Joseph McGreal v. Timothy McCarthy, et al
Filed opinion of the court by Judge Kanne. AFFIRMED. Daniel A. Manion, Circuit Judge; Michael S. Kanne, Circuit Judge and David F. Hamilton, Circuit Judge. [6823459-1]  [16-2365]
United States Court of Appeals
For the Seventh Circuit
JOSEPH S. MCGREAL,
THE VILLAGE OF ORLAND PARK, TIMOTHY MCCARTHY, PATRICK
DUGGAN, and JAMES BIANCHI,
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 C 5135 — Joan H. Lefkow, Judge.
ARGUED DECEMBER 8, 2016 — DECIDED MARCH 6, 2017
Before MANION, KANNE, and HAMILTON, Circuit Judges.
KANNE, Circuit Judge. On June 28, 2010, Joseph McGreal
was fired from his position as a police officer with the Or‐
land Park Police Department. Thereafter, he sued the Village
of Orland Park and three members of the police depart‐
ment—Chief of Police Timothy McCarthy, Lieutenant Patrick
Duggan, and Lieutenant James Bianchi—claiming that the
defendants violated his First Amendment rights by firing
him in retaliation for his exercise of protected speech at a
community board meeting. He also brought a state‐law in‐
tentional‐infliction‐of‐emotional‐distress claim. The defend‐
ants filed a motion for summary judgment, which the dis‐
trict court granted.
This appeal ultimately comes down to evidence, or per‐
haps more appropriately, a lack of it. Because McGreal has
offered no admissible evidence showing that he is entitled to
relief, the district court properly dismissed his claims.
McGreal began working as a police officer in the Village
of Orland Park on January 10, 2005. Early in his career,
McGreal performed competently: he received positive re‐
views on his performance evaluations and was nominated
for various commendations and other honors. But conflict
between McGreal and the police department arose in 2009,
which culminated in McGreal’s firing on June 28, 2010.
McGreal alleges that he was fired because of his exercise
of protected speech at a village board meeting held on No‐
vember 2, 2009. The village had called that meeting to dis‐
cuss options to address an anticipated budgetary shortfall.
One of the cost‐saving options that the village proposed in‐
volved laying off as many as seven full‐time police officers.
McGreal, who had been elected secretary of the local police
union in 2008, contends that he attended the meeting on be‐
half of the union. There, he allegedly presented three alter‐
native solutions, none of which required the laying off of
any full‐time officers: (1) eliminating certain newly‐created,
non‐essential positions; (2) eliminating the take‐home squad‐
car program for certain lieutenant positions; and (3) creating
a new longevity‐benefit program that would allow eligible
officers to take early retirement. McGreal contends that those
solutions, which protected lower‐level police officers at the
expense of their superiors, drew the ire of the defendants.
According to McGreal, the defendants then retaliated against
him because of his speech by accusing, interrogating, and
ultimately firing him under the pretext of unsubstantiated
violations of department policy.
The defendants, on the other hand, deny knowing that
McGreal engaged in any protected speech or even attended
the November 2 board meeting. Instead, they argue that
McGreal was legitimately fired because of a series of inci‐
dents that occurred in late 2009 and early 2010, none of
which involved any protected speech.
The first incident occurred on October 27, 2009. That
evening, McGreal conducted a traffic stop of a man named
Charles Robson, which McGreal’s in‐squad video camera
recorded. Because McGreal turned his microphone off short‐
ly after placing Robson in handcuffs, the police department
questioned whether the stop had been performed properly.
The defendants also allege that McGreal initially refused to
write a report for the stop and even lied under oath about
what occurred during the stop. The department conducted
an investigation of the stop and its aftermath on November
The defendants next contend that McGreal committed
several acts of misconduct shortly after the November 2
board meeting. These included two unauthorized, unneces‐
sary, and dangerous high‐speed chases. The defendants also
point to McGreal’s behavior at an awards banquet on No‐
vember 24, 2009, during which McGreal allegedly ostracized
a fellow officer who had been honored as the Officer of the
Year. The defendants further allege that McGreal continued
this inappropriate behavior during his shift that same even‐
ing after the banquet.
