IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

BOBBY SIMS & PHILLIP WISEMAN ) 

 Plaintiffs, ) Case No. 03 C 00381 

 ) Case No. 03 C 00382 

v. ) 

JEROME SCHULTZ, et al. ) 

 Defendants ) Honorable Judge Joan Gottschall 

 ) Magistrate Judge Brown 

MOTION FOR JUDGMENT AS A MATTER OF LAW

NOW COMES the Defendant, VILLAGE OF WILLOW SPRINGS, by and through its 

attorneys, CHILTON YAMBERT PORTER & YOUNG LLP, and moves this Court for 

Judgment as a Matter of Law pursuant to Rule 50 of the Federal Rules of Civil Procedure, at the 

close of all the evidence, and in support of said motion, states as follows: 

1. Plaintiff Sims failed to offer legally sufficient evidence that this Defendant 

violated his First Amendment Rights (Count I), conspired to violate his First Amendment Rights 

(Count II), violated his rights under the Family Medical Leave Act (Count III), or violated his 

due process rights (Count IV). 

2. Plaintiff Wiseman failed to offer legally sufficient evidence that this Defendant 

violated his First Amendment Rights (Count I), conspired to violate his First Amendment Rights 

(Count II), or violated his due process rights (Count III). 

3. At the outset, the Defendant Village of Willow Springs incorporates by reference 

the arguments advanced in the Rule 50 motions of the Co-Defendants for and as its arguments in 

support of its motion for judgment as a matter of law. 

4. The substance of Sims’ and Wiseman’s claims is that they were terminated in 
retaliation for complaining to the State’s Attorney’s office about the Slouber arrest, and for 

preparing a petition regarding the Village’s handling of a police officer’s use of cocaine. In 

regard to the alleged complaints to the State’s Attorney’s office, there has been no evidence that 

the Village of Willow Springs had any knowledge of Plaintiffs’ complaints to the State’s 

Attorney either prior or subsequent to their terminations. In regard to the Village’s handling of 

the officer’s use of cocaine, the testimony has shown that Officer Bermejo voluntarily came to 

Chief Schultz with his drug problem. Chief Schultz testified that, in accordance with Section 5.6 

of the Collective Bargaining Agreement between the Village and the Illinois Fraternal Order of 

Police, an agreement was entered into between the Village, the union and the officer under which 

he was to have an unpaid leave of absence in order to attend rehabilitation classes, which he did. 

In the event that he failed any random drug test thereafter, he was to be terminated. The 

evidence has established that Officer Bermejo resigned after failing a random drug test. 

5. Further, based on the United States Supreme Court’s decision in Garcetti v. 

Ceballos, 126 S. Ct. 1951 (May 30, 2006) no evidence supports the argument that Plaintiffs’ 

speech is protected by the First Amendment. Plaintiffs’ speech was related to and part of their 

job duties as police officers in Willow Springs. Initially, Plaintiff approached the Mayor and the 

Village Administrator indicating that they suspected Officer Bermejo was using cocaine. 

Plaintiff was then asked to and did conduct surveillance on Officer Bermejo as part of his job 

duties. After Plaintiffs learned that Officer Bermejo admitted to Chief Schultz to having a drug 

problem, they drafted a petition promoting a drug free work environment and presented it to 

fellow police officers in the break room during a shift change. To convince their fellow officers 

to sign the petition, Plaintiffs assured the other officers that the petition would be handled 

internally. Plaintiff presented the signed petition to Defendant Lynn and Mayor Carr. The 

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petition itself states: 

We, the undersigned full time Police Officers of the Village of 

Willow Springs have knowledge that Officer Francisco Bermejo 

has tested positive for cocaine on a drug test that was administered 

due to this promotion to Detective. We are extremely disappointed 

with the non action taken with Officer Bermejo and allowing him 

to be placed on vacation leave. We will not tolerate illegal 

substance abuse among our police officers and will not voluntarily 

work with any such person(s). It is our intention to make public 

that Officer Francisco Bermejo has tested positive for cocaine and 

will be allowed to continue to be a Willow Springs Police Officer. 

