Machalk v. Cedar Lake, Indiana Town of

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

DOUGLAS G. MACHALK,

Plaintiff,

v. CAUSE NO.: 2:23-CV-63-TLS-AZ

TOWN OF CEDAR LAKE, INDIANA, and

BOARD OF SAFETY OF TOWN OF

CEDAR LAKE, INDIANA, by and through

its President Charlie Kaper,

Defendants.

OPINION AND ORDER

This matter is before the Court on the Defendants’ Motion to Dismiss Plaintiff’s Second

Amended Complaint [ECF No. 33] filed by Defendants Town of Cedar Lake, Indiana, and the

Board of Safety of Town of Cedar Lake, Indiana, by and through its President Charlie Kaper, on

January 31, 2024. Plaintiff Douglas G. Machalk filed a response, ECF No. 37, and the

Defendants filed a reply, ECF No. 39. For the following reasons, the Court grants in part and

denies in part the motion to dismiss.

LEGAL STANDARD

“A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the

viability of a complaint by arguing that it fails to state a claim upon which relief may be

granted.” Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014) (citing Fed.

R. Civ. P. 12(b)(6); Gen. Elec. Cap. Corp. v. Lease Resol. Corp., 128 F.3d 1074, 1080 (7th Cir.

1997)). When reviewing a complaint attacked by a Rule 12(b)(6) motion, a court construes the

complaint in the light most favorable to the non-moving party, accepts the factual allegations as

true, and draws all inferences in the non-moving party’s favor. Bell v. City of Chicago, 835 F.3d

736, 738 (7th Cir. 2016). “Factual allegations must be enough to raise a right to relief above the

speculative level . . . on the assumption that all the allegations in the complaint are true (even if

doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (citing Twombly, 550 U.S. at 556). “It is the defendant’s burden to establish the

complaint’s insufficiency.” Gunn v. Cont’l Cas. Co., 968 F.3d 802, 806 (7th Cir. 2020).

“[D]ocuments attached to a motion to dismiss are considered part of the pleadings if they are

referred to in the plaintiff’s complaint and are central to his claim.” McCready v. eBay, Inc., 453

F.3d 882, 891 (7th Cir. 2006) (cleaned up).

PROCEDURAL AND FACTUAL BACKGROUND

On January 17, 2024, the Plaintiff filed a Second Amended Complaint [ECF No. 30]

against the Defendants under 42 U.S.C. § 1983 and Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e, et seq. The following factual allegations are taken from the Second

Amended Complaint.

The Plaintiff has been an officer with the Cedar Lake Police Department since July 3,

2009, and has served the Town of Cedar Lake consistently and faithfully as an officer in good

standing. Second Am. Compl. ¶¶ 5, 8, ECF No. 30. In 2011, the Plaintiff testified as a witness in

an internal investigation involving then co-worker Officer Timothy Kilgore, who has since been

promoted to ranks as high as Commander and Sergeant resulting in supervisory authority over

the Plaintiff. Id. ¶¶ 10, 11. After the Plaintiff’s testimony, Kilgore began a pattern of harassment

and retaliation against the Plaintiff. Id. ¶¶ 12, 14. The Chief of Police summarily dismissed the

Plaintiff’s attempt to make a complaint regarding Kilgore’s conduct. Id. ¶ 17. In January 2021,

Kilgore questioned the Plaintiff’s actions regarding a department-owned vehicle. Id. ¶ 18. Near

that time, the Plaintiff was also reprimanded for his participation in a conversation in which two

younger officers were questioning Kilgore’s participation in an investigation involving the child

of Kilgore’s ex-girlfriend. Id. ¶ 19.

In January 2021, regarding a different matter, the Plaintiff was notified of pending

disciplinary charges against him with a recommended two-day suspension and demotion from

his then-current rank of Corporal. Id. ¶ 20. On January 25, 2021, several members of the

Department’s administration discussed the recommended action with the Plaintiff. Id. ¶ 21. The

same day, the Plaintiff was advised by letter that he would be suspended for two days and

recommended for demotion. Id. ¶ 24; see also Def. Ex. A, p. 6, ECF No. 34-1 (showing the

correct date of the letter as January 25, 2021).1 On January 27, 2021, “[the Plaintiff] by and

through Atty. Christopher Cooper, submitted a written request for hearing before the [Board of

Safety] to contest the disciplinary actions.” Second Am. Compl. ¶ 22. The Board of Safety failed

or refused to provide him the opportunity for a hearing concerning the demotion notwithstanding

his request for a hearing in accordance with Indiana Code § 36-8-3-4(c), which provides that a

member of a town police department must be offered a hearing before the Board of Safety prior

to being demoted. Id. ¶¶ 23, 24. The Plaintiff was then demoted from the rank of Corporal to the

rank of Patrolman, which resulted in a loss of pay, loss of time in grade, and lost opportunities

for overtime. Id. ¶ 27.

