UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DAVID EVANS III, RASHID MUHAMMAD, ) 

MONTA SERVANT, FELISHA PARNELL, ) 

DWIGHT ANDERSON, JOSEPH TINOCCO ) 

and FRANK DONIS, ) 

 ) 

Plaintiffs, ) 

 ) No. 20 C 2453

v. ) 

 ) Judge Rebecca R. Pallmeyer

THOMAS J. DART, Sheriff of Cook County, ) 

COUNTY OF COOK, a unit of local ) 

government as join employer for FLSA ) 

purposes and as indemnitor, ) 

 ) 

Defendants. ) 

MEMORANDUM OPINION AND ORDER

Plaintiffs David Evans III, Rashid Muhammad, Monta Servant, Felisha Parnell, Dwight 

Anderson, Joseph Tinoco, and Frank Donis worked as Correctional Officers in the Cook County 

Jail. Plaintiffs allege that, during the heart of the COVID-19 pandemic, Defendants (Cook County 

and Thomas J. Dart, the Sheriff of Cook County) violated the Fair Labor Standards Act (“FLSA”), 

29 U.S.C. § 201 et seq., by failing to pay them and other similarly-situated employees for overtime 

work. Specifically, Plaintiffs allege that they spent significant time both before and after their 

assigned shifts, undertaking mandatory sanitation and de-contamination activities. For a second 

time, Plaintiffs have moved for conditional class certification and court-authorized notice under 

FLSA. And for the second time, as explained below, the court denies the motion because 

Plaintiffs have not identified a common policy requiring workers in the proposed class to engage 

in those activities as a condition of their employment. 

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BACKGROUND1

The Cook County Department of Corrections (“CCDOC”) was, at one point, the epicenter 

of the nation’s fight against the spread of COVID-19. In April 2020, the jail was “the nation’s 

largest-known source of coronavirus infections”; there were hundreds of known infections despite

only minimal testing. See https://www.nytimes.com/2020/04/08/us/coronavirus-cook-county-jailchicago.html (last visited September 15, 2023). Some of the correctional officers working in the 

jail referred to it as “Wuhan Junior”—an apparent reference to the Chinese city where COVID-19 

is thought to have originated. (See Deposition of David Evans III (“Evans Dep”) [115-4] at 203:2–

21 (explaining that the Cook County jail “was the number one hotspot in the United States”).) In 

response, CCDOC took several precautionary actions, including required masking, enhanced

cleaning, and improved ventilation within the jail. (See Deposition of Peter Kramer [115-10] at 

181:12–24.) 

I. Plaintiffs’ Allegations and Class Definition

In addition to on-premises interventions to fight COVID-19, Plaintiffs allege that CCDOC 

also required correctional officers to “engag[e] in decontamination/sanitation activities”2 before or 

after their shifts within the CCDOC, “including washing and sanitizing their uniforms, sanitizing 

their persons, sanitizing and maintaining personal protective equipment (‘PPE’), and showering.” 

(See Second Amended Complaint (“SAC”) [16] ¶ 20.) Plaintiffs allege these activities absorbed

“approximately 20 to 30 minutes at the beginning and/or end of each shift” (id. ¶¶ 45-51), and that 

Defendants have never paid Plaintiffs or other correctional officers for these efforts. (Id. ¶ 44.) 

According to Plaintiffs, these activities were undertaken in addition to full workdays, often “up to 

1

 Because this court has already detailed Plaintiffs’ allegations in two prior written 

orders, it summarizes only the high-level allegations again here. See Evans v. Dart, No. 20 C 

2453, 2021 WL 2329372 (N.D. Ill. June 8, 2021); Evans v. Dart, No. 20 C 2453, 2022 WL 823883 

(N.D. Ill. March 18, 2022). 

2

 For ease of reference, the court will refer to all of the alleged overtime activities as 

“decontamination” activities.

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sixteen (16) hours straight inside the CCDOC.” (Id. ¶¶ 32-33.) Plaintiffs claim that Defendants’

failure to compensate them for those required activities violates the FLSA. (Id. ¶¶ 62, 71.) 

Each of the named Plaintiffs worked as correctional officers in various parts of CCDOC. 

