including Senior Deputy Inspector General Richard Ramsdell, to Pelican Bay; from November to December 1999, they interviewed dozens [**10] 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 during 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 administrative staff at Pelican Bay have not responded 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 exhibitionist masturbation behavior"; (3) "the security housing unit is not effectively using the prison disciplinary process and available legal sanctions in handling exhibitionist masturbation cases"; (4) Pelican Bay had "stopped referring exhibitionist masturbation cases to the district attorney"; and (5) Warden Ayers had taken "no definitive actions . . . to address [**11] exhibitionist masturbation directed at female correctional officers 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 contaminated an inmate's food in May of that year. Freitag was formally 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 [**12] 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 [*536] 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 contaminating 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.

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 harassment pursuant to a hostile work environment theory; (2) the CDCR is liable under Title VII for retaliation; (3) Ayers, Schwartz, Carmichael, Rodman, Dillard, [**13] O'Neill, George Neotti, 2 and Lopez are liable under 42 U.S.C. § 1983 for violating various 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 punitive 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 individual 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 [**14] 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 Bay administrators could have taken, but failed to take, other corrective actions such as imposing serious disciplinary measures 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 requisite corrective actions.

FOOTNOTES

2 Neotti was Pelican Bay's employee relations officer.

3 Pelican Bay did install opaque material on SHU cell doors, which prevented 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.


[**15] The jury returned a unanimous verdict on April 3, 2003. It found the CDCR [*537] 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 Amendment rights. It awarded Freitag $ 500,000 in economic damages 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 severally 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 Plaintiff, but all female correctional officers and other staff members 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 agents, officers, successors in office, employees and all persons [**16] 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 discriminating against any Pelican Bay State Prison employee on the basis of sex. The California Department 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 practices, 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 unlawful by Title VII.

The district court denied Freitag's request that the court mandate 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 attorneys' fees.

FOOTNOTES

4 At the time the district court granted injunctive relief, the agency was called the California Department of Corrections. In May 2005, it reorganized and changed its name to the California Department of Corrections and Rehabilitation.


[**17] 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 verdict 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 evidence; and (5) the district court abused its discretion in granting injunctive relief.

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 [*538] relief is reviewed for an abuse of discretion and for the application of correct legal principles. See Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1079 (9th Cir. 2004). [**18]

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 authority in this circuit and others, and we are compelled to reject it.

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 recognizing 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 [**19] of the Equal Employment Opportunity Commission that provides that employers may be held liable for the acts of non-employees where the employer "knows or should have known of the conduct 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 misconduct -- but rather in the employer's "negligence and ratification" 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 country 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 lawsuits 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 differently 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), [**20] in which a female correctional officer at a juvenile detention center alleged that the institution maintained 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 behavior." Id.

The defendants also cite the following language from Powell 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 [*539] on solid logical and practical foundations: anyone who works at a prison . . . must expect some off-color [**21] 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 above mentioned sentence, an act the district judge characterized as "illustrative 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 environment 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 conduct of inmates, [**22] as long as the defendant institution took proper preventative and remedial steps with regard to inmate behavior." Id. (emphasis added).

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 employers to be thus exempt. Further, we see no persuasive argument, legal or otherwise, to support the novel position that the 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.

The next question is whether substantial [**23] evidence supports the jury's finding that the CDCR is liable for maintaining 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 environment 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, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998)). To establish the existence of a hostile work environment, "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 quotations 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 [**24] be "reasonably calculated to end the [*540] harassment"; the reasonableness of the corrective action will depend on, inter alia, the employer'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.

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 environment: 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 [**25] 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 committed 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 difficulties is a far cry from welcoming a constant barrage of sexual 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 supports 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 [**26] 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, 121 S. Ct. 1508, 149 L. Ed. 2d 509 (2001)). More important, however, the defendants' time line misrepresents the record -- it ignores 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 defendants' tally thus does not account for the March 18 and April 7 incidents in which Freitag was exposed to exhibitionist masturbation. We find no basis to overturn the jury's determination on this issue.

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 supported 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 [**27] to that point ignored, including installing semi-opaque film on control towers and cells and imposing serious disciplinary measures on repeat offenders. The jury [*541] 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 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 Accordingly, 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.

FOOTNOTES

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 presumption 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 agencies "setting forth . . . factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information 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 challenge the reliability of the report through their cross-examination of Ramsdell. The district court did not abuse its discretion in finding the report reliable. [**28]

6 The jury had before it evidence offered by the defendants regarding disciplinary measures 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 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."


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 [**29] urge that substantial evidence does not support 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 protected 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 of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (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).

[*542] 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 [**30] 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 Schwartz, 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 [**31] of Title VII, their argument 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 Freitag's belief that their conduct was unlawful was reasonable. See Burdine, 450 U.S. at 252-53. Notwithstanding the defendants' erroneous opinion of the law, they had the requisite 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 language 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."

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

FOOTNOTES

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 & Santa Fe Railway Co. v. White, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (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 Burlington, 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 others 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").


