Brown v. Cook County

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CRYSTAL BROWN, SARAN CRAYTON, )

SAMANTHAN SLONIM, CELESTE )

ADDYMAN, ERIKA KNIERIM, and JULIE )

HULL, on behalf of themselves and a )

class of similarly situated persons, )

)

Plaintiffs, )

)

vs. ) Case No. 17 C 8085

)

COOK COUNTY, AMY CAMPANELLI, in )

her official and individual capacity as )

Public Defender of Cook County, and )

THOMAS DART, in his official and )

individual capacity as Sheriff of )

Cook County, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

The plaintiffs in this putative class action have sued Cook County, Cook County

Public Defender Amy Campanelli, and Cook County Sheriff Thomas Dart alleging

employment discrimination under Title VII, the Equal Protection Clause of the

Fourteenth Amendment, and parallel provisions of state law. The named plaintiffs are

women who serve or have served as assistant public defenders for the county and who

contend that the defendants created a hostile work environment for women they

employed. They also allege that one of the defendants, Campanelli, retaliated when the

plaintiffs sought redress. The plaintiffs have moved for certification of a hostile work

environment class and for certification of a retaliation subclass. For the reasons below,

the Court grants the motion to certify the hostile work environment class as modified

below but declines to certify the retaliation subclass.

Background

The named plaintiffs—Crystal Brown, Saran Crayton, Samantha Slonim, Celeste

Addyman, Erika Knierim, and Julie Hull—were at all relevant times assistant public

defenders for Cook County.1 In their roles, the plaintiffs worked directly for Cook

County Public Defender Amy Campanelli and Cook County. They contend that they

were also indirect or joint employees of Sheriff Dart, who administers the Cook County

Jail.

The Cook County Jail system is sprawling. The main complex, located south of

26th Street and (mostly) west of California Avenue in Chicago, is divided into a number

of divisions. The events underlying this case occurred primarily (but not exclusively) in

divisions 9 and 10 of the jail, which house maximum security detainees, as well as the

lockups at the George N. Leighton Criminal Courthouse.

The Cook County Public Defender program is also extensive. There are sixteen

practice groups, also called divisions, to which assistant public defenders are assigned.

Only defenders assigned to two of these divisions—Felony Trial and the Homicide Task

Force—work primarily in the Leighton Courthouse. All of the plaintiffs identified in the

briefs except Julie Willis work or have worked in the Felony Trial Division. (Willis

worked at the courthouse in suburban Markham, Illinois.) But, relevant later, the

1 The plaintiffs highlight testimony from eleven other individual plaintiffs in their brief:

Rachelle Hatcher, Brett Gallaher, Rocio Armindariz, Kyan Keenan, Takenya Nixon,

Carly Patzke, Stephanie Schlegel, Ashley Shambley, Coryn Steinfeld, Niyati Thakur,

and Julie Willis. But the plaintiffs expressly propose only Brown, Crayton, Slonim,

Addyman, Knierim, and Hull as class representatives. See Pls.' Br. in Supp. of Mot. for

Class Cert., dkt. no. 203, at 4 n.1.

plaintiffs allege that all members of the putative class are required to get experience in

the Felony Trial Division to be eligible for promotions, meaning that they have to spend

time working at the Leighton Courthouse and meeting with clients at the jail.

A. Attacks underlying this suit

Each plaintiff alleges that she was subjected to a hostile work environment

stemming from exhibitionist attacks perpetrated by detainees at the jail and various

courtroom lockups. Indeed, it is undisputed that between 2015 and 2017, attacks

involving indecent exposure and masturbation by detainees became frequent. Although

each attack was different, a common theme emerged: detainees targeted women

assistant public defenders and law clerks for attacks that involved exposing their

penises and masturbating while making eye contact with or otherwise directing their

conduct toward their target. These attacks were commonly accompanied by verbal

threats and, occasionally, physical contact.

The plaintiffs contend that the attacks were organized by a group of detainees

who specifically sought to target women who worked in the jails. They point to

testimony about a prison gang called "Savage Life" that was formed in 2015 and which

allegedly orchestrated the attacks on jail personnel. The plaintiffs contend that the gang

organized a sort of competition in which detainees were awarded points for attacks;

incidents involving assistant public defenders and law clerks were apparently worth

more points than attacks on other jail personnel.

The plaintiffs further assert that the defendants were aware of the severity and

widespread nature of the attacks by, at the very latest, January 2016 when a Chicago

Sun-Times article about them was published. The defendants do not meaningfully

contest this timeline and even suggest they were aware of (and sought to address) the

problem as early as October 2015. Moreover, there is significant evidence that the

defendants agreed that the conditions women who worked in the jail faced were quite

severe, with Campanelli herself characterizing the attacks as an "epidemic." Pls.' Br. in

Supp. of Class Cert. (Pls.' Br.), Ex. M, dkt. no. 202-25, and her chief of staff, Lester

Finkle, describing the situation as a "[p]ublic indecency crisis," id., Ex. O, dkt. no. 202-

27.

According the limited data available, the attacks most often occurred in divisions

9 and 10 of the jail and in the Leighton Courthouse's lockups. As discussed below,

however, the plaintiffs contend that these data are incomplete because victims were

discouraged from reporting. And, as plaintiffs point out, attacks also occurred in other

divisions of the jail and various courthouse lockup locations throughout the county.

B. Responsive measures

The plaintiffs contend that the defendants' response to the widespread attacks

was inadequate. Specifically, they point to several policies and practices that they say

the defendants adopted that did not sufficiently address—and in some cases perhaps

even exacerbated—the attacks. At the outset, the plaintiffs point to evidence that in late

2014 the Cook County Sheriff's Office revised its Disciplinary Charges Code to lower

the offense classification for indecent exposure, masturbation, and sexual harassment

offenses. The downward adjustment took these offenses from the second highest level,

category 6, to the second lowest level, category 2. The plaintiffs suggest that this

change may have played a role in the dramatic increase in exhibitionist attacks in the

following months.

Second, in October 2015, after the initial spike in attacks, the sheriff's office

installed signs advising detainees of the consequences for multiple indecent exposure

offenses. These signs noted that a detainee convicted of three such offenses would be

required to register as a sex offender. These measures had very little effect. The

plaintiffs suggest that this was, at least in part, because the procedure for prosecuting

inmates was an ineffective disincentive. Prosecutions were often delayed, and when

they did occur, prosecutions sometimes involved transporting inmates to outlying

facilities, an aspect of the process that the plaintiffs contend may have actually

incentivized attacks for detainees who wanted to travel outside of the jail.

Next, beginning in January 2016, the Public Defender sent supervisors to the jail

to hold classes with detainees about the consequences of masturbation attacks and to

encourage the detainees to stop the onslaught. The plaintiffs contend that this measure

was wholly ineffective and was followed by a further increase in the rate of masturbation

attacks. Also in January 2016, the sheriff's office's chief of staff Michael Curry was

informed that a policy intended to help monitor detainees who had been found guilty of

the sort of exhibitionist attacks at issue here was not being effectively administered.

Specifically, Curry learned on January 25 that eighty-six detainees who had been found

guilty of public indecency had not been issued the distinctive pink identification cards

the jail used to identify violators. The plaintiffs suggest that this failure was evidence of

a broader trend of ineffective and lax enforcement.

