Bryant v. Village of Bald Head Island, North Carolina et al
Filing
67
Order - Plaintiff's Motion for Extension of Time to Complete Discovery, 37 is GRANTED. Plaintiff's Motion for Oral Argument in Opposition, 48 , and plaintiff's Motion for Extension of Time to Respond and Length of Response, 62 , ar e DENIED. Defendant Village's Motion for Summary Judgment 41 is GRANTED in part and DENIED in part. Defendants Peck and Mitchell's Motion forSummary Judgment, 42 , is GRANTED in part and DENIED in part.. Remaining before the court are the following claims: One and Three, Two, Four, and Seven. . Signed by Senior Judge Malcolm J. Howard on 3/30/2017. (Foell, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT.OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:14-CV-223-H
HERBERT BRYANT,
Plaintiff,
v.
VILLAGE OF BALD HEAD ISLAND,
NORTH CAROLINA, CALVIN R.
PECK, JR., in his individual
capacity, and CAROLINE
MITCHELL, in her individual
capacity,
Defendants.
This
Motion
matter
for
is
Summary
ORDER··
before
the
Judgment,
court
[D.E.
on
#41];
Mitchell's Motion for Summary Judgment,
Defendant
Defendants
[D. E.
#42];
Motion for Extension of Time to Complete Discovery,
Plaintiff's
D.E.
#41
Motion
and
#42,
for
Oral
[D.E.
Argument
#48];
and
in
Plaintiff's
Judgment,
response
has
responded
to
defendants'
Motions
Peck
and
Plaintiff's
[D. E.
Opposition
Extension of Time to Respond and Length of Response,
Plaintiff
Village's
#37];
regarding
Motion
for
[D.E. #62].
for
Summary
[D.E. #47], and defendants have replied to plaintiff's
[D.E. ·#50].
The time for further filing has expired.
This matter is ripe for adjudication.
PROCEDURAL HISTORY
Plaintiff filed
a
complaint
on October
7,
2014,
alleging
seven claims for relief arising from his termination as a police
officer employed by the Village of Bald Head Island ("Village")
The
court
dismissing
Amended
issued
an
order
plaintiff's
Complaint
on
August
claims
with
in
leave
of
12,
part. 1
court
2015,
[D.E.
Plaintiff
on
#18],
filed
November
18,
an
2015,
[D.E. #28], adding Calvin R. Peck, Jr., and Caroline Mitchell in
their individual capacities as parties to the action. Defendants
filed a Partial Motion to Dismiss and Motion for Judgment on.the
Pleadings on December 4,
2015,
[D.E.
order
on
2016,
[D.E.
Peck
and
September
14,
Mitchell's
Partial
Motion
#29]. The court entered an
#51],
to
granting
Dismiss
Defendants
and
partially
granting Village's Partial Motion for Judgment on the Pleadings. 2
Defendant Village . filed
June
filed
#42]
10,
2016,
a
Motion
[D.E.
for
#41],
Summary
a
Motion · for
and
Summary Judgment
Defendants
Judgment
on
Peck
June
10,
and
for Summary Judgment on July 8,
2016,
[D.E.
#47].
Mitchell
2016,
Plaintiff responded in opposition to defendants'
on
[D.E.
Motions
Defendants
The court notes claims against Defendant Peck in his official capacity were
dismissed in the court's discretion as duplicative because the Village is the
real party in interest.
2 The court dismissed the claim of wrongful discharge; the claim of 42 U.S;C.
§
1983 violation of the
right
to privacy under the
United States
Constitution; and all claims of violations of the North Carolina Constitution
against. Defendants Peck and Mitchell in their individual capacities · in its
order issued September 14, 2016,. [D. E. #51]. The court dismissed the claim of
a violation of the right to free speech under the North Carolina Constitution
against Defendant Village in its order. issued September 14, 2016, [D.E. #51].
1
2
Village,
Peck
response
on
court's
and
July
order,
Mitchell,
26,
2016,
[D. E.
jointly
[D.E.
2016,
[D.E.
to
After
#50].
plaintiff
#51 J '
response on October 4,
replied
filed
plai0tiff's
entry
a
adequate
filed
state
supplemental
remedies
to Defendants' Motions
#53],
briefings
on November
10,
plaintiff responded on November 29, 2016,
the
supplemental
for Summary Judgment. Pursuant to the court's order,
defendants
of
[D. E. #51],
regarding
available
[D.E.
2016,
and
#58],
[D.E. #59].
Plaintiff
filed a Notice of Subsequently Decided Controlling Authority on
February 22,
[D.E.
2017,
and an accompanying Motion
#61],
Extension of Time to Respond and Length of Response,
on March 3,
for
[D.E. #62],
Defendants filed two Notices of Subsequently
2017.
Decided Controlling Authority,
[D.E.
#64 and D.E.
on March
#65]
6, 2017, and March 12, 2017, respectively.
STATEMENT OF FACTS 3
Plaintiff was a public safety officer employed by Defendant
Village whose employment was terminated
is a
municipal~ ty
Defendant
resigned,
Peck
Aug~st
28,
located in Brunswick County,
was
the
Town
Manager,
2014. Village
North Carolina.
although
he
has
since
and Defendant Mitchell remains the Director of Public
Safety for Defendant Village at all relevant times.
On August
with Defendants
28,
2014,
plaintiff
Peck and Mitchell.
was
summoned to
At this meeting,
a
meeting
Defendants
The facts. are construed in the light most favorable to the plaintiff who is
the non-moving party to the instant Motions-for Summary Judgment.
3
3
Peck
and
Mitchell
termination
Defendant
from
employment
Village.
termination
was
as
by
a
·of
public
was
Plaintiff
signed
termination
plaintiff
notified
his
safety
provided
Defendant
Peck
immediate
officer
letter
a
at
of
informing
him
his
Defendant
Village
policies "related to harassment and sexual harassment,
(Article
V:
Conditions
treatment
of
based
of
on
violations
Employment
employees,
other
and
(Article
electronic communications
of
Article
(Article IX) . "
IX),
discourteous
and
inappropriate
IX),
Plaintiff was told his
termination was a )'final decision" and was further informed the
factual basis for these alleged policy violations was developed
from a
series of text messages exchanged between him and other
public safety officers employed by Defendant Village during the
period_ from July 25,
message
exchange
2014 to August ,15,
involving
plaintiff
2014.
occurred
The relevant text
on
two
days
as
follows:
Wednesday, August 6, 2014 4
Plaintiff:
You got to read the state
port pilot piece on dps.
Jeff Sypole:
Where do I find it?
The court has carefully reviewed the entirety of the 'text message thread,
[D.E. #47-12 at pp 1-26], and included in this order _only the portions of the
message thread in which plaintiff is involved.
4
4
Plaintiff:
All
over
southport.
can't read it online if
arent. [sic] subscriber.
Jeff Sypole:
I was trying to look online.
12526227939:
What is DPS?
Plaintiff:
Department of public safety
Plaintiff:
Us dimwit
Dj Koons:
What does its day [sic]
DJ Koons:
Sau [sic]
12526227939:
I'm new, I'm new
Plaintiff:
can't
get
online.
You
it
Unless you are a member.
13309903780:
Hey. If everyone but two
all 4 certs then why are
a
hand full
[sic]
of
staff
doing
ems
fire
water rescue?
13309903780:
I like how were [sic] worried
about
sending
people
to
county check points but not
worried that people who claim
to be ems can't take a blood
pressure.
Or not
worried
about doing first in engine
drills or even sending guys
who
have
no
real
fire
experience
at
least
to
a
controlled training burn.
5
You
you
are
only
the
and
Ni<;::k Terrell:
I was just thinking that the
other day, he only se.nds out
he's
the
training,
LEO
it needs to be
training guy
all 3 equally.
Nick Terrell:
[Expletive]
rich burns
Jeff Sypole:
[Expletive] it I quit.
Pl.aintiff:
[Expletive]. I'm getting good
at this twittering
Jeff Sypole:
Take pictures
them
Plaintiff:
Caroline
says all but
two
staff are · certified in fire
law SMS [sic] and water
Plaintiff:
SMS=SMS
Nick Terrell:
Send the link
Plaintiff:
[Expletive].
Plaintiff:
Ems
Nick Terrell:
Technologically retarded
Jeff.Sypole:
I can think of at least 4
people not being all 3, her
being one, a captain is one,
and 2 staff members.
And if
you count seasonal that makes
it
I
will
call
of it and send
8.
Plus add in the fact that
they are short at least 2
officers.
As Herbie said,
fear and lies
Jeff Sypole:
Actually
more...
Mo,
Sam,
Courtney,
James
hunter,
Caroline, Paul and OJ are all
short at least 1 of the 3
12526227939:
Maybe she just can't count
Plaintiff:
What
makes
the
statement
truly awesome is that [sic] in [sic] the picture they use
for
the
article.
In
the
picture: Sam, Courtney, Paul,
James, Scott, and Matt
Jeff Sypole:
Maybe
she
is
going
to
Colorado for a math class, or
maybe they are just complete
liars
Jeff Sypole:
[Image
of
animal
following words] KNOCK
HERE COMES THE COCK
13309903780:
That looks like Dj [sic]
a five o clock shadow.
Dj Koons:
In Colorado u [sic] do not
need certs u [sic] do what
ever [sic] u [sic] want just
like bald head [sic]
Plaintiff:
I wish the water rescue class
I took was a certification
class someday I will have all
four certs
7
with
KNOCK
with
Ia~
Dj Koons:
Hey now
that lol
Nick Terrell:
New water rescue gear,
shown
but
there
will
cheetah print also!!!
Nick Terrell:
[image
swimwear]
Dj Koons:
[Expletive]
these
12526227939:
You guys can try mine on
you'll get the right size.
13309903780:
Sam has em [sic] to I saw
when he was changing into his
singlet
work
wrestling
to
out.
He has one of those
built in pumps in the crotch
region though like on dodge
ball.
