first whether title seven poses as a matter of law a liability in a prison employer for misconduct by prison inmates in the presence of correctional officers whose job it is to maintain control and discipline of prison inmates secondly even if title seven doesn't pose a liability in a prison employer for sexual harassment by prison inmates under a negligence theory whether there's substantial evidence in this case relief principle because this necessarily involves the federal courts in under the auspices of title seven in the administration of president and well at least the governor said he was very clear and that may well be your honor but the the injunctions i believe in those cases are based on concerns of constitutional deprivations of the resolving the issues in this case but by the same token i think the department of corrections as any prison is has a strong interest in clarification as to whether or not you can be liable basis of gender race ethnicity religion and if title seven provides imposes liability on a prison for failing to control the inmate conduct harris one of the prison guards and and and legal obligations here and whether we settle this case or not it's clear that the the lawsuits on the same theory of negligence that are going to be pursued they're being affirm judge henderson and say that in this kind of circumstance the department is responsible and has some duty to control the behavior of inmates that's one possibility the other possibility is that we might conclude that he was wrong in that determination but right now you have a district court judgment that says that you know and i would assume in the mediation process that could be an item of discussion whether that the state so i'm not prejudging this case of anyone just saying this this case has some unusual aspects to it that if you had to imagine that the best possible case on behalf of the state to well the inspector general's report nor mr katz saracens and he was the plaintiff's expert testified regarding provided any evidence whatsoever as to whether or not the response of the department of correction incidents in make indecent exposure a fact that the unstated evidence is to the contrary that with respect to each of the ten incidents of in made indecent exposure which occurred during the year that she worked initiate disciplinary charges and those instances in which she did the prison through their due process administrative system impose discipline and as to one of those inmates he was referred to the local prosecutor for criminal to invoke its policy of referring incidents of induced exposure to the local prosecutor for criminal prosecution in response the director of the department of corrections called try to get home they had a number of conversations and one of those conversations in may nine hundred ninety nine recognizing that she was unhappy working in the shoe he offered her a transfer well to transfer the other away from the family home whether the department did take prompt effective corrective action they did offer a transfer and this court in a recent column as decision implied that offering a victim of haris meant a transfer is a reasonable appropriate step in addition and the as is clear the department initiated discipline against the inmates that  expert testified that imposing discipline for indecent exposure and referring for criminal prosecution which is what occurred here in response to fry tax incidence are evidence demonstrating that morton heirs did not nor should not have recently relied on these three separate reports investigations concluding that she was dishonest and that there was a pattern of dishonesty here the only evidence that they've identified in the record i after the crash wrote her letters complaining about the amount indecent exposure after that adverse things happened to her and fourteen months after she wrote those letters she was terminated there is no evidence whatsoever result in disciplinary action being taken against inmate jackson and following that there were a series of incidents where inmate jackson where officer three take found that her one fifteen's were either law or not in force due to the loss of time constraints the department's failure to follow through the record was very clear that throughout the period of time that not only officer freeh tag but other female officers complained about inma jackson he was never referred for criminal prosecution in fact the record was clear that officer freeh tag was referred when the inmate jackson was not and that was done by warden errors with respect to  johnson counsel has made a mistake many of the record regarding his prosecution he was prosecuted based upon the complaints of officer gone out and he was never prosecuted based upon any complaints by melton however the response to officer free text complaints as well as the complaints of the other officers and the evidence was overwhelming that they were told that they should get over it that this was a man's present job and that they were doing a man's job and therefore they had to to deal with it that they were not there complaints were not going to be taken  both we were able to document that she they did have approximately eleven one fifteen however jaan and there are numerous there was testimony throughout that the women would write this information in the log books and that there were times when one fifteen's were not written because they were deemed to be few time and your put your car in for a level yes and at least one of them your honor a category f with no explanation whatsoever the thing that strikes me about about this is it seemed to me look looking at this from the outside the there are really only two ways to resolve the situation like that this is i'm actually this is the special handling unit within a maximum security prison and it's difficult find not impossible to take the inmate out and put them in the different type of custody because this is at the talk of the custody to yours as i understand it so the other option would seem to and is it correct