In June 2016, an assistant executive director of the Cook County Sheriff's Office

and other members of the jail staff threw a group of maximum security detainees a

pizza party. The purpose of the party was, according to the plaintiffs, to reward

detainees who had previously been convicted of masturbation-related offenses for going

a period of time without perpetrating additional attacks. The plaintiffs contend that this

incentivized detainees who had not previously perpetrated attacks against prison

personnel to join in the harassment in order to become eligible for such a reward. But

the evidence cited makes clear that this party was unauthorized and was, in fact,

against jail policy; it was neither funded by the sheriff's office nor endorsed by it.

A few months later, in October 2016, the sheriff's office instituted a larger

change: it began requiring detainees who engaged in indecent exposure to wear

modified uniforms that ostensibly restricted their ability to expose their genitals. These

uniforms were also distinctive in that they were green, a different color from the other

uniforms at the jail. The plaintiffs contend, however, that this measure was ineffective.

First, that say that the green jumpsuits did not fully restrict detainees' ability to expose

themselves. Second, they contend that the jumpsuit policy was not uniformly enforced

and that some violators were overlooked—just as had occurred with the pink ID card

policy. Third, the plaintiffs say that the sheriff's office failed to effectively monitor the

inmates who were required to wear the green jumpsuits. As a result, they contend,

many offenders were allowed to commit repeat attacks against jail personnel.

The only measure that was truly effective, the plaintiffs assert, was handcuffing.

In February 2017, the sheriff's office began shackling all detainees while they were in

courthouse lockups. Plaintiffs say that this had an immediate impact; detainees whose

hands were cuffed behind their backs could not masturbate or otherwise expose

themselves to assistant public defenders or law clerks. But this measure lasted only a

short time, as the policy was rescinded at the end of February. The plaintiffs emphasize

that, although Sheriff Dart emphatically supported continued cuffing, Campanelli

opposed the practice. Indeed, they point to testimony from multiple class members that

Campanelli actually apologized to detainees who had been handcuffed. According to

one plaintiff, Campanelli told detainees that they were being handcuffed because "a few

[detainees were] causing disturbances with exposures." Pls.' Br., Ex. 3 (Crayton Dep.),

dkt. no. 202-3, at 103:17-18. Another plaintiff testified that she heard Campanelli tell

detainees that "they were being handcuffed because of the masturbation issues and . . .

[complaints by] female public defenders specifically." Id., Ex. 9 (Gallagher Dep.), dkt.

no. 202-9, at 183:1-3. The plaintiffs say that Campanelli unfairly characterized the

cuffing as the plaintiffs' fault, opening them to further attacks.

The other measure implemented in February 2017 was a staffing surge. Sheriff

Dart placed additional deputies on certain floors of the Leighton Courthouse. The

plaintiffs say that this measure was only partially effective because additional deputies

were not assigned to some of the floors on which attacks continued and because even

where additional deputies were assigned, they were not always present and attentive.

And any potential benefit was fleeting because the additional deputies were removed in

August 2017 due to budget cuts.

The plaintiffs also note that Campanelli opposed a bill introduced in the state

legislature that would have increased criminal penalties for indecent exposure. They

concede that Sheriff Dart supported the legislation but suggest that Campanelli's

opposition indicates that she discounted the severity of the conditions facing her

employees. They suggest that "[i]t is possible that the legislation would have reduced

attacks." Pls.' Br., dkt. no. 202, at 19.

In October 2017, Campanelli convened a meeting of assistant public defenders

from the Felony Trial Division. According to multiple people in attendance at that

meeting, she told all assembled that she could not protect them while they were in the

lockups or jail. Rather, according to Campanelli, it was Sheriff Dart's responsibility to

keep them safe while they were in the jail complex. The plaintiffs suggest that this effort

to shift blame to the Sheriff Dart alone is unsupported by the record. They specifically

note that the county has substantial authority to invest in infrastructure and other

measures that could reduce the frequency of attacks.

In any event, the parties appear to agree that the attacks abated in November

2017. The parties disagree about whether this abatement was a result of changes

identified by the defendants or whether it was caused by the two agreed preliminary

injunctions entered by this Court, which mandated additional procedures designed to

prevent attacks on women working in the jail.

C. Culture of silence and retaliation

Beyond their allegations about the ineffective and sometimes counterproductive

nature of the defendants' efforts to prevent attacks, the plaintiffs also allege that they

were pressured not to report harassment. They say that there was a de facto policy

against reporting clients at all but particularly against pressing criminal charges. In

other words, the plaintiffs say that they felt that the public defender program had a

culture in which victims of the sorts of exhibitionist attacks they endured were expected

to simply turn the other cheek. See, e.g., Pls.' Br., Ex. 1 (Stahl Dep.), dkt. no. 202-1, at

110:7-9 ("[T]here's a feeling that, you know, we as public defenders shouldn’t be filing

charges against our own clients."). Multiple plaintiffs testified about a specific example

involving putative class member Ashley Shambley. After being subjected to a

masturbation attack by a detainee in 2016, Shambley pressed criminal charges. The

plaintiffs allege, citing deposition testimony, that Shambley was criticized by senior

assistant public defenders for filing the charges. They contend that those senior

attorneys suggested that Shambley had invited the attack by wearing certain clothing

and that they spread rumors about her performance and abilities as a lawyer.

The plaintiffs contend this hostility to reporting went all the way to the top. They

point to statements from Campanelli and her chief of staff, Finkle, suggesting that some

people simply "shrug off" these sorts of attacks. The plaintiffs took these statements to

suggest that the most senior officials in the office wanted them to simply endure the

regular harassment to which they were subjected. They suggest that Sheriff Dart also

encouraged silence by failing to create an administrative reporting procedure for these

sorts of attacks until March 2017, long after the attacks surged.

The defendants, for their part, firmly dispute the plaintiffs' characterizations.

First, they point to communications between Campanelli, Finkle, and their subordinate

assistant public defenders in which they affirmed their support for defenders' rights to

report harassment and even to file criminal charges. See, e.g., Pls.' Br., Ex. BBBB, dkt.

no. 202-81. The defendants also note—and the plaintiffs acknowledge—that Sheriff

Dart repeatedly encouraged all who experienced masturbation attacks to press charges.

See, e.g., id. Ex. R, dkt. no. 202-29, at 2. Indeed, they point to evidence that Dart

exhorted Campanelli to require her employees to report.

Finally, the plaintiffs also allege that the culture of silence ultimately set the stage

for discriminatory retaliation against those who dared to speak. In October 2017, about

two years after the defendants' initial efforts to address the attacks, seventeen of the

plaintiffs filed a complaint with the EEOC. They alleged a gender-based hostile work

environment stemming from the masturbation attacks and the defendants' ineffective

efforts to counter them. On October 31, shortly after the filing of the EEOC complaint,

the defendants enacted a temporary ban on assistant public defenders entering lockups

at the Leighton Courthouse. This ban, on its face, applied to all public defenders

regardless of gender. But the plaintiffs say that it was instituted in retribution for the

EEOC complaint. They suggest that because Campanelli knew about the EEOC

complaint before instituting the ban, she likely understood the position she was putting

the plaintiffs in by ordering them to stay out of the lockups. The plaintiffs also say that

although men were permitted to ignore the ban, women were not. And despite

explaining the directive, some of the female assistant public defenders were threatened

by judges with various sanctions if they failed to enter the lockup to talk to their clients,

including in at least one case a referral to the Attorney Registration and Discipline

Commission. According to the plaintiffs, this was predictable and indeed planned by

Campanelli—the "culmination of a campaign of retaliation and discouragement." Pls.'

Br., dkt. no. 202, at 23.

