cook county sheriff's office mr fitzgerald thank you your honor may please the court that fitzgerald on behalf of cook county and the sheriff's office this is a rule twenty three and the so issue its class certification class is about one thousand nine hundred female employees at the cook county jail and this class includes the vast overwhelming majority of all non supervisor female employees and one of the largest jail complexes in this country the classic claim is that all of these one thousand eight hundred dollars women uniformly suffered a hostile workplace environment caused by misconduct by the male inmates and this class is relatively unique the plaintiffs brief doesn't cite and i'm not aware of any other class any other case certifying a large class of jail employees based on misconduct by the inmates this court should reverse the class certification and the core reason is that the class members here have vastly different experiences the district ambien harassments as an umbrella essentially to bring within meaningfully different experiences had by class members working in all different parts of this enormous jail complex and that was er dr fitzgerald's define danby and harassment as quote harassment that extends beyond the focal individual to affect the entire work group and she meant in this context nearly two thousand employees i'm at the cook county jail and so one of the friend so well but how are these women who worked in all these different places going to show a common question on so severely or pervasiveness how are they going to prove all of that in one stroke the court said well i'll be on harassment is the common characteristic of the class and whether any of harassment suffered by these female employees is a common question will be a common question making class wide resolution possible relates to the cook county jail itself based on reliability of the methodology as i understand the ruling but there is a footnote later in the opinion when the harassment and there was never any seven hundred and two analysis on the admissibility of that her opinions and that that theory at all ambient harassment theory as a as scientific matter and whether it's scientifically reliable the time for that knowledge he is widely accepted it said i didn't see any of that analysis and in the opinion and i struggled with that because that's it and i agree with you that's what the whole classification deficient turned and was this theory of and again harassment and there's no foundation for it right your honor and i think the key to that is ambient harassment in the district court's opinion it's it seems to be rather than coming straight from dr fitzgerald's analysis of what actually happened in the cook county jail which was excluded it's more like coming from this of that that the court just essentially recognize that everybody who works in this jail has at least heard of this behavior that this is the ambien harassment that what they share is they all know of it and they all perhaps could be subjected to it and that turned into this basis that turned into what they all share and that's what we're really objecting to here so because the problem of the inmate sexual harassment is far from uniform across the jail come the epicenter of the problem was always the maximum security male inmates and they live in divisions eighty nine dollars ten cents which is essentially thirty three dollars buildings the jail is thirty six dollars buildings large nearly one hundred dollars acres this court is recently recognize that it's the size of a small town and within this small town you have thousands of low security male detainees  detainees you have women in this class who worked with those there are also women in this class who worked in other places perimeter security in the courtrooms with the judges those who worked  the complex satisfy that particular issue your honor i think the key is when we look at the actual elements of a hostile workplace environment claim and we look at the severity or pervasiveness allotment it requires based on the totality of the circumstances which is here jail relatively unique circumstances it requires that this severely or pervasiveness be very extreme that it changed the basic working conditions but it caused psychological injury and the idea that people moved through the jail sometimes so your primary assignment might be to work with female detainees but you occasionally encounter male detainees is is leaving short of a common question as to severity and pervasive or permissiveness with someone who worked every day in the areas where those inmates actually lives why would that be a matter of degree as opposed to whether it exists so if you for example have someone who generally works at the courthouse but she ends up doing shifts in division eight or division nine or the ones that i think you would agree is where the the worst of the conduct alleged here takes place why wouldn't that be sufficient just a matter of degree for that particular plaintiff as to how often or how severe it is for her your hon think the key is in the context of a hostile work environment claim in particular where the severity or pervasiveness has to be quite severe substantial differences in degree are a difference and times i think that's really what it comes down to they're both object of and subjective components it has to actually alter the basic working conditions and all we're really saying is those who work every day with the maximum security male inma pervasiveness than those who may have encountered them and in random over time shift or encountered them in the hallway substantial differences in degree in the context of this sort of claim are a difference that the defense expert here study be incidents that happened in the jail found that roughly seventy five percent of these incidents were committed by those inmates the maximum security male inmates the plaintiff's expert disagreed produced a chart that i think for our purposes shows basically the same thing which is that the epicenter of the problem was the maximum security males and it's important the plaintiffs say at least some incidents happened everywhere but it's important to note that only about a quarter of the class members here ever filed even the st complaint saying