See Evans v. Dart, No. 2020 C 2453, 2022 WL 823883, at *2 (N.D. Ill. Mar. 18, 2022) (hereinafter 

“Initial Class Denial”) (detailing declarations from named Plaintiffs.) Plaintiffs propose to represent 

the following class: 

All persons who worked, for any portion of time, as a Cook County Correctional 

Officer (CO1) at the Cook County Department of Corrections between January 27, 

2020 and June 11, 2021 and who engaged in washing, sanitizing, or 

decontaminating activities as to their person, uniform, duty belt, personal protective 

equipment, or vehicles used in commuting to and from work contiguously after their 

shifts, and who were not paid for engaging in such activities. 

(Pls.’ Renewed Mot. to Certify Class (hereinafter “Mot.”) [115] at 2.)3 Citing a CCDOC response 

to a Freedom of Information Act Request, Plaintiffs estimate that some 3000 officers fit that class 

definition. (See id. at 1–2.) 

II. Deposition Testimony

In addition to the declarations attached to Plaintiffs’ initial motion, see Initial Class Denial, 

2022 WL 823883, at *3 (summarizing those declarations), Plaintiffs attach the transcripts of nine 

depositions totaling more than a thousand pages in support of their renewed motion.4

 (See SAC 

Exs. 4–12.) 

In those depositions, each of the named Plaintiffs testified that they undertook actions to 

decontaminate their persons or their belongings before or after working a shift at CCDOC during 

the COVID-19 pandemic—activities that Plaintiffs did not undertake prior to that time. For 

3 Plaintiffs’ initial class proposal included CCDOC employees who held the role of 

“Investigator II.” (See Pls.’ Initial Mot. to Certify Class [66] at 3.) Plaintiffs appear to have 

withdrawn those employees from the proposed class.

4 As explained below, the court is denying Plaintiffs’ motion because they cannot 

identify a common policy requiring the decontamination activities, meaning that the details of each 

Plaintiff’s efforts are less relevant. Accordingly, this summary provides only a general picture of 

Plaintiffs’ testimony and is not intended to be exhaustive.

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example, Mr. Evans testified that, when he got home from the jail, he “would generally try to 

decontaminate [his] vehicle” and then would decontaminate “everything on [his] duty belt”—

including his flashlight, handcuffs, pepper spray, magazines, and radio holder; would 

decontaminate his shoes and bullet proof vest; and would bag his uniforms, in order to take them 

to the dry cleaner “every two to three days.” (Evans Dep. at 82:13–84:1.) Mr. Anderson had a 

similar routine. He testified that he would use a Lysol wipe on his duty belt—cleaning his 

handcuffs, for example—before taking off his clothes and showering right away. (Deposition of 

Dwight Anderson (“Anderson Dep.”) [115-5] at 47:1–12.) He also ran Lysol wipes over the touch 

points in his car, like the seat and steering wheel. (Id. at 51:8–12.) Ms. Parnell undertook the 

same general routine, cleaning her vehicle (including vacuuming seats) and washing her uniform 

more often than before the pandemic. (Deposition of Felisha Parnell (“Parnell Dep.” [116-6] at 

59:22–61:4, 89:20–90:12.) Mr. Donis similarly decontaminated his vehicle, his belongings in his 

bookbag, and his uniform, in addition to vigorously showering and sanitizing his entire bathroom. 

(Deposition of Frank Donis (“Donis Dep.”) [115-7] at 114:23–118:9, 135:6–136:5, 148:19–151:1.) 

Finally, Mr. Servant testified that he wiped down touchpoints in his car including the steering 

wheel, the door handles, and the gear shift; immediately washed his uniform and disinfected his 

duty belt; and spent significantly more time showering. (Deposition of Monta Servant (“Servant 

Dep.”) [115-8] at 66:24–67:15, 74:3–75:13, 78:23–79:21, 81:3–82:3.) In sum, while each Plaintiff 

described slightly different activities that took slightly different amounts of time, they form a 

consistent narrative of enhanced decontamination activities, significantly exceeding what they did 

prior to COVID.

