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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

JOSEPH S. McGREAL, ) 

)

Plaintiff, ) 

)

v. ) Case No. 12 cv 05135

) 

THE VILLAGE OF ORLAND PARK, an Illinois ) Hon. Joan Humphrey Lefkow,

Municipal Corporation and a body politic, and ) Judge Presiding.

Chief of Police TIMOTHY McCARTHY, )

Individually, Lieutenant PATRICK DUGGAN, ) Hon. Sidney I. Schenkier,

Individually, and Lieutenant JAMES BIANCHI, ) Magistrate Judge.

Individually, )

)

Defendants. ) JURY TRIAL DEMANDED

PLAINTIFF'S RESPONSE TO 

DEFENDANTS’ MOTION FOR AWARD OF 

 ATTORNEYS’ FEES PURSUANT TO 42 U.S.C §1988 

 

Now comes the Plaintiff, Joseph S. McGreal, by and through his attorney, 

John P. DeRose of John P. DeRose & Associates, and in response to defendant's 

motion for award of attorneys' fees pursuant to 42 USC §1988, states as follows:

I. Case Concerned Anything but Claims 

That Were Frivolous, Unfounded and without Foundation 1

In the instant motion, Defendants face a heavy burden, and must overcome 

the hurdle of not only the very important constitutional matters being litigated in 

the above-captioned cause, but also years of legal precedent supporting plaintiff's 

right to litigate such matters. Defendants contend that they are entitled to recovery 

of their attorneys fees because plaintiff did not prevail when this Honorable Court 

granted summary judgment in their favor. Defendants cavalierly argue that they 

 

1

Defendants' Motion, pp. 4, ¶2 and 6, ¶3.

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"are entitled to an award of attorneys’ fees because McGreal’s action lacked a 

reasonable foundation and Plaintiff and his counsel had more than sufficient 

information available to them to determine that before the lawsuit was filed."2 . It 

is respectfully suggested that "requiring the plaintiff to plead those unknown 

details before discovery would improperly deny the plaintiff the opportunity to 

prove [his] claim.” E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 780 (7th 

Cir. 2007). It is the very liberal Federal Rules of Discovery during the course of 

litigation and only after suit has been instituted that makes possible the discovery 

of sufficient information to prosecute claims regarding such important civil rights 

violations.

Although defendants have catalogued throughout their instant motion

recurrent claims that plaintiff unfairly compounded discovery requests, plaintiff's 

institution of this suit and his discovery requests as he prosecuted his claims were

actions taken in good faith, "not [as] a means of prolonging litigation, but rather of 

protecting legal rights-ranging from contract-based rights, collective-bargaining 

agreement, to statutory rights, to constitutional rights" Independent Federation of 

Flight Attendants v. Zipes, 491 U.S. 754, 765, 109 S.Ct. 2732, 105 L.Ed.2d 639 

(Sup.Ct.1989).

A. Recovery under Section 1988 Normally Reserved for Plaintiff 

Much to the chagrin of the defense trial bar, the palliative aspects of Section 

1988 and its prescription awarding attorneys' fees are normally reserved for the 

plaintiff and his or her attorney if and when they prevail in enforcing and/or 

 

2

Defendants' Motion, p. 2. 

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protecting an important civil right. In Johnson v. Daley, 339 F.3d 582, 587 (7th 

Cir.2003), Justice Easterbrook noted: 

Section 1988 has been treated as asymmetric-that is, 

prevailing plaintiffs recover their legal expenses but 

prevailing defendants do not. ...[D]efendants recover legal 

expenses only if the suit is frivolous-in which event they 

would be entitled to recompense even without regard to a 

statute. ... So § 1988 is exceptionally pro-plaintiff. 

(Internal citation omitted).

Having long worked in the civil rights arena, Plaintiff's counsel has often 

explained his understanding of the important benefits of § 1988 to potential clients 

as follows: 

Congress, to encourage attorneys to represent individual citizens 

without sufficient financial assets to secure able legal 

representation to prosecute a civil rights claim, often against 

much more solvent and financially stable governmental 

institutions and public employees of those institutions has 

determined that if, in fact, a civil rights violation has been 

proved, and the plaintiff's rights have been vindicated or 

protected, has authorized the court to award fees to the attorney 

for the prevailing plaintiff. The attorney can never share such 

fees with you even if they exceed the amount of your award. You 

may not think that is not fair, but it is still of tremendous value to 

you. If you hire me, I will be entitled to the proportional share of 

your award that is set out in our contingency fee agreement 

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unless I can get that amount or more from the defendants 

pursuant to an order from the court. It often means that whatever 

award you might ultimately receive will belong exclusively to you. 

The Court will also often award you all case costs you expended to 

prosecute your claim. If we do not prevail, you will owe me 

nothing for my efforts. The court may also order you to pay all 

case costs defendant incurred in successfully defending against 

our lawsuit.

Plaintiff's attorney has taken this case on a contingency fee basis. He 

appreciates the risks and has accepted the possibility that he may well receive no 

compensation for years of work if the litigation is unsuccessful. Many of the defense 

counsel in the instant case have battled with plaintiff's counsel as amicably as 

possible and have done so in different cases several times over the years. Quite 

often, members of the defense bar-- including counsel for the moving defendants in 

this cause -- have advised plaintiff's counsel that their work in cases against him 

have been financially lucrative for them and they query when they will next be 

brought into a lawsuit by plaintiff's counsel. Motions such as the instant one only 

serve to chill members of the plaintiffs bar from pursuing these important lawsuits-

- litigation in which members of the defense bar have graciously acknowledge their 

gratitude that the lawsuit was instituted and pursued.

Plaintiff's counsel appreciates the unsettling condition that must be 

experienced by a defendant named in a federal civil rights suit and never abuses the 

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judicial system within which he works by filing such a suit for a frivolous,

unfounded, or improper purpose. Plaintiff's counsel wishes to assure this Honorable 

court that such a nefarious purpose was not employed at any time in this case.

Justice Scalia wrote:

"[A] prevailing plaintiff should 'ordinarily recover an attorney's fee 

unless special circumstances would render such an award unjust.' " ...

Similarly, we held that even though the term “prevailing party” does 

not distinguish between plaintiffs and defendants, the principle would 

not be applied to a prevailing defendant. Unlike the Title VII plaintiff, 

we reasoned, the Title VII defendant is not “‘the chosen instrument of 

Congress,’ ”.... Such an unequal disposition, we thought, “giving the 

private plaintiff substantial incentives to sue, while foreclosing to the 

defendant the possibility of recovering his expenses in resisting even a 

groundless action unless he can show that it was brought in bad faith,” 

would so “distort” the “fair adversary process” that Congress could not 

lightly be assumed to have intended it. We thus concluded that the 

prevailing defendant could be awarded fees against the plaintiff whose 

suit was brought in good faith, but only “upon a finding that the 

plaintiff's action was frivolous, unreasonable, or without foundation 

(Internal citations and references omitted). 

Independent Federation of Flight Attendants, Id., at 759-60.

B. Enforcement of Quite Substantial First Amendment Constitutional Rights 

 Perhaps the First Amendment was so designated because it was the most 

important in the minds of the framers of the Constitution at the time they were 

establishing the new country where they could speak, associate, and profess their 

politics and religion freely. The freedoms discussed in the First Amendment surely 

were at the top of the framers' conscience as they declared their independence and 

the establishment of the new nation. The First Amendment constitutional rights at 

issue in this cause are not frivolous in any way. Plaintiff contends that the 

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termination of his employment is actionable under 42 U.S.C. § 1983 and clearly 

recognized under United States Supreme Court and Seventh Circuit Court of 

Appeals precedent discussing retaliation in violation of First Amendment rights.

C. Supreme Court and Seventh Circuit Case Law 

Continue to Distinguish the Applicability of Garcetti v. Ceballos 

 When Public Employee Speaks about Matters of Public Concern Only 

A public employee’s speech will be protected by the First Amendment where 

he is speaking as a citizen on a matter of public concern. Garcetti v. Ceballos, 547 

U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). However, where a public 

employee makes statements pursuant to his official duties, that speech is not 

protected. Id. at 421.

In Lane v. Franks, 134 S.Ct. 2369, 189 L.Ed.2d 312 (2014), Justice Sotomayor 

distinguished the applicability of Garcetti writing:

Garcetti said nothing about speech that simply relates to public 

employment or concerns information learned in the course of public 

employment. 

...

It bears emphasis that our precedents dating back to Pickering have 

recognized that speech by public employees on subject matter related 

to their employment holds special value precisely because those 

employees gain knowledge of matters of public concern through their 

employment. 

Id., at 2379.