D. This suit

The plaintiffs filed this suit in November 2017. The four-count amended

complaint alleges (1) a sex-based hostile work environment in violation of the Equal

Protection Clause of the Fourteenth Amendment, via 42 U.S.C. § 1983, against Dart

and Campanelli in their official capacities; (2) a sex-based hostile work environment in

violation of Title VII, 42 U.S.C. § 2000e-2(a), against Dart and Campanelli in their official

capacities and against Cook County; (3) retaliation under Title VII, id. § 2000e-3(a),

against only Campanelli in her official capacity; and (4) violations of parallel provisions

of the Illinois Civil Rights Act against all three defendants.2 The plaintiffs also assert a

separate claim for indemnification against Cook County.

The plaintiffs now move to certify two classes under Rule 23 of the Federal Rules

of Civil Procedure. First, they ask the Court to certify a hostile work environment class

comprising:

All female APDs [assistant public defenders] (not including APDs

supervisors) and law clerks who have worked for Defendants from

November 1, 2015 through the present and who have visited or will be

required to visit the jail and/or lockup in connection with their employment.

See Pls.' Br., dkt. no. 202, at 24. They also seek certification for a retaliation subclass

of:

All female APDs [assistant public defenders] (not including APD

supervisors) who have worked for Defendants from November 1, 2015

through the present in the Felony Trial Division or who filed charges,

reports or made complaints about detainees masturbation or indecent

exposure incidents.

Id.

Discussion

Federal Rule of Civil Procedure 23 sets out the requirements for class

certification. First, under Rule 23(a) a putative class must satisfy the requirements of

numerosity, typicality, commonality, and adequacy. See Fed R. Civ. P. 23(a); Wal-Mart

Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011). Next, Rule 23(b)(3) permits class

2 Because these claims involve questions of law parallel to the federal claims, they do

not warrant separate discussion. See Hoosier v. Greenwood Hospitality Mgmt. LLC, 32

F. Supp. 3d 966, 975 (N.D. Ill. 2014); Cent. Austin Neighborhood Ass'n v. City of

Chicago, 2013 IL App (1st) 123041, ¶ 10, 1 N.E.3d 976, 980.

certification only if "questions of law or fact common to class members predominate

over any questions affecting only individual members, and [ ] a class action is superior

to other available methods for fairly and efficiently adjudicating the controversy." Fed R.

Civ. P. 23(b)(3); see also Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 594 (1997).

At the certification stage, the Court does not "adjudicate that case," but rather "select[s]

the method best suited to adjudication of the controversy fairly and efficiently." Amgen

v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455, 460 (2013). "The party seeking

certification bears the burden of demonstrating that certification is proper by a

preponderance of the evidence." Chi. Teachers Union, Local No. 1 v. Bd. of Educ. of

City of Chi., 797 F.3d 426, 433 (7th Cir. 2015).

A. Hostile work environment class

The plaintiffs' hostile work environmental claims arise under Title VII and the

Equal Protection Clause of the Fourteenth Amendment (via 42 U.S.C. § 1983). To

prevail on their Title VII claims, the plaintiffs "must show that (1) [they were] subject to

unwelcome harassment; (2) the harassment was based on [their sex]; (3) the

harassment was so severe or pervasive as to alter the conditions of employment and

create a hostile or abusive working environment; and (4) there is a basis for employer

liability." Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 900 (7th Cir.

2018). The constitutional claims have the same elements, with the added requirement

that the plaintiffs show the defendants acted under color of law. See Alamo v. Bliss,

864 F.3d 541, 548 n.16 (7th Cir. 2017) ("When a plaintiff uses § 1983 as a parallel

remedy to a Title VII hostile work environment claim, the elements needed to establish

liability are the same under both statutes."); Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.

40, 49 (1999) (noting color of law requirement).

Importantly, and contrary to the defendants' repeated insinuations, an employer

may be liable for a hostile work environment created by a third party. In Erickson v.

Wisconsin Department of Corrections, 469 F.3d 600 (7th Cir. 2006), for instance, the

Seventh Circuit held that "for purposes of Title VII hostile work environment liability

based on negligence, whether the potential harasser is an employee, independent

contractor, or even a customer is irrelevant." Id. at 605. Put another way, "[t]he genesis

of inequality matters not; what does matter is how the employer handles the problem."

Id. (quoting Dunn v. Wash. Cty. Hosp., 429 F.3d 689, 691 (7th Cir. 2005)). Where a

hostile work environment is created by a third party—such as a person detained at a jail

or prison—an employer may be "liable under Title VII's negligence standard if it failed to

discover and prevent sexual harassment of an employee giving rise to a hostile work

environment." Id. (internal quotation marks omitted).

The defendants challenge the plaintiffs' showings under Rules 23(a) and 23(b).

First, although they concede numerosity, the defendants contend that the plaintiffs have

failed to demonstrate commonality, typicality, and adequacy for their hostile work

environment claims. Likewise, they argue that the plaintiffs' claims do not satisfy Rule

23(b)(3)'s requirements of predominance and superiority.3

3 The defendants also make arguments related to Rule 23(b)(2). Rule 23(b)(2) allows a

class to be certified for the limited purpose of injunctive relief where "the party opposing

the class has acted or refused to act on grounds that apply generally to the class, so

that final injunctive relief or corresponding declaratory relief is appropriate respecting

the class as a whole." Fed. R. Civ. P. 23(b)(2). Because, as discussed below, the

Court concludes that a Rule 23(b)(3) class should be certified for both damages and

injunctive purposes, see Lemon v. Int'l Union of Operating Eng'rs, Local No. 139, AFL-

CIO, 216 F.3d 577 577, 581 (7th Cir. 2000), the Court need not address the Rule

23(b)(2) arguments.

1. Ascertainability, due process, and standing

Before turning to Rule 23, the Court must first address a challenge to the hostile

work environment class definition that does not fit squarely under Rule 23(a) or 23(b).

Specifically, the defendants challenge the proposed class definition on the basis that it

is not sufficiently ascertainable. Although not expressly provided for by Rule 23, the

Seventh Circuit has recognized that the members of a proposed class must be

ascertainable, meaning that the class must be "defined clearly and based on objective

criteria." Mullins v. Direct Dig., LLC, 795 F.3d 654, 659 (7th Cir. 2015). A clear

definition is one that "identif[ies] a particular group, harmed during a particular time

frame, in a particular location, in a particular way." Id. at 660. "[C]lasses that are

defined by subjective criteria, such as by a person's state of mind, fail the objectivity

requirement." Id.

The defendants argue that the hostile work environmental class is not

ascertainable for two reasons. First, they argue that the class's purported inclusion of

law clerks "required to visit the jail and/or lockup in connection with their employment" is

not ascertainable because law clerks are not and were never required to visit either

location. This argument lacks merit. That law clerks were purportedly never required to

enter lockup does not present a problem of ascertainability because, whether or not that

was the case, it is still an objective, readily discernible criterion. That is, the inclusion of

that language does not cause a portion of the class to be unidentifiable. Rather,

assuming the defendants are correct, that portion of the class definition is objectively

ascertained to include zero putative plaintiffs. For that reason, this argument is best

understood as a swipe at the merits of those class members' hostile work environment

claims. The Court therefore overrules defendants' argument. Beaton v. SpeedyPC

Software, 907 F.3d 1018, 1025 (7th Cir. 2018) ("At this early stage in the litigation, the

merits are not on the table.").

Second, the defendants argue that the class is not ascertainable because it

purportedly includes assistant public defenders who have not yet but may at some point

in the future be required to enter the jail or lockup. Citing In re Domestic Drywall

Antitrust Litigation, No. 13-MD-2437, 2017 WL 3700999, at *10 (E.D. Pa. Aug. 24,

2017), the defendants contend that this phrasing is too inexact to permit certification.

