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SIMS v. SCHULTZ

January 8, 2004.

BOBBY SIMS, Plaintiff,
v.
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,



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, Bobby Sims sued the Village of 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"). Sims alleges violations of 42 U.S.C. § 1983, for retaliation based on the exercise of his First Amendment rights, and the Family Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq. ("FMLA"), for interference with his right to twelve weeks of leave. Defendants move to dismiss both counts for failure to state a claim. Plaintiff countered with a motion for sanctions, Page 2 claiming defendants filed their motion in bad faith. For the reasons that follow, both motions are denied.

I. Background

  Sims was employed as a police officer for the Village of Willow Springs from September 2000 until he was terminated in August 2002. In November 2001, Sims was ordered to sign a felony complaint which he did not believe was justified. When Sims protested, defendant Lynn allegedly told him he could be fired if he refused to sign the complaint. Sims reported this incident to the Public Integrity Unit of the Cook County State's Attorney's Office and an investigation ensued.

  In May 2002, Sims learned that a fellow officer had tested positive for drug use. Following an informal meeting of several officers, Sims co-authored a memorandum expressing concern over working with an officer who had tested positive for drug use and requesting that the officer be terminated. 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 police department's handling of the situation. Defendants began investigating who distributed the flyer, and Sims was allegedly told he would be terminated because of the flyer. Further, defendant Muscolino reportedly stated that those who made false accusations against the Village need to be punished. Soon thereafter, Sims Page 3 was served with a notice of formal interrogation and was questioned regarding dissemination of the flyer. As part of the investigation, Sims was fingerprinted.

  Also in May 2002, Sims began experiencing problems with his knees, ankles and hands. After being diagnosed with inflammatory poly arthritis, Sims requested and was approved for sick leave.*fn1 On August 26, 2002, while still on leave, Sims submitted a written request for leave under the FMLA. Two days later, Sims was ordered to meet with defendant Schultz as part of the ongoing investigation and to discuss his medical condition. On August 30, Sims received a letter advising him that his FMLA request was approved and that his employment was terminated for taking more than twelve weeks of leave. Further, Sims was informed that the department records would reflect his failure to cooperate with an ongoing investigation and that he was subject to discipline regarding the investigation.

 II. Analysis

  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. Page 4 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 harassing and ultimately discharging him in retaliation for speaking 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 Sims' interest in expressing himself was outweighed by a legitimate interest of the Village, the court is only concerned 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 Circuit has determined that speech related to "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, Page 5 301 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 generally 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).

  Plaintiff claims he was harassed and ultimately fired as a result of his involvement in two separate incidents. First, Sims contacted the State's Attorney's after being forced to sign an allegedly unjustified felony complaint. He then participated in the State's Attorney ensuing investigation. Second., Sims met with his fellow officers and co-authored a memorandum to the Police Chief, the Village Administrator and the Village President, expressing concern over working with an officer who had tested positive for drug use and calling for the officer's termination. Contrary to defendants' contention, speech designed to (a) expose potentially unjustified felony charges ...


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