Virijevich v. Chesterton

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

DAVID O VIRIJEVICH,

Plaintiff,

v. Case No. 2:23-CV-00047-GSL

CHESTERTON TOWN OF, et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court on Defendant’s Motion for Summary Judgment. [DE 35].

For the reasons below, the Court GRANTS Defendant’s motion.

I. UNDISPUTED FACTS

On February 8, 2021, Plaintiff discovered a video that depicted potentially illegal

conduct. [DE 50, ¶¶ 11–12]. At the time, Plaintiff was a Detective Sergeant for the Chesterton

Police Department (“CPD”). [Id. ¶ 3]. He found the video on a CPD-owned camcorder, which

was in a desk formerly occupied by Nick Brown—Interim Chief of the CPD. [Id. ¶ 11]. The

video implicated Brown as being responsible for the potentially illegal conduct. [Id. ¶ 12].

The next day, Plaintiff reported the video to Sergeant Charles Rinker and Assistant Chief

Dan Rocha. [Id. ¶¶ 13–14]. The three of them confronted Brown in his office and gave him a

copy of the video. [Id. ¶ 15]. Plaintiff and Rinker left Brown’s office right after handing over the

video. [Id.]. Shortly after this meeting, Brown called Plaintiff back to his office to discuss an

unrelated criminal case. [Id. ¶ 16]. But Plaintiff told Brown that he was not comfortable meeting

with him alone. [Id.].

On February 15, 2021, Plaintiff and Rinker reported the video to Lieutenant Christian.

[Id. ¶ 20]. Noting that they had raised the issue to both Rocha and Brown, they questioned

whether anything had resulted from that prior report. [Id.]. With Plaintiff and Rinker present,

Christian called Rocha, who confirmed that he had not taken any action yet. [Id. ¶¶ 21–22].

Later that day, Plaintiff, Rinker, and Christian met in person with Rocha. [Id. ¶ 23]. After

the group reached a consensus on the next steps, Christian called Defendant Peter Duda—a

Chesterton Police Commissioner—to inform him about the video involving Brown. [Id. ¶¶ 8,

23]. Following this conversation, Defendant Duda called Defendant David Cincoski— the

Chesterton Town Manager—to explain the situation. [Id. ¶¶ 5, 24]. In turn, Defendant Cincoski

briefed the Town Attorney, who told him to collect additional information and evidence. [Id. ¶

25].

Along with escalating the situation to Defendant Duda, the group of Plaintiff, Rinker,

Christian, and Rocha agreed to contact outside agencies. [Id. ¶ 26]. Rocha reported the video to

both the Porter County Prosecutor and the Lowell District of the Indiana State Police. [Id. ¶ 26–

27]. Defendant Cincoski originally intended on giving the original memory card of the video to

the Town Attorney. [Id. ¶¶ 28–29]. But after further discussions with Christian and Rocha, he

agreed that the best course of action was to transfer the memory card directly to the Indiana State

Police. [Id. ¶¶ 30–33].

On February 18, 2021, Brown resigned from his position as Interim Chief, returning to

his previous rank as Corporal. [Id. ¶¶ 37, 40]. The next day, Defendant John Orlich—another

Chesterton Police Commissioner—issued a memorandum to the CPD, at the direction of the

Town Attorney, stating that Brown had resigned from his position as Interim Chief and that

officers were not to interfere with any ongoing investigations related to the matter. [Id. ¶¶ 38–

39]. Shortly thereafter, the town of Chesterton hired a third party—George Nelson, former Chief

of Police—to conduct an internal investigation. [Id. ¶ 36]. On May 21, 2021, Brown resigned

from the CPD. [Id. ¶ 44].

In April 2021, Plaintiff gave a statement to Indiana State Police regarding the discovery

of the video and its contents. [Id. ¶ 42]. Sometime during or after the investigation, Plaintiff

asked Bob Byrd—the new Interim Chief—for a “finding of no fault” with his conduct during the

investigation. [Id. ¶ 51]. Byrd denied this request. [Id.]. Later, Byrd informed Plaintiff and

Rinker that the Town was interested in conducting a new investigation—beyond Nelson’s initial

one. [Id. ¶ 53]. On April 21, Byrd handed Plaintiff a business card from an Indiana State Police

trooper who performed polygraphs. [Id. ¶ 54]. But nothing came of these later events, and

additional investigations and polygraphs were never discussed again. [Id. ¶¶ 53, 54].

During and after Nelson’s initial investigation, Plaintiff claims that he was treated

differently by Brown, Defendant Cincoski, and other employees of CPD and Chesterton. [Id. ¶¶

46–51]. Brown passed through Plaintiff’s work area more often. [DE 63, ¶ 117]. Defendant

Cincoski acted less amiably toward Plaintiff.1 [Id. ¶ 140]. Other employees gave Plaintiff the

“silent treatment” and the “cold shoulder.” [Id. ¶ 137].

