# Hensley v. West Chester Township

> District Court, S.D. Ohio · September 30, 2022

URL: https://www.frixlaw.com/law-library/cases/10381025

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** September 30, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10381025

## How later opinions describe it (automated extraction)

- finding defendant's allegedly retaliatory campaign of relentless scrutiny following the plaintiff's complaints of racial discrimination were sufficient to discourage a person of ordinary firmness from exercising her rights under the First Amendment
- discussing constitutional and statutory presumptions against retroactive legislation in Ohio

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Jamie L. Hensley, et al.,

Plaintiffs, Case No. 1:21cv373

v. Judge Michael R. Barrett

Wester Chester Township, et al.,

Defendants.

OPINION & ORDER

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).
I. BACKGROUND
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.
II. ANALYSIS
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 F. App'x 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 Chester Township Board of Trustees is GRANTED to the extent that it seeks to
dismiss the claims against the individually named Board of Trustees in their official
capacity.
Finally, Defendant West Chester Police Department maintains that it is merely a
department of West Chester Township with no independent legal status; and therefore, it
cannot be sued. Under Ohio law, a township police department is not sui juris. Pinkins
v. Mahoning Cnty. Task Force, 176 N.E.3d 76, 80 (Ohio Ct. App. 2021) (citing cases).
Therefore, the West Chester Police Department’s Motion to Dismiss is GRANTED; and
the West Chester Police Department is DISMISSED as a party.
C. Retaliation (Counts One and Two)
Plaintiff brings a claim of retaliation under Title VII and Ohio law against West

Chester Township; and claims of aiding and abetting retaliation under Ohio law against
Duckett, Herzog, Burks, the Board of Trustees in their individual capacities and West
Chester Township.1
Title VII “prohibits retaliatory conduct by an employer when an employee engages
in protected activity.” Brown v. VHS of Michigan, Inc., 545 F. App'x 368, 373 (6th Cir.
2013); see also 42 U.S.C. § 2000e-3(a) (“It shall be an unlawful employment practice for
an employer to discriminate against any of his employees ... because [the employee] 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.”). Similarly, Ohio Revised

Code § 4112.02(I) makes it unlawful “[f]or any person to discriminate in any manner
against any other person because that person has opposed any unlawful discriminatory
practice ... or because that person has made a charge, testified, assisted, or participated
in any manner in any investigation, proceeding or hearing [regarding such discriminatory
actions].” In addition, Ohio Revised Code § 4112.02(J) makes it unlawful “[f]or any person
to aid, abet, incite, compel, or coerce the doing of any act declared by this section to be
an unlawful discriminatory practice, to obstruct or prevent any person from complying with

1Plaintiffs also brought these claims against the West Chester Police department and the
individually named the Board of Trustees in their official capacity, but as discussed above, these
parties are dismissed.
this chapter or any order issued under it, or to attempt directly or indirectly to commit any
act declared by this section to be an unlawful discriminatory practice.”
“Because the Ohio Supreme Court has held that an action under Ohio Revised
Code § 4112 mirrors that under Title VII, Plumbers & Steamfitters Joint Apprenticeship

Comm. v. Ohio Civil Rights Comm'n, 66 Ohio St. 2d 192, 196, 421 N.E.2d 128 (Ohio
1981), [the Court] will analyze plaintiff's state and federal claims of illegal retaliation solely
under Title VII.” Abbott v. Crown Motor Co., 348 F.3d 537, 541 (6th Cir. 2003).
While the parties have recited the elements of a prima facie case under Title VII in
their briefs, Plaintiff is not required to plead facts establishing a prima facie case under
Title VII in order to state a claim for relief. See Keys v. Humana, Inc., 684 F.3d 605, 609
(6th Cir. 2012) (citing Swierkiewicz v. Sorema, 534 U.S. 506, 510-12 (2002)). “The prima
facie case . . . is an evidentiary standard, not a pleading requirement.” Swierkiewicz, 534
U.S. at 510. Instead, “the ordinary rules for assessing the sufficiency of a complaint
apply.” Kinney v. McDonough, No. 21-1414, 2022 WL 223633, at *6 (6th Cir. Jan. 26,

2022) (quoting Swierkiewicz, 534 U.S. at 511). That is, “only ‘a short and plain statement
of the claim showing that the pleader is entitled to relief’” is required. Id. (quoting
Swierkiewicz, 534 U.S. at 508 (quoting Fed. R. Civ. P. 8(a)(2)).
1. West Chester Township
West Chester Township argues that Plaintiffs have failed to allege a causal
connection between Plaintiffs’ protected activity and any adverse employment action.
The Court rejects this argument. As this Court has explained, at this stage of the
litigation:
To plausibly allege a causal connection between protected activity and an
adverse action, a plaintiff must put forth some fact creating an inference that
the adverse action would not have occurred without the employee first
engaging in protected activity. See Nguyen v. City of Cleveland, 229 F.3d
559, 563 (6th Cir. 2000). This causal link can be shown two ways, either
(1) through direct evidence or (2) through “knowledge coupled with a
closeness in time that creates an inference of causation.” Id. at 566. There
is no single factor that is dispositive in establishing a causal connection, but
“evidence that the defendant treated the plaintiff differently from similarly
situated employees or that the adverse action was taken shortly after the
plaintiff's exercise of protected rights is relevant to causation.” Id.; see also
Abbott, 348 F.3d at 542-43 (citing Tex. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 252 (1981)).

Sizemore v. Edgewood Bd. of Educ., No. 1:19-CV-555, 2020 WL 1904726, at *8 (S.D.
Ohio Apr. 17, 2020).
Here, Plaintiffs allege that “[a]fter Plaintiffs participated in the investigation
concerning [Herzog’s administrative assistant’s] conduct, Defendant Herzog retaliated
against them by taking away responsibilities, excluding them from decisions, undermining
them to their subordinates, and scrutinizing how they managed their respective bureaus
day-to-day.” (Doc. 21, PAGEID 124). Plaintiffs explain that after they complained to
Burks about this retaliation, and informed Burks of sexist and racist jokes made by
Herzog, “Herzog required them to tell [his administrative assistant] whenever they left the
building” and Herzog gave them performance evaluations “lower than they had ever
received, impacting their pay.” (Doc. 21, PAGEID 126). Plaintiffs also claim that
“Defendants ramped up their retaliation against Hensley by placing him on a performance
improvement plan in January 2020” and Herzog initiated a “bogus” internal affairs
investigation of Hensley. (Doc. 21, PAGEID 127, 129). When Hensley filed a formal
written complaint of retaliation and discrimination by Herzog on February 24, 2020,
Plaintiffs claim that Burks and West Chester Township hired Duckett to shield themselves
instead of conducting an unbiased investigation. (Doc. 21, PAGEID 130-31). Plaintiffs
allege that the investigation by Duckett was intended to “set the stage to terminate
Plaintiffs under false pretenses” and “punish Plaintiffs for their protected activity.” (Doc.
21, PAGEID 134). These alleged facts create an inference that the adverse actions
identified in the Amended Complaint would not have occurred without Plaintiffs first

engaging in protected activity. Therefore, to the extent that it seeks to dismiss Plaintiffs’
claims of retaliation under Title VII and Ohio law, West Chester Township’s Motion to
Dismiss is DENIED.
2. Herzog, Burks, Duckett and the Board of Trustees
The Court now turns to the claims of retaliation and aiding and abetting retaliation
brought against Herzog, Burks, Duckett and the Board of Trustees in their individual
capacities. These claims are brought under Ohio law. While “an individual cannot be
held personally liable for violations of Title VII,” Griffin v. Finkbeiner, 689 F.3d 584, 600
(6th Cir. 2012), a defendant need not be an “employer” in order to be subject to liability
for discriminatory retaliation under Chapter 4112. Parker v. Strawser Constr., Inc., 307

