Hensley v. Wester Chester Twp., 1:21cv373

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Writing for the CourtMICHAEL R. BARRETT, JUDGE
PartiesJamie L. Hensley, et al., Plaintiffs, v. Wester Chester Township, et al., Defendants.
Docket Number1:21cv373
Decision Date30 September 2022

Jamie L. Hensley, et al., Plaintiffs,

Wester Chester Township, et al., Defendants.

No. 1:21cv373

United States District Court, S.D. Ohio, Western Division

September 30, 2022



This matter is before the Court upon Defendants' Motions to Dismiss. (Docs. 25, ]26, 27, 28, 29, 32). Plaintiffs have filed Responses (Docs. 34, 35, 36, 37, 43); and Defendants have filed Replies (Docs. 38, 39, 40, 41, 46).


The following factual background is taken from the Amended Complaint filed by Plaintiffs Jamie Hensley and Joseph Gutman. Plaintiffs are former police officers with the West Chester Township Police Department. (Doc. 21, PAGEID 120). Both officers began their careers with the police department in the 1990s and rose to the rank of Captain. (Id., PAGEID 120). Defendant Joel Herzog is the Chief of the Police Department. (Id., PAGEID 121). Plaintiffs claim that on multiple occasions Herzog made sexist, racist and anti-Muslim comments. (Id., PAGEID 121-22). Plaintiffs also claim that Herzog hired a female administrative assistant who dressed and acted unprofessionally. (Id., PAGEID 122-23). For example, Plaintiffs claim that the administrative assistant wore thigh-high skirts, stiletto heels, low-necked tops, and short shorts with a midriff top to work. (Id., PAGEID 122). Plaintiffs claim the administrative assistant flirted with Gutman and would


make up reasons to linger in the office after hours with Hensley. (Id., PAGEID 123). Plaintiffs brought these issues to the attention of Herzog. (Id., PAGEID 123). Plaintiffs participated in an informal investigation, but declined to file a formal complaint. (Id., PAGEID 123). Following the investigation, the administrative assistant no longer wore revealing clothes to work and maintained a professional relationship with Plaintiffs. (Id., PAGEID 124). However, Plaintiffs claim that Herzog began retaliating against them by taking away their responsibilities, undermining them and scrutinizing their work. (Id., PAGEID 124).

In April of 2019, Plaintiffs learned that an anonymous caller claimed to have a photo of Herzog in blackface. (Id., PAGEID 125). Hensley met with Herzog and informed him that he recalled seeing the photo. (Id., PAGEID 125). Plaintiffs claim after that conversation, Herzog began making veiled threats to Hensley regarding the photo and the anonymous call. (Id., PAGEID 125).

Soon thereafter, Plaintiffs called a meeting with Defendant Larry Burks, who is the West Chester Township Administrator, and Joan Tumblison, who is the West Chester Township Human Resources Manager. (Id., PAGEID 125). Plaintiffs informed Burks and Tumblison that Hensley had seen the photo of Herzog in blackface; and described the sexist, racist and anti-Muslim comments made by Herzog. (Id., PAGEID 125). Burks told Plaintiffs to work it out with Herzog. (Id., PAGEID 126). After Plaintiffs informed Herzog of their meeting with Burks, Herzog began scrutinizing Plaintiffs' daily activities and gave Plaintiffs lower-than-usual ratings on their 2019 performance evaluations. (Id., PAGEID 126).


In January of 2020, Herzog and West Chester Township Human Resources Manager Tonya Charles met with Hensley and put him on a performance improvement plan. (Id., PAGEID 127). Herzog allowed Hensley to record the meeting on his phone. (Id., PAGEID 128). Part of Herzog's criticism of Hensley was a Facebook post made by Hensley's wife which referenced “cronyism” and another post about her own boss. (Id., PAGEID 128). Herzog insisted the posts were about him. (Id., PAGEID 128). Plaintiffs claim that Herzog was sensitive to allegations of cronyism because there was speculation that he promoted a sergeant due to his personal friendship with the sergeant. (Id., PAGEID 128). During the meeting, Herzog told Hensley he was accountable for his wife's speech, and asked Hensley to demote himself. (Id., PAGEID 128). In February of 2020, Hensley met with Burks and told him the performance improvement plan was retaliatory. (Id., PAGEID 129).

Two weeks later, Herzog initiated an internal affairs investigation of Hensley. (Id., PAGEID 129). The basis for the investigation was that Hensley was disrespectful and made false statements about his wife's Facebook post and whether he had deleted the recording of the January 2020 performance improvement plan meeting on his phone. (Id., PAGEID 130). Herzog and Burks directed the investigator to not investigate any concerns that Hensley had about Herzog retaliating against Plaintiffs. (Id., PAGEID 130).

On February 24, 2020, Hensley filed a formal internal complaint of retaliation and discrimination against Herzog. (Id., PAGEID 130). Plaintiffs attempted to meet with Burks, Herzog and the Human Resources Department to resolve the complaint, but they refused to meet with Plaintiffs at the direction of the West Chester Township Board of Trustees. (Id., PAGEID 131). Defendant Douglas Duckett, an attorney, was hired to


investigate Plaintiffs' complaint. (Id., PAGEID 131). Plaintiffs claim that Duckett intentionally distorted and mischaracterized interview statements, did not interview corroborating witnesses and selectively ignored what Plaintiffs told him. (Id., PAGEID 134). Plaintiffs claim that Duckett's written report made false statements and falsely accused Plaintiffs of wrongdoing and sexism. (Id., PAGEID 136-37). The Board of Trustees adopted the report and released it to the media. (Id., PAGEID 137-38). Hensley was informed that he would be terminated for dishonesty based on the report if he did not resign, so he resigned on June 23, 2020. (Id., PAGEID 138). Gutman was placed on a disciplinary plan based on the report. (Id., PAGEID 139). Gutman's working conditions became intolerable due to the hostility from Herzog, so he resigned on January 16, 2021. (Id., PAGEID 140).

Plaintiffs bring claims against West Chester Township; the West Chester Township Board of Trustees (Ann Becker, Mark Welch and Lee Wong) in their official and individual capacity; the West Chester Township Police Department; the West Chester Township Police Chief Joel Herzog, the West Chester Township Administrator Larry Burks; and Douglas Duckett.

Plaintiffs' claims are as follows: retaliation under Title VII (Count One); retaliation under Ohio law (Count Two); defamation (Count 3); First Amendment retaliation under 42 U.S.C. §1983 (Counts Four and Five); a violation of Ohio Revised Code § 2307.60 (Count Six); and retaliation in violation of public policy under Ohio law (Count Seven).

Defendants have filed separate Motions to Dismiss pursuant to Federal Rule 12(b)(6) which seek to dismiss all the claims against them for failure to state a claim.



A. Standard of Review

In reviewing a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), this Court must “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true and draw all reasonable inferences in favor of the plaintiff.” Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008) (quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). Federal Rule of Civil Procedure 8 provides that all pleadings must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although particular detail is not generally necessary, the factual allegations “must be enough to raise a right to relief above the speculative level” such that the claim “is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-57 (2007). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). “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.” Id. (citing Twombly, 550 U.S. at 556).

B. West Chester Township, West Chester Police Department and Board of Trustees official capacity suits

In their Motion to Dismiss, Defendants West Chester Township and the West Chester Township Board of Trustees maintain that “West Chester Township” is not a proper party; and instead, the Board of Trustees is the proper entity to be named as a defendant in cases brought against the Township. The Board of Trustees, who have been named in their individual and official capacities, maintain that the claims against


them in their official capacities are redundant with the claims against the Township and should be dismissed.

An official-capacity suit against a government official is the equivalent of an action against the governmental entity of which the officer is an agent. Kentucky v. Graham, 473 U.S. 159, 165 (1985). When a complaint names both an official-capacity defendant and the entity of which the government official is an agent, the claims are “redundant.” Jackson v. Shelby Cty. Gov't, No. 07-6356, 2008 WL 4915434, at *2 (6th Cir. Nov. 10, 2008). As such, the official capacity claim against individual government official can be dismissed. See, e.g., Faith Baptist Church v. Waterford Twp., 522 Fed.Appx. 322, 327 (6th Cir. 2013) (“Having sued Waterford Township, the entity for which [the prosecuting attorney] was an agent, the suit against Bedell in his official capacity was superfluous.”); cf. Becker v. Bd. of Trustees Clearcreek Tp., Case No. 3:05CV00360, 2008 WL 4449375, *5 (S.D. Ohio Sept. 30, 2008) (in a case where the township was not named as a party, the proper party for claims against township administrator was township board of trustees). Therefore, West Chester's Motion to Dismiss is DENIED to the extent that it seeks to dismiss “West Chester Township.” However, the Motion to Dismiss filed by the West...

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