defendant notice of the claims and the grounds they rest upon.” Thompson v. Illinois Dep’t of
Prof’! Regulation, 300 F. 3d 750, 753 (7 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
plaintiff's favor. Hernandez v. City of Goshen, 324 F.3d 535, 537 (7" 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. Jd. at 142;
Pickering 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 (7" Cir. 1996). The Seventh Circuit has


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. (/d. 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, “Gt 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.

Cc. Sanctions

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



shed light on alleged wrongdoing within the police department.’ 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 (7" 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 intemal 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

' Wiseman’s activities do not lose protection to the extent they are within his duties as
Union Steward. Richter, 2003 WL 22169763, at *12 (stating an employee does not lose First
Amendment protection when he is acting as Union Steward).

6


determined that content addressing “police protection and public safety” is generally a matter of
public concern. Delgado v. Jones, 282 F.3d 511, 517 (7" Cir. 2002). See also Kinney v. Weaver,
301 F.3d 253, 276 (7" 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 (7" 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 (7 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. IIL). 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


circumstances, the plaintiff was acting as an employee, not a concemed 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 ina 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 concem and states a
colorable claim for retaliation under the First Amendment. Therefore, defendants’ motion to
dismiss plaintiff's § 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)



Minute Order Form (06/97)

+

United States District Court, Northern District of Illinois

Namesiacent nate | Joan B. Gottschall | Sede troher

CASE NUMBER 03 C 382 DATE 01/08/04
CASE Wiseman vs. Schultz
TITLE

[in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.)

MOTION:

DOCKET ENTRY:

qd) Oo Filed motion of [ use listing in “Motion” box above.}

(2) Oo Brief in support of motiondue__.

@) Oo Answer brief to motion due___—-- Reply to answer briefdue___.

(4) o Ruling/Hearingon___setfor__—_at

(5) QO Status hearing[held/continued to] [set for/re-set for] on setfor att

(6) Qo Pretrial conference[held/continued to] [set for/re-set for]on___setfor___—_at__—
(7) © — Trialfset for/re-set for)on___at

(8) o [Bench/Jury trial] [Hearing] held/continued to___at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) ClLocal Rule 41.1 CFRCP41(a\(1) (FRCP41(a){2).

(10) MH [Otherdocket entry} Enter Memorandum Opinion and Order. For the reasons stated on the attached
memorandum opinion and order, defendants’ motion to dismiss [6-1] and plaintiff's motion for sanctions
[9-1] are denied.

ai a [For further detail see order (on reverse side of/attached to) the original minute order.]

No notices required, advised in open court. | Document

No notices required.

Notices mailed by judge's staff.

| Notified counsel by telephone.
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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 sanctionable conduct.
TI. Conclusion

For the reasons set forth above, defendants’ motion to dismiss is denied. Plaintiffs

motion for sanctions is also denied.

ENTER:

Ji-—

J . GOTTSCHALL
ited States District Judge

DATED: January 8, 2004

10



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 Attomey
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 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
tepeatedly 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 (7* Cir. 2001). In Gonzalez, the plaintiff claimed he
was Tetaliated against based on reports he wrote when he was working in the Office of
Professional Standards. Jd. 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. /d. at 941.

Thus, the reports were created as part of his ordinary job responsibilities. Jd. Under those

? As plaintiff pointed out, the cases cited by defendants were discussed and distinguished
in Hare. Thus the court will not address them all here.

7



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 teportedly 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
tefused 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 fingerprinted.

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)

I. 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



I. Background

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 Attomey 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 Attomney’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.



UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

PHILLIP WISEMAN,
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,

Defendants.

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Case No. 03 C 382

Judge Joan B. Gottschall

vliinbow

JAN 0 9 2004

MEMORANDUM OPINION AND ORDER

As a result of events leading to his termination, Phillip Wiseman 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”). 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 denied.