F. Supp. 3d 744, 753 (S.D. Ohio 2018); see also Glass v. Tradesmen Int'l, LLC, 505 F.
Supp. 3d 747, 762 (N.D. Ohio 2020) (“O.R.C. § 4112.02(J) does provide for employees
... to be held liable for aiding and abetting its employer's discriminatory or retaliatory
practices.”) (quoting Siwik v. Cleveland Clinic Foundation, No: 1:17-cv-1063, 2019 WL
1040861, at *27 (N.D. Ohio Mar. 5, 2019) (emphasis added in Glass)). To be held liable
for aiding and abetting under Ohio Revised Code § 4112.02(J), the employee must be
“involved in or actually [have] made the decision to [discriminate or] retaliate against [the
employee].” Oster v. Huntington Bancshares Inc., Case No. 2:15-CV-2746, 2017 WL
2215462, at *22 (S.D. Ohio May 19, 2017) (quoting Cummings v. Greater Cleveland Reg'l
Transit Auth., 88 F. Supp. 3d 812, 820 (N.D. Ohio 2015)).
Herzog and Burks maintain that these retaliation claims against them should be
dismissed because they are entitled to statutory immunity under Ohio Revised Code §

2744. This provision of Ohio law provides absolute immunity to employees of political
subdivisions against civil liability, with some exceptions. Myers v. City of Centerville,
Ohio, 41 F.4th 746, 766 (6th Cir. 2022) (citing Ohio Rev. Code § 2744.03(A)(6)).2
Plaintiffs argue that one of the exceptions applies here. Plaintiffs explain that Herzog and
Burks acted “with malicious purpose, in bad faith, or in a wanton or reckless manner,” and
therefore they are not entitled to immunity under Ohio Revised Code § 2744.03(A)(6)(b).
(Doc. 35, PAGEID 272). In support, Plaintiffs point to the allegation in the Amended
Complaint that “Defendants acted with malice, recklessness, and a conscious disregard
for Plaintiffs’ rights.” (See Doc. 21, PAGEID 142).

2The statute provides that an employee of a political subdivision is immune from liability
unless one of the following applies:

(a) The employee's acts or omissions were manifestly outside the scope of the
employee's employment or official responsibilities;

(b) The employee's acts or omissions were with malicious purpose, in bad faith, or
in a wanton or reckless manner;

(c) Civil liability is expressly imposed upon the employee by a section of the
Revised Code. Civil liability shall not be construed to exist under another section
of the Revised Code merely because that section imposes a responsibility or
mandatory duty upon an employee, because that section provides for a criminal
penalty, because of a general authorization in that section that an employee may
sue and be sued, or because the section uses the term “shall” in a provision
pertaining to an employee.

Ohio Rev. Code § 2744.03.
The Court acknowledges that “a plaintiff cannot overcome a Rule 12(b)(6) motion
to dismiss simply by referring to conclusory allegations in the complaint that the defendant
violated the law.” 16630 Southfield Ltd. P'ship v. Flagstar Bank, F.S.B., 727 F.3d 502,
504 (6th Cir. 2013). However, at the same time, in this context, a plaintiff need not

“‘affirmatively demonstrate an exception to immunity . . . in his complaint’ to succeed.”
Myers v. City of Centerville, Ohio, 41 F.4th 746, 766 (6th Cir. 2022) (quoting Meyers v.
Cincinnati Bd. of Educ., 983 F.3d 873, 880 (6th Cir. 2020)). Instead, in order to reject the
argument that the immunity exception applies, the Court must find that the complaint is
“‘devoid of [allegations] tending to show that the [defendants] acted’” in at least bad faith.”
Id. (quoting Novak v. City of Parma, 932 F.3d 421, 437 (6th Cir. 2019)) (quoting Irving v.
Austin, 138 Ohio App.3d 552, 741 N.E.2d 931, 934 (Ohio Ct. App. 2000)).
Here, the Amended Complaint is not devoid of such allegations. Plaintiffs have
alleged that when Plaintiffs complained about Herzog’s administrative assistant’s
inappropriate dress and behaviors, “Herzog started a paper trail targeting Captain

Gutman with a memorandum that grossly misstated the content, tone and nature of the
Captains’ concerns, drastically downplayed Ms. Freeman’s behavior, and intentionally
omitted important, corroborating details.” (Doc. 21, PAGEID 123). Plaintiffs claim that
after Herzog completed the informal handling of the complaint about the administrative
assistant, he retaliated against Plaintiffs by taking away responsibilities and informed
Human Resources this was because Plaintiffs had “attacked” and “betrayed” him. (Doc.
21, PAGEID 124). Plaintiffs allege that after they met with Herzog and asked him to stop
his sexist or racist jokes or remarks in the workplace, Herzog required them to tell his
administrative assistant whenever they left the building. (Doc. 21, PAGEID 126).
According to Plaintiffs, Herzog gave them lower performance evaluations because they
were not “friendly enough” his administrative assistant. (Doc. 21, PAGEID 126). Plaintiffs
also allege that Herzog placed Hensley on a performance improvement plan in January
of 2020 based on “not meeting expectations” since April of 2019, but Hensley had never

been informed that he was not meeting performance standards. (Doc. 21, PAGEID 127).
Based on these allegations, the Court finds that Plaintiffs have adequately alleged that
Herzog acted in “at least bad faith.” See Myers, 41 F.4th 746 at 766. Therefore, to the
extent that it seeks to dismiss Plaintiffs’ claims of retaliation and aiding and abetting
retaliation under Ohio law, Herzog’s Motion to Dismiss is DENIED.
With regard to Burks, Plaintiffs explain that the exception to immunity under Ohio
Rev. Code § 2744.03(A)(6) rests on their allegations that Burks abrogated his
responsibility to prevent a racist and sexist work environment, and participated in nearly
every materially adverse action against Plaintiffs, thereby enabling and directing Herzog’s
retaliation. (Doc. 37, PAGEID 317). The Court notes that there are factual allegations in

the Amended Complaint to support this argument. Plaintiffs allege that after they met
with Burks to complain about Herzog’s behavior and retaliation, Burks did not take any
steps to investigate or remedy their concerns, and instead told Plaintiffs to “work it out”
with Herzog themselves. (Doc. 21, PAGEID 126). Plaintiffs allege that Burks authorized
Hensley’s performance improvement plan in January of 2020, even though Burks knew
Herzog was retaliating against Hensley. (Doc. 21, PAGEID 128). Plaintiffs also allege
that Burks permitted Herzog to conduct the internal affairs investigation of Hensley in
February of 2020 even though Burks knew the investigation was retaliatory. (Doc. 21,
PAGEID 129). Finally, Plaintiffs allege that Burks conspired with Duckett to ensure that
his investigation could be used to justify further retaliation instead of investigating
Plaintiffs’ concerns. (Doc. 21, PAGEID 132, 133). Based on these allegations, the Court
finds that Plaintiffs have adequately alleged that Burks acted in “at least bad faith.” See
Myers, 41 F.4th 746 at 766. Therefore, to the extent that it seeks to dismiss Plaintiffs’

