Johnathan Lacy v. Cook County, Illinois

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 17-2141

JOHNATHAN LACY, et al.,

Plaintiffs-Appellees,

v.

COOK COUNTY, ILLINOIS and THOMAS

J. DART,

Defendants-Appellants.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:14-cv-06259 — Robert W. Gettleman, Judge.

____________________

ARGUED APRIL 19, 2018 — DECIDED JULY 30, 2018

____________________

Before RIPPLE, MANION, and KANNE, Circuit Judges.

RIPPLE, Circuit Judge. Five wheelchair-using detainees

brought this lawsuit against Cook County, Illinois, and the

Sheriff, alleging violations of the Americans with Disabilities

Act (“ADA”) and the Rehabilitation Act (“RHA”). Their

claims are based on purportedly inaccessible ramps and bath-

room facilities at six county courthouses. The district court

certified a class for purposes of injunctive relief, and the

2 No. 17-2141

named plaintiffs also sought damages individually for the

same alleged violations.

The district court held an evidentiary hearing on the equi-

table claims first. The parties then filed cross motions for sum-

mary judgment on their individual damage claims. The court

entered a permanent injunction based on its factual findings

and legal conclusion that the defendants had violated the

ADA. Then, relying largely on these findings, the court

granted partial summary judgment to the plaintiffs on liabil-

ity in their personal damage actions. The court then submitted

the question of individual damage awards to a jury. Mean-

while, it granted a supplemental permanent injunction to the

class.

We hold that the district court improperly relied on its

own findings of fact when it granted partial summary judg-

ment to the plaintiffs on their damage claims. When equitable

and legal claims are joined in a single suit, common questions

of fact should be tried first to a jury absent extraordinary cir-

cumstances or an unequivocal waiver by all parties of their

jury trial rights. The record before us does not reflect any such

waiver by the defendants. We therefore vacate the grant of

partial summary judgment and remand for a jury trial on the

question of liability. As a result, we also vacate the court’s

grant of permanent injunctive relief and vacate the jury’s de-

terminations of damage awards. We leave undisturbed the

district court’s decisions to certify the class and to grant sup-

plemental injunctive relief to the class. This latter injunction

is not related to the questions that should have been submit-

ted to the jury. Accordingly, we affirm in part, vacate in part,

and remand for further proceedings.

I

No. 17-2141 3

BACKGROUND

A.

In 1990, Congress enacted the ADA to provide “a clear and

comprehensive national mandate for the elimination of dis-

crimination against individuals with disabilities.” 42 U.S.C.

§ 12101(b)(1). This sweeping legislation was animated by the

finding that “individuals with disabilities continually en-

counter various forms of discrimination,” ranging from “out-

right intentional exclusion” to “the discriminatory effects of

architectural, transportation, and communication barriers.”

Id. § 12101(a)(5). The ADA was crafted “to advance equal-cit-

izenship stature for persons with disabilities,” Tennessee v.

Lane, 541 U.S. 509, 536 (2004) (Ginsburg, J., concurring), and

to remedy their status as “a discrete and insular minority who

have been faced with restrictions and limitations, subjected to

a history of purposeful unequal treatment, and relegated to a

position of political powerlessness in our society,” id. at 516

(majority opinion) (quoting 42 U.S.C. § 12101(a)(7)).

The ADA is organized into three titles prohibiting dis-

crimination across three major spheres of public life: employ-

ment (Title I); public services, programs, and activities (Title

II); and public accommodations (Title III). This case arises

1

from the protections of Title II. The primary mandate of Ti-

tle II is that “no qualified individual with a disability shall, by

1 The plaintiffs also filed suit under section 504 of the Rehabilitation Act.

Because Title II was modeled after section 504, “the elements of claims un-

der the two provisions are nearly identical.” Washington v. Ind. High Sch.

Athletic Ass’n, 181 F.3d 840, 845 n.6 (7th Cir. 1999). Therefore, absent cir-

cumstances not present here, we apply precedent under one statute to

cases involving the other. See id.

4 No. 17-2141

reason of such disability, be excluded from participation in or

be denied the benefits of the services, programs, or activities

of a public entity, or be subjected to discrimination by any

such entity.” 42 U.S.C. § 12132. This broad directive has been

developed further by the Department of Justice through im-

plementing regulations, accessibility standards, and adminis-

trative guidance. See id. § 12134(a) (instructing Attorney Gen-

eral to promulgate regulations implementing pertinent part

2

of Title II).

To prove a prima facie case of discrimination under Title II,

a plaintiff must show: (1) “that he is a ‘qualified individual

with a disability’”; (2) “that he was denied ‘the benefits of the

services, programs, or activities of a public entity’ or other-

wise subjected to discrimination by such an entity”; and

(3) “that the denial or discrimination was ‘by reason of’ his

disability.” Love v. Westville Corr. Ctr., 103 F.3d 558, 560 (7th

Cir. 1996) (quoting 42 U.S.C. § 12132). It is well established

that a failure to make “reasonable modifications in policies,

practices, or procedures” can constitute discrimination under

3

Title II. 28 C.F.R. § 35.130(b)(7)(i) ; see also A.H. by Holzmueller

2 The Supreme Court has not specified whether the DOJ’s Title II regula-

tions warrant deference under Chevron U.S.A. Inc. v. Nat. Res. Def. Council,

Inc., 467 U.S. 837 (1984). See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581,

597–98 (1999). The Court has said, however, that the DOJ’s views “warrant

respect” given that Congress directed the agency to implement Title II. Id.

3 Section 35.130(b)(7) states, in relevant part, that “[a] public entity shall

make reasonable modifications in policies, practices, or procedures when

the modifications are necessary to avoid discrimination on the basis of dis-

ability, unless the public entity can demonstrate that making the modifi-

cations would fundamentally alter the nature of the service, program, or

activity.” 28 C.F.R. § 35.130(b)(7)(i).

No. 17-2141 5

v. Ill. High Sch. Ass’n, 881 F.3d 587, 592–93 (7th Cir. 2018); Wis.

Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 753 (7th

Cir. 2006).

The obligation to make “reasonable modifications” paral-

lels the obligations to make “reasonable accommodations” in

the context of Titles I and III. See A.H., 881 F.3d at 592 (recog-

nizing corresponding language in Title II regulations and Ti-

tle III). These requirements derive from the understanding

that certain practices can discriminate against individuals

with disabilities even when those practices are facially neutral

and consistently applied. See Lane, 541 U.S. at 536 (Ginsburg,

J., concurring) (“Congress understood in shaping the ADA

[that addressing discrimination] would sometimes require

not blindfolded equality, but responsiveness to difference;

not indifference, but accommodation.”).

Perhaps the most obvious example of such discrimination

is when structural barriers prevent people with disabilities

from accessing otherwise available public services. To rem-

edy this form of discrimination, the DOJ has adopted struc-

tural accessibility standards that apply to newly constructed

or altered facilities subject to Titles II and III. See 28 C.F.R.

4

§ 35.151(c). Of course, structural renovations can be prohibi-

tively costly for some public entities, so the regulations pro-

vide flexible compliance options for facilities built before 1992

and unaltered since: compliance can be achieved “through

4 The 2010 ADA Standards for Accessible Design, which we refer to as the

“accessibility standards,” consist of the Title II regulations at 28 C.F.R.

§ 35.151 and the 2004 ADA Accessibility Guidelines (“ADAAG”) at 36

C.F.R. part 1191, appendices B and D.