Officer Bermejo has not only disgraced himself but has 

compromised himself by buying and abusing cocaine. Officer 

Bermejo is indebted to the person he has bought and used cocaine 

with; this has and will make him ineffective and a serious liability 

to the department. Officer Bermejo is now a Detective, a Field 

Training Officer; at times he is the ranking officers on a shift, 

which deems him the watch commander, and head of the Police 

Explorer program. Officer Bermejo has betrayed his oath as a 

police officer and to continue to allow him to be employed as a 

police officer will be a detriment to all honest police officers. We 

respectfully request termination proceedings being at once against 

Officer Bermejo. We the undersigned agree and adhere to a zero 

tolerance drug free work environment. 

The petition was created by the plaintiffs in their capacity as police officers. Plaintiffs’ actions 

in complaining to Village officials about Officer Bermejo, conducting surveillance, drafting the 

petition, promoting other officers to join in and presenting the petition to Village administrators 

were related to their official job duties. In fact, the petition never went outside the Village. 

Therefore, under the United States Supreme Court’s decision in Garcetti, it is clear that 

Plaintiffs’ speech was part of their job duties and was not protected by the First Amendment. 

6. Moreover, the Village of Willow Springs is not liable simply because it employed 

the other Defendants. The Village of Willow Springs can be liable only if the Plaintiffs have 

proven by a preponderance of the evidence that the Defendants’ conduct was a result of its 

official policy. Federal Civil Jury Instructions, 7th Circuit, No. 7.19. Official policy is defined as 

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a custom of retaliating against employees that is persistent and widespread so that it is the 

Village of Willow Springs standard operating procedure. Federal Civil Jury Instructions, 7th

Circuit, No. 7.20. Plaintiffs Wiseman and Sims have offered no evidence that the Village had a 

persistent and widespread custom of retaliating against employees, much less that it did so in this 

case. 

WHEREFORE, the Defendant Village of Willow Springs respectfully requests that this 

Court enter judgment as a matter of law, at the close of Plaintiffs’ cases and against Plaintiffs 

Phillip Wiseman and Bobby Sims. 

 s/Kenneth T. Garvey 

 Attorney Bar No. 0920827 

 Chilton Yambert Porter & Young LLP 

 150 South Wacker Drive, Suite 2400 

 Chicago, Illinois 60606 

 Telephone: (312) 460-8000 

 Facsimile: (312) 460-8299 

 Email: kgarvey@cypylaw.com

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IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

BOBBY SIMS et al., ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Court No. 03 C 381 

 ) Consolidated with 03 C 382 

JEROME SCHULTZ, individually and ) 

in his official capacity as Chief of ) 

Police of the Willow Springs Police ) Judge Joan Gottschall 

Department, et al. ) 

 ) 

 Defendants. ) 

 ) 

CERTIFICATE OF SERVICE 

 I hereby certify that on May 29, 2007, I electronically filed the following: 

• Motion For Judgment as a Matter of Law on Punitive Damages; 

• Motion For Judgment as a Matter of Law as to Defendant John Lynn; 

• Motion For Judgment as a Matter of Law as to Defendant Christopher 

Limas; 

• Defendant’s Motion for Judgment as a Matter of Law on Plaintiff’s Sims 

FMLA Claim; 

• Motion For Judgment as a Matter of Law on Plaintiffs’ Due Process Claims; 

• Motion For Judgment as a Matter of Law as to Defendant Terrance Carr; 

• Motion For Judgment as a Matter of Law as to Defendant Jerome Schultz; 

and 

• Motion For Judgment as a Matter of Law.

with the Clerk of the Court using the CM/ECF system which will send notices to the following 

registered users: 

Mr. Thomas Radja Jr. 

Law Office of Thomas S. Radja Jr., Ltd. 

1220 Iroquois Avenue, Suite 204 

Naperville, Illinois 60563 

radja@tsr-law.com 

 s/Kenneth T. Garvey 

 Attorney Bar No. 0920827 

 Chilton Yambert Porter & Young LLP 

 150 South Wacker Drive, Suite 2400 

 Chicago, Illinois 60606 

 Telephone: (312) 460-8000 

 Facsimile: (312) 460-8299 

 Email: kgarvey@cypylaw.com