claims of retaliation and aiding and abetting retaliation under Ohio law, Burks’ Motion to
Dismiss is DENIED.
As to the claims against Duckett for aiding and abetting discrimination and
retaliation, Duckett initially argued that Plaintiffs failed to exhaust their administrative
remedies against Duckett. However, subsequent to the briefing of Duckett’s Motion to
Dismiss, Plaintiffs filed a notice that they had received the Letters of Determination from
the Ohio Civil Rights Commission (“OCRC”). (Doc. 46). In the Letters of Determination,
the OCRC states that it does not have jurisdiction over Plaintiffs’ charges because there
is “no employee/employer relationship.” (Doc. 46-1, Doc. 46-2).
The Court notes that under the circumstances, Plaintiffs’ failure to file a charge

with the OCRC before filing their complaint in this Court is understandable. Chapter 4112
was amended by the passage of the Employment Law Uniformity Act, Ohio House Bill
352 after the discriminatory acts in this case took place, but before Plaintiffs filed their
original complaint on June 3, 2021. (Doc. 1). Before these amendments to Chapter 4112
took effect on April 15, 2021, plaintiffs were not required to exhaust their administrative
remedies under Ohio law. Lott v. Kmart, No. 2:13-CV-990, 2013 WL 6670381, at *5 (S.D.
Ohio Dec. 18, 2013), adopted, No. 2014 WL 234665 (S.D. Ohio Jan. 22, 2014) (“Although
discrimination claims brought under Ohio Revised Code Section 4112.02 are analyzed
under the same framework as Title VII claims, exhaustion of administrative remedies is
not required in actions under Section 4112.”) (citing Elek v. Huntington Nat'l Bank, 60
Ohio St.3d 135, 137, 573 N.E.2d 1056 (Ohio 1991); see also Franko v. City of Cleveland,
654 F. Supp. 2d 711, 715 (N.D. Ohio 2009) (citing cases and explaining that
discrimination claims brought under Ohio Revised Code § 4112.02 are analyzed under

the same evidentiary framework as Title VII claims, yet do not require exhaustion of
administrative remedies.). Under the new amendments, a plaintiff alleging a violation of
section 4112.02 must now first file a charge with the OCRC. See Ohio Rev. Code §
4112.052(a). However, the Court finds that the amendments to Chapter 4112 do not bar
Plaintiffs’ claims in this instance. This Court has already observed that “the new law
makes no mention of retroactivity,” and therefore does not apply to claims arising before
the effective date. See Erwin v. Honda N. Am., Inc., No. 2:20-CV-4350, 2022 WL
3716561, at *10, n.7 (S.D. Ohio Aug. 29, 2022) (citing Bielat v. Bielat, 721 N.E.2d 28, 32–
33 (Ohio 2000) (discussing constitutional and statutory presumptions against retroactive
legislation in Ohio)). Therefore, Plaintiffs’ failure to obtain a Letter of Determination before

filing suit is not a bar to their claims against Duckett for retaliation and aiding and abetting
retaliation under Chapter 4112.
To the extent that Duckett argues that Plaintiffs’ claims for aiding and abetting
discrimination and retaliation are barred by an absolute litigation privilege under Ohio law,
the Court notes that this litigation privilege only extends to statements made during
judicial proceedings or quasi-judicial proceedings, such as an investigation of a complaint
by an OCRC. Accord Newman v. Univ. of Dayton, 172 N.E.3d 1122, 1135-36 (Ohio Ct.
App. 2021). Based on the allegations in the Amended Complaint, this type of privilege
would be inapplicable to Plaintiffs’ claims. Therefore, to the extent that it seeks to dismiss
Plaintiffs’ claims of retaliation and aiding and abetting under Ohio law, Duckett’s Motion
to Dismiss is DENIED.
Finally, as to the claims against the Board of Trustees in their individual capacities,
the Board of Trustees argue that Plaintiffs have failed to state a claim for retaliation

against them because they have not alleged a causal connection between the protected
activity and any employee discipline imposed by an individual Trustee. Plaintiffs respond
that they have alleged adequate facts to demonstrate that the Board of Trustees aided,
abetted, incited, compelled, or coerced acts prohibited by Chapter 4112.
As explained above, a causal connection can be shown two ways, either “(1)
through direct evidence or (2) through ‘knowledge coupled with a closeness in time that
creates an inference of causation.’” Sizemore v. Edgewood Bd. of Educ., No. 1:19-CV-
555, 2020 WL 1904726, at *8 (S.D. Ohio Apr. 17, 2020) (quoting Nguyen v. City of
Cleveland, 229 F.3d 559, 566 (6th Cir. 2000)). While there no single factor which is
dispositive in establishing a causal connection, “evidence that the defendant treated the

plaintiff differently from similarly situated employees or that the adverse action was taken
shortly after the plaintiff's exercise of protected rights is relevant to causation.” Id.
Plaintiffs allege that the Trustees “were fully apprized of all Plaintiffs relayed to
Defendant Duckett during the investigation, as well as Defendant Herzog admitting to
racist and sexist behavior, and all of the details regarding their complaints in 2018, 2019,
and 2020. Knowing these things, they directed Defendant Duckett to prepare a report
and recommendations for public consumption that they knew contained false accusations
about Plaintiff, warped the investigative evidence to justify additional retaliation, and
would ultimately result in Plaintiffs’ termination or resignation.” (Doc. 21, PAGEID 137).
The Court finds that these factual allegations are enough to raise a right to relief above
the speculative level so that Plaintiffs’ claim against the Trustees is plausible on its face.
Therefore, to the extent that they seek to dismiss Plaintiffs’ claims of retaliation and aiding
and abetting retaliation under Ohio law, the Motion to Dismiss filed by the West Chester

Board of Trustees in their individual capacities is DENIED.
D. Defamation (Count Three)
Plaintiffs bring their claims for defamation against Defendants Herzog, Burks,
Duckett and the Board of Trustees in their individual capacities. Plaintiffs’ claims are
brought pursuant to Ohio law.
In Ohio, the tort of defamation has four elements: “a false and defamatory
statement concerning another; unprivileged publication to a third party; fault amounting
to at least negligence by the publisher; actionability of the statement irrespective of a
special harm or the existence of a special harm.” Akron-Canton Waste Oil, Inc. v. Safety-
Kleen Oil Serv., Inc., 81 Ohio App.3d 591, 601, 611 N.E.2d 955, 962 (1992) (quoting 3

