United States District Court, N.D. Illinois, Eastern Division
SDAHRIE HOWARD, ELLENOR ALTMAN, DENISE HOBBS, TAVI BURROUGHS, BALVINA RANNEY, TAWANDA WILSON, SUSANA PLASENCIA, ESTHER JONES, KIMBERLY CRAWFORD-ALEXANDER, and DOMINIQUE FREEMAN, on behalf of themselves and all others similarly situated, Plaintiffs,
COOK COUNTY SHERIFF'S OFFICE and COUNTY OF COOK, Defendants.
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY UNITED STATES DISTRICT JUDGE.
plaintiffs are women employed as correctional officers,
rehabilitation workers, medical professionals, and deputy
sheriffs at the Cook County Jail and the adjoining criminal
courthouse. They have sued Cook County and the Sheriff's
Office, which operates the jail, alleging that the defendants
failed to curtail sexual harassment by male
detainees-including sexual epithets, threats of sexual
violence, and masturbation-in violation of Title VII, the
Illinois Civil Rights Act, and the Equal Protection Clause of
the U.S. Constitution's Fourteenth Amendment. The
plaintiffs have moved to certify a class of similarly
situated individuals. For the reasons set forth below, the
Court grants the motion but modifies the definition of the
Organization of the complex
Cook County Sheriff's Office operates a complex that
includes the Cook County Jail and the George N. Leighton
Criminal Courthouse. The complex comprises dozens of
buildings spanning eight city blocks. Each year, the jail
houses more than 100, 000 detainees in seven residential
divisions of varying security levels. The staff of the jail
includes sworn correctional officers who often work at
multiple locations within the jail during their tenure and
travel throughout the complex when transporting inmates. The
jail also employs civilian workers who have less direct
contact with detainees, such as employees responsible for
mail, payroll, and information technology.
addition to the residential divisions, the jail encompasses
Cermak Health Services, the jail's health care provider,
and the Residential Treatment Unit (RTU), which provides
mental health services. Medical providers have contact with
detainees throughout the jail, although non-medical staff of
Cermak and the RTU (such as accountants and records managers)
have comparatively little detainee contact.
jail is connected to the adjacent courthouse via underground
tunnels through which detainees are transported to court
hearings held at the Leighton Courthouse. The Court Services
Department, a division of the sheriff's office, provides
security in the courthouse. As with the employees of the
jail, the extent to which court services deputies interact
with detainees depends on their particular assignment, though
their assignments often change.
The plaintiffs' allegations
named plaintiffs in the suit are women employees of the jail
and the sheriff's office, including four correctional
officers (plaintiffs Sdahrie Howard, Ellenor Altman, Denise
Hobbs, and Kimberly Crawford-Alexander); a correctional
rehabilitation worker (Dominique Freeman); a paramedic (Tavi
Burroughs); and four court services deputies (Esther Jones,
Balvina Ranney, Tawanda Wilson, and Susana Plasencia). They
have sued the Cook County Sheriff's Office under Title
VII of the Civil Rights Act of 1964, alleging that the
sheriff's office subjected them to a hostile work
environment. They contend that this conduct also
constitutes unlawful discrimination in violation of the Equal
Protection Clause of the U.S. Constitution and the Illinois
Civil Rights Act.
plaintiffs allege that detainees in the jail engage in
frequent sexual harassment, including exhibitionist
masturbation, sexual epithets and threats, and sexual
violence. They further allege that the defendants'
policies-including their failure to enact appropriate
measures to curb harassment-proximately caused this severe
and pervasive harassment. In November 2017, the Court granted
the parties' agreed motion for a preliminary injunction,
which mandated additional procedures intended to reduce
harassment in the jail and the courthouse. See dkt.
nos. 16, 27.
plaintiffs have moved to certify a class of similarly
situated individuals. Both sides have also moved to exclude
certain expert opinions. Because those opinions are
potentially relevant to the motion for class certification,
the Court will address the motions to exclude before turning
to the certification motion.
defendants have moved to exclude the reports and testimony of
two of the plaintiffs' expert witnesses: Dr. Louise
Fitzgerald and Jeanne Woodford. The plaintiffs have also
moved to exclude the opinions of the defendant's expert
Dr. Benjamin Wilner.
admissibility of expert testimony is governed by Federal Rule
of Evidence 702 and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). See
Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 778
(7th Cir. 2017). The party "seeking to introduce the
expert witness testimony bears the burden of demonstrating
that the expert witness testimony satisfies the
[Daubert] standard by a preponderance of the
evidence." Id. at 782 (alteration in original).
This analysis has three steps: the Court "must determine
whether the witness is qualified; whether the expert's
methodology is scientifically reliable; and whether the
testimony will assist the trier of fact to understand the
evidence or to determine a fact in issue." Id.
at 779. In considering the question of methodological
reliability-particularly relevant here-the Court must take a
"flexible" approach that depends on "the
precise sort of testimony at issue and not on any fixed
evaluative factors." Id. at 780. And because
the Court serves a gatekeeping role rather than acting as the
finder of fact, this inquiry is limited to the experts'
"principles and methodology, not the conclusions that
they generate." Id. at 781.
defendants have moved to exclude Dr. Fitzgerald's report,
arguing that she did not use a reliable methodology. Dr.