The Plaintiff was “advised that he was not entitled to [a] hearing due to his probationary

status at the time the determination was made.” Id. ¶ 25. However, the Plaintiff believes that the

length of his probationary status and/or the timing of the decision to demote him were

manipulated by members of the Department administration as a further retaliatory act intended to

prevent him from receiving due process to which he was otherwise entitled. Id. At that time, the

Plaintiff had been with the Department approximately eleven and a half years. Id. ¶ 26. He

alleges that “[h]is probationary status had been established as a result of his promotion to the

1 The Court can consider the letter attached to the Defendants’ Motion to Dismiss because the letter is

referenced in and central to the Second Amended Complaint. See McCready, 453 F.3d at 891.

rank of Corporal, and, even if legitimate, should not have resulted in a denial of his statutory due

process.” Id.

In Count I, the Plaintiff alleges violations of his due process rights under the Fifth and

Fourteenth Amendments to the United States Constitution brought pursuant to 42 U.S.C. § 1983

and under Indiana Code § 36-8-3-4. Id. ¶ 38. He alleges that he was demoted without the due

process protections guaranteed by these laws. Id. ¶ 37.

In Count II, the Plaintiff brings a Title VII retaliation claim for engaging in protected

speech. Id. ¶ 44.2 The Plaintiff alleges that he has been harassed and subjected to adverse

employment actions motivated by Kilgore’s retaliatory animus, which was supported by the

Town and the Board of Safety. Id. ¶¶ 39–41. The three instances of allegedly protected speech

are the Plaintiff’s testimony against Kilgore in the investigatory proceeding, his questioning and

complaining to superiors regarding Kilgore’s unfair treatment of him, and his discussion with

other officers of a legitimate conflict of interest involving Kilgore. Id. ¶ 43.

ANALYSIS

The Defendants seek dismissal for failure to state a claim under Rule 12(b)(6) of both the

§ 1983 Fourteenth Amendment due process claim and the Title VII retaliation claim.

A. Section 1983 Fourteenth Amendment Due Process Claim

Pursuant to 42 U.S.C. § 1983, the Plaintiff alleges in Count I that the Defendants violated

his Fourteenth Amendment due process rights by demoting him from the rank of Corporal

without a hearing pursuant to Indiana Code § 36-8-3-4(c) after he requested one.3

2 Although Count II references “constitutionally protected speech” several times, neither the Second

Amended Complaint nor the response brief references a First Amendment retaliation claim.

3 The Court grants the Defendants’ motion to dismiss this claim to the extent it is brought under the Fifth

Amendment, see Second Am. Compl. ¶ 38, because the Plaintiff has named no federal official as a

defendant. See Dusenbery v. United States, 534 U.S. 161, 167 (2002) (“The Due Process Clause of the

Fifth Amendment prohibits the United States, as the Due Process Clause of the Fourteenth Amendment

prohibits the States, from depriving any person of property without ‘due process of law.’”).

Section 1983 provides, in relevant part, that “[e]very person who, under color of [state

law], subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of

any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the

party injured in an action at law.” 42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff

must allege that the defendant caused the deprivation of a federal constitutional right and that the

defendant acted under color of state law. Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006).

To bring a Fourteenth Amendment procedural due process claim, a plaintiff must have a

constitutionally protected property interest of which he has been deprived without due process of

law. Perry v. Sindermann, 408 U.S. 593, 599 (1972); Kiddy-Brown v. Blagojevich, 408 F.3d 346,

360 (7th Cir. 2005); U.S. Const. Amend XIV, § 1 (prohibiting states from “depriv[ing] any

person of life, liberty, or property, without due process of law”). Thus, a plaintiff must allege that

(1) he had a constitutionally protected property interest, (2) he suffered a loss of that interest

amounting to a deprivation, and (3) the deprivation occurred without the adequate protection of

due process of law. Moss v. Martin, 473 F.3d 694, 700 (7th Cir. 2007). The Defendants move to

dismiss on the first element, arguing that the Plaintiff did not have a constitutionally protected

property interest in his Corporal rank due to his probationary status at the time of the demotion

such that due process was not required.4

“Property interests . . . are not created by the Constitution” but rather “are created and

their dimensions are defined by existing rules or understandings that stem from an independent

source such as state law—rules or understandings that secure certain benefits and that support

claims of entitlement to those benefits.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577

4 In his response brief, the Plaintiff contends that the Defendants’ motion is improperly based on

affirmative defenses. However, the Plaintiff does not identify any such affirmative defense, and the Court

does not discern any. Rather, the Defendants argue that the Plaintiff has not alleged a constitutionally

protected property interest, an element of the Plaintiff’s due process claim.

(1972); see Frey Corp. v. City of Peoria, 735 F.3d 505, 509–10 (7th Cir. 2013). A plaintiff “must

have more than an abstract need or desire [for a benefit], and more than a unilateral expectation

of it. Instead, the person must have a legitimate claim of entitled to it.” Lukaszczyk v. Cook

County, 47 F.4th 587, 604–05 (7th Cir. 2022) (cleaned up) (quoting Roth, 408 U.S. at 577). A

constitutionally protected property interest arises “[w]hen government gives its employees

assurances of continued employment.” Gorman v. Robinson, 977 F.2d 350, 356–57 (7th Cir.