Restatement of the Law 2d Torts § 558, pg. 155 (1977)). If the party defamed is either a
public official or public figure, the plaintiff must also prove actual malice to recover on a
defamation claim. Gilbert v. WNIR 100 FM, 142 Ohio App. 3d 725, 735–36, 756 N.E.2d
1263, 1270 (Ohio Ct. App. 2001) (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 334–
336, 94 S.Ct. 2997, 3004–3005, 41 L.Ed.2d 789, 802–803 (1974). Ohio courts have held
that police officers are public officials. Williams v. Gannett Satellite Info. Network, Inc.,
162 Ohio App. 3d 596, 600, 834 N.E.2d 397, 401 (Ohio Ct. App. 2005). Therefore, as
public officials, Plaintiffs “must show by clear and convincing evidence that the statements
were made with actual malice, that is, with knowledge that the statements were false or
with reckless disregard of whether they were false or not.” Daubenmire v. Sommers, 156
Ohio App.3d 322, 343, 805 N.E.2d 571, 587 (Ohio Ct. App. 2004) (citing New York Times
Co. v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)).
While this Court must apply Ohio's substantive law to this diversity action, the

pleading requirements remain governed by federal law. Green v. Mason, 504 F. Supp.
3d 813, 831 (S.D. Ohio 2020). “Under federal pleading requirements, a complaint
asserting a defamation claim as to which the actual malice standard applies must ‘set
forth facts establishing [that the] statements [were] made with malice’ to avoid dismissal.
Id. (quoting Carovac v. Lake Cnty. Bd. of Dev.'l Disabilities/Deepwood, No. 1:19-cv-2344,
2020 WL 5423966, *5 (N.D. Ohio Sept. 9, 2020)).
1. Herzog
Herzog maintains the defamation claim against him should be dismissed because
Plaintiffs have failed to allege the factual detail necessary to state a claim. The
defamation claim against Herzog is based on Herzog accusing Hensley of lying to him

about the Facebook post made by Hensley’s wife and Hensley lying about whether he
had deleted the recording of the January 2020 meeting from his phone. (Doc. 21, PAGEID
136). Plaintiffs also allege that Herzog made a false statement to “community leaders”
that Gutman had called his doctor a terrorist. (Doc. 21, PAGEID 139). Plaintiffs allege
that Herzog “made and published the false statements knowing or with constructive
knowledge that the statements were false or with negligence as to falsity.” (Doc. 21,
PAGEID 143). Based on the allegations in the Amended Complaint, Herzog knew that
the statements about the Facebook post and the recording of the meeting were false
because he knew Hensley was not actually lying, and instead used the statements to
initiate a retaliatory internal affairs investigation. (Doc. 21, PAGEID 129). The Court finds
these allegations are sufficient to establish that the statements were made with malice in
order to avoid dismissal.
Herzog maintains he is entitled to a qualified privilege for statements made related

to Plaintiffs’ employment. As this Court has explained:
A qualified privilege based on a “common interest” often arises in the
context of an employment setting. Ohio law holds, for example, that
“[g]enerally, a communication made in good faith on a matter of common
interest between an employer and an employee, or between two employees
concerning a third employee, is protected by qualified privilege.” Sygula v.
Regency Hosp. of Cleveland E., 64 N.E.3d 458, 467 (Ohio Ct. App. 2016)
(quoting Kanjuka v. MetroHealth Med. Ctr., 151 Ohio App.3d 183, 783
N.E.2d 920, 931 (2002)).

Green v. Mason, 504 F. Supp. 3d 813, 830 (S.D. Ohio 2020). The “elements necessary
to establish the privilege are good faith, an interest to be upheld, a statement limited in its
scope to this purpose, a proper occasion, and publication in a proper manner and to
proper parties only.” Id. (quoting Kanjuka, 783 N.E.2d at 931 (internal quotations
omitted)). Once a defendant demonstrates the existence of qualified privilege, the plaintiff
can only prevail upon a showing of actual malice. Knox v. Neaton Auto Prod. Mfg., Inc.,
375 F.3d 451, 460 (6th Cir. 2004) (citing Evely v. Carlon Co., Div. of Indian Head, Inc., 4
Ohio St.3d 163, 165, 166, 447 N.E.2d 1290, 1293 (Ohio 1983)).
The two statements which form the basis of the defamation claim against Herzog—
Herzog accusing Hensley of lying to him about the Facebook post and Herzog accusing
Hensley of lying about the recording of the January 2020 meeting—were contained in
Duckett’s report. (Doc. 21, PAGEID 135). Therefore, the privilege ostensibly applies, but
Plaintiffs allege that the statements were not made by Herzog in good faith and were
instead used to initiate a retaliatory internal affairs investigation. (Doc. 21, PAGEID 129).
Moreover, “[i]n a qualified privilege case, “actual malice” is defined as acting with
knowledge that the statements are false or acting with reckless disregard as to their truth
or falsity.” Jacobs v. Frank, 60 Ohio St. 3d 111, 116, 573 N.E.2d 609, 614 (Ohio 1991).
The Court has already found that Plaintiffs have adequately alleged facts to support a

finding that Herzog made these statements with actual malice. In addition, the Court
notes that Plaintiffs allege that Herzog knew his false statements would appear in
Duckett’s report and that the report would be published to the press. (Doc. 21, PAGEID
137). Therefore, Herzog is not entitled to a qualified privilege at this stage of the
proceedings.
Herzog also argues he is entitled to statutory immunity under Ohio Revised Code
§ 2744 for the claims brought against him in his official capacity. As explained above, a
plaintiff is “not required to anticipate a not-yet-raised affirmative defense of political
subdivision immunity, much less plead facts to establish an exception to immunity, in
order for her claims to survive a Civ.R. 12(B)(6) challenge.” Fisher v. Ahmed, 153 N.E.3d

612, 622 (Ohio Ct. App. 2020). Instead, as explained above, all that is required are
allegations which would support a finding of bad faith. See Myers, 41 F.4th 746 at 766.
The Court finds that the allegations meet that standard, and therefore, statutory immunity
does not apply at this stage of the proceedings.
Therefore, to the extent that it seeks to dismiss Plaintiffs’ claims of defamation
under Ohio law, Herzog’s Motion to Dismiss is DENIED.
2. Burks
In his Motion to Dismiss, Burks argues that the Amended Complaint fails to allege
that he made any specific statement which defames Plaintiffs. Burks also argues that he
is entitled to statutory immunity under Ohio Revised Code § 2744.03(A)(6), because
Plaintiffs have not alleged that he acted “with malicious purpose, in bad faith, or in a
wanton and reckless manner.”
In their Amended Complaint, Plaintiffs claim Burks hired Duckett—a biased

investigator—to “allow Defendant Herzog’s discriminatory and retaliatory conduct to go
unchecked and shield themselves against Plaintiffs’ claims of their unlawful conduct.”
(Doc. 21, PAGEID 131). Plaintiffs allege Burks conspired with Duckett “in bad faith” to
write a report which would be made public and be used to justify “further retaliatory
discharge, discipline, and reputational damage.” (Doc. 21, PAGEID 132). Plaintiffs claim
that Burks directed Duckett to distort the facts uncovered in his investigation directed “to
prepare a report and recommendations for public consumption that they knew contained
false accusations about Plaintiffs, warped the investigative evidence to justify additional
retaliation, and would ultimately result in Plaintiffs’ termination or resignation.” (Doc. 21,
PAGEID 137). Plaintiffs claim that Burks repeated and published Duckett’s report in the

press “knowing it contained multiple falsehoods about Plaintiffs and released it while other
members of the department were still coming forward to corroborate Plaintiffs’ allegations.
Plaintiffs claim that Defendants intentionally did not investigate those additional
complaints until after they released the incomplete and defamatory report to the press to
make sure they could act against Plaintiffs before more information surfaced or was
published that would corroborate Plaintiffs’ versions of events and call the report into
question. (Doc. 21, PAGEID 137).
The Court finds that at the motion to dismiss stage of the proceedings, these
allegations set forth sufficient facts to establish that Burks made the false statements
about Plaintiffs with malice. Under Ohio law: “As a general rule, all persons who cause
or participate in the publication of libelous or slanderous matter are responsible for such
publication * * *. Hence, one who requests, procures, or aids or abets, another to publish
defamatory matter is liable as well as the publisher.” Gibson Bros. v. Oberlin Coll., 187

N.E.3d 629, 645 (Ohio Ct. App. 2022) (quoting Cooke v. United Dairy Farmers, Inc., 2003
WL 21389646) (Ohio Ct. App. June 17, 2003) (emphasis in original). In addition, the
Court finds that Plaintiffs have included allegations in the Amended Complaint tending to
show that Burks acted “in at least bad faith.” See Myers, 41 F.4th 746 at 766. As such,
statutory immunity under Ohio Revised Code § 2744.03(A)(6) does not apply at this stage
of the proceedings.
Therefore, to the extent that it seeks to dismiss Plaintiffs’ claims of defamation
under Ohio law, Burks’ Motion to Dismiss is DENIED.
3. Duckett
In his Motion to Dismiss, Duckett maintains that Plaintiffs have failed to state a

claim against him for defamation because under Ohio law, investigative reports provided
by an attorney to a client are not considered “published.” While that may be the case,
Plaintiffs have alleged that Duckett was not serving in the capacity as counsel to West
Chester Township. (Doc. 21, PAGEID 131). Plaintiffs claim that Duckett was instead
hired as a third-party human resources investigator; and Duckett knew that any written
report he prepared would be deemed a public record. (Doc. 21, PAGEID 131-32).
Viewing these allegations in a light most favorable to Plaintiffs, the Court concludes that
Duckett was not serving in the traditional role of an attorney and therefore cannot claim
that the report was not “published.”
Duckett argues that even if the report is considered “published,” he is entitled to
an absolute privilege when disclosing the results of his investigation to West Chester
Township.
Under Ohio law, “[s]tatements made ‘in a written pleading or brief, or in an oral

statement to a judge or jury in open court, is absolutely privileged if it has some
reasonable relation to the judicial proceeding in which it appears.’” Morrison v. Gugle,
142 Ohio App. 3d 244, 260, 755 N.E.2d 404, 416 (Ohio Ct. App. 2001) (quoting Michaels
v. Berliner, 119 Ohio App.3d 82, 87 (Ohio Ct. App. 1997). However, “[i]n order for an
extrajudicial communication to come within the cloak of absolute privilege it must be (1)
made in the regular course of preparing for and conducting a proceeding that is
contemplated in good faith and under serious consideration, (2) pertinent to the relief
sought, and (3) published only to those directly interested in the proceeding.” Id. (citing
Theiss v. Scherer, 396 F.2d 646, 649 (6th Cir. 1968)). Based on the allegations in the
Amended Complaint, this absolute privilege does not apply. While Hensley had informed

Human Resources that he planned to meet with an attorney, there was no “proceeding”
which was “contemplated in good faith and under serious consideration.” See Morrison
v. Gugle, 142 Ohio App. 3d 244, 260, 755 N.E.2d 404, 416 (Ohio Ct. App. 2001) (privilege
does not extend to letter containing vague threat of some future litigation if the matter was
not resolved).
Finally, Duckett argues that he is entitled to a qualified privilege for the statements
because they were made as part of an investigation of an employee. As explained above,
the “elements necessary to establish the privilege are good faith, an interest to be upheld,
a statement limited in its scope to this purpose, a proper occasion, and publication in a
proper manner and to proper parties only.” Green v. Mason, 504 F. Supp. 3d 813, 830
(S.D. Ohio 2020). Once a defendant demonstrates the existence of qualified privilege,
the plaintiff can only prevail upon a showing of actual malice. Knox v. Neaton Auto Prod.
Mfg., Inc., 375 F.3d 451, 460 (6th Cir. 2004) (citing Evely v. Carlon Co., Div. of Indian

Head, Inc., 4 Ohio St.3d 163, 165, 166, 447 N.E.2d 1290, 1293 (Ohio 1983)); see also
Bartlett v. Daniel Drake Mem. Hosp., 75 Ohio App. 3d 334, 340, 599 N.E.2d 403, 407
(Ohio 1991) (“In order to successfully assert a defamation claim against one whose
statements are entitled to a qualified privilege, a plaintiff must show that in making the
statements the ‘defendant was moved by actual malice, such as ill will, spite, grudge or
some ulterior motive.’”) (quoting Hahn v. Kotten, 43 Ohio St.2d 237, 248, 331 N.E.2d 713,
721 (Ohio 1975). Here, Plaintiffs allege “Duckett, Burks, and Trustees in bad faith
conspired to ensure the investigation would be turned to focus on the Plaintiffs, with the
intent of justifying further retaliatory discharge, discipline, and reputational damage.”
(Doc. 21, PAGEID 132). The Court finds that these allegations are sufficient to avoid

dismissal that this stage of the litigation.
Therefore, to the extent that it seeks to dismiss Plaintiffs’ claims of defamation
under Ohio law, Duckett’s Motion to Dismiss is DENIED.
4. Board of Trustees
In their Motion to Dismiss, the Board of Trustees argue that even though Plaintiffs
are suing each Trustee in his or her individual capacity for defamation, they do not allege
separate factual support for each Trustee.
With regards to the pleading standards in federal court:
Federal procedural law is clear that “Rule 9(b) does not apply to defamation
claims; those claims need only be stated in accordance with Rule 8 of the
Federal Rules of Civil Procedure.” Conocophillips Co. v. Shaffer, No. 3:05
CV 7131, 2005 WL 2280393, at *1 (N.D. Ohio Sept. 19, 2005); see also
Wright v. Sodexho Marriott Servs., 30 F. App'x 566, 567 (6th Cir. 2002)
(holding that defamation claim is subject to Fed. R. Civ. P. 8(a)(2)). . . . in
addition to requiring notice to the defendant, Rule 8 also contains a
plausibility requirement under Twombly and Iqbal. So, the plaintiff must
plead sufficient facts to plausibly establish that each element of a
defamation claim is present.

Mitchell v. Fujitec Am., Inc., 518 F. Supp. 3d 1073, 1092 (S.D. Ohio 2021). As such, in
terms of specificity, “[a] defamation complaint must allege the substance of the allegedly
defamatory statements,” but “need not ... set [them] out verbatim.” Id. at 1093 (quoting
Doe v. Univ. of Dayton, No. 3:17-cv-134, 2018 WL 1393894, at *5 (S.D. Ohio Mar. 20,
2018)).
With regards to the Board of Trustees, Plaintiffs have alleged:
Defendants Trustees and Burks repeated and published Defendant
Duckett’s report in the press knowing it contained multiple falsehoods about
Plaintiffs and released it while other members of the department were still
coming forward to corroborate Plaintiffs’ allegations. Defendants
intentionally did not investigate those additional complaints until after they
released the incomplete and defamatory report to the press to make sure
they could act against Plaintiffs before more information surfaced or was
published that would corroborate Plaintiffs’ versions of events and call the
report into question.

The Trustees adopted Defendant Duckett’s report and implemented his
recommendations in full with knowledge or reckless disregard of the report’s
false and damaging statements of fact about Plaintiffs. The Trustees
repeated several, such as both Plaintiffs being sexist, and Captain Hensley
lying in office, in a public statement read to the press by Defendant Becker
at a Trustee meeting and then distributed in writing to the media.

(Doc. 21, PAGEID 137-38). The Court finds that even though Plaintiffs have not identified
the specific Board of Trustees which made the defamatory statements, these allegations
are sufficient at this stage of the litigation to state a claim for defamation against the Board
of Trustees.
The Board of Trustees argue that even if Plaintiffs have plausibly alleged a claim
for defamation, they are entitled to statutory immunity. However, the Court finds that
Plaintiffs have included allegations in the Amended Complaint tending to show that the
Board of Trustees acted “in at least bad faith.” See Myers, 41 F.4th 746 at 766. As

explained above, Plaintiffs allege that the Board of Trustees, along with Burks, “directed
Defendant Duckett to prepare a report and recommendations for public consumption that
they knew contained false accusations about Plaintiff, warped the investigative evidence
to justify additional retaliation, and would ultimately result in Plaintiffs’ termination or
resignation.” (Doc. 21, PAGEID 137). As such, statutory immunity under Ohio Revised
Code § 2744.03(A)(6) does not apply at this stage of the proceedings.
Therefore, to the extent that it seeks to dismiss Plaintiffs’ claims of defamation
under Ohio law, the Board of Trustees’ Motion to Dismiss is DENIED.
E. First Amendment retaliation (Count Four and Five)
Plaintiffs bring their claims of First Amendment retaliation under 42 U.S.C. § 1983

against Herzog, Burks, the Board of Trustees in their individual capacities and West
Chester Township.3
Section 1983 creates no substantive rights, but merely provides remedies for
deprivations of rights established elsewhere. Tuttle v. Oklahoma City, 471 U.S. 808
(1985). Section 1983 has two basic requirements: (1) state action that (2) deprived an
individual of federal statutory or constitutional rights. Flint v. Kentucky Dept. of
Corrections, 270 F.3d 340, 351 (6th Cir. 2001) (citing Bloch v. Ribar, 156 F.3d 673, 677

3Plaintiffs also brought these claims against the West Chester Police department and the
individually named Board of Trustees in their official capacity, but as discussed above, these
parties are dismissed.
(6th Cir. 1998) and United of Omaha Life Ins. Co. v. Solomon, 960 F.2d 31, 33 (6th Cir.
1992)).
Defendants have not raised a challenge to the first requirement, so the Court will
move to the second requirement. Plaintiffs allege a First Amendment violation. The First

Amendment prohibits the government from “abridging the freedom of speech.” U.S.
Const. Amend. I. To prove retaliation under the First Amendment, a plaintiff must
establish: (1) he or she engaged in activity the First Amendment protects; (2) he or she
suffered an “adverse action,” one that would dissuade “individuals of ordinary firmness”
from doing “what they were doing;” and (3) that a causal link connects the First
Amendment activity and the administrators’ adverse actions. Cunningham v. Blackwell,
41 F.4th 530, 541 (6th Cir. 2022) (citations omitted).
In the Amended Complaint, Plaintiffs claim that Defendants retaliated against them
in violation of the First Amendment based on social media posts made by Hensley’s wife,
and the reports of alleged discrimination by Herzog made by Plaintiffs. (Doc. 21, PAGEID

143, 145). Defendants argue that Plaintiffs’ concerns were entirely about issues in the
workplace, and therefore not protected by the First Amendment.
“[A]n individual's First Amendment rights as a public employee are narrower than
those of the citizenry at large.” Haddad v. Gregg, 910 F.3d 237, 244 (6th Cir. 2018) (citing
Mayhew v. Town of Smyrna, Tenn., 856 F.3d 456, 462 (6th Cir. 2017). A public employee
alleging First Amendment retaliation must satisfy three requirements to show
constitutionally protected activity:
First, the employee must speak on “matters of public concern.” Evans-
Marshall v. Bd. of Educ., 624 F.3d 332, 337 (6th Cir. 2010) (citing Connick,
461 U.S. at 143 [103 S.Ct. 1684] [ ] ). Second, the employee must speak
as a private citizen and not as an employee pursuant to his official duties.
Id. at 338 (citing Garcetti, 547 U.S. at 421 [126 S.Ct. 1951] [ ] ). Third, the
employee must show that his speech interest outweighs “the interest of the
State, as an employer, in promoting the efficiency of the public services it
performs through its employees.” Id. (quoting Pickering, 391 U.S. at 568 [88
S.Ct. 1731] [ ] ).

Id. (quoting Mayhew, 856 F.3d at 462). “The question whether a public employee's
speech is protected is a question of law for the court to decide.” Id.
The Court concludes that Plaintiffs’ reports of discrimination which form the basis
of Plaintiffs’ First Amendment retaliation claim in Count Five are “matters of public
concern.” As the United States Supreme Court has explained, “racial discrimination is
inherently a matter of public concern.” Perry v. McGinnis, 209 F.3d 597, 608 (6th Cir.
2000) (citing Connick, 461 U.S. at 148 n.8, 103 S.Ct. 1684); see also Boulton v. Swanson,
795 F.3d 526, 532 (6th Cir. 2015) (speech addresses a matter of public concern when it
alleges discrimination of some form) (citing Hughes v. Region VII Area Agency on Aging,
542 F.3d 169, 181-82 (6th Cir. 2008)).
Hensley’s claim in Court Four is that he was retaliated against as a result of his
exercise of his First Amendment right of intimate association with his wife. The Sixth
Circuit has explained the genesis of this right:
In Roberts v. United States Jaycees, 468 U.S. 609, 617–18, 104 S.Ct. 3244,
82 L.Ed.2d 462 (1984), the Supreme Court stated that one type of
constitutionally protected freedom of association is the right “to enter into
and maintain certain intimate human relationships [which] must be secured
against undue intrusion by the State because of the role of such
relationships in safeguarding the individual freedom that is central to our
constitutional scheme.” The Supreme Court reasoned that the formation
and preservation of certain types of “highly personal relationships” is
necessary to secure individual liberty and suggested that marriage is such
a relationship that must be protected from unwarranted state interference.
See id. at 618–19, 104 S.Ct. 3244. Although the Supreme Court did not
explain whether this right stems from the freedom of association under the
First Amendment or the fundamental right to marry under the Due Process
Clause of the Fourteenth Amendment, we have analyzed the right of
intimate association under the First Amendment. See Adkins v. Board of
Educ., 982 F.2d 952, 955–56 (6th Cir.1993).

Sowards v. Loudon Cnty., Tenn., 203 F.3d 426, 432 (6th Cir. 2000). Hensley alleges that
his right to associate intimately with his wife was violated when Hensley was retaliated
against based on social media posts made by Hensley’s wife. This allegation supports a
First Amendment claim of retaliation. Accord Adkins v. Bd. of Educ., 982 F.2d 952, 955
(6th Cir. 1993) (superintendent's failure to extend Adkins's contract because of her
marriage to the high-school principal supported her claim that her constitutional rights
were violated).
Defendants question whether Plaintiffs have alleged that they suffered an adverse
action or a causal connection. “The term ‘adverse action’ has traditionally referred to
actions such as discharge, demotions, refusal to [h]ire, nonrenewal of contracts, and
failure to promote.” Dye v. Off. of the Racing Comm'n, 702 F.3d 286, 303 (6th Cir. 2012)
(quoting Handy–Clay v. City of Memphis, 695 F.3d 531, 545 (6th Cir. 2012) (internal
quotation marks omitted) (alteration in original). However, the Sixth Circuit has
recognized that “we are required to tailor[ ] our analysis under the adverse action prong
to the circumstances of this specific retaliation claim.” Id. (citing Mezibov v. Allen, 411
F.3d 712, 721 (6th Cir. 2005)). In this vein, the Sixth Circuit has explained: “‘[S]ince there
is no justification for harassing people for exercising their constitutional rights, [the effect

on freedom of speech] need not be great in order to be actionable.’” Thaddeus–X v.
Blatter, 175 F.3d 378, 397 (6th Cir.1999) (quoting Bart v. Telford, 677 F.2d 622, 625 (7th
Cir.1982)). In addition, Plaintiffs allege they were subject to constructive discharge in
retaliation for exercising their constitutional rights. “To demonstrate constructive
discharge, a plaintiff must adduce evidence to show that (1) ‘the employer ... deliberately
create[d] intolerable working conditions, as perceived by a reasonable person,’ (2) the
employer did so ‘with the intention of forcing the employee to quit’ and (3) ‘the employee
... actually quit.’” Savage v. Gee, 665 F.3d 732, 739 (6th Cir. 2012) (quoting Moore v.
KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1080 (6th Cir. 1999)).

The Court finds that Plaintiffs have adequately plead both an adverse action and
a causal connection. Plaintiffs allege Herzog placed Hensley on a performance
improvement plan and asked him to agree to be demoted, in part, due to the Facebook
post made by his wife. (Doc. 21, PAGEID 128). Plaintiffs allege that during Duckett’s
investigation, Herzog falsely accused Hensley of lying about his wife’s Facebook post
and the recording of the meeting where Herzog and Hensley discussed the post. (Doc.
21, PAGEDID 136). Plaintiffs also allege that Herzog falsely accused Gutman of racial
discrimination. (Doc. 21, PAGEID 139). Plaintiffs allege that Defendants threatened
Hensley that if he did not resign, he would be terminated for dishonesty on the basis of
the investigation report. (Doc. 21, PAGEID 138). The Court finds that these actions

would discourage a person of ordinary firmness from exercising their First Amendment
rights. Accord Larry v. Powerski, 148 F. Supp. 3d 584, 600-601 (E.D. Mich. 2015) (finding
defendant's allegedly retaliatory campaign of relentless scrutiny following the plaintiff's
complaints of racial discrimination were sufficient to discourage a person of ordinary
firmness from exercising her rights under the First Amendment).
Herzog, Burks and the Board of Trustees argue that even if Hensley has stated a
claim for First Amendment retaliation, they are entitled to qualified immunity. However,
as the Sixth Circuit has explained:
Although a defendant's “entitlement to qualified immunity is a threshold
question to be resolved at the earliest possible point, that point is usually
summary judgment and not dismissal under Rule 12.” Wesley v. Campbell,
779 F.3d 421, 433–34 (6th Cir. 2015) (cleaned up). “The reasoning for our
general preference is straightforward: ‘Absent any factual development
beyond the allegations in a complaint, a court cannot fairly tell whether a
case is “obvious” or “squarely governed” by precedent, which prevents us
from determining whether the facts of this case parallel a prior decision or
not’ for purposes of determining whether a right is clearly established.”
Guertin v. State, 912 F.3d 907, 917 (6th Cir. 2019) (quoting Evans-Marshall
v. Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist., 428 F.3d 223, 235
(6th Cir. 2005) (Sutton, J., concurring)).

Moderwell v. Cuyahoga Cnty., Ohio, No. 20-3879, 2021 WL 1897949 (6th Cir. May 12,
2021). Accordingly, the Court declines to decide the issue of qualified immunity at this
stage of the litigation.
West Chester Township argues that it has no liability because Hensley has failed
to allege that it had a policy or practice which led to the deprivation of a constitutionally
protected right.
Under Monell v. Department of Social Services, “a local government may not be
sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is
when execution of a government's policy or custom ... inflicts the injury that the
government as an entity is responsible under § 1983.” 436 U.S. 658, 98 S.Ct. 2018, 56
L.Ed.2d 611 (1978); see also City of Canton, Ohio v. Harris, 489 U.S. 378, 385, 109 S.Ct.
1197, 103 L.Ed.2d 412 (1989) (“Respondent superior or vicarious liability will not attach
under § 1983.”). However, Monell liability may attach arising from a single action taken
by a final policymaker. Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986); Board
of County Com'rs. of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 404-405 (1997).
This involves a showing of an illegal policy or custom by demonstrating that an official
with final decision-making authority ratified illegal actions. Alsaada v. City of Columbus,
536 F. Supp. 3d 216, 270 (S.D. Ohio 2021) (citing Lipman v. Budish, 974 F.3d 726, 747
(6th Cir. 2020)). As this Court has explained,
An official acting with the final decision-making authority may ratify the
unconstitutional acts of its employees in two ways. The first is through
“affirmative approval of a particular decision made by a subordinate.”
Feliciano v. City of Cleveland, 988 F.2d 649, 650 (6th Cir. 1993). The
second is by “failing to meaningfully investigate and punish allegations of
unconstitutional conduct.” Wright v. City of Euclid, 962 F.3d 852, 882 (6th
Cir. 2020); see also Wilson, 2020 WL 981717, at *2 (“[T]he Sixth Circuit has
held that municipal liability may attach when an official with final decision-
making authority and a duty to know and act upon unconstitutional conduct
fails to investigate or correct the unconstitutional conduct.”).

Id. at 270–71.
Here, Plaintiffs allege that “[t]he commissioners are a duly-constituted body,
legislative in nature, that have the final authority to set policy of the township.” (Doc. 21,
PAGEID 144). Plaintiffs further allege that “the commissioners authorized Defendant
Burks, as the township administrator, and Defendant Herzog, as police chief, to establish
government policy and to take acts and deliver edicts that represent official policy of the
township.” (Doc. 21, PAGEID 144). Plaintiffs explain that the Trustees, the township
administrator, and Herzog were all individuals with final authority, and they intentionally
forced Plaintiffs to resign. (Doc. 21, PAGEID 138, 140).
The Court concludes that based on the foregoing, Plaintiffs have stated a plausible
First Amendment retaliation claim against Herzog, Burks, the Board of Trustees in their
individual capacities and West Chester Township. Therefore, to the extent that they seek
to dismiss Plaintiffs’ Section 1983 claims, the Motions to Dismiss filed by Herzog, Burks,
the Board of Trustees’ and West Chester Township is DENIED.
F. Ohio Revised Code § 2307.60 (Count Six)
Plaintiffs bring this claim against Defendants Herzog, Burks and Duckett. Ohio
Revised Code § 2307.60 provides a mechanism for civil recovery for “[a]nyone injured in
person or property by a criminal act.” Proof of an underlying criminal conviction is not
required by the statute. Buddenberg v. Weisdac, 161 Ohio St.3d 160, 162, 161 N.E.3d
603, 606 (Ohio 2020).

Plaintiffs claim that Herzog, Burks and Duckett violated the following underlying
criminal statutes: (1) Ohio Revised Code § 2921.05, which prohibits any person from,
purposely and by threat of harm, retaliating against a public servant for discharging his or
her duties; and (2) Ohio Revised Code § 2921.03, which prohibits any person from,
knowingly and by threat of harm, using a materially false writing for a malicious purpose
or in bad faith to influence, intimidate or hinder a public servant. Plaintiffs also claim that
Herzog violated Ohio Revised Code § 2921.45, which prohibits any public servant from
using his or her office to deprive any person of a constitutional right.
The Court finds that Plaintiffs have failed to state a claim based on a violation of
Ohio Revised Code § 2921.05, which provides: “No person, purposely and by force or

by unlawful threat of harm to any person or property, shall retaliate against a public
servant, a party official, or an attorney or witness who was involved in a civil or criminal
action or proceeding because the public servant, party official, attorney, or witness
discharged the duties of the public servant, party official, attorney, or witness.” Ohio Rev.
Code § 2921.05 (A) (emphasis added). There are no allegations in the Amended
Complaint that Plaintiffs were involved in a civil or criminal action or proceeding.
Similarly, the Court finds that Plaintiffs have failed to state a claim based on a
violation of Ohio Revised Code § 2921.03, which provides: “No person, knowingly and by
force, by unlawful threat of harm to any person or property, or by filing, recording, or
otherwise using a materially false or fraudulent writing with malicious purpose, in bad
faith, or in a wanton or reckless manner, shall attempt to influence, intimidate, or hinder
a public servant, a party official, or an attorney or witness involved in a civil action or
proceeding in the discharge of the person’s the duties of the public servant, party official,

attorney, or witness.” Ohio Rev. Code § 2921.03 (A) (footnote omitted) (emphasis
added). Again, there are no allegations in the Amended Complaint that Plaintiffs were
involved in a civil or criminal action or proceeding.
With regards to Ohio Revised Code § 2921.45, this statute provides:
(A) No public servant, under color of the public servant's office, employment,
or authority, shall knowingly deprive, or conspire or attempt to deprive any
person of a constitutional or statutory right.

(B) Whoever violates this section is guilty of interfering with civil rights, a
misdemeanor of the first degree.

Ohio Rev. Code § 2921.45. The Court concludes that at this stage of the proceedings,
the allegations in Plaintiffs’ Amended Complaint support a claim that Herzog knowingly
deprived Plaintiffs of their civil rights. Accord Seymour v. Miller, No. 2:21-CV-313, 2022
WL 93327, at *9 (S.D. Ohio Jan. 10, 2022).
Therefore, to the extent that they seek to dismiss Plaintiffs’ claims under Ohio
Revised Code § 2307.60, the Motions to Dismiss filed by Herzog, Burks and Duckett are
GRANTED as to the claims based on Ohio Revised Code § 2921.05 (retaliation) and Ohio
Revised Code § 2921.03 (intimidation); but DENIED as to the claims Herzog based on
Ohio Revised Code § 2921.45 (interfering with civil rights).
G. Retaliation in violation of public policy (Count Seven)
Plaintiffs bring their claim for a violation of public policy against West Chester
Township only. Plaintiffs claim that “there are clear public policies expressed in O.R.C
§149.011, §149.43(B), §149.43(C), and §149.351 which prohibit employers from
retaliating against an employee for making a reasonable complaint of violations of records
laws and for seeking legal counsel.” (Doc. 21, PAGEID 146).
To begin, the Court notes that “[m]any courts, both state and federal, ‘have

recognized that the statutory remedies provided by Revised Code Chapter 4112
adequately protect society's interests and adequately compensate an aggrieved
employee for a violation of Ohio's discrimination laws.’” Jones v. Nat. Essentials, 187
N.E.3d 594, 605 (Ohio Ct. App. 2022) (collecting cases). Plaintiffs have not explained
how the statutory remedies for their claims for retaliation under Ohio Revised Code §
4112 are inadequate.
Moreover, Plaintiffs have not established the “clarity element” of their public policy
claim.4 Plaintiffs must identify some source of “clear public policy” to support their claim.
Romero v. City of Middletown, 479 F.Supp.3d 660, 671 (S.D. Ohio 2020). This requires
Plaintiffs to meet two requirements: (1) “specifically identify the sources, and also identify

4As this Court has explained:

Making a claim for wrongful discharge in violation of public policy—a Greeley
claim—requires that a plaintiff establish each of four elements: (1) that a clear
public policy existed and was manifested either in a state or federal constitution,
statute, or administrative regulation, or in the common law (the “clarity element”);
(2) that dismissing employees under circumstances like those involved in the
plaintiff's dismissal would jeopardize that public policy (the “jeopardy element”); (3)
that the plaintiff's dismissal was motivated by conduct related to the public policy
(the “causation element”); and (4) that the employer lacked an overriding legitimate
business justification for the dismissal (the “overriding-justification element”).
Miracle, 137 N.E.3d at 1113 (citing Collins v. Rizkana, 73 Ohio St.3d 65, 652
N.E.2d 653, 657–58 (1995)). The first two elements—clarity and jeopardy—are
questions of law for a court to decide. Collins, 652 N.E.2d at 658. Whereas, as a
general matter, the last two elements—causation and overriding-justification—
involve factual issues for a factfinder to decide. Id.

Romero v. City of Middletown, 479 F.Supp.3d 660, 670-71 (S.D. Ohio 2020).
specific policies located within those specific sources, rather than make general
assertions to broad policies” (“the specificity requirement”); and (2) “the sources of the
public policies must parallel Ohio's whistleblower statute (i.e., a parallelism requirement).”
Id. (citing Hale v. Mercy Health Partners, 20 F. Supp. 3d 620, 639 (S.D. Ohio 2014); and

Hale v. Mercy Health Partners, 617 F. App'x 395, 403 (6th Cir. 2015)). This parallelism
requirement means that the source for the public policy on which Plaintiffs rely must be
of a type that either “(1) imposes an affirmative duty on employees to report a violation,
(2) prohibits employers from retaliating against employees who file complaints on the
topic, or (3) is designed to protect the public's health and safety.” Id. at 672 (citing Hale,
617 F. App'x at 403). Under Ohio law, it is the plaintiff's burden to identify the public policy
and the sources for that policy. Id. at 674 (citing Dohme v. Eurand Am., Inc., 130 Ohio
St.3d 168, 956 N.E.2d 825, 831 (Ohio 2011)). A court may not do so sua sponte. Id.
Therefore, to the extent that it seeks to dismiss Plaintiffs’ claims for retaliation in
violation of public policy, the Motion to Dismiss filed by West Chester Township is

GRANTED.
III. CONCLUSION
Based on the foregoing, Defendants’ Motions to Dismiss (Docs. 25, 26, 28, 29, 32)
are DENIED in PART and GRANTED in PART. The Motions are GRANTED only to the
extent that Plaintiffs’ claims under Ohio Revised Code § 2307.60 (Count Six) based on
Ohio Revised Code §§ 2921.05 and 2921.03 are DISMISSED; Plaintiffs’ claims for
retaliation in violation of public policy (Count Seven) are DISMISSED; and to the extent
that the claims against the individually named Board of Trustees are brought against them
in their official capacity are DISMISSED. Defendants’ Motions to Dismiss are DENIED in
all other respects.
Defendant West Chester Township Police Motion to Dismiss (Doc. 27) is
GRANTED. Defendant West Chester Township Police is DISMISSED as a party to this

action.
IT IS SO ORDERED.

/s/ Michael R. Barrett
JUDGE MICHAEL R. BARRETT

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10381025. Public record. Not legal advice.