1. Plaintiff Speaks on Matters of Public Concern 

 When the Village of Orland Park experienced a financial shortfall and was 

considering a reduction in police services to the citizens of the community to meet 

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the anticipated financial deficit, plaintiff appeared first at a meeting to which he 

was invited with the Mayor and Village Manager and suggested other alternatives 

to reduce the anticipated budgetary shortfall without reducing police services. Not 

satisfied that his suggestions and those of other police union members were being 

relayed to the Village Board of Trustees on this important matter of public concern, 

plaintiff appeared personally and delivered the suggestions in writing to The 

Village Board, the Mayor, and the Village Manager. The suggestions recommended 

that take-home squad cars for supervisors be eliminated and individuals already 

collecting a police pension and working in an administrative capacity be released 

before active patrol officers be terminated.

In order for a public employee’s speech to be constitutionally protected, the employee 

must have been speaking (1) as a private citizen, (2) on a matter of public concern, and (3) the 

employee’s interest in expressing such speech must outweigh the interest of the state in 

promoting effective and efficient public service. See Swetlik v. Crawford, 738 F.3d 818, 825 (7th 

Cir. 2013); Houskins v. Sheahan, 549 F.3d 480, 490 (7th Cir. 2008). Although he was a police 

officer, plaintiff addressed the Village of Orland Park officials as both a private citizen and a 

police officer regarding an important matter of public concern, suggesting alternatives to a 

reduction in police personnel and services to the citizens of the community.

To establish a prima facie case of First Amendment retaliation, a public 

employee must show that: (1) his speech was constitutionally protected; (2) he 

suffered a deprivation as a result of his protected speech that was sufficiently 

adverse to deter the exercise of free speech; and (3) his speech was a substantial or 

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motivating factor in the employer’s decision. See Graber v. Clarke, 763 F.3d 888, 

894–95 (7th Cir. 2014); Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012).

Prior to the time that he presented his suggestions at the meeting of the 

Board of Trustees, plaintiff had enjoyed a stellar reputation as "the gifted officer" on 

the Orland Park Police Department as documented in his personnel file. Within the 

next 6 weeks after having made his suggestions, plaintiff was disciplined and 

scrutinized as no police officer in Orland Park before or since, and ultimately had 

his employment terminated.

2. Plaintiff Speaks As Union Representative for Other Police Officers 

Once elected as Secretary of the Metropolitan Alliance of Police Local #159, 

plaintiff protested violations of the Collective Bargaining Agreement by Members of 

the Command Staff of the Orland Park Police Department and prophetically 

reported to his Union Executive Board:

The targets on our backs may get bigger the more we do 

this stuff. But I don't care. It's time to do things right.

Plaintiff also came forward to represent other police officer union members as 

commands sought to interrogate and discipline them, and further sought to defend 

union activities under the Collective Bargaining Agreement. 

It has long been a First Amendment protected right of a Police Officer who 

also happens to be an officer in his union to speak out on union matters and 

represent other officers of the union during investigation, interrogation, and 

disciplinary matters. Without making any personal attacks on his command, 

plaintiff, an experienced Village of Orland Park police officer spoke out in his 

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capacity as union representative is speaking out on a matter of public concern

Compare Graber v. Clarke and County of Milwaukee, 763 F.3d 888, 894 (7th Cir. 

2014).

3. Allegations of Plaintiff's Distress Not Lightly Made 

 Defendants assert that the claim of "intentional infliction of emotional 

distress, was also without substance".3 It is respectfully suggested that as a result 

of the allegations and actions described in this litigation, Plaintiff's professional 

reputation as a law enforcement officer was devastated and his integrity was 

irreparably besmirched. The professional and financial ruin plaintiff continues to 

endure has caused him emotional distress.

II. Bringing Suit to Enforce Important Civil Rights Not Abusive4 

 In the instant motion, defendants cavalierly and recklessly claim that 

"McGreal did not have a reasonable belief in his claims and he proceeded only with 

the intent to try to intimidate the defendants into letting him have his own way."

5

The very way in which defendants couch that assertion suggests that this was a 

lawsuit brought by "a spoiled child". The record does not in any way describe 

plaintiff in such a way for suggests such a supercilious conclusion. For years before 

the exercise of his First Amendment rights, he was often a highly decorated 

member of the Orland Park Police Department, acknowledged and honored by 

command, respected by other police officers, and appreciated by citizens of the 

community. Plaintiff's sudden fall from grace was not at all to be anticipated

 

3

Defendants' Motion, p. 6, ¶3.

