The pair 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, 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.
The motion to dismiss says the retaliation claim must be dismissed because the defendants are entitled to statutory immunity. It also says there is no proof of retaliation.
“Plaintiffs reference harassment, undeserved discipline, and forced resignation (which are assumed to be true merely for purposes of this motion), but do not state which of the eight named defendants conducted those acts,” the motion reads.
The suit also takes the township to task for publicly releasing the 54-page investigation report by consultant Douglas Duckett and making statements supporting the chief. The captains are accusing the trustees and others of defamation.
“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 improvement.
The motions to dismiss say the township officials have statutory immunity because they were acting in their official capacity by keeping the public informed about the issue. Plus they did not act with “malice, in bad faith, wantonly or recklessly.”
“The Trustees were acting in reasonable reliance upon the professional judgment of an experienced independent investigator” the motion reads. “They were literally just providing the public the information that an independent third-party found, and the law does not require them to conduct a second (or third, or fourth) investigation to confirm the first investigator’s findings before the report is issued or provided to the press.”
Duckett told the court drawing him into this matter would be dangerous.
“Plaintiffs’ complaint against Douglas Duckett seeks to set a dangerous precedent — that third party employees can sue an attorney performing an investigation for the employer simply because they do not like the attorney’s methods and his ultimate conclusions,” the motion reads.
The attorney for Gutman and Hensley could not be reached for comment.