Cannon et al v. Village of Bald Head Island, North Carolina et al
Filing
72
ORDER - For the foregoing reasons, plaintiffs' Motion 52 for Oral Argument in Opposition to 38 and 44 , and plaintiffs' Motion for Extension of Time to Respond and Extend Length, 66 , are DENIED. Defendant Mitchell's Motion for S ummary Judgment, 38 , is GRANTED in part and DENIED in part. Defendants Peck and Village's Motion for Summary Judgment, 44 , is GRANTED in part and DENIED in part. see order for remaining CLAIMS. Signed by Senior Judge Malcolm J. Howard on 6/22/2017. (Foell, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:15-CV-187-H
THOMAS CANNON, JESSE CONNER,
DONALD KOONS, and NICHOLAS
TERRELL,
Plaintiffs,
)
)
)
)
)
v.
)
)
VILLAGE OF BALD HEAD ISLAND,
NORTH CAROLINA, CALVIN R.
PECK, JR., in his individual
capacity, and CAROLINE
MITCHELL, in her individual
capacity,
Defendants.
ORDER
)
)
)
)
)
)
)
This matter is before the court on Defendant Mitchell's Motion
for Summary Judgment,
[D. E.
Motion for Summary Judgment,
#38];
[D.E.
Defendants Peck and Village's
#44];
plaintiffs'
Motion for
Oral Argument in Opposition to the motions for summary judgment,
[D.E. #52]; and plaintiffs' Motion for Extension of Time to Respond
and Extend Length,
[D.E.
#66].
Plaintiffs have responded,
[D.E.
#55], and the time for further filing has expired. This matter is
ripe for adjudication.
PROCEDURAL HISTORY
Plaintiffs
filed a
complaint on August
26,
2015,
alleging
seven claims for relief arising from their termination as police
officers employed by the Village of Bald Head Island ("Village").
Defendants Peck, Mitchell, and Village filed a Partial Motion to
Dismiss on October 30,
2015,
[D.E.
#20].
This court entered an
order on September 22,
2016,
[D. E.
#34],
dismissing plaintiffs'
claims in part.l
Now before
judgment,
the
court
plaintiffs'
subsequently
decided
are
defendants'
response,
authority,
motions
each
[D. E.
for
parties'
#65,
#68],
summary
notice
as
well
of
as
plaintiffs' motion for oral argument and motion for extension of
time and length of response.
STATEMENT OF FA€TS 2
Plaintiffs were public safety officers employed by Defendant
Village whose employment was terminated August 28, 2014. Village
is a municipality located in Brunswick County,
North Carolina.
Defendant Peck was the Town Manager and Defendant Mitchell was the
Director
of
Public
Safety
for
Defendant
Village
at
all
times
relevant to the complaint.
On August 28, 2014, Scott Anderson, a member of command staff
in the Department of Public Safety, summoned Plaintiff Terrell, a
lieutenant of public safety, to a meeting with Defendants Peck and
Mitchell.
[D. E.
#55-4 Terrell Dep.
at 19].
Scott Anderson also
The court dismissed the claim of wrongful discharge against Defendants Peck
and Mitchell in their individual capacities; all claims of violations of the
North Carolina Constitution against Defendants Peck and Mitchell in their
individual capacities; the claim of 42 U.S.C. § 1983 violation of the right to
privacy under the United States Constitution against Defendants Peck and
Mitchell in their individual capacities on the basis of qualified immunity; and
Plaintiffs Cannon, Koons, and Terrell's direct free speech claims under the
North Carolina Constitution against Defendant Village.
2 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.
1
2
summoned Plaintiffs Conner and Koons,
officers of public safety,
to a meeting with Defendants Peck and Mitchell.
[D.E. #55-2 Conner
Dep.
At both meetings,
at 35;
Defendants
immediate
safety
D.E.
Peck
#55-3 Koons Dep.
and
termination
officers,
Mitchell
at 28-29].
notified
from employment
respectively,
at
as
plaintiffs
lieutenant
Defendant
Village.
of
their
and public
Plaintiff
Conner was a contract employee with over one year remaining on his
contract.
Defendants Peck and Mitchell called Plaintiff Cannon,
a lieutenant of public safety,
and terminated him for cause by a
telephone call on August 28, 2014.
[D.E. #55-i Cannon Dep. at 27].
Defendant Mitchell called Plaintiff Cannon the day before and told
him to come to the office the following day, but Plaintiff Cannon
told her he was unable to come the following day. Each of the four
plaintiffs was provided a letter of termination signed by Defendant
Peck
informing
each
Plaintiff
his
termination
was
based
on
participation in a series of text message communications between
July 25, 2014 and August 15, 2014, in violation of varying policies
of Defendant Village.
Additionally,
each of the four plaintiffs
were informed his termination was a "final decision."
8 Aff.
Terrell at 1;
D. E.
#55-4 Terrell Dep.
at 30;
[D.E. #55D. E.
#55-6
Aff. Conner at 1; D.E. #55-2 Conner Dep. at 34-35; D.E. #55-7 Aff.
Koons at 1; D.E. #55-3 Koons Dep. at 29-30; D.E. #55-5 Aff. Cannon
at 1; D.E. #59-8 Termination Notes].
3
All four of plaintiffs' termination letters listed violations
of Village policies related "to discourteous treatment of other
employees,
(Article
communications
IX) ,
and
(Article IX)."
inappropriate
[D.E.
electronic
#1-4 Termination Ltr Terrell
at 1; D.E. #1-2 Termination Ltr Conner at 1; D.E. #1-3 Termination
Ltr
Koons
at
Termination
1;
D.E.
letters
for
#1-1
Termination
Plaintiffs
Terrell,
Ltr
Cannon
Koons,
at
and
1].
Cannon
stated termination was also based on violations of Village policies
related to harassment "(Article V:
Article
IX)."
[D.E.
#1-4;
D.E.
Conditions of Employment and
#1-3;
D.E.
#1-1].
Termination
letters for Plaintiffs Terrell and Koons included violations of
Village policy related to sexual harassment (Article V: Conditions
of
Employment
and
Article
IX) . "
[D. E.
#1-4;
#1-3] .
D.E.
Termination letters for Plaintiffs Terrell and Cannon additionally
provided
that
Village
"has
no
tolerance
for
harassment
and
especially those in leadership positions are expected to not only
abide by policy,
but to assist in upholding the principles and
policies of the Village." [D.E. #1-4; D.E. #1-1].
Following
stated,
"The
the
listing
egregious
of
nature
policy
of
these
violations,
each
communications
letter
and the
flagrant violation of policy thus constitutes detrimental personal
conduct and is thereby grounds for immediate termination."
#1-1;
#1-2;
#1-3;
and #1-4].
[D. E.
The text message exchange at issue
occurred over six days as follows:
4
Friday, July 25, 2014
Plaintiff Cannon:
Sammy getting his hands dirty! Of course
there was a young female involved.
Plaintiff Cannon:
[image
bike]
Plaintiff Conner:
Oh I wouldn't imagine otherwise.
Did he
just get out some tools and act like he
knew what he was doing[,]
then ask
[T]ommy [T] to really fix it[?]
Dave LaPlante:
Would not expect anything different.
Sam Proffit:
Hahaha
Plaintiff Conner:
That was his way into what he does best.
[Expletive].
Sam Proffit:
Once again [, ] while I
work, here is [T]om.
Sam Proffit:
[image containing picture of two men
standing beside children sitting down]
Sam Proffit:
Always making his way infront
the camera.
Plaintiff Conner:
Tommy [T] does have a way of sneaking
into the lime light.
He likes to show
off [. ]
Plaintiff Conner:
Tom knew Sammy couldn't fix that bike. He
just wanted to sit back and watch him
struggle. He's got a twisted sense of
humor.
Dave LaPlante:
Tom was not at lunch yet. Must have been
taken before 11:15.
Nick Hiatt:
If we were still able to go to the peli[,]
[T]om wouldn't even of [sic] been here.
Jeff Sypole:
If you want a good picture of [T]om[,]
you have to find him between the hours of
Sam-1130 am and 2pm-7pm[.]
containing
5
person
working
on
a
am doing all the
[sic]
of
Jeff Sypole:
I'm sure [T]om pawned that bike fix off
on Sam because there was a chan[c]e of
getting dirty fingers[.]
Plaintiff Conner:
Neither one likes to get dirty. But Sam
will only do it if it involves showing
off to the opposite sex. Tom will do it
if' he has
to[,]
but he's
like
a
[expletive] wet cat for the rest of the
day [sic] [g] rooming himself [.]