Dj Koons:
Do u [sic] have extra small
12526227939:
It's short but at
skinny too
Jeff Sypole:
I don't think mo's will fit
well, too small in the front
and too big in the rear
Jef Sypole:
I'll
have
backwards
8
[sic]
taller than
not
be
·speedo-type
of
mo
to
already
has
so
least it's
wear
mo's
13309903780:
He
does
have
a
[expletive] though.
12526227939:
Hahaha
12526227939:
You [expletive]
12526227939:
You [expletive]
12526227939:
Hahaha
Plaintiff:
The room startin to spin real
fast cuz of the gayness
Jeff Sypole:
Then leave and it will stop
13309903780:
Ohhh burn.
gorgeous
Sunday, August 10, 2014
Jeff Sypole:
[image
of
an
officer
character
containing
the
following words] "ONLY TWO OF
OUR STAFF ARE NOT CERTIFIED
IN ALL AREAS" BUT THAT DOES
NOT INCLUDE ME, A CAPTAIN; A
CAPTAIN
[illegible]
#1
FOR·
DUTY, AND FOUR OTHER STAFF
MEMBERS BUT THAT IS OFF THE
RECORD.
Plaintiff:
Umm.
I don't
rescue
cert.
buddies!
Jeff Sypole:
Does anyone still have mat
[sic] cox on their Facebook.
9
have a water
count
me
in
[sic]
I
wanted to make
a
picture
of
something
he
posted...but he either deleted
me as a friend or deleted his
facebook. [sic]
Jeff Sypole:
Wow, tough crowd tonight
Nick Terrell:
I can't find it he must have
deleted it
13309903780:
I don't have em [sic] as a
face book [sic] friend. Sorry
buddy.
I'm gonna miss
you
tomorrow.
You were
a
good
kitchen
[expletive].
Gonna
have Dj [sic] bring me some
eggs
Jeff Sypole:
He posted bhi' s open officer
announcement like a boss
13309903780:
Lol. That's awesome
Plaintiff:
I. heard on yik yak [sic]
other
day
that
Matt
Nickyt were lovers
the
and
Jeff Sypole:
I heard matt
role model
his
13309903780:
Lol. They made a combination
Facebook page together. There
[sic] profile pic is them all
geared up kicking in the door
at the shoals club
Plaintiff:
[sic]
was
It's like in the movies.
. know
when
at
first
10
You
the
characters
hAte
[sic]
each
other but then they become
lovers.
That is how it is
with Matt and Nioky
Jeff Sypole:
[image
containing
exchange
from
social
media
platform
"Yik Yak"] Matt C is my hero
and the protector of us all.
Because that isn't illegal [.]
What is there to do downtown?
your [sic] · all [expletive] [.]
WAKE THE [expletive] UP [.] I.f
I
stay over and you don't
wanna
[expletive]
in
the
morning .... Not okay [.]
Glad I
live in Wilmington cuz you
people
slackin
on
here[.]
Hungover, si ttin at the hair
salon
munchin
[sic]
on
[illegible].
Plaintiff:
'
It's totally on now sissies
Plaintiff:
[image
of
EXTREME"]
Plaintiff:
Hahaha
Matt
superheroes
13309903780:
All you need is a shot of
Apple [sic] cider vinegar to
pump you up. None of that
[expletive].
Nick
You guys ~re all just jealous
because Matt is the best and
coolest
supervisor
on
BHI
[Bald Head
Island]
and he
chose me to be his BFF [Best
Friend Forever]
Terrell~
11
can
And
labeled
C4
Nicky
Nick Terrell:
C4 is the bomb
Nick Terrell:
How does apple cider vinegar
get you pumped up?
Plaintiff:
Apple cider
for meth.
13309903780:
It's . a vasodilator. And it's
filled with b vitamins and a
bunch
of
bad
[expletives].
Gatta [sic] drink the organic
kind with the mother. Pumps
you up baby.
Nick Terrell:
Oh ok code for
makes more sense
13309903780:
It's pretty tuff [sic] to do
a shot of it though.
It's
some strong stuff.
Jeff Sypole:
[image
of
an
officer
character
containing
the
following words]
WHO AM I?
I'M THE DUDE, PLAYING A DUDE,
DISGUISED AS ANOTHER DUDE.
13309903780:
I got some in my cupboard at
work. Give I [sic] a try.
Notwithstanding
termination meeting,
text
messages
upon
the
mention
of
plaintiff was
which
his
vinegar
the
not
is
meth,
text
code
that
messages
provided a
termination
was
at
this
copy of the
based.
Even
so,
plaintiff did not deny participation in text message exchanges
12
with other public safety officers but believed the relevant text
message exchange occurred while he was off-duty and through use
of his personal mobile phone.
In any event,
plaintiff denied he
violated Defendant Village policies as alleged.
Plaintiff
terminated
relevant
Conner,
was
by
text
not
the
Defendant
message
Village
exchange.
Donald Koons,
public
only
for
safety
official
participating
Officers
Thomas
in
Cannon,
the
Jesse
and Nick Terrell were also terminated due
to their participation in the relevant text message exchange. 5 At
least five other employees of Defendant Village participated in
the
relevant
text
message
neither
exchange,
of
whom
was
te'rminated while some were simply disciplined.
As
part
of
the
termination
completed a Form F-5B,
the
basis
for
process,
Defendant
Mitchell
known as a Report of Separation,
plaintiff's
termination.
On
this
form,
listing
bearing
Defendant Mitchell's signature and a notary signature, Defendant
Mitchell
for
provided a
plaintiff's
Village.
She
"complaint
regarding
termination
explained
was
filed
[plaintiff]
electronic
environment
different,
or
from
plaintiff
with
[the
at
least
additional,
employment
was
with
terminated
Public
Safety
reason
Defendant
because
a
Department]
and several others involving inappropriate
communications
that
created
in violation of Village policy."
a
hostile
This
work
form may be
s_ These officers are plaintiffs in a pending-_ related case befor_e _this_col!_rt,_
C~nnon v. Vill~ge of Bald Head Island, No. 7:15-CV-187~H (E.D.N.C.).
13
published
to
law
enforcement
agencies
for
consideration
in
connection with future employment requests made by plaintiff.
In
sought
the
days
redress
following
by
sending
requesting appeal
which
of the
plaintiff's
a
letter
to
termination,
Defendant
termination because
plaintiff
Village
grounds
"the
and
for
[plaintiff] was terminated were unfair and that
performance
and
personal
represented." In response,
employment was
conduct
were
[his]
job
accurately
not
Defendant Peck informed plaintiff his
"at-will and as
such
[could]
be terminated for
any reason or for no reason. There is no right to a grievance or
appeal process."
According to Defendant Mitchell, Officer Nick Hiatt was· the
complainant
identified
environment.
Defendant
message
exchange
by
as
reporting
Mitchell
apparent
learned
hostile
the
of
happenstance
work
the
relevant
text
when
meeting
with
Officer Hiatt _on an unrelated allegedly unprofessional employee
conduct matter involving Officer Hiatt.
Mitchell,
the
According to
Defendant
at this meeting Officer Hiatt threw his cell phone on
table
and
told
Defendant
Mitchell,
"You
unprofessional? I'll show you unprofessional."
want
[D. E.
to
see
#4 7-4 Dep.
Mitchell at 134]. Defendant Mitchell testified Officer Hiatt was
offended by the text message exchange and she believed another
officer,
therein.
Lieutenant Matthew Cox,
Defendant
Mitchell
was the subject of harassment
further
14
testified - bieutenant-
Cox
reported
he
was
"frustrated"
and
upset
with
the
text
message
exchange, believing he was the subject of unseemly jokes.
According to the sworn testimony of Officer Hiatt,
however,
many of Defendant Mitchell's statements are either not true or a
mischaracterization of his
testified
he
was
operating
within
not
a
comments.
offended,
For example,
haras~ed,
sexually
hos:tile . work
Officer Hiatt
environment.
upset,
Further,
or
Officer
Hiatt testified he made no complaint -alleging he was offended,
sexually
harassed,
environment.
alleging
More,
the
Lieutenant
upset,
was
testified
he
Mitchell
evidencing
Defendant
messages
harassed
published
Village's
communication,
operating
within
the
his
were
plaintiff's
Mitchell's
advised he
hostile
or
upset.
text
work
and
for
termination,
public
of
understanding
Hiatt
characterization of him as
should guard his
comments
that
Hiatt
exchange
because
Officer
or
Officer
Instead,
message
concern
jurisdiction
training,
unprofessional
the
in
to
Defendant
safety
poor
of
employees within the Public Safety Department.
of
a
Officer Hiatt testified he made no complaint
text
Cox
or
within
community,
duties
among
In the aftermath
rebuffed
Defendant
complainant when she
light
of
his
role
in
alerting her of facts used to support plaintiff's termination.
In
further
testimony,
apparent
contradiction
of
Defendant
Mitchell's
Lieutenant Cox denied ever reading_ the relevant text
message exchange, _much -less
making _anY' complaint
15
to __ Defendant=.
Mitchell he was upset or offended. In his deposition, Lieutenant
Cox denied being offended,
harassed,
sexually harassed,
upset,
or otherwise subject to a hostile work environment as a result
of
comments
officers.
the
or
actions
Questions of
origination
of
by
plaintiff
fact,
however,
Defendants'
ire
or
other
are not
against
terminated
limited to
plaintiff
just
and
his
participation in the relevant text message exchange.
According
to
Defendant
Mitchell,
she
recommended
termination of plaintiff and other officers with the unanimous
consent of her command staff. Captain Freeman, however, disputes
this
statement
recommended
in
the
his
affidavit
terminations
nor
testifying
observed
he
neither
violations
of
Defendant Village's policies. Captain Freeman even stated he was
present
at
terminations
a
meeting
of
plaintiff
with
Defendant
and
the
Mitchell
others
were
where
the
discussed,
and
when asked whether he supported the decision to terminate them
at that meeting he indicated he did not
support the decision.
No
meeting
notes
relevant
have
been
meetings
produced
Defendant
from _this
Mitchell
may
have
or
had
any
with
other
her
command staff, and it appears no notes were taken to aid in the
resolution of th±s factual question.
As part of the decision-making process,
Defendant Mitchell
admits she made no determination about whether the text messages
sent .by plaintiff _or the other terminated-- officers
16
..--:consti.tuted~-
harassment,
employees,
in
her
sexual
or
harassment,
inappropriate
deposition,
plaintiff's
discourteous
electronic
Defendant
termination
was
of
communications.
Mitchell
limited
treatment
stated
to
the
other
Instead,
question
whether
she
and
of
the
command staff wanted plaintiff and the other terminated officers ,
to be "part of
at 177,
the
293.)
relevant
[the]
team."
However,
text
(Mitchell Deposition,
[D.E.
#47-4],
when asked about her ·characterization of
message
exchange,
"It's a bunch of guys just talking
Defendant
Mitchell
[expletive],
said,
excuse the term,
but they're just talking [expletive]'." (Id. at 293.)
After
message
Defendant
exchange
Mitchell's
and
review
consultation
of
with
her
the· relevant
command
delivered her recommendations to Defendant Peck.
his
review,
Defendant
Defendant
Mitchell,
the
were
rest
Peck
stating
reached
in
his
terminated because
the
they were
she
As a result of
same
deposition
staff
text
conclusion
"Mr.
jerks.
Cannon
as
and
That· they
were disrespectful -- disrespectful of the chain of command,
and
once
the
I
determined
letter."
that,
I
(Peck Deposition,
turned
[D.E.
it
over
#47-3],
to
at 83)
HR
to
write
While as at-will
employees,. plaintiff and the other officers who were terminated
may
have
been
"disrespectful
"because
terminated
of
the
chain
of
they _ were
command [,]"
the
jerks"
or
scope
of
allegations contained in Plaintiff's termination letter and Form
broader
than
the
17
_reasons
:_relied~
-upon .. in ·-the:·'·
-·:::-.:::':"..::: ::-::::
decision-making
process
as
stated
by
Defendants
Mitchell
and
Peck in their depositions.
After providing plaintiff his termination-letter,
the Form
F-5B _completed by Defendant Mitchell was provided to the North.
Carolina
Criminal
Commission
agencies
where
for
Education .
Justice
it
was
made
consideration
in
Training
&
available
connection
to
law
Standards
enforcement
with. any
future
enforcement employment sought by plaintiff. On August 29,
the
day
after
plaintiff's
termination,
local
media
law
2014,
requested
copies of the termination letter. Believing the North Carolina's
Public Records Act required compliance with the media requests,
Defendant Village turned over copies of the termination letters
as requested.
Plaintiff filed suit on October 7, 2014.
COURT'S DISCUSSION
I.
Plaintiff's Motion for Extension of
Discovery [D.E. #37]
to Complete
T~e
For good cause having been shown upon the motion of plaintiff,
plaintiff's motion for extension of time to complete discovery,
[D.E. #37], is GRANTED.
II.
Plaintiff's Motion for Oral Argument in Opposition
regarding D.E. #41 and #42 [D.E. #48]
After
careful
review
and
consideration
of
the
motion
of
plaintiff and determination the briefs submitted to the court by
both
parties
are
sufficient,
~laintiff's
18
motion
for
oral
argument in opposition regarding D.E.
#41 and #42,
[D. E.
#48],
is DENIED.
III. Plaintiff's Motion for Extension of Time to Respond and
Length of Response [D.E. #62]
After
careful
review
and
consideration
of
the
motion
of
plaintiff arid determination the briefs submitted to the court by
both parties are sufficient, plaintiff's motion for extension of
time to respond and length of response,· [D.E. #62], is DENIED.
IV.
Standard of Review
Summary judgment is appropriate when,
record
taken . as
a
whole,
no
genuine
after reviewing the
issue
of
material
fact
exists and the moving party is entitled to judgment as a matter
of law.
Anderson v.
(1986).
The
burden
of
material
party
Liberty Lobby,
seeking
demonstrating
fact.
Celotex
summary
the
Corp.
Inc.,
judgment
absence
v.
477 U.S.
of
bears
a
Catrett,
242,
the
genuine
477
247-48
initial
issue
U.S.
317,
of
325
(1986). Once the moving party has met its burden, the non-moving
party
may
not
rest
on
the
allegations
pleading, Anderson, 477 U.S. at 248, but
'specific
trial.'"
Corp.,
facts
showing
Matsushita
475
U.S.
that
Elec.
574,
587
there
is
or
~must
a
Indus.
Co.,
Ltd.
(1986)
(quoting
denials
in
its
come forward with
genuine
v.
issue
for
Zenith
Radio
Fed.R.Civ.P.
56(e)
(emphasis in original) . A mere scintilla of evidence supporting
19
the
case is
not
enough.
Anderson,
U.S.
477
at
The court
252.
construes the evidence in the light most favorable to the nonmoving
party and
draws· all
reasonable
inferences
in
the
non-
movant's favor. Matsushita Elec. Indus. Co., 475 U.S. at 587-88.
V.
Analysis
Defendant
#41],
and
judgment,
Village's
Defendants
motion
Peck
for
and
summary
Mitchell's
judgment,
motion
for
[D. E.
summary
[D. E. #42], are before the court.
A. Municipal
Liability
of
Village
under
Monell
for
Plaintiff's Free Speech, Due P:t"ocess, Liberty Interest,
and Right to Privacy Claims under 42 U.S.C. § 1983
Defendant
Village
has
moved
plaintiff's claims under 42 U.S.C.
right . to
free
speech,
for
summary
judgment
on
§ 1983 for violation of his
violation of his procedural due process
rights by deprivation of his liberty interest,
~nd
~iolation
of
his right to privacy under the United States Constitution.
"[T]he touchstone of the§ 1983 action against a government
body is an allegation that official policy is responsible for a
deprivation of rights protected by the Constitution [or laws 6f
the United States]."
New York,
436
U.S.
Monell v.
658,
690
Dep't of Soc. Servs. of City of
(1978).
Absent
"official
policy of some nature," a local governmental body is simply not
liable ·under §
1983.
Id.
(noting that
-
include
governmental
custom) .
"official policy" may
--
When
a
plaintiff
protests
a
single employment decision involving no violation pursuant to a
20
municipal
without
policy
final
liable for
Ass'n,
and
the
policymaking
decision
authority,
1983 violations.
§
Local 3517 v.
was
made
the
by
an
official
municipality
is
not
Greensboro Prof' 1 Fire Fighters
City of Greensboro,
64 F.3d 962,
963,
966
Plaintiff argues, citing Pembaur v. City of Cincinnati,
475
(4th Cir. 1995).
U.S. 469, 481
e~en
(1986), a municipality is liable
for a single
decision when the decision is made by an official who has final
decision
respect
making
to
However,
(4th
the
authority
action
Crowley v.
Cir.
establish
ordered.
between
the
Cty,
Pembaur,
quotes
municipal
Pembaur,
Prince George's
1989)'
distinction
to
discretionary
and
475
890
policy
U.S.
F.2d
holds
authority
at
683,
481.
684-87
there
to
with
is
make
a
final
decisions on a particular matter and the authority to make final
policy on that matter.
Crowley, 890 F.2d at 686-87
(holding the
fact that a police chief had "final" discretion to hire and fire
employees of his police department did not establish that he was
a
"final
policymaker"
with
regard
to
municipal
employment
policy) ;
accord Greensboro Prof' 1 Fire Fighters Ass' n,
at
The
966.
final
Supreme Court
policymaking
has
authority
found
is
"whether
a_ question
64
F. 3d
an official
of
state
had
law."
Pembaur, 475 U.S. at 483.
North Carolina state law vests final policymaking authority
in -the
elected
city
council.
See-_ N.C.-G;_S.21
-§-
16-0A.=-_67
("the
government and general management of the city shall be vested in
the council.
11
As to personnel matters,
)
North Carolina law is
quite specific about the roles of the elected city council and
the
city
manager
manager
is
the
North
Carolina
municipality's
law
"chief
provides
while
administrator,
a
city
he
11
must·
comply with the general employment policies set by the council.
See N.C.G.S.
with
such
general
ordinances
who
made
manager
final
160A-148(1)
§
as
the
the
personnel
decision
the
policymaking
rules,
regulations,
council may adopt.
final
and not
(city manager must act "in accordance
to
Because
)
fire
city council,
authority,
11
and
Defendant
plaintiff
Defendant
thus
policies,
Peck,
the
city
Peck did not
have
there
was
was
or
no
official
policy or custom violation here.
Therefore,
on
plaintiff's
right
to
free
Defendant Village's motion for
42
U.S. C.
speech,
§
1983
violation
claims
of
deprivation of his liberty interest,
his
for
due
summary judgment
violation
process
of
rights
his
by
and violation of his right
to privacy under the United States Constitution is GRANTED.
B. North Carolina Constitutional Right to Privacy
Defendant
plaintiff's
Village
claim
under
has
the
moved
North
violation of his right to privacy.
for
summary
judgment
on
Carolina __ Cons.ti tution __for
Direct claims under the North
Carolina Constitution "are permitted only in the absence of an
adequate
state
-remedy,~'-
-and
wher_e_
22
an-- adequate
state "remedy
exists,
those
Wilcox v.
2012)
direct
City of Asheville,
(emphasis
see Corum
adequate
constitutional
v.
in
730 S.E.2d 226,
original
and
Univ. ,of N:c.,
state
remedy
claims must
internal
236
give
the
dismissed."
(N.C.
Ct. App.
quotations
413 S.E.2d 276,
must
be
289
claimant
omitted);
(N.C.
1992). An
"at
least
the
opportunity to enter th~ courth6use doors and present his claim
and
must
. provide
circumstances." Wilcox,
omitted
and
possibility
the
internal
of
730 S.E.2d at 299
quotations
·the
(emphasis- in original
omitted) .
Thus,
the
opposed to the guarantee of success is the measure.
300.
under
relief
chance
Id.
as
at 299-
The plaintiff bears the burden of establishing there is no
"adequate" alternative
of Gastonia,
state
725 S.E.2d 82,
law remedy.
90
See
(N.C. Ct. App.
Patterson v.
2012)
City
("Therefore,
in order for plaintiffs to proceed under the state constitution,
they
must
establish
that
they
lacked
an
adequate
alternative
state remedy.").
In
burden
state
his
of
supplemental
establishing
remedy
sufficient
briefing,
that
to
he
plaintiff
lacks
proceed
an
with
has
adequate
his
not
met
his
.alternative
North
Carolina
Constitutional claim of violati6n of the right to privac~,
as he
stands on his briefing to the court. _prior to the order entered
23
September 14,
2016,
without providing any additional
case law.
6
[D.E. #59 at 1-2}.
· Therefore,
on plaintiff's
Defendant Village's motion
claim under
the
for
summary judgment
North Carolina Constitution· for
violation of his right to privacy is hereby GRANTED.
C. Wrongful Discharge
Defendant
Village
support a motion for
discharge,
has
not
presented
facts . or
summary judgment on the
case
law
to
claim of wrongful
therefore·this claim will survive Defendant Village's
motion for summary judgment,
[D.E.
#41].
D. Intentional Infliction of Emotional Distress
Defendants
Village,
Peck,
and
Mitchell
have
moved
for
summary judgment on plaintiff's claim for Intentional Infliction
of
Emotional
Carolina
and
("IIED").
requires
proof
outrageous
[did]
v.
law
Distress
cause
( 3)
conduct,
severe
Puryear, 302 N.C.
Defendants
sufficient
to
( 2)
defendant
which
emotional
437,
argue
A claim for
452
[was]
in
under
" ( 1)
intended to
distress
in
North
extreme
cause
another."
and
Dickens
(1981).
plaintiff
s9tisfy
engaged
IIED
is
elements
unable
one
to
and
present
three
evidence
of
IIED.
Plaintiff's response _did __ not address the . claim__of_~lED_~-- Namely,
6 Plaintiff does assert, and the Court notes, that plaintiff only pled North
Carolina constitutional violations as to privacy and free speech. [D.E. #59].
Considering the claim under the North Carolina Constitution for violation of
free speech was dismissed in the court's prior order, [D.E. #51], only the
claim under the North Carolina Constitution for violation of the right to
privacy is befors the court today~
24
defendants argue plaintiff is unable to show he suffered severe
emotional distress- because he testified in his deposition when
asked if he suffered from any "disabling" mental condition that
he
did
not.
tD.E.
Furthe~more,
did
not
being
of
Dep~
Herbert
Bryant
at
123.]
plaintiff affirmed that he was "fit for duty," and
have
able
Therefore,
#47-3
any
to
such
condition that
work.
there
as
regarding the
Id.
is
severe
prevent
him
Plaintiff
no
does
not
contest
genuine
issue
of
from
material
emotional
and viewing the facts
would
distress
this.
fact
suffered by plaintiff,
in the light most
favorable
to the non-
moving party, defendants are entitled to judgment as a matter of
law on the claim of IIED.
For
the
Defendants
foregoing
reasons,
both
Defendant
Peck and Mitchell's motions
for
Village's
and
summary judgment as
to the claim of IIED are GRANTED.
E. Defamation
a. Actual Malice
Defendants
summary (judgment
and
libel
___ ~def_amati_on,
published
( 2)
-a
under
Village,
Peck,
and
on plaintiff's
North
claim for
Carolina
law.
To
have
false
oral
(slander)
or--wr:L-Eb~ri
person,
(4)
resulting
25
in
( 3)
moved
defamation,
prove
a plaintiff must show_ four_ elemen.ts_:
of or concerning the plaintiff,
third
Mitchell
a
(1)
-(libel)
for
slander,
claim
of
defendants
statements,
which were published to
damage
to
the
plaintiff's
reputation.
(N.C.
as
Ct.
App.
here,
and
official
Varner
Tyson v. L'Eggs Products,
1987) .
the
conduct,
v.
1977)
440
Dellinger v.
S.E.2d
Co.
Belk,
(N.C.
public official) .
show by
clear
statement
and
with
1975)
statements
299
(N.C.
Sullivan,
238
210 S.E.2d 446
299
270).
to
(quoting
support
299
a
the
juror
App.
254J
(N.C.
(1974),
To prove actual malice,
convincing
knowledge
evidence,
of
New :York
plaintiff
finding
Ct.
1994)
279-80
Ct.
App.
cert. den.,
(holding a law enforcement officer is
its
the plaintiff must
the
defendant
falsity
Times
Co.
v.
At the summary judgment stage,
survive,
his
actual malice.
789
or
disregard of whether the statement was false.
at
concern
376 U.S.
S.E.2d 788,
840
public official,
also prove
295,
v.
(citing Cline v. Brown,
211 S.E.2d 793
a
defamatory
the p-laintiff must
(quoting New York Times
(1964));
351 S.E.2d 834,
When the plaintiff is a
allegedly
Bryan,
Inc.,
must
made
with
Varner,
Sullivan,
the
reckless·
440 S.E.2d
376
U.S.
at
for the plaintiff's claim
show
sufficient
actual malice.
Varner,
evidence
440
to
S.E.2d at
(quoting Anderson, 477 U.S. at 257.
Plaintiff's
defamation
claim
is
based
on
allegedly
false
statements made in plaintiff's termination letter and Form F-5B.
(Am.
Compl.
Mitchell
regarding
at.
wrote
this
inappropriate
16-17) ···-"[a]
complaint
Officer
electronic
·in
Specifical~y,
and
was
filed
several
communications
26
Form _F=5B __ Defendant_ ______ _
that
with
this . agency
others
created
involving
a
_hosti~e
work
environment- in
violation
of
Village
policy."
[D. E. · #47-5.
Form F-SB at 1-2].
Plaintiff
cites
depositions
and affidavits
which
show
the
officer who was an alleged "complainant" and the lieutenant who
felt
harassed,
Mitchell
as
actually
to
never
feeling
made
offended
complaints
or
to
sexually
Defendant
harassed
by
plaintiff or that they worked in a hostile work environment due
to actions by plaintiff.
D.E.
#47-9 Supp.
Aff.
thought
the
#4 7-8 Aff.
Of Nick Hiatt at 1, 2;
Of Nick Hiatt at 1;
Matthew Cox at 30-33].
he
[D. E.
D.E.
#47-10
Dep.
Of
Defendant Peck admitted in his deposition
officers
on
the
text
message
thread
who
were
terminated were "jerks" and that they were "disrespectful of the
chain
of
command."
[D.E.
#47-3
Dep.
Defendant
Mitchell
admitted -that
messages,
she
the
Swanson,
"as
a
160,
decision
after
with
Calvin
a
Peck
review
Captain
at
83].
of
the
text
Freeman,
Captain
and Captain Anderson that they did not want plaintiff
part
messages
made
Of
of
[their]
offensive.
177].
However,
team"
[D.E.
and
#47-4
that
they
found
some
of
Dep.
of Caroline Mitchell
the
at
Captain Freeman stated in his affidavit he
did not support the· recommendation that plaintiff be terminated
and was
unaware
terminated
statement
of
officers.
in
Form
any person
[D.E.
F-SB
#47-11
"[a]
considered by. a.---reasonable
feeling
harassed by any
at
1,
complaint
juror to- be
27
2].
was
a
of
Therefore,
filed"
could
the
the
be
falsec statement, . and
testimony
within
knowledge
defendants'
would
depositions
of
falsity
or
give
credibility
reckless
disregard
to
of
falsity with which that statement was made.
As
to
the
statements made
letter
that
sexual
harassment
these
his
and
created
could
the
be
definition
no
messages,
while
plaintiff
environment.
The
text
messages
hostile
false
sexual
working
by
a
environment,
reasonable
harassment
in
exchanged
off-duty,
officers
on
personal
created
identified
juror
Village's
Village Policy at 4].
#47-14
was
only
a
of
[D.E.
these
constituted
found
Policy Guidelines.
evidence
termination
in
participation
statements
considering
within plaintiff's
There is
cellphones
a
hostile
work
by
defendants
as
having their work affected by the messages were Officer Hiatt
and
Lieutenant
Cox,
and
both
have
denied
sexual
harassment.
[D.E. #47-8 Aff. Of Nick Hiatt at 2; D.E. #47-10 Dep. Of Matthew
Cox at 30-33,
Plaintiff shows the definition contained
38-39].
in Defendant Village's
Pol~cy
is
the exact
same definition of
"sexual harassment" that is a violatio~ of Section 703 of Title
VII
set
forth by EEOC.
29
C.F.R.
§
For Title VII
1604~11.
cases, the Supreme Court has determined that "sexual harassment"
causing
a
"hostile
work
severe or pervasive to
environment"
must
be
'alter the conditions of
"sufficiently
[the vic-Eim' s]
employment and create an abusive working environment.'"Savs.
Bank,-- FSB-
v~
-Vinson,
Meri tor
477 _U.S;_ -57c-,-- 67 -_(1986) ----(quoting-28
Henson v.
City of Dundee,
In addition,
the
basis
682 F.2d 897,
904
(11th Cir.
1982)).
the only conduct defendants identified that formed
of
their
series of text
claims
mes~ages
of
sexual· harassment
was
and not a pattern of conduct.
a
single
[D.E. #47-
4 Dep. Of Caroline Mitchell at 144-45; D.E. #47-3 Dep. Of Calvin
Peck
at
60;
D.E.
#47-2
at
1].
Plaintiff
has
shown
evidence
exists of actual malice.
b. Privilege
'Additionally,
absolute
or
defendants
qualified
the
statement
malice.
1990),.
Smith
v.
However,
communication
Id.
at 149.
at
149,
function."
Exam'rs.,
A
in
895
the
and
made·
147,
only
course
entitled
to
which
is
defamation claim even
F.2d
privilege
are
statement
support a
knowingly. false
absolute
of
with
148-49
applies
a
express
(4th
Cir.
where
made
proceeding
agency
Id.
"communications
is
a
(quoting Mazzucco v.
228 S.E.2d 529,
in
[where]
exercising
532
the
judicial proceeding.
"Judicial proceeding" has been defined broadly,
including
or
not
McDonald,
is made
administrative
officer
was
they
privilege.
absolutely privileged will
if
argue
the
course
of
Id ..
an
the
judicial
administrative
or
quasi-judicial
North Carolina Bd.
(N.C. Ct. App.
1976)-)_.
of Med.
Therefore,
a quasi-judicial function includes administrative investigation
into
the
terminate
performance
as
. well
of
-as
an
employee
to
determine
investigation_-_-_ t()_
29
whether
substantiate
tothe
evidentiary file
v.
Ward,
258
in support of a
S.E.2d
788,
instant
case,
there was
because
the
792
termination
defamatory
statements
decision to terminate.
(N.C.
Ct.
App.
1979).
In
no exercise of quasi-judicial
already
were
made
occurred
in
the
Angel
as
the
termination
the
function
allegedly
letter
and
Form F-5B.
Qualified privilege applies where defendants
(1)
is
good faith on the part of the defendant;
made
on the
interest,
person
subject
right or duty;
with
a
and
warranted by the duty,
458
S.E.2d
Shillington v.
1991)).
is
a
(3)
(5)
the
declarant
interest
or
duty;
has
on
( 4)
or interest at issue.
29
K-Mart Corp.,
which
of
good
a
Ct.
(N.C.
1995)
App.
402 S.E.2d 155,
Averitt v.
159
(N.C.
(quoting
Ct.
Once established that an occasion is privileged,
presumption
an
the statement is made in a manner
right,
26,
in
the statement
the statement is communicated to a
corresponding
privileged occasion;
Rozier,
matter
(2)
can establish
faith;
Id.
at
29,
App.
there
however,
this
presumption of good faith can be rebutted by plaintiff's showing
of
actual
S.E.2d 849,
malice.
851
Harris
v.
Proctor
&
Gamble
Mfg.
Co.,
401
(N.C. Ct. App. 1991). Even if statements made in
Form F:....5B were protected under the-----=._qualified privilege because
Defendant
Mitchell
·standards Commission,
had
a
duty
to
report
to
the
T~aining
plaintiff has brought forth evidence from
which a reasonable juror could find_actual malice sufficient to
30
rebut
qualified
privilege.
Defendants'
argument
regarding
absolute or qualified privilege fails.
c. Opinion
Finally, defehdants in the instant case argue the alleg~dly
defamatory
statements
defamation
typically
requires
do
not
constituted
a
false
give . rise
solely
statement
to
opinion.
at
its
liability
785
F.3d 766,
Journal Co.,
expresses
Alfred
A.
However,
libel,
surmise,
of
is
151
subjective
or
possession
statement
(1st Cir.
2015)
497 U.S. 1, 19-20
'a
conjecture
Inc.,
771
objectively
not
F.3d
an
rather
180,
Knopf,
186
Inc.,
8
Cir.
[a]
Lorain
to
[false]
facts,
1998)
1222,
a. theory,
claim[
1227
Inc.
(quoting
(7th
v.
be
the
Forbes,
Haynes
Cir.
in
v.
1993)).
"[t]hough opinion per se is not immune from a suit for
a
statement
is
not
actionable
unless
provably false fact or factual connotation."
Ridder,
not
Piccone v. Bartels,
Biospherics,
F.3d
are
"When a speaker plainly
verifiable
(4th
they
interpretation,
than
actionable.'"
opinions
(citing Milkovich v.
(1990)).
view,
core,
since
, susceptible of being proved true or false."
"Be.cause
Inc.,
993
F.2d
1087,
Milkovich, 497 U.S. at 19).
provably false
defamation.
1093
(4th
it
asserts
Chapin v.
Cir.
1993)
a
Knight(citing
Therefore, a statement that-asserts
fact or factual
connotation is actionable under
Plaintiff has shown evidence that -the statements in
the termination letter and Form F-5B were provably false fact or
31
factual
connotation
and
not
opinion.
Defendants'
argument
fails.
Therefore,
both Defendant Village's and Defendants Peck and
Mitchell's _ motions
for
summary
judgment
to
as
the
claim
of
defamation are DENIED.
F. Free .Speech
Peck
Defendants
judgment
on
and
Mitchell
plaintiff's
claim
have
moved
for
42
U.S.C.
§
under
retaliatory discharge in violation of his
right to
summary
1983
free
for
speech
under the United States Constitution.
a. Introduction
In Pickering v.
Connick v.
Myers,
Bd.
461
analyzed
the
"as
a
U.S.
competing
employee
of Educ.,
138,
of
citize-n,
in
public
Connick,
employees."
U.S.
the
at 568).
142
interests
concern" and the government,
efficiency
391 U.S.
461
In McVey v.
563,
(1983),
at
play
commenting
the
upon
U.S.
at
Stacy,
it
142
and
Court
the
matters
public
of
public
in promoting the
performs
(quoting
157 F. 3d 271
(1968)
Supreme
between
"as an employer,
services
568
through
its
Pickering,
391
(4th Cir.
1998),
the Fourth Circuit laid out the teit for balancing the Pickering
and Connick competing interests in _the context of a
discharge
claim.
The
McVey
test · requir_es
determine:
32
this
retaliatory
court
to
( 1) whether the public employee was speaking as a
citizen upon a matter of public concern or as an
employee
about
a
matter· of
personal
interest;
----- ----~\2) whether the. employee's interest in speaking upon
the
matter
of
public
concern
outweighed
the
government's interest in providing effective and
efficient services to the public; · and ( 3) whether
the employee's speech was a substantial factor· in
the employee's termination decision.
McVey,
157 F.3d at 277-78
Dist.,
981 F.2d 152,
test
are
very
156
(citing Stroman v.
as
the
Sch.
Inquiries under this
(4th Cir. 1992)).
specific
Colleton Cty.
Supreme
Court
has
found
u'[b]ecause of the enormous variety of fact situations in which
. public employees may be thought by
critical statements by
their
to
superiors
furnish
grounds
for
dismissal,
we
do
not deem it either appropriate or feasible to lay down a general
standard
against
which
Connick,
461 U.S.
at 154
all
such
statements
(quoting Pickering,
may
be
judged.'"
391 U.S.
at
391).
The first two elements of the test are questions of law, and the
Crouse v.
third is a question of fact.
848 F.3d 576,
583
(4th Cir.
2017)
Town of Moncks Corner,
(citing Brooks v.
Arthur,
685
F. 3d 367, 371 (4th Cir. 2012)).
b. Speech by Citizen ·of Public Concern
Under Crouse,
the first element of the McVey test is a two-
part inquiry based upon whether the employee spoke as a private
citizen
or
duties,
Id.
as
a
public
employee
(citing Garcetti
v.
33
pursuant
Ceballos,
to
547
the
U.S.
employee's
410,
421),
and "whether the
content
of
the
speech addressed
interest to the community·,- ·rather than
'complaints over internal
office affairs.'"
Id.
(citing Connick,
determine
the
person
whether
employee,
the
course
of
an
employee's
'daily
2015)).
pursuant to
upon a
Garcetti,
547 U.S.
observed
employers
do
discourse,
not
no_t
789
use
it
hampers
disagree
with
spoke
determine
determination
as
an
whether
is
employee
the
examining the "content-, • form,
to
the
at
584
397
(4th
Fourth
speech made
duties,
2007)
Id.
(citing
that
employees
over
to
public
the
functions
content
made
or
speech
as
a
was
of
public
silence
but
of
simply
employee's
(1987).
regarding
whether
citizen,
public
the
an
court
concern
by
and context of a -given statement,
(citing Connick,
Circuit
even when
ensure
as revealed by the whole record." ·Campbell v.
(4th Cir.
the
the Supreme Court has also
necessary
authority
into
389,
F.3d
official
However,
is
because
the
individual
However,
an
as
Id.
activities.'"
Rankin v. McPherson, 483 U.S. 378, 384
Once
267
or
citizen
To
by· "inquir[ing]
employee's
at 421).
superiors
speech."
258,
149).
at
matter of public concern."
"[v]igilance
should
a
U.S.
First Amendment does not protect
government
speeGh is
because
as
Town of Mocksville,
"The
a
job"
professional
(quoting Hunter v.
that
spoke
461
the court should consider "whether speech was made in
employee's
Cir.
'a matter of
in Crouse
. 34
Galloway,
461 U.S.
observes
at
"[t] o
48 3 F. 3d
~47-48).
be
sure,
'[p]ublic
employees
do
not
forfeit
the
protection
of
the
Constitution's Free Speech Clause merely because they decide to
express
848
their
F.3d at
views
586
privately
rather
(quoting Cromer
v.
than publicly.'"
Brown,
88
F.3d
Crouse,
1315,
1326
.(4thCir. 1996)).
"[The
Fourth
Circuit]
ha [s]
explained
the public concern inquiry rests on
that
the
answer
to
'whether the public or the
community is likely to be truly concerned with or interested in
the particular expression,
or whether it is more properly viewed
as essentially a private matter between employer and employee.'"
Edwards v. City of Goldsboro,
(citing Berger v. Battaglia,
178 F.3d 231, 247
779 F.2d 992,
999
(4th Cir. 1999))
(4th Cir. 1985)).
"Speech involves a matter of public concern when it involves an
issue of social, political,
or other interest to a
Kirby v.
City,
2004)
City of
(citing
public
353
Connick,
safety are
Goldstein v.
(4th
Goldstein,
Elizabeth
461
at
F.3d
146).
quintessential matters
440,
2000)
(citing
Edwards,
446
"Matters
of
Chestnut Ridge Volunteer Fire.
Cir.
178
relating
'public
Co.,
F.3d
(4th Cir.
concern.'"
218
at
to
F. 3d 337,
247).
In
the Fourth Circuit found that speech of a firefighter
consisted. of
allegati-ons-
matters
that
of
some
public
concern
emergency
training and certifications;
was
U.S.
388
community."
overlooking viO'latiOns
when
speech
personnel
lacked
"included--_
required
that the leadership of the company
of safety- regulations ; __ and
35
~that
the
conduct of crew members was jeopardizing the safety of the crew
and of the public."
Speech
concerns
Id. at 355_
involves
"personal
a
matter
grievances,
Campbell,
employmen,t."
and
consider
matters
the
of
speech
personal
complaints
483 F.3d at 267
speech is mixed such that
concern
of
as
it
contains
personal
a
(4th Cir.
when
it
conditions
about
of
2007).
both matters
interest,
"single
considered in its entirety."
interest
When
of public
the
court
should
of
speech
to
expression
be
Stroman, 981 F.2d at 157.
In the instant case plaintiffrs speech during the period of
August
~'
2014 to August 10, 2014 was in the form of a series of
text messages.
plaintiff's
As to context, ·the text messages were sent from
personal
cell phone
plaintiff was off-duty.
[D.E.
to
officers
fello~
#47-1 at 101].
while
The text messages
were not published by plaintiff to the public via news media or
through personal social media.
Plaintiff was not acting in the
course of ordinary employment or pursuant to his official duties
when he was communicating with co-workers privately while he was
off-duty.
reasonable
Plaintiff
juror to
has
introduced
sufficient
evidence
conclude that plaintiff was
for
a
speaking as
a
citizen, not as a government employee_.
The -content
of
·twenty text messages
the
on
text
two
messages
days
varied.
during
the
Wednesday, August 6, 2014 and Sundayr August
36
10~
Plaintiff
sent
relevant
period:
2014.
Thirteen
of plaintiff's twenty messages were related to his concerns withan
article
posted
in
which
he
doubted
the
[D.E.
statements attributed to Defendant Mitchell.
12,
19-23].
article
In particular,
regarding
information
all
but
the
being
two
enforcement,
of
the
text messages
department
Defendant
the
firefighting,
with
Mitchell,
twenty
truthfulness
on
its
staff
#47-12 at 4-
refer· to
impl.ied
that
the
as
a
news
source
department
certified
emergency medical,
of
in
of
had
law
and water rescue.
[D.E. #47-13].
The
text
statements
messages
of the
officers
[D.E.
#47-4
truthfulness
statements
at
of
about
of
11
speech
of
regulations;
and
at
6;
in
to
allegedly
which
officers
of
carry
were
11
out
its
allegations
about
vital
City of Petersburg,
the
untrue
attributed
'concern
to
the
public
8 4 4 F. 3d
As in Goldstein,
88 F.3d at 1325-26).
"included
rescue.
regarding
that
some: emergency
personnel lacked required training and· certifications;
leadership of the
these
#47
in water
discussion
expression
Liverman v.
(citing Cromer,
the
an
[Department]
mission effectively.'
where
article,·
was
"certified"
The
certification
inability
the
time were
the
Mitchell,
[D.E.
totally false.
87-88].
at
rega~ding
incredulity
Defendant Mitchell has admitted that none
the
Defendant
410
an
knowing them to be
D.E. #47-12 at 4-12].
400,
show
that-the
company was· overl·ooking violations- of safety
that
the
conduct.
37
of
crew
~-
members
jeopardizing
speech
in
the
the
certification
safety
of
instant
and
the
case
whether
crew
and
raised
of
the
concerns
Defendant
355.
matter
of
Thus,
public
accessible
to
plaintiff was
concern,
the
as
public
via
assertion that
officers
were
certified
to
on
strength
came
of
the
bear
was
The
a
the
news
common
a
news
"carry
out
was
already
source
and
the
allegedly not
credibility,
its
231
citizen on a.
article
truthfulness,
to
speaking
Goldstein,
certified who were
Department
mission effectively."
the
officer
Mitchell
speaking as
the
about
truthfully regarding certification of officers.
F. 3d at
public,"
vital
and
public
Liverman, 844 F.3d at 410.
court may not
divide· the
text message
into parts
of
public concern and of personal grievance, but must.consider the
messages as a "single expression of speech to be considered in
its
entirety."
seven messages
Stroman,
sent
by
981
F.2d at
plaintiff
157.
that
were
While
there · were
actually
off-duty
commentary on matters of personal interest and not "a matter of
interest
to
the
community,"
Connick,
461
U.S.
at
149,
the
"thrust" of the speech as a single expression was a matter of
public concern, Cf; Liverman, 844 F.3d at 409.
c. P.1ckering-Connick Balancing Test
Following a finding of speech by a citizen on a matter of
"Pickering
public
concern,
public
employee's · interest
requires
in
courts
spea:king
38
to ·balance
·on ·matters . of
'the
public
concern -against the governmentrs interest in providing effective
and efficient
F.3d
at
government
585
(quoting
public . issues
McVey,
occupies
the
First Amendment values,'
Connick,
u.s.
461
Specifically,
inquiry,
through
its
157
employees.'"
F.3d
'highest
at
rung
at
145
(internal
'must
take
into
(quoting McVey,
304
"[S]peech
on
of
hi~rarchy
_.of
the
citations
account
omitted).
157
F.3d at
employee's
2016)).
they
demanded,
and
freedom
the
848 F.3d at 585
'"The public's
also ·weighs
are
in
interest
the
Hall,
in
balance.'"
828 F.3d 298,
must
be
973 F.2d 295,
asserts
discipline
'paramilitary'
correspondingly
300
(4th Cir.
Jurgensen v. Fairfax Cty, 745 F.2d 868, 880
Plaintiff
context . of
"Police are at the restricted end of the
because
Sumner,
Crouse,
(quoting Brickey v.
spectrum
Maciariello v.
278).
speech
848 F.3d at 585
(4th Cir.
the
and the extent to which it disrupts the
operation and mission of the agency.'"
Crouse,
278).
and is entitled to special protection."
employee's speech
the
848
the Fouith Circbit in Crouse observes "[f]or this
courts
·hearing
Crouse,
defendants
have
not
is
denied."
1992)
(citing
(4th Cir. 1984)).
made
a _showing
of
disruption within the police force due to the comments made by
plaintiff.
Plaintiffs
cite
McVey
for
--
the .factors--to-=b~
----------__
--:....._---·
c·onsidered in the ·balancing test:
whether the employee's --speech · (1)·- ·impairs
, discipline by superiors; ( 2) impairs harmony
_ amq_ng
co-wo-rkers;·-=-·· (3) ~~-~ha-s .~. a:·.•·detrimental~---"""
39
impact on close working relationships;
( 4)
impedes
the
performance
of
the
public
employee's duties;
( 5) interferes with the
operation of the agency; (6) undermines ·the
mission of the ag·ency; (7) is communicated
to the public or to co-workers in private;
( 8) conflicts with the responsibilities of
the employee within_ the agency;
and
(9)
makes
use
of
the
authority
and
public
accountability the employee's role entails.
McVey,
157
(internal
F.3d
at
278
quotation
significant
need
(ciiing
marks
for
Rankin,
omitted).
discipline
and
U.S.
483
The
police
adherence
command as a paramilitary organization,
at
to
388-89)
force
the
has
chain of
but defendants· have not
shown the text messages affected the ·working environment
to
~impai[r]
workers;
discipline by superiors; impai[r]
ha[ve]
relationships;
duties;
imped[e]
the
responsibilities
role
of
the
entails."
Mitchell's
the
authority
of
operation
the
agency;
employee
and public
Id.
assertion
The
that
within
messages
alleged
messages.
damaged
~claimant"
working
close
has
complaint
working
said he
Additionally,
the
was
filed- or
speech
even
was
with
the
or mak [ e]
employee's
Defendant
that
any
or 'otherwise felt the
relationships.not
the
contradicted
was
agency;
the
agency;
accountability
record
a
of
conflic[t]
the
officers were harassed, sexually harassed,
text
harmony among co-
on
the
with
mission
of
impact
so as
the performance of the public employee's
interfer[e]
undermin[e]
use
detrimental
a
a
In
offended by
made
fact,
the
the
text
privately
to
co---,-
40
workers, which lessens the interest of the agency in efficieticy
as there is less threat to the agency of losing public respect,
causing
"departmental
Cty, No.
greater
15-2066,
disruption."
Cf.
Grutzmacher
2017 WL 1049473, at *8
efficiency interest
for
v.
Howard
(unpublished)
government
(finding
agency when
speech
;
made
public
Therefore,
as
the
greater
risk
interest
of
of
"departmental
emplqyee
speaking
disruption")
as
a
private
citizen on a matter of public concern outweighs the interest of
the government because in the instant case as in Liverman,
speech
raising
"[s]erious
concerns
and supervision" overcame the
government's
interest
in
rega~ding
officer
training
showing of the defendants
preventing
workplace
the
as
to
disruption.
Liverman, 844 F.3d at 411.
d. Causal Relationship Between Speech and Ter.mination
As to the third element of the McVey test,
presented
sufficient
plaintiff
was
Termination
causal
fired
Letter] .
relationship
termination,
the
evidence
for
a
reasonable
for
his
the
extent
between
defendants
plaintiff's
uncontested
juror
[D.E.
speech.
To
plaintiff has
, signed
to
#47-2
Bryant
dispute
speech
termination
find
and
the
his
letter
contradicts.their assertions on their briefs. Therefore, summary
judgment is denied as to this issue.
41
e. Qualified
Mitchell
Defendant-s
Immunity
as
Peck and Mitchell
to
Defendants
assert
they are
Peck
and
entitled to
qualified immunity in their individual capacities on plaintiff's
claim
under
42
U.S.C. ·
1983
§
violation of his right to free
for
retaliatory
discharge
in
speech under the United States
Constitution.
ualified immunity protects government officials
"' [Q]
liability for
violate
at
(2009)
a
reasonable
583
(quoting
(quoting
their conduct does
constitutional
person would have
Pearson
Harlow
v.
v.
known.'"
Callahan,
Fitzgerald,
555
U.S.
u.s.
457
show
'(1)
constitutional
established'
at
that
the
official
right,
and
(2)
the
time
of
that
the
violated
the
a
right
challenged
citations omitted)).
established,
223,
800,
8 48
231
818
a plaintiff
statutory
was
(2011)
or
'clearly
conduct.'"
(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735
not
rights
Crouse,
"To defeat a qualified immunity defense,
(1982))).
must
insofar as
clearly established statutory or
of which
F.3d
civil damages
'from
Id.
(internal
"In order to hold that a right is clearly
a court does not need to find
'a case directly on
point, but existing precedent must have placed the statutory or
constitutional question beyond debate.'"
5 6 3 U. S .
the
at 7 4 1. )_
official's
Id.
(quoting Ashcroft,
"The . qualified immunity inquiry depends on
'perceptions
at
42
the
time
of
the
incident
in
question.'"
Id.
(4th Cir. 1994)
(quoting
Rowland
v.
Perry,
41
F.3d
167,
173
(internal citations omitted));
Case law from. the late 1980s and forward establishes that
an
officer may
not
terminate
an
is
clearly established that
employee
a
on
basis
a
in
violation
Rankin,
spee~h.
First Amendment right to free
("It
employee
State may not
infringes
that
483- U.S.
of
his
at 383
discharge
an
employee's.
tbat
constitutionally protected intereit in freedom of speech."); See
also Cromer, 88 F.3d at 1325.
The
of the
whether
Fourth Circuit
Pickering-Connick balancing test
a · reasonable
established
defendant
the
in Cromer discussed the
right.
was
Fourth
Cromer,
not
by
the
at
of
working
interest
in
Circuit
"[atnd
'sophisticated
First Amendment questions,
established
public
that
concern
is
a
In
Cromer,
government
relationships,"
communicating
the
of
was
about
a
Bd.
of
Id. at 1329-31.
Fourth
the
the
clearly
(holding
interests
447
of
1330-31
the
immunity) .
Governors Marshall Univ,
because
of
qualified
good
employee's
Similarly,
F.3d
known
to
and
matter of public concern.
have
length to determine
the
found
morale,
would
88
entitled
Circuit
"discipline,
outweighed
officer
at
second element
public
F.3d 292
in
Ridpath
(4th Cir.
v.
2006),
balancing'
observed
involved
in
'only infrequently will it be clearly
employee's
constitutionally
43
speech
on
protected.'"
a
matter
Ridpath,
of
447
F.3d
at
Circuit
320
(quoting
found
in
McVey,
Ridpath
157
the
F.3d
at
defendants
277).
were
The
not
Fourth
entitled
to
qualified immunity, noting "[s]till, public employers enjoy only
qualified -
not absolute -
immunity,
and a public employer can
find no refuge in qualified immunity when an adverse employment
decision clearly contravenes a public employee's First Amendment
rights."
Id. at 320-21.
In the instant case,
a reasonable officer in the position
of Defendants Peck and Mitchell would have known of the clearly
established
right
to
free
speech
and
plaintiff's
that
termination violated that right.
Therefore,
summary
judgment
Defendants
as
Peck
and
to plaintiff's
Mitchell's
claim of
42
motion
U.S.C.
§
for
1983
retaliatory discharge in violation of his right to free speech
under the United States Constitution is DENIED.
G. Violation of Procedural
Liberty Interest
Defendants
judgment
on
Peck
and
plaintiff's
Due
Process
by
have
moved
for
42
U.S.C.
§
Mitchell
claim
under
Deprivation
of
summary
1983
for
deprivation of his liberty interest under the Due Process Clause
of the Fourteenth Amendment of the United States Constitution.
"[A]
Fourteenth Amendment
'liberty interest
is
implicated
by public announcement of reasons for an employee's discharge.'"
Sciolino v. City of Newport News, Va., 480 F.3d 642,
44
645-46
(4th
Cir.
2007)
Cir.
(quoting Johnson v.
1990)).
A
1983
§
Morris,
claim
announcement ·concerns the
903
arising
F.2d 996,
from
999
such
Fourteenth Amendment:
( 1)
a
(4th
public
liberty to
engage in any of the coinrnon occupations of life and (2) right to
due process where a person's
integrity is
at
good- name,
stake because
reputation,
of ·government
honor,
action.
or
Sciolino;
480 F.3d at 646 (internal citations dmitted).
For a claim under . the Due Process Clause for violation of
this liberty interest, a plaintiff must show the charges against
him:
by
(1) placed. a stigma on his reputation;
the
employer;
were
( 3)
termination or demotion;
made
and . ( 4)
in
(2) were made public
conjunction
were false.
I d..
with
his
(citing Stone
v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 172 n.5
(4th Cir.
198 8) ) .
not
"[T]he
defamation'
constitutional
itself;
rather
it
harm,
is
which the dismissed employee has
public
charge.'"
Comm'n,
earlier,
551
F.2d
Id.
at
555,
649
558
the
however,
'denial
of a
an opportunity to
(quoting
(4th
'is
Cir.
Cox
v.
1976).
the
hearing at
refute
the
Va.
Transp.
"Indeed,
decades
N.
in its decision in Bd. of Regents v. Roth, the Supreme
Court recognized that 'notice and an opportunity to be heard are
essential'
when
a
public
employee's
liberty
interest
is
infringed by a charge implying such serious character defects as
'dishonesty[
such
as
or imm:orality'
failure
to
lodged in the course of an injury
rehire."
Ridpath,
45
447
F.3d
at
313-14
(quoting
Bd.
of
Regents
v.
Roth,
408
(internal quotation marks omitted)).
U.S.
process
is
which must be
F.3d
at
653
an
opportunity
granted at
(quoting
to
(1972)
"[f] undamental to
'an
be heard
a meaningful
Armstrong
573
Finally, the Fourth Circuit
reiterated the finding of the Supreme Court,
due
564,
v.
---sciolino,
time.'~~
Manzo,
opportunity
480
U.S.
552
380
545,
(1965)).
In the instant case,
Defendants Peck and Mitchell move for
summary judgment on plaintiff's procedural due process claim for
deprivation
of
liberty
interest
for
the
following
reasons:
Defendant Mitchell was not responsible for making any decisions
about what sort of appeal or grievance process would be provided
to plaintiff; plaintiff did not clearly request a "name clearing
hearing";
underlying
plaintiff
did
contest
Village
allegations;
not
did
plaintiff's termination letter;
not
the
accuracy
of
voluntarily
the
disclose
plaintiff had alternative state
law processes to contest the accuracy of the termination letter;
plaintiff has not been foreclosed from future public employment;
and
Defendants
immunity.
Peck
Defendants
claim is moot.
and
Mitchell
also
argue
are
entitled
plaintiff's
to
qualified
liberty
interest
[D.E. #42 at 1; D.E. #43 at 28-29].
a. Charges Placed a Stigma on Plaintiff's Reputation
First,
protected
"[t] he . type. of communication that gives
liberty
interest
implies
46
'the
existence
rise to a
of
serious
character defects such as dishonesty or immorality.'"
447
F.3d at
1092
(4th
308
Cir.
communication
other
1982)
is
communication
disability
(quoting .Robertson v.
(internal
that
on
F.2d 1090,
a
Whether
whether
upon
plaintiff]
his
679
omitted)).
depends
[the
foreclosed
employment
citations
stigmatizing
"imposed
Rogers,
Ridpath,
stigma
the
or
other
freedom
to
take
advantage
Roth,
408
U.S.
at
opportunities.
573.
of
The
record reflects the statements placed in the termination letter
by
Defendants
Peck
and
Mitchell
concluded
that
plaintiff's
communications were in violation of "Village policies related to
harassment
and
sexual
Employment
and
Article
employees
(Article
communications
continued
(Article
harassment
IX),
discourteous
IX),
and
Conditions
treatment
inappropriate
(Article
IX) . "
[D.E.
state
to
V:
#47-2
"[t]he
egregious
at
of
of
other
electronic
1].
The
of
nature
letter
these
communications and the flagrant violation of policy constitutes
detrimental
personal
conduct
and
is
thereby
grounds
for
harassment,"
and
immediate termination." Id.
Allegations
"detrimental
could
be
".immorality"
Ridpath,
1090,
of
personal
conduct"
classified
as
(4th
as
provided
447 F.3d at 308
1092
"sexual
"harassment,"
Cir.
fall
"serious
by
the
character
conduct
that
defects"
and
Fourtn · Circuit · in
Ridpath.
(quoting Robertson v.:- Rogers,
679 -F.2d
1982)
the
within
(interna-l
47
citations
omitted) ) .
These allegations "foreclosed his freedom to take advantage of
other employment opportunities" as plaintiff was unemployed from.
August
2014
through
November
2015.
[D. E.
#47-1
at
7].
Defendants Peck and Mitchell assert plaintiff was not foreclosed
from
employment
[D.E.
#43
at
opportunities
20].
as
Plaintiff
employment and found a
he
not
was
job as
is
currently
able
to
employed.
obtain
a security guard for
public
a private
company on Ascension Island,
a British territory in the middle
of the South Atlantic Ocean.
[D.E.
facts
in
the
light
most
#47-1 at 6-9].
favorable
to
the
Finding the
non-moving
party,
Defendants Peck and Mitchell have not shown that the statements
were not "stigmatizing" as to the first element of the violation
of due process claim asserted by plaintiff.
b.
Charg~s
Were Made Public by the Employer
The Fourth Circuit has found that as to the second element
of the due process violation claim for deprivation of liberty
interest, the plaintiff must allege and show "a likelihood that
prospective employees
(i.e., employers to whom he will apply) or
the public at large will inspect the file."
at
In the
650.
letter
and
Criminal
the charges
Form F-5B were made
Justice
respectively,
and
instant case,
Mitchell
Education
and
public
to
Sciolino,
in the termination
news media
Training__ Standards
as is undisputed by the parties.
assert
that
the
48
480 F.3d
publication
and
the
Commission,
Defendants Peck
was
not
made
voluntarily
respectively
obligated
Resources
Peck
to
and
Human
give
Defendant
as
the
termination
felt
letter
in
response to media requests pursuant to the North. Carolina Public
Records Act and N.C.G.S.
the
of
160A-168 (b) (11).
charges were made public
whether
were not
is
light
judgment
"making
public"
was
element
is
favorable
not
to
appropriate
the
as
to
two,
regardless
The
but were
undisputed by the parties.
most
the fact that
"voluntary."
only likely to be made public,
public as
the
the
satisfies
However,
in fact made
Finding the
non-moving
this
charges
facts
party,
element
in
summary
of
the
due
process violation.
c. Charges
Were
Termination
The
that,
Fourth
Made
Circuit
in
noted
Conjunction
in
Ridpath,
"[w] e
in order to deprive an employee of a
public
employer's
stigmatizing
remarks
with
Plaintiff's
have
liberty interest,
must.
be
course of a
F.3d at 309
(quoting Stone,
'made
which
instant
plaintiff
case were
was
8,
2014,
Affidavit
of
Separation,
)
and
investigation
[D.E.
terminated.
September
Defendant
that
Mitchell
stating
a
in
the
447
855 F.2d at 172 n. · 5).
stated explicitly in
as
prepared
the
"complaint
reason
was
"inappropriate electronic communications that
49
the
#47-2
a
Ridpath,
discharge or significant demotion.'"
in the
required
The charges
letter with
at
the
1].
On
Form
F-5B,
for
separation
filed,"
regarding
created a
hostile
work environment in violation of Village policy."
at
1,
2].
Thus,
statements
alleged in the
[D.E.
#47-5
amended complaint
were those of the termination letter and Form F-SB, specifically
prepared in conjunction with plaintiff's termination on August
28,
2014.
[D.E.
#47-2
at
1,
#47-5
at
1,
2].
Although
with
regard to the motion for summary judgment on plaintiff's claim
of defamation,
causal
Defendants Peck and Mitchell argue there was no
relationship
termination,
with
between
regard
the
speech
to. the
of
claim
of
plaintiff
and
deprivation
liberty interest under the Due Process Clause,
his
of
his
Defendants Peck
and Mitchell do not dispute the charges were made in conjunction
with plaintiff's termination.
d. Charges Were False
"There
of
liberty
unless
stigmatizing charges at issue are false."
Ridpath,
447 F.3d at
312
can
be
(citing Stone,
no
deprivation
855 F.2d at 172 n.
5).
Mitchell argue the charges were not false,
dispute sending the text messages.
at 99-100].
28
(1977),
disputes
the
[D.E.
Defendants Peck and
as plaintiff did not
#43 at 19; D.E.
Defendants cite Codd v. Velger,
arguing
plaintiff,
like
conduct,
itself, and therefore no hearing was needed.
628.
because
However,
the
the
falsity
instant
case
alleged
is
50
429 U.S.
plaintiff
characterization of his
is
in
not
Codd,
the
624,
Codd,
the
#47-1
627only
conduct
429 U.S. at
distinguished
not
the
falsity
from
Codd
of
the
characterization
rather
the
of
falsity
the
conduct
of
the
or
speech.
allegations
of
plaintiff,
against
64,
Appeals
77,
in
"substantial
(report
80].
the
officer
had
"respondent
reported") .
In
the
substantial
letter
Form
and
inconsistent
of
F-5B
alleged "complainant."
of
the
Codd,
429
U.S.
628
attempted- suicide
and
the
report."
at
no
stage
'attempt'
case,
each
with Village
Court
dispute
the
on
the
reversed
plaintiff
instant
accuracy
c_n:c_n:
not
has
affirmatively stated that
Court
Compl.
did
accuracy of the
stated
Court - found
Supreme
because
Codd,
Th~
plaintiff -as
[Am.
listed in the termination letter and Form F-5B.
63,
but
Plaintiff
grounds
in
the
policy definitions
[D.E.
this
Supreme
litigation
did not take place as
allegation
the
of
at
#47 at 10,
19;
his
contests
the
termination
allegations
are
and testimony of
#47-1 at 100-01;
#47-3 at 78-79, 82; #47-4 at 253-259; #47-8 at 2; D.E. #47-10 at
33, 38-39].
According
to
referenced in the
Defendant
Form F-5B,
[D.E. #47-4 at 133-34].
Mitchell,
the
"complaint,"
was filed by Officer Nick Hiatt.
Defendant Mitchell testified under oath
in her deposition Lieutenant Cox was being harassed by the text
messages sent by plaintiff.
[D.E.
the
denied
alleged
"complainant"
#47-4 at 138,-172]. However,
ever
being
plaintiff in regard to the text messages he s·ent.
at 2] .
The lieutenant who allegedly felt
51-
offended
by
[D.E. __ #47-8,
harassed denied ever
being harassed by plaintiff
sent.
in regard to
reasons
for
termination
letter included "harassment",
treatment
of
other
communication$."
termination
were
text messages
he
[D.E. #47-10, at 33, 38-39].
The
the
the
terminated not
sufficient
termination
"discourteous
"inappropriate
electronic
Defendant Peck,
who signed
and other
the
in
for
[D.E.
evidence
the
testified plaintiff
reasons
letter but because they "were
chain of command."
and
#47-2 at 1].
letter,
in
"sexual harassment",
employees",
[D.E.
stated
listed
a
termination
jerkS" and "disrespectful of the
#47-3 at 83].
for
the
officers
Plaintiff has submitted
juror
reasonable
to
find
the
allegations against plaintiff were false.
e. Qualified Immunity
Defendants
Peck
and Mitchell
assert
they
are
entitled
to
qualified immunity in their individual capacities on plaintiff's
claim under 42 U.S.C. § 1983 for deprivation of liberty interest
in
violation
of
the
Due
Process
Clause
of
the
United
States
Constitution.
"' [Q] ualified
liability
violate
of
which
F. 3d at
457 U.S.
for
civil
clearly
a
583
immunity protects
damages
established
reasonable
(quot~ng
at 818)).
insofar
government
as
statutory
person
Pearson,
would
555
"To defeat a
52
their
or
have
U~.s.~
officials
conduct
does
constitutional
known.'"
at 231
~qualified
'from
not
rights
Crouse,
848
(quoting Harlow·,
immunity defense,
a
plaintiff must show ' ( 1)
or
constitutional
established'
(quoting
at
right,
the
"In
established,
and ',(2)
time
of
563
Ashcroft,
omitted)).
that the official violated a statutory
u.s.
order
to
that
the
the
right
challenged
at
hold
735
was
conduct.'"
(internal
that
right
a
a court does not need to find
'clearly
Id.
citations
clearly·
. is
'a case directly on
point, but existing precedent must have placed the statutory or
Id.
constitutional question beyond debate.'"
563 U.S.
the
"The qualified immunity inquiry depends on
at 741.)
official's
question.'"
'perceptibns
Id.
(quoting Ashcroft,·
(quoting
at
the
time
Rowland,
41
of
the
F.3d
at
incident
173
in
(internal
citations omitted)).
The Fourth Circuit in Ridpath explained the second element
of the qualified immunity question is not precluded by the lack
of case law that speaks to the very act of defendants being in
violation of a plaintiff's rights.
The
Fourth
Circuit
found
"[t] hus,
Ridpath,
447
'officials
F.3d at 313.
can
still
be
on
notice that their conduct violates established law even in novel
Id.
factual circumstances.'"
730,
of
741
the
"The
(2002).
law
officials
at
the
'salient question'
time
'fair
(quoting Hope v.
of
the
warning'
events
that
unconstitutional." Id.
53
Pelzer,
536 U.S.
is whether the state
in
questi0n
their
gave
conduct
the
was
Similarly,
in the
instant
the position of Defendants
case,
a
reasonable
official
Peck· and Mitchell would have
in
known
that due process rights were clearly established, as the Supreme
Court "recognized that
'notice. and an opportunity to be heard
are
public
essential'
when
a
employee's
liberty
interest
is
infringed by a charge implying such serious character defects as
'dishonesty []
such as
Roth,
or immorality'
lodged in the course of an injury
[adverse employment action] . "
4 0 8 U.S. at . 57 3.
Id.
at
313-14
(quoting
Considering that the violated right was
clearly established and a reasonable official would have known
of this right, qualified immunity does not apply.
Therefore, Defendants Peck and Mitchell are not entitled to
qualified immunity as to plaintiff's claim of 42 U.S.C.
for
deprivation
of
liberty
interest
in
violation
of
1983
§
the
Due
Process Clause of the United States Constitution.
f. Mootness
Defendants also argue plaintiff's liberty interest claim is
moot because plaintiff was
September 30,
[D.E.
to
name-clearing hearing on
2016, which offer was denied on March 10,
#65 at 1-2].
opportunity
offered a
clear
However,
your
2017.
the Fourth Circuit observed "[a]n
name
after
it
been
is
by
of
'meaningful.'"
Sciolino, 480 F.3d at 653. Thus, De£endants Peck
an~
charges
ruined
dissemination
false,
stigmatizing
has
not
Mitchell's argument that plaintiff's allegation that a post54
termination hearing was moot is without basis in law and in fact
as plaintiff's amended complaint alleged deprivation of liberty
interest occurred when he was not afforded a . hearing prior to
termination and prior to publication.
63,
77,
Compl.
[Am.
61,· 62,
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