4

Defendants' Motion, p. 6, ¶4.

5

Defendants' Motion, p. 7.

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immediately after he spoke out. Although defendants cite to "his extensive and 

serious disciplinary record"6, the written record of plaintiff's accomplishments and 

his personnel file clearly show that a negative employment history as a law 

enforcement officer in the village of Orland Park does not and never did exist.

III. No Rule 11 Sanctions or Award of Attorneys' Fees Is Warranted7 

Although defendants argue that “an award of fees to the defendant is clearly 

appropriate to deter frivolous filings”8, no such showing can be made in this case. 

Although plaintiff has not been able to persuade this Honorable Court at the 

summary judgment stage of this case of the merits of his claims, the allegations of 

this complaint are serious and were brought to right what plaintiff and his lawyer

believe in good faith is a serious constitutional wrong.

In Mars Steel Corporation v. Continental Bank, NA, 880 F.2d 928, 932 (7

Cir.1989), Justice Easterbrook wrote:

Rule 11 is not a fee-shifting statute in the sense that the 

loser pays. It is a law imposing sanctions if counsel files 

with improper motives or inadequate investigation. Under 

the American Rule on the allocation of attorneys' fees, 

each side bears its own expenses. Rule 11 ensures that 

each side really does bear the expenses of its own case—

that the proponent of a position incurs the costs of 

investigating the facts and the law. ... Rule 11 does not 

allow an award of sanctions just because things went 

poorly .... Sanctuary as a result of reasonable 

investigation ensures that counsel may take novel, 

innovative positions—that Rule 11 does not jeopardize 

aggressive advocacy or legal evolution.

 

6

Defendants' Motion, p. 7.

7

Defendants' Motion, p. 9, ¶4.

8

Defendants' Motion, p. 9.

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Unlike the traditional fee-shifting statute, Rule 11 focuses 

on inputs rather than outputs, conduct rather than result. 

... Rule 11 creates duties to one's adversary and to the 

legal system, just as tort law creates duties to one's client. 

The duty to one's adversary is to avoid needless legal 

costs and delay. The duty to the legal system (that is, to 

litigants in other cases) is to avoid clogging the courts 

with paper that wastes judicial time and thus defers the 

disposition of other cases or, by leaving judges less time to 

resolve each case, increases the rate of error. Rule 

11 allows judges to husband their scarce energy for the 

claims of litigants with serious disputes needing 

resolution.

In Harrison v. Dean Witter Reynolds, Inc., 974 F.2d 873, 886 (7th Cir.1992), 

where the claims were neither frivolous nor raised for improper purposes, Justice 

Harlington Wood noted that defendants' were not persuasive in their argument that 

having won the summary judgment motion, they proved the plaintiff had not 

conducted a reasonable inquiry into the law and the facts. Defendants instant 

motion bears witness to the length and breadth and depth of the inquiry into both 

the law and facts plaintiff and his lawyer have conducted in this case.

WHEREFORE, plaintiff and his attorney respectfully moves this 

Honorable Court to enter an order denying defendants' motion for an award of 

attorney's fees and the imposition of sanctions pursuant Rule 11 of the federal Rules 

of Civil Procedure.

Respectfully submitted,

/s/John P. DeRose

John P. DeRose

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John P. DeRose & Associates

15 Spinning Wheel Road

Suite 428

Hinsdale, Illinois 60521

(630) 920-1111 Office 

(630) 920-1170 Fax

john@johnderoselaw.com 

 

CERTIFICATE OF SERVICE 

I, John P. DeRose, hereby certify that on July 21, 2016, I electronically filed 

the aforementioned document through the Court's CMECF system, with a copy 

automatically served via the Court's CMECF system upon the following counsel of 

record:

John Allen Wall Michael J. Wall

Jason A. Guisinger Rothschild, Barry & Myers LLP

Klein, Thorpe and Jenkins, LTD. 55 West Monroe Street

20 N. Wacker Drive Suite 3900

Suite 1660 Chicago, IL 60603

Chicago, IL 60606-2903

/s/ John P. DeRose

John P. DeRose

John P. DeRose & Associates

15 Spinning Wheel Road

Suite 428

Hinsdale, Illinois 60521

(630) 920-1111 Office 

(630) 920-1170 Fax

john@johnderoselaw.com 

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