Sam Proffit:
And Jesse only does it to show off for
the same sex.
Jeff Sypole:
At least I only have
list[en]ing to this :)
Jeff Sypole:
[image of man containing the following
words] "YOU WANT US TO THINK NOTHING OF
YOU GOING TO COLORADO FOR CPR TRAINING?
YOU JUST WENT FULL RETARD.]
2 more
weeks
Wednesday, August 6, 2014
Plaintiff Terrell:
Hahaha
Plaintiff Koons:
Good one[.]
Herbert Bryant:
You got to read the state port pilot
piece on dps.
Jeff Sypole:
Where do I find it?
Herbert Bryant:
All over southport. You can't read it
online if you arent [sic] subscriber.
Jeff Sypole:
I was trying to look online.
12526227939:
What is DPS?
Herbert Bryant:
Department of public safety[.]
Herbert Bryant:
Us dimwit[.]
Plaintiff Koons:
What does its day [sic]
6
of
Plaintiff Koons:
Sau [sic] [.]
12526227939:
I'm new, I'm new[.]
Herbert Bryant:
You can't get it online. Unless you are
a member.
Plaintiff Conner:
Hey. If everyone but two are all 4 certs
then why are only a hand full [sic] of
the staff doing ems fire and water
rescue?
Plaintiff Conner:
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.
Plaintiff Terrell:
I was just thinking that the other day,
he only sends out LEO training, he's the
training guy it needs to be all 3
equally.
Plaintiff Terrell:
'[Expletive] it I will call rich burns
Jeff Sypole:
[Expletive] it I quit.
Herbert Bryant:
[Expletive]. I'm
twittering[.]
Jeff Sypole:
Take pictures of it and send them[.]
Herbert Bryant:
Caroline says all
certified in fire
water [.]
Herbert Bryant:
SMS=SMS[.]
Plaintiff Terrell:
Send the link[.]
Herbert Bryant:
[Expletive].
Herbert Bryant:
Ems[.]
7
getting
but
law
good
two
SMS
at
staff
[sic]
this
are
and
Plaintiff 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 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
[H] unter, Caroline, Paul [,] and DJ are
all short at least 1 of the 3[.]
12526227939:
Maybe she just can't count[.]
Herbert Bryant:
What makes the statement truly awesome is
that [sic] in 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
lia'rs [.]
Jeff Sypole:
[Image of animal with following words]
KNOCK KNOCK HERE COMES THE COCK[.]
Plaintiff Conner:
That looks like Dj
clock shadow.
Plaintiff Koons:
In Colorado u [sic] do not need certs u
[sic] do what ever [sic] u [sic] want
just like bald head [sic][.]
Herbert Bryant:
I wish the water rescue class I took was
a certification class [,] someday I will
have all four certs[.]
Plaintiff Koons:
Hey now Iam [sic] taller than that lol[.]
Plaintiff Terrell:
New water rescue gear, not shown
there will be cheetah print also!!!
Plaintiff Terrell:
[image of Speedo-type swimwear]
Plaintiff Koons:
[Expletive]
[sic]
with a five o
[M] o already has these [.]
8
but
12526227939:
You guys can try mine on so you'll get
the right size.
Plaintiff Conner:
Sam has em [sic] to [sic] I saw when he
was changing into his wrestling singlet
to work out.
He has one of those built
in pumps in the crotch region though like
on dodge ball.
Plaintiff Koons:
Do u [sic] have extra small[?]
12526227939:
It's short
too [.]
Jeff Sypole:
I don't think [M]o's will fit well, too
small in the front and too big in the
rear [.]
Jeff Sypole:
I'll have to wear [M]o's backwards[.]
Plaintiff Conner:
He does
though.
12526227939:
Hahaha
12526227939:
You [expletive] [.]
12526227939:
You [expletive][.]
12526227939:
Hahaha
Herbert Bryant:
The room startin [sic] to spin real [sic]
fast [sic] ·cuz [sic] of the gayness[.]
Jeff Sypole:
Then leave and it will stop[.]
Plaintiff Conner:
Ohhh burn.
but
have
at
a
least
gorgeous
it's
skinny
[expletive]
Thursday, August 7, 2014
Plaintiff Terrell:
Who's goin [sic] to the checkpoint
huh
huh huh come on I need a response[.]
Plaintiff Terrell:
How about some fire or EMS training[?]
Plaintiff Conner:
Yeah how [a]bout it
9
Jeff Sypole:
I'm going, to drive through it drunk[.]
Plaintiff Terrell:
Haha[.]
Plaintiff Conner:
I'll go if I can wear full tactical gear
and a gulley suit. Jump out of the bushes
at people.
Plaintiff Conner:
Ah
ha,
I
[expletive].
Jeff Sypole:
Easy Scott Jr.
Plaintiff Conner:
Oh yeah. I definitely need to have a
samurai sword. If I can't bring one[,]
I'm not going.
Plaintiff Terrell:
I'm not going unless I get to take the
assault rifle.
Jeff Sypole:
[image containing man sitting at desk
with the following words]
"I AM NO
WEATHER MAN, BUT THE COMMAND STAFF CAN
EXPECT A FEW INCHES TONIGHT."
Jeff Sypole:
[image containing same picture of man
sitting at desk with the following words]
"I AM NOT SAYING I WANT TO BE A LT, BUT
IF [EXPLETIVE] HAD WINGS, MY MOUTH WOULD
BE AN AIRPORT."
Nick Hiatt:
It's not a LT anymore.
He will never be
like you! I think it is SGT now.
Plaintiff Terrell:
The
funniest
seen [.]
Jeff Sypole:
[image containing the follow;Lng
"JEESE'S LT INTERVIEW WENT WELL"
Plaintiff Terrell:
Haha[.]
Plaintiff Koons:
Think he upgraded to capt[.]
10
gotch
[sic]
[expletive]
yo
I've
[sic]
ever
words]
Plaintiff Koons:
He has been in the office all day taking
a pounding [ . ]
Plaintiff Conner:
You spelled my name wrong.
for [expletive].
Jeff Sypole:
Better.
Jeff Sypole:
[image containing the following
"JESSE'S 'LT INTERVIEW WENT WELL"
Get it right
words]
Friday, August 8, 2014
Plaintiff Koons:
[image containing DPS article entitled
"Officers need multiple skills"]
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.
Herbert Bryant:
Umm. I don't have a water rescue cert.
count me in buddies!
Jeff Sypole:
Does anyone still have [M] at [t] [C] ox on
their Facebook. [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[.]
Plaintiff Terrell:
I can't
it [.]
Plaintiff Conner:
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 [.]
find
11
it
he
must
have
deleted
Jeff Sypole:
He posted bhi's open officer announcement
like a boss [.]
Plaintiff Conner:
Lol. That's awesome[.]
Herbert Bryant:
I heard on yik yak [sic] the other day
that Matt and Nickyt were lovers[.]
Jeff Sypole:
I heard [M]att was his role model[.]
Plaintiff Conner:
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[.]
Herbert Bryant:
It's like in the movies.
You know when
at first the characters hAte [sic] each
other but then they become lovers. That
is how it is with Matt and Nicky[.]
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[.] If I stay over
and you don't wanna [expletive] in the
morning .... Not okay [.]
Glad I
live in
Wilmington cuz [sic] you people slackin
[sic] on here[.] Hungover, sittin [sic]
at the hair salon munchin
[sic]
on
[illegible] .
Herbert Bryant:
It's totally on now sissies[.]
Herbert Bryant:
[image of can labeled "C4 EXTREME"]
Herbert Bryant:
Hahaha Matt And Nicky= superheroes[.]
Plaintiff Conner:
All you need is a shot of [a]pple cider
vinegar to pump you up. None of that
[expletive].
Plaintiff Terrell:
You guys are 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][.]
12
Plaintiff Terrell:
C4 is the bomb[.]
Plaintiff Terrell:
How does apple
pumped up?
Herbert Bryant:
Apple cider vinegar is code for meth.
Plaintiff Conner:
It's a vasodilator. And it's filled with
[B]
vitamins
and
a
bunch
of
bad
[expletives].
Gotta [sic] drink the
organic kind with the mother. Pumps you
up baby.
Plaintiff Terrell:
Oh ok code
sense [ . ]
Plaintiff Conner:
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.
