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Judge Crowder hears arguments on motion to dismiss security guard’s retaliatory discharge suit

By Heather Isringhausen Gvillo | Nov 8, 2016

Madison County Circuit Judge Barbara Crowder heard arguments on Shop ‘N Save’s motion to dismiss a former security guard’s lawsuit alleging he was terminated for disclosing information regarding an assault and for using a laptop to monitor the riots in Ferguson, Mo.

Christopher Rhodes filed the lawsuit on July 5 against Shop-N-Save Warehouse Foods and James Ishum, alleging violation of the Whistleblower Act.

According to the complaint, Rhodes claims he was employed as a security guard at Shop-N-Save, where he was supervised by Ishum. He alleges he was terminated from his position in late August 2014 after he reported information regarding two occasions on which he was allegedly assaulted by unknown, third-party criminals while working at the Belleville location and the Ferguson, Mo., location.

He further alleges he was terminated for using his laptop while on shift. However, he argues that he was “’protecting life and property, in furtherance of the public policy of Missouri’ by using his laptop while on shift at the Ferguson Shop-N-Save during the aftermath of the Michael Brown shooting.”

Rhodes claims he was using his laptop with permission from his supervisors to monitor the “dangerous” situation in Ferguson.

Rhodes filed a motion for leave to amend his complaint on Oct. 20 through attorney Erin Phillips of St. Louis. He seeks to correct typographical errors in his amended complaint.

Crowder granted his motion for leave to file a first amended complaint on Oct. 27. She also heard arguments on Shop-N-Save’s motion to dismiss and Rhodes’ opposition. She applied it to the amended complaint, but a decision hasn’t been entered.

Shop-N-Save answered the complaint on Sept. 28 through Martin and Lester, denying the allegations against it.

In its affirmative defenses, Shop-N-Save argues that the plaintiff did not engage in any protected activity and any alleged damages were the result of Rhodes’ failure to mitigate those damages.

The defendant also argues that any actions taken with respect to Rhodes “have been done with business justification and because of business necessity.”

“For further answer and affirmative defense, Shop-N-Save states that it would have taken the same actions regarding Plaintiff’s alleged employment even absent any alleged retaliatory motive,” the answer states.

Rhodes filed a reply to Shop-N-Save’s affirmative defenses on Oct. 6 and demanded a Bill of Particulars as to some of the defendant’s defenses. He denied the remaining defenses.

Rhodes argues that the defendant failed to identify the actions, “business justification,” and “business necessity” to which it refers in its affirmative defenses.

He also alleges the defendant failed to “explain the meaning of its apparent dispute that plaintiff was an employee, when it refers to plaintiff’s ‘alleged employment’ as part of its defense.”

Shop-N-Save also filed a motion to dismiss counts I, III and IV on Sept. 28.

Count I alleges violation of the Whistleblower Act against Shop-N-Save, count III alleges retaliatory discharge against Shop-N-Save and Count IV alleges public policy discharge against Shop-N-Save.

The defendant argues that count I fails to state a cause of action under the Whistleblower Act “because Plaintiff simply did not engage in any ‘whistleblowing.’”

Similarly, the defendant argues that counts III and IV fail to allege a whistleblowing act.

Ishum filed a motion to dismiss count II of the complaint on Sept. 8 through attorneys Patricia Martin and Jeffrey Lester of Littler Mendelson PC in St. Louis.

The defendant argues that count II fails to state a cause of action under the Whistleblower Act and the plaintiff failed to engage in any whistleblowing.

“Here, Plaintiff plainly did not report any wrongdoing on the part of Shop-N-Save, Mr. Ishum, or any of his other coworkers. Instead, he merely cooperated with police as a victim after he was assaulted by a third party. This is not the kind of activity protected by the Whistleblower Act,” the motion states.

Rhodes filed a memorandum in opposition to the Ishum’s motion to dismiss count II on Sept. 22.He argues that Ishum’s interpretation of the Whistleblower Act “requires the court to read into the law words the legislature did not write.”

He says the Act forbids retaliation when an employee discloses information to law enforcement, “with no requirement that the employee’s disclosure be about only certain people’s conduct.”

Rhodes also argues that Ishum’s claims that he failed to sufficiently allege retaliatory acts is insufficient. The plaintiff claims he was suspended and discharged as a result of his actions.

Crowder granted Ishum’s motion to dismiss on Sept. 29, dismissing count II with prejudice.

Madison County Circuit Court case number 16-L-941

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