1992) (citations omitted). In the employment context, such a property interest “can arise from a

statute, regulation, municipal ordinance, or an express or implied contract.” Price v. Bd. of Educ.

of City of Chi., 755 F.3d 605, 607–08 (7th Cir. 2014). “[T]he sufficiency of the claim of

entitlement must be determined by reference to state law.” Bishop v. Wood, 426 U.S. 341, 344

(1976).

“In order to give rise to a constitutionally protected property interest, a statute or

ordinance must go beyond mere procedural guarantees to provide some substantive criteria

limiting the state’s discretion—as can be found, for example, in a requirement that employees be

fired only ‘for cause.’” Cain v. Larson, 879 F.2d 1424, 1426 (7th Cir. 1989); see 145 Fisk, LLC

v. Nicklas, 986 F.3d 759, 768–69 (7th Cir. 2021) (citing cases). “If a statute or regulation merely

delimits what procedures must be followed before an employee is fired, then it does not contain

the requisite substantive procedure.” Cain, 879 F.2d at 1426 (citing Bishop, 426 U.S. at 347;

Roth, 408 U.S. at 578); see Manley v. Law, 889 F.3d 885, 893 (7th Cir. 2018) (“For example, a

government promise that an employee can be fired only for good cause creates a substantive

property right in secure employment, whether or not the government provides procedures to

enforce that right.” (citing Swarthout v. Cooke, 562 U.S. 216, 221–22 (2011))). “In other words,

the federal Constitution does not enforce compliance with state procedural rules.” Manley, 889

F.3d at 893 (citing Swarthout, 562 U.S. at 221–22).

Here, the Plaintiff cites Indiana Code § 36-8-3-4 in support of his due process claim,

arguing that he was a member of the police department entitled to a hearing before being

demoted. Relevant here, section 4 “applies to all . . . towns . . . that have full-time, paid police . .

. departments.” Ind. Code § 36-8-3-4(a)(1). Regarding demotion, the statute provides:

(b) Except as provided in subsection (m),5 a member of the police . . . department

holds office or grade until the member is dismissed or demoted by the safety board.

Except as provided in subsection (n),6 a member may be disciplined by demotion,

dismissal, reprimand, forfeiture, or suspension upon either:

(1) conviction in any court of any crime; or

(2) a finding and decision of the safety board that the member has been or is

guilty of any one (1) or more of the following:

(A) Neglect of duty.

(B) A violation of rules.

(C) Neglect or disobedience of orders.

(D) Incapacity.

(E) Absence without leave.

(F) Immoral conduct.

(G) Conduct injurious to the public peace or welfare.

(H) Conduct unbecoming an officer.

(I) Another breach of discipline.

. . .

(c) Before a member of a police . . . department may be suspended in excess of five

(5) days without pay, demoted, or dismissed, the safety board shall offer the

member an opportunity for a hearing.

. . . .

Ind. Code § 36-8-3-4(b), (c) (emphasis added). Subsection (c) then addresses the requirements

for requesting the hearing and for written notice. Id. § 36-8-3-4(c).

5 Subsection (m) addresses demotion of a member who “holds an upper level policy making position,”

Ind. Code § 36-8-3-4(m), which is defined as “the police chief” and the “position held by members of the

police department . . . in . . . the next rank and pay grade immediately below the chief” in a police

department with more than ten but less than fifty-one members, Ind. Code § 36-8-1-12.

6 Indiana Code § 36-8-3-4(n) addresses a “member subject to criminal charges.”

Thus, § 36-8-3-4(c) delimits the procedural guarantee of being offered a hearing that is

afforded a member of the police department before being demoted. By itself, this procedural

protection is insufficient to bestow a protected property interest. See Cain, 879 F.2d at 1426.

However, § 36-8-3-4(b) sets out the substantive criteria limiting the Board of Safety’s discretion

in taking adverse employment actions, including demotion, and courts have consistently held that

§ 36-8-3-4(b) confers a protected property interest in employment on police officers. See City of

Mishawaka v. Stewart, 310 N.E.2d 65, 68 (Ind. 1974) (holding “that the tenure rights of

policemen . . . are legally protected rights” with the same procedural protections afforded other

property rights); Keith v. Town of Long Beach, 536 N.E.2d 552, 554 (Ind. Ct. App. 1989)

(quoting Stewart, 310 N.E.2d at 68); Bailey v. City of Lawrence, 972 F.2d 1447, 1449 (7th Cir.

1992) (citing Parrett v. City of Connersville, 737 F.2d 690, 693–94 (7th Cir. 1984)); State ex rel.

