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.
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 ...