Plaintiffs acknowledged, however, that there was no explicit written policy requiring them 

to undertake these off-site activities. Mr. Evans testified that “the department” and various 

“supervisors” instructed him to decontaminate during roll call meetings where they would read 

and disseminate general advice from the CDC. (Evans Dep. at 103:3–105:1.) He also testified 

that he was instructed at roll call “to make sure that we weren’t bringing anything back or taking 

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anything out” of the jail. (Id. at 109:9–22.) Mr. Anderson stated that no one told him he should 

dry clean his uniforms after every shift or shampoo his hair every day, but that he learned to do 

those things at roll call meetings. (Anderson Dep. at 53:15–19, 63:3–64:7.) He further testified 

that he was never “specifically” instructed what to do off-duty by someone from the sheriff’s office, 

and there was no written directive to perform off-duty “cleaning activities, but Anderson did so out 

of “common sense.” (Id. at 64:12–-65:10; 91:5–21). Ms. Parnell also did not recall any written 

directives about hygiene or PPE. (Parnell Dep. at 131:18–132:4.) Mr. Donis admitted that no 

one told him to wash his uniform twice, nor was he given specific instructions about off-duty tasks, 

though he recalls information about COVID prevention being passed out and discussed at roll 

call. (Donis Dep. at 195:5–196:6, 259:11–18, 300:8–302:18.) But Mr. Donis conceded that those 

roll call meetings did not include instructions about decontamination outside of working hours. 

(311:3–312:3.) Finally, Mr. Servant testified that he was given a “suggestion” to wash his uniform 

separately from his other clothes, but he did not remember who made this suggestion and 

admitted that it was not mandated. (Servant Dep. at 77:8–78:11.) Mr. Servant said he was 

explicitly instructed to decontaminate at roll call meetings, including at home, but did not 

remember who gave the instruction and did not recall any direction on this issue in writing. (Id. 

119:18–120:24, 128:4–19.)

Plaintiffs did not report their off-duty decontamination activities to their supervisors, nor 

were they asked about those efforts or disciplined for failing to decontaminate properly. (See 

Evans Dep. at 155:9–12 (“Did I tell anybody I was cleaning my equipment? Not that I recall.”),

216:11-17 (“I don’t recall” anyone checking sanitation), 217:6–218:7 (testifying that supervisors 

never asked when he last cleaned his duty belt); Anderson Dep. at 79:18–80:10 (testifying that 

he did not recall “any correctional officer being disciplined” for failing to perform “any of the 

activities that we talked about”); Parnell Dep. at 102:6–14 (testifying that she had no recollection 

of any officer being disciplined for not cleaning their car while off duty); Donis Dep. at 228:18–

229:8 (testifying that he not aware of any officer disciplined for failing to perform activities for 

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which he is requesting compensation in this lawsuit), 301:24–302:6 (testifying that he did not hear 

any discussion at roll call “about cleanup activities” that officers were performing “before or after” 

their shifts).)

Lastly, no named Plaintiff reported monitoring the time consumed by their daily 

decontamination activities, submitting any decontamination overtime, or asking their supervisors 

about decontamination overtime, although many testified that there was no clear way to submit 

an overtime claim for these activities in the CCDOC “Workforce” record system. (See Evans Dep. 

at 170:8–172:9 (testifying that he never asked for overtime authorization or requested to be paid 

for at-home activities); Anderson Dep. at 80:24–81:7 (testifying that he never sought overtime 

approval for decontamination activities); Parnell Dep. at 99:11–16 (testifying that she did not time 

her activities), 102:15–24 (testifying that she has never asked to be paid for decontamination 

time); Donis Dep. at 215:10–20 (testifying that he never timed the activities for which he is asking 

to be paid), 236:2–9 (testifying that he never asked to be paid); Servant Dep. at 142:2–15 

(testifying that he did not submit overtime requests and supervisors did not witness him 

performing decontamination activities).)

III. Communicable Diseases Policy

In their briefing, Plaintiffs focus a significant amount of argument on the CCDOC’s written

policy on “Communicable Diseases.” (See Communicable Diseases Policy [115-13].) That policy 

describes a “communicable disease” as one “caused by microorganisms that are present in and 

transmissible through human blood, bodily fluid, tissue, or by breathing or coughing.” (Id. at 1.) 