Miecznikowski v. City of Hammond, 448 N.E.2d 1239, 1243–44 (Ind. Ct. App. 1983) (explaining

that Indiana Code § 18-1-11-3, the predecessor to Indiana Code § 36-8-3-4, “created a legitimate

claim of entitlement to continue in that rank”); see also Castetter v. Lawrence Township, 959

N.E.2d 837, 844 (Ind. Ct. App. 2011) (holding that the merit commission statute, Indiana Code

§ 36-8-3.5-17, “creates an entitlement to rank, and that members of the department may not be

demoted without due process, subject to the exception we discuss below”); Marvin v. King, 734

F. Supp. 346, 352–53, 354 (S.D. Ind. 1990) (applying the similar merit commission regulation

that “if the ‘conduct or capacity of the probationer is found not to be satisfactory, which fact

shall be determined by the commission, the probationer shall have the right of hearing’” and

finding that “[t]he limitation on the Commission’s discretion . . . is precisely the type of limit on

discretion that provides the basis for a property interest”).

While the Plaintiff alleges in the Second Amended Complaint that there are questions of

fact regarding the length of any probationary status,7 he also contends that Indiana Code § 36-8-

3-4 provided him with a protected property interest as a member of the police department

regardless of any probationary status. Thus, the dispositive issue on this motion to dismiss is

whether § 36-8-3-4 provided the Plaintiff with a protected property interest in his rank of

Corporal if he held the rank on a probationary basis at the time he was demoted. To answer the

question, the Court must consider the statutes, regulations, town policies, or contracts governing

the Plaintiff’s probationary status to determine whether they contain a substantive limit on the

Board of Safety’s discretion in demoting him. See Marvin, 734 F. Supp. at 355–56 (“The case

law in this area supports the conclusion that probationers have a property interest when a statute

or regulation substantively limits the state’s discretion in altering their probationary status.”). For

the following reasons, the Court finds that, on the allegations and law currently before the Court,

the Plaintiff has alleged sufficient facts to plausibly infer he had a protected property interest in

his rank at the time of his demotion and that the Defendants have not met their burden on this

motion to dismiss of clearly showing the Plaintiff did not have a protected property interest in his

rank held during a probationary period. See Gunn, 968 F.3d at 806.

The Court begins with the text of the statute. Sections 36-8-3-4(b) and (c) apply to a

“member of the police department,” which is defined as a “police officer appointed to the

department.” Ind. Code § 36-8-1-9(a). The Second Amended Complaint alleges that the Plaintiff

7 To the extent the Plaintiff alleges new facts or claims in his response brief regarding his probationary

status, the Court declines to construe the allegations as a constructive motion to amend because those

allegations are to the resolution of this motion. See Schmees v. HC1.COM, Inc., 77 F.4th 483, 488 (7th

Cir. 2023) (holding “that district courts retain discretion to interpret new factual allegations or claims

presented in a plaintiff’s briefs as a constructive motion to amend”). Any amendment should be sought by

filing a motion for leave to amend pursuant to Federal Rule of Civil Procedure 15 and Northern District of

Indiana Local Rule 15-1.

had been employed as an officer of the Cedar Lake Police Department since 2009. Thus, the

Plaintiff was a “member of the police department” to whom § 36-8-3-4 applied. Section 36-8-3-

4(b) provides that a “member of the police . . . department holds . . . grade until . . . demoted by

the safety board” without reference to whether the grade is held during a probationary period.

Similarly, § 36-8-3-4(c) provides that the “safety board shall offer the member an opportunity for

a hearing” before the member may be “demoted” without reference to whether the member holds

the grade during a probationary period. In other words, the text of § 36-8-3-4 itself does not

carve out any exception for probationary status.8

The Defendants have not identified any statute, regulation, town ordinance, or written

contract establishing a probationary period for a police officer who obtains a new rank with the

Cedar Lake Police Department, such as the Plaintiff’s promotion to the rank of Corporal. As a

result, the Court cannot review the contents of the relevant provision for substantive criteria to

8 However, Indiana Code § 36-8-9-7, which “applies to all towns,” see Ind. Code § 36-8-9-1, establishes

“probationary appointments”:

(a) The board may provide that all appointments to the police department are probationary

for a period not to exceed one (1) year.

(b) If the board finds, upon the recommendation of the chief of the department during the

probationary period, that the conduct or capacity of a member is not satisfactory, the board

shall notify the member in writing that the member is being suspended or that the member

will not receive a permanent appointment.

(c) If a member is notified that the member will not receive a permanent appointment, the

member’s employment immediately ceases. Otherwise, at the expiration of the probationary

period, the member is considered regularly employed.

Ind. Code § 36-8-9-7 (emphasis added); see also Ind. Code § 36-8-4-12 (establishing the same

“probationary appointments” for cities). In this case, no party cites this provision, argues that it applies to

the Plaintiff, or contends that it applies to a regularly employed member of a police department holding a

new rank during a probationary period.

In Pruitt v. City of Lake Station, the Indiana Court of Appeals held that the “probationary

appointment” established in § 36-8-4-12 applies only to a newly hired officer and did not apply to the

plaintiff, a fourteen-year veteran of the department on disciplinary probation. 685 N.E.23d 735 (Ind Ct.