6 No. 17-2141

such means as redesign or acquisition of equipment, reassign-

ment of services to accessible buildings, assignment of aides

to beneficiaries, … alteration of existing facilities … or any

other methods that result in making its services, programs, or

activities readily accessible to and usable by individuals with

disabilities.” Id. § 35.150(b)(1). “And in no event is the entity

required to undertake measures that would impose an undue

financial or administrative burden, threaten historic preserva-

tion interests, or effect a fundamental alteration in the nature

of the service.” Lane, 541 U.S. at 532 (citing 28 C.F.R.

§§ 35.150(a)(2), (a)(3)).

When public entities offer services at inaccessible facilities

built before 1992, it is clear that they can comply with Title II

by making reasonable modifications to their policies, prac-

tices, or procedures. It is often less clear, however, whether a

given modification is reasonable. This distinction has gener-

ated a significant amount of litigation, to which we add one

more case today.

B.

This case centers on the facilities of six courthouses in

Cook County, Illinois. The plaintiffs are five wheelchair-using

detainees: Johnathan Lacy, Kenneth Farris, Marque Bowers,

Maurice Boston, and Kevin Dawson. They each attended

court approximately once per month in connection with their

individual criminal cases. Their court appearances took place

at the Leighton Criminal Courthouse in Chicago or at one of

five suburban courthouses in Maywood, Markham, Skokie,

Rolling Meadows, and Bridgeview. All of these courthouses

were built before 1992 and thus are not subject to the ADA’s

No. 17-2141 7

structural accessibility standards. See Lane, 541 U.S. at 532; 28

C.F.R. § 35.150(b)(1). Nonetheless, to the extent that the facili-

ties prevent individuals with disabilities from meaningfully

accessing public services, reasonable modifications are re-

quired. 42 U.S.C. §§ 35.130(b)(7)(i), 35.150(a).

The plaintiffs contend that Cook County and Thomas J.

Dart, the Sheriff, failed to provide reasonable modifications

with respect to two structural barriers at the courthouses:

5

ramps and bathroom facilities. In order to access the court-

houses for their monthly appearances, the plaintiffs had to

traverse steep entrance and exit ramps in their wheelchairs.

Once inside, they waited in holding cells until their cases were

called, which could take several hours. The holding cells con-

tained bathroom facilities—typically a combination sink and

toilet, set off by a translucent “privacy screen.”

During the relevant time period, the ramps and bathroom

facilities did not comply with the latest accessibility stand-

6

ards. None of the parties disputes that the ramps did not

meet the relevant sloping requirements and that the bath-

room facilities did not include grab bars or sufficient clear-

floor space under the 2010 standards. Rather, the parties dis-

pute whether the defendants’ policies and practices provided

reasonable modifications to overcome these physical barriers.

5 Initially, the plaintiffs also alleged ADA violations based on their trans-

portation to the courthouses. The district court declined to grant injunctive

relief on that claim, and the plaintiffs have not appealed its ruling. We thus

limit our discussion to the ramps and bathroom facilities.

6 Two holding cells at the Maywood courthouse had been renovated to

comply with the accessibility standards. The plaintiffs’ allegations do not

implicate those two facilities.

8 No. 17-2141

The defendants maintain that they have complied with the

ADA by enacting a policy of assisting wheelchair-using de-

tainees with the ramps and by providing portable commode

chairs in at least one holding cell per courthouse. They also

submit that courthouse personnel were instructed to escort

wheelchair-using detainees to public, ADA-compliant re-

strooms in the event of an emergency. According to the plain-

tiffs, however, they were not consistently assisted and often

had to maneuver the ramps alone. They also insist that they

could not use the commode chairs, or could do so only with

great difficulty, and that they were not escorted to public,

ADA-compliant restrooms as an alternative.

C.

The plaintiffs filed this action in August 2014. They sought

prospective injunctive relief as well as damages for past vio-

lations. At the start of the proceedings, the plaintiffs sought a

preliminary injunction to prohibit the defendants from violat-

ing the ADA. Shortly thereafter, they sought certification of a

class of all wheelchair-bound detainees presently confined at

the Cook County Jail. As the parties were preparing for a

hearing on preliminary injunctive relief, the plaintiffs moved

to consolidate the hearing with a trial on their request for a

permanent injunction under Federal Rule of Civil Procedure

65(a)(2). The court denied consolidation and began the hear-

ing on December 17, 2014. The next day, however, it reversed

its interlocutory decision and consolidated the hearing with a

trial on the merits for purposes of injunctive relief.

The evidentiary hearing lasted seven days over a span of

two full months. The plaintiffs presented testimony from

No. 17-2141 9

ADA experts and a number of wheelchair-using detainees, in-

cluding Mr. Dawson and Mr. Farris, who testified to the bar-

riers they faced when attending court. The hearing also fea-

tured testimony from court service officers and Sheriff’s per-

sonnel, including the ADA compliance coordinator and ADA

project director, who testified to the ongoing renovation of the

County courthouses. The parties also submitted video footage

showing wheelchair-using detainees traversing the ramps

and using the holding cell bathrooms with disputed degrees

of difficulty. Throughout the proceedings, the parties fiercely

contested whether the Sheriff enforced the ramp-assistance

policy and whether the portable commode chairs adequately

accommodated the plaintiffs. Notably, although the district

court had ordered the consolidation of the preliminary injunc-

tion hearing with a trial on the merits, it referred throughout

7

the proceedings to a “preliminary injunction.”

After the close of the hearing but before it issued a deci-

sion, the court granted the plaintiffs’ pending motion for class

certification and certified the class of “[a]ll Cook County Jail

detainees who have been assigned and currently use a wheel-

8

chair.” The plaintiffs immediately filed a motion on behalf of

the class seeking a permanent injunction with respect to the

ramp-assistance policy. The court denied this motion as

premature; although the hearing had ended, the court still

was reviewing evidence and conducting status hearings

about the defendants’ ongoing courthouse renovations.

7 See note 24 and text accompanying notes 25–28.

8 R.142 at 15.

10 No. 17-2141

On June 10, 2015, the court again reversed its earlier ruling

and stated that it would “not combine its consideration of the

motion for [a] preliminary injunction with [a] ruling on the

9

final merits of the case.” Nevertheless, in their final memo-

randum in support of injunctive relief, the plaintiffs urged the

court to enter a final declaratory judgment as well as a perma-

nent injunction requiring the Sheriff to revise the ramp-assis-

tance policy to ensure its consistent enforcement.

Before the court issued a decision on injunctive relief, it

collected summary judgment briefs from both sides on the

plaintiffs’ individual damage claims. The named plaintiffs

filed a motion seeking partial summary judgment on the

question of ADA liability, and the defendants filed a cross

motion for complete summary judgment. Both sides submit-

ted Local Rule 56.1 statements of material fact and responded

in opposition to the other’s summary judgment filings.

On October 8, 2015, before ruling on summary judgment,

the court issued an opinion on injunctive relief. After ac-

knowledging its most recent decision to rule on only the re-

quest for a preliminary injunction, the court changed course

yet again. It explained that “in light of plaintiffs’ most recent

request for a permanent injunction, and the fact that the evi-

dentiary record has continued to grow since this issue was

last addressed, preliminary injunctive relief is no longer be-

10

fore the court.” Accordingly, the opinion addressed the mer-

its of the plaintiffs’ claims.

9 R.159 at 1.

10 R.203 at 27.

No. 17-2141 11

The court’s opinion contained extensive findings of fact

and conclusions of law. Based on “what it [found] to be most

relevant” in the record, the court found that the defendants

had not consistently helped wheelchair-using detainees ma-

11

neuver the ramps. It also found that the plaintiffs’ “wit-

nesses consistently and credibly [had] testified to being una-

ble to use the toilet facilities or being able to do so only with

great difficulty, even when provided with a commode

12

chair.” The court further found that commode chairs were

not provided, and the alternative policy of escorting detainees

to public restrooms was not implemented, until mid-2014—

after the plaintiffs’ claims arose. Therefore, the court con-

cluded that the “defendants have, in the past, violated plain-

13

tiffs’ rights pursuant to the ADA.”

