Florida Circuit Court, Judicial Circuit, County.

Kathleen RUDOLPH, et al., Plaintiffs,
v.
DEPARTMENT OF CORRECTIONS, State of Florida, Defendant.

No. 67-02-CA-178.

Dec. 30, 2002.

John C. Davis, Law Office of John C. Davis, Tallahassee, FL, C. Wes Pittman, Pittman & Perry, PA, Panama City, FL, for Plaintiffs Rudolph et al.

Edwin R. Hudson, Laura Beth Faragasso, Henry, Buchanan, Hudson, Suber & Carter, Tallahassee, FL, for Defendant Dept. of Correction.

MEMORANDUM OPINION AND ORDER

COLE, J.

*1 Before the Court is the Plaintiffs' motion for class certification. The Defendant opposes class certification. On October 26, 2002, the Court held a non-evidentiary hearing on the motion. The parties submitted depositions, affidavits and other evidentiary materials prior to the hearing in support of their positions. Based upon the pleadings, depositions, affidavits and other evidentiary materials submitted by the parties, and argument of counsel, the Court grants the Plaintiffs' motion for class certification.

I. Introduction, Procedural Background and Facts

On April 16, 2002, the Plaintiffs brought this action against the Department of Corrections ("Department") alleging that the Department had engaged in system-wide policy and pattern and practice, in violation of the Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes, of subjecting the Plaintiffs and the class to unwelcome, severe and pervasive sexual harassment by male inmates. The Plaintiffs allege specifically that the Department has engaged in the following illegitimate and unlawful practices:
Maintaining, fostering and condoning a sexually hostile working environment for the Plaintiffs and the class;
Discouraging and deterring the Plaintiffs and the class from reporting complaints of sexual harassment by inmates;
Failing and refusing to enforce and implement adequate policies and procedures to protect the Plaintiffs and the class from sexual harassment by inmates in close management custody; and
Failing and refusing to provide the Plaintiffs and the class with adequate training to protect against and stop or minimize sexual harassment by inmates.

The Defendant filed a motion to dismiss the Complaint on grounds that the Plaintiffs failed to state a cause of action. The Court denied that motion by order of July 25, 2002. On August 12, 2002, the Department filed its answer and affirmative defenses.

At the hearing on the motion dismiss held on July 11, 2002, the Court and parties discussed the scheduling class certification proceedings and at that time it was agreed between the parties that a non-evidentiary hearing would be held on November 26, 2002 and that the parties would submit memoranda and evidentiary materials in support of their positions before the hearing.

Each of the twenty-nine Plaintiffs alleges that she is a current or former female non-security employee of the Department who has been required as a regular part of her duties to work with inmates in close management/confinement custody. [FN1] The Plaintiffs and the class members are primarily composed of health care providers, but also include, among others, such non-security positions as Classification Officer. (See Complaint, depositions and affidavits; Ex. 1 DOC 00244-279). According to the Department, there are 2000 health care providers providing clinical health care to inmates and another 500 providing support services to clinical care providers. (Ex. 2(e).)

FN1. The Department objects to the inclusion of the term "confinement" in the definition of the class as defined by the Plaintiffs on grounds that confinement and close management are distinct groups of inmates and the deposition testimony of some of the Plaintiffs limits the harassment complained of the close management inmates. (Defendant's Obj. to Class Certification p. 5-8). The Plaintiffs counter that the Department's policies and procedures particularly as they relate to the class members do not distinguish between confinement and close management but rather classify all such inmates as "special housing" inmates. (Plaintiffs Memo. In Support of Class Certification p. 10-11). The testimony of the some of the Plaintiffs further reveals the confinement and close management inmates are housed in the same housing facilities and the conduct complained of was engaged in by inmates in both classifications. As discussed below, this is in any event a factual dispute which the Court does not have to resolve on class certification.

*2 The Department operates approximately 68 prison facilities throughout the State of Florida. (Ex. 2(b,c).) Its headquarters are located in Tallahassee, Florida. The headquarters in Tallahassee provides direction, policy, and operational and program oversight through the regional directors and their staff to all these facilities. (Ex. 2(a)). Its operations and facilities are geographically organized into four regions. (Ex. 2(c)).

The Plaintiffs allege that of the 68 prison facilities operated by the Department, approximately 55 facilities have close management/ confinement inmates. (Ex. 2(d).) These 55 facilities are male only. (Ex. 2(d)). The approximately 55 facilities are distributed throughout the four organizational regions of the Department, with the largest number being in Region I which contains, among other facilities, Washington CI. (Ex. 2(d)). The allegations are supported with excerpts from the Department's Internet website. The Defendant contends that during the relevant period for class membership there have been at most 14 designated male close management institutions and presently are only eight such institutions.

The Plaintiffs have submitted numerous depositions and affidavits of themselves and class members. The gravamen of their testimony is each has suffered ongoing sexual harassment from inmates in close management and confinement custody during their employment with the Department. The testimony of the Plaintiffs and class members reveals that they have each been required as a condition of their employment to work regularly on a daily or weekly basis with inmates in close management/confinement custody. (Poirier 21, 54-55; Meyer 66-68; Smith 34-35; LaCroix 23; Wascher 17-18; Smith 12-13; Beckford 18-21; Parekh 16-21; Bigler 11-14; Jones 35-36, 42-43; Silvagnoli 26-29; Walker 16- 17; Mitchell 13, 31; Black 24, 39-40; Rudolph 54-55, 64-65; Anderson 20-22; Adair 10-11; Affidavits of Clark, Gonzales, Bradford, Pixley, McCusker, De La Cruz,). These inmates are in the custody and under the supervision of the Department. Inmates in close management/confinement regularly have exposed themselves and masturbated at the Plaintiffs and class members. (Poirier 21, 52-55; Meyer 31-32; Wascher 17-18; Parekh 21-22, 45; Meyer 30-32; LaCroix 32- 36, 46; Beckford 21-25; Bigler 14-21, 33-40; Jones 37-47; Silvagnoli 30, 70- 71; Walker 16-17, 26; Black 30; Rudolph 53, 58, 93; Anderson 20-21, 54-55; Affidavits of Clark, Gonzales, Bradford, Pixley, McCusker, De La Cruz). According to the Plaintiffs testimony, which has not been contested by the Department, the practice is so common, notorious and tolerated it is referred to by inmates and correctional employees alike as "gunning." (Poirier 31; Parekh 45; Wascher 31; Silvagnoli 24-25; Black 26) They alleged that the harassment occurs on a daily basis to female health care workers typically when they make daily medication and/or sick call rounds. (Poirier 14-19, 52-55; Meyer 31-32; Wascher 17-18; Parekh 21-22, 45; Meyer 30-32; LaCroix 32-36, 46; Beckford 21-25; Bigler 14-21, 33-37; Jones 37-47; Silvagnoli 26, 30; Walker 16-17; Black 30; Rudolph 93; Anderson 5-7; Affidavits of Clark, Gonzales, Bradford, Pixley, McCusker, De La Cruz). These rounds require them to go from cell to cell to pass medication to inmates and make physical and mental health assessments. (Poirier 15-19; Meyer 30-32; Parekh 45-46; LaCroix 28-32, 49-50; Bigler 15-17; Jones 37-44; Silvagnoli 26-29, 49-50; Rudolph 46; Affidavits of Clark, Gonzales, Bradford, Pixley, McCusker, De La Cruz). The Plaintiffs and class members also allege that they regularly experienced inmates exposing themselves and masturbating at them in the isolation management rooms within the medical unit or infirmary. (Poirier 26-27; Meyer 99; Parekh 31-32; Beckford 33-34; Bigler 33-34; Jones 52-53; Silvagnoli 40; Walker 31; Mitchell 24; Adair 10-11; Affidavits of Pixley, De La Cruz). They further allege that male inmates also fake medical and psychological emergencies in order to have female nurses come to their cells so that they could masturbate at them. (Parekh 34- 35; Beckford 23-24; Bigler 19-20, 49-50; Jones 53; Mitchell 18; Black 40; Rudolph 58; Adair 28; Affidavits of Clark, Gonzales, Bradford, Pixley, McCusker, De La Cruz).

*3 The Plaintiffs testify that in many cases the harassment has been so severe that many Plaintiffs and class members have been unable to continue to provide care to close management/confinement inmates and/or are unable to continue working at the Department. (Poirier 21, 54-55; Meyer 66-68; Smith 34- 35; LaCroix 23; Bigler 14-15; Jones 28-29, 69-70; Mitchell 15, 79; Anderson 19- 20, 64; Garrett 6)

Other Plaintiffs in non-health care, non-security positions similarly testify to having suffered repeated harassment from inmates. (Mitchell 47-48; Rudolph 99). Classification officers, for instance, are required to make weekly visits to close management/confinement inmates at their cells regularly regarding matters such as sentencing, gain-time, job assignments, education programs and the like. (Smith 8, 17, 21-22; Mitchell 11). Female classification officers would be masturbated at by close management/confinement inmates at the cell door. (Smith 19, 22-23, 28-29).

The testimony of the Plaintiffs and class members further reveals that they have made repeated complaints to officials of the Department in an effort to get relief from the harassment. (Smith 23-28; Poirier 36-37; Meyer 39, 65; Parekh 24; Jones 48-49; Silvagnoli 46; Walker 27-28, 33-35; Mitchell 34; Rudolph 71-74; Anderson 34; Affidavits of Clark, Gonzales, Bradford, Pixley, McCusker, De La Cruz). They allege that their complaints were either ignored, rejected or trivialized. (Smith 23-28; Parekh 24; Mitchell 34; Anderson 51-52; Garrett 56-57; Adair 17, 51-52; Affidavits of Clark, Gonzales, Bradford, Pixley, McCusker, De La Cruz.) The female nursing staff at Washington C.I. made a written complaint to the Secretary of the Department after repeated complaints to their warden and other management officials. Their complaint was ignored and they were neither contacted nor received a response. (Ex. 11; Mitchell 42-44; Rudolph 74-76; Walker 34). In desperation, one senior RN at Washington C.I. went so far as to file criminal complaints with both the Sheriff's Department and the State Attorneys Office. In both cases, she was told that the problem would have to be handled by the institution. (Rudolph 73). The female health care staff at Martin C.I. similarly complained repeatedly to security officials and their Warden. (Poirier 36-37; Meyer 39, 65; Parekh 24; Affidavit of Pixley. De La Cruz). They were merely told to write more DRs. (Parekh 24; Black 25-26)

The testimony of the Plaintiffs and class members further alleges that the prevailing attitude among security officials in the Department to the harassment has been indifference, condonation and hostility. Many Plaintiffs and class members allege that they were told that women have no business working in corrections (Meyer 96-98; Affidavit of Gonzalez), or that they worked in a male prison and as females what did they expect, that it was part of the job or that the inmates had not had sex in a long time. (Poirier 35; Beckford 25; Wascher 26; Parekh 23; Walker 20; Garrett 8-9; Affidavits of Bradford, Clark, Gonzalez), or that if they could not handle the harassment they should not work in the prison (Poirier 56; Affidavit of Gonzalez), or that the prison is the inmate's "home" and he can do as he likes (Poirier 21-22, 36; Bigler 57; Silvagnoli 44-45; Mitchell 45; Rudolph 115-116; Affidavit of McCusker), or that they asked for the harassment (Meyer 66-67), or that why are you working here, I wouldn't let my wife or girlfriend work here (Poirier 34- 35), or that the women were getting what they deserved (Garrett 20); or the officers laughed or joked about the harassment (LaCroix 38; Silvagnoli 43, 47, 50; Anderson 37). Many simply denied they had seen the harassment or ignored it and failed to do anything about it. (Poirier 41; Beckford 25; Wascher 26; LaCroix 65; Walker 19-20; Bigler 27; Mitchell 29-30; Black 34-35, 39; Garrett 9, 33; Anderson 32-34, 39, 65; Affidavits of Pixley, Bradford, McCusker, Gonzalez, Clark). The Plaintiffs and class members allege that a substantial contributing factor to the harassment was that security officials have not required inmates to be fully dressed when the Plaintiffs and class interacted with them. (LaCroix 59-60, 62; Smith 29; Poirier 39-41; Beckford 30; Bigler 37; Jones 43-44, 76; Walker 36-37, 44-45; Affidavits of Bradford, Clark, Gonzalez, McCusker).

*4 The Plaintiffs and class members submit testimony that they have attempted to remedy the harassment in numerous ways. Many tried to put screen or film on cell windows, but were told to take them down. (Smith 26-27; Meyer 99; Poirier 26-27; Parekh 35; Beckford 33; Bigler 34-35; Jones 53-54; Silvagnoli 50-52; Walker 32-33; Mitchell 72, 75; Rudolph 113-114; Anderson 69; Garrett 10; Adair 20-21, 52; Affidavits of De La Cruz, Bradford, Clark, Gonzalez). At one point at Martin C.I., nurses refused medication to inmates masturbating at them, but were told they could not do so. (Meyer 33-34; Jones 47-48; Silvagnoli 65) At Martin C.I., the Plaintiffs and class members were told that if an inmate was masturbating they must wait until they were through. (Meyer 34; Poirier 21; Jones 47-48). Class members at Union C.I. similarly allege that they too put up contact paper over plexiglass windows to avoid the harassment, which had a significant effect, but were told they had to take it down. (Affidavits of Bradford, Gonzales, Clark). Plaintiffs and class members at Lake C.I. also put covers over windows to avoid seeing the inmates masturbate, but were told to take them down. (Garrett 10).