Because of these and other incidents, the department in‐
terrogated McGreal on January 21, 2010. Specifically, they
questioned McGreal under oath about his actions during the
Robson traffic stop, the awards ceremony, and his shift im‐
mediately following the awards ceremony. The defendants
allege that McGreal lied during the interrogation about each
of those incidents. Afterward, the defendants contend that
McGreal committed several additional acts of misconduct,
including one instance of reckless driving while off duty.
On March 5, 2010, the department placed McGreal on
paid administrative leave. McGreal’s misconduct continued
after this date. The written order placing McGreal on leave
included a no‐contact clause, which ordered McGreal “to
have no contact or discussion of any kind with any member
of this department, citizen or complainant regarding these
investigations.” (R. 215‐23 at 1.) According to the defendants,
McGreal violated the no‐contact clause on at least two occa‐
sions. The department interrogated McGreal again on March
24, 2010. There, the defendants allege that McGreal again
lied under oath, claiming that he never contacted anyone in
the department about his case. The department ordered him
to provide his phone records to verify his testimony, but
McGreal refused, claiming that he was not an authorized us‐
er on his telephone account and could not obtain the records.
The department then obtained the records by subpoena,
which revealed that McGreal had in fact contacted at least
two officers. The records also showed that, on the same day
the department had asked him to provide his phone records,
McGreal had removed his name as an authorized user on the
account in an apparent effort to obstruct the department’s
On April 21, 2010, the department presented McGreal
with a “summarized list of reasons for contemplated disci‐
plinary action,” which charged McGreal with a total of six‐
teen acts of misconduct. (R. 215‐24 at 2.) After meeting with
McGreal, Chief McCarthy filed a statement of charges with
the Board of Fire and Police Commissioners. (R. 220‐20.)
McGreal was then fired on June 28, 2010.
McGreal contested his termination through arbitration.
After meeting with the parties seventeen times over a four‐
teen‐month period, the arbitrator sustained McGreal’s ter‐
mination on November 14, 2012. McGreal unsuccessfully
appealed the arbitrator’s decision in the Appellate Court of
Illinois. McGreal v. Village of Orland Park, No. 1‐14‐1412, 2015
WL 256529 (Ill. App. Ct. Jan. 20, 2015); McGreal v. Ill. Labor
Relations Bd. State Panel, No. 1‐13‐3634, 2014 WL 7176785 (Ill.
App. Ct. Dec. 16, 2014).
On June 27, 2012, McGreal filed this lawsuit under 42
U.S.C. § 1983 against the defendants in the Northern District
of Illinois. In his complaint, McGreal alleged various consti‐
tutional and state‐law claims surrounding his termination
including: (1) a violation of due process under the Four‐
teenth Amendment, (2) retaliation in violation of the First
Amendment, (3) a Monell claim against the Village of Orland
Park and the police department, (4) tortious interference
with advantageous business relations, and (5) intentional in‐
fliction of emotional distress. He further alleged that the vil‐
lage was liable under respondeat superior and indemnifica‐
The defendants filed a motion to dismiss, which the dis‐
trict court granted in part and denied in part on August 2,
2013. In particular, the district court dismissed all claims
against the individual defendants in their official capacities,
limited McGreal’s § 1983 claims to alleged violations that oc‐
curred on or after June 28, 2010, and dismissed certain
claims that were related to the arbitration hearing or that
should have been filed with the Illinois Labor Relations
Board. The defendants then filed a motion for summary
judgment, which the district court granted in its entirety on
April 15, 2016. The district court denied McGreal’s motion
for reconsideration on May 24, 2016. This appeal followed.
We review de novo a district court’s grant of summary
judgment, construing all facts and reasonable inferences in
favor of the nonmoving party. Tapley v. Chambers, 840 F.3d
370, 376 (7th Cir. 2016). Summary judgment is proper when
“the admissible evidence shows that there is no genuine is‐
sue as to any material fact and that the moving party is enti‐
tled to judgment as a matter of law.” Id. (quoting Hanover
Ins. Co. v. N. Bldg. Co., 751 F.3d 788, 791 (7th Cir. 2014)).
