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Howard v. Cook County Sheriff's Office

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

August 12, 2019




         The 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 proposed class.


         A. Organization of the complex

         The 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.

         In 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.

         The 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.

         B. The plaintiffs' allegations

         The 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.[1] 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.[2]

         The 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.


         The 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.

         A. Expert testimony

         The 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.

         The 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.

         1. Dr. Fitzgerald

         The 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.

         The 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").

         The 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.

         Rather 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.

         The 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.

         2. Woodford

         The 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.

         The 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 ...

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