Plaintiff Conner:
I got some in my cupboard at work. Give
I [sic] a try.
for
cider
meth,
vinegar
that
get
makes
you
more
I
Friday, August 15, 2014
Plaintiff Koons:
It's with the utmost pride and confidence
we here on d shift had [sic] be [sic]
told by are [sic] command staff that
[R]obin [W]allace is promoted to interim
leadership role (Lt. spot) . [I] f u [sic]
have any pressing shift matters and
concerns u [sic] will now answer to her
directly [.]
Jeff Sypole:
Haha
Plaintiff Koons:
U [sic] think Iam [sic] kidding[,]. this
[expletive] just happened[.]
Plaintiff Terrell:
Wow!! Whose decision was that[?]
13
Plaintiff Kooons:
Oh u [sic] know[,] the think tank, they
sat us down and dropped that [expletive]
on us [. ]
Plaintiff Terrell:
Did she agree to be in charge[?]
Plaintiff Koons:
Oh ya [sic]
shift [. ]
Jeff Sypole:
What does Jesse think[?]
Plaintiff Conner:
I think it is an amazing decision. She
has 15 yrs [sic] experience and has had
leadership classes.
She also was a
previous sergeant. It's the clear choice.
Jeff Sypole:
[Image containing words "Pre" and image
of a pear] .
Plaintiff Terrell:
Ask her what your plan of attack is when
you get a fire or what you guys should do
when you get a bad medical. Oh yea [sic]
also what's her plan when you guys get
that water rescue call[.]
Plaintiff Terrell:
She didn't help your shift [,] she just
hurt it and she should have the integrity
to say so [.]
she
did
it
4
[sic]
the
Additional conversation
on Friday, August 15, 2014
Plaintiff Koons:
This is
over [.]
gettin[g]
Plaintiff Conner:
Her plan is to delegate everything. She
already told us that. Sounds like a good
plan.
Plaintiff Koons:
Ya [sic] we were told that Jesse is got
[sic] at med and fire so he should handle
those calls and Iam [sic] to take the
police calls[.]
Jeff Sypole:
Robin?
14
out
of
control[,]
Notwithstanding the mention of the text messages at these
termination meetings, plaintiffs were not provided a copy of the
text messages upon which their terminations were based. Even so,
plaintiffs did not deny participation in text message exchanges
with other public safety officers, but rather denied these text
messages violated Village policies as alleged.
Officer Herbert Bryant,
who is not a party to this action,
was also terminated due to his participation in the relevant text
message exchange. 3
At least five
other employees of Defendant
Village participated in the relevant text message exchange but
were not terminated, and two of the five were not disciplined at
all.
As
part
of
the
termination
completed four separate forms,
process,
Defendant
one for each employee,
Mitchell
Form F-58,
known as a Report of Separation, listing the basis for plaintiffs'
terminations.
On
these
forms,
signature and a notary signature,
additional
reason
for
bearing
Defendant
Mitchell's
Defendant Mitchell provided an
plaintiffs'
terminations.
She
stated
plaintiffs were terminated because "a complaint was filed with
[the Public Safety Department]
others
involving
inappropriate
regarding [plaintiff]
electronic
and several
communications
that
created a hostile work environment in violation of Village policy."
This officer is the plaintiff in a pending related case before this court,
Bryant v. Village of Bald Head Island, No. 7:14-CV-223-H (E.D.N.C.)
3
[D.E.
#1-5 Affs.
of Separation at 2,
4,
6,
and 8].
These forms
were provided to the North Carolina Department of Justice and law
enforcement agencies for consideration in connection with future
employment requests made by plaintiffs.
In the days
following plaintiffs'
terminations,
Plaintiffs
Terrell, Conner, and Koons each sought redress by sending letters
to Defendant Village and requesting appeal of the termination or
a
grievance
hearing.
[D.E.
#55
Pls.'
Response
to Motion
for
Summary Judgment at 3]. Plaintiff Cannon did not send a letter of
appeal.
[D.E.
#55-1 Cannon Dep.
Peck informed plaintiffs,
at 25].
in writing,
In response,
Defendant
that their employment was
"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."
[D.E. #57-5 Peck Responses to Appeal Letters] . 4
According to Defendant Mitchell, Officer Nick Hiatt was the
complainant identified as reporting the hostile work environment.
Defendant Mitchell learned of the relevant text message exchange
by apparent happenstance when meeting with Officer Hiatt on an
unrelated
allegedly
unprofessional
employee
conduct
matter
involving Officer Hiatt. According to Defendant Mitchell, at this
meeting Officer Hiatt threw his cell phone on the table and told
Defendant Mitchell, "You want to see unprofessional? I'll show you
4 Plaintiff Conner was employed under a two year contract with Defendant Village
and as such was not an "at-will" employee.
[D.E. #1-6].
16
unprofessional.u
[D.E.
#56-5
Mitchell
Dep.
at
134].
Defendant
Mitchell testified Officer Hiatt was offended by the text message
exchange and she believed another officer, Lieutenant Matthew Cox,
was the subject of harassment therein. Defendant Mitchell further
testified Lieutenant Cox reported he was "frustratedu 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 comments.
For example,
Officer Hiatt
testified he was not offended, sexually harassed, upset, or subject
to a hostile work environment, nor did he make a complaint alleging
such.
He
also
denies
he
stated
the
text
messages
were
unprofessional or that Lieutenant Cox was harassed or offended.
Instead,
Officer Hiatt testified he published the text message
exchange to Defendant Mitchell evidencing his concern for public
safety within
community,
among
Defendant Village's
communication,
employees
aftermath
of
within
plaintiffs'
jurisdiction because
training,
the
Public
of poor
and understanding of duties
Safety
terminations,
Department.
Officer
Hiatt
In
the
rebuffed
Defendant Mitchell's characterization of him as the complainant
when she advised he should guard his comments in light of his role
in alerting her of facts used to support plaintiffs' terminations.
17
In
further
testimony,
message
apparent
contradiction of
Defendant Mitchell's
Lieutenant Cox denied ever reading the relevant text
exchange,
much
less making
Mitchell he was upset or offended.
any
complaint
to
Defendant
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 or actions ,by plaintiffs or another terminated officer.
According to Defendant Mitchell, she recommended termination
of plaintiffs with the unanimous consent of her command staff.
Captain Freeman, however, disputes this statement in his affidavit
testifying he neither recommended the terminations nor observed
violations of Defendant Village's policies. Captain Freeman even
stated he was present at a meeting with Defendant Mitchell where
the
terminations
of plaintiffs
were
discussed,
and when
asked
whether he supported the decision to terminate them at that meeting
I
he indicated he did not support the decision.
[D.E. #58-2 Freeman
Aff. at 2]. No notes have been produced from this meeting or any
other relevant meetings Defendant Mitchell may have had with her
command staff,
and it appears no notes were taken to aid in the
resolution of this factual question. Notes have been produced from
Defendants
Peck and Mitchell's meetings with plaintiffs.
[D. E.
#59-8 Termination Meeting Notes] .
As part of the decision-making process,
Defendant Mitchell
admits she made no determination about whether the text messages
18
sent by plaintiffs or the other terminated officers constituted
harassment,
sexual
harassment,
discourteous
treatment
of
other
employees, or inappropriate electronic communications. Instead, in
her
deposition,
Defendant
Mitchell
stated
the
question
of
plaintiffs' terminations was limited to whether she and the command
staff wanted plaintiffs and the other terminated officer to be
"part of [the] team." [D.E. #56-5 Mitchell Dep. at 177]. However,
when asked about her characterization of the relevant text message
exchange,
talking
Defendant
Mitchell
[expletive],
said,
excuse the
"It's
term,
a
bunch
of
but they're
guys
just
just talking
[expletive]." [Id. at 293].
After
message
Defendant
exchange
Mitchell's
and
consul tat ion
review
of
with
her
the
relevant
command
delivered her recommendations to Defendant Peck.
text
staff,
she
As a result of
his review, Defendant Peck reached the same conclusion as Defendant
Mitchell, stating in his deposition, "Mr. Cannon and the rest were
terminated because they were jerks.
That they were disrespectful
-- disrespectful of the chain of command,
that,
I
Peck
and once I
turned it over to HR to write the letter."
Dep.
at
8 3] .
Plaintiffs Terrell,
Koons,
"because
jerks"
they
command [,]"
were
the
scope
of
While
as
determined
[D.E.
