IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

DAVID EVANS III, et al., )

)

Plaintiffs, )

) Case No. 20 cv 2453

v. )

) The Honorable Rebecca R. Pallmeyer

THOMAS J. DART, et al., )

)

Defendants. )

PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION FOR CONDITIONAL 

COLLECTIVE ACTION CERTIFICATION PURSUANT TO

THE FAIR LABOR STANDARDS ACT (“FLSA”), 29 U.S.C. § 216(b)

For their reply in further support of their motion for conditional collective action 

certification, Plaintiffs1 state as follows:

I. The Sheriff issued a common set of directives to all potential class members 

requiring them to follow state and local guidelines and to clean and disinfect high 

use items at work and at home.

In their motion for conditional certification, Plaintiffs demonstrated—though competent 

declarations—that they and all other potential claimants share the same job duties and were 

directed to engage in the sanitation activities for which they were not compensated. Plaintiffs 

also cited caselaw finding, under similar circumstances, that conditional certification is 

appropriate. Defendants ignore this evidence and fail to mention, much less distinguish, the 

caselaw cited by Plaintiffs. Defendants also do not dispute, nor can they, that all potential 

claimants share the same job duties and responsibilities. Instead, Defendants’ primary argument 

in opposition to conditional certification is that Plaintiffs cannot point to “any directive to engage 

in extensive ‘sanitization’ activities off duty after they arrived in their homes or before they were 

1 So the Court is aware, Plaintiff Officer Joseph Tinoco sadly passed away from COVID-19 on or about 

January 15, 2022. Counsel is working with the family to address the situation as decisions are made and 

appropriate motions will be filed in due course.

Case: 1:20-cv-02453 Document #: 95 Filed: 01/21/22 Page 1 of 12 PageID #:1368
2

to return for the next shift.” Opp. Brief at 12. But this assertion is belied by the very documents 

submitted by Defendants, which make clear that officers must follow government guidelines

generally and, specifically, to clean and disinfect frequently used items, including at home.

For example, an official CCDOC memorandum dated March 19, 2020 and issued to “[a]ll 

CCDOC Staff” instructed officers to “practice everyday preventive actions to reduce the spread 

of contagious diseases, including ... disinfecting frequently used items or surfaces as much as 

possible.” BURKE GROUP EXH. 1 at Page 005 (Doc. 90-3 at PageID #1312). Frequently used 

items necessarily include an officer’s duty belt, PPE, and other equipment. CCDOC Policy 1605 

similarly instructs correctional officers to “[c]lean and disinfect ... frequently touched 

workplaces surfaces before and after use and areas within a member’s home.” CCDOC Policy 

1605 at Section 1605.3(g) (Doc. 85-3 at PageID #1013). This same directive makes clear that 

officers are responsible for the “proper use and upkeep” of their PPE, which, again, necessarily 

includes proper cleaning and disinfecting in compliance with local and state guidelines. Id. at 

Section 1605.7.2 (Doc. 85-3 at Page ID# 1016). These were not mere suggestions, but official 

directives from the Sheriffs’ Office. See Walsh Declaration at ¶ 4 (referring to these documents 

as “the section of the CCDOC June 2020 policy manual relating to directives on timekeeping 

procedures applicable to Correctional Officers”).

Indeed, throughout this time period, officers were routinely instructed to comply with 

state and local guidelines and to clean and disinfect high use items both at work and at home. 

See, e.g., CURRY GROUP EXH 1 at PAGE 001 (Doc. 90-1 at PageID #1125) (“Clean and 

disinfect frequently touched objects and surfaces using a regular household cleaning spray or 

wipe.”); id. at PAGE 018 (“PRACTICE GOOD HYGEINE: *** Disinfect frequently used items 

and surfaces as much as possible.”); id. at PAGE 041 (Doc. 90-1 at PageID #1165) (“To help 

Case: 1:20-cv-02453 Document #: 95 Filed: 01/21/22 Page 2 of 12 PageID #:1369
3

prevent the spread of COVID-19, it is critical to clean and disinfect frequently touched surfaces 

and objects. Keep yourself, your family and your coworkers healthy by wiping down surfaces at 

both work and at home.”); id. at PAGE 130 (“Clean AND disinfect frequently touched surfaces 

daily.”).

The CDC, in conjunction with the National Institute for Occupational Safety and Health, 

made clear that correctional officers should “[c]lean and disinfect the duty belt and gear (before 

re-use) using a disinfectant spray or wipe, according to the product label.” See NIOSH 

Workplace Solutions: Safe and proper use of disinfectants to reduce viral surface contamination 

in correctional facilities, U.S. Department of Health and Human Services, Centers for Disease 

Control and Prevention, National Institute for Occupational Safety and Health, DHHS (NIOSH) 

Publication No. 2021‒121 at 3, attached as Ex. A. “[B]efore re-use” necessarily means either

after or before the officer’s next shift.

Defendants themselves acknowledged that “the CCSO distributed CDC and Illinois 

pandemic guidance in daily emails and memoranda,” which included guidance to “[c]lean and 

disinfect frequently touched surfaces in homes and personal vehicles.” Opp. Brief at 12. 

Defendants nonetheless insist that these and other guidance they distributed to officers were “not 

directives, orders or policies,” but “general CDC guidance available to the public at large.” Id.

But the Sheriff adopted these guidelines as their official policy:

1605.2 POLICY

Members of the Sheriff’s Office shall adhere to local and state guidelines, and 

applicable policies and procedures, regarding best practices to help protect against 

the spread of COVID-19. The Sheriff’s Office shall send out communications on 

a regular basis (e.g., email, SheriffNet, LMS) to address best safety practices for 

members while in the workplace. In addition, physical signage will be posted 

throughout Sheriff’s Office facilities and workspaces to reinforce best safety 

practices. 

Case: 1:20-cv-02453 Document #: 95 Filed: 01/21/22 Page 3 of 12 PageID #:1370
4

CCDOC Policy 1605 at Section 1605.2 (Doc. 85-3 at Page ID# 1012). In fact, officers were 

subject to disciplinary action for failure to comply with the very guidelines Defendants attempt 

to disavow here. Id. (“Members who fail to adhere to this policy, state and local guidelines, 

Sheriff’s Office policies/ procedures related to COVID-19 and other COVID-19-related 

mandates may be subject to discipline.”). Specific references to the CDC policies were included 

in links under Brad Curry’s signature line in many of the emails included in Defendants’ 

response. See, e.g., CURRY GROUP EXHIBIT 1 at pp. 41, 55, 156. Indeed, the Sheriff 

distributed an entire flyer from the CDC titled “10 ways to manage respiratory symptoms at 

home” that references cleaning all surfaces. CURRY GROUP EXHIBIT 1 at p.156. The NIOSH 

policy attached as Exhibit A, too, specifically provides for cleaning “duty belt and gear.”

Further, Plaintiffs’ declarations are sufficient to meet the “modest factual showing” 

required for conditional certification, without reference specific written policies. See, e.g., Nicks 

v. Koch Meat Co., 265 F. Supp. 3d 841, 851 (N.D. Ill. 2017) (“[S]everal courts in this District 

have conditionally certified a collective action where multiple employees provided affidavits 

declaring that they consistently worked overtime without being compensated, even if the 

plaintiffs did not identify a specific, written policy requiring unpaid overtime work.”). In any 

event, Defendants themselves provided the applicable policies, in particular Section 1605.2, 

referenced above.

In sum, the common theme of these directives is to “clean and disinfect” all “frequently 

used items” at “work and at home.” Officers that fail to do so “may be subject to discipline.” To 

the extent any of these directions derived from government guidelines “available to the public at 

large,” the Sheriff explicitly adopted those guidelines as official policy. More importantly for 

purposes of conditional certification, these directives were uniform and distributed to all 

Case: 1:20-cv-02453 Document #: 95 Filed: 01/21/22 Page 4 of 12 PageID #:1371
5

potential claimants. So even Defendants’ main argument that these instructions did not carry the 

weight of official policy is an issue that is common to all claimants that can and should be 

decided in a single collective proceeding. Conditional certification, therefore, is appropriate.

II. Defendants’ remaining arguments have no merit.

Defendants conclude their brief with a number of perfunctory arguments in opposition to 

conditional certification, none of which have merit. First, Defendant asserts that “[n]umerous 

courts have struck down requests for conditional certification in off-the-clock cases because, by 

their very nature, claims of working off-the-clock require courts to conduct individualized, factintensive analyses.” Opp. Brief at 14. The cases cited by Defendants, however, do not stand for 

this blanket proposition. In fact, they only demonstrate why conditional certification is 

appropriate here.