On appeal, McGreal contests only the district court’s
dismissal of his First Amendment and intentional‐infliction‐
of‐emotional‐distress claims. Our review is thus limited to
those claims. See e.g., United States v. Beavers, 756 F.3d 1044,
1059 (7th Cir. 2014) (treating as waived arguments that an
appellant did not raise in his opening brief). We begin with
his First Amendment claim and then turn to his intentional‐
A. First Amendment Retaliation
McGreal first argues that the defendants violated his First
Amendment rights by firing him in retaliation for his speech
at the November 2 board meeting. To prevail on this claim,
McGreal must show that “(1) he engaged in activity protect‐
ed by the First Amendment; (2) he suffered a deprivation
that would likely deter First Amendment activity in the fu‐
ture; and (3) the First Amendment activity was at least a mo‐
tivating factor in the defendants’ decision to take the retalia‐
tory action.” Perez v. Fenoglio, 792 F.3d 768, 783 (7th Cir. 2015)
(quoting Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009)).
The defendants dispute only the third element—in short,
causation—arguing that McGreal’s termination had nothing
to do with his speech.
At summary judgment in First Amendment retaliation
cases, the burden of proof for causation is divided and shifts
between the parties. Kidwell v. Eisenhauer, 679 F.3d 957, 965
(7th Cir. 2012). First, the plaintiff must produce evidence that
his speech was “at least a motivating factor—or, in philo‐
sophical terms, a ‘sufficient condition’—of the employer’s
decision to take retaliatory action against him.” Id. (quoting
Greene v. Doruff, 660 F.3d 975, 979–80 (7th Cir. 2011)). If the
plaintiff makes this initial showing, the burden then “shifts
to the employer to rebut the causal inference.” Id. The em‐
ployer can meet its burden by offering an alternative expla‐
nation for the firing, showing that its decision to terminate
the plaintiff “would have been made in the absence of the
protected speech.” Thayer v. Chiczewski, 705 F.3d 237, 252 (7th
Cir. 2012). If the employer successfully rebuts the causal in‐
ference, the burden shifts back to the plaintiff to “demon‐
strate that the [employer’s] proffered reason was pretextual
and that the real reason was retaliatory animus.” Id.
Here, McGreal fails at both steps one and three in this
burden‐shifting analysis. First, he has provided no admissi‐
ble evidence that his speech was a motivating factor of the
defendants’ decision to fire him. Second, even if he had
made that initial showing and shifted the burden back to the
defendants, McGreal has provided no admissible evidence
that the defendants’ alternative explanations for his firing
were pretextual. See Swearnigen‐El v. Cook Cnty. Sheriff’s
Dept., 602 F.3d 852, 861–63 (7th Cir. 2010) (analyzing both
1. McGreal’s Speech as a Motivating Factor
To show that his firing was motivated by his protected
speech, McGreal must first demonstrate that the defendants
knew of the protected speech. “Allegedly protected speech
cannot be proven to motivate retaliation, if there is no evi‐
dence that the defendants knew of the protected speech.”
Stagman v. Ryan, 176 F.3d 986, 999–1000 (7th Cir. 1999) (cita‐
tion omitted). McGreal argues that the defendants retaliated
against him because of his speech at the November 2 board
meeting. To survive summary judgment, he thus has to pro‐
vide admissible evidence that the defendants were aware of
that speech before they initiated disciplinary proceedings.
McGreal has not met his burden: none of the “many doc‐
uments” he references actually show that the defendants
were aware of his speech. (Appellant’s Br. at 29.) The first
few documents McGreal cites—a memorandum written by
the village manager to “All Village Employees” (R. 220‐15 at
24) and an email from the union president to the union’s
members (R. 220‐15 at 25)—were actually created weeks be‐
fore the November 2 meeting and thus could not have pro‐
vided the defendants with knowledge of who attended the
meeting or what the meeting’s attendees discussed. Other
documents McGreal references—a letter from the village
manager to the union president (R. 220‐17 at 20) and an
email from the union president to the village manager (R.
220‐16 at 14)—do not address the November 2 meeting at all.
The deposition testimony that McGreal cites also doesn’t
show that the defendants knew of McGreal’s speech. Alt‐
hough Chief McCarthy admitted during his deposition that
he was aware that McGreal had met with the mayor and
other board members on October 26, McCarthy did not testi‐
fy that he knew McGreal attended or engaged in protected
speech at the November 2 meeting. (R. 220‐9 at 26.) Because
McGreal has provided no evidence that the defendants knew
of his speech, he has failed to show that his speech was a
motivating factor of the defendants’ decision to fire him.
