Prison Liable for Sexual Harassment of Female Guards by Male Prisoners

The plaintiff was a female prison guard who experienced ?sexual ?harassment ?from? male prisoners.?? Soon after complaining she was fired. She filed claims for sexual harassment, retaliation in violation of Title VII, and retaliation for First Amendment activity. ?The jury found in her favor on all counts and awarded $600,000 in damages. The Ninth Circuit affirmed except on the First Amendment claim, which it remanded for reconsideration? in? light? of? Garcetti? v.? Ceballos. The? panel? also? affirmed? the? grant? of? injunctive relief requiring the prisons to make changes to prevent further harassment or retaliation.?? Judge Reinhardt rejected the defendant?s invitation to create a special exemption for prisons for vicarious liability for third party harassment. The panel ruled that the plaintiff acted as a citizen when she made complaints to her state senator and the Inspector General.? ?The panel rejected the defendant?s argument? that? complaining? about? sexual harassment is not a matter of public concern. ?The court held that internal complaints of sexual misconduct by prisoners were as a matter of law not constitutionally protected because it was her job to report inmate misconduct.?? The appellate court left to the district court whether a letter to the prison director was protected conduct or not under Ceballos.?? ?The panel affirmed the grant of permanent injunctive relief against further retaliation and sexual harassment even though the plaintiff was no longer employed by the prison because she had administratively appealed her termination and that remained pending. ?Freitag v.?Ayers, No. 03 16702 (9th Cir. 9/13/06).