In Pfaahler v. Consultants for Architects, Inc., No. 99 C 6700, 2000 WL 198888 (N.D. 

Ill. Feb. 8, 2000), certification was denied not because it was an “off-the-clock” claim, but rather 

because the claim turned on whether each class member was an employee or independent 

contractor. Id. at *2 (“In order to determine who is an independent contractor and who is an 

employee, the court would be required to make a fact-intensive, individual determination as to 

the nature of each potential claimant’s employment relationship with [the defendant]....”). 

Unlike here, the plaintiff in Pfaahler made “no showing that other potential claimants performed 

the same type of duties as himself.” Id. If anything, Pfaahler supports conditional certification in 

this case because all potential claimants had the same job duties and there is no dispute that they 

were all employees and not independent contractors. Id. (“A collective action under the FLSA is 

... appropriate where those in the pool of potential claimants perform the same duties as the 

plaintiff.”).

Case: 1:20-cv-02453 Document #: 95 Filed: 01/21/22 Page 5 of 12 PageID #:1372
6

At issue in Forney v. TTX Co., No. CIV.A. 05 C 6257, 2006 WL 1030194 (N.D. Ill. Apr. 

17, 2006) was whether plaintiff’s position was improperly classified as exempt from the

overtime wage provision of FLSA. Id. at *2. But the various job positions in the proposed class 

had different duties and educational requirements, each of which would have to be analyzed on 

an individual basis to determine whether the position was exempt. Id. Reich v. Homier Distrib. 

Co., 362 F. Supp. 2d 1009 (N.D. Ind. 2005) was also an improper classification case, which 

hinged upon the job duties of each individual position. Id. at 1013-14 (noting that courts decline 

“to find potential class members similarly situated where liability depended on an individual 

determination of each employee’s duties”). No such problem is presented here. Indeed, 

Defendants make no argument that the potential claimants in this case have different job duties.

In Saxton v. Title Max of Alabama, Inc., 431 F. Supp. 2d 1185 (N.D. Ala. 2006), the 

plaintiffs offered no “testimony that they personally worked in excess of 40 hours as assistant 

managers for [the employer].” Id. at 1188. Nor did the plaintiffs “point to any ‘single decision, 

policy, or plan’ that allegedly resulted in the proposed opt-in class not receiving overtime wages 

in contravention of FLSA.” Id. Here, on the other hand, Plaintiffs submitted declarations 

attesting to the fact they each worked uncompensated hours, which, as shown above, was at the 

behest of directives from their employer.2

Second, relying on Allen v. City of Chicago, 865 F.3d 936 (7th Cir. 2017), Defendants 

assert that conditional certification should be denied because “an individualized inquiry would 

2 Defendants also cite to Howard v. Cook County Sheriff’s Office, 989 F.3d 587 (7th Cir. 2021). Plaintiffs 

already addressed this decision in its opening brief. See Doc. 66 at 10. Needless to say, the individualized 

nature of the sexual harassment claims at issue in Howard is a far cry from the uniform job duties of the 

potential claimants here and the uniform set of directives they received to clean and disinfect high use 

items at work and at home. Furthermore, the plaintiffs in Howard sought certification under Rule 23 and 

“the FLSA’s ‘similarly-situated requirement has been interpreted as ‘considerably less stringent’ than that 

applied to class actions certified under Rule 23.’” Nehmelman v. Penn Nat. Gaming, Inc., 822 F. Supp. 2d 

745, 755 (N.D. Ill. 2011) (quoting Perez v. Radioshack Corp., 552 F. Supp. 2d 731, 744 (N.D. Ill. 2005)).

Case: 1:20-cv-02453 Document #: 95 Filed: 01/21/22 Page 6 of 12 PageID #:1373
7

need to be made as to whether Defendants should be liable if those employees actually worked 

overtime and failed to follow the proper procedure for being compensated for time worked.” 