The Plaintiffs and class members further testify that they have written numerous disciplinary reports (DRs) on inmates who sexually harassed them by exposing themselves and masturbating at them. (Wascher 31; Meyer 41-42; Parekh 24; LaCroix 48; Beckford 28; Smith 23; Poirier 33-34; Bigler 20-22; Jones 49- 50; Silvagnoli 32; Walker 23-24; Anderson 41; Affidavits of Clark, Gonzales, Bradford, Pixley, McCusker, De La Cruz) The contend that these DRs had no effect and that most found the fruits of their efforts so dispiriting that they gave up writing them. (Poirier 36; Meyer 53-56; Parekh 23; LaCroix 63-65; Bigler 20-22; Walker 3-24; Mitchell 32-33; Black 60; Garrett 10, 19; Adair 22, 54; Affidavits of Pixley, Gonzalez, Clark, McCusker). They testify that security officers routinely discouraged them in various ways from writing DRs, such as, telling them not to write them (Wascher 26; LaCroix 48, 63-64; Mitchell 51-53; Anderson 43-45; Affidavits of McCusker, Clark, Gonzalez, Bradford) or not to write them for "petty" things like masturbation (Affidavit of Bradford), that they were too time consuming to process or too expensive (Wascher 31; Parekh 23; Bigler 20-21, 26; Silvagnoli 31, 43; Affidavit of Bradford, McCusker), that the prison had too many and would not look good to Tallahassee (Bigler 26-27), that they would not do any good (Meyer 41-42; Rudolph 117-118; Affidavit of Bradford, Clark), that they were not properly filled out (Meyer 53-56; Bigler 21-22; Jones 49; Mitchell 82-84), that they were not aware of the DR or merely that it was being "processed" usually without any evidence this was happening (Meyer 42, 56; Parekh 48-49; Beckford 28-29; Rudolph 96-97), refusing to sign witness statement in support of DRs or denying they witnessed the harassment (Parekh 52; LaCroix 64-65; Silvagnoli 30; Mitchell 86; Anderson 39; Rudolph 119-120); or refusing to write or assist in filling out the DR (LaCroix 47; Jones 68; Silvagnoli 31; Wascher 31-32; Affidavit of McCusker), or even in one case that it would mar the inmate's record (Beckford 27-28). The Plaintiffs and the class members contend that they were not given any training in filling out and completing DRs, (Meyer 53-56; Parekh 41; Poirier 33; Bigler 38; Jones 55; Silvagnoli 31-32; Affidavits of Bradford, Gonzalez, McCusker), and that security officials required them to describe in graphic detail the harassment before accepting the DRs. (Poirier 33; Bigler 20, 28; Jones 49; Black 59-60; Anderson 37-38; Adair 54-55; Affidavit of McCusker). One Plaintiff, Vesna Poirier, testifies that she wrote "masturbate" on a DR, only to have it returned by security, asked "what does that mean?" and told she had to be more descriptive. (Poirier 33; see also Mitchell 82-84, 87-88). Others testify that the names of the nurses who wrote the DRs were revealed to the inmates and the behavior worsened or they were threatened by the inmates. (Garrett 25; Affidavit of Bradford).

*5 According to Plaintiffs and class members, the frequency of the harassment suffered by the Plaintiff and Class Members is not accurately reflected by the number of DRs written by them. (Jones 43, 68; Affidavit of Gonzalez) In the words of one Plaintiff, "if I had to write D.R.s on every single person, I'd have a full-time job writing D.R.s out there." (Jones 43).

Many Plaintiffs and class members allege that they were told at some point that they were not supposed to write DRs. (Bigler 20-221; Walker 24; Mitchell 51-53; Anderson 47; Garrett 15). Dr. David Thomas, the Director of the Office of Health Services, distributed a memorandum to all health services which was interpreted as discouraging health care providers from writing disciplinary reports. (Ex. 12; Bigler 22-23; Anderson 41-42).

Plaintiffs and class members testify that inmates did not sexually harass male security and non-security staff. (Poirier 43; Meyer 16, 91; Parekh 30; Bigler 39; Jones 54; Walker 38-39, 43; Mitchell 40; Rudolph 70; Anderson 72; Garrett 60; Adair 57, 60; Affidavits of Bradford, Gonzalez, Clark).

Aside from the deposition testimony of numerous Plaintiffs, the Department did not submit any testimony or other evidentiary materials in response to the foregoing testimony.

The Plaintiffs have submitted voluminous other non-testimony evidence which describes the operations of the Department, the working terms and conditions of the Plaintiff and the class, the Department's EEO policies and procedures, and policies, rules and procedures regarding inmate custody and discipline. These materials reveal that in each case the Department utilizes and operates according to highly uniform and standardized policies, rules, practices and procedures.

This uniformity and standardization appears in the organization and delivery of health care services throughout the Department. The preponderate majority of class members is employed in health care positions. The Department's Office of Health Services formulates and promulgates policies, practices and procedures for health care services in the Department and is responsible for all health services statewide. (Exs.2(e), 3, and 4(b) DOC 02830-02834, 4(c) DOC 01369- 01371, and 5). It is divided according to the clinical and administrative functions. (Exs.2(e) and 4(b) DOC 2830-02834). The clinical functions provide health care services, including medical, psychological, dental and pharmaceutical care. Id. The Office of Health Services employs approximately 2000 health care providers, including physicians, nurses, mental health professionals, dentists and pharmacists. (Ex. 2(e)). The Director of the Office of Health Services is headed by the Director of Health Services whose office is located in Tallahassee. (Ex. 2(e), 6(a) DOC 00066 and 12).

The organization and delivery of health services in each region and at each prison facility is similarly uniform and standardized. (Exs.3(a), 4(b); 6(b)). The organization is prescribed by statute and rules and policies promulgated by the central Office of Health Services in Tallahassee. (Id.; Chapters 944 and 945, Fla. Stat.; § 33-401 and 404, Fla. Admin. Code; Exs. 3, 4; 6). The duties of health care providers employed at each institution are uniform and standardized and are formulated and promulgated by the central Office of Health Service in Tallahassee. (Exs. 1 DOC 244-279, 2(e), 3, 4, and 5).

