United States District Court, N.D. Illinois
January 8, 2004.
PHILLIP WISEMAN, Plaintiff,
JEROME SCHULTZ, individually and in his official capacity as Chief of Police of the Willow Springs Police Department, the VILLAGE OF WILLOW SPRINGS, a municipal corporation, STEVEN MUSCOLINO individually and in his official capacity as Trustee for the Village of Willow Springs, JOHN LYNN, individually and in his official capacity as Lieutenant of the Willow Springs Police Department, CHRISTOPHER LIMAS, individually and in his official capacity as Village Administrator of the Village of Willow Springs, TERRANCE CARR, individually and in his official capacity as President of the Village of Willow Springs, Defendants
The opinion of the court was delivered by: JOAN GOTTSCHALL, District Judge
MEMORANDUM OPINION AND ORDER
As a result of events leading to his termination, Phillip Wiseman
sued Willow Springs and various public officials both individually and in
their official capacities, including Police Chief Jerome Schultz, Village
Trustee Steven Muscolino, Lieutenant John Lynn, Village Administrator
Christopher Limas, and Village President Terrance Carr (collectively
"defendants"). Wiseman alleges violations of 42 U.S.C. § 1983 for
retaliation based on the exercise of his First Amendment rights.
Defendants move to dismiss for failure to state a claim. Plaintiff
countered with a motion for sanctions, claiming defendants filed their
motion in bad faith. For the reasons that follow, both motions are
Wiseman was employed as a police officer for the Village of Willow
Springs from June 1995 until he was terminated in November 2002. He
alleges the following incidents led to his termination.
In 1998, Wiseman was working on a criminal matter in which drugs and
money were seized and inventoried by the police department. Defendant
Schultz took custody of the evidence and allegedly discarded it. During
the trial, when the State's Attorney requested the evidence, Defendant
Schultz allegedly told Wiseman to use substitute evidence. Wiseman
refused to do so.
In November 2001, in his capacity as Union Steward, Wiseman assisted a
fellow officer in making a report to the Cook County State's Attorney's
Office. The officer had been threatened with discipline for not signing a
complaint against a citizen. Wiseman cooperated with the State's Attorney
by giving a statement "regarding what he believed to be corruption and
misconduct" in the police department. (Compl. ¶ 17) Defendant Lynn
later asked Wiseman what he told the State's Attorney and allegedly
threatened Wiseman when he refused to divulge any information. Wiseman
alleges he was subject to unwarranted discipline and was refused backup
on numerous calls after this incident.
In May 2002, Wiseman learned that a fellow officer had tested positive
for drug use. Following an informal meeting of several officers, Wiseman
assisted in preparing a memorandum expressing concern over working with
an officer who had tested positive for drug use. The memorandum was
signed by ten officers and forwarded to the Police Chief, the Village
Administrator and the Village President. Defendants Schultz and Lynn
approached each officer and requested that he remove his name from the
memo. All but four complied.
A few days later, an anonymous flyer was distributed throughout the
Village of Willow Springs reporting the officer's drug use and
criticizing the department's handling of the situation. Defendants began
investigating who distributed the flyer. Defendant Muscolino reportedly
stated that those who made false accusations against the Village need to
be punished. Wiseman was questioned regarding dissemination of the flyer.
Sometime thereafter, Wiseman gave a statement to the Equal Employment
Opportunity Commission regarding an officer's discrimination claim.
In October 2002, Defendant Schultz ordered Wiseman to impound a
vehicle. Wiseman refused because he believed the order was unlawful.
Shortly thereafter, Wiseman was interrogated a second time concerning
distribution of the flyer as well as his knowledge of drug sales by
members of the department. As part of the investigation, Wiseman was
In November 2002, Wiseman was terminated for his alleged "`involvement'
or `dissemination' of letters critical of the Village of Willow Springs,
the Police Department, and another officer for his alleged drug use;" for
failing to obey an order to impound a vehicle, and for conduct relating
to other arrests. (Compl. ¶ 39)
In considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), "a
court may dismiss a complaint only if it is clear that no relief could be
granted under any set of facts that could be proved consistent with the
allegations." Hishon v. King & Spaulding, 467 U.S. 69, 73
(1984) (citing Conley v. Gibson, 355 U.S. 41 (1957)). The
complaint need only set out "a short and plain statement showing the
plaintiff is entitled to relief, the purpose of which is to give the
defendant notice of the claims and the grounds they rest upon."
Thompson v. Illinois Dep't of Prof'l Regulation, 300 F.3d 750,
753 (7th Cir. 2002) (citing Leatherman v. Tarrant Cty. Narcotics
Intelligence and Coordination Unit, 507 U.S. 163 (1993)). The court
must accept as true all well-pleaded facts and must draw all reasonable
inferences from those allegations in plaintiffs favor. Hernandez v.
City of Goshen, 324 F.3d 535, 537 (7th Cir. 2003).
