IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

BOBBY SIMS and PHILLIP WISEMAN ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Court No. 03 C 00381 & 03 C 00382 

 ) 

JEROME SCHULTZ, individually and ) Judge Joan Gottschall 

in his official capacity as Chief of ) 

Police of the Willow Springs Police ) 

Department, the VILLAGE OF ) 

WILLOW SPRINGS, a municipal ) 

corporation, 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. ) 

MOTION FOR JUDGMENT AS A MATTER OF LAW

AS TO DEFENDANT CHRISTOPHER LIMAS

 NOW COMES the Defendant, CHRISTOPHER LIMAS (“Limas”), by and through his 

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 Plaintiffs’ cases, and in support of said motion, states as follows: 

Plaintiffs claim that their terminations were not justified and claim that Defendant Limas, 

Village Administrator, retaliated and conspired to retaliate against them in violation of the First 

Amendment, violated their due process rights secured by the Constitution and violated Plaintiff 

Sims’ rights under the Family Medical Leave Act (“FMLA”). However, Plaintiffs are unable to 
substantiate their claims based on the evidence presented, warranting judgment as a matter of 

law in favor of Defendants. 

A. Plaintiffs’ Alleged Speech Unprotected Under the U.S. Supreme Court’s Decision in 

Garcetti and is Unsupported By Evidence Presented

The evidence presented established that the petition about Officer Bermejo’s illegal drug 

use and his alleged complaint to the State’s Attorney supports that Plaintiffs’ speech was part of 

their job duties and unprotected by the First Amendment and is unsupported by the evidence 

presented. 

1. Alleged Speech Unprotected Under Garcetti

Based on the United States Supreme Court’s decision in Garcetti v. Ceballos, 126 S. Ct. 

1951 (May 30, 2006) and the Seventh Circuit’s recent decision in Spiegla v. Hull, 2007 WL 

937081 (7th Cir. March 30, 2007), no evidence supports the argument that Plaintiffs’ speech is 

protected by the First Amendment thereby warranting judgment in Defendant Limas’ favor. 

Plaintiffs’ speech was related to and was part of their job duties as police officers in Willow 

Springs. Initially, Plaintiffs approached the Village Administrator indicating that it was 

suspected Officer Bermejo was using cocaine. Plaintiffs were then asked to and did conduct 

surveillance on Officer Bermejo as part of their job duties. After Plaintiffs learned that Officer 

Bermejo admitted to Chief Schultz that he had 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. The reason Plaintiffs created a petition advocating a drug free work environment 

“to show solidarity, not only to our fellow officer, but ultimately the village administrators, the 

trustees, the mayor, and the like”. (Trial Tr. Vol. 2 p. 85). Moreover, the reason Plaintiff 

Wiseman testified Plaintiffs created the petition was for his and his fellow officers’ safety. (Trial 

Tr. Vol. 2 p. 87). Plaintiffs presented the signed petition to Defendant Carr. However, no one 

approached Defendant Schultz. (Trial Tr. Vol. 2 p. 187). The petition itself states: 

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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 his 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 officer 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 begin at once against Officer 

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

drug free work environment. 

 

(Plaintiffs’ Exh. 1). The petition was created by 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. 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. 

2. No Evidence Supports Plaintiffs’ First Amendment Claims

Further, no evidence was offered by Plaintiffs that Defendant Schultz was aware of their 

alleged complaints to the States Attorney about the Slouber incident. Clearly, this was a police 

matter in which the Village Administrator would not have been directly involved. In fact, 

Defendant Limas testified that he was unaware that Plaintiff Sims and Plaintiff Wiseman 

contacted the State’s Attorney’s office, and testified that he himself was never contacted by the 

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State’s Attorney regarding any alleged acts of wrongdoing. 

The only evidence as to Defendant Limas produced during Plaintiffs’ cases was that he, 

along with Mayor Carr, authorized the hiring of an independent investigative firm, Kirby and 

Associates, to determine who was authoring and distributing the alleged flyers. It is undisputed 

that these flyers were not subject to the protection of the First Amendment. In any event, 

Defendant Limas testified that the Village’s sole purpose in hiring this agency was to determine 

the source of these flyers. Plaintiffs do not claim that the alleged retaliation against them was a 

result of these flyers but rather claim that they were terminated for participating in the petition. 

Defendant Limas testified that he did not simply decide on a whim to terminate Plaintiffs but 

rather consulted with the village attorney, who relied upon the investigative firm’s report to 

terminate Plaintiff Wiseman and relied upon the village attorney’s interpretation of the FMLA to 

justify Sims’ termination. Clearly, Defendant Limas’ decision to terminate Plaintiffs was done 

on the legal advice of the Village Attorney. 

