good morning obviously my name is pamela price and i'm very pleased to be here today on behalf of plaintiff martha burnt your honour's the issues that i'd like to address before you today  two of our pellet issues one is whether or not the district court erred in denying the motion for new trial and whether the verdict was in fact against the clear weight of the evidence obviously i am prepared to address any other questions you may have that the new trial motion should have been granted nonetheless because it's our view that although the admission of the testimony was erroneous that testimony did not should not have gone to the ultimate issue of what  will settle for yes or says that in the expert male pinus to an ultimate issue yes sure in this case the expert lays out why he does but this many incidents and there's this many prisoners and there's this many years and the jury hears all those facts which you don't object to and then at the end he rejected his characterization that the bad conduct is not pervasive what difference does it make at that point after the jury has heard all the supporting facts that well the concern is that by the use of the language in the question and then his characterization of the way in which he answered the question is that it suggest to the jury that the finding that they have to make  planning to an ultimate issue will settle for says that he's laid out the reasons why he thinks it's not pervasive that your expert that lays out the reasons why it is pervasive but all those facts were properly admitted to the jur on have a difficulty seeing why there was any prejudice from him in characterizing that aggregation of facts is showing that that this conduct was not pervasive the problem is that the the terms that he's using which are then in the jury instruction and what the jury then has to make the ultimate finding on suggest to them that because he says it's not severe or pervasive that therefore that in fact  the finding that they should make sure expert use the exact same phrase he may have well used the term pervasive our expert we don't believe testified to it in the same manner to suggest to the jury that this is the way you should find it so that we believe so if you think you view the judge's ruling on your objection to the word pervasive for abuse of discretion yes you can use it also address whether mr skerrick is involved in this was i didn't see that he was mentioned in your motion for a new trial so have you waive those claims against skerrick or how is kerik involved trial argument against him here on appeal if it's not in the motion you're on and then i would submit that it would not be there so what's your argument on appeal about scary it's that i mean you know your argument because he's not he's not criticism pated in set in motion a series of such and you made that argument to the jury and as you know they didn't buy it you know maybe they should have but are you arguing that so and you didn't argue to the judge  verdict was against the way to the evidence as this character so why if you want to reverse as to scare tell me why yes your honor well certainly if it is to the extent that the court is correct that it's not in the motion for new trial i would have to concede and submit that we have not preserved the issue us to scare and you have any other issues as to that or that would require reversal as to scare i mean you have some evidence for your arguments because they go to your case against him or only your case against evidence before certain date or judicial notice or dr morton's testimony so that i'm having difficulty seeing any arguments in your brief that really pertain to scary that is correct your honor here security involvement was basically no your honor our complaint against garrick is that on the day in question that he essentially ignored her request and he ignored the situation because he was aware prior to that day the jackson who had this behavior that he typically engaged in the behavior that he had directed that behavior toward officer bernd previously and that she was asking that he not she not be exposed essentially to that misconduct and th yes so so why was the the ruling against the clear weight of the evidence so i was a jury's verdict against the clear weight of the evidence because there is no evidence that officer bernd w not subjected to severe as well as pervasive conduct exhibitionist masturbation as is a fundamental change in the terms and conditions of employment for a female officer how many years was she there she was there practically seven years and how many i think it's one fifteen forms that she submitted over that seven years we believe there were at least four that were admitted at trial we don't have a total number because one a thousand incidents over levon month period and what seventy five or so of them involve this kind of exhibit exhibitionist and i believe so you are not that may be accurate yes or so if the jury could have found the other way it knowledge in their jury potentially could have should courts of appeals jury trial a jury could always find the other way around and sell there are the standards that we are here under contemplate that there are kazan's when courts of appeal in fact do review what the jur findings are in this case in this case was the big issue whether the working conditions were severe and pervasive you know the big issue and for two that's a misstatement of the issue the issue is whether or not the conduct that she was subjected to was sufficiently severe or pervasive to alter the terms and conditions of her employment and the issue before the jury is do female officers and in particular officer burn if she is subjected to what i'm asking anyway isn't it a question of fact whether it was sufficiently gracious it's a question of fact whether sufficiently severe or pervasive and so yes jury the jury hears your arguments and hear your state's arguments are on the jury might well rule for you but what's our job here it's not a question of arguments your honor it's a question of facts right the question of evidence there was no evidence that this problem as directed towards officer byrne as well as the other officers was not severe was not serious or that it was not prevail in the right judgment should have issued in your favor i think the judge was should have been issued in our favor but yes because there's no evidence the question before you is there some evidence it was worth it was right there was martin's testimony there was the limit limited numbers of of he testified that this was the working conditions included working with the worst of the worst that there is no way to prevent this sort of behavior that martin said it wasn't so serious in comparison to the number of assaults so the and there is also evidence th c are probably address the situation so there was evidence that the jury could have credited if not for severe and pervasive not to alter the conditions of employment so i didn't see a complete absence of evidence