A. First Amendment
Plaintiff brought suit under § 1983, alleging defendants violated
his First Amendment rights by punishing and ultimately discharging him
because he spoke out against alleged improprieties within the police
department. Defendants moved to dismiss, arguing plaintiff's speech did
not address a matter of public concern and therefore was not subject to
First Amendment protection.
Determining whether speech by a public employee is constitutionally
protected is a two-step process. First, a court must determine whether
the plaintiff speaks "as a citizen upon matters of public concern."
Connick v. Myers, 461 U.S. 138, 147 (1983). Second, the court
must balance the employee's interest in expressing himself with interest
of the State, as an employer, in promoting the efficiency of the public
services it performs through its employees. Id. at 142;
Picketing v. Board of Education, 391 U.S. 563, 568 (1968).
Because defendants do not argue that Wiseman's interest in expressing
himself was outweighed by a legitimate interest of the Village, the court
is concerned only with the first step.
In determining whether speech is of public concern, a court must look
to the content, form and context of the speech. Connick, 461
U.S. at 147-48. Of these, content is the most important factor.
Campbell v. Towse, 99 F.3d 820, 827 (7th Cir. 1996). The Seventh
determined that content addressing "police protection and public
safety" is generally a matter of public concern. Delgado v.
Jones, 282 F.3d 511, 517 (7th Cir. 2002). See also Kinney v.
Weaver, 301 F.3d 253, 276 (7th Cir. 2002) (citation omitted) (speech
regarding the misconduct of public officials, "especially when it
concerns the operation of a police department," is of utmost First
Amendment significance); Myers v. Hasara, 226 F.3d 821, 826 (7th
Cir. 2000) (noting importance of public employees' right to "expose
misdeeds and illegality in their departments). However, speech relating
solely to personal grievances and routine performance of assigned job
duties is not a matter of public concern. Delgado, 282 F.3d at
518-19; Dishnow v. School Dist. of Rib Lake, 77 F.3d 194, 197
(7th Cir. 1996). The form and context of speech are clarified by
examining the speaker's motivation. Delgado, 282 F.3d at 518.
The court must ascertain whether the speaker's point was to bring
wrongdoing to light or to further some purely personal interest.
Richter v. Village of Oak Brook, 2003 WL 22169763, at *12 (N.D.
Ill. Sept. 19, 2003).
Plaintiff claims he was punished and ultimately fired because he 1)
refused to follow orders of his superior officers, 2) gave statements to
the State's Attorney and the EEOC on behalf of other officers, and 3)
participated in drafting a memo criticizing the department's disciplinary
procedures. The court is satisfied that the latter instance is of public
concern. See order dated December 30, 2003 in Sims v.
Schultz, 03 C 381 (N.D. Ill.). Wiseman's speech relates to providing
effective police protection and public safety and does not appear to be
motivated by a personal grievance or interest. Similarly, based on the
allegations in the complaint, it is conceivable that Wiseman's statements
to the State's Attorney and the EEOC were designed to
shed tight on alleged wrongdoing within the police department.*fn1
Wiseman's disagreements with superior officers may be a closer call. One
appears to be in the nature of a cover-up of discarded evidence and the
other a potentially unlawful order to impound a car. Wiseman does not
allege he discussed these incidents with anyone or did anything to bring
the alleged wrongdoings to light, and accordingly, Wiseman's speech, in
these instances may, depending on the facts proven, fall into the realm
of personal disputes. Nonetheless, the other alleged incidents plainly
involve speech that is a matter of public concern. Plaintiff has alleged
adequate facts to state a claim.
This conclusion is supported by a number of cases involving police
officers* reports of potential improprieties and criticism of department
policies. In Gustafson v. Jones, 117 F.3d 1015, 1017-19 (7th
Cir. 1997), a police officer's comments to co-workers, union officials
and the Milwaukee Police Association criticizing his superior's handling
of a shooting investigation and subsequent creation of a policy
prohibiting unauthorized follow-up investigations amounted to protected
speech. In Delgado, 282 F.2d at 517-18, a police officer's
internal memorandum summarizing his investigation of possible criminal
activity by a close relative of an elected official amounted to protected
speech. Finally, in an order dated January 17, 2002 in Hare v.
Zitek, Case No. 02 C 3973 (N.D. Ill.) (unpublished), a police
officer's report to the police chief, village president, village trustee
and ultimately to the Cook County States Attorney of alleged embezzlement
and bribery within the department was a matter of public concern.