They specifically point to notice problems presented by the proposed class definition—

the putative class members who have not yet been, but may at some point be, required

to go to the jail or lockup are unidentifiable and thus cannot possibly receive notice.

The defendants' citation is inapposite. The Eastern District of Pennsylvania,

where In re Domestic Drywall was decided, sits within the Third Circuit. The Seventh

Circuit in Mullins dedicated much of its careful analysis to distinguishing and expressly

declining to adopt the enhanced ascertainability standards endorsed by the Third

Circuit. See Mullins, 795 F.3d at 657-58, 659-72. The fact that the class defines its

membership to include all those who meet certain clear criteria "from November 1, 2015

through the present" undoubtedly satisfies the Seventh Circuit's ascertainability

requirement that a class definition must identify "a particular time frame,"

notwithstanding the defendants' citation to Third Circuit authority to the contrary. See

A.M.T. v. Gargano, No. 10-cv-0358-JMS-TAB, 2010 WL 4860119, at *4 (S.D. Ind. Nov.

22, 2010) (finding that the membership of a forward-looking class was ascertainable).

The defendants are correct, however, to the extent that they argue that the

proposed hostile work environment class presents notice problems. But they are

incorrect to describe these notice problems in terms of ascertainability. See Mullins,

795 F.3d at 665-66. Rather, as the Court of Appeals explained in Mullins, a class

definition that includes unidentified or "absent" putative plaintiffs creates due process

problems entirely separate from ascertainability that ought to be weighed by a court

considering class certification. See id. Specifically, the Court must balance the stakes

of the litigation (and, relatedly, the importance of the unidentified class members' rights)

against the practicability of notice. See id.

The Court concludes that certifying the hostile work environment class proposed

by the plaintiffs would potentially violate the due process rights of future putative class

members and that the definition sweeps somewhat too broadly for certification under

Rule 23(b)(3). The Court reaches this conclusion because reasonable notice cannot be

provided to the putative class members who "will be required" to visit the jail and/or the

lockup as part of their work due to the fact that they are necessarily unidentifiable at this

point. See Mullins, 795 F.3d at 665-66; Lemon, 216 F.3d at 580. The Court will

therefore excise that portion of the proposed class definition. See Messner v.

Northshore Univ. HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012) (noting that the

district court has authority to refine the class definition to resolve problems of over-

inclusiveness).

The Court acknowledges that the plaintiffs alternatively proposed certifying this

portion of the class including unidentified future members only under Rule 23(b)(2).

That rule permits certification of a class for the limited purpose of injunctive relief and

has been read by some courts to permit certification of classes including future

members who have not yet been injured in the way common to the class. See, e.g.,

Lippert v. Baldwin, No. 10 C 4603, 2017 WL 1545672, at *1-2 (N.D. Ill. Apr. 28, 2017);

A.M.T., 2010 WL 4860119, at *4. And, for their part, the defendants appear to concede

that such certification may be permissible for a forward-looking class. Nevertheless, the

Court declines to certify the "will be required" portion of the hostile work environment

class definition under Rule 23(b)(2). The Court concludes that future members of this

putative class may face standing problems unaddressed by the parties. See, e.g.,

Mednick v. Precor, Inc., No. 14 C 3624, 2016 WL 5390955, at *7-9 (N.D. Ill. Sept. 27,

2016); Rock v. Nat'l Collegiate Athletic Ass'n, No. 12-cv-01019-TWP-DKL, 2016 WL

1270087, at *15-16 (S.D. Ind. Mar. 31, 2016). These future class members have not yet

been injured, and the plaintiffs have not attempted to show that they face a real and

immediate threat of future harm. See Scherr v. Marriott Int'l, Inc., 703 F.3d 1069, 1074

(7th Cir. 2014). The Court thus possesses insufficient information to certify this subset

of the class under Rule 23(b)(2). And, the Court notes, certification of this subset of the

class under Rule 23(b)(2) probably would make no difference; the injunctive relief

sought by the plaintiffs is likely to be the same irrespective of whether or not the future-

looking portion of the class definition is retained.

In consideration of due process and standing, but not as a result of the

defendants' ascertainability arguments, the Court will modify the hostile work

environment class definition to exclude the phrase "or will be required to visit."

2. Rule 23(a)

As previously noted, Rule 23(a) requires a plaintiff class to satisfy the

requirements of numerosity, typicality, commonality, and adequacy. See Fed R. Civ. P.

23(a); Wal-Mart, 564 U.S. at 349. Numerosity is undisputed here, presumably because

the putative class includes more than 260 assistant public defenders and seventy law

clerks. See Mulvania v. Sheriff of Rock Island Cty., 850 F.3d 849, 860 (7th Cir. 2017)

(citing Newberg on Class Actions § 3.12 for the proposition that "a class of 40 or more

members raises a presumption of impracticability of joinder based on numbers alone").

But the defendants challenge plaintiffs' ability to meet each of the other requirements.

a. Commonality

Rule 23(a)(2) requires a plaintiff seeking class certification to show that there are

"questions of law or fact common to the class." The Supreme Court has clarified that

commonality requires "not the raising of common 'questions'—even in droves—but,

rather the capacity of a classwide proceeding to generate common answers apt to drive

the resolution of the litigation." Wal-Mart, 564 U.S. at 350. For the purposes of this

requirement, "[e]ven a single [common] question will do." Id. at 359 (alterations in

original) (internal quotation marks omitted); see also Chi. Teachers Union, 797 F.3d at

434 ("The claims must depend upon a common contention that is capable of class-wide

resolution.")

The Court concludes that there are several questions subject to common

resolution that satisfy this requirement. The defendants argue, citing Bolden v. Walsh

Construction Co., 688 F.3d 893 (7th Cir. 2012), that the fact that members of the

putative class worked in different divisions of the Public Defender's office renders their

claims unsatisfactory under the commonality requirement. But that citation is

unavailing. Bolden concerned allegations of discrimination from a class of construction

workers who worked on more than 260 different worksites around Chicago. Id. at 894-

95. Each worksite was led by a superintendent, and each superintendent exercised his

discretion differently, though the plaintiffs contended many practiced or permitted racial

discrimination. Id. The Seventh Circuit concluded that because the discrimination was

effected by myriad different independent actors without any apparent common cause,

there were no sufficiently important common questions subject to collective resolution.

Id. at 899. The defendants contend the same rationale applies here to the sixteen

different divisions of the Public Defender program and the various different working

situations assistant public defenders experience across the Cook County Jail system.

Since Bolden was decided, however, the Seventh Circuit has explained that

working in different locations and for different supervisors does not automatically defeat

commonality for a putative employment discrimination class. In Chicago Teachers

Union, the court held that where there is a common policy that applies across worksites

and channels individual supervisors' discretion in discriminatory ways, that common

policy may serve as "the glue that binds the claims together" for purposes of class

certification. Chi. Teachers Union, 797 F.3d at 436. The plaintiffs here point to

evidence, discussed previously, that they contend shows common questions regarding

several of the defendants' policies and their effects on the plaintiffs' work environment.

These common questions include whether the attacks by inmates were so severe or

pervasive as to alter the conditions of employment and create a hostile or abusive

working environment; whether the defendants' policies led to the rapid proliferation of

masturbation attacks against public defenders and law clerks across the Cook County

Jail system; whether the defendants discouraged the plaintiffs from reporting when they

were attacked; and whether the defendants' delay in making effective changes to

reduce the rate of violence constituted an unreasonable delay in discovering and

remedying the situation. Any one of these or several other common questions

presented by the plaintiffs will "resolve an issue that is central to the validity of each

claim," id. at 434, thus satisfying the commonality requirement.