It defines an “exposure” as, among other things, when an individual “comes into contact with blood 

or other potentially infectious materials” or “is exposed to a person who has a disease that can be 

passed through the air by talking, sneezing or coughing (e.g., tuberculosis), or the individual is in 

an area that was occupied by such a person.” (Id.) It states that the Sherriff’s Office is “committed 

to providing a safe work environment for its members.” (Id.) The policy provides that officers are 

“expected to use good judgment and follow training and procedures related to mitigating the risks 

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associated with communicable disease,” including, among other things, by “[u]sing a face mask 

or shield if it is reasonable to anticipate an exposure to an airborne transmissible disease” and 

“[d]econtaminating non-disposable equipment (e.g., flashlight, control devices, clothing and 

portable radio) as soon as possible if the equipment is a potential source of exposure.” (Id. at 2.) 

It requires officers who are exposed to disease to “[b]egin decontamination procedures 

immediately,” obtain medical attention if needed, and “notify a supervisor as soon as practical.” 

(Id. at 3.) It also provides procedures for supervisors to “investigate every exposure or suspected 

exposure[.]” (Id.)

Bradley Curry, the chief of staff at the Cook County Sheriff’s Office, testified that officers 

were expected to follow all CCDOC policies, including the Communicable Diseases Policy. 

(Deposition of Bradley Curry (“Curry Dep.”) [115-11] at 39:4–12.) But Curry testified that, 

generally, policies about officer conduct “were expectations that were expected while they’re at 

work.” (Id. at 144:24–145:13.) For example, although the CCDOC advised officers to avoid public 

transit and taxis during the pandemic, Curry testified that “we can’t tell them what to do when 

they’re off work,” and instead communicated these expectations in an effort “to keep people safe.” 

(Id. at 95:18–96:7.) So far as the court can tell, none of the officers cited the Communicable 

Diseases Policy in their depositions as a reason for conducting decontamination activities outside 

of their shift. Nor did any officer otherwise mention the policy. In supplemental declarations

attached to their reply brief, Mr. Evans and Mr. Donis claim that they were “specifically aware of 

the Communicable Disease Policy” and interpreted that policy to require the decontamination 

activities they undertook. (See Supplemental Declarations [127-1].) 

IV. Procedural History

Prior to fact discovery, Plaintiffs moved for conditional class certification based on the 

allegations of their Second Amended Complaint and declarations submitted by the named 

Plaintiffs. Defendants also submitted several declarations. See Initial Class Denial, 2022 WL 

823883, at *2–4 (summarizing evidence). At the time of Plaintiffs’ initial motion, they primarily 

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cited emails and memoranda from CCDOC officials about COVID prevention and characterized 

those documents as “directives” to engage in off-duty decontamination work. Id. at *5. The court 

rejected that argument, reasoning that even if those communications “made the health 

suggestions . . . a requirement for employees,” none of the so-called directives required officers 

to undertake the specific actions they alleged, like “washing, sanitizing, or decontaminating 

activities as to their person, uniform, duty belt, personal protective equipment, or vehicles . . .

contiguously before or contiguously after their shifts.” Id. at *6. Likewise, the court held that there 

was no “de facto policy” at issue—for example, Plaintiffs did not “allege that CCSO supervisors 

checked to see if officers had sanitized their uniforms and gear, or allege that supervisors required 

officers to certify that they had extensively showered.” Id. at *7. In short, because Plaintiffs did 

not “show[] that they are ‘victims of a common policy or plan that violated the law,’” the court 

declined to certify a class. Id. at *8 (internal citation omitted). 