are you arguing there was will you argue that there's no evidence so how do we deal with the fact that there was some evidence well in the record the evidence in the record that the court below relied upon and that this court deciding is that the conditions that the prison one incident that at severe pervasive you automatically have a have have prevailed on your title seven claim so if you if you have agreed with that that's just a question of the facts whether it's the province of the jury right and when one looks at what the rule it's also a question of law and the law says the fact that an environmental work environment is of this nature does not therefore give the department of corrections a pass we establish that rule  free tag the fact that this is a prison a male prison the same prison that officer free to work and does not therefore mean that the depart that the women who work at the prison are and have to be required to undergo a gauntlet of sexual abs and that's have a title seven claim there's no genuine issue of material fact i mean you get to trial and then the jury found the other way right but the evidence is not that the conduct directed toward her was not severe or that the conduct was not pervasive it it's the only evidence again coming through mr martin's characterization is that this is a terrible place for anyone to work the question the law doesn't prohibit that what the law prohibits is differential treatment of judgment i think the issue is where do you draw the line i mean if the inmates were raping the women would jury be entitled to say that it's perfectly ok because this is a terrible place and there's a risk that you might be subjected to pervasive when that because they would have moved for summary judgment but that's not the evidence the evidence that she testified which was undisputed is that she wrote one twenty eight reports she put it in the log books it was not simply four incidents there that was their argument that was not the evidence that was presented at the time the trial won twenty eight words she had no way of knowing how many there were but the only other in front of the jury were the one fifteenth's right now there was the evidence that's true but there the question before us what it is is there some evidence to dispute that testimony there is no evidence that this is to you is that the burden of the other side to dispute the testimony or is it your burden to convince the jury that you've established it it is our burden to present the evidence what we did if the state had just rested at the end of your case and said we don't think they've made their case let's go to the jury and they said there's really only four reports you really can't believe her on the other ones because there's no record of them and the jury found for the state would that be improper no it's that it's not their words we're not their burden to rebut it's your burden to convince the jury that's true but the question is when you look at the trial court looks at the verdict is there some evidence to support the reasoning of the jury that there are the only four incidents there's no evidence of that the evidence that there was only two or three one twenty that is not accurate your honor certainly rick newton's testimony as well as the evidence from i believe officer freeh tag as well as officer burke it was more than one or two i would like to reserve some time for my rebuttal thank good morning lynne harlan deputy attorney general of the california department of justice for defendants and california department of corrections and david skerrick i'd also like to acknowledge the contribution of my co counsel chris young to this so starting with what your honors were questioning miss pryse about there was a defendant's put on highly relevant evidence to show no hostile work environment as well as significant credibility issues with plaintiff's trial testimony plaintiff we put in plaintiff's contemporaneous reports for the four indecent exposure incidents he reported and particularly her july eighteenth two thousand and two memo detailing the events of july twelfth and thirteenth which we have her read into the record and is this there's no doubt that that's that that's behavior that makes the workplace quite uncomfortable what you're what your argument about why that behavior doesn't change your conditions of employment is it because it's routine is it because it doesn't happen that often what's so it's not fighting in this case about the nature of the of the conduct to which she was exposed in the workplace for fight the issue is whether or not that change your conditions of employment so tell me what your argument is about why didn't well plan spent more than half the trial putting on free tag evident evidence from the prepared case which showed the nine hundred ninety s that it was an overwhelming problem that went on addressed by the california department of corrections in contrast berndt had in the in the late one nine hundred ninety s and two thousand totally different x work experience than prove your argument that that it wasn't so bad which what is your argument given the background context that plane to put into evidence bird's work experience was significantly less she had well but we don't know whether we were not measuring whether or not her work experience is worse than fried tags or free tags the question is whether she was subjected to a hostile work environment so tell me why since you can see these incidents occurred at least on some number of occasions why the jury could find that she wasn't subjected to hostile working for a none of the incidents were severe or out of the ordinary and it was in the context of working in a shoe at pelican bay and the jury rightfully found that burns experience did her the harassment that she was subjected to was not provide a service or serve year so the answer is that even if the occurred it wasn't so pervasive or severe as to change her conditions of employment and always has she had a much less to contend with and many other much of the evidence that came in as the other female officer so conditions of employment and create an abusive working environment so what evidence was put in by the government so we put in the actual her actual reports which differed from her testimony at trial so there was a credibility issue a credibility issue we put in the photos of what she actually saw the bird's eye perspective of what bernd saw which so the t v monitors one of the incident she reported was a you know on a t v martyr in the yard so the jury got to see photos of just how little that t v monitor is and how far away it would be they got to see photos of the holding cell that jackson was put in on july twelfth very thick perforated doors how far away it was from the booth and then we've put in the testimony by several people of the overall working conditions which contrasts to the number of assaults on the dangerous incidents and also there was evidence that to inmates in particular contributed