Fitzgerald holds a Ph.D. in psychology. She testified that
she performed a version of a "social framework
analysis"-though at times she eschewed that term during
her deposition-which involves the use of social science
research to provide context for general issues of causation.
Fitzgerald Dep., Defs.' Ex. 48, dkt. no. 198-56, at
75:8-77:7. Dr. Fitzgerald also reviewed certain pleadings,
deposition testimony, and declarations, as well as data
concerning incidents of sexual misconduct by detainees. Based
on this evidence, she concluded that the sheriff's office
does not take sexual harassment seriously and that the
"extent and egregious nature" of the harassment
would "impact virtually every female employee who works
in the Jail or the Leighton Courts." Fitzgerald Rpt.,
Defs.' Ex. 54, dkt. no. 198-62, at 27- 28.
defendants contend that an expert using social framework
analysis may testify only generally about the
social-scientific background relevant to the case and may not
reliably offer case-specific opinions. It points to a
footnote in the Supreme Court's decision in Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338 (2011), where the
Court noted that the scholars who originally developed
social-framework analysis have argued that it cannot reliably
be used to opine about a particular case. Id. at 354
n.8. And another judge in this district has expressed doubts
about the admissibility of Dr. Fitzgerald's testimony for
similar reasons. See Van v. Ford Motor Co., No.
14-cv-8708, 2018 WL 4635649, at *13 (N.D. Ill. Sept. 27,
2018); see also Tuli v. Brigham & Women's Hosp.,
Inc., 592 F.Supp.2d 208, 215-16 (D. Mass. 2009)
(concluding that an expert's social-framework testimony
had "scientific validity" because the expert
"allow[ed] the jury to make the final decision and
expressly disclaim[ed] the capacity to draw any conclusion in
this particular case").
Court need not decide whether experts testifying about social
frameworks should be categorically precluded from offering
case-specific opinions. Even if they are not, the plaintiffs
have failed to establish that Dr. Fitzgerald used a reliable
methodology to reach her opinions about the Cook County Jail.
Significantly, Dr. Fitzgerald testified that she did not
administer a survey she had developed for assessing workplace
harassment. She described this survey as "the only
theory-based, reliable, and valid measure of the prevalence
of sexual harassment in the workplace." Fitzgerald Dep.,
Defs.' Ex. 48, dkt. no. 198-56, at 83:14-19. Dr.
Fitzgerald's explanation for failing to gather this data
is simply that she is "not concerned about the
prevalence of sexual harassment at [the Cook County
Sheriff's Office]" in the sense that she
"take[s] it as a given that there is a lot of it."
Id. at 90:8-16.
than gathering evidence independently through a survey, Dr.
Fitzgerald relied on declarations and deposition testimony
from the named plaintiffs, as well as declarations by other
putative class members and a tour of the jail. Dr. Fitzgerald
acknowledged that this evidence did not allow her to
scientifically generalize about the experiences of all the
women within the jail. Id. at 111:12-112:19
("What we are doing is not science . . . .");
see also Id. at 109:2-7 (stating that, for
"scientific purposes," she could not
"extrapolate that all non-reporting victims have the
same experiences [as] those who report" harassment).
Thus by her own admission, Dr. Fitzgerald's method of
reviewing the testimony and statements of women involved in
this litigation does not permit a scientific assessment of
the conditions at the jail.
plaintiffs have not pointed to evidence that would permit the
Court to find that Dr. Fitzgerald's approach is widely
used or considered reliable. See Lapsley v. Xtek,
Inc., 689 F.3d 802, 810 (7th Cir. 2012) (noting that the
reliability of scientific evidence depends in part on whether
a technique has been tested, analyzed for error, and
generally accepted within the scientific field). The Court
therefore excludes, for purposes of the motion for class
certification, her opinions regarding the extent of sexual
harassment at Cook County Jail.
defendants have also moved to exclude portions of the report
of Jeanne Woodford. Woodford worked in the California prison
system for over thirty years, including stints as the warden
of San Quentin State Prison and director of the California
Department of Corrections. Among other conclusions in her
report, she opines that incidents of masturbation, indecent
exposure, and other sexual offenses at Cook County Jail are
excessively frequent relative to several California prisons
during the same period.
defendants argue that these opinions should be excluded
because they depend on statistical analyses that Woodford is
not qualified to conduct and that are methodologically
flawed. Woodford is undoubtedly qualified to opine on many
aspects of jail and prison administration given her extensive
experience. See Metavante Corp. v. Emigrant Sav.
Bank, 619 F.3d 748, 761 (7th Cir. 2010) ("An
expert's testimony is not unreliable simply because it is
founded on [her] experience rather than on data; indeed, Rule
702 allows a witness to be 'qualified as an expert by
knowledge, skill, experience, training or
education.'" (quoting ...