Based on these findings, the court granted the plaintiffs’

request for a permanent injunction with respect to the

ramp-assistance policy, but it denied their request for a de-

14

claratory judgment. “Although the court has found past

11 Id. at 7 n.5.

12 Id. at 25.

13 Id. at 26. While the court focused on the second element of a Title II

violation—namely, whether the defendants failed to provide reasonable

modifications to overcome noncompliant facilities—it also found that the

first and third elements were satisfied. See id. at 22 (explaining that plain-

tiffs are otherwise qualified individuals with disabilities under the ADA).

14 The court did not address injunctive relief with respect to the bathroom

facilities; the plaintiffs’ most recent filings did not request such relief.

12 No. 17-2141

ADA violations,” it explained, “the defendants have under-

taken extensive construction, beyond what is required of

them by the ADA or the Rehab Act, that has remedied the

15

majority of the violations about which plaintiffs complain.”

On November 19, 2015, the court granted partial summary

judgment to the plaintiffs on the question of liability in their

individual damage actions. The court acknowledged that

“[o]rdinarily, the following facts would be undisputed and

come from the parties’ Local Rule 56.1 statements and re-

16

sponses.” However, because the court already had made

factual findings in granting the injunction, it described the

Rule 56.1 statements as largely “moot” and relied on its exist-

ing findings insofar as they informed the determination of

17

summary judgment. As the court explained, the “plaintiffs

have already established that they were discriminated against

18

in violation of the ADA.” Therefore, the only remaining ele-

ment for them to prove in order to collect damages was the

intentional nature of the defendants’ discrimination. See Bd. of

Educ. of Twp. High Sch. Dist. No. 211 v. Ross, 486 F.3d 267, 278

(7th Cir. 2007) (rejecting ADA claim for damages where dis-

trict court properly found no intentional discrimination);

Love, 103 F.3d at 561 (acknowledging standard of intentional

discrimination for compensatory damages under the RHA

and implicitly applying same standard to ADA claim).

15 Id. at 26.

16 R.218 at 2 n.2.

17 Id. at 4.

18 Id. at 6.

No. 17-2141 13

The district court recognized that we have not yet spoken

on the proper standard for establishing intentional discrimi-

nation. See Strominger v. Brock, 592 F. App’x 508, 511–12 (7th

Cir. 2014) (acknowledging our silence on the matter). Absent

guidance from our court, the district court adopted the delib-

erate indifference standard advocated by the parties and em-

19

ployed by a majority of other courts of appeals. This stand-

ard requires proof of (1) “knowledge that a harm to a feder-

ally protected right is substantially likely” and (2) “a failure

to act upon that likelihood.” S.H. ex rel. Durrell v. Lower Merion

Sch. Dist., 729 F.3d 248, 263 (3d Cir. 2013) (quoting Duvall v.

Cty. of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001)).

The court held that there was “no genuine issue of mate-

rial fact as to defendants’ knowledge of likely ADA violations

20

and their failure to act in light of that knowledge.” The court

observed that the County previously had undertaken signifi-

cant ADA-related construction at the courthouses but had

limited its renovations to the public-facing portions of the

buildings. It also noted the defendants’ involvement in past

litigation involving very similar claims under the ADA. Based

on this circumstantial evidence of the defendants’ knowledge,

the court did not think that a reasonable trier of fact could rule

in the defendants’ favor on the issue of deliberate indiffer-

ence.

After granting the plaintiffs’ motion for partial summary

judgment on liability, the court proceeded with jury trials to

19 See note 33 (comparing cases).

20 R.218 at 7.

14 No. 17-2141

determine the amount of damages owed to each named plain-

tiff. A jury awarded Mr. Lacy $600 in damages and Mr. Boston

and Mr. Bowers $0 in damages. Mr. Dawson and the defend-

ants reached a private settlement. Mr. Farris and the defend-

ants agreed to a judgment in Mr. Farris’s favor for $0.

On January 7, 2016, the plaintiff class filed a motion for a

supplemental permanent injunction to remedy the County’s

alleged failure to bring two holding cells at the Maywood

courthouse into compliance with the ADA’s clear-floor-space

requirements. According to the plaintiffs, the County had

made alterations to these holding cells, thereby triggering its

obligation to bring the facilities into complete compliance

with the latest accessibility standards. But, under the perti-

nent standards, the privacy screens in the holding cells were

1.5 inches too close to the rear walls. The County maintained

that it was excused from strict compliance with the accessibil-

ity standards because it altered only certain elements within

the holding cells and because moving the screens was techni-

cally infeasible. The court rejected the County’s arguments

and granted a permanent injunction ordering that the screens

be moved, but it stayed its order pending this appeal.

II

DISCUSSION

The defendants now challenge four of the district court’s

orders: (1) the grant of partial summary judgment on liability

in favor of the individual plaintiffs, (2) the jury verdict and

$600 damage award in favor of Mr. Lacy, (3) the certification

of the class, and (4) the grant of a permanent injunction re-

garding the Maywood privacy screens. For the reasons laid

No. 17-2141 15

out below, we vacate the district court’s grant of partial sum-

mary judgment; vacate the jury’s verdicts on damages; vacate

the district court’s injunction respecting the Sheriff’s ramp

policy; affirm the certification of the class; and affirm the

class-wide injunction regarding the privacy screens. We ad-

dress these issues in turn.

A.

The defendants contend that the district court erred in

granting summary judgment to the plaintiffs on the issue of

ADA liability in their individual damage actions. They sub-

mit that, by relying on findings of fact from its prior decision

to grant a permanent injunction, the court improperly

weighed competing evidence and made credibility determi-

nations and thereby usurped the role of the jury in the plain-

tiffs’ damage claims. We agree.

In this action, the plaintiffs sought both equitable and legal

relief to remedy the defendants’ alleged ADA violations.

They pursued the equitable claims on behalf of the class, seek-

ing a prospective injunction against ongoing ADA violations.

Simultaneously, the named plaintiffs brought damage actions

on an individual basis, seeking monetary compensation for

past ADA deprivations that they each claim to have suffered.

These equitable and legal claims all required the factfinder to

determine whether the defendants had violated the ADA by

failing to provide reasonable modifications for wheelchair-us-

ing detainees with respect to the courthouse ramps and bath-

room facilities.

It is well established that “when a legal claim is joined

with an equitable claim, ‘the right to jury trial on the legal

16 No. 17-2141

claim, including all issues common to both claims, remains

intact.’” Hussein v. Oshkosh Motor Truck Co., 816 F.2d 348, 354

(7th Cir. 1987) (quoting Curtis v. Loether, 415 U.S. 189, 196 n.11

21

(1974)). In order to protect parties’ jury trial rights in these

situations, courts typically submit the legal claims to a jury

before the court decides the equitable claims. See New West,

L.P. v. City of Joliet, 891 F.3d 271, 273 (7th Cir. 2018) (“Judges

usually ought to put jury-trial issues ahead of bench-trial is-

sues because that order is most respectful of constitutional in-

terests … .”). Otherwise, the court might limit the parties’ op-

portunity to try to a jury every issue underlying the legal

claims by affording preclusive effect to its own findings of fact

on questions that are common to both the legal and equitable

claims. See Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 504

(1959). Although this order of proceedings is not constitution-

ally mandated, see New West, 891 F.3d at 273, the Supreme

Court has instructed that “only under the most imperative cir-

cumstances … can the right to a jury trial of legal issues be lost

through prior determination of equitable claims,” Beacon, 359

22

U.S. at 510–11.

21 The plaintiffs specifically requested a trial by jury on their damage

claims, R.9 (Amended Complaint) at 13, and the defendants were entitled

to rely on this jury demand, see Lamex Foods, Inc. v. Audeliz Lebrón Corp.,

646 F.3d 100, 106 (1st Cir. 2011) (“Where one party has made a demand,

others are entitled to rely on the demand with respect to issues covered by

the demand and need not make an independent demand of their own.”

(quoting In re N-500L Cases, 691 F.2d 15, 22 (1st Cir. 1982))).

22We recognize that issue preclusion can be applied properly to foreclose

the relitigation of issues underlying a legal claim when those issues al-

ready have been decided conclusively in a prior equitable lawsuit. See

No. 17-2141 17

In this case, the order of proceedings was complicated fur-

ther by the plaintiffs’ request to consolidate the hearing on

preliminary injunctive relief with a trial on the merits for per-

manent injunctive relief. Consolidation is procedurally signif-

icant, because in granting or denying a preliminary injunction,

the court would decide only the plaintiffs’ likelihood of success

on the merits, whereas in granting or denying a permanent in-

junction, it would decide their actual success on the merits. See

Michigan v. U.S. Army Corps of Eng’rs, 667 F.3d 765, 782 (7th

Cir. 2011). In other words, only a hearing on permanent injunc-

tive relief would result in conclusive findings as to the de-

fendants’ actual liability under the ADA; any judicial findings

made in deciding preliminary relief would remain subject to

change. See id. (“[F]indings made at the preliminary injunc-

tion stage do not bind the district court as the case pro-

gresses.”).

Parklane Hosiery Co. v. Shore, 439 U.S. 322, 333–35 (1979); Crowder v. Lash,

687 F.2d 996, 1009–10 (7th Cir. 1982). However, this rule does not control

in the present circumstances where the legal and equitable claims sharing

common issues are joined in a single lawsuit. See Lytle v. Household Mfg.,

Inc., 494 U.S. 545, 550–51, 553–54 (1990) (distinguishing Beacon Theatres

from Parklane on ground that Beacon involved legal and equitable claims

joined in the same action whereas Parklane involved two lawsuits, the

prior of which already had been affirmed on appeal); New West, L.P. v. City

of Joliet, 891 F.3d 271, 273 (7th Cir. 2018) (making similar observation); Al-

len v. Int’l Truck & Engine Corp., 358 F.3d 469, 471–72 (7th Cir. 2004) (noting

that if a class is certified for purposes of injunctive relief and class mem-

bers also seek damages individually as part of the same lawsuit, “a jury

will resolve common factual disputes, and its resolution will control when

the judge takes up the request for an injunction”).

18 No. 17-2141

Under Federal Rule of Civil Procedure 65(a)(2), the district

court was authorized to consolidate the hearing on prelimi-

nary injunctive relief with a trial on the merits; however, in so

doing, the court was obligated to “preserve any party’s right

23

to a jury trial.” Fed. R. Civ. P. 65(a)(2). In some cases, the

parties might waive their jury trial rights by consenting to

consolidation and participating in the hearing on permanent

injunctive relief before trying any overlapping legal claims to

a jury. On the other hand, if all of the parties do not waive

their jury trial rights, “the proper procedure would be for the

district court to hold a hearing on the preliminary injunction,

then to try the legal issues before a jury, and then to hold the

hearing itself on the permanent injunction.” Southland Reship,

Inc. v. Flegel, 534 F.2d 639, 644 (5th Cir. 1976).

Here, throughout the hearing, the district court sent ex-

tremely mixed messages about the nature of the hearing itself.

The record reveals that none of the participants understood

exactly what the court was deciding—preliminary or perma-

nent injunctive relief. Prior to the start of the hearing, the

court denied the plaintiffs’ request for consolidation. Then,

during and after the hearing, the court reversed this decision

three separate times. Moreover, even at the time when the

23 Rule 65(a)(2) reads in full: “Before or after beginning the hearing on a

motion for a preliminary injunction, the court may advance the trial on the

merits and consolidate it with the hearing. Even when consolidation is not

ordered, evidence that is received on the motion and that would be ad-

missible at trial becomes part of the trial record and need not be repeated

at trial. But the court must preserve any party’s right to a jury trial.” Fed.

R. Civ. P. 65(a)(2).

No. 17-2141 19

court had consolidated the hearing as a formal matter, it con-

tinually referred to a “preliminary injunction” as the remedy

24 25

at stake. It also said that “[t]his isn’t a final trial,” that it

26

was “not making any substantive rulings,” and that the

27

proper relief was “a moving target.” When the defendants

sought clarification and reminded the court of its latest con-

solidation ruling, the judge responded that “I don’t think it’s

a total trial on the merits, because these folks do have individ-

28

ual damage claims.” These ambiguous statements intro-

duced significant confusion as to whether the court was con-

sidering preliminary or permanent relief and, consequently,

whether it would make any conclusive findings about the al-

leged ADA violations.

After the close of the hearing, the court continued to send

conflicting messages. On June 10, 2015, the court reversed its

earlier order and ruled that it would not “combine its consid-

eration of the motion for preliminary injunction with ruling

24 See, e.g., R.132 at 184–85 (“[R]emember, we’re talking about a prelimi-

nary injunction here.”); id. at 187 (“This is a preliminary injunction, and I

did say that we were going to combine it into—to ultimate relief. But from

what I’m hearing is, this is sort of a moving target … .”); R.134 at 131 (ref-

erencing “the issues that are before me in the preliminary injunction”); id.

at 132 (noting that the class certification motion had been “put off until we

can get through this preliminary injunction stage”).

25 R.132 at 185.

26 R.130 at 32.

27 Id. at 14; R.132 at 187; R.134 at 135.

28 R.134 at 131–32.

20 No. 17-2141

29

on the final merits.” Then, before issuing its decision on in-

junctive relief, the court collected summary judgment briefs

on the plaintiffs’ individual damage claims. If anything, this

order of proceedings suggested that the court’s decision on

the equitable claims would not incorporate conclusive find-

ings that would affect the resolution of the legal claims. In-

deed, the parties appear to have understood as much, for they

submitted Local Rule 56.1 statements of material fact in con-

junction with their respective summary judgment briefs. Yet,

when the district court finally ruled, it granted a permanent

injunction.

In these confusing circumstances, the defendants certainly

did not waive their right to a jury trial by participating in the

consolidated hearing. It is true that a party can waive its jury

trial rights by participating in and failing to object to a non-

30

jury fact-finding proceeding. However, ”there is a presump-

tion against waiver of the constitutional right to jury

trial,” Middle Tenn. News Co. v. Charnel of Cincinnati, Inc., 250

F.3d 1077, 1083 (7th Cir. 2001), and we will not infer waiver

absent “clear, unequivocal evidence that the party intended

to waive its right,” Reboy v. Cozzi Iron & Metal, Inc., 9 F.3d

1303, 1306 (7th Cir. 1993). Indeed, we have made it clear that

we will not infer waiver from a party’s participation in non-

jury proceedings unless “it was clear that the court intended

to make fact determinations.” Fillmore v. Page, 358 F.3d 496,

29 R.159 at 1.

30See Fillmore v. Page, 358 F.3d 496, 503 (7th Cir. 2004); Middle Tenn. News

Co. v. Charnel of Cincinnati, Inc., 250 F.3d 1077, 1083 (7th Cir. 2001) (“[T]his

court has not required strict compliance with Rules 38 and 39 to effect a

waiver of a jury demand.”).

No. 17-2141 21

503 (7th Cir. 2004) (quoting Lovelace v. Dall, 820 F.2d 223, 227

(7th Cir. 1987)).

Based on the record before us, we have no doubt that the

district court failed to communicate its intent to make conclu-

sive factual determinations in the hearing on injunctive relief.

Given these particular circumstances, the defendants’ partici-

pation in and failure to object to the hearing cannot be under-

stood as “clear, unequivocal evidence” of waiver. Reboy,

9 F.3d at 1306. Absent such a waiver, the court should have

held a hearing on the preliminary injunction, then tried the

legal issues to a jury, and then held a hearing on the perma-

nent injunction. See Southland, 534 F.2d at 644. Instead, by

granting a permanent injunction without clear notice of con-

solidation, and then affording preclusive effect to its own

findings of fact on central disputed questions, the court de-

prived the defendants of their right to a jury trial on ADA li-

ability. This is reversible error. See Lamex Foods, Inc. v. Audeliz

Lebrón Corp., 646 F.3d 100, 107 (1st Cir. 2011) (“[O]rdering con-

solidation during the course of a preliminary injunction hear-

ing is reversible error when little or no notice is given of this

change and the effect is to deprive a party of the right to pre-

sent his case on the merits.” (quoting 11A Charles Alan

Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice

31

and Procedure § 2950 (2d ed. 1995))). We therefore vacate the

district court’s grant of partial summary judgment and re-

mand for a jury trial on the question of ADA liability.

31 We note that the plaintiffs have not argued, nor could they reasonably

do so, that this case presents the kind of “imperative circumstances” that

might warrant an extraordinary order of proceedings. See Beacon Theatres,

Inc. v. Westover, 359 U.S. 500, 511 (1959).

22 No. 17-2141

B.

The district court’s error in relying on its own factual find-

ings with respect to the damage claims has several important

ramifications. We address them now.

First, it follows from our decision above that we must va-

cate the jury’s verdicts on the question of damages. Accord-

ingly, the jury’s verdicts respecting Mr. Lacy, Mr. Boston, and

Mr. Bowers are vacated for further proceedings. Mr. Dawson

entered into a monetary settlement with the defendants, and

Mr. Farris consented to a judgment of $0 in damages. It is un-

clear from the record, however, whether either of these agree-

ments was conditioned on the defendants’ right to challenge

the underlying proceedings or whether the defendants

waived their rights to review as to those two plaintiffs. See

McMillian v. Sheraton Chi. Hotel & Towers, 567 F.3d 839, 843–44

(7th Cir. 2009) (noting that consensual nature of a judgment

does not affect appellate jurisdiction but may affect the con-

senting party’s right to review); Hudson v. Chi. Teachers Union,

Local No. 1, 922 F.2d 1306, 1312–13 (7th Cir. 1991) (emphasiz-

ing the importance of “practicalities” and explaining that, alt-

hough settlements generally are not appealable, a stipulated

judgment may not foreclose appellate review if the stipula-

tion extends only to the matter of damages). We thus leave it

No. 17-2141 23

to the district court, which is far more familiar with the rec-

ord, to determine whether it is proper to include Mr. Farris

32

and Mr. Dawson in the jury trial on remand.

Second, we must address the effect of our holding on the

district court’s grant of permanent injunctive relief with re-

spect to the Sheriff’s ramp policy. Had the district court fol-

lowed the instruction in Beacon and submitted the common

questions of fact to a jury before rendering its own decision

on the permanent injunction, the court would have been

bound by the jury’s factual determinations. See Allen v. Int’l

Truck & Engine Corp., 358 F.3d 469, 471–72 (7th Cir. 2004); Hus-

sein, 816 F.2d at 355. Therefore, if not for the court’s error, the

defendants would have been entitled to a jury determination

on all of the facts underlying the alleged ADA violations. Be-

cause “most if not all of [the] elements [of the damage claims

were] presented to the wrong trier of fact,” the court’s error

“infect[ed] the disposition” of the equitable claims as well.

Bouchet v. Nat’l Urban League, Inc., 730 F.2d 799, 803 (D.C. Cir.

1984).

In these circumstances, “relitigation is the only mecha-

nism that can completely correct the error of the court below.”

Lytle v. Household Mfg., Inc., 494 U.S. 545, 553 (1990). This ap-

proach comports with the practice of the Supreme Court in

related cases. See id. at 552–53 (listing cases where Court has

“reversed and remanded each case in its entirety for a trial

before a jury” where petitioners were wrongfully denied their

32 Cf. Sosna v. Iowa, 419 U.S. 393, 402 n.12 (1975) (“When this Court has

entertained doubt about the continuing nature of a case or controversy, it

has remanded the case to the lower court for consideration of the possibil-

ity of mootness.”).

24 No. 17-2141

right to a jury trial on legal issues). Moreover, it protects “the

integrity of the judicial process” by avoiding “the possibility

of inconsistent determinations of the same question.” Heyman

v. Kline, 456 F.2d 123, 131 (2d Cir. 1972). In order to vindicate

fully the defendants’ jury trial rights, we hereby vacate the

district court’s October 8, 2015, judgment on the merits of the

plaintiffs’ first equitable claim. After a jury decides the com-

mon questions of fact, the court will be “prohibited from re-

considering any issues necessarily and actually decided by

the jury.” Hussein, 816 F.2d at 355.

C.

We now address those matters raised on appeal that are

not tainted directly by the deprivation of a jury trial.

1.

The district court, noting that the matter was undecided in

this court, determined that damages could be awarded for the

ADA violations upon a showing of deliberate indifference on

the part of the defendants. On remand, a jury will have to de-

termine in the first instance whether the defendants have vi-

olated the ADA with respect to each named plaintiff. If it finds

a violation, the same jury will have to decide whether any

ADA violations were the result of intentional discrimination.

See Love, 103 F.3d at 561 (upholding award of damages in

ADA case where jury found intentional discrimination). As

the district court recognized, many courts of appeals have

spoken on the standard for establishing intentional discrimi-

No. 17-2141 25

nation, although we have yet to decide the issue. See Strom-

inger, 592 F. App’x at 511–12. Considerations of judicial econ-

omy counsel that we decide it today.

As this question has percolated through the courts, our sis-

ter circuits have considered two standards for intentional dis-

crimination: deliberate indifference and discriminatory ani-

mus. See S.H., 729 F.3d at 262–63 (laying out both standards

and adopting the former); Liese v. Indian River Cty. Hosp. Dist.,

701 F.3d 334, 344–45 (11th Cir. 2012) (same); Duvall v. Cty. of

Kitsap, 260 F.3d 1124, 1138–39 (9th Cir. 2001) (same). Deliber-

ate indifference occurs when “the defendant knew that harm

to a federally protected right was substantially likely and …

failed to act on that likelihood.” Liese, 701 F.3d at 344 (altera-

tion and emphases in original) (quoting T.W. ex rel. Wilson v.

Sch. Bd. of Seminole Cty., 610 F.3d 588, 604 (11th Cir. 2010)). It

is meant to identify indifference that is a “deliberate choice.”

Id. (quoting Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268,

276 (2d Cir. 2009)). “Discriminatory animus, by contrast, re-

quires a showing of prejudice, spite, or ill will,” and is “gen-

erally thought to be a combination of intentionally differential

treatment and a disdainful motive for acting that way.” Id.

Although some courts of appeals appear to have applied

heightened standards in certain contexts, most of our sister

circuits have adopted deliberate indifference as the proper

standard for obtaining compensatory damages under Title II

33

and section 504. In this case, the district court required a

33Compare S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 263

(3d Cir. 2013) (adopting deliberate indifference standard for intentional

discrimination); Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 344–45

26 No. 17-2141

showing of deliberate indifference, and the parties do not dis-

pute that approach on appeal. We now agree with the major-

ity of courts that have spoken on the question and hold that a

plaintiff can establish intentional discrimination in a Title II

damage action by showing deliberate indifference. Specifi-

cally, we adopt the two-part standard applied by most other

courts, “requiring both (1) ‘knowledge that a harm to a feder-

ally protected right is substantially likely,’ and (2) ‘a failure to

act upon that likelihood.’” S.H., 729 F.3d at 263 (quoting Du-

vall, 260 F.3d at 1139).

This standard is sensible based on the clear purpose and

evolution of the ADA. Title II was modeled after section 504,

which was meant to combat discrimination that is “most often

the product, not of invidious animus, but rather of thought-

lessness and indifference—of benign neglect.” Alexander v.

Choate, 469 U.S. 287, 295 (1985). One commentator interpreted

the ADA’s statutory findings in light of its legislative history

and concluded that, “[e]ven absent animus-based prejudice,

people with disabilities may be deprived of opportunities”

(11th Cir. 2012) (same); Meagley v. City of Little Rock, 639 F.3d 384, 389 (8th

Cir. 2011) (same); Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 275–76

(2d Cir. 2009) (same); Mark H. v. Lemahieu, 513 F.3d 922, 938 (9th Cir. 2008)

(same); Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1153 (10th Cir. 1999)

(same), with Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 126–27 (1st Cir.

2003) (stating that compensatory damages are not available under Title II

and section 504 absent “evidence of economic harm or animus toward the

disabled,” but not deciding whether such damages may be available in

other circumstances); Delano-Pyle v. Victoria Cty., 302 F.3d 567, 575 (5th Cir.

2002) (stating that “[t]here is no ‘deliberate indifference’ standard applica-

ble to public entities for purposes of the ADA,” but not adopting defini-

tively an alternative standard for proving intentional discrimination).

No. 17-2141 27

which the ADA aims to protect. Samuel R. Bagenstos, Subor-

dination, Stigma, and “Disability”, 86 Va. L. Rev. 397, 423 (2000);

see also 42 U.S.C. § 12101(a)(7) (statutory finding that “the Na-

tion’s proper goals regarding individuals with disabilities are

to assure equality of opportunity [and] full participation

… .”). Moreover, the “reasonable modification” requirement

at the heart of this case clearly indicates the intent to combat

exclusion that “is literally built into our physical and social

environment,” Bagenstos, Subordination, supra, at 425, even if

it is not motivated by spite or ill will. Given this statutory

framework, we agree with the Third Circuit that “the deliber-

ate indifference standard is better suited to the remedial goals

of the … ADA than is the discriminatory animus alternative.”

S.H., 729 F.3d at 264.

2.

The defendants next challenge the district court’s certifica-

tion of the class of “[a]ll Cook County Jail detainees who have

34

been assigned and currently use a wheelchair.” We review

class certification under an abuse of discretion standard. Phil-

lips v. Sheriff of Cook Cty., 828 F.3d 541, 549 (7th Cir. 2016). An

abuse of discretion “can occur when a district court commits

legal error or makes clearly erroneous factual findings.” Bell

v. PNC Bank, Nat’l Ass’n, 800 F.3d 360, 373 (7th Cir. 2015). “Our

review is deferential, but exacting: ‘A class may only be certi-

fied if the trial court is satisfied, after a rigorous analysis, that

the prerequisites’ for class certification have been met.” Id.

(quoting CE Design, Ltd. v. King Architectural Metals, Inc., 637

34 R.142 at 15.

28 No. 17-2141

F.3d 721, 723 (7th Cir. 2011)). The burden rests on the party

seeking certification to show by a preponderance of the evi-

dence that certification is proper. Id.

The prerequisites for certification are twofold. First, the

plaintiffs must satisfy the requirements of Federal Rule of

Civil Procedure 23(a). There are four prongs to this analysis:

(1) the class is so numerous that joinder of all

members is impracticable (numerosity);

(2) there are questions of law or fact common to

the class (commonality);

(3) the claims or defenses of the representative

parties are typical of the claims or defenses

of the class (typicality); and

(4) the representative parties will fairly and ad-

equately protect the interests of the class (ad-

equacy of representation).

Id. (quoting Fed. R. Civ. P. 23(a)). Second, the plaintiffs must

demonstrate that one of the conditions of Rule 23(b) is met.

Here, the plaintiffs sought certification under Rule 23(b)(2),

which applies when “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 re-

lief is appropriate respecting the class as a whole.” Fed. R. Civ.

P. 23(b)(2). Lastly, we have required that a class be “suffi-

ciently definite that its members are ascertainable.” Jamie S. v.

Milwaukee Pub. Sch., 668 F.3d 481, 493 (7th Cir. 2012).

The defendants first contend that the class is not ascertain-

able because “it encompassed anyone who could possibly re-

quire assistance of a wheelchair, regardless of if they suffered

No. 17-2141 29

35

any deprivation under the ADA.” This argument evokes our

case law about classes that are defined too broadly to permit

certification. We have said that a class should not be certified

if “it sweeps within it persons who could not have been in-

jured by the defendant’s conduct … [or] if it is apparent that

it contains a great many persons who have suffered no in-

jury.” Kohen v. Pac. Inv. Mgmt. Co., 571 F.3d 672, 677 (7th Cir.

2009). We have acknowledged simultaneously, however, that

“a class will often include persons who have not been injured

by the defendant’s conduct; indeed this is almost inevitable,”

given that a class can be certified yet fail to prove its case on

the merits. Id.

There is no precise tipping point at which a class includes

too many people who have not been harmed. “Such determi-

nations are a matter of degree, and will turn on the facts as

they appear from case to case.” Messner v. Northshore Univ.

HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012). Here, we are

confident that the balance tips in favor of certification. Ac-

cording to the Department of Corrections, which keeps rec-

ords of detainees who are assigned wheelchairs, there were

approximately sixty detainees who qualified for the class at

36

the time of certification. The defendants have not suggested

how many of these individuals could not have been injured

35 Appellants’ Br. 37.

36 The fact that the Department of Corrections keeps records of all wheel-

chair-assigned detainees also undermines the defendants’ argument that

members of the class “cannot be determined through ‘clear objective cri-

teria’ [and] will require ‘complex, highly individualized’ determinations.”

Id. (quoting Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 496 (7th Cir.

2012)). These records provide an extremely clear and objective criterion

for ascertaining the class.

30 No. 17-2141

under the ADA, let alone shown “a great many” who evaded

harm. Kohen, 571 F.3d at 677. To the contrary, considering the

regularity of detainees’ courthouse visits and the structural

noncompliance of the facilities at all six courthouses, the class

definition is well tailored to reach those individuals who

would have suffered the deprivations alleged here.

Next, the defendants attack the commonality of the class.

They submit that the reasonableness of a given accommoda-

tion will vary for each class member, making it impossible for

37

the litigation to generate common answers. To satisfy com-

monality, the plaintiffs must do more than show that they

“suffered a violation of the same provision of law.” Jamie S.,

668 F.3d at 497 (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S.

338, 349 (2011)). Instead, they must assert a common injury

that is “capable of classwide resolution—which means that

determination of its truth or falsity will resolve an issue that

is central to the validity of each one of the claims in one

stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).

37 The defendants also suggest that commonality is undermined by the

plaintiffs’ need to prove on an individual basis whether each class mem-

ber is actually disabled under the ADA. The ADA defines disability, in

relevant part, as a “physical or mental impairment that substantially limits

one or more of the major life activities.” 28 C.F.R. § 35.108(a)(1)(i). Alt-

hough the “determination of whether an impairment substantially limits

a major life activity requires an individualized assessment,” id.