Stagman, 176 F.3d at 999–1000.
2. The Defendants’ Alternative Explanations
Had McGreal made the initial showing that the defend‐
ants were aware of his protected speech and that his speech
was a motivating factor in his firing, the burden would have
shifted to the defendants to provide a legitimate and non‐
retaliatory explanation for the firing. But because the de‐
fendants provided several alternative explanations for
McGreal’s firing—that he (1) lied under oath during several
formal interrogations, (2) committed numerous acts of in‐
subordination, and (3) engaged in reckless conduct while on
duty—the burden would have again shifted back to McGreal
to show that these explanations were pretextual. See Thayer,
705 F.3d at 252. To show pretext and to survive summary
judgment, McGreal must “produce evidence upon which a
rational finder of fact could infer that the defendant[s’] prof‐
fered reason[s] [are] lie[s].” Zellner v. Herrick, 639 F.3d 371,
379 (7th Cir. 2011).
Again, McGreal has failed to meet his burden: he has of‐
fered no admissible evidence to show that the defendants’
nonretaliatory explanations for his firing were anything but
true. Although he does cite a few documents to bolster his
pretext argument, none of these are sufficient to withstand
summary judgment. For instance, he cites his own unsigned
affidavit (R. 220‐14), his Second Amended Complaint (R. 89
at ¶ 14), his statement of undisputed material facts (R. 220‐2
at ¶¶ 39, 41), and a spreadsheet that he created based largely
on his own experiences (R. 220‐21 at 45–47). He also tries to
bolster his argument with irrelevant citations to portions of
the record that have nothing to do with his firing. In short,
the documents he references are not admissible evidence
showing that the defendants’ explanations are pretextual.
McGreal also largely relies on the suspicious timing of
events to show pretext. But as we have repeatedly held, sus‐
picious “timing alone does not create a genuine issue as to
pretext if the plaintiff is unable to prove, through other cir‐
cumstantial evidence, that he was terminated for a reason
other than that proffered by the employer.” Pugh v. City of
Attica, 259 F.3d 619, 629 (7th Cir. 2001). “The reason is obvi‐
ous: ‘[s]uspicious timing may be just that—suspicious—and
a suspicion is not enough to get past a motion for summary
judgment.’” Kidwell, 679 F.3d at 966 (quoting Loudermilk v.
Best Pallet Co., 636 F.3d 312, 315 (7th Cir. 2011)). Because
McGreal has cited no evidence apart from suspicious timing
that the defendants’ alternative explanations are untrue, he
has failed to meet his burden. The district court thus did not
err in granting the defendants’ motion for summary judg‐
ment as to McGreal’s First Amendment retaliation claim.
B. Intentional Infliction of Emotional Distress
McGreal next argues that the defendants’ conduct
amounted to an intentional infliction of emotional distress.
To prevail on this claim under Illinois law, McGreal must
show that (1) the defendants engaged in “extreme and out‐
rageous” conduct; (2) the defendants “either intended that
[their] conduct would inflict severe emotional distress, or
knew there was a high probability that [their] conduct
would cause severe emotional distress”; and (3) the defend‐
ants’ “conduct in fact caused severe emotional distress.” Zo‐
retic v. Darge, 832 F.3d 639, 645 (7th Cir. 2016) (citing Doe v.
Calumet City, 641 N.E.2d 498, 506 (Ill. 1994)).
McGreal has offered absolutely no evidence that the de‐
fendants’ conduct was extreme or outrageous or that their
conduct caused him severe emotional distress. To the contra‐
ry, in his own brief, McGreal admits that the “severity” of his
emotional distress was “probably of the garden variety.”
(Appellant’s Br. at 53.) “The law intervenes only where the
distress inflicted is so severe that no reasonable man could
be expected to endure it.” McGrath v. Fahey, 533 N.E.2d 806,
809 (Ill. 1988) (quoting Restatement (Second) of Torts § 46,
cmt. j (1965)). Garden‐variety emotional distress is insuffi‐
cient to meet that standard. The district court did not err in
granting the defendants’ motion for summary judgment as
to McGreal’s intentional‐infliction‐of‐emotional‐distress
For the foregoing reasons, the district court’s grant of the
defendants’ motion for summary judgment is AFFIRMED.
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