*6 Each institution has a Chief Health Care Officer and some or all of the following Health Care Providers: physical, advance registered nurse practitioner, physician assistant, dentist, dental assistants, psychologists, psychologist specialists, pharmacist, optometrist, podiatrist, registered nurse, licensed practical nurse, correctional medical technician, unit treatment and rehabilitation special, health support technician, and other independent providers. (Exs. 1 DOC 00244-00279, 3(a) DOC 01206, 4(b) DOC 02831- 02832, 6(c) DOC 00053-64, 6(d) DOC 00097-00099, 6(e) DOC 00112-00114, 6(f) DOC 00023-24). The Chief Health Care Officers reports to the Warden of the prison. (Exs.3(a) and 4(b) DOC 02831).

The policies, rules and procedures for the provision of health care to inmates are likewise uniform and are formulated and prescribed by the central Office of Health Services in Tallahassee, including those for the provision of health care to inmates in close management/confinement. (§ § 33-401, 404, 601.800, 602.220, 602.221, 602.222, Fla. Admin. Code; Exs. 3(c) and 4(a)). The rules and working conditions and terms for the Plaintiffs and the class in Special Housing are uniform and standardized. For instance, medical staff are required to make daily health care rounds to all in special housing inmates as well as respond to emergencies. (Exs.3(c) DOC 01240-41, 4(a) DOC 02848, 7 DOC 00401-402, 8 DOC 00439-440, and 9 DOC 00476). Mental health staff are required to make weekly rounds. (Exs.4(a) DOC 02341, 7 DOC 00401-402, 8 DOC 00439-00440, and 9 DOC 00476).

Similarly, classification officers are required to make visits to inmates in special housing at least once a week. (Exs.4(a) DOC 02341, 7 DOC 00401-402, 8 DOC 00439-00440, and 9 DOC 00476).

The general terms and conditions of employment for all employee of the Department are likewise subject to uniform policies and procedures. The rules governing employees of the Department are found in § 33-208 of the Florida Administrative Code. Further, the terms and conditions of employment for non-security staff, in particular health care providers, are uniform and promulgated by the central Office of Health Care. (Exs. 3 and 4). The Department further promulgates uniform rules for health care providers with respect to Special Housing inmates. (Exs.3(c), 4(a), 7, 8, and 9).

The record reveals that the Department makes special provision for security officers working in special housing units. The policy states that in recognition of the especially stressful conditions, "[a]n officer assigned to a confinement unit will be rotated to another assignment every eighteen (18) months for a period of at least one (1) year. Any Officer assigned to a confinement post will be authorized a minimum period of five-(5) days annual leave or a five-(5) day assignment to a less stressful post every six-(6) months." (§ § 33-601.402(18), 602.019(10), 602.020(13), Fla. Admin. Code; Exs. 7 DOC 00428, 8 DOC 00443-444, and 9 DOC 00478.).

*7 There does not appear in the record any similar provision for non-security personnel who are required to work regularly with special housing inmates.

The Department's personnel rules make specific provision for the employment of females in security positions and state that, while the Department will not engage in discriminatory practices against females working in or applying for security positions, "the secretary of the Department or his designee may designate certain security positions as gender specific to the inmates being supervised based upon the privacy and security interests of inmates, staff, and the general public." (§ 33-208.301(3), Fla. Admin. Code).

The testimony of the Plaintiffs and class members is uniformly that women security officers are not permitted to work in Special Housing, except in positions that do not require contact with inmates. (Meyer 96; Bigler 40; Silvagnoli 30-31, 45; Walker 31, 37; Mitchell 47; Rudolph 50; Affidavits of Bradford, Gonzalez, Clark).

There does not appear in the record any similarly recognition and acknowledgment of special working conditions for female non-security staff.

As with other operations, the training and orientation of health care services personnel appear to be uniform and formulated and promulgated by the central Office of Health Services in Tallahassee. It does not appear in the record that the Department has written policies and procedures which include training or orientation of health care providers in sexual harassment, abuse or misconduct from inmates. (§ 33-209, Fla. Admin. Code; Ex. 4(b) DOC 2835-36, 2852-2926.) The testimony of the Plaintiffs and class members is that no such training or orientation was provided to them. (Ex. 4(b); Poirier 13, 33; Wascher 27; Parekh 41; Beckford 35; Meyer 56; Bigler 38; Jones 24-25; Jones 55-56; Silvagnoli 24, 36; Walker 33; Mitchell 32, 82-83; Black 59; Garrett 56; Affidavits of Clark, Gonzales, Bradford, Pixley, McCusker, De La Cruz).

The Plaintiffs have submitted the Department's written policy and procedures relating to orientation and training of health services providers, Technical Instruction No. 15.11.01, "Health Services Personnel Orientation," which has a one and one half page section devoted to "Issues for Health Care Delivery In Corrections" with subheadings of "Dealing with Inmates" and "Inmate Behavior." (Ex. 4(b) DOC 02835). As contended by the Plaintiffs, the document does not address sexual harassment by inmates. It states that "inmates, especially those in confinement, may exhibit inappropriate behaviors," but does not describe the behaviors and only states that such inmates "should be referred to mental health for follow-up." It further states that "Inmates may attempt to manipulate staff or the system," but says nothing to train staff in dealing with such behavior other than to tell them they must "respond appropriately." Similarly, the written orientation and training policies and procedures relating to specific health care providers, such as nurses, mental health staff, and other medical staff do not address or discuss sexual harassment by inmates. (Ex. 4(b)).

*8 The Department's general rules relating to development of personnel similarly do not provide training or other orientation of non-security staff, other than to require that such persons maintain professional licensure and certification. (§ 33-209, Fla.Admin.Code). All other rules appear to relate to the training and orientation of Correctional Officers. Finally, the Department's Internet site for New Employee Orientation recites a laundry list of topics to orient new employees and the only one with any mention of gender is entitled "Working with Female Offenders." (Ex. 14).

The record further reveals that the Department has uniform EEO policies and practices relating to discrimination and sexual harassment. (Ex. 13). The written policies do not recognize, acknowledge or inform its employees about sexual harassment by inmates. (Ex. 13).