§ 35.108(d)(1)(vi), some “types of impairments will, as a factual matter,

virtually always be found to impose a substantial limitation on a major life

activity,” id. § 35.108(d)(2)(ii). This includes “mobility impairments re-

quiring the use of a wheelchair.” Id. § 35.108(d)(2)(iii)(D). Given that the

assessment of these plaintiffs’ impairments “should be particularly simple

and straightforward,” id. § 35.108(d)(2)(ii), the individualized nature of

their disabilities does not undermine commonality here.

No. 17-2141 31

In other words, the key to commonality is “not the raising of

common ‘questions’ … but, rather, the capacity of a class-

wide proceeding to generate common answers apt to drive the

resolution of the litigation.” Id. (emphasis in original). “The

critical point is ‘the need for conduct common to members of

the class.’” Phillips, 828 F.3d at 553 (emphasis in original)

(quoting Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th

Cir. 2014)).

Although it is true that the reasonableness of a given ac-

commodation will vary among individuals with differing dis-

abilities, any dissimilarities among the proposed class mem-

bers will not impede the generation of common answers in

this case. We have acknowledged that “[w]hether a requested

accommodation is reasonable or not is a highly fact-specific

inquiry and requires balancing the needs of the parties.” A.H.,

881 F.3d at 594 (quoting Oconomowoc Residential Programs v.

City of Milwaukee, 300 F.3d 775, 784 (7th Cir. 2002)). The fact-

specific nature of this inquiry may preclude class certification

in some cases, for instance if the plaintiffs here had alleged a

variety of disabilities or had sought a variety of accommoda-

tions based on their differing abilities. See, e.g., Phillips, 828

F.3d at 555 (finding lack of commonality where purported

class members “each present a different situation that in-

volved a different type of dental pain, took place at a different

time, involved different medical professionals and prison

staff, and concerned a different alleged deficiency in the treat-

ment process”).

Here, however, commonality abounds. The plaintiffs

share a common physical impairment, as they are all confined

to wheelchairs when attending court. Furthermore, they face

common physical barriers when they confront steep ramps

32 No. 17-2141

and noncompliant bathroom facilities. And finally, they seek

common modifications in the form of mandatory policies for

assistance in pushing them up and down the ramps and es-

corting them to ADA-compliant restrooms. This is not a situ-

ation where “the defendant’s allegedly injurious conduct dif-

fers from plaintiff to plaintiff,” Suchanek v. Sturm Foods, Inc.,

764 F.3d 750, 756 (7th Cir. 2014); rather, they all complain

about the same failure to implement and enforce policies that

38

would accommodate all wheelchair-using detainees.

The defendants’ challenge to the typicality requirement

fails for largely the same reasons. Cf. Wal-Mart, 564 U.S. at 349

38 This commonality of the plaintiffs’ alleged injuries distinguishes this

case from Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 352, 359 (2011) (find-

ing lack of commonality where “respondents wish to sue about literally

millions of employment decisions at once” without identifying “a com-

mon mode of exercising discretion” in making such decisions), and Jamie

S. v. Milwaukee Pub. Sch., 668 F.3d 481, 497–98 (7th Cir. 2012) (finding lack

of commonality where class members alleged IDEA violations ranging

from school district’s failure to identify eligible students, to its failure to

timely refer them for evaluation and its failure to hold properly consti-

tuted meetings regarding their individualized education programs).

We note that many courts have certified classes based on allegedly

unreasonable accommodations. See, e.g., Yates v. Collier, 868 F.3d 354 (5th

Cir. 2017) (upholding class certification against commonality challenge

where disabled prisoners with heat sensitivities alleged failure to provide

reasonable accommodations regarding regulation of temperatures in

prison); Holmes v. Godinez, 311 F.R.D. 177 (N.D. Ill. 2015) (finding common-

ality in Title II case where detainees alleged system-wide failure to accom-

modate deaf and hearing-impaired inmates); Lane v. Kitzhaber, 283 F.R.D.

587 (D. Or. 2012) (“[I]n almost every case involving a challenge under Title

II of the ADA and/or Section 504 of the Rehabilitation Act to discrimina-

tory governmental policies and practices, courts have certified a class.”).

No. 17-2141 33

n.4 (noting that the “commonality and typicality require-

ments … tend to merge” (quoting Gen. Tel. Co. of Sw. v. Falcon,

457 U.S. 147, 157 n.13 (1982))). A “plaintiff’s claim is typical if

it arises from the same event or practice or course of conduct

that gives rise to the claims of other class members and [is]

based on the same legal theory.” Rosario v. Livaditis, 963 F.2d

1013, 1018 (7th Cir. 1992) (quoting De La Fuente v. Stokley-Van

Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983)). This requirement

“is meant to ensure that the named representative’s claims

‘have the same essential characteristics as the claims of the

class at large.’” Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th

Cir. 2006) (quoting Retired Chi. Police Ass’n v. City of Chicago,

7 F.3d 584, 597 (7th Cir. 1993)). Here, the named plaintiffs al-

leged the same injurious conduct and requested the same

modifications as the class at-large. We see no reason to ques-

tion the typicality of their claims.

Finally, the defendants ask us to decertify the class be-

cause Mr. Farris, Mr. Dawson, and Mr. Bowers supposedly

are not credible and thus are not adequate representatives of

the class. “A named plaintiff who has serious credibility prob-

lems or who is likely to devote too much attention to rebutting

an individual defense may not be an adequate class repre-

sentative.” CE Design Ltd. v. King Architectural Metals, Inc., 637

F.3d 721, 726 (7th Cir. 2011). That is only the case, however, if

the evidence is “so severely undermining [of his] credibility

that a fact finder might reasonably focus on [his] credibility,

to the detriment of the absent class members’ claims.” Id. at

728 (quoting Dubin v. Miller, 132 F.R.D. 269, 272 (D. Colo.

1990)).

Although the district court harbored “serious doubts

about plaintiff Farris’ credibility,” it concluded that

34 No. 17-2141

“[n]othing about plaintiff[s] Dawson, Bowers, and Farris’ al-

leged credibility issues indicate that they have an antagonistic

or conflicting claim, or that they do not have sufficient interest

39

in the outcome of this case to ensure vigorous advocacy.”

We do not think that this conclusion rested on clearly errone-

ous factual findings or legal error. See Bell, 800 F.3d at 373. Ra-

ther than turn a blind eye to the issue of credibility, the district

court made a reasoned judgment that any weaknesses in the

witnesses’ integrity did not relate to a central element of the

litigation, such as the defendants’ compliance with the acces-

sibility standards or the reasonableness of a mandatory ramp-

assistance policy. Absent more compelling evidence that their

credibility would detract from the adjudication of the class-

40

wide claims, we will not decertify the class on this ground.

39 R.142 at 12.

40 In their reply brief, the defendants submit that Mr. Lacy did not have

standing to seek injunctive relief on behalf of the class because he was dis-

charged into the custody of the Illinois Department of Corrections before

the district court issued any decisions granting injunctive relief. Conse-

quently, they claim, he is not an adequate representative of the class. Even

if the defendants are correct and Mr. Lacy no longer had constitutional

standing at that point, this conclusion does not undermine the certification

of the class or the court’s subsequent decisions regarding class-wide in-

junctive relief. See Kohen v. Pac. Inv. Mgmt. Co., 571 F.3d 672, 676 (7th Cir.

2009) (“The named plaintiff who no longer has a stake may not be a suit-

able class representative, but that is not a matter of jurisdiction and would

not disqualify him from continuing as class representative until a more

suitable member of the class was found to replace him.” (quoting

Wiesmueller v. Kosobucki, 513 F.3d 784, 786 (7th Cir. 2008))). This rule makes

good sense given the transient population that typically brings litigation

on behalf of prisoners. Here, there was no shortage of suitable class mem-

bers to replace Mr. Lacy.