App. 1997). However, the Indiana Supreme Court granted transfer, vacating the decision. Pruitt v. City of

Lake Station, 698 N.E.2d 1191 (Ind. 1998) (May 1, 1998) (Table). The parties then settled, and the appeal

was dismissed at moot, with the Supreme Court ordering that the appellate opinion remain vacated

pursuant to Appellate Rule 11(B)(3) (currently Ind. App. R. 58(A)). Pruitt v. City of Lake Station, 695

N.E.2d 123 (Ind. 1998) (June 17, 1998).

determine what effect, if any, such a probationary period had on the Plaintiff’s property interest

in his rank conferred by § 36-8-3-4. For example, a provision may substantively limit the Board

of Safety’s discretion in altering the probationary status of a new rank by requiring that the

demotion be “for cause.” Such a provision may confer a protected property interest in the rank

during the probationary period. Or a provision may explicitly provide that an officer may be

demoted from a rank held during a probationary period at the discretion of the Board for any

reason with no right to a hearing, resulting in no protected property interest. As argued by the

Plaintiff, discovery is necessary to determine the terms of the Plaintiff’s probationary status.

The Defendants cite Untch v. Chaddock, 520 N.E.2d 118 (Ind. Ct. App. 1988), to argue

that the Plaintiff did not have a protected property interest in his new rank during the

probationary period. However, Untch, which has not been cited by any court, is distinguishable.

In Untch, the issue on appeal was whether three City of Portage police officers, who held their

new ranks during a probationary period, were entitled to notice and an opportunity to be heard

before the department eliminated the ranks to which they had been promoted. Id. at 119. Without

citing Indiana Code § 36-8-3-4 or any specific terms governing the officers’ probationary status,

the Court of Appeals stated that “[a]bsent any specific rule, regulation, or statute to the contrary,

a probationary employee does not have a vested right to continued employment.” Id. (citing

Gansert v. Meeks, 384 N.E.2d 1140 (Ind. Ct. App. 1979)).

In support, the court cited Gansert, 384 N.E.2d 1140, with the parenthetical description:

“probationary police officer failed to acquire protected property interest in his job so as to be

entitled to a hearing and appeal of his dismissal.” Untch, 520 N.E.2d at 119. However, the

plaintiff in Gansert was a county police officer—not a city police officer like the three officers in

Untch—during a probationary first year of employment. See Gansert, 384 N.E.2d at 1141. The

statute applicable to county police officers provided due process rights to a county police officer

only “after his probationary period,” id. at 1142, and the Allen County Police Department Rules

provided that county police officers serve a one-year probationary term, “that, if the Sheriff

determines that a probationer’s conduct or capacity is not satisfactory, then the Sheriff shall

notify the probationer that he will not receive a permanent appointment,” and that the Sheriff’s

determination is not subject to hearing or appeal, id. at 1142–43.9 As a result, the Indiana Court

of Appeals in Gansert found that the plaintiff did not have a protected property interest as a

probationary county police officer, noting that the “Merit Board Rule clearly distinguished

between the treatment of probationary and non-probationary policemen.” Id. at 1143 (applying

the property interest analysis set forth in Roth, 408 U.S. 564). The court in Untch did not

acknowledge that Gansert concerned a county police officer or explain how the property interest

analysis in Gansert based on a statute establishing an initial one-year probationary period of

employment for county police officers applied to tenured city police officers in Untch who were

demoted while holding a new rank during a probationary period.

9 At the time, Indiana Code § 17-3-14-6 (1971) provided that “[a]ll county policemen appointed to the

department under this chapter . . . shall be probationers and on probation for a period of one (1) year from

the date of appointment.” Gansert, 384 N.E.2d at 1142. Indiana Code § 17-3-14-7 (1971) provided, in

relevant part, that “[n]o county policeman shall be discharged, demoted, or temporarily suspended

because of political affiliation, nor shall any county policeman be discharged, demoted, or temporarily

suspended after his probationary period, except as provided in this act,” and the act included a “for cause”

requirement for adverse employment actions. Id. The county merit board rules provided that “[e]very

appointment to the police department shall be for a probationary period of one (1) year of actual service”

and that “[i]f at any time during the probationary period the conduct or capacity of the probationer is

found not to be satisfactory, which fact shall be determined by the Sheriff, without hearing and right to

appeal, the probationer shall be notified in writing by the Sheriff that he will not receive a permanent

appointment. . . .” Id. (emphasis added) (quoting Merit Board Rule § D, ¶ 7).

The current version of the statute, which was in effect at the time Untch was decided, includes

similar provisions. See Ind. Code §§ 36-8-10-10 and 36-8-10-11; McKinney v. Off. of the Sheriff of

Whitley Cnty., 866 F.3d 803, 805 (7th Cir. 2017) (“The probationary period is intended to ensure that new

officers are capable of performing their duties before they benefit from state law that requires good cause

for firing and provides extensive procedural protections.” (citing Ind. Code § 36-8-10-11)).