Defendants insist Wiseman's comments are not of public concern because
they were made during the course of his employment, were within his job
duties, were in furtherance of his
own personal interests, and were not made in a public forum. These
arguments are without merit. Wiseman's communications with Village
officials, not to mention the State's Attorney and EEOC, unquestionably
constituted speech in a public forum. See Delgado, 282 F.2d at
518 (finding private communications with superiors to be of public
concern). Further, Wiseman's decision to assist others in (a) filing
complaints against the department and (b) writing a memo criticizing the
department's disciplinary practices cannot be characterized as part of
his assigned or routine job duties. Indeed, Wiseman was not required to
act as he did in these situations. While defendants make a conclusory
claim that Wiseman's conduct was in furtherance of his personal
interests, they point to no facts that suggest Wiseman was motivated by a
personal dispute or that he stood to gain anything as a result of his
conduct; to the contrary, he was allegedly punished and fired because of
Defendants cite a number of cases where the speech at issue was not
protected because it was incident to assigned job functions or along the
lines of a personal dispute. While defendants repeatedly urge the court
to come to a similar conclusion, they have provided no convincing
analysis of how these cases apply to the present allegations. For
instance, defendants rely on Gonzalez v. City of Chicago,
239 F.3d 939 (7th Cir. 2001).*fn2 In Gonzalez, the plaintiff
claimed he was retaliated against based on reports he wrote when he was
working in the Office of Professional Standards. Id. at 940. The
court found his speech was not a matter of public concern because he was
reporting on his investigations as required by his employer. Id.
at 941. Thus, the reports were created as part of his ordinary job
responsibilities. Id. Under those
circumstances, the plaintiff was acting as an employee, not a
concerned citizen. Id. The Seventh Circuit has since limited the
Gonzalez holding to the "routine discharge of assigned
functions, where there is no suggestion of public motivation" and no
exercise of discretion or independent judgment. Delgado, 282
F.3d at 519. Viewing the facts in a light most favorable to plaintiff, it
does not appear that Wiseman's conduct was not part of his routine job
duties. Gonzalez does not control.
The court finds that Wiseman's speech addresses a matter of public
concern and states a colorable claim for retaliation under the First
Amendment. Therefore, defendants' motion to dismiss plaintiffs § 1983
claim is denied.
B. Qualified Immunity
Defendants Lynn and Schultz assert that they should be dismissed from
this suit on the basis of qualified immunity. Public officials performing
discretionary functions generally are shielded from civil liability
unless their conduct violates "clearly established statutory or
constitutional rights of which a reasonable person would have known."
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The test is
whether a reasonable official would have understood that what she was
doing was unlawful. Gustafson, 117 F.3d at 1021. Qualified
immunity applies unless (1) the complaint alleges facts which, if proven,
would amount to a constitutional violation, and (2) the constitutional
standards were clearly established at the time of the alleged violation.
Delgado, 282 F.3d at 516.
Lynn and Schultz argue they are entitled to qualified immunity because
even "[a]ssuming arguendo that Plaintiff has alleged a
constitutional violation . . . the applicable constitutional standards
were not clearly established at the time of the alleged conduct." (Def.
Mem., at 11)
According to defendants, the law is not clear as to whether "a public
employee's speech related solely to his role as a public employee, and
which was never presented in a public forum," is entitled to First
Amendment protection. (Id. at 12) Again, defendants
mischaracterize Wiseman's activities, which did take place in a public
forum and did not consist solely of assigned duties.
As discussed above, "it has been clear for years that speech about
police protection and public safety raises matters of public concern."
Gustafson, 117 F.3d at 1021. It is also clear that law
enforcement officers whose communications are "designed not only to
convey information of possible crimes, but also additional facts that
were relevant to the manner and scope of any subsequent investigation"
are entitled to First Amendment protection, unless the communications
fall within the routine discharge of assigned duties. Delgado,
282 F.3d at 519. Defendants have cited no case which casts doubt on these
principles. At least some of the facts alleged in the complaint, if
proven, fall squarely within this framework. Thus, the court finds that
defendants Lynn and Schultz should have known it would be unlawful to
punish and discharge plaintiff for his comments. Accordingly, defendants
Lynn and Schultz are not entitled to qualified immunity.
Plaintiff urges the Court to impose Rule 11 sanctions because counsel
for defendants filed an identical motion to dismiss in another case. That
motion was denied. See order dated January 17, 2002 in Hare
v. Zitek, Case No. 02 C 3973 (N.D. Ill.) (unpublished). Both cases
allege First Amendment retaliation claims based on speech exposing some
form of impropriety within a police department. So, the argument goes,
this case is indistinguishable from Hare, yet defendants filed
the exact same motion in an effort to harass plaintiff and cause him
expense. Defendants, on the other hand, argue sanctions are not
warranted because the cases are factually distinct. Specifically, the
Hare case involved embezzlement, bribery and corruption, while
the present case involves much less serious "disagreements over the
handling of internal police department matters." (Def. Resp., at 3).
Defendants fail to recognize that the egregiousness of the alleged
impropriety does not determine whether speech is protected. Thus, this
distinction does little to help their case. Further, although the court
is not persuaded by defendants' argument that Wiseman was acting within
the scope of his job duties, it is not frivolous. Moreover, this court is
not bound by the Hare decision, and defendants were entitled to
try to persuade this court to reach another result. The court finds no
For the reasons set forth above, defendants' motion to dismiss is
denied. Plaintiffs motion for sanctions is also denied.