that they had been subject to this behavior and so there's this huge variation in experience and ambient harassment is the only way a centrally saying well what they all share is they have all heard of it they all know it that's the only way to put them into this enormous class and that's what we're saying was mr fitzgerald there from the briefing here there is quite a difference in your viewpoint and it's early viewpoint on what remains in the case in terms of ambient harassment what's the status of the proceedings in the district court now are think stayed pending appeal or is discovery ongoing well your honor i think the discovery period had already closed well i think the way that the district court has it set up it still in the case says sort of a merits question what i think that's exactly i think that is an example of what the district court is getting wrong here because i don't think ambient harassment is actually a merits question i mean if if ambient harassment falls out it's not that every single class member uniformly has no claim it's just that they are in a class any more they have different  your honor if i'm wrong about that i will i will update the court perhaps and rebottle i'll make sure of this if so this if it's zero if i understand you correctly you say about twenty five percent of the serious complaints came from the maximum security division seventy five percent your honor seventy five percent me as a percentage of all the claims how great is that it's about it's seventy five percent your honor according to our expert on the charts that show that are in the record the appendix page thirty seven dollars they're competing charts from the defense and the plaintiffs experts and what i'm saying is both of those charts show that the majority of these incidents were committed by this particular subset of inmates you know it's not even a majority of all of the inmates in the jail who reside in these three divisions eighty nine and ten but there's the record reflect what percentage of jail personnel came in contact with that group your honor i don't think precisely does because because common contact is an amorphous thing and it's not totally certain who exactly came into contact with them overall but what we're saying is that it has to be much more than just occasional contact with them to you know order to share a common question about severity or pervasiveness and what's particularly true in this jail context you know severity or pervasiveness must take into account the totality of the circumstances that and should include the fact that this is a jail it should include the fact that the class members here at least the corrections officers have as their job the the  running of the jail and they keeping the inmates in line and so we have here a class of of many corrections officers whose job is to prevent and stop this behavior who are who are making this case about this exact in all of this context what it really comes down to is is the baseline of of what happens in a jail can they show severity or pervasiveness on top of that and what we're saying is they certainly can't do that all eight hundred of them in a class even if they work stay with the female detainees or they worked with the low security male it's a nice who the records show you know incidents like this would happen something like once to or twice a month with low security male detainees it's a vastly different experience in those places than in divisions eighty nine and ten well if your position in opinion setting you could not ever consider him her is  our position is that ambient harassment can't ever be a justification standing alone for class certification that there must be a common but there must be common experiences had by the class  beyond ambient harassment which is really just that they've heard of it and they're aware of what's happening i mean that's that's the extent of ambient harassment it's almost by design this huge umbrella that covers a range of  different actual experiences now there's a nd question here also that should be common in order to support this class but isn't and and that's the question of employer liability you know a case like this employer liability comes down to the reasonableness of the actions by the sheriff's office and there are two major issues with any finding of whether the sheriff's office was reasonable at once  one stroke for this entire class one of them is that the responses of the sheriff's office to this problem are not uniform throughout the facility there are all sorts of things that the sheriff's office did the use the extent that judges and public defenders objected the use of special jumps through it's the covering of windows in the covering of chuckles these things were oriented around the people who actually committed these infractions and the areas where they live but i go to share a lot of c s uniform they may be employed differently depending on what area of the jail you're in but are the policies that underlie this the same are absolutely some uniform policies throughout the jail your honor and i think that's true of any any jail and probably ninety five percent of all workplaces there are some policies and here with those q no malice and i'm sorry to interrupt m to make sure i'm clear policies that go to the issue of addressing this sexual harassment by the inmates yes the policies so the common policies that we're talking about here i think are the policies that prohibited this behavior the policies that required it be reported whenever it happened and the structure of punishments that were doled out for for this behavior those were common throughout the jail but this is the nd part of my point is even these common policies it may not it is not the same common question whether there are reasonable when the problem is vastly greater in some areas than another so for instance if there's a very small fire to use a fire extinguisher to put it out might be reasonable if there's a huge fire using the same fire extinguisher may not be reasonable and the women who work in these different divisions with all these different types of inmates and who work perimeter security in these other places i don't have the same common question don't they're not asking the same question about whether the employers with