In addition, the flyers distributed throughout the Village were both actually and 

potentially disruptive; therefore, the First Amendment balancing test favors Defendant. McGreal 

v. Ostrov, 368 F.3d 657 (7th Cir. 2004). The testimony reveals that the flyers were disseminated 

to the Village of Willow Springs residents, businesses, as well as outside of the Village of 

Willow Springs. Specifically, Chief Schultz testified that he received calls from other police 

chiefs, and vendors to the Village. These flyers were even sent to members of the judiciary in 

District 5 where Willow Springs cases were heard. 

Plaintiffs failed to establish the existence of a conspiracy as alleged in their Complaints. 

The investigation conducted by the Defendant Willow Springs about the various derogatory 

flyers, which Plaintiffs denied distributing, was entirely appropriate. This investigation was 

conducted by a private investigative firm, Kirby and Associates, which is not a named party in 

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this case. There is no evidence to suggest that any of the Defendants directed Kirby to a 

predetermined conclusion. Rather, the evidence has established that after conducting an 

extensive investigation, Kirby and Associates presented its report to the Village. 

B. Plaintiffs’ Due Process Claims are Negated Under Provisions in the Collective 

Bargaining Agreement and By Their Execution of Administrative Rights Forms 

Plaintiffs’ claim that they were terminated without notice or opportunity to be heard in 

violation of due process is contrary to the evidence presented. As Sims acknowledged, the 

Village of Willow Springs and the Illinois Fraternal Order of Police had entered into a Collective 

Bargaining Agreement which was in effect at the time of his discharge. Section 5.1 of that 

agreement allows the discharge of an employee. Defendant Limas, in good faith, believed that 

just cause to terminate Plaintiffs existed and was based on the advice of the village attorney. A 

termination pursuant to the Collective Bargaining Agreement is subject to the grievance and 

arbitration procedures set forth in that agreement. (Plaintiffs’ Exh. 7). Plaintiffs were advised of 

their rights to grieve their terminations in the letters they received from the Village, which they 

did. Plaintiffs availed themselves of both steps 1 and 2 of the grievance procedure, which were 

denied. (Trial Tr. Vol. 2 p. 254-255). At that point, they again had an opportunity to present 

evidence in mitigation of his termination, but they chose not to do so. (Trial Tr. Vol 2 p. 258-

259). Plaintiffs also filed requests for binding arbitration, to which the Village agreed but 

through no fault of Defendants was never pursued by the union or by Plaintiffs. (Trial Tr. Vol 2 

p. 255). 

Plaintiffs’ claim that their rights were somehow violated during the Village’s internal 

investigation is unsupported. Plaintiffs admitted that they were advised of their rights and 

executed administrative proceedings forms prior to being questioned by Chief Schultz in 

conjunction with the Village’s internal investigation. (See Defendants’ Exh. 27 and 51). 

Moreover, Plaintiff Wiseman admitted he was represented by counsel for the FOP during his 

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“interrogations” and Plaintiff Sims admitted that he was represented by Mr. Radja and the FOP 

during his “interrogations”. Indeed, no evidence presented at trial shows that Plaintiffs’ counsel 

was prevented from asking questions or prevented them from instructing them on how to answer. 

C. Sims’ FMLA Claim is Undermined by Evidence that Sims Would Have Been 

Terminated Regardless of his Request for Leave

Sims claims that his rights under the FMLA were violated because he was not provided 

with 12 weeks of allotted leave. Sims was provided 12 weeks of FMLA leave, but regardless of 

whether or not Sims believes he was provided with the appropriate amount of time off under the 

FMLA, he would have been terminated anyway based on the fact he could not perform the duties 

of a police officer and that he falsified his employment application. 

1. Sims Could Not Perform the Functions of a Police Officer

Sims did not work from May 1, 2002 until his termination on August 30, 2002. (See, 

Plaintiffs’ Exh. ). As Defendant Limas testified, the certificate provided by Sims’ physician, Dr. 

Carpenter, indicated that the duration of Sims’ condition was “undetermined” and that he was 

physically incapable of performing the functions of a police officer as of August 26, 2002. (See, 

Defendants’ Exh. 25). In fact, Sims admitted that he was not able to work for more than a year 

after his termination, until October 2003 when he took a part time position with Costco as a 

security person. The question is not whether Sims would return to work but rather could he 

return to work and perform the functions of a police officer. Clearly, based on Sims own 

testimony, he would be unable to fulfill his duties as a Willow Springs Police Officer even if he 

wanted to. However, the Village’s interest in maintaining a full complement of police officers 

for the benefit of the entire community outweighs Sims’ interest in continued employment, and 

Sims would have been terminated anyway. Jones v. City of Gary, 57 F.3d 1435 (7th Cir. 1995) 

(affirming district court’s determination that post-suspension hearing was adequate protection of 

due process rights in light of fact AWOL firefighter, who suffered from arthritic condition, did 

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not know when he would return to work). 

Defendant Limas testified that he consulted with Village Attorney, Don Rothschild, after 

receiving Sims’ request for leave pursuant to the Family Medical Leave Act (“FMLA”). 