that she was offered that and refused she was offered a transfer to another institution she was not ever offered a transfer to another position within the institution she was reassigned in voluntarily after she remedy then essentially you are saying that no female any female who was offended by this type of behavior is not will not have an opportunity to work on this issue the second part and that's obvious discrimination on its face the second part of that your honor is that the fact that you cannot remove the inmate from this shoot does not mean that you therefore relinquish all control of the situation the defense has brought up other things that could be done a number of other things that could be done and can release date in jackson had a fairly you know proximate release date and that's the thing that motivated her to say we've got to deal with this problem the department has asserted that they don't have control and that obviously is a very frightening prospect for all of us who assume that when you put it in made in the most secure of secure institutions that the institution is going to be able to exercise control over control means well it's difficult but you have to make the effort and that with the essence in this case was that the department did not see this as a problem that they did not consider it a problem primarily because it was something that impacted the female officers and yet the officers and says can consumers point out if it were something different if the inmates were screening all the time if they were engaging in some other kind of misbehavior the institution would take appropriate action to address that it is not appropriate for the institution to ignore this behavior simply because it involves sexual harassment of female officers th that the inmates it is there's no question that it's difficult to control the inmates but i do think that the department of corrections the budget for this institution was eighty three million dollars i find it hard to believe with that much money on an annual budget for one is it to show that you're not in control that you don't have the capacity to control what's going on there and the fact is they determine when the inmates eat they determine when the inmates shower think what's gone on there is you know sexual harassment is just a part of it yes and i think they're discriminating and not solving sexual harassment problems they've had overwhelming problem when they terminate you they come they get to they walk you off and full view of everybody so she was subjected to in june of two thousand she received the call at home told her come back to work no explanation whatsoever and then in doctrine a brand new approach to the regulation of prisons as well as to the implementation of title seven and if the court is well aware as a remedial statute title seven is to be interpreted broad i agree that the deference should be considered could be considered under certain circumstances i don't think that it's totally clued in title seven cases i do think in this case it was not present the jury or raised at the lower level so there's no evidence in the record of that there was a decision that would normally be entitled to deference that simply was not a defense in this case it is something that has come up on appeal but it wasn't litigated either in the pleadings or in the facts of the case it was not a defense at trial and if it had been we would have addressed it and i'm certain given the testimony that we did present that we would have been able to defeat that that kind of a difference the other novel position is the requisite control defense and their suggestion that these the that if she has not been addressed in cases i partially true but in fact if you look at the turnbow case which is cited by our micus as well as the chris case those cases talk about look at the employees control over the environment at large so it's not simply the employees ability to move or remove someone from the environment you have to look at the entire situation and the degree of the employer's control so that is true has been addressed in those cases it has not been addressed in the cases that evidence of of retaliation on the part of these defendants officer three tad became a target once she complained and to suggest that there was this fourteen or i think they characterize it as a fourteen month laughs between the time he she complained she was under investigation that entire period the first action that was taken against her immediately was to refer her for fitness for duty evaluation that was an april one thousand nine hundred ninety nine when the psychologist deemed that she was not crazy and she was fit for duty the first adverse action was initiated in june of ninety nine so from june of ninety nine to march of two thousand they were essentially setting her up to be terminated and they were successful in that and the jury agreed with us that that was their intent that that was their motivation and the jury's finding there's no dispute about the jury instructions in this case the jury's findings under the seventh amendment are buying  we have a verdict we have a judgment and that judgments then that officer if we tack was the victim of retaliation by not only the department but by defendant's heirs swartz and lopez basically tried to present her as being the problem instead of presenting the objective facts or doing any kind of investigation that might have addressed the issue when the as the long term  institution his duty upon inquiry for in responding to that charge was to look at the facts to look at the problem and if he had taken a fair and impartial look if he had taken any kind of look he would have seen that there was a problem he knew that there was a problem and yet he turned around and tried to present her as being totally dishonest and tried to cover up what actions were being taken even as he was writing this report to retaliate against her that was reckless disregard for her constitutional rights and it was intentional conduct you're focusing on the fact