Federal lawsuit by 2 former West Chester police captains comes more than a year after internal investigation

Two former police captains seek jury trial.

The two former West Chester Twp. police captains who lodged complaints against Police Chief Joel Herzog last year have filed a discrimination lawsuit in federal court against the chief, trustees and township.

Former captains Joe Gutman and Jamie Hensley filed suit Thursday seeking an undisclosed amount of money including lost pay and benefits and compensatory and punitive damages, among other requests. They claim Herzog engaged in a pattern of sexual and racial discrimination against department staff and retaliated against them when they complained about it.

They claimed Herzog made sexist comments about female employees and their appearance; referred to two officers as “White Mike” and “Brown Mike,” “mocked” Trustee Lee Wong’s accent and referred to Indian residents as “dots” and his allergist, the husband of a mosque leader, as a “terrorist.”

After the captains began complaining, they say Herzog began freezing them out of command staff decisions, undermining their authority and giving them less than stellar performance reviews, which impacted their pay, among other things.

Hensley quit the department last year, and Gutman left in January after what the suit describes as “intolerable” work conditions.

“The continuing hostility from Defendant Herzog, his allies, and the township caused Captain Gutman’s working conditions to be so intolerable that no reasonable person would endure them. The ongoing retaliation and hostility began impacting Captain Gutman’s health,” the suit reads.

“More significantly, Captain Gutman feared for his safety were he to encounter a life-threatening situation in the line of duty due to the extreme hostility directed at him in the department. As a result, he was forced to resign from WCPD on January 16, 2021 after over 24 years of service to West Chester Township.”

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Township spokeswoman Barb Wilson said the township cannot comment on pending litigation. The Journal-News interviewed Herzog recently about conditions at the department nearly a year after the investigation.

“We were working very diligently to make it a comfortable, safe workplace for everyone,” Herzog said about Gutman’s resignation. “We had a process in place to continually improve and if he felt different that’s something you’d have to ask him.”

The three trustees, Township Administrator Larry Burks and attorney Douglas Duckett, who was hired by the township to investigate the allegations, are also named in the suit.

“In collusion with the trustees, Defendant Burks, and Defendant Herzog, Defendant Duckett intentionally distorted and mischaracterized interview statements, failed to interview corroborating witnesses, and selectively ignored most of what Plaintiffs told him so he could offer the report Defendants wanted: one that excused Defendant Herzog’s unlawful behavior and set the stage to terminate Plaintiffs under false pretenses,” the lawsuit reads. “Defendants did this to punish Plaintiffs for their protected activity and speech.”

Duckett concluded Herzog did not deserve disciplinary action but needed to make some improvements. Improvement plans were drafted for both Herzog and Gutman.

The complaint notes that Duckett’s report was released while complaints were still coming about Herzog. They have accused the trustees, Burks and Duckett of defamation, apparently referring to a lengthy statement Trustee Ann Becker read when they declared the matter to be over last July.

The statement said Herzog had been “raked over the coals and publicly shamed” for inappropriate statements. It admonished the captains for their treatment of Herzog’s administrative assistant, the issue that started two years of problems. They complained about her inappropriate attire at work, her winking, offering to bring back lunch and other infractions. The trustees noted if she were a man, these issues would not have arisen.

“There has also not been much acknowledgement in the media of the captains’ sexist view of women in the workplace and unfair treatment of a female employee. Neither former Captain Hensley nor Captain Gutman have acknowledged error in their treatment of this employee or taken responsibility for the role they played in the command staff dysfunction,” the statement by all three trustees said.

The lawsuit asks for a jury trial and a declaration that the defendants’ retaliation violated the captains’ constitutional rights. In addition to the other monetary damages, they are seeking compensation for the “adverse tax consequences of receiving a lump sum award rather than their compensation and benefits over several, separate tax year.”

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