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Brown v. Cook County

United States District Court, N.D. Illinois, Eastern Division

August 12, 2019

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,
v.
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 UNITED STATES 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 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 ...

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