#56-4
employees,
at-will
and Cannon may have been terminated
or
"disrespectful
allegations
of
contained
the
in
chain
of
plaintiffs'
termination letters and Forms F-5B appears broader than the reasons
19
relied upon in the decision-making process as stated by Defendants
Mitchell and Peck in their depositions.s
Notes from the termination meetings indicate Defendants Peck
and
Mitchell
told
plaintiffs,
"[w]e
will
not
initiate
any
statements to the media - so if it gets in the news, it won't be
because we initiated."
#
59-1
Ellison
[D.E.
Williams
terminating plaintiffs,
#59-8 Termination Notes at 3; D.E.
Dep.
at
74-75]
.6
A
few
hours
after
Defendant Peck sent a mass email to all
employees and public safety part-time staff of Defendant Village,
which stated "[a]s many of you are aware, five officers have been
released
Village
from
employment
policies
this
pertaining
morning
to
based
harassment,
on
violations
sexual
of
harassment,
discourteous conduct and inappropriate electronic communications."
[ D. E .
# 5 9- 4 Peck Em a i 1 ] .
allegedly
letters
defamatory
as
it
The
email
statements
accused
contained
plaintiffs
"[d]etrimental personal conduct
continued to
[that]
and
in
the
Officer
publish the·
termination
Bryant
of
includes behavior of such
a serious detrimental nature that the functioning of the Village
may be or has been impaired; the safety of persons or property may
be or ha[s] been threatened; or the laws of any government may be
Plaintiff Conner was employed under a two year contract with Defendant Village
and as such was not an "at-will" employee.
[D.E. #1-6].
6 These
termination meeting notes were prepared by Karen Ellison, Defendant
Peck, Defendant Mitchell, and Village's attorney in advance of the termination
meetings with plaintiffs as a script for Defendants Peck and Mitchell to use.
[D.E. #56-4 Peck Dep. at 118; D. E. #59-1 at 48].
5
20
or have been violated."
Id. The email made no distinction among
the five terminated officers and therefore all were said to have
been terminated for the same reasons.
after plaintiffs'
terminations,
On August 29, 2014, the day
local media requested copies of
the termination letters. Believing North Carolina's Public Records
Act required compliance with the media requests, Director of Human
Resources,
Karen Ellison,
letters as requested.
76].
turned over copies of the termination
[D.E.
#59-1 Ellison Williams Dep.
at 75-
Plaintiffs filed suit on August 26, 2015.
COURT'S DISCUSSION
I.
Plaintiff's Motion for Oral Argument in Opposition
regarding D.E. #38 and #44 [D.E. #52]
After
careful
review
and
consideration
of
the
motion
of
plaintiffs and determination the briefs submitted to the court by
both parties are sufficient, plaintiffs' motion for oral argument
in opposition regarding D.E. #38 and #44,
II.
After
[D. E. #52], is DENIED.
Plaintiff's Motion for Extension of Time to Respond and
Extend Length [D.E. #66]
careful
review
and
consideration
of
the
motion
of
plaintiffs and determination the briefs submitted to the court by
both parties are sufficient, plaintiffs' motion for extension of
time to respond and length of response,
[D.E. #66], is DENIED.
III. Standard of Review
Summary judgment is
appropriate when,
after
reviewing the
record taken as a whole, no genuine issue of material fact exists
21
and the moving party is entitled to judgment as a matter of law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
party
seeking
summary
judgment
demonstrating the absence of a
bears
the
(1986). The
initial
burden
of
genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving
party has met its burden, the non-moving party may not rest on the
allegations or denials in its pleading, Anderson, 477 U.S. at 248,
but "must come forward with 'specific facts showing that there is
a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986)
56(e)
(emphasis
in
original).
A
mere
(quoting Fed.R.Civ.P.
scintilla
of
evidence
supporting the case is not enough. Anderson, 477 U.S. at 252. The
court construes the evidence in the light most favorable to the
non-moving party and draws all reasonable inferences in the nonmovant's favor. Matsushita Elec. Indus. Co., 475 U.S. at 587-88.
IV.
Analysis
Defendant Mitchell's motion for summary judgment, [D.E. #38],
and Defendants
Peck and Village's motion for
summary judgment,
[D.E. #44], are before the court.
A. Municipal Liability of Village under Monell for Plaintiff's
Free Speech, Due Process, Liberty Interest, and Right to
Privacy Claims under 42 U.S.C. § 1983
Defendant
plaintiffs'
Village
has
moved
for
summary
judgment
on
claims under 42 U.S.C. § 1983 for violation of their
rights to free speech, violation of their procedural due process
22
rights by deprivation of their liberty interests, and violation of
their rights 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
the United States]."
Monell v.
Dep't of Soc.
New York, 436 U.S. 658, 690 (1978).
[or laws of
Servs.
of City of
Absent "official .
policy
of some nature," a local governmental body is simply not liable
under
1983.
§
governmental
Id.
(noting that "official policy" may include
custom) .
When
a
plaintiff
protests
a
single
employment decision involving no violation pursuant to a municipal
policy and the decision was made by an official without
policymaking authority, the municipality is not liable for
violations.
final
§
1983
Greensboro Prof'l Fire Fighters Ass'n, Local 3517 v.
City of Greensboro, 64 F. 3d 962, 963, 966 (4th Cir. 1995).
Plaintiffs argue,
U.S.
469,
481
citing Pembaur v. City of Cincinnati,
475
(1986), a municipality is liable even for a single
decision when the decision is made by an official who has final
decision
making
authority
to
respect to the action ordered.
Crowley v.
1989),
establish
policy
Pembaur, 475 U.S. at 481.
Prince George's Cty,
quotes Pembaur,
municipal
890 F.2d 683,
684-87
with
However,
(4th Cir.
and holds there is a distinction between
the discretionary authority to make final decisions on a particular
matter and the
authority to make final
23
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
with regard to municipal
"final policymaker"
employment policy) ;
accord Greensboro
Prof'l Fire Fighters Ass'n, 64 F.3d at 966. The Supreme Court has
found "whether an official had final policymaking authority is
question of state law."
a
Pembaur, 475 U.S. at 483.
North Carolina state law vests final policymaking authority
in
the
elected
city
council.
See
N.C.G.S.
§
160A-67
("the
government and general management of the city shall be vested in
the council.")
As to personnel matters,
North Carolina law is
quite specific about the roles of the elected city council and the
city manager - North Carolina law provides while a city manager is
the municipality's "chief administrator," he must comply with the
general employment policies set by the council.
160A-148(1)
personnel
See N.C.G.S.
§
(city manager must act "in accordance with such general
rules,
regulations,
council may adopt.")
policies,
or
Because Defendant Peck,
ordinances
as
the
who made the final
decision to fire plaintiffs was the city manager and not the city
council, Defendant Peck did not have final policymaking authority,
and thus there was no official policy or custom violation here.
Therefore, Defendant Village's motion for summary judgment on
plaintiffs'
to
free
42 U.S.C.
speech,
§
1983 claims for violation of their right
violation
of
24
their
due
process
rights
by
deprivation of their liberty interests,
and violation of their
right to privacy under the United States Constitution is GRANTED.
B. North Carolina Constitutional Right to Privacy, Wrongful
Discharge, Breach of Contract - Jesse Conner 7
Because Defendant Village has not presented facts or case law
to support a motion for summary judgment on the following claims:
violation
of
constitutional
right
to
privacy
Carolina Constitution; wrongful discharge;
claim for breach of contract,
under
the
North
or Plaintiff Conner's
the court does not consider those
claims, and they remain pending before this court.
C. North Carolina Constitutional Right to Free Speech - Jesse
Conner
Defendant Village moves
for
summary
judgment
on
Plaintiff
Conner's claim of violation of the right to free speech under the
North
Carolina
Constitution.
Direct
claims
under
the
North
Carolina Constitution "are permitted only in the absence of an
adequate state remedy, and where an adequate state remedy exists,
those direct constitutional claims must be dismissed." Wilcox v.
City
of
Asheville,
730
S.E.2d
226,
236
(N.C.
Ct.
App.
2012)
(emphasis in original and internal quotations omitted); see Corum
v. Univ. of N.C., 330 N.C. 761, 782 (N.C. 1992). An adequate state
remedy must give the claimant "at least the opportunity to enter
the courthouse doors and present his claim and must provide the
7
Plaintiffs' claim of breach of contract is only against Defendant Village as
Defendants Peck and Mitchell are not employers of plaintiff.
25
possibility of relief under the circumstances."
at 237
Thus,
(emphasis
Wilcox, 730 S.E.2d
in original and internal quotations omitted).
the chance as opposed to the guarantee of success is the
measure.
Id.
at
299-300.
