Michelle Giese v. City of Kankakee ( 2023 )


Menu:
  •                                In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________________
    No. 22-2022
    MICHELLE GIESE,
    Plaintiff-Appellant,
    v.
    CITY OF KANKAKEE, DAMON SCHULDT,
    and NATHAN BOYCE,
    Defendants-Appellees.
    ____________________
    Appeal from the United States District Court for the
    Central District of Illinois.
    No. 19-cv-1245 — Colin S. Bruce, Judge.
    ____________________
    ARGUED MAY 24, 2023 — DECIDED JUNE 15, 2023
    ____________________
    Before SCUDDER, ST. EVE, and KIRSCH, Circuit Judges.
    ST. EVE, Circuit Judge. On October 18, 2018, Michelle
    Giese—a lieutenant in the Kankakee Fire Department
    (“KFD”)—was attacked by another firefighter while respond-
    ing to a fire at a senior living facility. The City suspended the
    other firefighter for twenty-four hours without pay, ordered
    him to complete an anger management course, and directed
    him to avoid working on the same shift as Giese for three
    2                                                 No. 22-2022
    months. Giese experienced ongoing physical and mental in-
    juries from the incident, causing her to take leave from work
    and apply for workers’ compensation. She returned to work
    six months later but permanently left her position shortly af-
    ter. She then filed this lawsuit, alleging that the defendants,
    among other things, retaliated against her for certain pro-
    tected activities under Title VII and condoned aggressive and
    inappropriate behaviors as part of a “code of silence” that re-
    sulted in her attack. The district court granted summary judg-
    ment for the defendants, and this appeal followed.
    I. Background
    On October 18, 2018, Michelle Giese and several other fire-
    fighters, including Lieutenant Nathan Boyce, responded to a
    call on the second floor of a senior living facility. Boyce took
    command of operations, while Giese and another firefighter
    brought a fire hose up the stairs. Boyce claims that he ordered
    the firefighters to wait until the hose was “charged,” or filled
    with water, to proceed through the fire doors into the second-
    floor main hallway, but Giese testified that she did not hear
    the order.
    While Boyce was “flaking out” or unkinking the fire hose
    so that it could be charged, Giese and several other firefighters
    used thermal imagining technology to evaluate the conditions
    behind the fire doors. They determined that the fire was con-
    tained in one of the units behind the fire doors and therefore
    decided to proceed down the hallway with the uncharged fire
    hose. After the firefighters heard moans from inside an apart-
    ment, they dropped the hose and entered the apartment to as-
    sist an elderly woman who had caught on fire.
    No. 22-2022                                                  3
    Boyce realized that Giese and the others had continued
    into the hallway in violation of his orders and followed them.
    Once he reached the entryway of the apartment, Boyce
    grabbed Giese by the harness and pushed her into the wall—
    lifting her so high that her feet were off the ground. After
    Giese slid down the wall and regained her footing, Boyce
    pushed her against the wall two more times, each time pulling
    her back with her harness before pushing her into the wall
    again. During the incident, which lasted about a minute to a
    minute-and-a-half, the two moved through the apartment
    from the entryway into an internal hallway, where Boyce
    pushed Giese three more times.
    Giese informed her supervisors of the incident, and over
    the following week, Chief Damon Schuldt met with Giese
    twice. Schuldt informed her that he would not take the matter
    lightly and that Boyce would be disciplined, and he instructed
    her to change her work schedule so that she and Boyce would
    not be on the same shift. Schuldt ultimately suspended Boyce
    for twenty-four hours without pay and required him to com-
    plete an anger management course. Schuldt further directed
    Boyce not to work on the same shifts as Giese for three months
    and instructed that any additional violations of department
    rules could lead to further discipline, including termination.
    Some firefighters and union members later testified that they
    believed this punishment to be relatively light, and Giese con-
    tends that Schuldt imposed a short suspension because the
    Police and Fire Commission must approve suspensions of
    more than forty-eight hours.
    On November 5, Giese contacted Elizabeth Kubal, the
    head of human resources for the City. Giese explained her
    frustration that she had been asked to work around Boyce’s
    4                                                 No. 22-2022
    schedule and that she had not been formally interviewed re-
    garding the incident. About ten minutes after Giese ended the
    call, Schuldt called Giese, demanding to know why she had
    contacted human resources. He reiterated his order that she
    amend her schedule to avoid working with Boyce.