The defendants also seem to argue that the plaintiffs' hostile work environment

claims are a poor fit for class treatment because they involve both objective and

subjective elements. See Johnson, 892 F.3d at 900. But, contrary to the defendants'

contention, judges in this district, including the undersigned judge, have certified hostile

work environment classes despite the fact that these claims include a subjective

element. See, e.g., Brand v. Comcast Corp., 302 F.R.D. 201, 221-22 (N.D. Ill. 2014)

(Kennelly, J.); Brown v. Yellow Transp., Inc., No. 08 C 5908, 2011 WL 1838741, at *5-7

(N.D. Ill. May 11, 2011); Smith v. Nike Retail Servs., 234 F.R.D. 648, 660-61 (N.D. Ill.

2006). In any event, this is an argument better suited to a challenge of predominance

or perhaps typicality. As the Court has already noted, there is certainly more than one

important issue subject to common resolution presented by the plaintiffs' claims, and the

claims therefore satisfy Rule 23(a)(2)'s commonality requirement.

b. Typicality

The defendants next argue that the plaintiffs' claims are insufficiently typical for

class certification. A class representative's claims are typical of the proposed class if

they "arise[ ] from the same event or practice or course of conduct that gives rise to

claims of the other class members and [are] based on the same legal theory." Lacy v.

Cook County, 897 F.3d 847, 866 (7th Cir. 2018); see also Beaton, 907 F.3d at 1026.

The defendants' typicality arguments are closely related to those they made regarding

commonality. That is perhaps unsurprising given that "commonality and typicality 'tend

to merge.'" See Priddy v. Health Care Serv. Corp., 870 F.3d 657, 660 (7th Cir. 2017)

(quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982)).

Specifically, the defendants point to the plaintiffs' masturbation attack report data,

which suggest that most of the attacks occurred in divisions 9 and 10 and the Leighton

Courthouse lockups. They take issue with the plaintiffs' proposal to certify a class that

includes women who worked as assistant public defenders and law clerks in outlying

courthouses and for divisions of the office that have no regular contact with detained

people, such as those who work with juvenile offenders. The defendants argue that

because all but one of the named plaintiffs worked in the Felony Trial Division at the

Leighton Courthouse—the exception being Willis, who worked at the Markham

Courthouse—their claims are atypical of the plaintiff class. Relying primarily on case

law from the Sixth Circuit, the defendants argue that even if the class representatives

are able to prove their own claims, they will not be able to prove those of other class

members.

But typicality does not require perfect identity of claims. See Beaton, 907 F.3d at

1026 (noting that claims "may feature some factual variations as long as they have the

same essential characteristics" (internal quotation marks omitted)). Here, the plaintiffs'

claims all share the same essential characteristics: they each allege that they were

subject to a hostile work environment as a result of the defendants' policies, which they

say exacerbated—or at least failed to address—masturbation attacks by detainees

against female assistant public defenders and law clerks. The also all contend that the

defendants were aware of the problem, acknowledged that it was widespread across

the Cook County Jail system, and failed to enact reasonable and effective changes to

resolve it. The plaintiffs freely admit that some class members likely experience more of

the attacks—particularly those who worked in divisions 9 and 10 and the Leighton

Courthouse. But they also contend (and the defendants do not meaningfully contest)

that attacks took place throughout the county, albeit at a significantly lower rate outside

the jail complex. And, they contend, even those assistant public defenders who worked

elsewhere had to spend time working with the Felony Trial Division at the Leighton

Courthouse to be eligible for promotions. As a result, the plaintiffs argue, any

differences in the frequency and severity of attacks experienced by any two class

members are differences in degree, and not kind, that may properly be addressed at a

later stage. Cf. Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th Cir. 2014)

(noting that that minor differences regarding remedies typically do not preclude class

certification).

The Court is satisfied that the named plaintiffs' claims are sufficiently typical to

support certification. Although there will no doubt be some factual variation between the

claims of an assistant public defender who worked in the Felony Trial Division and one

who worked in, for instance, the juvenile civil division, both have alleged a common

injury: employment discrimination caused by the plaintiffs' policies that allegedly

created a hostile work environment. That some of the plaintiff class members may have

experienced masturbation attacks with less frequency does not mean they were

uninjured by the hostile work environment those attacks created. Rather, they may

have simply been injured to a lesser extent—an issue better suited for resolution at a

later stage of the litigation. In sum, the Court finds that the putative class's claims

satisfy the typicality requirement of Rule 23(a)(3).

c. Adequacy

To satisfy the adequacy requirement, the plaintiffs must demonstrate both that

the named plaintiffs are satisfactory representatives for the class and that their counsel

are up to the task of prosecuting the action. See Gomez v. St. Vincent Health, Inc., 649

F.3d 583, 592 (7th Cir. 2011). The defendants do not contest adequacy of counsel.

Although adequacy overlaps somewhat with commonality and typicality, it also requires

analysis of whether there are conflicts of interest between the class representatives and

potential members of the class. See Wal-Mart, 564 U.S. at 349 n.5. Because the Court

already addressed the portions of the defendants' argument that overlap with

commonality and typicality, the Court focuses here on the latter point.

The defendants make two primary arguments to support their contention that the

named plaintiffs are inadequate representatives of the class. First, they say that

because some of the law clerk class members accompanied male assistant public

defenders into lockups, they did not suffer injuries and are thus not adequately

represented by the named plaintiffs, each of whom alleges significant harm. That is, the

defendants appear to suggest that the presence of a male public defender in lockup

inoculated law clerks from attack by detainees, rendering those women immune from

harm. This contention is contrary to the weight of the evidence. Specifically, there is

significant evidence that the detainees who perpetrated these attacks had no

reservations about exposing themselves in front of other men; indeed, there is

substantial testimony suggesting that some of the attackers participated in group

attacks in concert with other male detainees. And the plaintiffs to evidence of at least

one attack on a female law clerk who was assigned to accompany a male public

defender. The Court is therefore unpersuaded that the fact that some law clerks were

assigned to work with male public defenders automatically protected them from attack,

rendering their claims so different from those of the proposed representatives that it

defeats adequacy of representation.

The Court is more concerned, however, with a different adequacy problem

mentioned only in passing by the defendants. Specifically, the defendants point out that

none of the class representatives identified in the plaintiffs' filings served only as a law

clerk. The implication is that because all of the representatives are assistant public

defenders, they may have incentives—particularly during settlement negotiations—to

sell short the claims of the law clerk class members. The plaintiffs, for their part, argue

that there is no adequacy problem. They point out that one of the proposed

representatives, Samantha Slonim, served as a law clerk before she became an

assistant public defender and suffered an attack during her clerkship. And they cite

Smith v. Nike Retail Services, 234 F.R.D. at 661, for the proposition that a class

representative can adequately represent individuals who served in formally different

roles as long as they share an overriding common interest. See id. ("Here the strength

of the common injury and the interest shared by the named plaintiffs and class

members—the harm caused by an allegedly hostile work environment and the interest

in eliminating that environment—plainly overrides any potential conflicts.").