Again, as with the Department's other policies, rules and procedures, those relating to the conduct and discipline of inmates, including those for inmates in all types of confinement, are uniform and apply throughout all facilities operated by the Department. (§ § 33-601 and 602, Fla. Admin. Code; Ex. 10). These written policies state that "The Department's responsibility is to provide a safe, humane, and efficient correctional system for both staff and offenders." (Ex. 10 DOC 00499). Among other rules and procedures, "any employee or persons supervising inmates" who witnesses an act that violates the Department's rules and procedures is required to report the violation. (§ 33-601.303, Fla. Admin. Code; Ex. 10 DOC 00499). The rules prohibit, among other acts by inmates, disrespectful to employees and obscene or profane acts, gesture or statements. (§ 33-601.314, Fla. Admin. Code; Ex. 10 DOC 00514- 00515).

The Department polices and procedures for disciplining inmates include the filing of disciplinary reports (DRs). The testimony of the Plaintiffs and class members reveals that many of them filed DRs in response to the sexual harassment at issue. Many of the Plaintiffs and class members testify that they were told that they were not allowed to file DRs when they were sexually harassed. See § II.B, supra. The record reveals a memorandum apparently distributed by the Director of the Office of Health Services to health services providers on the matter of the filing of DRs by health care providers. (Ex. 12; Bigler 22-23; Anderson 41-42). According to the testimony of some Plaintiffs the memorandum was interpreted as discouraging the filing of DRs by health care providers. The Plaintiffs and class members further testify that security officers routinely discouraged the reporting of sexual harassment from inmates and the filing of DRs by minimizing the seriousness of the behavior, failing to process DRs, telling the Plaintiffs and class members that DRs were ineffective, pretending not to witness or denying that sexual misconduct occurred, refusing to write DRs, and the like. See § II.B, supra. The testimony of others reveals that security officers told class members that since the harassment was not directed at them they cannot write the disciplinary report or refuse to write a report when they too witness the harassment. (E.g., Silvagnoli 31, 43; Mitchell 86-87).

*9 The Department's rules relating to DRs state that it investigates each DR filed and must interview the charging staff member within 24 hours of writing of the DR. (§ 33-601.305, Fla. Admin. Code; Ex. 10 DOC 00501) The Plaintiffs and class members testify that rarely, if ever, were Plaintiffs and class members who filed DRs for inmate sexual harassment interviewed after they had filed the DR. (Walker 23; Black 59; Anderson 41-42; Adair 22; Affidavits of McCusker, Bradford, De La Cruz, Anderson).

The testimony reveals that none of the Plaintiffs or class members received formal training in the policies and procedures relating to filing DRs and there is no written policy providing for or requiring such training. (See § II.B., supra; Exs. 4, 3, and 13).

The materials submitted by the Defendants do not seriously contest these facts, except to note that while each institution is managed according to the governing laws and departmental policies, which it characterizes as "highly centralized," each warden has his or her own "management style" and that this results in "differing shift or post assignments and other organizational decisions which directly impact the staff's level of contact with close management inmates." [FN2] (Def. Obj. to Class Cert. p.11, 14.)

FN2. Other than depositions of seventeen of the Plaintiffs, the only materials submitted by the Department in opposition to certification are the affidavits of John "Rusty" McLaughlin, who is the Department's Assistant Chief of the Bureau of Classification and Central Records, and Kristine Dougherty, the Department's OMC Manager. The substance of these individuals testimony is directed to the number of designated close management institutions and the number of females in classification and certain health care positions.

II Analysis

Under Fla.R.Civ.P. 1.220(a), a plaintiff seeking class certification must satisfy four requirements: numerosity, commonality, typicality and adequacy of representation. Whigum v. Heilig-Meyers Furniture, Inc., 683 So.2d 643, 645 (Fla. 1st DCA 1996). Broin v. Phillip Morris Companies, Inc., 641 So.2d 888 (Fla. 3d DCA 1994), rev. denied, 654 So.2d 919 (Fla.1995). The plaintiff bears the burden of proof to show that every requirement for class certification is met. "Whether these requirements have been met is a matter within the discretion of the trial court." Whigum at 645.

When determining whether to certify a class the Court may not consider the merits of the claims. OCE Printing Sys. USA, Inc. v. Mailers Data Servs., Inc., 760 So.2d 1037, 1045 (Fla. 2nd DCA 2000). Accordingly, in considering a motion for class certification the court accepts the Plaintiffs' substantive allegations as true. Broin v. Phillip Morris Cos., Inc., 641 So.2d 888, 890 (Fla. 3rd DCA 1994), rev. denied, 654 So.2d 9191 (Fla.1995); Estate of Bobinger v. Deltona Corp., 563 So.2d 739, 743 (Fla. 2nd DCA 1990).

Numerosity. The proposed class Plaintiffs seek to represent consists of:
All past, present and future health care professional employees, classification officers and other non-security employees of the Department who are women and who are required as a regular part of their duties to provide care and other services to male inmates in close management/confinement custody.

The temporal parameters of the class are established by the limitations provisions of Chapter 760 under which the Plaintiffs bring their claims. Under its limitations provisions the class includes all class members employed by the Department no later than 365 days before the filing of the first charge of discrimination with the Florida Commission on Human Relations. § 760.11(1), Fla. Stat. The record reveals that virtually all of the Plaintiffs filed charges with the Florida Commission on Human Relations on August 31, 2001. (Plaintiff First Amended Complaint.) Accordingly, the Court finds that the earliest date for inclusion in the class in August 31, 2000.

*10 The Department's objection that the Plaintiffs have put no temporal limit on the class is without merit. The Plaintiffs proposed the above August 31, 2001 start-date for the class at the hearing. As to the inclusion of future class members in the class, the Court will discuss this issue below with regard to certification of a class for equitable and declaratory relief under subsection (b)(2) of Rule 1.220.

The evidence submitted regarding the number of class members is conflicting. The Plaintiffs have submitted documents from the Department showing that it employs 2000 clinical health care providers alone, not including other non-security personnel such as Classifications Officers. (Ex. 2(e)). Each of the Plaintiffs, excepting Smith, is a current or former clinical health care provider. They have further submitted evidence that there are over 50 prisons with close management/confinement housing where class members are employed. (Ex. 2(d) and 6(b)). Other evidence submitted by Plaintiffs reveals that the number of clinical health care providers alone at the institutions at which the Plaintiffs have been employed averages 20. (Affidavit of Anderson; Ex. 6(d)). Other institutions, such as Union C.I. and Charlotte C.I., employed substantially more, averaging from 40 to 60 such employees. (Affidavits of Gonzalez, McCusker, Bradford). The representation of females among these employees is alleged to be extremely high, i.e., between 80 and 90%. (Affidavits of Clark, McCusker, Bradford). These estimates do not account for any turnover, which would include former employees who are also included within the class. Based upon this evidence the number of class members would number as high as 500 persons, but in any case no less than several hundred.