    As a result of the incident, Giese experienced ongoing psy-
    chological and physical trauma in the form of decreased abil-
    ity to focus, panic attacks, nausea, vomiting, and diarrhea and
    had to use personal sick time to take off work. On November
    15, she put in a workers’ compensation request to cover those
    injuries. That request was granted, and the sick time she had
    previously used was credited back to her.
    On March 13, 2019, Giese visited the firehouse. Captain
    Michael Casagrande informed Giese that Schuldt had in-
    structed the supervisors not to speak with her because she
    had retained an attorney and there was a pending lawsuit.
    This was false; there was no pending lawsuit at the time.
    Nonetheless, Schuldt contends that James Ellexson (the new
    head of human resources for the City) instructed him not to
    communicate directly with Giese and instead to leave such
    communication to Ellexson.
    On April 5, Giese filed a complaint with the Equal Em-
    ployment Opportunities Commission (“EEOC”) alleging har-
    assment and sex discrimination. A week later, Ellexson called
    Giese to discuss her return to work. According to Giese, El-
    lexson informed her that if she did not report to work by April
    15, she would be terminated.
    Giese began working again on April 14. She was assigned
    to light duty, which included tasks such as cooking, cleaning,
    and clerical work. Apparently, no one informed Casagrande
    No. 22-2022                                                           5
    that Giese was assigned to light duty because, on her first day
    back, Casagrande asked her to assist in an active fire investi-
    gation. Giese told Casagrande that she was assigned to light
    duty and therefore could not conduct the investigation. Casa-
    grande did not insist or require her to complete the fire inves-
    tigation or any task she was restricted from doing.
    Giese continued to work light duty until May 10, when
    they sent her home because she broke out in hives and blisters
    and had an elevated blood pressure. She has not returned to
    work since and applied for a disability pension in November
    2019. Her application was still pending as of March 2023.
    Giese sued the City, Schuldt, and Boyce, bringing sixteen
    claims under federal and state law. The district court granted
    summary judgment to the defendants on all federal claims
    and declined to exercise supplemental jurisdiction over the
    remaining state law claims. With respect to her Fourth
    Amendment Monell claim, the district court found that Giese
    “has introduced no evidence that would allow a rational jury
    to conclude that she suffered a deprivation of her rights under
    … [the] Fourth Amendment.” With respect to her Title VII re-
    taliation claim, the district court found that the only protected
    activity in this case was the filing of Giese’s EEOC complaint
    and the defendants did not engage in any adverse employ-
    ment actions after that point.
    Giese timely appealed the district court’s decision with re-
    spect to her Fourth Amendment Monell and Title VII retalia-
    tion claims, which apply only to the City and Schuldt. 1 She
    1 The only claims alleged against Boyce were state law claims, which
    are not on appeal.
    6                                                          No. 22-2022
    expressly abandoned her sex discrimination claims under Ti-
    tle VII and the Equal Protection Clause in her opening appel-
    late brief.
    II. Analysis
    A. Fourth Amendment Monell Claim
    “[T]o prevail on a § 1983 claim against a municipality un-
    der Monell, a plaintiff must challenge conduct that is properly
    attributable to the municipality itself.” First Midwest Bank v.
    City of Chicago, 
    988 F.3d 978
    , 986 (7th Cir. 2021). Where the
    municipality has not directly violated the plaintiff’s rights
    and instead caused an employee to do so, the plaintiff must
    demonstrate that the municipality acted with deliberate indif-
    ference to the plaintiff’s constitutional rights. 
    Id. at 987
    . Addi-
    tionally, the plaintiff must prove that the municipality’s ac-
    tion was the ”moving force” behind the plaintiff’s violation.
    
    Id.
    Giese claims that Boyce’s conduct constituted an unlawful
    seizure in violation of the Fourth Amendment. U.S. Const.,
    amend. IV. She further contends that the City and Schuldt had
    a practice of overlooking the misconduct of firefighters that
    allowed her constitutional rights to be violated. 2 Specifically,
    2 A plaintiff can also prevail on a Monell claim by showing “an express
    policy that causes a constitutional deprivation when enforced … [and] an
    allegation that the constitutional injury was caused by a person with final
    policymaking authority.” 
    Id. at 986
    . Contrary to her counsel’s contention
    at oral argument, however, Giese provides no evidence that there was an
    official City policy that resulted in the attack. Nor does she dispute the
    defendants’ contention that the Board of Police and Fire Commissioners,
    not the defendants, are the final policymakers for KFD. Her Monell claim,
    No. 22-2022                                                           7
    she maintains that the defendants, despite knowing of the risk
    of aggression and violent behavior within KFD, cultivated a
    “code of silence” that allowed and emboldened Boyce to vio-
    late Giese’s Fourth Amendment rights.
    As a threshold matter, the defendants argue that Giese did
    not sufficiently develop her Fourth Amendment claim in the
    district court and thus waived her argument. We disagree.
    Giese’s argument was the same below as it is now: the defend-
    ants knew about and actively ignored Boyce’s inappropriate
    behavioral issues, resulting in his unreasonable seizure of her.
    She made clear in her summary judgment briefing that her
    claim related to Boyce’s violent behavior. She stated, “City
    policymakers’ decision not to adopt policies to respond to
    substance abuse, assault and battery, and misconduct among
    its firefighters renders the City liable.” She clarified that even
    if “Boyce [had] not singled her out for her gender, that cause
    of action would remain.” This was sufficient to preserve her
    claim for appeal.
    On the merits, Giese’s claim fails because none of her evi-
    dence, separately or taken together, creates a genuine dispute
    regarding whether the defendants had a practice of condon-
    ing aggressive behavior, resulting in a constitutional injury.
    Although we have previously recognized that a defendant’s
    “code of silence” can give rise to a valid Monell claim, such a
    claim requires more than evidence of “individual misconduct
    by … officers”; it requires “a widespread practice that permeates
    a critical mass of an institutional body.” Rossi v. City of
    therefore, hinges on showing that the defendants had a practice that was
    the “moving force” behind her constitutional violation.
    8                                                     No. 22-2022
    Chicago, 
    790 F.3d 729
    , 737 (7th Cir. 2015); see also Sledd v. Lind-
    say, 
    102 F.3d 282
    , 289 (7th Cir. 1996).
    Giese fails to provide such evidence. The undisputed facts
    in the record indicate that Boyce’s actions were unprece-
    dented. Prior to the incident, no KFD firefighter had ever been
    violent against another firefighter while on duty, and the rec-
    ord does not suggest that anyone had anger or drinking prob-
    lems at work. By itself, Giese’s anecdotal evidence does not
    “establish a tie between [Boyce’s actions] and the … depart-
    ment as a whole.” Rossi, 
    790 F.3d at 738
    .
    Giese cites Estate of McIntosh by Lane v. City of Chicago, No.
    15-cv-1920, 
    2022 WL 4448737
     (N.D. Ill. Sept. 23, 2022), for sup-
    port, but that case is both nonprecedential and inapplicable
    here. In that case, the plaintiff relied upon data spanning the
    entire city department, whereas here, Giese’s evidence is al-
    most exclusively anecdotal evidence of Boyce’s past behav-
    iors. She does not provide any department-wide studies or
    statistics that demonstrate such behavior was so widespread
    that the department’s failure to address it suggested the exist-
    ence of a code of silence.
    Lastly, the record does not support Giese’s contention that
    there was such a high risk of constitutional injury from Boyce
    that the “single incident” theory of municipal liability applies
    here. See Connick v. 
    Thompson, 563
     U.S. 51, 63 (2011) (describ-
    ing the “narrow range of circumstances” in which “a pattern
    of similar violations might not be necessary to show deliber-
    ate indifference”) (citation omitted). In such cases, the “risk of
    constitutional violations [is] so high and the need for training
    so obvious that the municipality's failure to act can reflect de-
    liberate indifference and allow an inference of institutional
    culpability, even in the absence of a similar prior
    No. 22-2022                                                            9
    constitutional violation.” J.K.J. v. Polk County, 
    960 F.3d 367
    ,
    380 (7th Cir. 2020). “Qualifying circumstances under this doc-
    trine are rare”; “[a] constitutional violation must be a ‘bla-
    tantly obvious’ consequence of inaction for single-incident li-
    ability” to apply. Orozco v. Dart, 
    64 F.4th 806
    , 825–26 (7th Cir.
    2023).
    Giese falls far short of meeting this demanding standard.
