FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DEANNA L. FREITAG, 

Plaintiff-Appellee,

v.

ROBERT J. AYERS, JR.; TERESA

SCHWARTZ; AUGUSTINE LOPEZ; No. 03-16702

CALIFORNIA DEPARTMENT OF D.C. No. CORRECTIONS AND REHABILITATION,  CV-00-02278-TEH Defendants-Appellants,

and

DAVID A. CARMICHAEL; G.

RODMAN; PAUL DILLARD; BARRY

O’NEILL; GEORGE NEOTTI,

Defendants. 

11183
DEANNA L. FREITAG, 

Plaintiff-Appellee,

v.

ROBERT J. AYERS, JR.; TERESA

SCHWARTZ; AUGUSTINE LOPEZ; No. 03-17184

CALIFORNIA DEPARTMENT OF D.C. No. CORRECTIONS AND REHABILITATION,  CV-00-02278-TEH 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; No. 03-17398

CALIFORNIA DEPARTMENT OF D.C. No. CORRECTIONS AND REHABILITATION,  CV-00-02278-TEH Defendants-Appellants,

OPINION and

DAVID A. CARMICHAEL; G.

RODMAN; PAUL DILLARD; BARRY

O’NEILL; GEORGE NEOTTI,

Defendants. 

11184 FREITAG v. AYERS
Appeal from the United States District Court

for the Northern District of California

Thelton E. Henderson, District Judge, Presiding

Argued March 15, 2006

Submitted September 13, 2006

San Francisco, California

Filed September 13, 2006

Before: Stephen Reinhardt, John T. Noonan, and

Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Reinhardt

FREITAG v. AYERS 11185
COUNSEL

Jacob A. Appelsmith, Senior Assistant Attorney General, Vincent J. Scally, Supervising Deputy Attorney General, and Bill

11188 FREITAG v. AYERS
Lockyer, Attorney General, Sacramento, California, for the

defendants-appellants.

Pamela Y. Price and John L. Burris, Oakland, California, and

Charles Stephen Ralston, Berkeley, California, for the

plaintiff-appellee. 

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 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 violation of 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

FREITAG v. AYERS 11189
Garcetti v. Ceballos, 126 S. Ct. 1951 (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.

I

In January 1996, Deanna Freitag transferred to Pelican Bay

State Prison from 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

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 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

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

11190 FREITAG v. AYERS
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

yard shift 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

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 goodtime 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 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 X with indecent exposure, but the violation was subsequently changed by a supervisor to willful

FREITAG v. AYERS 11191
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 support to prosecute [Inmate X] 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. 

11192 FREITAG v. AYERS
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 investigation, Lopez interviewed Ayers and several

other Pelican Bay administrators, but he acknowledges that he

later destroyed the notes from those interviews. 

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

FREITAG v. AYERS 11193
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 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

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

11194 FREITAG v. AYERS
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

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 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, O’Neill, George Neotti,2

2Neotti was Pelican Bay’s employee relations officer. 

FREITAG v. AYERS 11195
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 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

3Pelican 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. 

11196 FREITAG v. AYERS
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. 

The jury returned a unanimous verdict on April 3, 2003. It

found the CDCR 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 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

4At 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. 

FREITAG v. AYERS 11197
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. 

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

11198 FREITAG v. AYERS
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 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).

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. 

[1] 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 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 ratificaFREITAG v. AYERS 11199
tion” 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), 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 on solid logical and practi11200 FREITAG v. AYERS
cal foundations: anyone who works at a prison . . .

must expect some off-color 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 abovementioned 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, as long as the defendant institution took

proper preventative and remedial steps with regard to inmate

behavior.” Id. (emphasis added). 

[2] 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

FREITAG v. AYERS 11201
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.

[3] The next question is whether substantial 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

(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 be “reasonably calculated to end the 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. 

[4] 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

11202 FREITAG v. AYERS
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

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 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 (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 defenFREITAG v. AYERS 11203
dants’ 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. 

[5] 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 to that point

ignored, including installing semi-opaque film on control towers and cells and imposing serious disciplinary measures on

repeat offenders. The jury 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

5The 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. 

11204 FREITAG v. AYERS
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 in this case. 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. 

[6] 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 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

(1981) (citing McDonnell Douglas Corp. v. Green, 411 U.S.

792 (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). 

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 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

FREITAG v. AYERS 11205
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 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.” 

[7] Because the defendants raise no meritorious challenge

to the jury’s finding that the CDCR is liable under Title VII

11206 FREITAG v. AYERS
for retaliating against Freitag, we affirm the verdict on this

claim.6

First Amendment Retaliation

[8] The jury found that Ayers, Schwartz, and Lopez retaliated against 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.7 Ayers initiated several

6On 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 & Sante Fe

Railway Co. v. White, 126 S. Ct. 2405 (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”). 

7There is no evidence that Lopez is liable for retaliation under § 1983

because there is no evidence that he was responsible for, participated in,

FREITAG v. AYERS 11207
IA investigations of Freitag shortly after she contacted

Polanco, and Schwartz temporarily relieved her of duty in the

SHU and ordered her to submit to a psychiatric evaluation,

stating explicitly that she was doing so as a result of Freitag’s

complaints of inmate harassment. Both also approved her suspension and termination,8

 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 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 (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.9

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 (1983), the issue is not

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. 

8The 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”). 

9Subsequent to the issuance of Ceballos, we requested supplemental

briefs from the parties addressing its effect on this case. 

11208 FREITAG v. AYERS
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 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 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 (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 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 AmendFREITAG v. AYERS 11209
ment. 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 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 conduct or of Pelican Bay State Prison’s responses or failures to respond;

11210 FREITAG v. AYERS
(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 verdict with respect to the § 1983 claim. First, they

assert that Freitag did not in any instance speak “as a citizen”

for 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 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

FREITAG v. AYERS 11211
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.”

10

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. 

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,

10We 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. 

11212 FREITAG v. AYERS
some sooner than others.11 It certainly would be of grave concern if those inmates were being released into our neighborhoods from an environment in which the State of California

condoned sexually abusive behavior and the harassment of

women. 

[9] 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, 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

11The record is unclear as to whether any specific inmate who Freitag

alleges contributed directly to the sexually hostile work environment has

been released. 

FREITAG v. AYERS 11213
issue of whether the Terhune letter is covered by the First

Amendment. 

[10] 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. 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 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. 

The special verdict form did not require the jury to determine how much each defendant is liable for under each claim.

11214 FREITAG v. AYERS
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. 

[11] 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-à-vis the damages

award, however, because although we affirm the jury’s verdict with respect to Freitag’s Title VII 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 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 conFREITAG v. AYERS 11215
tention 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 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 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 finally resolved and, thus, he retained a personal interest

11216 FREITAG v. AYERS
in ensuring that the company’s discriminatory activity be

enjoined. See id. 

[12] 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., 539 P.2d 774, 784 (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 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 connecFREITAG v. AYERS 11217
tion, we direct the district court to determine whether such

error was harmless. Accordingly, we remand the damages

award and attorneys’ fees award as well. Because of insufficiency of the evidence, we reverse the § 1983 judgment

against Lopez. Finally, we affirm the district court’s grant of

injunctive relief. 

AFFIRMED IN PART, REVERSED IN PART,

REMANDED IN PART.

11218 FREITAG v. AYERS