Defendant Limas further testified that the village attorney advised him that Sims was subject to 

termination since he had already used more than the 12 weeks of leave provided under the 

FMLA. Defendant Limas testified that he and the village attorney reviewed the days Sims had 

taken off and together calculated that Sims had exceeded his allowable amount of leave under 

FMLA. Defendant Limas further testified that he prepared a draft termination letter to Sims, but 

that the Village Attorney actually finalized the letter and provided the “meat” justifying the 

termination. Because there is no requirement under the FMLA that an employer notify an 

employee of back classification for FMLA leave, the Village’s letter was justified. Ragsdale v. 

Wolverine Worldwide, Inc., 535 U.S. 81, 122 S.Ct. 1155, 152 L.Ed.2d 167 (2002). In fact, the 

evidence presented established that Defendant Limas relied totally on the advice of the village 

attorney for his interpretation of the Ragsdale case. 

Moreover, the undisputed evidence shows that Plaintiff Sims was unable to return to 

work after 12 weeks of leave, and thus, could not have detrimentally relied on any 

misrepresentations or omissions by the Defendants. Plaintiff Sims’ return was “undetermined”; 

therefore, it is clear that Sims knew he would not be able to return to work for some time. Under 

the Act’s provisions, an employee must provide 30 days’ advance notice when the leave is 

foreseeable. 29 C.F.R. §825.302(a). In the alternative, even if the evidence demonstrates that 

Sims leave was not foreseeable but came about due to exigent circumstances, Sims was required 

to inform the Village of his need to take FMLA leave “as soon as practicable”. Aubuchon v. 

Knauf Fiberglass, GMBH, 240 F. Supp.2d 859, 866 (S.D. Ind. 2003); citing, Collins v. NTNBower Corp., 272 F.3d 1006, 1008 (7th Cir. 2001) (notice is essential even for emergencies); 29 

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C.F.R. §825.303. Sims did not provide the Village with any notice until August 26, 2002 – when 

he requested another 12 weeks of time off. (Plaintiffs’ Exh. 8). 

Regardless of whether Sims provided appropriate notice to the Village, according to the 

evidence presented, he would have been terminated anyway because he falsified his employment 

application. Once the Village discovered Sims falsified application, he would have been 

terminated regardless of his speech. Sullivan v. Ramirez, 360 F.3d 692 (7th Cir. 2004); McKenna 

v. Nashville Banner Publishing Co., 513 U.S. 352, 361-62 (1995); Jacobs v. University of 

Wisconsin Hospital & Clinics Authority, 12 Fed. Appx. 386 (7th Cir. 2001); Kemp v. Packaging 

Corp. of America, 1993 WL 462843 (N.D. Ill. 1993) (employer granted summary judgment 

where regardless of employer’s motivation for termination, the employee would have been 

discharged once false information in the application was discovered – it does not matter that the 

discovery was not made until after termination). 

2. Sims Falsified his Willow Springs Employment Application 

Sims employment application fails to indicate that he resigned from the Cook County 

Sheriff’s Department Police amidst a pending investigation and was terminated from the Chicago 

Police Department. (See, Defendants’ Exh. 8 and 9). Sims’ application clearly misrepresents 

why his employment with the Sheriff’s Department and the Chicago Police Department ended. 

(See, Defendants’ Exh. 23). Plaintiff Sims would never have hired Sims if he knew the true 

reasons why Sims’ employment with these two agencies ended. Moreover, if an employee 

falsifies their employment application, they are subject to termination. In addition, Sims lied on 

his application when he denied involvement in any lawsuits. He had been sued in 1996 for 

battery and false arrest while performing his job duties as a Cook County Sheriff. (See, 

Defendants’ Exh. 90). 

Even though Sims’ false entries on his employment application did not surface until the 

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litigation commenced, based upon the principles of the after-acquired evidence doctrine, outlined 

by the United States Supreme Court in McKenna v. Nashville Banner Publishing Co., 513 U.S. 

352, 361-62 (1995), the employer’s discharge is justified if the employer would have terminated 

the employee on those grounds alone, if the employer had known of it at the time of the 

discharge. See also, Jacobs. University of Wisconsin Hospital & Clinics Authority, 12 Fed. 

Appx. 386 (7th Cir. 2001) (letter accompanying application aimed to mislead or misrepresent; 

therefore in light of employee’s poor performance and misrepresentation in her application, 

employee failed to meet employer’s legitimate expectations and could not establish prima facie 

case of discrimination); Kemp v. Packaging Corp. of America, 1993 WL 462843 (N.D. Ill. 1993) 

(employer granted summary judgment where regardless of employer’s motivation for 

termination, the employee would have been discharged once false information in the application 

was discovered – it does not matter that the discovery was not made until after termination). As 

such, regardless of whether Sims requested additional FMLA leave time or not, he would have 

been terminated for falsifying his employment application. 

 WHEREFORE, the Defendant Christopher Limas respectfully requests that this Court 

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

 

 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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