    Although her evidence may show that Boyce had a bad tem-
    per, a drinking problem, and poor judgment, no reasonable
    jury could find that there was such a high risk that Boyce
    would act aggressively towards a fellow firefighter at work
    that the defendants’ failure to address that risk constituted
    deliberate indifference. Witnesses testified that Boyce some-
    times acted aggressively when drunk at non-work, social
    events and that he occasionally yelled or became angry at
    work, but no one had ever seen him threaten or lay hands on
    anyone at work. Nor is there any evidence in the record that
    anyone had ever reported that they felt unsafe working with
    Boyce. In fact, Giese and other firefighters stated that they
    were shocked by Boyce’s actions because they had not ex-
    pected him to act that way. For these reasons, the district court
    properly granted summary judgment on Giese’s Monell
    claim. 3
    B. Title VII Retaliation Claim
    “To prevail on a Title VII retaliation claim, the plaintiff
    must prove that (1) [she] engaged in an activity protected by
    the statute; (2) [she] suffered an adverse employment action;
    3  Because the municipal defendants cannot be held liable under a Mo-
    nell theory, we need not discuss whether a reasonable jury could find an
    underlying Fourth Amendment violation.
    10                                                  No. 22-2022
    and (3) there is a causal link between the protected activity
    and the adverse action.” Lewis v. Wilkie, 
    909 F.3d 858
    , 866 (7th
    Cir. 2018). For a retaliation claim, an adverse employment ac-
    tion is that which would “dissuade[] a reasonable worker
    from making or supporting a charge of discrimination.” Bur-
    lington N. & Santa Fe Ry. Co. v. White, 
    548 U.S. 53
    , 68 (2006).
    The plaintiff must show that the employer took the adverse
    employment action because of the protected activity. Lewis,
    
    909 F.3d at 866
    .
    It is undisputed that Giese’s filing of her April 5, 2019
    EEOC complaint constitutes protected activity under Title
    VII. She further contends that she engaged in two other pro-
    tected activities before she filed that complaint: (1) she filed a
    workers’ compensation claim on November 15, 2018, and (2)
    she complained to the head of human resources in early No-
    vember 2018. Neither our case law nor the record supports
    her contention.
    Although we have never expressly addressed whether a
    workers’ compensation claim is protected under Title VII,
    other circuits have concluded that it is not. See, e.g., Lanza v.
    Postmaster General of U.S., 
    570 F. App’x 236
    , 241 (3d Cir. 2014);
    Reynolds v. Am. Nat'l Red Cross, 
    701 F.3d 143
    , 154 (4th Cir.
    2012); Jimenez v. Potter, 
    211 F. App’x 289
    , 290 (5th Cir. 2006);
    Primm v. Dep’t of Hum. Servs., No. 16-6837, 
    2017 WL 10646487
    ,
    at *3 (6th Cir. Aug. 17, 2017); Davis v. Team Elec. Co., 
    520 F.3d 1080
    , 1093 n.8 (9th Cir. 2008). We follow the lead of our sister
    circuits in holding that filing a workers’ compensation claim
    alone is typically not protected activity under Title VII. Title
    VII prohibits discrimination on the basis of race, color, gen-
    der, national origin, age, or religion. In most cases, like here,
    the work-related injuries at issue in a workers’ compensation
    No. 22-2022                                                   11
    claim will not relate to the claimant’s protected characteris-
    tics. Where that is the case, the filing of a workers’ compensa-
    tion claim cannot be the basis of a Title VII retaliation claim.
    In contrast, the parties do not dispute that complaining to
    human resources about sex discrimination is protected activ-
    ity. See Harper v. C.R. Eng., Inc., 
    687 F.3d 297
    , 306 (7th Cir.
    2012); Malin v. Hospira, Inc., 
    762 F.3d 552
    , 558 (7th Cir. 2014).
    But that is not what happened here. In her deposition, Giese
    explained that, on November 5, she “advised [human re-
    sources] of the incident that had occurred and … [said she]
    wasn’t getting anywhere with the fire chief.” Giese com-
    plained that she had been directed “to amend [her] schedule
    to work around” Boyce and that she “had not been inter-
    viewed by the fire chief or chiefs and the union board yet.”
