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 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 concen.” 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;
Pickering 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 concemed 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
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 (7" Cir. 2002). See also Kinney v. Weaver,



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.” Jd. §
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).


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. Il.) (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 concern.

Defendants argue Sims’ comments are not of public concer 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
concem 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



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 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 (7 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 (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


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. Itis 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.

Lon 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


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Jud; Sitting Judge if Other
anor Magistrate Judge Joan B. Gottschall chan Assigned Judge
CASE NUMBER 03 C 381 DATE 01/08/04
CASE Sims v. Schultz
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.}
DOCKET ENTRY:
qd) Qo Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) is] Answer brief to motion due . Reply to answer brief due.
(4) o Ruling/Hearing on set for at
(5) Oo Status hearing{held/continued to] [set for/re-set for] on set for at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(7) a} Trial[set for/re-set for] on at
(8) Oo [Bench/Jury trial} [Hearing] held/continued to at
9) g This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) CLocal Rule 41.1 COFRCP41(a)(1) O FRCP41(a)(2).

(10) EE [Otherdocketentry] 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.
qal1) a [For further detail see order (on reverse side of/attached to) the original minute order.]

No notices required, advised in open court.

No notices required,

Notices mailed by judge’s staff.
|Aotified counsel by telephone.
7 | Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

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number of notices

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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 (7* Cir. 1996).

Accordingly, defendants’ motion to dismiss plaintiff's FMLA claim is denied.

D. 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. Il.) (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

11



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 plaintiff's 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 y. 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.” Jd. 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.” Jd. 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

10


Gonzalez v. City of Chicago, 239 F.3d 939 (7" Cir. 2001).? In Gonzalez, the plaintiff claims he
was retaliated 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. Id. at 941.
Thus, the reports were created as part of his ordinary job responsibilities. Jd. 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 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

2 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


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.’ 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.
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
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.

' The complaint does not state exactly when Sims’ leave began. Defendants indicated
that it started at the beginning of June 2002. (Def. Mem. at 13) Thus, as of August 26, Sims
apparently had been on leave for twelve weeks. None of the papers indicate whether Sims’ leave
was paid or unpaid.



claiming defendants filed their motion in bad faith. For the reasons that follow, both motions are
denied.
L 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
concer 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



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

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,

Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 03 C 381

Judge Joan B. Gottschall

- gy wid

gad

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, ef

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,

IS


decision, and defendants were entitled to try to persuade this court to reach another result. The
court finds no sanctionable conduct.
II. Conclusion

For the reasons set forth above, defendants’ motion to dismiss is denied. Plaintiff's
motion for sanctions is also denied.

ENTER:

Mle —

; ‘GOTTSCHALL
‘WYnited States District Judge

DATED: January 8, 2004

12