CHICAGO — A federal appeals panel determined a federal judge was wrong to green light a class action in a 2017 lawsuit brought by female Cook County Sheriff’s Office employees who said the department failed to protect them from sexual harassment by detainees at the county jail and courthouse.
U.S. Seventh Circuit Court of Appeal Judge Amy St. Eve wrote the opinion, issued March 4. Judges Joel Flaum and Diane Sykes concurred.
The decision comes about a year after the county cut a deal to settle a class action from female public defenders over some of the same harassment allegations. That case resulted in the county paying more than $14 million to end litigation.
However, in this case, the appellate judges said the job responsibilities of the female jail workers are too different to allow a similar class action to move forward, at this point.
The named plaintiffs in the sheriffs' office lawsuit include four correctional officers, four courthouse deputies and two civilians, a rehabilitation worker and paramedic. Their common allegations concern conduct of male inmates who “expose their genitals to them, masturbate at them, direct sexual remarks and gestures at them, grope and grab them and threaten and commit sexual violence against them,” St. Eve wrote.
In their lawsuit, the women said the county violated their Title VII rights by permitting a hostile work environment. The complaint also alleges gender discrimination claims under the 14th Amendment’s equal protection clause and under the Illinois Civil Rights Act.
Shortly after the initial filing, U.S. District Judge Matthew Kennelly granted a preliminary injunction mandating mutually agreed upon preventive measures. He later entered two class certification orders, the second of which modified the first and led to the current appeal. St. Eve noted the panel granted the county’s motion for an appeal of the first order before plaintiffs filed a motion to redefine the class to prove “almost every class member had direct contact with male inmates,” and to remove those who didn’t.
After further disputes, including one remand, St. Eve wrote, “the modified class comprises roughly 1,100 correctional officers, 525 medical and mental health personnel, 150 courtroom deputies, 75 social workers or law librarians, and 100 other employees such as assistants or clerks.”
St. Eve noted Kennelly “relied heavily on the concept of ‘ambient harassment,’ ” in his original certification, defining it as: “working in an environment highly permeated with sexually offensive and degrading behavior, that is, a highly sexualized atmosphere in which crude and offensive sexual behavior is common and employees see that it is normative, whether specifically directed at them or not.”
However, as the case proceeded, ambient harassment fell off as a central issue and plaintiffs didn’t demonstrate a climate of harassment that was equal across the massive jail facility. On appeal, the county argued the class still was too broad because, in part, “significant variation in harassment levels across different parts of the jail complex renders certain class members’ work environments materially different from those of others.”
The panel agreed with that argument and further said Kennelly should’ve reassessed commonality when modifying the class.
“Ambient harassment was central to the court’s original commonality finding,” St. Eve wrote. “Yet, in modifying the class, the court excluded nearly 200 class members, apparently because their claims depended solely on ambient harassment. The remaining class members — all of whom had direct exposure to male inmates — could (at least in theory) rely on direct harassment to prove their claims. Although the district court recognized that the new class materially differed from the previous class, it failed to identify a new common question for the class.”
The panel said the failure to reconsider commonality “leaves us in the dark as to the legal justification for the modified class” and noted the parties disagree, with the county still insisting ambient harassment “is still the ‘glue’ holding this class together.” Since it already remanded the complaint once, and since it is on its second appeal, the panel reasoned, a further remand “to clarify the common question would ultimately be pointless because, under either party’s interpretation of the court’s rulings, commonality is lacking.”
While ambient harassment is a familiar concept on workplace litigation, the panel said, the Seventh Circuit has held out jails as atypical work environments because of the nature of detainees and limits on administrators to control behavior. And while the plaintiffs focused on direct harassment claims, the panel said the complaint lacked evidence showing all 1,800 class members experienced the same conditions.
“The jail complex is massive. It fills dozens of buildings that sprawl across eight city blocks. There are many different work assignments, both within the jail and at the connected courthouse,” St. Eve wrote. “Unfortunately, sexual harassment occurs throughout the jail, but the evidence shows that it is heavily concentrated within a few residential divisions where a fraction of class members and named plaintiffs work.”
Although the panel said it could be plausible for smaller classes to emerge and qualify for certification, it determined that issue is at the district court’s discretion, ultimately sending the case back to Kennelly for further proceedings.
The female sheriff's office employees are represented by attorneys Caryn Lederer, of the firm of Hughes Socol Piers Resnick & Dym, of Chicago; Cyrus Mehri, Ellen Eardley, Joshua Karsh and Michael Lieder, of Mehri & Skalet, of Washington, D.C.; and Shelly B. Kulwin, of Kulwin Masciopinto & Kulwin, of Chicago.
The sheriff's office is represented by attorneys Christina M. Egan, Michael R. Phillips, Peter A. Milianti, David D. Leishman, Katharine P. Lennox, Andre V. Keels and Melissa M. Weiss, of the firm of McGuireWoods LLP, of Chicago.