The Department has submitted the affidavit of John "Rusty" McLaughlin stating that the number of designated close management institutions has never been greater than 14 since 1999 and at present is 8. It further has submitted the affidavit of Kristine Dougherty who testifies that as of the time of hearing there were 96s female employed in the nine separate institutions in the positions of classification officer, R.N. Specialist, R.N. Supervisor, Senior L.P.N., Senior Physician, Senior R.N., and Senior R.N. Supervisor. These institutions appear to be among those 14 in the McLaughlin affidavit. The Court notes that this figure do not account for any turnover, nor do they account for class members employed at the other 5 other institutions the Department contends house close management inmates. It would further appear that it does no account for all positions encompassed by the class, such as mental health care providers. In any event, the Court concludes that accepting the Department's contentions there is at least, if not more than, 150 class members.

In determining whether numerosity if met, the Court further takes note of the fact that class members are located throughout the state, the nature of this case and the inconvenience to class members in trying individual suits, all of which factors make joinder impractical.

*11 The Court, therefore, finds that the class is so numerous that joinder of all members is impractical and that the Plaintiffs satisfy the requirements of Rule 1.220(a)(1). Estate of Bobinger v.. Deltona Corp., 563 So.2d 739, 743 (Fla. 2nd DCA 1990) (classes as small as 25 may established numerosity); Maner Properties, Inc. v. Siksay, 489 So.2d 842 (Fla. 4th DCA 1986) (numerosity found where 350 class members); Butterworth v. Quick & Reilly, Inc., 171 F.R.D. 319, 321 (M.D.Fla.1997) (it is not necessary to specifically state the number of class members and 25 to 30 members would establish numerosity).

Commonality. Subsection (a)(2) requires that "the claim or defense of the representative party raises question of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class."
The threshold of 'commonality' is not high. Aimed in part at 'determining whether there is a need for combined treatment and a benefit to be derived therefrom,' the rule requires only that resolution of the common questions affect all or a substantial number of the class members."
Broin v. Phillip Morris Cos., 641 So.2d at 890-91 (Fla. 3d DCA 1994), review denied, 654 So.2d 9191 (Fla.1995); Paladino v. American Dental Plan, Inc., 697 So.2d 897 (Fla. 1st DCA 1997). Certification may not be denied "merely because the claim of one or more class representative arises in a factual context that varies somewhat from that of other plaintiffs." Broin at 890 (quoting Powell v. River Ranch Property Owners Ass'n. Inc., 522 So.2d 69, 70 (Fla. 2d DCA), rev. denied, 531 So.2d 1354 (Fla.1988)).
Contrary to defendants' assertion, plaintiffs' legal claims need not be completely identical. Pottinger, 720 F.Supp. at 958. Plaintiffs must merely establish a common claim "arising from the same practice or course of conduct that gave rise to the remaining claims and ... based on the same legal theory." Powell, 522 So.2d at 70. Claims that arise from different factual contexts may be pled as a class action if they present a question of common interest. Love v. General Dev. Corp., 555 So.2d 397, 398 [*891] (Fla. 3d DCA 1989).... Entitlement to different amounts of damages is not fatal to a class action. Camino Sheridan, 466 So.2d at 1214. Should it become appropriate, the court may divide the class into subclasses to resolve these issues. See Love, 555 So.2d at 398; Imperial Towers, 338 So.2d at 1084; In Re Diamond Shamrock, 725 F.2d 858 (2d Cir.1984); Raymark Indus., Inc., 782 F.2d at 471. n2
Broin, 641 So.2d at 890-91.

As regards commonality and typicality, the court should primarily be concerned "whether the representative's claim arises from the same course of conduct that gave rise to the other claims and whether the claims are based on the same legal theory." McFadden v. Staley, 687 So.2d 357, 359 (Fla. 4th DCA 1997).

*12 The Plaintiffs each bring their claims under Chapter 760, Florida Statutes, which prohibits among other things sex discrimination and sexual harassment in employment. To establish a claim of sexual harassment, an employee must show that "the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently server or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993). Additionally, the employee must show that the employer knew or should have known of the harassment and failed to take remedial action. Castleberry v. Edward M. Chadbourne, Inc., 810 So.2d 1028, 1029-30 (Fla. 1st DCA 2002).

The Plaintiffs base their claims on conduct by the Defendant that raises common issue as to all class members. The overarching common question at the heart of this case is whether the policies, rules and procedures and the experiences of the Plaintiffs and class members regarding the terms and conditions of their employment demonstrate that the Department operated pursuant to an ongoing policy of sex discrimination with regard to the Plaintiffs and class members. Common issues presented include, among others:
Whether the Department permitted and tolerated the creation and maintenance of an objectively sexually hostile environment toward the class at its prisons;
Whether the Department exercised reasonable care in response to the harassment to prevent and promptly correct the conduct which created this environment; and
The effectiveness of the Department's policies, rules and procedures for addressing the harassment.
Wilfong v. Rent-A-Center, Inc., 2001 WL 1795093 (S.D.Ill.Dec.27, 2001).

The Plaintiffs have presented substantial testimony of sexual harassment by inmates under very similar circumstances. Each is a non-security employee of the Department and the terms and conditions of each's employment were nearly identical in that each worked regularly with inmates in close management/confinement custody at a prison operated by the Defendant. The Plaintiffs have not made an across-the-board challenges to all of the Department's employment practices. Rather, the class consists of a limited group of female employees working in limited but common circumstances and subjected to well-defined common practices. The Department's policies, practices, rules and procedures that are at issue in this case are highly standardized, centrally formulated and promulgated, and apply uniformly to all its institutions and the Class. These include the Departments policies, practices, rules and procedures that relate to personnel, close management/confinement custody, inmate discipline, training and orientation, health care delivery, job duties, and EEO policies. The Defendant concedes this fact, noting that "DOC is highly centralized in the promulgation of its policies and practices" and that any injunctive relief would be imposed system-wide. (Defendant's Objection to Class Cert. p. 14). The Plaintiffs contend and the Department does not appear to challenge the fact that these uniform policies will be central to the resolution of the common issue of the reasonableness of its response to the harassment alleged and the effectiveness of its policies.

