Seventh Circuit Affirms Summary Judgment for HCB Municipal Clients in Employment Case

June 27, 2023

Plaintiff Michelle Giese, a former lieutenant for the City of Kankakee’s fire department, was responding to an active fire call when she was grabbed, shoved into a wall, and screamed at by a male lieutenant, who had lost his temper of perceived disobedience to his on-scene orders. Critically, she and the male lieutenant had been close friends prior to the incident and every witness said they were “shocked” or “surprised” at the male lieutenant’s actions.

Giese filed a 16-count lawsuit against her assailant, the City and its fire chief. Federal District Judge Colin Bruce granted summary judgment to the City and the Fire Chief on all of Giese’s federal claims. He then relinquished jurisdiction of all the remaining state law claims, leaving Giese free to re-file them in state court.

Instead, Giese appealed the grant of summary judgment on her Monell policy-and-practice claim and her Title VII retaliation claim (she conceded to dismissal of her gender discrimination claims). The Seventh Circuit affirmed Judge Bruce’s decision on all counts.

As to the Monell claim, Giese had no evidence of any “widespread practice” of unconstitutional conduct within the fire department. Rather, every witness, including Giese herself, admitted that this incident was the only instance of workplace violence in department history. In addition, Giese’s assailant had never even threatened physical harm to another firefighter while on duty, and no one had ever reported that they felt unsafe working for him. Giese’s anecdotal evidence of off-duty intoxication and yelling did not come close to showing that the City acted with “deliberate indifference” to the risk of workplace violence, so this count was properly dismissed.

As to the retaliation claim, Giese insisted that filing a workers’ compensation claim triggered Title VII anti-retaliation protections. This position, however, is contrary to the text of Title VII. The Seventh Circuit joined every other circuit to have addressed the issue in holding that filing a workers’ compensation claim might be protected activity under some statutes, but not under Title VII.

Giese’s filing of an EEOC claim, by contrast, did trigger Title VII protections. But she suffered “adverse employment action” after that filing. Giese’s insistence that the City had required her to return to work against “medical” advice was belied by the record. The City required her to return to light duty only after two psychologists, one of whom she chose, said Giese was capable of light duty. The contrary opinion of Giese’s talk therapist was irrelevant. The Seventh Circuit rejected her remaining arguments, ultimately noting that while it was sympathetic to Giese, the proper remedy was not in federal court.

Hervas, Condon, & Bersani attorneys Michael Condon and David Mathues represented the city and the fire chief (the male lieutenant had separate counsel for conflicts reasons). David Mathues argued the appeal on May 24, 2023.

Giese Opinion Affirming SJ

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