Opp. Brief at 15. But this issue only goes to the Sheriff’s knowledge. Based on the directives 

outlined above, the Sheriff either knew or should have known that officers were cleaning and 

disinfecting frequently used items both at work and at home. The Court need not decide that 

issue at this stage, but it is common to all potential claimants and can and should be decided in a 

single collective proceeding. Indeed, even in Allen, the FLSA claim was conditionally certified, 

decertification and summary judgment were denied, and a bench trial was held on, among other 

issues, the employer’s knowledge. Id. at 940. The same should be found here. Id.; see also

Meadows v. NCR Corp., No. 16 CV 6221, 2017 WL 5192009, at *9 (N.D. Ill. Nov. 9, 2017) 

(“Given [plaintiff’s] testimony that [the employer’s] written policies prohibiting off-the-clock 

work were being violated in practice, that territory managers wanted CEs to work off-the-clock, 

and that each of [plaintiff’s] managers have instructed him to work off-the-clock ... there is a 

genuine issue of material fact as to [the employer’s] knowledge.”) (citing Allen, 865 F.3d 939); 

Nehmelman, 822 F. Supp. 2d at 753 (“[T]he existence of such a policy does not conclusively 

establish that the [employer] pays employees in compliance with the FLSA.”); Russell v. Illinois 

Bell Tel. Co., 575 F. Supp. 2d 930, 935 (N.D. Ill. 2008) (“But the mere fact that a company has a 

written overtime policy does not defeat conditional certification when a plaintiff provides 

countervailing evidence of a common policy of not paying for overtime.”).

Lastly, without citation to any supporting authority, Defendants claim that “whether the 

time was de minimis and, therefore, not compensable” is an individual issue that defeats 

conditional certification. Opp. Brief at 15-16. This argument fails for several reasons. “[T]he de 

minimis doctrine allows employers to disregard otherwise compensable work when only a few 

Case: 1:20-cv-02453 Document #: 95 Filed: 01/21/22 Page 7 of 12 PageID #:1374
8

seconds or minutes are in dispute.” Blakes v. Illinois Bell Tel. Co., 77 F. Supp. 3d 776, 786 (N.D. 

Ill. 2015). “[C]ourts have found that ‘as little as ten minutes of working time goes beyond the 

level of de minimis[.]’” Id. at 786-87 (citing Gonzalez v. Farmington Foods, Inc., 296 F.Supp.2d 

912, 928 n. 27 (N.D.Ill.2003)). Here, Plaintiffs presented evidence that the additional cleaning 

and sanitizing activities exceeded 10 minutes per day. Furthermore, in applying the doctrine, 

courts not only consider the amount of time spent on the extra work, but also “the practical 

administrative difficulties of recording the additional time, the regularity with which the 

additional work was performed, and the aggregate amount of compensable time.” Id. These are 

issues that can be resolved on a collective basis. Indeed, Defendants cite no authority for the 

proposition that the de minimis doctrine poses any barrier to conditional certification, nor can 

they. See Nehmelman, 822 F. Supp. 2d at 761 (noting that at the conditional certifications stage, 

“[t]he Court need not resolve these arguments regarding the viability or applicability of the de 

minimis doctrine”).3

Defendants also accuse Plaintiffs of misrepresenting the state of conditions at the 

CCDOC and the Sheriff’s response to the pandemic, including extensive measures the Sheriff 

took to minimize COVID exposure among staff and inmates. See Opp. Brief at 3-6. But Plaintiffs 

in this case are not decrying measures taken by the Sheriff, nor claiming deficiencies in the 

measures. Plaintiffs are alleging that they worked off-the-clock performing decontamination 

work that directly benefitted the Sheriff and that the Sheriff required. Defendants’ lengthy 

treatment of the Sheriff’s efforts to combat and minimize the pandemic in their response brief is 

3 Defendants also claim that their “affirmative defenses would also require individualized, fact-intensive 

analyses,” such as the issue of “not following proper timekeeping procedures along with Defendants’ 

knowledge (or lack thereof) of the at-home off duty activities.” Opp. Brief at 16. As noted above, 

however, the issue of whether the Sheriff knew or should have known that officers were engaging in at 

home cleaning and sanitation efforts is an issue common to all claimants.

Case: 1:20-cv-02453 Document #: 95 Filed: 01/21/22 Page 8 of 12 PageID #:1375
9

wholly irrelevant to the issue of Plaintiffs and similarly-situated officers receiving pay for the 

work claimed in the complaint in this case. 

In conclusion, none of the arguments advanced by Defendants defeat conditional 

certification here.

III. The position of Investigators II should be included in the proposed class.

Plaintiffs presented sufficient evidence that they perform the same job and are subjected 

to the same orders, rules, and policies as Correctional Officers. See Servant and Tinoco 

Declarations at ¶ 3. They perform work in Division 5 on a daily basis, as well as out of an 

additional facility on Rockwell street, and are subject to the exact same rules as Plaintiffs.