DISCUSSION

Under the FLSA, covered employers must pay covered employees a minimum wage for 

all hours worked and “one and one-half times the regular rate” of pay for all hours worked over 

forty in one workweek. 29 U.S.C. §§ 206, 207. Activities that “are preliminary to or postliminary 

to” an employee’s “principal activity or activities” are generally not compensable, 29 U.S.C. § 

254(a), but that changes if the activities at issue are “an integral and indispensable part of the 

principal activity of the employment.” Steiner v. Mitchell, 350 U.S. 247, 248, 256 (1956) (holding 

that changing clothes and showering were compensable activities for plant workers who made 

“extensive use of dangerously caustic and toxic materials”); cf. Chagoya v. City of Chicago, 992 

F.3d 607, 623 (7th Cir. 2021) (holding that the time it takes SWAT operators to transport, unload, 

and safely store work equipment in their homes was “not integral and indispensable, but rather 

preliminary and postliminary,” and thus not compensable). The Supreme Court in Steiner noted 

that “changing clothes and showering under normal conditions” is generally not compensable. Id. 

at 249; see also 29 C.F.R. § 790.7(g) (“[o]ther types of activities which . . . would be considered 

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‘preliminary’ or ‘postliminary’ activities, include . . . changing clothes, washing up or showering.”); 

Pirant v. U.S. Postal Serv., 542 F.3d 202, 208-09 (7th Cir. 2008) (holding that a postal worker’s 

time spent putting on and removing her gloves, shoes, and work shirt was not compensable under 

the FLSA). But Plaintiffs here contend that their sanitization activities—which they claim 

Defendants required—were not undertaken under the “normal conditions” noted in Steiner, and 

thus should be compensable under the FLSA. (SAC ¶¶ 22-23.)

The FLSA authorizes a collective action on behalf of employees themselves and “other 

employees similarly situated” against an employer who has failed to pay for hours worked. 29 

U.S.C. § 216(b); see Alvarez v. City of Chicago, 605 F.3d 445, 448 (7th Cir. 2010). Collective 

actions are similar to class actions under Federal Rule of Civil Procedure 23, though members of 

an FLSA collective action “must opt into the suit to be bound by the judgment or settlement in it, 

while in a class action governed by Rule 23(b)(3) (a class action seeking damages) they must opt 

out not to be bound.” Espenscheid v. DirectSat USA, LLC, 705 F.3d 770, 771 (7th Cir. 2013). In 

light of that requirement, district courts can grant plaintiffs permission “to send notice to potential 

class members, prior to discovery, to advise them of the lawsuit’s existence, their right to join the 

suit and how to do so.” Shiner v. Select Comfort Corp., No 09 C 2630, 2009 WL 4884166, at *2 

(N.D. Ill. Dec. 9, 2009). 

“Neither Congress nor the Seventh Circuit has specified the procedure courts should use 

to decide FLSA certification and notice issues, but collective FLSA actions in this district generally 

proceed under a two-step process.” Nicks v. Koch Meat Co., 265 F. Supp. 3d 841, 848 (N.D. Ill. 

2017) (internal quotation marks omitted). At step one, the conditional certification stage, the court 

“determine[s] the size and contour of the group of employees who may become collective 

members and whether these potential members are ‘similarly situated.’” Id. (citing 7B Charles A. 

Wright et al., Federal Practice & Procedure § 1807). The plaintiffs must show that the other 

employees are “similarly situated” by making a “modest factual showing sufficient to demonstrate 

that they and [the other] potential plaintiffs together were victims of a common policy or plan that 

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violated the law.” Grosscup v. KPW Mgmt., Inc., 261 F. Supp. 3d 867, 870 (N.D. Ill. 2017). At 

this first step, “the court does not resolve factual disputes or decide substantive issues going to 

the merits.” Larsen v. Clearchoice Mobility, Inc., No. 11 C 1701, 2011 WL 3047484, at *1 (N.D. 

Ill. July 25, 2011). Still, “conditional certification is not automatic.” Briggs v. PNC Fin. Servs. Grp., 

Inc., No. 15 C 10447, 2016 WL 1043429, at *2 (N.D. Ill. Mar. 16, 2016). Plaintiffs must provide 

factual support for their allegations “in the form of affidavits, declarations, deposition testimony, 

or other documents.” Anyere v. Wells Fargo Co., No. 09 C 2769, 2010 WL 1542180, at *2 (N.D. 

Ill. Apr. 12, 2010).