Although this is a close question, the Court concludes that the named plaintiffs

are adequate representatives for the law clerks' claims. Specifically, the Court

concludes that the potential conflicts insinuated—and not even fully argued—by the

defendants are too speculative to defeat adequacy. See Abbott v. Lockheed Martin

Corp., 725 F.3d 803, 813 (7th Cir. 2013) ("[T]his court has never held . . . that the mere

possibility that a trivial level of intra-class conflict may materialize as the litigation

progresses forecloses class certification entirely."). As with any finding at class

certification, however, the Court reserves the right to revisit this issue if necessary later

in the litigation. See Kohen v. Pac. Inv. Mgmt. Co., 571 F.3d 672, 680 (7th Cir. 2009)

("At this stage in the litigation, the existence of such conflicts is hypothetical. If and

when they become real, the district court can certify subclasses with separate

representation of each . . . .").

In sum, the Court finds the proposed representatives to be adequate under Rule

23(a)(4).

3. Rule 23(b)(3)

Rule 23(b)(3) allows a class action for damages or other relief to be maintained

only if "questions of law or fact common to class members predominate over any

questions affecting only individual members, and [ ] a class action is superior to other

available methods for fairly and efficiently adjudicating the controversy." Fed R. Civ. P.

23(b)(3); see also Amchem, 521 U.S. at 594.

a. Predominance

The defendants argue that the proposed class cannot satisfy the predominance

requirement. "There is no mathematical or mechanical test for evaluating

predominance," but it is more a demanding requirement than commonality or typicality.

Messner, 669 F.3d at 814. "The guiding principle behind predominance is whether the

proposed class's claims arise from a common nucleus of operative facts and issues."

Beaton, 907 F.3d at 1029. In making this assessment, the Court must do "more than a

tally of common questions; [it] must consider their relative importance." Id. The mere

fact that not every issue is "amenable to common resolution" does not defeat

predominance, even if "individual inquiries may be required after the class phase" on

discrete issues like damages. Id.; see also Amgen, 568 U.S. at 469 ("Rule 23(b)(3),

however, does not require a plaintiff seeking class certification to prove that each

element of her claim is susceptible to classwide proof." (internal quotation marks and

alterations omitted)). "Common issues of fact and law predominate in particular when

adjudication of questions of liability common to the class will achieve economies of time

and expense." Chi. Teachers Union, 797 F.3d at 444.

The defendants contend that individualized questions predominate over those

common to the plaintiffs' claims. In support of this position, they lean heavily on two

cases from district courts outside the Seventh Circuit that involved putative hostile work

environment classes of female prison employees. See Berndt v. Cal. Dep't of Corr., No.

C 03-3175 PJH, 2012 WL 950625 (N.D. Cal. Mar. 20, 2012); Rudolph v. Dep't of Corr.,

No. 5:06cv56-RS (N.D. Fla. Nov. 9, 2006). In both cases, district courts found putative

classes that included large numbers of employees spread across entire states'

correctional systems to be overbroad and to lack predominance. And no wonder; each

sought to certify classes of women who worked in various prisons across an entire

state's correctional system—California for Berndt and Florida for Rudolph. The judges

emphasized the literal and metaphorical distance among the plaintiff class members'

claims and concluded that, given the overbreadth of the class definitions, certification

under Rule 23(b)(3) was impossible. And, in Berndt, the district court also emphasized

that the plaintiff class sought certification of a class with a definition spanning all the way

back to 1989, "rais[ing] the obvious question whether certain of the putative class

members' claims are time-barred." Berndt, 2012 WL 950625, at *8.

Berndt and Rudolph are readily distinguishable. Both cases concerned putative

classes far broader than the one proposed here in terms of time, physical scope, and

size. Moreover, both cases involved the sort of concerns addressed by the Seventh

Circuit in Bolden, 688 F.3d at 898, wherein individual decisionmakers—in Bolden,

worksite superintendents, and in Rudolph and Berndt, prison wardens—exercised

largely unfettered discretion to regulate the various wok environments experienced by

the many different putative class members. Here, on the other hand, the plaintiffs have

persuasively demonstrated that a common policy or set of policies adopted by the

defendants created or permitted an allegedly hostile work environment. Moreover, to

the extent that Berndt and Rudolph could be read to suggest that hostile work

environment claims can never be certifiable under Rule 23(b)(3), that conclusion is not

binding and is contrary to the weight of authority in this district. See, e.g., Brand, 302

F.R.D. at 224; Brown, 2011 WL 1838741, at *5-7; Smith, 234 F.R.D. at 661, 666.

The Court concludes that the plaintiffs have established that significant common

questions predominate. Turning to "the elements of the underlying cause of action,"

Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 809 (2011), the Court notes

that nearly all are subject to common resolution. To establish liability on their Title VII

claims, the plaintiffs "must show that (1) [they were] subject to unwelcome harassment;

(2) the harassment was based on [their sex]; (3) the harassment was so severe or

pervasive as to alter the conditions of employment and create a hostile or abusive

working environment; and (4) there is a basis for employer liability." Johnson, 892 F.3d

at 900. And for the constitutional claims, the plaintiffs must additionally demonstrate

that the defendants acted or failed to act under color of law. Alamo, 864 F.3d at 548

n.16; Am. Mfrs. Mut. Ins., 526 U.S. at 49.

All but one of these elements is readily susceptible to collective resolution. First,

the plaintiffs allege that detainees formed a prison gang called "Savage Life" with the

primary aim of organizing masturbation attacks on women who worked in the prison.

Proof of this allegation will easily satisfy the second element. Likewise, the objective

severity of the harassment underlying the hostile work environment allegations is

subject to resolution in a single proceeding. The same is true of employer liability; the

record before the Court confirms that the plaintiffs' claims that the defendants' efforts to

address the masturbation attacks were delayed and ineffective to the point of

negligence (or worse) will rise or fall as one. The additional element that the plaintiffs

must prove to succeed on their section 1983 claims against Dart and Campanelli in their

official capacities—that the defendants were acting under color of law when they

devised and enacted (or failed to enact) policies with respect to the widespread sexual

harassment—will surely also be susceptible to collective resolution. And the Court is

satisfied that the subjective element of the hostile work environment claim will neither

predominate nor be particularly complicated for each individual plaintiff to prove. See

Hrobowski v. Worthington Steel Co., 358 F.3d 473, 476 (7th Cir. 2004) (noting that the

subjective element could be proven through evidence of objections or complaints to

supervisors). The subjective element may therefore readily be addressed as part of

later proceedings, and it does not undermine predominance. See Beaton, 907 F.3d at

1029 (noting that "not every issue must be amenable to common resolution" to satisfy

predominance, and that "individual inquiries may be required after the class phase");

Chi. Teachers Union, 797 F.3d at 444 (same).

The defendants' contentions regarding the objective element of the hostile work

environment claim—which they raised only with respect to commonality under Rule

23(a) but which also fit here—require a bit more discussion. The defendants argue that

because the available data suggest that the masturbation attacks underlying the hostile

work environment claim were largely concentrated at the Leighton Courthouse and

divisions 9 and 10, and because many of the putative class members worked

elsewhere, the objective element of the hostile work environment claim cannot be

resolved collectively. In other words, they argue that the members of the putative class

who worked outside of the Leighton Courthouse or these particular divisions of the jail

had a different work environment. The plaintiffs, for their part, counter that the

defendants themselves acknowledged that these attacks are widespread across the

county and that many attacks go unreported, meaning that data are badly incomplete.

And even those assistant public defenders who work primarily outside the Leighton

Courthouse and problem divisions have to spend time there working with the Felony

Trial Division in order to be eligible for promotions. They therefore have been subject to

the hostile work environment created by the widespread sexual harassment, albeit to a

lesser degree than their colleagues who are assigned fulltime to the Felony Trial

Division.