response was reasonable and that also should have precluded certification here so ultimately it comes down to two questions that need to be common that are not common here across this huge class that's a very or pervasiveness an employer liability and the district court used ambien harassment to cover up these differences i'm just just the general walking around understanding of ambient harassment to cover up these differences and to say that this whole group could be a class and that was there are if there are no further questions i'll reserve the rest of my time that's fine thank you thank you  you for clarifying that if i could pick up on a point is that discovery focusing on ambient harassment i am having a hard time figuring out from the court what part if any of ambient harassment remains in the case it in the courts additional certification ruling the court relied very heavily on the theory of ambient harassment in order to certify the class including for typical of the commonality in predominance and then in the subsequent hearing the court says well i don't really have to decide the classroom it can be certified based on the narrowing of it without an ambient harassment there but the court doesn't go back into typicality predominance and explain how without the theory of ambient harassment so it gets a double question for you to what extent is ambient harassment still in the case and that's why i asked is it being focused on in discovering your expert discovery and to maybe you could start with this are what's the plaintiff's position on whether or not employees who could only prevail under a theory of ambient harassment are still in the case bruce fears no evidence that there are any class members who are only asserting the idea of a let's assume if there were such evidence what's the plaintiff's position on whether or not they would still remain in the case they would your honor and here is why because this case is about the environment as a whole it is one environment that impacts these women and the and it's just done it failure to address that environment overall what we're talking about here is an environment that as a whole alters the terms and conditions of employment for women women go to work each day here and they are locked in with men who sexually attack women they're basically sitting ducks and there's a culture of fear the record shows here that there are over one thousand seven hundred dollars reported incidents of penises in the workplace masturbation in the workplace testicles being exposed in the workplace and jack elation in the workplace gender based sexual slurs violent rape threats that happen and the number in the record is over one thousand seven hundred reported incidents during a portion of the class period here so what we're talking about is this environment as described by th does the and jail environment impact your theory it's one thing to say if you're in a ploy and engaging in this type of conduct and you could be fired but another thing in the jail environment when you're an of the workplace or to the reasonable this of their response under employer liability just shows that there is a common question and both of these issues become improve about whether or not th changes you have objective offensiveness of this work place where penises are exposed and masturbation occurs on a regular basis it would be a common question with common proof about whether the response was reasonable because that there are standards that correctional institutions should employ and there were systemic failures here to take those actions to prevent and stop this epidemic it's epidemic described by the public question in the district court's opinion and you leave early that was the only common question that the judge addressed and it was entirely based on this theory of ambien harassment which lacks a foundation as far as i can tell in the judge's classification order because the judge excluded the expert testimony on which it is based at least on and he never returned to that in the subsequent orders you say that the entire theory of which commonality rests typicality and predominance and and all he did in the subsequent orders is narrow the class members to exclude i want a few categories of job titles that it was later determined that  those people in those positions don't have any contact with the inmates and so the foundation of the opinion the rash now of the judges classification arrests and ambient harassment so you can't just slap a different label on one from the th circuit rogers versus even the isn't that out you know beyond harassment secondhand harassment harassment it's not directed toward the plaintiff or the individual but the environment and in that case there was a latino woman who was bringing a sexual harassment a racial harassment claim because she worked in an opticians office that segregated the patient environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers and title seven is aimed  harassment the environment could become to so polluted that one environment one unified a collective environment creates plant wide and a mass of the when you look at the totality of the circumstances that is one of unlawful employment practices that is a common question so the district court did not air or did not of the use its discretion on this record looking at the volume of mast penises testicles ejaculate and workplace verbal sexual threats in the workplace and finding that there were common questions here other important points remember is that this case is decertified to move my colleagues and i represent over four hundred women currently in the class and we would likely represent moer if the case is decertified and we would have to put on this same advocates of the defendant's systemic failures to address this problem evidence of that comment disciplinary policy and that is that the defendants allowed reports of sexual harassment  to expire so that those who are perpetrating the harassment got off scot free evidence of systemic failures you know you have to have a policy about sexual harassment of inmates sexual harassment by inmates of women and men in testimony by x parts about what the standards are in a correctional institution or  of commonality for just a moment please and turned to the other