The court in Untch also considered whether an “interest has vested” to determine

“whether an employee has a legitimate claim of entitlement.” 520 N.E.2d at 119. However, none

of the cited cases addressed whether the substantive provisions of a statute, regulation, rule, or

contract conferred a property interest during a probationary period. See id. (citing Foley v.

Consol. City of Indianapolis, 421 N.E.2d 1160 (1981) (citing Martin v. Simplimatic Eng’g Corp.,

390 N.E.2d 235, 237 (Ind. Ct. App. 1979); quoting Parr v. Paynter, 137 N.E. 70, 71 (Ind. Ct.

App. (1922))).10 Thus, any general rule by the Untch court that a probationary employee does not

have a vested right to continued employment is not persuasive. Rather, as directed by Roth, this

Court must consider the specific statutes, regulations, rules, and contracts governing the

Plaintiff’s employment, including any probationary status, to determine whether he had a

protected property interest in his new rank during a probationary period. See Marvin, 734 F.

Supp. at 355–56 (considering the existence of a property interest based on whether a statute or

regulation substantively limited the state’s discretion in altering the probationary status);

Gansert, 384 N.E.2d at 1143–44 (considering the applicable statutes and merit rules to find no

protected property interest in the plaintiff’s probationary employment).

In his response brief, the Plaintiff cites Morris v. City of Evansville, 281 N.E.2d 910 (Ind.

Ct. App. 1972), to argue that Indiana Code § 36-8-3-4 provides him with a protected property

interest in his rank during a probationary period. In Morris, the plaintiff, a probationary fireman

in the first year of his employment with the City of Evansville, was terminated without a hearing

10 The court in Foley found that the plaintiff police officers, who claimed an entitlement to an increase in

pay under a city-initiated college incentive pay program, did not have a vested contract right to the pay

increase because the city was free to establish, revise, or revoke the program pursuant to the statutory

right to fix and determine wages and benefits. 421 N.E.2d at 1161, 1166–68. The two cases cited by Foley

addressed whether a plaintiff’s statutory right had vested before the applicable statute was repealed. See

Martin, 390 N.E.2d at 237 (Indiana Dangerous Employment Act); Parr, 137 N.E. at 71 (statute conferring

a right on all married women to avoid their contracts of suretyship).

for having falsified his height on his employment application. 281 N.E.2d at 912–13. The Safety

Board of the City of Evansville had passed a resolution establishing a nine-month probationary

period for new fireman appointees and providing that probationers could be denied a permanent

appointment without a hearing based on a finding by the board that the probationer’s conduct or

capacity was not satisfactory. Id. at 914. However, the Indiana Court of Appeals held that the

probationary firefighter had a protected property interest in his employment, reasoning that the

city resolution was trumped by Indiana Code § 18-1-11-3 (the statute prior to the current Ind.

Code § 36-8-3-4), which provided, similar to the current statute, that “[e]very member of the fire

and police forces. . . shall hold office until they are removed by [the safety] board,” that “[t]hey

may be removed for any cause other than politics,” “after written notice,” and “after an

opportunity or a hearing is given, if demanded.” Id. at 913 (quoting Ind. Code § 18-1-11-3). The

court reasoned that the city resolution was passed by an administrative tribunal bound by a

statute that made no distinction for probationary firemen and that the resolution “tend[ed] to

destroy the rather broad protection of the statute.” Id. at 915.11

Although this Court similarly finds that, on the current record, § 36-8-3-4 provides the

Plaintiff with a protected property interest in his rank, the reasoning of Morris is nevertheless

distinguishable for several reasons. First, like Gansert, the court in Morris considered an initial

probationary period of employment rather than the new rank held during a probationary period

by a tenured officer at issue in this case. Unlike in Gansert, the probationary period in Morris

was set forth in a city resolution rather than the statute itself. And also unlike Gansert, which

11 The chapter currently governing Town Boards of Metropolitan Police Commissioners provides that

“the board constitutes the safety board of the town for purposes of the suspension, demotion, or dismissal

of any member of the police department,” “[p]roceedings for the suspension, demotion, or dismissal of

any member of the police department shall be conducted in the manner prescribed by IC 36-8-3-4,” and

“[t]he board may make general and special rules for the government and discipline of the police

department.” Ind. Code §§ 36-8-9-4(c), (d).

applied the statutory provision on probationary appointments to find no protected property

interest in the probationary period, the court in Morris found that the statute on tenured

employment trumped the city resolution on probationary appointments and found a protected

property interest in the probationary period. Second, the decision in Morris was based in part on

the fact that the tenure statute did not distinguish between probationary and non-probationary

employment, whereas the current statute now contains provisions on “probationary

appointments” at Indiana Code § 36-8-9-7 (police departments in towns) and §36-8-4-12 (police

and fire departments in cities). See supra note 8. Third, the decision in Morris, which predates

Roth, did not consider whether the resolution included any substantive criteria limiting the

board’s discretion.