i think his report his refusal to entertain the complaints of the female officers over a period of time including officer three tank as well as obviously his state of mind his comment to the inspector general when the inspector general's office came to p bay to investigate this problem they look to auggie lopez they work out of his office they look to him to tell them what is going on to guide them and assist them in their investigation instead he tries to mislead them and ultimately off the record he makes this ridiculous comment to deputy inspector general richard ramsdale that the only reason they're complaining is because they're a bunch of lesbians that tells us what his motivation was and what his his effort was to try to to minimize and mislead the office of inspector general and that was certainly to undermine and in violation of officer three tags constitutional rights the court through you would not have any objection to attend the mediation session no your honor and and my understanding is that that was not an option if the department is prepared to reconsider its position mr scally and i have  and a very difficult case where there was no thought that it would ever be set on the court so certainly we're willing to do that and we do think that that the injunctive relief ordered by just judge henderson was appropriate and i can represent to you as an officer of the court and as someone who has participated in a development of that program that the department is very proud of the program program by their report is in fact working and certainly we think that it would be a terrible irony for us to have gotten that far for the department to have gone from ignoring a problem to now conquering a problem to have that program set aside because of our inability to prevail on this appeal pelican bay has gone from ignoring the problem and trivializing it and claiming that they didn't have a problem to addressing it with their little encouragement from a federal judge the problem became plain and the problem is being conquered  terrible price for that result and it's way past time you were on this for her to be paid in this matter she walked out of pelican bay and april of two thousand she was walked off again in june of two thousand the verdict was rendered in april of two thousand and three i stand before you in two thousand and six and it is time for justice to be done on behalf of my client deanna free tech thank you very much first it's clear that under title seven the standard of deference to prison practices and policies does apply and it's not a matter of defense in a title seven  negligence theory of liability for an employee harrison it's wholly inconsistent with that theory of liability and the suggestion that as the defense might have proposed a e prosecution or inmate discipline and security it simply flies in the in the face of the theory of liability under one of the deferential standard the president's policies and practices with respect inma so we still think that that's that's unworkable in this context it under a under the negligence theory that the employer can be liable if it fails to take reasonable steps calculated to end the you would demand of general motors if they're still general motors well i think based on the trial record that the unworkable standard again to the detriment of the person in a prison the prison conditions are intolerable would that be a matter of public concern for the prisoners arguably that that that might be but not for the guards well specifically what the complaint was was that the inmates are engaging in and criminal misconduct indecent exposure and the department alconbury state prison should take additional steps to stop that harrison that's simply a complaint about the well let me put it slightly differently and say there is a practice in the  look at the details of such a complaint that is simply a expression of concern about how the prison is being run on a day to day basis and that's not a matter of public concern of the prisons being malad minutes for that it's being run in a way that's dangerous to the prisoners were dangerous to the guards there was not a matter of public concern to the plaque that could be a matter of public concern but again what we have to shear is  indecent exposure that's part of her job is complaining that this is occurring that in fact engaging in misconduct and the supervisors are taking this thing as a practice of sexual harassment in the prison that's how they characterize about it's specific a complaint was made indecent exposure is occurring and there are additional steps that can be taken in fact steps within the department's policy for thing the fact that they were and that was the allegation either the allegation was not that the that inmate sexual harrison is occurring and the department is doing nothing about it that was not even the the complaint complaint was complaint of public concern and i'm saying no because the complaint the allegation within her memos was not that sexual harassment occurring and nothing is being done about it the department's ignoring it that was not the allegation department is ignoring it and the facts plainly refute that because when all right well i don't how much time i have at this you know the misspoke and said that each time that followed reported in inmate indecent exposure that in fact those inmates were disciplined no they were there in the record a number of occasions three times when she filed a report and the inmates were disciplined the stay the record as of the others is there's no evidence that they weren't disciplined and again it's fried eggs burden to show that the department failed to take corrective action failed  and there's no evidence that they didn't and again to clarify the burden here the plaintiff has the burden to show that the department failed to take steps recently calculated to end the and here plainly the department did they discipline the inmates they were for criminal prosecution the burden of the defense the employer is not liable if it fails to take all