[**32] First Amendment Retaliation

The jury found that Ayers, Schwartz, and Lopez retaliated against [*543] Freitag in violation of her First Amendment rights. On appeal, the defendants challenge the jury's finding 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 [**33] 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, 164 L. Ed. 2d 689 (2006), modified prior First Amendment jurisprudence with respect to the first element -- employee protected speech -- we remand Freitag's § 1983 claim to the district court for reconsideration in light of that decision. 10

FOOTNOTES

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 judgment to the CDCR on Freitag's termination claim under Title VII necessarily 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 [burdenshifting] formula . . . allocates burdens of proof more favorably to defendants"). [**34]

10 Subsequent to the issuance of Ceballos, we requested supplemental briefs from the parties addressing its effect on this case.


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, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (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 constitutionally 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 [**35] his responsibility to advise his supervisor about how best to proceed with a pending case - distinguishes Ceballos' case from those in which the First Amendment provides protection against discipline. We hold that when public employees [*544] 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.

The Court in Ceballos relied in large part upon its ruling in Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968). It considered the case a "useful starting point" in its First Amendment 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 [**36] 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 Amendment. 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 addition, the Court noted that teachers are

the members of a community most likely to have informed and definite opinions as to how funds allotted 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 retaliatory dismissal.

Id. at 572.

We are confronted with two issues: (1) whether the jury was instructed to consider only speech that, in light of Ceballos, is protected under the First Amendment, and (2) whether, if the jury was permitted to consider speech that is not protected, the instruction [**37] was harmless. With respect to the first issue, the jury was instructed in pertinent part as follows:

Examples of speech protected by the First Amendment include:

(a) Reporting sexually hostile inmate conduct to agents of the California Department of Corrections, either formally or informally;

(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 conductor of Pelican Bay State Prison'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 Ceballos, this instruction is erroneous and requires us to reverse the jury's [**38] verdict with respect to the § 1983 claim. First, they assert that Freitag did not in any instance speak "as a citizen" for [*545] purposes of constitutional analysis. Second, they contend that Freitag's speech did not address a matter of public concern. 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 correctional officers suffered at Pelican Bay. We think it clear that these communications are protected under the First Amendment.

With respect to the defendants' first argument, Pickering and Ceballos require the conclusion that Freitag acted as a citizen when she wrote letters to Senator Polanco and communicated with the Inspector General regarding her complaints of sexual harassment. Her right to complain both to an elected public official and to an independent state agency is guaranteed 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 [**39] 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.

FOOTNOTES

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 considered Freitag's use of copy machines and telephones to complain to outsiders about the harassment to which she was subjected improper and outside the scope of her employment is further evidence that her complaints were not made pursuant to her official duties.


[**40] As to the defendants' second argument that Freitag's complaints 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, including Freitag, testified at trial that the hostile work environment at Pelican Bay made it very difficult for them to perform their duties, and Katsaris testified that, in such circumstances, the prison's authority over its inmates is significantly eroded. Further, although the proper administration of our prisons generally is undoubtedly of great public interest, 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 concern if those inmates were being released into our neighborhoods [*546] from [**41] an environment in which the State of California condoned sexually abusive behavior and the harassment of women.

FOOTNOTES

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.


For these reasons, we hold that Freitag's communications with Senator Polanco and the California Inspector General constitute constitutionally protected speech. However, under the district court's instruction, those were not the only communications the jury was entitled to consider in determining 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, [**42] under Ceballos, such activity is not constitutionally protected. For purposes of First Amendment analysis, Freitag submitted those reports pursuant 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 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 several 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.

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 reconsideration. [**43] On remand, the district court shall make two determinations: (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 erroneous 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 damages resulting from the same. The jury determined that, as a result of [**44] 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.

[*547] The special verdict form did not require the jury to determine 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 dismissed) -- 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.

Assuming that the jury's findings as to all of the various claims were to stand, we would have no difficulty holding that the total sum awarded was supported by substantial evidence. We are left in a difficult position vis-a-vis the damages award, however, because although we affirm the jury's verdict with respect to Freitag's Title VII [**45] claims, we are remanding her § 1983 claim. We do not wish to speculate whether the entire amount of compensatory damages would be justified 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 necessary 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 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 [**46] 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 discretion in granting permanent injunctive relief. The sole contention in support of their argument is that Freitag no longer works for the CDCR and thus cannot benefit from the injunction.

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 separate 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 [**47] to employment with the CDCR is not certain. Nevertheless, when the district court issued its injunction, Freitag was still in the process of pursuing 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 [*548] Nanty, we held that a Native American 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 [**48] finally resolved and, thus, he retained a personal interest in ensuring that the company's discriminatory activity be enjoined. See id.

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., 15 Cal. 3d 194, 539 P.2d 774, 784, 124 Cal. Rptr. 14 (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 Personnel 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 property interest in her job and thus possessed a sufficient connection to her employment with the prison to support the issuance of an injunction in her favor. We conclude, as did the district court, that [**49] 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 Pelican Bay by failing to take prompt and reasonable corrective 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 connection, we direct the districtcourt to determinewhether such error was harmless. Accordingly, we remand the damages award and attorneys' fees awardas well. Becauseof insufficiency of the evidence, we reverse the § 1983 judgment against Lopez. Finally, we affirm the district [**50] court'sgrant of injunctive relief.

AFFIRMED IN PART, REVERSED IN PART, REMANDED IN PART.