Howard v. Cook Cnty. Sheriff's Office, 20-1723

• Decision Date: 04 March 2021
• Docket Number: No. 20-1723,20-1723
• Citation: 989 F.3d 587
• Parties: Sdahrie HOWARD, et al., Plaintiffs-Appellees, v. COOK COUNTY SHERIFF'S OFFICE and County of Cook, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

989 F.3d 587

Sdahrie HOWARD, et al., Plaintiffs-Appellees,

v.COOK COUNTY SHERIFF'S OFFICE and County of Cook, Defendants-Appellants.

No. 20-1723

United States Court of Appeals, Seventh Circuit.

Argued December 3, 2020

Decided March 4, 2021

Noelle C. Brennan, Attorney, Noelle Brennan & Associates, Chicago, IL, Ellen Eardley, Cyrus B. Mehri, Attorneys, Mehri & Skalet, Washington, DC, Caryn Cecelia Lederer, Kate Schwartz, Attorneys, Hughes Socol Piers Resnick & Dym, Ltd., Chicago, IL, Marni J. Willenson, Attorney, Willenson Law, LLC, Chicago, IL, Heather K. Afra, Shelly B. Kulwin, Attorneys, Kulwin, Masciopinto & Kulwin, LLP, Chicago, IL, Joshua Karsh, Attorney, Mehri & Skalet, PLLC, Evanston, IL, for Plaintiffs-Appellees.

Christina M. Egan, David D. Leishman, Katharine P. Lennox, Michael R. Phillips, Attorneys, McGuirewoods LLP, Chicago, IL, Matthew Allen Fitzgerald, McGuirewoods LLP, Richmond, VA, for Defendant - Appellant Cook County Sheriff's Office.

Christina M. Egan, David D. Leishman, Katharine P. Lennox, Michael R. Phillips, Attorneys, McGuirewoods LLP, Chicago, IL, Elizabeth A. Ekl, Attorney, Reiter Burns, LLP, Chicago, IL, Matthew Allen Fitzgerald, McGuirewoods LLP, Richmond, VA, for Defendant - Appellant Cook County, Illinois.

Before Sykes, Chief Judge, and Flaum and St. Eve, Circuit Judges.

St. Eve, Circuit Judge.

In this case we review the certification of a class-action lawsuit alleging a horrible "epidemic" of sexual harassment at the Cook County Jail. The named plaintiffs are ten women who work at the jail or an adjoining courthouse. They sue their employers—the Cook County Sheriff's Office and Cook County—for failing to prevent male inmates from sexually harassing them. They propose to sue not just for themselves but for thousands of other women who work at the jail or courthouse. The district court certified a class comprising all non-supervisory female employees who work with male inmates at the jail or courthouse, of whom there are about 2,000.

We granted the defendants’ request for an interlocutory appeal, see Fed. R. Civ. P. 23(f), and we now hold that the district court abused its discretion in certifying the class. The court's primary error was using the peripheral and overbroad concept of "ambient harassment" (i.e., indirect or secondhand harassment) to certify a class of employees who have endured a wide range of direct and indirect harassment. Even without this error, the class cannot stand because it comprises class members with materially different working environments whose claims require separate, individualized analyses. We thus reverse the order certifying the class.

I. Background

A. The Jail Complex

The Cook County Jail is one of the largest single-site jails in the country. It fills 36 buildings that span eight city blocks. About 100,000 inmates pass through the jail each year. At any given time approximately 6,500 inmates reside at the jail while awaiting trial. On an average day, between 700 and 900 inmates attend court hearings. (These numbers have decreased somewhat during the COVID-19 pandemic.)

The inmates reside in different housing divisions at the jail. Divisions 3, 4, and 5 house female inmates. Divisions 2 and 6 house male inmates with minimum- or medium-security classifications. Division 8 encompasses medical facilities operated by Cermak Health Services and a Residential Treatment Unit where inmates receive mental health services. Divisions 9 and 10 house maximum- and super-maximum-security male inmates. The inmates in Divisions 9 and 10 often overlap with the Division 8 population. Other, non-residential parts of the jail, such as the "south campus" and a Division 5 annex, host administrative operations.

The George N. Leighton Criminal Courthouse is a separate structure that connects to the jail through a series of tunnels by which officers take inmates to court hearings. The courthouse has dozens of courtrooms spread across eight floors. It also has an administrative wing containing administrative offices, jury rooms, judicial chambers, a cafeteria, a law library, and a mental health courtroom. The only place in the administrative wing where inmates go is the mental health courtroom.