The
plaintiff
bears
the
burden
of
establishing there is no "adequate" alternative state law remedy.
See Patterson v.
App.
2012).
City of Gastonia,
725 S.E.2d 82,
90
(N.C.
Ct.
While a state remedy is inadequate when sovereign
immunity would be a total bar to the claim, Craig ex rel. Craig v.
New Hanover Cty.
Bd. Of Edu.,
363 N.C.
334
(N.C.
2009),
cities,
counties, and municipalities such as Defendant Village are immune
from suit under the doctrine of governmental immunity, and waive
that immunity when they enter into authorized contracts such as
employment contracts with individuals to serve as police officers.
Wray v.
City of Goldsboro,
787
S.E.2d 433,
436
(N.C.
Ct.
App.
2016).
In Defendant Mitchell, Peck, and Village's Motion to Dismiss,
[D.E.
#20],
available
this
adequate
court
state
found
wrongful
remedy
termination
precluding
free
to
speech
be
an
claims
under the North Carolina Constitution by plaintiffs who were atwill
employees.
Because
Conner
was
allegedly
not
an
at-will
employee, the court found wrongful termination was not an adequate
state remedy for Plaintiff Conner's free speech claim under the
North Carolina Constitution.
court noted at that time,
See D.E. #1-6 Conner Agreement.
The
[D.E. #34], Plaintiff Conner's claim may
26
be precluded by the existence of other available adequate state
remedies.
The
court
now
finds
the
existence
adequate state remedy, breach of contract,
of
an
available
sufficient to address
the injury Plaintiff Conner raises in a violation of the right to
free speech under the North Carolina Constitution.
See J.W.
v.
Johnston Cty. Bd. Of Edu., No. 5:11-CV-707-D, 2012 WL 4425439, at
*17
(E.D.N.C. Sept. 24,
2012)
(unpublished); see also Clagget v.
Wake Forest, 486 S.E.2d 443, 448,
(N.C. Ct. App. 1997)
("Breach of
contract is the remedy for a wrongfully discharged employee who is
employed for a definite term or who is subject to discharge only
for
just
cause."
(internal
citations
Therefore,
omitted)).
Defendant Village's motion for summary judgment as to Plaintiff
Conner's claim for violation of the right to free speech under the
North Carolina
Constitution~is
GRANTED.
D. Libel
a. Actual Malice
Defendants Village, Peck, and Mitchell have moved for summary
judgment on plaintiffs' claim for libel under North Carolina law.
To
prove
elements:
a
claim
of
defamation,
must
( 2) of or concerning the plaintiff,
were published to a third person,
plaintiff's reputation.
840
plaintiff
show
four
(1) defendants published false oral (slander) or written
(libel) statements,
834,
a
(N.C.
Ct.
App.
(4)
resulting in
( 3) which
dama~e
to the
Tyson v. L'Eggs Products, Inc., 351 S.E.2d
1987).
27
When the plaintiffs are public
officials,
as
concern their
here,
official
actual malice.
App. 1994)
279-80
App.
and
the
allegedly
conduct,
Varner v.
Bryan,
(quoting New York Times
statements
plaintiff must
the
defamatory
also prove
440 S.E.2d 295,
C~o.
299
(N.C.
v. Sullivan, 376 U.S. 254,
(1964)); Dellinger v. Belk, 238 S.E.2d 788, 789
1977)
(citing Cline v.
Brown,
den., 211 S.E.2d 793 (N.C. 1975)
Ct.
210 S.E.2d 446
(N.C. Ct.
(1974),
cert.
(holding a law enforcement officer
is a public official). To prove actual malice, the plaintiff must
show by clear and convincing evidence,
the
defendant made
the
statement with knowledge of its falsity or with reckless disregard
of whether the statement was
false.
Varner,
440
S.E.2d at
(quoting New York Times Co. v. Sullivan, 376 U.S. at 270).
299
At the
summary judgment stage, for the plaintiffs' claim to survive, the
plaintiffs must show sufficient evidence to support a juror finding
actual malice.
Varner,
440 S.E.2d at 299
(quoting Anderson,
477
U.S. at 257.
Plaintiffs'
defamation claims are based on allegedly false
statements made in plaintiffs' termination letters and Forms F-5B
as well as Defendant Peck's email to all Village employees just
hours after termination of plaintiffs.
[D.E. #1 Compl. at 13-15;
D.E.
D.E.
#55
Plaintiff's
Specifically,
wrote "[a]
Officer
and
Response
at
9;
in each plaintiff's Form F-5B,
#59-4
Peck
Email].
Defendant Mitchell
complaint was filed with this agency regarding this
several
others
involving
28
inappropriate
electronic
communications
that
created
violation of Village policy."
a
hostile
[D.E.
#56~6
work
environment
in
Form F-5B Cannon at 1-
2; #56-7 Form F-5B Conner at 1-2; #56-8 Form F-5B Koons at 1-2;
#56-9 Form F-5B Terrell at 1-2].
Plaintiffs
cite depositions
and affidavits which show the
officer who was an. alleged "complainant" and the lieutenant who
felt
harassed,
actually
never
made
complaints
to
Defendant
Mitchell as to feeling offended or sexually harassed by plaintiffs
or that they worked
by plaintiffs.
Supp.
Aff.
i~
a hostile work environment due to actions
[D.E. #57-6 Aff. Of Nick Hiatt at 1,2; D.E. #57-7
Of Nick Hiatt at 1;
D.E.
#58-1 Cox Dep.
at 30-34].
Defendant Peck admitted in his deposition he thought the officers
on the text message thread who were terminated were "jerks" and
that they were "disrespectful of the chain of command." [D.E. #564 Dep. Calvin Peck at 83]. Defendant Mitchell admitted that after
a review of the text messages, she made the decision with Captain
Freeman, Captain Swanson, and Captain Anderson that they did not
want plaintiffs "as a part of
some of the messages offensive.
177].
[their]
team" and that they found
[D.E. #56-5 Mitchell Dep. at 160,
However, Captain Freeman stated in his affidavit he did not
support the recommendation that plaintiff be terminated and was
unaware of any person feeling harassed by any of the terminated
officers.
statement
[D.E.
in
#58-2
Form
F-5B
Aff.
"[a]
Freeman at
complaint
29
1,
2].
was
Therefore,
filed"
could
the
be
considered by a
reasonable
juror to be a
false
statement,
and
testimony within depositions would give credibility to defendants'
knowledge of falsity or reckless disregard of falsity with which
that statement was made.
Statements which a
reasonable
juror could find defamatory
were not limited to the statements in the Form F-5B.
As to the
statements made within Plaintiff Cannon and Terrell's termination
letters
that
their
participation
in
text
messages
constituted
sexual harassment and created a hostile working environment; that
Plaintiff
Cannon,
Terrell,
and
conduct
Koons'
harassment; and that each of the plaintiffs'
constituted
conduct constituted
"detrimental personal conduct," these statements could be found
false by a reasonable juror considering the definitions of sexual
harassment,
harassment,
and
Village's Policy Guidelines.
There
is
no
cellphon~s
evidence
#58-1
conduct
in
[D.E. #57-4 Village Policy at 4, 12].
these
as
were Officer Hiatt
denied sexual harassment.
D.E.
personal
messages
exchanged
on
personal
created a hostile work environment. The only officers
identified by defendants
messages
detrimental
Cox
Dep.
at
having their work affected by the
and Lieutenant
[D.E.
30-33,
Cox,
#57-6 Aff.
38-39].
and both have
Of Nick Hiatt at 2;
Plaintiffs
show
the
definition contained in Defendant Village's policy is the exact
same
definition of "sexual harassment" that
Section 703 of Title VII set forth by EEOC.
30
is
a
violation of
29 C.F.R.
§
1604.11.
For Title VII cases, the Supreme Court has determined that "sexual
harassment"
causing
a
"hostile
work
environment"
must
be
"sufficiently severe or pervasive to 'alter the conditions of [the
victim's] employment and create an abusive working environment.'"
Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)
(quoting
Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982)).
addition,
In
the only conduct defendants identified that formed the
basis of their claims of sexual harassment was a single series of
text messages and not a pattern of conduct.
[D.E.
#56-5 Mitchell
Dep. at 144-45; D.E. #56-4 Peck Dep. at 60; D.E. #1-1 at 1; #1-2
at 1; #1-3 at 1; #1-4 at 1].