At step two, which typically takes place after initial certification and after discovery has 

been completed, plaintiffs’ burden is no longer only a “modest showing” of similarity. See Molina 

v. First Line Sols. LLC, 566 F. Supp. 2d 770, 786 (N.D. Ill. 2007). Instead, step two requires the 

court to “engage[] in a more stringent review of whether there is sufficient similarity between the 

named and opt-in plaintiffs to allow the matter to proceed to trial as a collective action.” Hundt v. 

DirectSat USA, LLC, 294 F.R.D. 101, 104 (N.D. Ill. 2013).

The parties disagree on what standard applies. Plaintiffs cite the first step standard as 

applicable to this case, presumably because no class has been conditionally certified. (See Mot. 

at 5.) Defendants, for their part, assert that the step two standard applies here because fact 

discovery has closed. (Defs.’ Opp. to Cert. (“Opp.”) [124] at 3.) The court tends to agree with 

Defendants given the advanced posture of this case, but because Plaintiffs have not met even 

the step one standard, it need not resolve the issue definitively. 

Accordingly, the court will ask only whether Plaintiffs can make a “modest factual showing” 

that they were victims of a “common policy or plan” that violated the FLSA. In their motion, 

Plaintiffs argue they have done so in three ways. First, they cite the Communicable Diseases 

Policy. Second, Plaintiffs argue that the CCSO “verbally required” the decontamination activities 

at issue, specifically through roll call instructions. Third, Plaintiffs claim that, even if the court finds 

no explicit written or oral requirement to decontaminate, they are entitled to prevail so long as 

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CCDOC officials were “actually or constructively aware” that Plaintiffs were undertaking those 

decontamination activities. The court addresses each argument in turn.

I. Communicable Diseases Policy

Plaintiffs’ only purported written evidence of a common policy or plan is the Communicable 

Disease Policy. That policy arguably covers COVID-19 (a “disease that can be passed through 

the air by talking, sneezing or coughing”) and requires officers to decontaminate the “nondisposable equipment,” an activity that makes up some of Plaintiffs’ overtime claims. (See 

Communicable Disease Policy at 1–2.) Read broadly, perhaps the policy could also cover 

washing one’s own person and uniform. (See id. at 2–3 (requiring decontamination of clothing 

that came into contact with potentially infectious materials and requiring that decontamination of 

hands and skin begin immediately after exposure).) In short, the court agrees with Plaintiffs that 

the policy could reasonably encompass “the kinds of sanitization activities” at issue in this case. 

(Mot. at 8.)

But there are two problems with the theory that the policy required the decontamination 

activities at issue here. First, Plaintiffs argue that “[n]owhere does this policy delimit its obligations 

to only ‘on duty’ or ‘on the compound’” activities (Mot. at 9), but the court is not entirely convinced. 

True, the policy is not explicitly limited, but its context strongly suggests it applies to on-premises 

activities. The policy’s stated aim is to “provid[e] a safe work environment.” (Communicable 

Disease Policy at 1.) And it suggests that after an exposure, officers should “[b]egin 

decontamination procedures immediately.” (Id. at 3.) It is hard to imagine how a pre-shift shower 

or laundering one’s uniform after a drive home is consistent with that language. As another 

example, the policy requires officers to use a “face mask” if exposed to an airborne disease like 

COVID. (Id. at 2.) But CCDOC officials stated in writing that, while they were requiring masks on 

CCDOC premises, they “cannot control what [officers] do when [they] are not on duty.” See Initial 

Class Denial, 2022 WL 823883, at *4. Similarly, though the policy requires decontamination onsite, it is hard to read it as requiring those activities at home. The policy appears to be aimed at 

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acute exposures to a known contaminant rather than exposure to air or surfaces that may or may 

not be contaminated with the COVID-19 virus. Indeed, it is hard to imagine that the policy 

envisions an officer “obtain[ing] medical attention” for or “notify[ing] a supervisor” about the kind 

of general exposure to COVID-19 in the Cook County Jail that officers suffered every day during 

the pandemic. (Id. at 3.)