requirements for class certification in particular to the kelly and predominant in the district court's original certification ruling the court heavily on the ambient theory and almost exclusively on the ambient theory in determining that there was to pick out in predominance for purposes of class certification in the courts can you point to me in the court ind where the court explains in your here on the class surf occasion appeal which we review for abuse of discretion i don't see in the courts indicative ruling in analysis of  particular a lot for commonality but i want to move beyond that because the court did throw in that the basis for employer liability in the policies would be a common question on the in the in ticketed ruling but you are correct that there's a reference back to the original certification order but that original certification order relies really exclusively on the ambient a theory for typicality and predominance which the court subsequently says well i don't have to address whether or not that's in the case so other than the ambient theory in the original certification order what do we have to look at for purposes of typicality and predominan i agree with you that we go back to the original certification proving well the original certification ruling really relied on the ambient theory for those two requirements of rule twenty three which your briefing here is all about why we don't need that theory and why the court didn't rely on that theory for rule twenty three certification so i'm a little confused as to what we're supposed to review for those two requirements of rule twenty three let's talk about predominance because they do want to answer your question about that the district court's decision and it sounds that redundancy would not be an issue in th that into consideration and said that's really not an issue in this particular case whether this was subjectively offensive or unwelcome and that the defendants had point it's you know evidence of we hundred incidents of indecent exposure of peanuts that is a masturbation and in the workplace and those are just the reported incidents we know we need to correct the argument by opposing counsel we know but that's not what the court said in the certification order the court said went it right the court was not persuaded by the defendant's argument that individual issues of damages or severity would prevail harassment makes such class wide resolution and that's when talking about predominance i don't see a separate analysis of predominance or a separate basis for predominate apart from the environment whine in total hostile work environment as a whole that impacts women i don't understand the theory and i understand i'm trying to get at reviewing what the basis of the district court's certification decision given the change in the indicative ruling and you have spent a lot of time or a very maybe the majority of the time you in the defendants going back in the th in briefing about the classification order not relying on ambient theory and it seems to me based on the record that the only thing that the court relied on for t predominance is this theory of ambient harassment because the court did not engage in an analysis separate and apart from its original certification order in its addictive ruling on those two elements so please correct me if i'm missing something or if there's something in the original certification order where the court in addressing typicality in predominance relies on something other than the ambient theory please show me where it is a i used that most of your brief talking about the commonality but not those two other requirements which are necessary for class certification  us but multiple incidents where it becomes the standard operating procedure to work in environment where there is pervasive hostile work   that the plaintiffs the class representatives experience is typical there's certainly evidence in the record that the issue of the environment as a whole through her workplace and encountered a man masturbating we're talking about hundreds all almost sounds it is of reported incidents and i would venture to say there are more than  requirements we should just accept that he read those in to his overall finding and no that's not my position your honor and i don't believe that the judge found that there was in the  environment was a common question and so he did that under rule twenty three a and he also in his original order which the addictive order refers to goes through all the elements rule twenty three and did not year in finding those were met here if i could ask you a nd question with regard to ongoing discovery could you be a little more specific in what what is being individual playing it's oh i don't mean to set that aside but is that your position you need more individual discovery for the issue of damages or for a class certified in the class so you don't believe the judges authorizing further discovery to speak to the class issue they just record is not authorize any additional discovery on a class issue this is simply an merits your honor so it i'm going despite our waiting awaiting our ruling your discovery continues is that is that your all right thank you very much concerning your time has expired mr fitzgerald thank you you're on a just a few points to to to clarify and agree with this early discovery fact discovery is ongoing i think it closes february th it is merits discovery and on oriented around class certification there could be expert discovery after that and i think what that's oriented around from the defense side is  know the the risk that this class will be affirmed and that will be left with ambien harassment as a marriage issue and so we would we would fight an object to that that way i think really though ambien harassment is a is a class certification issue it is it is whether the class sticks together it's not a merits question and there's no question that there is a meaningful problem of inmates sexual misconduct in the jail council talked about  incidents what i'm saying is of the seventy one thousand seven hundred incidents according to plaintiff's own expert one thousand two hundred of them are the maximum security male divisions just three buildings on out of thirty six buildings in this jail she