Additionally,
deposition of Dr.
plaintiffs
have
presented evidence
Karen Ellison Williams,
from
the
the Director of Human
Resources and Communications for the Village, at the time of the
incidents in question, that Defendants Peck and Mitchell were both
involved in selecting the language of the termination letters.
[D.E. #59-1 Ellison Williams Dep. at 36].
Defendants
Dr. Williams testified
Peck and Mitchell made the distinctions between the
reasons the five different officers were terminated.
37.
Id. at 36-
Dr. Williams testified additionally that Defendants Peck and
Mitchel asked for sections of the Village Policy that would allow
for immediate termination.
Id.
Defendant Peck was unable to show
any text message that met the definition of harassment as defined
31
by Village policy and referenced in Plaintiff Cannon, Terrell, and
Koons' termination letters.
[D.E. #56-4 Peck Dep. at 82, 85-88].
After terminating plaintiffs earlier that morning, Defendant
Peck sent an email to all employees of Village,
safety part-time staff,
#59-4].
including public
at 10:40 am on August 28 2014.
[D. E.
Defendant Peck did not specify which plaintiffs had been
terminated for which reasons, but instead he listed the names of
all four plaintiffs,
as well as Officer Bryant,
had
"based
been
terminated
on
violations
of
and stated they
Village
policies
pertaining to harassment, sexual harassment, discourteous conduct
and inappropriate electronic communications."
[D. E .. #59-4 at 2].
A reasonable juror could find the statements in the email falsely
implied that
harassment
each plaintiff had been terminated due
and
harassment,
showing
defendants'
to
sexual
knowledge
of
falsity or reckless disregard of falsity with which the statement
in the email was made.
Thus, plaintiffs have shown evidence exists
of actual malice.
b. Privilege
Additionally, defendants argue they are entitled to absolute
or qualified privilege.
will not
support
a
A statement which is absolutely privileged
defamation claim even if the
knowingly false and made with express malice.
statement was
Smith v. McDonald,
895 F.2d 147, 148-49 (4th Cir. 1990). However, absolute privilege
only applies where the communication is made in the course of a
32
judicial proceeding.
Id. at 149.
"Judicial proceeding" has been
defined broadly, Id., including "communications made in the course
of an administrative proceeding .
officer
or
function."
Exam'rs.,
a
agency
Id.
the
exercising
a
(quoting Mazzucco v.
228 S.E.2d 529, 532
quasi-judicial
into
is
[where]
function
performance
of
judicial
or
quasi-judicial
North Carolina Bd.
(N.C. Ct. App. 1976)).
includes
an
the administrative
administrative
employee
to
of Med.
Therefore,
investigation
determine
whether
to
terminate as well as investigation to substantiate the evidentiary
Angel v. Ward,
file in support of a decision to terminate.
S.E.2d 788, 792 (N.C. Ct. App. 1979).
258
In the instant case, there
was no exercise of quasi-judicial function because the termination
already occurred as the allegedly defamatory statements were made
in the termination letters, email, and the Forms F-5B.
Qualified privilege applies where defendants can establish
(1) good faith on the part of the defendant;
(2) the statement is
made on the subject matter in which the declarant has an interest,
right or duty;
(3) the statement is communicated to a person with
a corresponding interest or duty;
and (5)
on a privileged occasion;
the statement is made in a manner warranted by the duty,
right, or interest at issue.
(N.C.
( 4)
Ct.
App.
S.E.2d 155, 159
1995)
Averitt v. Rozier, 458 S.E.2d 26, 29
(quoting Shillington v.
(N.C. Ct. App. 1991)).
K-Mart Corp.,
402
Once established that an
occasion is privileged, there is a presumption of good faith; Id.
33
at 29, however, this presumption of good faith can be rebutted by
plaintiff's showing of actual malice.
Mfg.
Co.,
401
S.E.2d
statements made
849,
in the
851
Forms
Harris v. Proctor & Gamble
(N.C.
Ct.
App.
1991).
Even
if
F-5B and publication to Training
Standards Commission were protected under the qualified privilege
because Defendant Mitchell had a duty to report to the Training
Standards Commission, plaintiffs have brought forth evidence from
which a reasonable juror could find actual malice sufficient to
rebut
qualified
privilege.
Defendants'
argument
regarding
absolute or qualified privilege fails.
c. Opinion
Finally, defendants in the instant case argue the allegedly
defamatory
statements
defamation
typically
requires
do
not
constituted
a
false
give
rise
solely
statement
to
at
liability
F.3d 766,
Journal Co.,
expresses
771
(1st Cir.
497 U.S.
'a
1,
subjective
2015)
19-20
an
"Because
core,
opinions
they
are
not
Piccone v. Bartels,
(citing Milkovich v.
(1990)).
view,
its
since
susceptible of being proved true or false."
785
opinion.
Lorain
"When a speaker plainly
interpretation,
a
theory,
conjecture or surmise, rather than [a] claim[ ] to be in possession
of
objectively verifiable
actionable."'
186
(4th Cir.
Biospherics,
1998)
F.i3d 1222, 1227
[false]
Inc.
facts,
v.
the
Forbes,
statement
Inc. ,
(quoting Haynes v. Alfred A.
(7th Cir. 1993)).
34
is
not
151 F. 3d 18 0,
Knopf,
Inc.,
8
However, "[t]hough opinion per
se
is
not
immune
from
actionable
unless
it
connotation."
a
suit
asserts
for
a
libel,
a
statement
provably false
fact
or
is
not
factual
Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1093
(4th Cir. 1993)
(citing Milkovich, 497 U.S. at 19).
Therefore, a
statement that asserts provably false fact or factual connotation
is
actionable under defamation.
Plaintiffs have
shown evidence
that the statements in the termination letters, email and Forms
F-
5B were provably false fact or factual connotation and not opinion.
Defendants' argument fails.
Therefore, both Defendant Village's and Defendants Peck and
Mitchell's motions .for summary judgment as to the claim of libel
are DENIED.
E . Free Speech
Defendants Peck and Mitchell have moved for summary judgment
on
plaintiffs'
claims
under
42
U.S. C.
1983
§
for
retaliatory
discharge in violation of their rights to free speech under the
United States Constitution.
a. Introduction
In Pickering v.
Connick v.
Myers,
Bd.
of Educ.,
461 U.S.
analyzed
the
competing
employee
"as
a
citizen,
interests
in
concern" and the government,
efficiency
of
the
138,
public
391 U.S.
142
563,
(1983),
at
play
commenting
35
it
(1968)
and
the Supreme Court
between
the
upon matters
"as an employer,
services
568
public
of
public
in promoting the
performs
through
its
employees."
at 568).
Connick, 461 U.S. at 142 (quoting Pickering, 391 U.S.
In McVey v.
Stacy,
157 F. 3d 271
(4th Cir.
1998),
the
Fourth Circuit laid out the test for balancing the Pickering and
Connick
competing
discharge claim.
interests
in
the
context
of
a
retaliatory
The McVey test requires this court to determine:
( 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
(citing Stroman v.
Dist.,
981 F.2d 152, 156 (4th Cir. 1992)).
Colleton Cty.
Sch.
Inquiries under this
test are very specific as the Supreme Court has found "'[b]ecause
of
the
enormous
variety
fact
situations
in
public employees may be
statements by
superiors
of
which
critical
thought by their
to furnish grounds for dismissal, we do not deem
it either appropriate or feasible to lay down a general standard
against which all such statements may be judged.'"
U.S.
at 154
(quoting Pickering,
391 U.S.
583
(4th Cir.
461
at 391) . The first two
elements of the test are questions of law,
question of fact.
Connick,
and the third is a
Crouse v. Town of Moncks Corner, 848 F.3d 576,
2017)
(citing Brooks v. Arthur,
(4th Cir. 2012)).
36
685 F.3d 367,
371
b. Speech by Private Citizen on Public Concern
Under Crouse, the first element of the McVey test is a twopart inquiry based upon whether the employee spoke as a private
citizen or as a public employee pursuant to the employee's duties,
Id.
(citing Garcetti v. Ceballos, 547 U.S. 410, 421), and "whether
the content of the speech addressed 'a matter of interest to the
community' rather than 'complaints over internal office affairs.'"
Id.
(citing Connick,
person spoke as
a
461 U.S. at 149).
citizen or as
To determine whether the
an employee,
the court should
consider "whether speech was made in the course of an employee's
job"
by
"inquir [ing]
activities.'"
into
Id. at 584
789 F.3d 389, 397
the
employee's
'daily
professional
(quoting Hunter v. Town of Mocksville,
(4th Cir. 2015)). "The First Amendment does not
protect speech made pursuant to a government employee's official
duties, even when that speech is upon a matter of public concern."
Id.
(citing Garcettir 547 U.S. at 421). However, the Supreme Court
has also observed "[v]igilance is necessary to ensure that public
employers do not use authority over employees to silence discourse,
not
because
it
hampers
public
functions
but
simply
superiors disagree with the content of employee's speech."
v. McPherson, 483 U.S. 378, 384
Once
the
determination
because
Rankin
(1987).
is
made
regarding
whether
an
individual spoke as an employee or as a citizen, the court should
determine whether the speech was of public concern by examining
37
the "content, form, and context of a given statement, as revealed
by the whole record." Campbell v. Galloway, 483 F.3d 258, 267 (4th
Cir.
2007)
Fourth
(citing Connick,
Circuit
in
Crouse
461 U.S.
observes
at 147-48).
"[t]o
be
However,
sure,
the
' [p] ublic
employees do not forfeit the protection of the Constitution's Free
Speech Clause merely because they decide to express their views
privately rather than publicly.'" Crouse, 848 F.3d at 586 (quoting
Cromer v. Brown, 88 F. 3d 1315, 1326 (4th Cir. 1996)).
"[The Fourth Circuit] ha[s] explained that the answer to the
public
concern
inquiry
rests
on
'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, 178 F.3d 231, 247
·(citing Berger v. Battaglia, 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 community."
Kirby v. City of Elizabeth City, 388 F.3d 440, 446 (4th Cir. 2004)
(citing Connick,
4 61 U.S.
at 14 6) .
"Matters relating to public
safety are quintessential matters of 'public concern.'"
Goldstein
v. Chestnut Ridge Volunteer Fire. Co., 218 F.3d 337, 353 (4th Cir.
2000)
(citing Edwards, 178 F.3d at 247).
In Goldstein, the Fourth
Circuit found that speech of a firefighter consisted of matters of
public
concern
when
speech
"included
38
allegations
that
some
emergency personnel lacked required training and certifications;
that the leadership of the company was overlooking violations of
safety
regulations;
and that
the
conduct
of
crew members
jeopardizing the safety of the crew and of the public."
Id.
was
at
355.
Speech involves a matter of personal interest when it concerns
"personal grievances, complaints about 'conditions of employment."
Campbell,
483 F.3d at 267
(4th Cir. 2007).
When speech is mixed
such that it contains both matters of public concern and matters
of personal interest,
the court should consider the speech as a
"single expression of speech to be considered in its entirety."
Stroman, 981 F.2d at 157.
In
the
instant
case
all
four
plaintiffs'
speech occurred
during the period of July 25, 2014 to August 15, 2014 in the form
of a series of text messages.
As to context,
the text messages
were sent from all four plaintiffs' personal cellphones to fellow
officers while Plaintiff Terrell and Plaintiff Koons were off-duty
when they sent their text messages.
at 2;
D.E.
#55-7 at 1; D.E.
[D.E. #55-8 at 1; D.E. #55-6
#55-5 at 1]. The text messages were
not published by plaintiffs to the public via news media or through
personal social media.
Plaintiffs were not acting in the course
of ordinary employment or pursuant to their official duties when
they
were
communicating
with
co-workers
via
text
messages.
Plaintiffs have introduced sufficient evidence for a reasonable
39
juror
to
conclude
that
plaintiffs
were
speaking
as
private
citizens, not as government employees.
The amount,
text messages
specific date of occurrence,
varied.
Plaintiff Terrell
and content of the
sent
twenty-three
text
messages on four days during the relevant period: Wednesday, August
6,
2014; Thursday, August 7,
Friday, August 15,
2014.
2014;
Sunday, August 10,
2014;
and
Plaintiff Conner sent twenty-five text
messages on five days during the relevant period: Friday, July 25,
2014; Wednesday, August 6, 2014; Thursday, August 7, 2014; Sunday,
August 10,
2014;
and Friday,
August 15,
2014.
Plaintiff Koons
sent sixteen text messages on four days during the relevant period:
Wednesday, August 6, 2014; Thursday, August 7, 2014; Friday, August
8,
2014;
and Friday, August 15,
Two of Plaintiff Terrell
2014.
and Plaintiff Conner's messages and three of Plaintiff Koons' were
related to their concerns with an article posted in which they
doubted
the
department
particular,
sufficiency
of
of public safety.
the
text
message
training
of
[D.E.
#58-3
thread
officers
at
refers
to
5,
within
6-7,
a
9].
news
the
In
article
regarding the department with its implied source of information
being Defendant Mitchell, that the department had all but two of
the twenty on staff certified in law enforcement,
emergency medical, and water rescue.
[D.E.
firefighting,
#58-4].
Plaintiff Cannon was the only plaintiff whose text messages
consisted solely of a matter of private interest,
40
as
Plaintiff
Cannon sent only two messages on Friday, July 25, 2014, neither of
which were related to a matter of public concern.
1].
Therefore,
[D.E. #58-3 at
Plaintiff Cannon's speech is not protected as it
is not upon a matter of public concern.
The text messages of Plaintiffs Terrell,
show
an
incredulity
regarding
statements
Conner,
made
in
and Koons
an
article
attributed to Defendant Mitchell, knowing them to be totally false.
[D.E. #58-3 at 4-12].
of the officers
Defendant Mitchell has admitted that none
at the time were "certified" in water rescue.
[D.E. #56-5 at 87-88].
of
the
article,
in
The discussion regarding the truthfulness
which
allegedly
untrue
statements
about
certification of officers were attributed to Defendant Mitchell,
was
an
expression
of
"'concern
about
the
inability
of
the
[Department] to carry out its vital public mission effectively.'"
Liverman v. City of Petersburg, 844 F.3d 400, 410 (citing Cromer,
88 F.3d at 1325-26).
As in Goldstein, where the speech "included
allegations that some emergency personnel lacked required training
and
certifications;
that
the
leadership
of
the
company
was
overlooking violations of safety regulations; and that the conduct
of crew members was jeopardizing the safety of the crew and of the
public,"
the
speech in the
instant
case
raised concerns
about
officer certification and whether Defendant Mitchell was speaking
truthfully regarding certification of officers.
Goldstein,
231
F.3d at 355. Thus, plaintiffs were speaking as citizens on a matter
41
of public concern, as the news article was already accessible to
the public via a common news source and the assertion that officers
were certified who were allegedly not certified came to bear on
the truthfulness, credibility, and strength of the Department to
"carry out its vital public mission effectively."
Liverman,
844
F.3d at 410.
The court may not divide the text message into parts of public
concern and of personal grievance, but must consider the messages
as
a
"single
entirety."
expression
Stroman,
of
speech
to
981 F.2d at 157.
be
considered
in
its
While there were messages
sent by Plaintiffs Terrell, Conner, and Koons that 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. Pickering-Connick Balancing Test
Following a finding of speech by a citizen on a matter of
public concern, "Pickering requires courts to balance 'the public
employee's
against
interest
the
in
speaking
government's
on
interest
matters
in
providing
efficient government through its employees.'"
585 (quoting McVey, 157 F.3d at 278).
occupies the
values,'
of
public
concern
effective
and
Crouse, 848 F.3d at
"[S]peech on public issues
'highest rung of the hierarchy of First Amendment
and is entitled to special protection."
42
Connick,
4 61
U.S. at 145 (internal citations omitted). Specifically, the Fourth
Circuit in Crouse observes "[f]or this inquiry, courts 'must take
into account the context of the employee's speech .
extent
to
agency.'"
278) .
which
it
Cr o us e ,
disrupts
the
operation
8 4 8 F . 3d at 5 8 5
and mission
( quoting McVey,
of
the
15 7 F . 3d at
"'The public's interest in hearing the employee's speech
also weighs in the balance.'"
Crouse,
84 8 F. 3d at 585
Brickey v. Hall, 828 F. 3d 298, 304 (4th Cir. 2016)).
at
and the
the
restricted
'paramilitary'
end
discipline
correspondingly denied."
(4th Cir.
1992)
of
the
is
spectrum
demanded,
"Police are
because
and
(quoting
they
freedom
must
are
be
Maciariello v. Sumner, 973 F.2d 295, 300
(citing Jurgensen v.
Fairfax Cty,
745 F.2d 868,
880 (4th Cir. 1984)).
