United States Court of Appeals For the Seventh Circuit
Employment — retaliation
Where the moving party does not raise an issue in support of its motion for summary judgment, the nonmoving party is not required to present evidence on that point, and the district court should not rely on that ground in its decision.
“Given the path this case took through the district court, we think that a remand is better. While the support in the record for some of Cloe’s claims is sparse, the record might look very different without the City’s forfeiture. Discovery did not close until after the City moved for summary judgment. If the City had presented its arguments at that time, Cloe might well have provided new evidence to counter them. Perhaps Cloe has other evidence that she simply did not present because it was not relevant to the City’s motion. Or perhaps Cloe could have used the still-open discovery period to seek out new evidence to meet the City’s objections.”
“But a ‘nonmovant is not required to present evidence on an issue not raised by the movant.’ Costello, 651 F.3d at 635. And, as discussed, the City’s brief in support of summary judgment did not put Cloe on notice that her discriminatory termination claim would be at issue. As a result, the City’s failure to raise its arguments below may have prevented Cloe from fully presenting her evidence. Accordingly, remand is appropriate.”
Affirmed in part, and Reversed in part.
Appeal from the United States District Court for the Southern District of Indiana, Lawrence, J., Kanne, J.