Seventh Circuit Upholds Ruling In Favor of Kankakee FD in Assault Case

The US Seventh Circuit Court of Appeals has upheld summary judgment in favor of the City of Kankakee in a lawsuit brought by a female firefighter who accused her officer of assaulting her while they were fighting a fire. Michelle Giese claims Lieutenant Nathan Boyce picked her up and pushed her on October 18, 2018, and the department retaliated against her after she reported it.

Her suit alleged a violation of her Fourth Amendment Rights, gender discrimination in violation of Title VII, and fourteen other counts. Here is more on the filing, including a copy of the complaint. The US District Court for the Central District of Illinois ruled in favor of the city, prompting Giese’s appeal.

The Seventh Circuit explained the facts as follows:

• On October 18, 2018, Michelle Giese and several other firefighters, 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 contained 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 apartment, they dropped the hose and entered the apartment to assist an elderly woman who had caught on fire.
• 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 complete 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.
• As a result of the incident, Giese experienced ongoing psychological and physical trauma in the form of decreased ability 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 instructed 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.
• 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.

The Seventh Circuit then addressed the legal basis for its decision to uphold the district court:

• “[T]o prevail on a § 1983 claim against a municipality under Monell, a plaintiff must challenge conduct that is properly attributable to the municipality itself.”
• 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 indifference to the plaintiff’s constitutional rights.
• 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.
• Specifically, 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 violate Giese’s Fourth Amendment rights.
• On the merits, Giese’s claim fails because none of her evidence, separately or taken together, creates a genuine dispute regarding whether the defendants had a practice of condoning 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.”
• The undisputed facts in the record indicate that Boyce’s actions were unprecedented.
• Prior to the incident, no KFD firefighter had ever been violent against another firefighter while on duty, and the record does not suggest that anyone had anger or drinking problems at work.
• By itself, Giese’s anecdotal evidence does not “establish a tie between [Boyce’s actions] and the … department as a whole.”
• 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 expected him to act that way.
• For these reasons, the district court properly granted summary judgment on Giese’s Monell 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; and (3) there is a causal link between the protected activity and the adverse action.”
• For a retaliation claim, an adverse employment action is that which would “dissuade a reasonable worker from making or supporting a charge of discrimination.”
• To prevail on a Title VII retaliation claim, the plaintiff cannot merely show that she engaged in protected activity; she must also show that the defendants retaliated against her for that activity.
• Giese provides a long list of alleged adverse employment actions to support her retaliation claim.
• None of these assertions satisfy the adverse employment action element on this record.
• We are sympathetic to Giese, who continues to suffer mental 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 dispute of material fact precluding summary judgment regarding her Fourth Amendment Monell claim and her Title VII retaliation claim.
• The district court, therefore, properly granted summary judgment to the defendants.

Here is a copy of the decision: