U.S. District Judge Willie Epps on Wednesday dismissed former Highway Patrol Sgt. Randy Henry’s 2016 discrimination lawsuit, that argued Henry was forced to resign in 2015 after he had been — as described in the court order — “subjected to retaliation and denied his civil rights for speaking out against the (patrol’s) handling of an incident wherein a man died while in MSHP custody.”
Mary Compton, Attorney General Josh Hawley’s spokeswoman, told the News Tribune:
“We are pleased with court’s ruling.”
And Capt. John Hotz, the Highway Patrol’s spokesman, said: “As the Highway Patrol has stated from the beginning, there was no basis to Mr. Henry’s claims.
“A federal judge agreed, and ruled Mr. Henry’s allegations are without merit.”
But J.C. Pleban, Henry’s attorney, told the News Tribune Thursday evening: “We are absolutely going to appeal.
“We respectfully disagree with the decision.”
Henry was a veteran Missouri Water Patrol officer when the Water Patrol was merged with the Highway Patrol in 2011.
After Brandon Ellingson, 19, of Clive, Iowa, drowned in the Lake of the Ozarks on May 31, 2014, Henry complained the merger had resulted in road troopers being poorly cross-trained to serve as water patrol officers.
Ellingson drowned while in the custody of one of those officers — veteran road trooper Anthony Piercy — who was cross-trained in 2013 for Water Patrol duties.
Piercy had detained Ellingson on suspicion of boating while intoxicated, but put the wrong life jacket on the college student while he was taking Ellingson to the zone office to complete the BWI testing.
Ellingson fell into the lake after Piercy’s boat hit a wake, and the life jacket came off.
Ellingson drowned despite Piercy’s attempt to save him.
Epps noted in October 2014, Henry “testified twice before a Missouri Legislature special committee,” speaking on “issues surrounding Mr. Ellingson’s drowning and the merger of the MWP and the MSHP,” and that he “also gave deposition testimony concerning the Ellingson matter in a lawsuit.”
(Ellingson’s family sued the state, the Highway Patrol and Piercy in federal court. Eventually, the state and patrol were dismissed from the case, leaving Piercy as the only defendant when the family reached a $9 million settlement.)
Epps ruled Henry’s testimony to lawmakers and in the deposition was speech protected by the U.S. Constitution’s First Amendment — but he didn’t have those same protections in the part of the case the Patrol’s disciplinary actions had targeted.
After Ellingson drowned, Osage County Prosecutor Amanda Grellner was named as a special prosecutor in the Morgan County investigation.
She presented evidence at a coroner’s inquest that determined the drowning was an accident, and no charges should be filed.
Epps wrote in his 19-page order: “Plaintiff (Henry) spoke to a member of the press and other individuals, including members of the Ellingson family, about a supposed cover-up of Mr. Ellingson’s drowning (and) further disseminated allegations of corruption in the Ellingson matter involving prosecutor Amanda Grellner and the MSHP.
“In one instance he used Facebook to post these allegations on a page dedicated to Mr. Ellingson.”
The cover-up, Henry had argued, involved the patrol’s investigation into allegations Grellner’s son had been involved in a 2012 crime at a party in Osage County — an investigation that, Assistant Attorney General Ben Cox said at an August 2015 hearing, found Grellner’s son to be “100 percent innocent” of any crime.
But, Judge Epps wrote, Henry implied, “because Ms. Grellner’s son was cleared of wrongdoing, she in turn would not implicate the MSHP in any wrongdoing regarding Mr. Ellingson’s death.”
When Grellner interviewed Henry about the Ellingson drowning, the judge said, Henry “admitted to spreading information about Ms. Grellner’s son,” but lied about how many people he’d talked to about his conspiracy theory.
Epps noted Henry also “pressured another individual to lie to Ms. Grellner” about Henry’s comments.
Grellner removed herself from the Morgan County case, and another special prosecutor eventually filed manslaughter charges against Piercy — a charge that was reduced last year to negligent operation of a vessel, and Piercy pleaded guilty to that charge in June 2017.
The patrol ordered Henry to attend mandatory counseling evaluation through the Employee Assistance Program (EAP) in February 2015, and Henry alleged in his lawsuit that was part of the patrol’s retaliation.
After Grellner filed a complaint with the patrol in March 2015, an internal investigation found Henry had violated three of the agency’s General Orders.
Then-Superintendent Bret Johnson ordered formal charges against Henry, with an offer of discipline that included a reduction in rank and a transfer to another assignment location.
Ultimately, the hearing on those charges was canceled when Henry retired in December 2015 then later filed the federal lawsuit.
He argued he was a whistleblower who was being punished.
But, Epps ruled, Henry “did not act as a whistleblower. Even viewing the summary judgment record in the light most favorable to Plaintiff, his allegations were largely unsupported by facts, and exposed no government corruption.
“Plaintiff’s implication that the prosecutor in the Ellingson matter was corrupt appears to have come primarily from one brief, uncorroborated conversation with a fellow officer.
“(His) claims of a cover-up similarly fall flat, as they lack supporting evidence in the record.”
Hotz noted in the patrol’s statement about the ruling: “Henry’s response to the tragic death of Brandon Ellingson included what the judge termed ‘spreading unverified conspiracy theories, being untruthful about it, and pressuring another individual to lie about it.’”
Grellner declined to comment on the Henry ruling.