*13 The Department's principal argument against certification is that the Plaintiffs claims should not be addressed on a class basis because of the individualized nature of proof, in particular the requirement that the Plaintiffs show the harassment was not only objectively offensive, but also "subjectively" offensive. This argument has been rejected by numerous courts which have certified class actions based on sexual harassment. Wilfong v. Rent-A-Center, Inc., 2001 WL 1796093 *5 (Dec. 27, 2001); E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926, 945-947 (N.D.Ill.2001); Beckmann v. CBS, Inc., 192 F.R.D. 608, 613-615 (D.Minn.2000); Bremiller v. Cleveland Psychiatric Institute, 195 F.R.D. 1, 20-21 (N.D.Ohio 2000); Warnell v. Ford Motor Co., 189 F.R.D. 383, 387 (N.D.Ill.1999); Markham v. White, 171 F.R.D. 217, 221- 222 (N.D.Ill.1997); Jenson v. Eveleth Tacnoite Co., 139 F.R.D. 657, 664-65 (D.Minn.1991); Meiresonne v. Mariott Corp., 124 F.R.D. 619, 622-24 (N.D.Ill.1989). In the class action sexual harassment context, "the landscape of the total work environment rather than the subjective experience of each individual claimant, is the focus for establishing a pattern or practice of unwelcome harassment which is severe and pervasive." Wilfong v. Rent-A-Center, 2001 WL 1795093 at *5 (quoting E.E.O.C. v. Mitsubishi Motor Mfg. of America, Inc., 990 F.Supp. 1059, 1074 (C.D.Ill.1998); Jenson v. Eveleth Taconite Co., 139 F.R.D. at 665 ("[The common question of law is not how an individual class member reacted, but whether a reasonable woman would find the work environment hostile."). As found by these courts and as well established under Florida law, the potential factual variances in each class member's subjective perception and response to the harassment or the context in which it has arisen do not preclude a finding commonality where there is a common course of conduct giving rise to the claims as exists here. Paladino v. American Dental Plan, Inc., 697 So.2d at 898 (specific inquiry into each class members intent at time contract signed did not preclude finding commonality and predominance). To the extent there are variances they may be dealt with through the creation of subclasses, Paladino at 899; Warnell v. Ford Motor Co., 189 F.R.D. at 387, or addressed at Stage 2 of the bifurcated proceedings discussed below once liability is established. Wilfong at *5.

In the same vein the Department argues that the issue of damages precludes a finding of commonality. The fact that class members may be entitled to different amounts of damages is not fatal to a class action. Broin at 891. "[The primary focus of the trial court's inquiry at the class certification stage is liability, not damages. See In re Carbon Dioxide, 149 F.R.D. at 234. The issue of individual damages will not defeat an otherwise valid class certification. Id." OCE Printing Sys. USA. Inc. v. Mailers Data Servs., Inc., 760 So.2d at 1043. If appropriate, the court may create subclasses to resolve these issues, Broin at 891, and as discussed below such issues can be addressed in Stage 2 of bifurcated proceedings.

*14 The Court would note that the potential factual variances in this case are no different, indeed are probably significantly less, than those presented in the tobacco litigation classes certified in R.J. Reynolds Tobacco Co. v. Engle, 672 So.2d 39 (Fla. 3rd DCA 1996); Broin v. Phillip Morris Cos., 641 So.2d at 890-91 (Fla. 3d DCA 1994), review denied, 654 So.2d 9191 (Fla.1995). The courts in each case found commonality was satisfied despite arguments by the defendants that individual differences in class members claims and damages precluding certification. As stated by the court in Broin,
It would be a perversion of the spirit behind rule 1.220, and the cases interpreting the rule, to hold, as the defendants urge, that plaintiffs' class action allegations fail because plaintiffs do not present identical claims. If class actions were dependent on class members presenting carbon copy claim, there would be few, if any, instances of class action litigation. It is virtually impossible to design a class whose members have identical claims. Even in the context of a mass disaster, each afflicted member experiences the impact differently, according to the member's relative location and proximity to the event. Defendants' proposed holding would nullify the class action rule, a course of conduct we decline to follow.
641 So.2d at 891.

The finding of commonality is bolstered by the common, if not identical defenses to the Plaintiffs' claims, including such matters as whether it took appropriate remedial measures in response to the harassment. [FN3] Id. Class treatment will aid judicial efficiency and economy and avoid duplicative litigation. Id. It will further avoid the potential for varying adjudications on common issues which could subject the Department to inconsistent or conflicting standards of conduct.

FN3. The Department has raised as a defense that some of the Plaintiffs and class members, particularly those located in Region IV of the Department's system are not employed by the Department because they were supplied to the Department through private agencies. The Court does not decide this issue, but notes that if such is an issue it can be addressed through the creation of a subclass.

Finally, class treatment is particularly appropriate and necessary because requiring each class member to file separate suits "would be overwhelming and financially prohibitive; .... the vast majority of class members, in less advantageous financial positions [than the Department] would be deprived of a remedy." Id. The Court, therefore, finds that the Plaintiffs satisfy the commonality requirement of Rule 1.220(a)(2).

Typicality. The typicality requirement of subsection (a)(3), compels an examination of the relationship of the class representative's claim to the claims of the class members: whether the claim or defense of the representative party is typical of the claim or defense of each member of the class. Fla. R. Civ. P. 1.220(a)(3). Colonial Penn Ins. Co. v. Magnetic Imaging Systems I, Ltd., 694 So.2d 852, 854 (Fla. 3d DCA 1997); W.S. Babcock Corporation v. Myers, 696 So.2d 776, 780 (Fla. 1st DCA 1996). "[A] common course of conduct on the appellee's part against the purported class is a sufficient pleading of typicality." McFadden, 687 So.2d at 359; Bobinger v. Deltona Corporation, 563 So.2d 739 (Fla. 2nd DCA 1990). "The mere presence of factual differences will not defeat typicality." Broin, 641 So.2d at 892.

*15 The claims of the representative Plaintiffs are not only typical of, but are identical to those of the Class. They all arise out of a common course of action by the Department against the named Plaintiffs and the class. Their claims are in no way antagonistic to the class, Colonial Penn Ins. at 854, and each seek the same remedy. W.S. Babcock Corporation at 780. The Court, therefore, finds that the Plaintiffs have satisfied the typicality requirement of Rule 1.220(a)(3).

Adequacy. "The 'adequacy of representation' requirement is met if the named representatives have interests in common with the proposed class members and the representatives and their qualified attorneys will properly prosecute the class action." Broin, 641 So.2d at 892. "A trial court's determination as to the qualifications of plaintiffs to adequately represent a class will not be disturbed on appeal absent a showing of a clear abuse of discretion." McFadden v. Staley, 687 So.2d at 359.