In 2022, Plaintiff was promoted to the rank of Lieutenant. [Id. ¶ 45]. Rocha left him his

new badge on his keyboard, rather than giving it to him at a public celebratory event. [Id. ¶ 55].

On February 23, 2024, Plaintiff was given a deficiency letter. [Id. ¶ 159].

1 Plaintiff states specific factual allegations of Defendant Cincoski’s conduct toward only Rinker. [DE 63,

¶¶ 138–39] (e.g., “would no longer say hi” and “would no longer look at Rinker in any way but with disdain in his

eyes.”). But he alleges that “Cincoski behaved similarly towards Virijevich.” [Id. ¶ 140].

II. LEGAL STANDARD

Summary judgment is appropriate “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The movant “bears the initial responsibility of informing the district court of the basis for

its motion and identifying those portions of” the evidence that “demonstrate the absence of a

genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To survive a

properly supported motion for summary judgment, “the nonmoving party must present evidence

sufficient to establish a triable issue of fact on all elements of its case.” McAllister v. Innovation

Ventures, LLC, 983 F.3d 963, 969 (7th Cir. 2020).

In deciding a motion for summary judgment, a court may “not weigh conflicting

evidence, resolve swearing contests, determine credibility, or ponder which party's version of the

facts is most likely to be true.” Stewart v. Wexford Health Sources, Inc., 14 F.4th 757, 760 (7th

Cir. 2021). Instead, a court’s only task is “to decide, based on the evidence of record, whether

there is any material dispute of fact that requires a trial.” Id. (internal citation omitted). If there is

no genuine dispute of material fact, then summary judgment is appropriate, and the movant is

entitled to judgment as a matter of law. Id.

III. DISCUSSION

Plaintiff brings claims against Defendants for violations of his First Amendment rights,

pursuant to 42 U.S.C. § 1983. [DE 1]. Defendants include three individuals—Town Manager

David Cincoski, Commissioner Peter Duda, and Commissioner John Orlich—and one municipal

entity—the Town of Chesterton. [Id.]. Plaintiff asserts that Defendants retaliated against him

because he reported the potentially criminal activity by then-Interim Chief Brown. [Id.].

Defendants argue that the record lacks evidence to demonstrate any element of the prima facie

case, and that Defendants are entitled to qualified immunity. [DE 35].

A. Individual Defendants

“To make a prima facie showing on [his] First Amendment retaliation claim, [Plaintiff]

must establish that ‘(1) [he] engaged in activity protected by the First Amendment, (2) [he]

suffered a deprivation that would likely deter First Amendment activity in the future, and (3) the

First Amendment activity was . . . at least a motivating factor in the Defendant[s’] decision to

take the retaliatory action.’” 145 Fisk, LLC v. Nicklas, 986 F.3d 759, 766 (7th Cir. 2021)

(quoting Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir. 2008)). The Court finds that Plaintiff

failed to prove the second element of the prima facie case. This finding is determinative, so the

Court will not address arguments relating to the other elements or to qualified immunity.

Plaintiff argues that the record evidence demonstrates that the individual Defendants

were involved in a “campaign of petty harassment” against Plaintiff, which, “in gross, was

substantial and palpably felt.” [DE 49, page 12]. The alleged campaign of harassment involved:

Defendants not immediately removing Brown from Plaintiff’s work environment after Plaintiff

reported Brown’s potential illegal conduct [Id.]; Defendant Orlich issuing a memo to the CPD

asking personnel not to interfere in the investigation relating to Brown [Id.]; ostracization by

other members of the CPD during and following the investigation [Id. at 12–13]; alleged threats

by new-Interim Chief Byrd of additional investigations [Id. at 13]; Byrd’s denial of Plaintiff’s

request for a “no wrongdoing letter” [Id.]; and Plaintiff’s eventual “forced move” to the Patrol

Division [Id.].2

2 For the sake of brevity, the Court discusses only the instances of harassment that the parties substantially

briefed or raised at oral arguments. The Court reviewed and considered all factual allegations of harassment, even if

not specifically referenced in this Order.

Any allegation of harassment by Byrd, Brown, or fellow officers at CPD does not support

Plaintiff’s claim against the individual Defendants. Under Section 1983, “a government official

is only liable for his or her own misconduct.” Taylor v. Ways, 999 F.3d 478, 493 (7th Cir. 2021)

(quoting Locke v. Haessig, 788 F.3d 662, 669 (7th Cir. 2015)) (internal quotation marks

omitted). In other words, the individual Defendants are only liable if they were personally

involved in the harassment. See id. at 493–94. Personal involvement requires that they “know

about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they

might see.” Id. at 494 (quoting Matthews v. City of E. St. Louis, 675 F.3d 703, 708 (7th Cir.