Defendants’ present no evidence whatsoever showing that they are subject to different rules.

Plaintiffs have presented enough evidence to satisfy for a modest factual showing for conditional 

certification of a class that includes the position of Investigator II.

IV. Replies to Defendants’ notice objections.

Plaintiffs would agree to the fourth, fifth, sixth, seventh proposed changes to the Notice 

that are suggested by the Defendants. Plaintiffs would also agree to strike the word 

“decontaminating” and rephrasing the notice to state “washing or sanitizing” in that section, 

which responds to the third objection. 

Plaintiffs would agree to move the class start date to March 9, 2020, which is the date 

pled in the FLSA and IWPCA counts of the Second Amended Complaint and the proposed 

notice should align with that date. See Doc. 16 at ¶¶ 62-71. That is also the date of Governor 

Pritzker’s disaster declaration, which officers were required to comply with as a matter of 

General Order. See Doc. 16 at ¶ 27. Order 1605 requires them to comply with the disaster 

Case: 1:20-cv-02453 Document #: 95 Filed: 01/21/22 Page 9 of 12 PageID #:1376
10

declaration, so that date should be the start date of the class. See CCDOC Policy 1605 at Section 

1605.2 (Doc. 85-3 at Page ID# 1012).

For the reasons stated above, Plaintiffs do not agree that Investigator II’s should be 

removed from the Notice. Plaintiffs do not agree with Defendants’ final objection, which would 

require that the opt-in form should be rewritten to require an “attestation,” as an attestation 

should not be necessary at the conditional certification stage and Defendants’ cite no case stating 

that same is required. Attestations, if necessary, could come at the full certification stage, 

summary judgment, and/or trial.

V. Conclusion.

Plaintiffs are sympathetic to the unique challenges that COVID-19 poses to the CCDOC. 

They live through those challenges every day. Those challenges, however, do not allow the 

Sheriff to skirt the FLSA laws. Plaintiffs, and others just like them, went to work every day 

during the pandemic, putting themselves and their loved ones at risk. They were directed to and 

did engage in decontamination activities for the benefit of their employer and to prevent the 

spread of COVID-19 at the CCDOC. Under the FLSA, they should be paid for those activities. 

Because Plaintiffs and other officers are similarly situated in this regard, conditional certification 

should be granted.

Electronically filed: January 21, 2022

Respectfully submitted,

By: /s/ Jacie Zolna

/s/ Cass T. Casper

/s/ Gia Scatchell

/s/ Richard Linden

/s/ Peter Bustamante

__________________________________

Plaintiffs’ Attorneys

Case: 1:20-cv-02453 Document #: 95 Filed: 01/21/22 Page 10 of 12 PageID #:1377
11

Jacie C. Zolna, Esq.

Myron M. Cherry & Associates, LLC

30 North LaSalle Street, Suite 2300

Chicago, Illinois 60602

P: (312) 372-2100

F: (312) 853-0279

E: jzolna@cherry-law.com

Cass T. Casper, Esq.

DISPARTI LAW GROUP, P.A. (#57548)

121 West Wacker Drive, Suite 2300

Chicago, Illinois 60601

P: (312) 351-2478

E: ccasper@dispartilaw.com

Gia Scatchell, Esq.

DISPARTI LAW GROUP, P.A. (#57548)

121 West Wacker Drive, Suite 2300

Chicago, Illinois 60601

P: (312) 506-5511 ext. 330

E: gia@dispartilaw.com

Richard Linden, Esq.

17 North State Street, Suite 1550

Chicago, Illinois 60602

P: (312) 590-0211

E: lindenlaw@gmail.com

Peter V. Bustamante

17 North State Street, Suite 1550

Chicago, Illinois 60602

P: (312) 590-0211

E: pvbust@bustamantelaw.com

Case: 1:20-cv-02453 Document #: 95 Filed: 01/21/22 Page 11 of 12 PageID #:1378
CERTIFICATE OF SERVICE

The undersigned attorney hereby certifies that on January 21, 2022, he caused to be 

served the foregoing document on all counsel of record via this Court’s CM/ECF filing system, 

and that all such counsels are registered e-filers.

/s/ Jacie Zolna

____________________________________

Case: 1:20-cv-02453 Document #: 95 Filed: 01/21/22 Page 12 of 12 PageID #:1379