The Sheriff's Office controls operations at the jail complex. (We use the term "jail complex" as a shorthand for the entire complex, including the jail, Cermak, and the courthouse.) It employs both sworn staff (i.e., correctional officers and deputy sheriffs) and civilian staff. Cermak workers are civilian employees of the County.

Non-supervisory employees at the jail have a variety of roles. Many work in the housing divisions. Others provide healthcare to inmates at Cermak or the Residential Treatment Unit. Others work behind the scenes at Cermak as, for example, accountants, programmers, and administrative assistants. Still others work in non-residential parts of the jail in administrative roles (e.g., mailroom, visitation, IT, records, HR, drug testing). Employees who work at the courthouse (called court services deputies) also have a variety of roles. Some work as courtroom deputies, for example, while others perform door security or work with juries in the administrative wing.

B. This Lawsuit

The named plaintiffs are ten women who work at the jail complex. They include four sworn correctional officers, a civilian correctional rehabilitation worker, a civilian paramedic, and four sworn deputy sheriffs who work at the courthouse. One of the correctional officers works in the Strategic Operations and Information Unit reviewing reports and videos of inmate misconduct. The other three work in Divisions 2 or 10, as does the civilian rehabilitation worker. Collectively, the correctional officers and the rehabilitation worker have worked in every housing division (including Cermak and the Residential Treatment Unit) and non-residential parts of the jail. Three of the deputy sheriffs work in the Court Services Department at the courthouse. Their duties include transporting inmates to hearings. The other deputy sheriff works in "the bridge," a staging area in the courthouse basement where inmates wait for the court to call their cases. The four deputy sheriffs have worked at various other locations in the courthouse in the past. The paramedic works at Cermak. She also has worked in Divisions 2, 9, and 10.

In their suit against the Sheriff's Office and Cook County, the plaintiffs allege that they have endured frequent and extreme sexual harassment by male inmates, which the defendants have failed to take reasonable measures to prevent. The harassment occurs "on a daily or nearly daily basis throughout the Jail." The plaintiffs allege that male inmates expose their genitals to them, masturbate at them, direct sexual remarks and gestures at them, grope and grab them, and threaten and commit sexual violence against them. The plaintiffs say they have complained of this horrible harassment to no avail.

On behalf of themselves and other similarly situated women who work at the jail complex, the plaintiffs sue the defendants for permitting a hostile work environment in violation of Title VII of the Civil Rights Act of 1964. They also bring claims under 42 U.S.C. § 1983 for gender discrimination in violation of the Fourteenth Amendment's Equal Protection Clause; gender-discrimination claims under the Illinois Civil Rights Act, 740 ILCS 23/5 ; and claims for indemnification against Cook County. A few weeks after the plaintiffs filed suit, the district court entered a preliminary injunction mandating certain preventative measures agreed to by the parties.

This appeal arises from the second of two class certification orders entered by the district court. The second order modified the first, so our review touches on both orders.

1. Original Class Certification Order

The plaintiffs moved to certify a class under Federal Rule of Civil Procedure 23(b)(3) comprising all female employees of the Sheriff's Office or the County who work at the jail complex, other than certain high-level management employees like the executive director, chief financial officer, and superintendent.

The plaintiffs submitted a range of evidence in support of their motion for class certification, including the defendants’ policies, procedures, and records; expert reports from statistical, psychological, and correctional professionals; 144 class member declarations; and deposition testimony from class members and defense witnesses. The defendants submitted their own evidence, similar in kind, to oppose class certification. At a general level, the evidence shows:

• Prevalence of sexual harassment. There were at least 1,745 filed reports of male inmates sexually harassing female employees at the jail complex between January 2015 and September 2018. The vast majority involved indecent exposure or exhibitionist masturbation. Because of underreporting problems, the number of incident reports may significantly understate the actual number of incidents. According to the plaintiffs’ statistical expert, more than two-thirds (1,186) of the reported incidents occurred in Divisions 8, 9, or 10, which house the highest-security male inmates. (The defendants’ expert put that number at three-quarters.) Only seven percent (121) of the incidents occurred in Divisions 2 or 6, which house lower-security male inmates. Nine percent (151) occurred in non-residential parts of the jail. And six percent (110) occurred at the courthouse. Beyond incident reports, the 144 class member declarations recounted extreme episodes and patterns of sexual harassment by male inmates.

• Exposure to harassment. A female employee's exposure to harassment can vary significantly with job assignment, though job assignments can change. Some class members, for example, described seeing little misconduct while working in Divisions 2 through 5 (which house female inmates and lower-security male inmates), while encountering much more upon transferring to Division 9 (a maximum-security male division).

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