Metropolitan News-Enterprise


Thursday, September 14, 2006


Page 3


State Responsible for Harassment of Female Guards by Inmates—Court




The California Department of Corrections bears liability for the harassment of female correctional officers by male inmates, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The state’s argument that it cannot be responsible for sexual harassment by inmates “is unsupported by the entire weight of case authority in this circuit and others,” Judge Stephen Reinhardt wrote for the panel.

The court upheld a jury’s findings, following a 2003 trial, that Pelican Bay State Prison officials tolerated a hostile work environment in which plaintiff Deanna Freitag and other female correctional officers were unable to reprimand male inmates for masturbating in front of them and that Freitag was retaliated against for complaining about the situation.

The panel also ruled, however, that a jury finding that Freitag’s constitutional rights were violated was flawed because it was based, in part, on reports that were submitted to the plaintiff’s superiors as part of her official duties. Such reports lack First Amendment protection under the recent Supreme Court decision in Garcetti v. Ceballos, 126 S. Ct. 1951 (2006), Reinhardt said.

The case was remanded to Senior U.S. District Judge Thelton E. Henderson of the Northern District of California to determine whether Freitag’s $600,000 damage award would have been smaller had the First Amendment claim been limited to complaints to outside authorities, including the department’s inspector general. Those complaints were protected by the First Amendment, Reinhardt explained, because they were not prepared within the scope of the officer’s duties and are thus outside the ambit of Ceballos.

The district judge was also directed to reconsider an attorney fee award of more than $1 million.

Freitag, who had been a corrections officer at another state facility for several years, worked at Pelican Bay from 1996 until 2000, when she was fired for falsely accusing a fellow officer of contaminating an inmate’s food. She claimed that the termination, and an earlier five-day suspension for falsifying an incident report, constituted retaliation for her frequent complaints to her superiors, as well as to a state legislator and the inspector general, that she was repeatedly subjected to exhibitionist sexual misconduct by inmates in the Secure Housing Unit and that her superiors refused to discipline the inmates or otherwise act on her reports.

The termination took place not long before the inspector general issued a report largely sustaining claims by Freitag and other women that they had complained about sexual misconduct by male inmates and that the institution had not responded appropriately to the complaints.

In one instance, Freitag testified, she and a supervisor recommended that an inmate be disciplined for masturbating while looking at her and yelling her name, as the inmate exited a shower room and Freitag observed from the control tower. A lieutenant, however, discarded the discipline form and told her that nothing could be done because no other officers had problems with the inmate and “it’s only sex.”

Both Henderson and the appellate panel rejected the state’s arguments that a prison is an “inherently hostile environment” and that Freitag acquiesced in the situation by accepting an assignment to the SHU, where some of the state’s most aggressive prisoners reside.

“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,” Reinhardt wrote. Like all employers, prison officials must take reasonable steps to protect employees from sexual harassment on the job, he said.

Senior Judge John T. Noonan and Judge Michael Daly Hawkins concurred in the opinion.

The case is Freitag v. Ayers, 03-16702.


Copyright 2006, Metropolitan News Company