United States District Court, N.D. Illinois
January 8, 2004.
BOBBY SIMS, 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,
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,
claiming defendants filed their motion in bad faith. For the
reasons that follow, both motions are denied.
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
was served with a notice of formal interrogation and was questioned
regarding dissemination of the flyer. As part of the investigation, Sims
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
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.
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.
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 brought against a member of
the community, and (b) prevent an officer with a possible substance abuse
problem from patrolling the community, is a matter of public concern.
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 State's Attorney of alleged
embezzlement and bribery within the department was a matter of public
Defendants argue Sims' 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. Sims'
communications with Village officials, not to mention the State's
Attorney, unquestionably constituted speech in a public forum. Further,
Sims' decision to report the alleged unjustified felony charges and to
write a memorandum criticizing the department's disciplinary practices
cannot be characterized as part of his assigned or routine job duties.
Indeed, Sims was not required to act as he did in either instance. He
alleges he acted out of concern for the safety and well being of the
community. While defendants make a conclusory claim that Sims' conduct
was in furtherance of his personal interests, they point to no facts that
suggest Sims 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
harassed and fired because of it.
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 claims 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."
Delgado, 282 F.3d at 519. Because Sims, actions were not part of
his routine job duties, Gonzalez does not apply.
The court finds that Sims' allegations adequately suggest speech
addressing a matter of public concern and state 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 Sims' 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 this
statement of the law. 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 harass and
discharge plaintiff for his comments. Accordingly, defendants Lynn and
Schultz are not entitled to qualified immunity.
C. Family Medical Leave Act
For purposes of a motion to dismiss, a complaint must set forth facts
establishing that plaintiff was entitled to FMLA leave and that defendant
interfered with his right to take such
leave. Divizio v. Elmwood Care, Inc., 97 C 8365, 1998 WL
292982, at *2 (N.D. Ill. May 28, 1998). There is no dispute that Sims was
eligible for FMLA leave. Plaintiff alleges he was deprived of his rights
under the FMLA because his employer failed to notify him that his sick
leave counted as FMLA leave until he was terminated. Defendants argue
there is no violation because employers are entitled to classify sick
leave as FMLA leave retroactively.
The FMLA grants eligible employees up to twelve weeks of unpaid leave
each year if they suffer from a serious health condition, among other
things. 29 U.S.C. § 2612. Employers must grant leave on an
intermittent or part-time basis when it is "medically necessary."
Id. § 2612(b). However, employers may require that any
accrued paid vacation leave, personal leave, or medical or sick leave be
substituted for any part of the twelve week FMLA leave. Id.
§ 2612(d)(2)(B). Interfering with, restraining, or denying the
exercise or attempted exercise of an employee's FMLA rights is
prohibited. Id. § 2615.
Plaintiff points to FMLA regulations which require employers to
designate leave as FMLA qualifying and to notify the employee of the
designation. 29 C.F.R. § 825.208. Employers generally have two
business days to provide such notice, absent extenuating circumstances.
Id. § 825.208(b)-(c). Subsection (c) further provides:
[t]he employer's designation must be made before
the leave starts unless the employer does not have
sufficient information as to the employee's reason
for taking the leave until after the leave
commenced. If the employer has the requisite
knowledge to make a determination that the paid
leave is for an FMLA reason at the time the
employee either gives notice of the need for leave
or commences leave and fails to designate the
leave as FMLA leave (and so notify the employee in
accordance with paragraph (b)), the employer may
not designate leave as FMLA leave retroactively.
Id. § 825.208(c).
Resolving all doubts in favor of Sims, as is required, the court finds
that he has stated a claim under the FMLA, Defendants were aware from the
start that plaintiffs sick leave was potentially FMLA qualifying, yet
they failed to designate it as such until twelve weeks had passed. Had
defendants promptly designated Sims' leave as FMLA leave, it is
conceivable that he may have taken intermittent or part time leave so as
not to exceed his allotted twelve weeks. Thus, drawing all inferences in
favor of plaintiff, it is possible Sims can show he was prejudiced by
defendants' failure to timely designate his leave as FMLA leave.
Defendants contend that under Ragsdale v. Wolverine World Wide,
Inc., 535 U.S. 81, 89 (2002), an employer can retroactively
designate medical leave as FMLA leave so long as the employee was given
at least twelve weeks off. Ragsdale cannot be construed so
broadly. In that case, the Supreme Court invalidated
29 C.F.R. § 825.700(a) which stated, "If an employee takes paid or unpaid
leave and the employer does not designate the leave as FMLA leave, the leave
taken does not count against an employee's FMLA entitlement." Id. at
88. The Court found the regulation imposed a categorical penalty
"unconnected to any prejudice the employee might have suffered from the
employer's lapse." Id. at 89. While section 825.208 was not
specifically addressed, it is similar and its validity may fairly be
questioned after Ragsdale. See Roberson v. Cendant Travel Services,
Inc., 252 F. Supp.2d 573, 577 (M.D. Tenn. 2003).
Nonetheless, Ragsdale does not prevent an employee from
attempting to prove he was prejudiced by his employer's failure to
provide timely notice. Indeed, Ragsdale requires courts to "make
a fact-specific inquiry into the damage that an employee suffered because
he or she did not receive an FMLA designation notice." Stansberry v.
Uhlich Children's Home, 264 F. Supp.2d 681, 689 (N.D. Ill. 2003).
See also Donahoo v. Master Data Center, 282 F. Supp.2d 540,
555 (E.D. Mich. 2003) (stating an employee can recover for
actual prejudice caused by employer's failure to provide notice). More
facts are necessary for the court to determine if Sims can ultimately
prevail on his FMLA claim. Since this type of fact-specific inquiry is
"not generally motion to dismiss territory," defendants' motion is
doomed. Homeyer v. Stanley Tulchin Assoc., Inc., 91 F.3d 959,
962 (7th Cir. 1996).
Accordingly, defendants' motion to dismiss plaintiffs FMLA claim is
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
unnecessary expenses. 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.
Although the court is not persuaded by defendants' argument that Sims
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 sanctionable conduct.
For the reasons set forth above, defendants' motion to dismiss is
denied. Plaintiffs motion for sanctions is also denied.