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 responding 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 injuries 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 after. She then filed this lawsuit, alleging that the defendants, 

among other things, retaliated against her for certain protected activities under Title VII and condoned aggressive and 

inappropriate behaviors as part of a “code of silence” that resulted in her attack. The district court granted summary judgment for the defendants, and this appeal followed.

I. Background

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 secondfloor 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.
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 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. 

Some firefighters and union members later testified that they 

believed this punishment to be relatively light, and Giese contends 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 regarding 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 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. 

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 Employment Opportunities Commission (“EEOC”) alleging harassment and sex discrimination. A week later, Ellexson called 

Giese to discuss her return to work. According to Giese, Ellexson 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 investigation. Giese told Casagrande that she was assigned to light 

duty and therefore could not conduct the investigation. Casagrande did not insist or require her to complete the fire investigation 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 retaliation 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 employment actions after that point. 

Giese timely appealed the district court’s decision with respect to her Fourth Amendment Monell and Title VII retaliation 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 Title VII and the Equal Protection Clause in her opening appellate brief.

II. Analysis

A. Fourth Amendment Monell Claim

“[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.” 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 indifference to the plaintiff’s constitutional rights. Id. at 987. Additionally, the plaintiff must prove that the municipality’s action 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 violate 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 defendants 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 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 practicethat 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. Lindsay, 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 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.” 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 support, 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 almost exclusively anecdotal evidence of Boyce’s past behaviors. 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 existence 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) (describing the “narrow range of circumstances” in which “a pattern 

of similar violations might not be necessary to show deliberate 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 deliberate 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 doctrine are rare”; “[a] constitutional violation must be a ‘blatantly obvious’ consequence of inaction for single-incident liability” 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 temper, 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 sometimes 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 expected 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 Monell 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 action is that which would “dissuade[] a reasonable worker 

from making or supporting a charge of discrimination.” Burlington 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 protected 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 November 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, gender, 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 characteristics. Where that is the case, the filing of a workers’ compensation 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 activity. 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 resources] of the incident that had occurred and ... [said she] 

wasn’t getting anywhere with the fire chief.” Giese complained that she had been directed “to amend [her] schedule 

to work around” Boyce and that she “had not been interviewed 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 between 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 activity under Title VII, the complaint must indicate the discrimination 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 cannot 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. Stratosphere 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 Casagrande about her light work assignment. None of these assertions 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 concluded that she was capable of doing light work. The first psychologist, 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. Considering 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 Ellexson made this threat and cites only her complaint allegation 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 create 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 perform. She admitted in her deposition that Casagrande did not 

“insist that [she] do things that [she was] restricted from doing”; 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.

4 At oral argument, Giese’s counsel was unable to point the Court to 

any specific evidence, stating only that—if such evidence did, in fact, exist—it would be in Giese’s deposition.
14 No. 22-2022

III. Conclusion

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.

AFFIRMED