But even if the court construed the policy as applying to off-site decontamination work, the 

second—and in the court’s view, insurmountable—problem for Plaintiffs is that none of them 

seemed to know about the policy at the time they were undertaking those activities. As 

Defendants aptly put it, there is no evidence “showing that any Plaintiff was aware of the CDP or 

recalled its existence after the pandemic started, much less that they interpreted this policy to 

require them to perform the activities at issue while at home.” (Opp. at 5.) Two of the named 

Plaintiffs thereafter submitted declarations that they were, in fact, aware of the policy and that 

they interpreted it was requiring them to decontaminate at home. (See Supplemental 

Declarations.) But those declarations are too convenient to pass muster. Neither Plaintiff so 

much as mentioned the policy in their deposition—despite being asked to explain why they 

believed they were required to decontaminate—nor has the policy been cited in any litigation 

document prior to the instant motion. (See Evans Dep. at 104:2–105:1 (testifying that he was told 

verbally to clean his gear and that supervisors would “disseminate the memorandums in roll call 

according to whatever the CDC was and their policies”), id. at 105:8–16 (responding to the 

question: “Where is this mandate? Where is that piece of paper that has this mandate?” by 

referencing roll call conversations); Donis Dep. at 259:11–19 (“Q. Did anyone specifically instruct 

you as to what activities you needed to perform off duty? . . . . A. No.”).) Indeed, as Defendants 

note, although discovery revealed that CCDOC was, at times, sending out daily COVID-related 

messages, Plaintiffs have identified no communications referencing the policy, much less a 

communication which stated that the policy applied to off-premises decontamination activities. 

(Opp. at 5–6.)

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Plaintiffs respond that “the policy on its face states officers are expected to follow it,” 

meaning that officers must have known about it. (See Pls.’ Reply in Supp. of Mot. for Class Cert. 

[127] (“Reply”) at 4 (“It is non-sensical for the Sheriff to claim there is no evidence officers are 

aware of the CDP when the policy on its face imposes mandatory requirements on officers that 

they must follow.”).) The court does not follow Plaintiffs’ logic. For Plaintiffs here to be “victims 

of a common policy or plan that violated the law,” Grosscup, 261 F. Supp. 3d at 870, they must 

have been working without compensation because of that policy. Common sense dictates that 

one cannot be victimized by a policy that is on the books but is not known or discussed or 

enforced. The written policy, without any credible evidence that it was knowingly followed, cannot 

be the basis for class certification under the FLSA, conditional or otherwise.

II. Roll Call Instructions

Plaintiffs next argue that “they were all performing the kinds of post-shift decontamination 

activities” described in the complaint. (Mot. at 10.) The court accepts for purposes of this motion 

that Plaintiffs have described similar enough pre- and post-shift decontamination routines to 

qualify as “similarly situated” under the FLSA. See Background Section II, supra (summarizing 

testimony about the named Plaintiffs’ decontamination routines); see also Mot. at 10–14 

(summarizing testimony in greater detail). But that is not the only issue. The question is whether 

Plaintiffs’ testimony establishes that these decontamination activities were required. See Initial 

Class Denial, 2022 WL 823883, at *8 (noting that the court will apply a lenient policy in evaluating 

“whether Plaintiffs’ declarations suffice to show they are similarly situated to their proposed class,” 

but reasoning that whether Plaintiffs were “subject to a common policy to engage in pre- and postwork sanitization activities” is a separate question). In the court’s view, Plaintiffs’ testimony about 

roll call instructions does not establish a “common policy or plan” requiring Plaintiffs to work 

uncompensated overtime.

Mr. Evans’s testimony comes the closest—he testified that several specific supervisors 

instructed officers to “clean our personal items” at roll call. (Evans Dep. at 103:3–104:13.) But 

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upon further questioning, he admitted that the information distributed at roll call was “whatever 

the CDC was [advising] and their policies.” (Id. at 104:14–21.) Though Evans said COVID was 

talked about at “every roll call, every conversation” because the jail was “Wuhan Junior” (id. at 

104:8–16), his testimony does not establish that supervisors required Evans and other officers to 

perform decontamination activities outside the CCDOC premises. Other officers testified about 

the lack of explicit instructions at roll call meetings. As described above, Mr. Anderson admitted 

that he was never instructed to perform decontamination activities while off-duty, as did Mr. Donis. 

(Anderson Dep. at 64:12–-65:10; Donis Dep. at 311:3–312:3). 

In their reply, Plaintiffs cite Mr. Evans’s testimony that “every shift commander” instructed 

officers to “make sure that we weren’t bringing anything back or taking anything out every day.” 

(See Reply at 6–7 (citing Evans Dep. at 109:9–17).) That is not enough. The court is unable to 

infer that a command to make sure officers are not “bringing anything back or taking anything out 

every day” can be interpreted as a requirement that officers to clean car door handles, wash 

uniforms, and wipe down bullet proof vests every single day for thirty minutes. That is especially 

true given the roll call announcement about mandatory face masks—quoted by Plaintiffs in its 

entirety—which reminded officers that face masks were required on-site and encouraged them to 

“continue to practice social distancing and wear face masks when you are off duty” even though 

CCDOC “cannot control what you do when you are not on duty.” (See Reply at 7 (quoting [85-

2].) It would be illogical to assume that CCDOC officials could not enforce off-site masking 

requirements but could enforce off-site decontamination requirements.

III. Actual or Constructive Knowledge

Finally, Plaintiffs argue that there need not be any policy requiring off-the-clock work so 

long as Plaintiffs’ employer was “aware” of work being done off the clock. (Mot. at 16–17.) Put 

differently, Plaintiffs claim that work is “‘suffered or permitted’ for FLSA purposes if the employer 

has actual or constructive knowledge that it is being performed.” (Id. at 17 (citing, inter alia, 

Hawkins v. Securitas Sec. Servs. USA, Inc., 280 F.R.D. 388, 399 (N.D. Ill. 2011).) But Plaintiffs 

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do not marshal persuasive evidence to support the claim that CCDOC was, in fact, aware of 

Plaintiffs’ decontamination activities. Plaintiffs largely cite the same evidence discussed above: 

the Communicable Diseases Policy and Plaintiffs’ testimony about roll call instructions. (See Mot. 

at 18.) The court has no doubt that, as Plaintiffs argue, the CCDOC was “obsessed” with 

mitigating the spread of COVID-19. (Mot. at 18.) But it does not follow that the Sheriff or his staff 

knew that “of course the officers were engaging in these clean-up activities.” (Id.) That is 

particularly true when nearly every Plaintiff testified that they did not report their off-duty 

decontamination activities to their supervisors, nor did they attempt to submit overtime requests. 

See Background Section II, supra. Even if one Plaintiff (Mr. Evans) may have told his supervisors 

about those activities, that is insufficient to establish Defendants’ knowledge. See, e.g., Boelk v. 

AT&T Teleholdings, Inc., No. 12-cv-40-bbc, 2013 WL 12234255, at *5 (W.D. Wisc. Mar. 11, 2013) 

(denying certification because one manager’s knowledge that employees were working through 

their lunch break could not provide “companywide knowledge” of underreporting). As the court 

reasoned in its previous opinion, Plaintiffs still have not marshalled evidence of a de facto policy: 

for example, evidence “that CCSO supervisors checked to see if officers had sanitized their 

uniforms and gear” or “that supervisors required officers to certify that they had extensively 

showered.” See Initial Class Denial, 2022 WL 823883, at *7.

Accordingly, the court declines to find Defendants to have been constructively aware.

* * * 

None of Plaintiffs’ theories—the Communicable Diseases Policy, the roll call instructions, 

or constructive knowledge—establish that Plaintiffs were “victims of a common policy or plan that 

violated the law.” Grosscup, 261 F. Supp. 3d at 870. Accordingly, the court does not reach 

Defendants’ other objections to class certification.

CONCLUSION

The court commends Plaintiffs for taking the COVID-19 pandemic seriously and does not 

doubt that Plaintiffs undertook the alleged decontamination activities because they hoped to

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protect their coworkers, the detainees under their care, and the residents of their city. But the 

court cannot conclude that Plaintiffs undertook those actions because of a requirement from their 

employer. Accordingly, and for the reasons detailed above, Plaintiffs’ renewed motion for 

conditional class certification and court-authorized notice under the FLSA [115] is denied.

ENTER:

Dated: September 15, 2023 ______________________________________

REBECCA R. PALLMEYER

United States District Judge

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