The plaintiffs have the better of this argument. The fact that some members of

the plaintiff class did not work every day at the Leighton Courthouse or in the divisions

of the jail most severely impacted by what Campanelli described as an "epidemic" of

masturbation attacks does not mean that they were uninjured by the alleged hostile

work environment the attacks created. The defendants do not contest that assistant

public defenders who work in other divisions of the public defender program or outlying

courthouses must come to the Cook County Jail for some portion of their work. Nor do

they address the plaintiffs' argument that, due to a culture of silence and retribution

against reporting, available data are not a precise measure of how many attacks have

occurred or where they happened. Moreover, even if the defendants could conclusively

show that some of the putative class members had never themselves never been

targeted by a masturbation attack, they have not even attempted to argue that those

individuals did not experience an objectively hostile work environment as a product of

knowing that such attacks were common. It is true, of course, that hearing about

discriminatory behavior secondhand is weaker evidence of a hostile work environment

than an account of firsthand exposure. See Johnson, 892 F.3d at 902. But even

secondhand accounts are relevant, and they may, in some cases, be independently

actionable. See id. (describing relevance); Dandy v. United Parcel Serv., Inc., 388 F.3d

263, 272 (7th Cir. 2004) ("Repeated use of [racial epithets] in the work environment

(especially considering the fact that [they] are meant to denigrate a group of people)

may create an objectively hostile work environment, even if they are heard

secondhand."). In light of these considerations, the Court is satisfied that the objective

element of the plaintiffs' hostile work environment claim is subject to common resolution.

Finally, Dart also makes two additional arguments regarding predominance that

merit discussion. First, he contends that the plaintiffs' claims against him will require

individualized inquiries into whether each individual plaintiff was a joint employee of the

sheriff's office as well as the Public Defender under a five-factor test set out in Knight v.

United Farm Bureau Mutual Insurance Co. 950 F.2d 377, 378-79 (7th Cir. 1991).4

Without citation, Dart then argues that the plaintiffs' joint employer arguments diverge

substantially from one another. The plaintiffs counter that the sheriff's office has a joint

employer relationship with all assistant public defenders due to its close connections to

the Public Defender and to Cook County and its control over a significant portion of the

public defenders' work environment. They specifically point to Illinois statutes that they

contend define some of the contours of this relationship.

The Court concludes, without reaching the merits, that the issue of joint liability

does not defeat predominance because it appears plaintiffs' contention regarding joint

employment by Dart is amenable to collective resolution. In his argument to the

contrary, Dart points only to individual class members' testimony during depositions that

they did not work for the sheriff. But he does not explain why that testimony ought to be

read to suggest the five factors from Knight are not susceptible to collective resolution.

Indeed, it appears that at least four of the five factors concern issues related to the

assistant public defender and law clerk job descriptions and are thus subject to common

proof for all assistant public defenders and for all law clerks.

Dart's other argument involves only the plaintiffs' section 1983 claim. He argues

4 The five factors are (1) the extent of the employer's control and supervision over the

employee; (2) the kind of occupation and nature of skill required, including whether skills

were acquired on the job; (3) the employer's responsibility for the costs of operation; (4)

the method and form of payment and benefits; and (5) the length of the job commitment.

See id.; see also Love v. JP Cullen & Sons, Inc., 779 F.3d 697, 702 (7th Cir. 2015).

that the plaintiffs will be unable to prove that the his office acted with intent to

discriminate against female assistant public defenders. But, as the plaintiff correctly

note, the issue here is not actually one of predominance but rather goes to the merits

and is therefore premature. See Beaton, 907 F.3d at 1025. The plaintiffs allege that

the sheriff's office's actions and deliberate inaction in policymaking caused the hostile

work environment. Irrespective of whether they are likely to prevail on the merits, the

issue of Dart's intent is undoubtedly common question subject to collective resolution.

See Chi. Teachers Union, 797 F.3d at 444 ("Rule 23(b)(3) requires a showing that

questions common to the class predominate, not that those questions will be answered,

on the merits, in favor of the class." (quoting Amgen, 568 U.S. at 459)).

For these reasons, the Court finds that the hostile work environment class

satisfies the predominance requirement of Rule 23(b)(3).

b. Superiority

Rule 23(b)(3)'s second requirement asks whether "a class action is superior to

other available methods for fairly and efficiently adjudicating the controversy." Fed. R.

Civ. P. 23(b)(3). This requirement "is comparative: the court must assess efficiency

with an eye toward other available methods." Mullins, 795 F.3d at 664 (internal

quotation marks omitted). The rule identifies four factors that may be relevant to the

superiority analysis:

(A) the class members’ interests in individually controlling the prosecution

or defense of separate actions; (B) the extent and nature of any litigation

concerning the controversy already begun by or against class members;

(C) the desirability or undesirability of concentrating the litigation of the

claims in the particular forum; and (D) the likely difficulties in managing a

class action.

Fed. R. Civ. P. 23(b)(3). This analysis is correlated with that of predominance; the

Seventh Circuit has noted that "the more common issues predominate over individual

issues, the more desirable a class action lawsuit will be as a vehicle for adjudicating the

plaintiffs' claims." Messner, 669 F.3d at 514 n.5 (quoting Klay v. Humana, Inc., 382

F.3d 1241, 1269 (11th Cir. 2004)).

Here, the defendants' arguments largely fold into those already discussed and

rejected. They assert without much analysis that the putative class's claims would be

unmanageable because they would require "mini-trials" to determine whether each

member of the putative class was actually injured by what one of the defendants has

described as an "epidemic" of masturbation attacks across the Cook County Jail

system. The plaintiffs, on the other hand, remind the Court that the attacks were

allegedly permitted and even exacerbated by the defendants' policies and that it was not

until this Court entered its preliminary injunction that the defendants began to get a

handle on the situation.

Ultimately, the Court concludes that a class action is far superior to sending the

hundreds of members of this putative class to file individual lawsuits against the

defendants. See Mullins, 795 F.3d at 664 (noting the comparative focus of the

analysis). As discussed at length above, there are myriad common questions subject to

common resolution in this dispute, and those issues far and away predominate over

individualized inquiries that may arise. The collective resolution of these claims will

"achieve economies of time, effort, and expense," and the claims are therefore well-

suited for class treatment. See Amchem, 521 U.S. at 615.

B. Retaliation subclass

The plaintiffs also seek certification of a subclass for their retaliation claims

against Campanelli. Specifically, they allege that Campanelli adopted the October 2017

lockup ban in retaliation against members of the plaintiff class filing an EEOC charge

and making other complaints. To prevail on a retaliation claim, the plaintiffs must

"present evidence of (1) a statutorily protected activity; (2) a materially adverse action

taken by the employer; and (3) a causal connection between the two." Turner v. The

Saloon, Ltd., 595 F.3d 679, 687 (7th Cir. 2010).

Except for a perfunctory assertion that this subclass "shares the same problems

as the hostile work environment class," the defendants do not contest that it satisfies

Rule 23(b)(3). Indeed, Campanelli's objections to the subclass definition are

refreshingly focused. First, she argues that the plaintiffs' amended complaint alleges

retaliation only in the form of the lockup ban. Therefore, she contends, the proposed

subclass definition should be limited to assistant public defenders who worked at the

Leighton Courthouse during the twenty-three days in October 2017 during which the

ban was in effect. Second, Campanelli argues that the amended complaint identifies

only the EEOC charge as relevant protected behavior and not other forms of complaints

or charges. She contends that because only seventeen of the plaintiffs jointly filed the

EEOC charge, the subclass should be limited to those seventeen plaintiffs. After

adjusting the class definition to reflect the appropriate number of putative subclass

members, Campanelli argues, the retaliation subclass is insufficiently numerous to

satisfy Rule 23(a)(1).