Therefore, based on a plain reading of Indiana Code § 36-8-3-4 and the law and facts

presented by the parties at this stage of the litigation, the Plaintiff has plausibly alleged a

protected property interest in his rank of Corporal during a probationary term. The Court denies

the Defendants’ motion to dismiss the Plaintiff’s Fourteenth Amendment due process claim.12

B. Title VII Retaliation Claim

The Plaintiff alleges in Count II that he was retaliated against in violation of Title VII

when he engaged in three forms of protected speech: testifying against then co-worker Kilgore in

an internal investigatory proceeding, questioning and complaining to superiors regarding

Kilgore’s subsequent unfair treatment of him, and discussing with other officers a legitimate

12 Based on this ruling, the Court declines to address at this time the Plaintiff’s citation of Pfifer v. Town

of Edinburgh, 684 N.E.2d 57, 582–83 (Ind. Ct. App. 1997), and Norris v. City of Terre Haute, 776 N.E.2d

923 (Ind. Ct. App. 2002), for the distinction between “person-directed actions,” such as the Plaintiff’s

demotion in this case, and “position-directed actions,” such as when a position is eliminated for economic

reasons, in terms of the due process protections afforded by Indiana Code § 36-8-3-4.

conflict of interest involving Kilgore. The Defendants move to dismiss the claim, arguing that

the Plaintiff has failed to allege that he engaged in statutorily protected activity.

Under Title VII, it is unlawful for an employer to “fail or refuse to hire or discharge any

individual, or otherwise to discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual’s race, color, religion,

sex, or national origin.” 42 U.S.C. § 2000e-2(a). At issue in this case, Title VII also “prohibits an

employer from retaliating against an employee for opposing or participating in an investigation

of an unlawful employment practice.” Lewis v. Wilkie, 909 F.3d 858, 866 (7th Cir. 2018) (citing

42 U.S.C. § 2000e-3(a); Lord v. High Voltage Software, Inc., 839 F.3d 556, 563 (7th Cir. 2016)).

Specifically, Title VII’s anti-retaliation provision states: “It shall be an unlawful employment

practice for an employer to discriminate against any of his employees . . . because he has

opposed any practice made an unlawful employment practice by this subchapter, or because he

has made a charge, testified, assisted, or participated in any manner in an investigation,

proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a) (emphasis added).

To state a claim of Title VII retaliation, a plaintiff must allege that (1) he engaged in a

statutorily protected activity, (2) he suffered an adverse action, and (3) there is a causal link

between the two. See Alley v. Penguin Random House, 62 F.4th 358, 361 (7th Cir. 2023) (citing

Abrego v. Wilkie, 907 F.3d 1004, 1014 (7th Cir. 2018)); Carlson v. CSX Transp., Inc., 758 F.3d

819, 828 (7th Cir. 2014). On the first element, “[a]n employee engages in a protected activity by

either: (1) filing a charge, testifying, assisting or participating in any manner in an investigation,

proceeding or hearing under Title VII or other employment statutes; or (2) opposing an unlawful

employment practice.” Alley, 62 F.4th at 362 (quoting Northington v. H & M Int’l, 712 F.3d

1062, 1065 (7th Cir. 2013)).

Here, the Plaintiff has failed to allege a statutorily protected activity within the meaning

of Title VII for purposes of his Title VII retaliation claim. The Seventh Circuit Court of Appeals

has consistently held that to be a protected activity under Title VII, a complaint to an employer

“must indicate the discrimination occurred because of sex, race, national origin, or some other

protected class.” Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006) (citing

Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1147 (7th Cir. 1997)). “Merely complaining in

general terms of discrimination or harassment, without indicating a connection to a protected

class or providing facts sufficient to create that inference, is insufficient.” Id. (citing cases); see

also Cole v. Bd. of Trs. of N. Ill. Univ., 838 F.3d 888, 901 (7th Cir. 2016) (explaining that

statutorily protected activity “requires more than simply a complaint about some situation at

work, no matter how valid the complaint might be”). Said differently, a statutorily protected

activity is “some step in opposition to a form of discrimination protected under the statute.”

Owens v. Old Wis. Sausage Co., 870 F.3d 662, 668 (7th Cir. 2017) (citing Ferrill v. Oak Creek-

Franklin Joint Sch. Dist., 860 F.3d 494, 501 (7th Cir. 2017)).

The Plaintiff has not alleged that he opposed discrimination based on race, color, religion,

sex, or national origin in any of the three instances of speech that form the basis of his Title VII

retaliation claim. Although the Plaintiff alleges that he gave testimony in an internal

investigation involving Kilgore, the Plaintiff does not allege that the testimony was in opposition

to any form of discrimination prohibited under Title VII. Nor does the Plaintiff allege that his

communications with superiors or other officers about Kilgore were in opposition to

discrimination prohibited under Title VII.

