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Discovery holds up O’Fallon police officers’ lawsuit

St. Charles County courts building


In the ongoing legal battle between representatives of the city of O’Fallon and two of its active duty police officers, new motions have been filed.

Capt. Jeffrey Gray and Maj. Kyle Kelley filed a six-count employment discrimination lawsuit against the city of O’Fallon on Feb. 12, 2018, in St. Charles County Circuit Court, accusing the city of “unlawful employment practice [gender discrimination], unlawful discriminatory practice [retaliation], and unlawful discriminatory practice [hostile work environment]. On July 19, 2019, Mayor Bill Hennessy was added to the lawsuit with a seventh count of alleged defamation.

As of Sept. 9, 2019, having not yet received their requested discovery materials, the plaintiffs filed a motion to compel discovery or in the alternative request sanctions against the defendants. That followed the plaintiffs’ second request, on Aug. 26, for production of documents, and a plaintiffs’ motion on Sept. 4 for sanctions due to spoliation [destruction of requested discovery documents].

Circuit Judge Jon A. Cunningham currently has those most recent motions under advisement, as well as previously proposed and competing case management plans [timelines] filed by the defendants on July 31 and the plaintiffs on Aug. 6.

O’Fallon Communications Director Tom Drabelle noted, when asked for a comment on the case, that “as a matter of policy, the City of O’Fallon does not comment on legal proceedings.”

However, the plaintiffs’ attorney, John M. Lynch, said, “The motions speak for themselves in terms of what the plaintiffs are requesting from the defendants in this case. The plaintiffs expect the defendants to engage in the discovery process in a fair manner and will pursue judicial redress to ensure they are able to prosecute their case by having access to all relevant facts. The plaintiffs remain steadfast in their pursuit of an equitable resolution to this matter and look forward to a trial if that is what it takes.”

On Sept. 11, Lynch filed a motion with the court to request a hearing to address the issues. A hearing now is scheduled for 9 a.m. on Oct. 11.

In another development, former O’Fallon City Council member Jim Pepper, who served two three-year terms from April 2010 to April 2016, sent a letter about the lawsuit via email to all 10 current council members on Sept. 12, 2019.  Mid Rivers Newsmagazine also has obtained a copy of the email. Pepper’s cover note in the email said he was sending this material to the council members “Making sure this is not hidden from you.” He included as attachments copies of the plaintiffs’ “Motion for Sanctions – Spoilation” and the “Motion to Compel Discovery or in the Alternative Request for Sanctions.” He also included copies of correspondence exchanged between plaintiffs and defendants attorneys dating back to Feb. 15, 2019, where the discovery documents and depositions were requested, but had not yet been provided.

The plaintiffs’ motions include allegations that the city deliberately erased discovery-related electronic and cellphone records, and shredded paper documents.

In a phone interview on Sept. 12, Pepper explained that he believes there has been “outright lying and impeding the resolution of this case.”  He also said that certain members of the council have not been willing to use the powers of the city Charter’s Section 3.8 to internally investigate the allegations that include misleading or lying to the council, modifying certain original memos and other documents, and not following published city human resources policies.

Pepper closed his letter by stating: “From a layman’s point of view, nothing in the attached material is vague or unclear, or is outside the bounds of propriety of information retrieval. The state requires records retention from municipal entities, why are we not following them?  Hopefully, at least one of you will ask the right questions and not be satisfied until you get a legitimate answer.”

A story about the original Feb. 28, 2018 lawsuit and court activities through early 2019 was published in Mid Rivers Newsmagazine on April 28, 2019; update stories were published on July 3 and Aug. 23.

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