The Department has not challenged the adequacy of the Plaintiffs to represent the class proposed. The facts adduced by the Plaintiffs reveal that each shares not merely common, but identical interests, and seek the same relief for the class as they do for themselves. They have so far vigorously and zealously pursued this action, which they alleged that have brought because they do not want to continue to suffer and have other females to suffer the discrimination they have suffered as a result of the Department's policies and practices. (LaCroix 67; Beckford 43; Jones 76-77; Silvagnoli 67, 75; Walker 50; Rudolph 76-77; Anderson 74; Garrett 57-59; Adair 48).

The Department has likewise not challenged the adequacy of Plaintiffs' counsel. The Plaintiffs have submitted affidavit of their counsel which reveal that counsel is experienced in the litigation of complex class actions. The Court, therefore, finds that the adequacy of representation requirement of Rule 1.220(a)(4) is satisfied.

Certification under Subsections (b)(2) and (b)(3). Plaintiffs move for certification of the class for purposes of declaratory and injunctive relief under subsection (b)(2) and a class for damages and other individual relief under subsection (b)(3) of Rule 1.220. Such a two stage "hybrid" certification has been utilized in harassment cases. The Court resolves the issue of liability from which injunctive and declaratory relief flow in the first stage under subsection (b)(2); and addresses the issue of damages using the "opt-out" procedures of subsection (b)(3) in the second "remedial" stage. Beckman v. CBS, Inc., 192, F.R.D. at 615; Warnell v. Ford Motor Co., 189 F.R.D. at 391; The Court finds that the Plaintiffs have satisfied the requirements of both subsections.

Subsection (b)(2) of Rule 1.220 applies where the defendant has "acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole...." The Plaintiffs allege that the Department has acted or refused to act on grounds applicable to all class members. The declaratory and injunctive relief they seek and the actions of the Department make final injunctive and declaratory relief appropriate for the class as a whole. The Court, therefore, finds that the requirements of subsection (b)(2) are met and certifies the class under subsection (2)(b) with respect to declaratory and injunctive relief only.

*16 Subsection (b)(3) applies where
the claim or defense is not maintainable under either subdivision (b)(1) or (b)(2), but the questions of law or fact common to the claim or defense of the representative party and the claim or defense of each member of the class predominate over any question of law or fact affecting only individual members of the class, and class representation is superior to other available methods for the fair and efficient adjudication of the controversy. The conclusions shall be derived from consideration of all relevant facts and circumstances, including (A) the respective interests of each member of the class in individually controlling the prosecution of separate claims or defenses, (B) the nature and extent of any pending litigation to which any member of the class is a party and in which any question of law or fact controverted in the subject action is to be adjudicated, (C) the desirability or undesirability of concentrating the litigation in the forum where the subject action is instituted, and (D) the difficulties likely to be encountered in the management of the claim or defense on behalf of a class.
The predominance inquiry is "whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). In this regard, the class action rule is designed to afford litigants with common questions of law and fact an economically feasible means of remedying alleged wrongs. Johnson v. Plantation Gen. Hosp. Ltd. Partnership, 641 So.2d 58, 60 (Fla.1994); Colonial Penn Ins., 694 So.2d at 854; McFadden, 687 So.2d at 359.

All of the requirements of subsection (b)(3) are satisfied in this case. Common questions of law and fact predominate in that the predominant issues of fact are subject to generalized proof and the issues of law, including those relating to claims and defenses, are identical for all Plaintiffs and the Class. While certain individual issues will have to be tired as to each class members, the primary issues of liability common to all class members will clearly predominate. R.J. Reynolds Tobacco Co. v. Engle, 672 So.2d at 41 (predominance found in tobacco litigation where basic issue of liability were common to all class members despite fact that damages may require trial of individual issues).

The Court finds that class representation is superior to other available methods for the fair and efficient adjudication of the case. Certification is the most economically feasible means of remedying the wrongs alleged. Individual suits will require a repetition of the same evidence for each class member. The record does not reveal any other suits raising the issues before the court which indicates there is no interest of class members controlling the prosecution of their claims or the potential for inconsistent adjudications. However, if at a later time such interest arises, class members will have the opportunity to opt-out and individually pursue their claims. The instant forum is well suited for this litigation given its proximity to Tallahassee, which is the location of the Department's central offices, and the significant concentration of class members in this part of the State. Finally, the Court does not foresee will not be any insurmountable problems to managing the litigation. The "hybrid" certification allows for the orderly administration of the case in a manageable fashion. The Court has at its disposal the use of subclasses under Rule 1.220(c)(4) and, if appropriate, a special master. Jenson v. Eveleth Taconite Co., 130 F.3d 1287 (8th Cir.1997). The Court, therefore, finds that the Plaintiffs satisfy the requirements of Rule 1.220(b)(3).

*17 The Definition of the Class: The Plaintiffs request certification of the following class:
All past, present and future health care professional employees, classification officers and other non-security employees of the Department who are women and who are required as a regular part of their duties to provide care and other services to male inmates in close management/confinement custody.

As discussed above, the Department objects to the inclusion in the class definition of "confinement" and the lack of temporal parameters. As stated above, the Court is not required to resolve at this time the conflicting evidence on the issue of "close management" vs. "confinement.". Given that certification is always open to reconsideration, if, as the evidence develops, there is a demonstrated necessity, the Court can revise the class definition or create subclasses to address the issue. The Departments objection to the lack of temporal parameters is addressed above. The temporal parameters for inclusion in the class start on August 31, 2000. As to the inclusion of future employees, they are included in the class for declaratory and injunctive relief certified under subsection (b)(2) of Rule 1.220. It is axiomatic that such individuals would be included inasmuch as class members may not opt-out of such relief. Finally, as regards the term "health care professional employees," the Court understands this to include, among other health care positions, mental health care professionals.

For the reasons stated, it is hereby ORDERED AND ADJUDGED:
1. The Plaintiffs' motion for class certification is GRANTED.
2. The Court certifies the following class under subsection (b)(2) of Rule 1.220 for purposes of declaratory and injunctive relief:
All health care professional employees, classification officers and other non-security employees of the Department who are women, who are required as a regular part of their duties to provide care and other services to male inmates in close management/confinement custody, and who from August 31, 2000 have been, are or will in the future be employed by the Department.
3. The Court certifies the following class under subsection (b)(3) of Rule 1.220 for purposes of damages and other individual relief:
All health care professional employees, classification officers and other non-security employees of the Department who are women, who are required as a regular part of their duties to provide care and other services to male inmates in close management/confinement custody, and who for the time period from August 31, 2000 to present have been or currently are employed by the Department.
4. The Court certifies the Plaintiffs as representatives of the class and the Plaintiffs' counsel as counsel for the class.
5. The Court further orders the parties to submit a form of a proposed notice to the class and order regarding same to the Court within 21 days from the entry of the Order.