    Although we must make all inferences in favor of Giese on
    summary judgment, nothing in the record suggests that Giese
    informed human resources that she believed she was being
    discriminated against on the basis of her sex. Without a link be-
    tween the employer’s actions and the plaintiff’s protected
    class, this conversation cannot constitute protected activity
    under Title VII. See Tomanovich v. City of Indianapolis, 
    457 F.3d 656
    , 663 (7th Cir. 2006) (“Although filing an official complaint
    with an employer may constitute statutorily protected activ-
    ity under Title VII, the complaint must indicate the discrimi-
    nation occurred because of sex, race, national origin, or some
    other protected class.”). For these reasons, the only protected
    activity on which Giese can base her retaliation claim is the
    filing of her EEOC complaint.
    To prevail on a Title VII retaliation claim, the plaintiff can-
    not merely show that she engaged in protected activity; she
    must also show that the defendants retaliated against her for
    12                                                   No. 22-2022
    that activity. Although Giese provides a long list of alleged
    adverse employment actions to support her retaliation claim,
    we need only address those that occurred after April 5, 2019,
    the date she filed her EEOC complaint. As the district court
    thoughtfully explained, “[i]t is axiomatic that an employer
    cannot ‘retaliate’ against an employee for conduct in which
    the employee has not yet engaged.” See also Nischan v. Strato-
    sphere Quality, LLC, 
    865 F.3d 922
    , 933 (7th Cir. 2017) (“The
    problem with Nischan’s claim, however, is that Nischan
    lodged no complaint until after Stratosphere removed her
    from the lot.”).
    Giese points to only three actions occurring after April 5:
    (1) the defendants’ requirement that she return to work
    against medical advice; (2) their threat to fire her if she did not
    return to work by April 15; and (3) their failure to tell Casa-
    grande about her light work assignment. None of these asser-
    tions satisfy the adverse employment action element on this
    record.
    First, the record does not support Giese’s contention that
    she was required to return to work against medical advice.
    The workers’ compensation provider required that Giese be
    evaluated by a psychologist for a possible return to work, but
    Giese relies entirely on the opinion of her personal therapist.
    In contrast, the two psychologists who evaluated Giese con-
    cluded that she was capable of doing light work. The first psy-
    chologist, who had been referred to Giese by her personal
    therapist, concluded that Giese was “capable of working so
    long as it did not involve any life or death decision-making.”
    Further, Giese admitted in her deposition that, at the time of
    the evaluation, she agreed that she could engage in light
    work. The second psychologist similarly concluded that Giese
    No. 22-2022                                                            13
    could return to work with some light duty arrangement. Con-
    sidering the whole record, no reasonable jury could find that
    the defendants forced Giese to return to work as retaliation.
    The only reasonable inference from the medical evidence in
    this case is that the defendants required Giese to return to
    work for light duty because they believed her physically and
    mentally able to do so.
    Second, although Giese contends that Ellexson told her
    that they would terminate her if she did not return to work by
    April 15, there is no evidence in the record supporting this
    contention. Giese did not testify in her deposition that El-
    lexson made this threat and cites only her complaint allega-
    tion in her statement of undisputed facts. 4 See Burrell v. City of
    Mattoon, 
    378 F.3d 642
    , 648 (7th Cir. 2004) (“[M]ere allegations
    in the pleadings, unsupported by record evidence, cannot cre-
    ate an issue of fact defeating summary judgment.”).
    Third, although the defendants did not tell Casagrande of
    her light work assignment, Giese concedes that she was never
    required to perform tasks that she was not authorized to per-
    form. She admitted in her deposition that Casagrande did not
    “insist that [she] do things that [she was] restricted from do-
    ing”; that “neither Captain LaRoche or Captain Casagrande
    insist[ed] that [she] go ahead and do the[] [investigation] even
    though [she] said [she] didn’t think it was a good idea”; and
    that there was no “time during her light duty where [she was]
    … ordered or required to do [a] task” she could not do. These
    statements belie her arguments on appeal.
    4At oral argument, Giese’s counsel was unable to point the Court to
    any specific evidence, stating only that—if such evidence did, in fact, ex-
    ist—it would be in Giese’s deposition.
    14                                                 No. 22-2022
    III. Conclusion
    We are sympathetic to Giese, who continues to suffer men-
    tal and physical injuries from an attack that should never have
    occurred. But Giese’s remedy, if any, is not in federal court.
    For the foregoing reasons, Giese fails to create a genuine dis-
    pute of material fact precluding summary judgment regard-
    ing her Fourth Amendment Monell claim and her Title VII re-
    taliation claim. The district court, therefore, properly granted
    summary judgment to the defendants.
    AFFIRMED