to more than half of the indecent exposure incidents one was wired jackson and she bit into that unit knowing he was there so her specific hurst for civic work environment four incidents over a period of more than two years given that environment the jury felt reported was a different jackson and that was that was in in the holding cell i believe the second so the three with the gold wire jackson one was when she was in a different  assignment and he was brought into the unit to use the clippers in her unit's holding cell but he was housed in a different cell the second one was on the yard monitor so when he was out on yard and so it was on the t v and then the third incident was the charles jackson incident was in two thousand and one and the three with jackson was december second two thousand and one in the holding cell  another unit june second two thousand and two was the yard incident and july twelfth two thousand and two was the holding cell incident in her unit she was working at least t years of he actually had gotten better over time the evidence came in that he had been doing this for years and there were numerous reports about gold where jackson came in so it was in the context of gold jackson's misconduct steve martin steve martin was was allowed to give an opinion on the ultimate issue but not as to burn if you look at the record pages forty to forty one the cour opinion these acts were not sufficiently pervasive to change the conditions of employment well under seven zero four eight he would be allowed to give an opinion on that ultimate issue but the court did not allow it and allowed the jury to make that analysis because it was a factual determination also steve martin testified that he didn't have any expertise in e o s shoes and such so he was a prison expert numerous witnesses testify that you cannot eliminate it from the work place it so it can you can manage it as an employee by getting different kinds of jobs and different  so there are there are ways to manage it and then the c d c are actually does address it but it on any given day and a correctional officer does not know what they're going to be facing that day i don't need to discuss mr skerrick because it has been conceded that the that they don't have an issue as to the new trial as to him i want to just point out the jury that the jury verdict that  did not discriminate against plaintiff was supported by the evidence the jury heard in detail all the events of the july twelfth and july thirteenth including the reasons why sergeant scared made his decisions as to placing  on july twelfth they also heard plaintiff's they also heard plans contemporaneously written reports of the incident including her supervisors caring responses to her distress and insistence that they would move jackson as soon as possible they jackson could not have could not be immediately removed from plaintiff's unit so plaintiff failed to prove her equal protection claim on both counts of whether he discriminated or whether he caused a third party to record supplemental excerpts one eighty one and one eighty one ninety eight which show how close the holding cell is to the control goes well your honor there's one picture which shows so here so this is the control that this is if she went all the way to the front this is the holding so she went all the way to the front that's how close but the control  so it's hard to see it's very thick and it's perforated so it's not like someone's right there and you're seeing what they're doing they're behind this perforated very big perforated door and she also had the ability control booth at her desk and do her paperwork and other things like that she also if you look at her report of the incident on july twelfth which is supplemental excerpts of record one seven day she said i stood up from her desk to check the pods for inmates and to view the yard cameras jackson saw that floor staff was no longer in view of him so immediately jackson dropped his boxers to his hips and began and began to masturbate i yelled at jackson to put that stuff away i startled jackson and he pulled up his boxers so that actual incident was very brief and if you read her other contemporaneously written report which is that excerpt three twenty eight to three three three thirty eight feel also a she just she describes the incident much more upsetting to her was the incident of july thirteen which had to do with chest pains and did not involve masturbation and all if you have no further questions apparently not thank you thank you so much first i'd like to address the suggested that there's an inconsistency between the typewritten report that was admitted at exhibit f at the trial for officer right by officer bernd describing the incident and in fact in that report she says i stood in the restroom area of my control booth staying out of i view of jackson for about thirty minutes i did had other inmates calling out and having to finish up paperwork for the next shift to come on officer hilman also had to finish paperwork this is when the incident took place jackson had become so vulgar with his comments and loud that i could not concentrate on my work and disrupting the unit and she talks about how he became louder and louder and became more and more vulgar she testified at trial to the same incident that he was masturbating he was look at her licking his lips that he was saying i'm going to rape you i'm going to do things you you know you like and i'm going to get it and those are the kinds of comments and conduct that she was being subjected to on that last day furthermore in prior to that in december of the prior incident in december of two thousand and one she also filed a report where she talked about the fact that jackson had masturbate toward her for at least an hour then he pulled his jumpsuit down and lay down on the floor of the sale masturbating and when she she had to walk to the staff bathroom to not watch him and she was not able to view the inmates that were on the yard which is a part of her control booth security duties what we have here is conduct that is preventing officer burnt from engaging in her duties her responsibility is to watch the inmates the suggested that she can't see the if she's too far away from them this is an institution that is designed so that the officers can and do and should watch what the inmates are doing and so those are the circumstances that lead female officers to feel like i can't do my job i can't stay in this situation and it alters the terms and conditions of their employment in a fundamental way so we want to be very clear about that to minimize the conduct and the exposure and the impact that this conduct has on female officers is in fact contrary to what all of the cases have said and ultimately if this court accepts this jury in every decision women should not have to walk through a gauntlet of sexual abuse just to be able to work at a particular location the fact that this is a prison doesn't make it any different or any more acceptable