says there may be other incidents that weren't reported but i think it's important to note that it was required by the rules and the administrative code that this sort of incident be reported and it's part of the job of the class members here particularly the corrections officers who make up a lot of the class to make these reports to report these incidents whenever they happened and to move them forward for adjudication and the sheriff's office always did that at a rate of at least about two thirds so what we're talking about is from reported incident to an adjudication of guilty and punishment for that at a rate of no lower than about two thirds throughout this class period moreover even if there is some under reporting of these incidents and the reporting of the incidents is just another wedge in the class here because the civilians who were within this class hundreds of them relied on the sworn officers within this class jamaican put in these reports into the system and so if they're saying one of the key problems here isn't under reporting of this problem it's basically half of the class and blaming the other half of the class for not doing the reports it's just another problem with the certification here now additionally the our argument is not that title seven does not apply in jails we're not arguing that what we're saying is the severity or pervasiveness element takes into account the totality of the circumstances and the baseline environment and the baseline environment is that this jail is where people who have been unable to conform themselves to proper behavior in society are taken particularly the maximum security areas that it's the job of the class members here to address this behavior to prevent it and stop it when it happens and that in that context a showing of severe or pervasive conduct is going to be particularly difficult for everyone but as relevant here it's going to be vastly different between those who worked with the maximum security males and the ones who work say with female detainees or who worked in the courtrooms or who worked in h or who worked in employee drug testing or employee discipline now and the differences between these are oriented around which we which brings me to the narrowing of the class that happened in the nd round of certification here this is a very minimal narrowing of the class i'm essentially who's taken out it's a little confusing because it just refers to an exhibit and the exhibit has refers to a list within what the plaintiffs filed but who's taken out basically is about seventy or eighty auditor it's from the records division and the idea that these seventy or eighty auditors basically office workers buildings away from where the  kept any of the inmates are kept in this jail just shows the overreach of the initial order and the removal of this handful of people is far short of what needs to happen with regard to this class certification well discovery speak to the baseline for the scope i think you i think it it will your honor because the jail the sheriff's office with the class as it's currently certified is going to be stuck trying to make it to a common question or deal with as a common question when it's really not a common question what the baseline is and all these different parts of the jail that are so different you know and so female employees who work in the grand jury areas who may encounter the maximum security males perhaps rarely or on occasion in the hallways should have a different they have a different everyday experience and if one of them so imagine a claim by just one person because what a class is supposed to be as a whole bunch of people with just the same claim who can prove it basically the same way but let's say a woman who works in the grand jury areas and her exposure to the maximum security males is sometimes when she walks in a hallway she sees them when they're waiting for court and she maybe she is witness this behavior on rare occasions maybe she's only heard of it her effort to show that in her workplace there is an alteration of the basic conditions of her employment because it is severe and pervasive behavior around her is going to be a vastly different question than that of a woman who say i was assigned to division nine and work for months or years in a place where this behavior was happening every day and that's our core point on class certification and it's ambien harassments as addressed by the district court on page twenty one  special appendix and its st order re addressed essentially and affirmed on page thirty six dollars thirty seven cents of the special appendix when it goes back to it in the later order that is what is holding this class together there's no basic fact finding where the supervised scrutiny your honor kid may i think it would have to be that such a class would be vastly smaller than the one we have now which is a major concern to us and i think you're right that the arguments we're making are about the scope of the class more so than we're not saying it's impossible that there could be any class but i think if you're looking at what would be what would be more reasonable or closer to what would be common it would be oriented around people who work in the specific divisions perhaps those who filed at least one complaint of being targeted at least the st complaint of being targeted and that class would be many times smaller than the one that we're dealing with today and just as i think totally counterfactual but  let's say hypothetically that it's a response the sheriff instituted a policy that only male officers in the assigned to these three tiers positions sheriff can do that if i know the bona fide occupational qualification is very narrow it's recently been addressed and it's been pointed out in the supreme court in other places how narrow it is and i'm not honor and i think the exact cases that you're thinking of the ones i'm aware of are addressing male guards to protect the female inmates and i think there's a meaningfully different situation when you're talking about protecting female guards again whose job it is to control this behavior by the male inmates if you were going the opposite way and say the goal is protecting female guards for male inmates i think it would be a much more difficult case yes there