No. 17-2141 35

Because the defendants have not undermined the ascer-

tainableness of the class or the district court’s findings of com-

monality, typicality, and adequacy of representation, we af-

firm the class’s certification under Rule 23(b)(2).

3.

The defendants’ final challenge relates to the district

court’s grant of a supplemental permanent injunction. After

this litigation commenced, the County modified two holding

cells at the Maywood courthouse to bring them into partial

compliance with the latest accessibility standards. The

County updated the holding cell entryways, replaced the

metal benches, and installed new lavatory fixtures and grab

bars; however, it did not remove or reposition the privacy

screens.

The parties agree that under the latest accessibility stand-

ards, these privacy screens are 1.5 inches too close to the rear

walls of the cells. They disagree, however, as to whether the

accessibility standards require the County to remove or repo-

sition the screens. After receiving supplemental briefing and

conducting a limited evidentiary hearing, the district court

concluded that the accessibility standards mandated the

County’s full compliance with the clear-floor-space require-

ments. It thus issued a permanent injunction requiring the

County to move the privacy screens by 1.5 inches.

We review the court’s grant of injunctive relief for an

abuse of discretion; however, we review its factual determi-

nations for clear error and its underlying legal conclusions de

novo. See ADT Sec. Servs., Inc. v. Lisle-Woodridge Fire Prot. Dist.

36 No. 17-2141

(ADT II), 724 F.3d 854, 863 (7th Cir. 2013). Permanent injunc-

tive relief is appropriate when a plaintiff has shown: “(1) suc-

cess … on the merits; (2) irreparable harm; (3) that the benefits

of granting the injunction outweigh the injury to the defend-

ant; and, (4) that the public interest will not be harmed by the

relief requested.” ADT Sec. Servs., Inc. v. Lisle-Woodridge Fire

Prot. Dist. (ADT I), 672 F.3d 492, 498 (7th Cir. 2012) (quoting

Collins v. Hamilton, 349 F.3d 371, 374 (7th Cir. 2003)). The de-

fendants contest only the merits, so we limit our analysis ac-

cordingly.

Although the ADA does not require public entities to ren-

ovate facilities built before 1992, once a public entity alters

such facilities, it is generally required to bring them into com-

pliance with the latest accessibility standards. The imple-

menting regulations codify this requirement as follows:

Each facility or part of a facility altered … in a

manner that affects or could affect the usability

of the facility or part of the facility shall, to the

maximum extent feasible, be altered in such

manner that the altered portion of the facility is

readily accessible to and usable by individuals

with disabilities.

28 C.F.R. § 35.151(b)(1). Furthermore, if these alterations are

commenced after March 15, 2012, they must comply with the

latest accessibility standards: the 2010 ADA Standards for Ac-

cessible Design, which incorporate the 2004 ADA Accessibil-

ity Guidelines (“ADAAG”). See id. § 35.151(c)(3).

The County contends that its alterations to the Maywood

holding cells did not trigger this complete compliance re-

quirement for two reasons: (1) it did not intend to alter the

No. 17-2141 37

entire holding cells but only certain elements, and (2) it is

technically infeasible to modify the privacy screens. The

County relies on section 202.3 of the ADAAG, which states

that “[w]here existing elements or spaces are altered, each al-

tered element or space shall comply with the applicable re-

quirements.” 36 C.F.R. pt. 1191, app. B at 202.3. Section 202.3

continues to set out the so-called technical infeasibility excep-

tion: “In alterations, where compliance with applicable re-

quirements is technically infeasible, the alteration shall com-

ply with the requirements to the maximum extent feasible.”

Id. A “technically infeasible” alteration is defined, in relevant

part, as “something that has little likelihood of being accom-

plished because existing structural conditions would require

removing or altering a load-bearing member that is an essen-

tial part of the structural frame.” Id. at 106.5.

We agree with the district court that these provisions do

not exempt the County from its obligation to move the pri-

vacy screens. Whether the privacy screens are part of the al-

tered elements or spaces, and thus must comply with the 2010

standards, depends on the intended scope of the alteration.

The DOJ has explained the reach of section 202.3 in its com-

mentary to the ADAAG:

Under section 202.3 of the 2010 Standards[,] en-

tities can alter as many elements within a room

or space as they like without triggering a re-

quirement to make the entire room or space ac-

cessible based on the alteration of individual el-

ements. This does not, however, change the re-

quirement that if the intent was to alter the entire

room or space, the entire room or space must be

38 No. 17-2141

made accessible and comply with the applicable

requirements of … the 2010 Standards.

Dep’t of Justice, Guidance on the 2010 ADA Standards for Acces-

sible Design 74 (2010), www.ada.gov/regs2010/2010ADA-

Standards/Guidance_2010ADAStandards_prt.pdf (emphasis

added).

The district court concluded that the County intended to

alter the holding cells in their entirety. It based this finding on

the defendants’ repeated representations that they planned to

bring all of the holding cells into compliance with the latest

standards. We see no clear error in this factual determination,

especially given the circumstantial evidence that the County

modified the privacy screens in all of the other renovated

holding cells, in line with its supposed plan.

The County’s second argument is equally unavailing. The

County points to testimony by the Sheriff’s ADA project di-

rector that the privacy screens are “embedded into the wall

and the floor” and that removing the screens “will diminish

41

the structural integrity of [the] wall.” In response, the plain-

tiffs highlight deposition testimony by the building contractor

who prepared an estimate for moving the privacy screens.

The contractor explained how the screens are “anchored in

the concrete floor [and in] the structural glazed block wall”

and that moving them would require saw cutting into both

42

structures. Nonetheless, when asked about the effect of such

41 R.362 at 20, 31.

42 R.364-2 at 38–40.

No. 17-2141 39

alterations on structural integrity, he said directly that both

43

the wall and the floor would remain structurally sound.

As the finder of fact on this matter, the district court was

entitled to discredit the conclusory testimony of the ADA pro-

ject director, especially when compared with the detailed tes-

timony from the contractor. We see no clear error in the

court’s factual determination that moving the screens would

not diminish the integrity of the structural frame. In so hold-

ing, we are not endorsing a strict liability standard for non-

compliance with the ADAAG, as the County suggests. Rather,

questions of technical infeasibility turn on detailed factual de-

terminations about the effects of construction on the struc-

tural integrity of altered facilities. In this case, the district

court reached a reasoned conclusion based on the competing

evidence before it, and we see no reason to disturb its factual

44

findings.

The County has not shown any abuse of discretion by the

district court in granting the supplemental permanent injunc-

tion. We therefore affirm its judgment on this matter.

Conclusion

For the reasons expressed in this opinion, we vacate the

grant of partial summary judgment and, consequently, vacate

the jury’s verdicts as to Mr. Lacy, Mr. Bowers, and Mr. Boston,

43 Id. at 46.

44The County also advances an infeasibility argument based on “dispro-

portionate” costs. Appellants’ Br. 52. However, this disproportionality ar-

gument was not raised before the district court so we deem it waived on

appeal. See Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012).

40 No. 17-2141

as well as the grant of permanent injunctive relief regarding

the Sheriff’s ramp policy. The effect of our holding on the set-

tlement and judgment for Mr. Dawson and Mr. Farris, respec-

tively, will depend on the district court’s finding of waiver, or

lack thereof, by the defendants of their right to appellate re-

view as to those two plaintiffs.

In any event, we remand for a jury to decide whether the

defendants violated the ADA for purposes of the relevant

plaintiffs’ damage actions, and, if so, whether any violations

were the result of intentional discrimination. We affirm the

certification of the class and the grant of permanent injunctive

relief with respect to the Maywood privacy screens.

In sum, we affirm in part, vacate in part, and remand for

further proceedings consistent with this opinion. Each party

shall bear its own costs for this appeal.