2012)). Plaintiff does not offer any evidence to demonstrate that the individual Defendants knew

of or turned a blind eye to the alleged harassment by Byrd, Brown, or other fellow officers at

CPD.

The “delayed” removal or termination of Brown fails to demonstrate retaliatory conduct

by Defendants. The Court is not aware of (and the parties fail to point to any) case law that

delineates a compressed timeline by which state actors must take specific actions in response to

an employee’s complaint. Brown resigned from his post within ten days of Plaintiff’s report. For

the next three months, Brown was relegated to an isolated assignment while Defendants

conducted an internal investigation. Subsequently, Brown resigned from the CPD. Facially,

Defendants’ response does not appear unreasonable to the Court, nor does it appear to be

retaliatory by any measure. See Douglas v. Reeves, 964 F.3d 643, 646 (7th Cir. 2020) (applying

an objective test: “whether the alleged conduct by the defendants would likely deter a person of

ordinary firmness from continuing to engage in protected activity”).

Defendant Orlich’s memorandum—asking CPD personnel not to interfere into ongoing

investigations relating to Brown’s resignation—also fails to demonstrate retaliatory conduct.

Plaintiff called this memo a “gag order” in his briefing [DE 49, page 12], and at oral arguments,

through his counsel [DE 62], implying that Defendant Orlich distributed the memo to silence or

malign Plaintiff. He argues that this “gag order” contributed to his ostracization by personnel at

the CPD. [DE 49, page 12]. The Court is not convinced that Defendant Orlich’s memo

demonstrates retaliatory conduct. First, the “gag order” does not reference Plaintiff in anyway,

nor was it directed to only Plaintiff, but to all personnel at the CPD. The memo appears to be a

reasonable action taken during an internal investigation—asking personnel not to interfere with

the investigation. See Reeves, 964 F.3d at 646. Second, to the extent that CPD personnel

ostracized Plaintiff because of the memo, Plaintiff does not provide evidence to demonstrate that

Defendant Orlich knew of this ostracization or turned a blind eye to it. See Ways, 999 F.3d at

494.

Plaintiff also argues that his “demotion” is evidence of retaliatory conduct by

Defendants.3 Generally, suspicious timing is not enough for an inference of causation between a

protected activity and alleged retaliatory action. Kidwell v. Eisenhauer, 679 F.3d 957, 966 (7th

Cir. 2012). The more time between the two events, the less likely such an inference can be made.

See id. In Kidwell, the Seventh Circuit found a time gap of two months to be too big to allow an

inference of causation. Id. at 967. See id. at 966 (“[W]e typically allow no more than a few days

to elapse between the protected activity and the adverse action.”). Here, Plaintiff’s “demotion”

occurred more than three years after Plaintiff reported Brown’s potential illegal conduct. This far

exceeds the time gap that the Seventh Circuit has found permissible. Also counseling against an

inference of causation, Plaintiff’s “demotion” came about two years after Plaintiff was promoted

3 The Court is skeptical of whether Plaintiff’s transfer to the Patrol Division was a “demotion” because he

maintained his rank of Lieutenant. That said, this issue is not fully briefed nor does it affect the Court’s conclusion.

to the rank of Lieutenant. See id. at 967 (looking at “significant intervening event[s]” that

separate an employee’s protected activity and the adverse employment action”).

B. Municipal Defendant

Under Monell, a municipality may be liable for a violation of a plaintiff’s constitutional

rights that resulted from an official policy, custom, or practice. Deeren v. Anderson, 72 F.4th

229, 237 (7th Cir. 2023) (citing Monell v. Dep’t of Soc. Services, 436 U.S. 658 (1978)). But to

sustain a Monell claim, a plaintiff must show a violation of his constitutional rights by an

individual defendant. Id. (citing Novoselsky v. Brown, 822 F.3d 342, 357 (7th Cir. 2016)). Here,

because Plaintiff failed to show that any individual Defendant violated his First Amendment

rights, “it follows that he cannot avoid summary judgment on his Monell claim against [the

Town of Chesterton].” Id.

CONCLUSION

The Court hereby GRANTS Defendant’s Motion for Summary Judgment [DE 35]. The

Court DIRECTS the Clerk of Court to enter judgment against Plaintiff and in favor of

Defendants. Plaintiff takes nothing by his Complaint.

SO ORDERED.

ENTERED: July 14, 2025

/s/ GRETCHEN S. LUND

Judge

United States District Court