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.)

Download PDF
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

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?