The plaintiffs disagree with Campanelli's reading. They argue that they properly

alleged a broader theory of retaliation in their first amended complaint and that the

subclass should therefore be permitted to pursue claims on behalf of all female

assistant public defenders who, during the class period, filed charges or reported or

made complaints about detainee masturbation or indecent exposure incidents, including

but not limited to the EEOC charge.

Each party is partly correct. Campanelli is right that the only form of retaliation

alleged in the complaint and meaningfully argued in the plaintiffs' briefs is the Leighton

Courthouse lockup ban. The proposed class must therefore be narrowed accordingly,

as explained below. But so too are the plaintiffs right that the protected activities

alleged in their complaint are not limited to the EEOC charge. Rather, the amended

complaint asserts that Campanelli "retaliated against [the p]laintiffs for having engaged

in protected activity . . . including their opposition to the hostile sexually offensive

discrimination and their filing of charges of discrimination with the EEOC." First Am.

Compl., dkt. no. 81, ¶ 158 (emphasis added). The Seventh Circuit has made clear that

taking "some step in opposition to a form of discrimination that the statute prohibits,"

such as filing a charge or making a complaint about a hostile work environment, is a

protected activity within the meaning of Title VII. See Ferrill v. Oak Creek-Franklin Joint

Sch. Dist., 860 F.3d 494, 501 (7th Cir. 2017). It is therefore inappropriate to give the

amended complaint's language the narrow reading Campanelli suggests.

Accordingly, the Court finds that the retaliation subclass may be certifiable, but

with (1) a far narrower time limitation and (2) clarification, and perhaps modification, of

the requirement that putative members made some sort of complaint to which retaliation

may have been causally connected. Specifically, the Court will adopt the plaintiffs'

proposed definition to the extent that it identifies protected activities beyond the EEOC

charge—i.e., filing criminal charges or making complaints. The Court will narrow the

proposed definition, however, to include only assistant public defenders for whom there

is a record of such protected activities. The definition proposed by the plaintiffs would

permit assistant public defenders to opt in simply by averring that they had at some

point complained (or perhaps even thought to complain) about the attacks, and that

result like would raise ascertainability problems for lack of "objective criteria" defining

membership. See Mullins, 795 F.3d at 659 (holding that classes must "be defined

clearly and based on objective criteria").

Moreover, instead of capturing all female assistant public defenders who worked

in the Felony Trial Division between November 1, 2015 and the present, the subclass

can properly include only those who worked in the Felony Trial Division from October

31, 2017 to November 22, 2017—the period during which the allegedly retaliatory policy

was in effect—and who engaged in protected activities as defined above before October

31. This limitation is perhaps best understood as an adjustment to satisfy Rule 23's

strictures of commonality, typicality, and predominance. See Messner, 669 F.3d at 825

(noting that district courts have authority to refine the class definition to resolve

problems of over-inclusiveness). The plaintiffs have not explained or attempted to

explain how assistant public defenders who were not working in the Felony Trial

Division during the ban could have experienced it as retaliation—an issue that the Court

alluded to in its order denying the defendants' motions to dismiss. See Brown v. Cook

County, No. 17 C. 8085, 2018 WL 3122174, at *10 (N.D. Ill. June 26, 2018) (declining to

dismiss the retaliation claims because the lock up ban could satisfy the controlling

definition of an "adverse employment action" for purposes of Title VII retaliation). See

generally Robinson v. Perales, 894 F.3d 818, 830 (7th Cir. 2018) (describing the

definition of adverse employment action).

Although the Court concludes that certification of the subclass may be

appropriate, it declines to grant certification at this time. The record contains insufficient

information from which to assess whether the subclass satisfies Rule 23(a)'s numerosity

requirement after these necessary adjustments are made. Rule 23(a)(1) permits

certification only where the class is so numerous that joinder is impracticable. As

previously noted, that rule is commonly presumed to be satisfied where the proposed

class includes more than forty members. See Mulvania, 850 F.3d at 860 (citing

Newberg on Class Actions § 3.12).5 Before the adjustments made here, there were

purportedly forty-seven putative subclass members. But there is no basis in the record

by which the Court can assess whether the narrower retaliation class definition

approved by the Court will reduce the size of the subclass to an extent that numerosity

under Rule 23(a)(1) is lacking. The Court therefore declines to certify the proposed

subclass unless and until such evidence is provided.

C. Evidentiary dispute

The parties also make passing arguments about the admissibility of an expert

report. The defendants argue that the plaintiffs' citations to a report by Jeanne S.

Woodford should be stricken or disregarded because she was not appropriately

disclosed as a witness in this case. They note that Woodford was disclosed as an

expert in a related case before this Court, Howard v. Cook County Sheriff's Office, No.

5 This does not necessarily mean that forty is the lower legal limit to satisfy the

numerosity requirement. The Court references Mulvania here just to make it clear that

the proposed retaliation subclass was close to the low end of the scale at which a class

is presumed sufficiently numerous.

17 C 8146 (N.D. Ill.), and suggest that the plaintiffs may be attempting to skirt the rules

by getting the expert testimony into this case through a side door. The plaintiffs do not

contest that they failed to disclose Woodford. They instead argue that the defendants

had enough opportunity to challenge Woodford's testimony in the Howard case to

ameliorate any resulting prejudice.

The plaintiffs' arguments are unconvincing. Rule 26(a)(2)(B) states

unequivocally that an expert must be disclosed when her expert report is offered. The

Court is persuaded by the reasoning from Stock v. Integrated Health Plan, Inc., No. 06-

CV-00215-DRH, 2007 WL 2304055, at *1 (S.D. Ill. Aug. 10, 2007), that permitting a

party to smuggle an expert report in to support a motion for class certification without

the expert witness being disclosed simply because the expert's report was first offered

in a different case would confound the spirit of Rule 26(a)(2)(B). The Court has

therefore disregarded all references to Woodford's report in deciding the motion for

class certification and notes that the plaintiffs cited Woodford's report only for purposes

for which they also cited other evidence.

D. Class counsel

Finally, the Court must appoint class counsel. See Fed. R. Civ. P. 23(g). After

reviewing the factors set forth in Rule 23(g), the Court is satisfied that Robin Potter and

M. Nieves Bolaños of Potter Bolaños LLC meet each of the criteria required. They have

so far faithfully and zealously prosecuted the plaintiffs' claims and are knowledgeable of

and experienced with the applicable law. The Court is also satisfied that counsel will

dedicate sufficient resources to representing the class. The Court therefore appoints

Potter and Bolaños as class counsel.

Conclusion

For the foregoing reasons, the Court grants the plaintiffs' motion for class

certification in part and denies it in part [dkt. no. 190]. The Court certifies the following

hostile work environment class: All female assistant public defenders (not including

supervisors) and law clerks who have worked for the defendants from November 1,

2015 through the present and who have visited the jail and/or lockup in connection with

their employment. The Court appoints Robin Potter and M. Nieves Bolafos as class

counsel. The Court declines, however, to certify the retaliation subclass unless the

plaintiffs demonstrate that it is sufficiently numerous to satisfy Rule 23(a)(1) after the

modifications to the subclass definition described above. The case is set for a status

hearing on August 20, 2019 at 9:30 a.m. to set any necessary schedules for further

proceedings as well as a date for the next settlement conference.

United States District Judge

Date: August 12, 2019

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