Rather, the Plaintiff reasons that his testimony against Kilgore in the context of an

investigation under Indiana Code § 36-8-2.1-5 constitutes participating in an “investigation”

pursuant to an “employment statute” as referenced in the Seventh Circuit’s definition of

“protected activity” in Alley quoted above, which is a direct quote from Northington: “an

employee engages in a protected activity by . . . filing a charge, testifying, assisting or

participating in any manner in an investigation, proceeding or hearing under Title VII or other

employment statutes.” 62 F.4th at 362 (emphasis added) (quoting Northington, 712 F.3d at

1065).13 However, the phrase “other employment statutes” in this definition of “protected

activity” appears to refer to other federal employment statutes under which a retaliation claim

can be brought, such as the Fair Labor Standards Act (FLSA), the Family Medical Leave Act

(FMLA), the Americans with Disabilities Act (ADA), or the Age Discrimination in Employment

Act (ADEA), all of which require, like Title VII, a showing that the plaintiff engaged in

protected activity. See, e.g., Dunn v. Hamra Enters. No. 20 C 04329, 2022 WL 4291028, at *2–

3, 4–5 (N.D. Ill. Sept. 16, 2022) (applying Northington’s definition of “protected activity” to an

FLSA retaliation claim in which the plaintiff complained to his supervisor about the employer’s

refusal to pay overtime hours in violation of the FLSA and the plaintiff was subsequently

terminated); Davé v. Bd. of Trs. of S. Ill. Univ., No. 3:18-CV-2122, 2024 WL 1367238, at *14–

15, 18 (S.D. Ill. Mar. 31, 2024) (applying Northington’s “protected activity” standard to both a

Title VII retaliation claim and an ADEA retaliation claim); Stedman v. City of Terre Haute, No.

13 In Northington, the plaintiff filed internal complaints and a criminal complaint about a coworker’s

treatment of her after the coworker found out she and the plaintiff were dating the same other coworker.

712 F.3d at 1063–65. The Seventh Circuit in Northington explained that “Title VII protects those actions

only if the complaints arose from harassment based on a protected factor.” Id. at 1065. The court then

stated, “An employee engages in a protected activity by either: (1) filing a charge, testifying, assisting or

participating in any manner in an investigation, proceeding or hearing under Title VII or other

employment statutes; or (2) opposing an unlawful employment practice.” Id. The court found that the

record showed the coworker’s behavior toward the plaintiff did not involve the plaintiff’s race or gender

but rather was personal and based on their romantic involvement with the same coworker. Id. The court

held, “Because the harassment itself was not a purported violation of Title VII, [the plaintiff’s] complaints

do not qualify as alleging a protected activity.” Id.

2:17-CV-398, 2019 WL 2436995, at *4, 6–7 (S.D. Ind. June 11, 2019) (applying Northington’s

“protected activity” standard to an ADA retaliation claim); Hamzah v. Woodman’s Food Mkt.,

Inc., 13-CV-491, 2016 WL 297748, at *7 (W.D. Wis. Jan. 22, 2016) (finding that the plaintiff

could not establish a statutorily protected activity on his Title VII and ADEA claims because his

letters did not “make any reference to facts or to his protected status . . . from which one could

detect even an implicit reference to discrimination on the basis of his race, ethnicity or age”); see

also Freelain v. Village of Oak Park, No. 13 CV 3682, 2016 WL 6524908, at *4 (N.D. Ill. Nov.

3, 2016) (finding that the plaintiff had engaged in statutorily protected activity under the FMLA

by requesting FMLA leave and by filing charges with the EEOC).

The statute relied on by the Plaintiff as the basis for his Title VII retaliation claim—

Indiana Code § 36-8-2.1-5—governs the “rights of officer who is subject of complaint or internal

investigation” and is part of Chapter 2.1 on the “Rights of Police Officers.” The Plaintiff cites no

authority for extending Title VII retaliation protections under 42 U.S.C. § 2000e-3(a) to

testimony given in a hearing under a state statute, much less to a state statute that does not

address employment discrimination.14 Notably, federal courts analyze state law employment

retaliation claims separately under the applicable state law standard. See, e.g., Dunn, 2022 WL

4291028, at *7; Davé, 2024 WL 1367238, at *19.

Accordingly, the Court grants the Defendants’ motion to dismiss the Plaintiff’s Title VII

retaliation claim for failure to allege the Plaintiff engaged in an activity protected by Title VII.

As a result, the Court does not reach the Defendants’ alternate arguments regarding causation.

14 The Indiana Civil Rights Law is found at Indiana Code § 22-9-1-1 et seq.

CONCLUSION

For the reasons stated above, the Court hereby GRANTS in part and DENIES in part the

Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint [ECF No. 33],

dismissing the Fifth Amendment due process claim in Count I and the Title VII retaliation claim

in Count II. The case remains pending on the Plaintiff’s Fourteenth Amendment due process

claim in Count I.

SO ORDERED on September 24, 2024.

s/ Theresa L. Springmann

JUDGE THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT