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,

<JI<JI

Defendants argue plaintiff's initial request for a

78].

name-clearing hearing was not clear.

# 4 3 at 2 0- 21 ] .

[ D. E .

The

clarity of a request for a name-clearing hearing is not required
as the Court in Sciolino found "an employer need only grant a
name-clearing

hearing

if

it

will

make

false

damaging

charges

about a former employee available to those likely to request the
information,
apply."

e.g.,

future

Sciolino,

employers

to whom the

480. F.3d at 650.

Therefore,

hearing was already required under Sciolirro,

employee will
a name-clearing

and the clarity of

the request is not dispositive.
Def~ndant

making

any

process

interest

decisions

would

plaintiff's

Mitchell

be

due

should

asserts

about

what

provided
process

be

she

to

sort

of

plaintiff,

claim

dismissed

was

for

against

not

responsible

appeal
and

or
as

deprivation
her.

for

grievance
a

result,

of

liberty

Howe~er,

Defendant

Mitchell does support this argument with evidence of law or fact
in the memorandum of

law.

[D. E.

#43] .

Defendant Mitchell's

assertion fails without supporting case law.
Defendants

Peck and Mitchell also argue plaintif_f's

claim

for violation of due process by deprivation of liberty interest
55

should be dismissed because there are available adequate state
remedies.

While

available

adequate

state ·remedies

pieclude

claims under the North Carolina Constitution, but not under the
United States Constitution, Corum,

413 S.E.2d at 289, defendants

have not cited sufficient case law to support that all United
States Constitutional claims are precluded.
Therefore, .
summary

judgment

deprivation

Defendants
as

to

of. liberty

Peck

and

plaintiff's
interest

Mitchell's

claim of

in

42

violation

motion

U.S.C.
of

Due

for
1983

§

Process

Clause of the United States Constitution is DENIED.
CONCLUSION

For the foregoing reasons, plaintiff's Motion for Extension
of

Time

to

Complete

Discovery,

[D. E.

is

#3 7] '

Plaintiff's Motion for Oral Argument in Opposition,
and

plaintiff's

Motion

Length of Response,

for

in

part.

Summary Judgment,

of

Time

[D. E. #62], are DENIED.

Motion for Summary Judgment,
DENIED

Extension

[D. E.

#41],

[D. E.

#4 8],

Respond

and

Defendant Village's

is GRANTED in part and

De£endants

Peck

[D. E.

is GRANTED in part and DENIED in

#42],

part.

. 56

and

to

GRANTED.

Mitchell's

Motion

for

Remaining before the court are the following claims:
1. Claims

of

One and Three 7

42 U.S.C.

-

§

1983 Violation

Constitutionally Guaranteed Liberty

Violation . of
against

Procedural

Defendants

Peck

Due
and

Process
Mitchell,

Interest

in

Clause

as

in

their

individual capacities
2. Claim Two -

42

U.S. c.

§

1983 Claim of Retaliatory

Discharge in Violation of First . Amendment Right to
Free Speech as against Defendants Peck and Mitchell,.
in their inqividual capacities
3. Claim Four Mitchell,

Defamation as against Defendants Peck,

in

their

individual

capacities,

and

as

against Village
4. Claim Seven- Wrongful Discharge as against Village

This

Jo

-tf
1

~ay

of March 2017.

Senior United States District Judge
At Greenville, NC
#35

Plaintiff's Amended Complaint, [D.E. #28], pleads two separate claims for
1983 violation of liberty interest and procedural due process under the
. United States Constitution.
However, as there is no property interest in
plaintiff's employment, it is alleged deprivation of his liberty interest
that is the subject of his procedural due process claim.
7

§

57