The police force has a significant need for discipline and
adherence to the chain of command as a paramilitary organization,
but defendants have not shown the speech disrupted the working
environment, or that defendants reasonably anticipated disruption
of the work environment so as to "impai [r] discipline by superiors;
impai[r] harmony among co-workers; ha[ve] a detrimental impact on
close
working
relationships;
public employee's duties;
imped[e]
interfer[e]
the
performance
of
the
with the operation of the
agency; undermin[e] the mission of the agency; conflic[t] with the
responsibilities of the employee within the agency; or mak[e] use
of the authority and public accountability the employee's role
43
entails."
in
the
McVey, 157 F.3d at 278 (citing factors to be considered
balancing
(internal
test)
quotation
(citing
marks
Rankin,
omitted)).
483
The
U.S.
record
at
388-89)
contradicts
Defendant Mitchell's assertion that a complaint was filed or that
any officers were harassed,
the
text
messages
Mitchell
could
not
sexually harassed,
damaged
have
working
or otherwise felt
relationships.
reasonably
Defendant
anticipated
that
a
complainant's work was disrupted when there was no complainant. In
fact, the alleged "claimant" said he was not even offended by the
text messages. Additionally, the speech was made privately to coworkers, which lessens the interest of the agency in efficiency as
there
is
less
threat
to
the
agency
of
losing public
respect,
causing "departmental disruption." Cf. Grutzmacher v. Howard Cty,
No. 15-2066, 2017 WL 1049473, at *8 (unpublished)
(finding greater
efficiency interest for government agency when speech made public
as
greater
risk
of
"departmental
disruption").
Therefore,
the
interest of employees speaking as private citizens on a matter of
public concern outweighs the interest of the government because
the speech raises
"[s]er~ous
concerns regarding officer training
and supervision," which overcame the showing of the defendants as
to
government's
interest
in
preventing
Liverman, 844 F.3d at 411.
44
workplace
disruption.
d. Causal Relationship Between Speech and Termination
As to the third element of the McVey test, Plaintiffs Terrell,
Conner,
and
Koons
have
presented
sufficient
evidence
for
a
reasonable juror to find plaintiffs were fired for their speech.
[D. E.
#1-4
Terrell Termination Letter;
Letter; #1-3 Koons Termination Letter].
#1-2
Conner Termination
The causal relationship
between plaintiffs' speech and their termination is undisputed.
e. Qualified Immunity as to Defendants Peck and Mitchell
Defendants
Peck and Mitchell
assert
they
are
entitled to
qualified immunity in their individual capacities on plaintiffs'
claim under 42 U.S.C.
§
1983 for retaliatory discharge in violation
of their right to free speech under the United States Constitution.
r-'
"' [Q] ualified
liability for
immunity protects government officials
civil
damages
insofar as
their
conduct
'from
does
not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.'" Crouse, 848 F.3d at
583 (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)
Harlow v.
Fitzgerald,
457 U.S.
qualified immunity defense,
official violated a
that
the
right
was
challenged conduct.'"
731, 735 (2011)
800,
818
(1982))).
a plaintiff must show
"To defeat a
' ( 1)
statutory or constitutional right,
'clearly
Id.
established'
at
the
(quoting
time
that the
and
( 2)
of
the
(quoting Ashcroft v. al-Kidd, 563 U.S.
(internal citations omitted)).
"In order to hold
that a right is clearly established, a court does not need to find
45
'a case directly on point, but existing precedent must have placed
the statutory or constitutional question beyond debate.'"
(quoting Ashcroft,
563
U.S.
at
741.)
Id.
"The qualified immunity
inquiry depends on the official's 'perceptions at the time of the
incident in question.'"
167, 173 (4th Cir. 1994)
Case
law
from
the
Id.
(quoting Rowland v.
Perry,
41 F. 3d
(internal citations omitted)).
late
1980s
and
forward
establishes
af).
officer may not terminate an employee in violation of his First
Amendment right to free speech.
Rankin,
483 U.S. at 383
("It is
clearly established that a State may not discharge an employee on
a basis that infringes that employee's constitutionally protected
interest in freedom of speech.") ; See also Cromer, 8 8 F. 3d at 132 5.
To determine whether a
relevant
subtle,
inquiry
requires
right
a
is clearly established,
particularized
"the
balancing
that
is
difficult to apply and not yet well-defined.'"
Id.
at
1326 (quoting DiMeglio v. Haines, 45 F.3d 790, 806)
(4th Cir. 1995)
(internal citations omitted)). Applying this test to the facts and
circumstances of this case, a reasonable official in the position
of Defendants Peck and Mitchell would have known the plaintiffs'
First Amendment rights to voice their concerns about public safety,
a
matter
interests
of public
of
the
concern,
government
were
of
clearly established,
"discipline,
morale,
because
and
good
working relationships," were outweighed by the employee's interest
in communicating about a matter of public concern.
46
Id. at 1326-
27, 1329-31 (addressing racial discrimination as a matter of public
concern) .
Similarly, the Fourth Circuit in Ridpath v. Bd. of Governors
Marshall
because
Univ,
of
Amendment
447
the
F.3d
292
(4th
'sophisticated
questions,
'only
Cir.
2006),
balancing'
infrequently
observed
involved
will
it
in
be
"[a]nd
First
clearly
established that a public employee's speech on a matter of public
concern is constitutionally protected.'"
(quoting McVey,
157 F.3d at 277).
Ridpath, 447 F.3d at 320
The Fourth Circuit found in
Ridpath the defendants were not 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
established
Peck
and Mitchell
right
to
free
would
speech
have
and
known
that
of
the
Plai,ntiff
Conner, and Koons' termination violated that right.
clearly
Terrell,
Because there
was no violation of the constitutional rights of Plaintiff Cannon
as his speech was unprotected,
Defendants Peck and Mitchell are
entitled to qualified immunity as
Plaintiff Cannon.
47
to the
free
speech claim of
Therefore, Defendants Peck and Mitchell's motion for summary
judgment
as
to
Plaintiff
Cannon's
claim
of
42
U.S. C.
retaliatory discharge in violation of his right to free
under the United States Constitution is GRANTED.
§
1983
speech
Defendants Peck
and Mitchell's motion for summary judgment as to Plaintiff Terrell,
Conner, and Koons' claim of 42 U.S.C.
§
1983 retaliatory discharge
in violation of their right to free speech under the United States
Constitution is DENIED.
F. Violation of Procedural
Liberty Interest
Due
Process
by
Deprivation
of
Defendants Peck and Mitchell have moved for summary judgment
on plaintiffs'
claim under 42 U.S.C.
their
interest
liberty
under
the
1983 for deprivation of
§
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
Sciolino v. City of Newport News, Va.,
Cir. 2007)
1990)). A
employee's
480 F.3d 642,
discharge.'"
645-46 (4th
(quoting Johnson v. Morris, 903 F.2d 996, 999 (4th Cir.
§
1983 claim arising from such a public announcement
concerns the Fourteenth Amendment:
(1) liberty to engage in any of
the common occupations of life and (2) right to due process where
a person's good name, reputation, honor, or integrity is at stake
because of government action. Sciolino, 480 F.3d at 646 (internal
citations omitted).
48
For a claim under the Due Process Clause for violation of
this liberty interest, a plaintiff must show the charges against
him:
(1)
placed a stigma on his reputation;
by the employer;
(3) were made in conjunction with his termination
or demotion; and (4) were false. Id.
Med.
Sys. Corp.,
constitutional
rather
it
is
( 2) were made public
855 F.2d 167,
harm,
the
172 n.5
of
(4th Cir.
'is
however,
'denial
(citing Stone v. Univ. of Md.
the
a
not
hearing
1988)). "[T]he
defamation'
at which the
itself;
dismissed
employee has an opportunity to refute the public charge.'" Id. at
649 (quoting Cox v. N. Va. Transp. Comm'n, 551 F.2d 555, 558
Cir.
1976). "Indeed,
decades earlier,
in its decision in Bd.
(4th
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[
or immorality'
course of an injury such as failure to rehire."
lodged in the
Ridpath, 447 F.3d
at 313-14 (quoting Bd. of Regents v. Roth, 408 U.S. 564, 573 (1972)
(internal quotation marks omitted)).
Finally, the Fourth Circuit
reiterated the finding of the Supreme Court, "[f]undamental to due
process is an opportunity to be heard be granted at a meaningful time.'"
'an opportunity which must
Sciolino,
4 8 0 F. 3d at
653
(quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
In the instant case,
Defendants Peck and Mitchell move for
summary judgment on plaintiffs' procedural due process claim for
49
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 plaintiffs; plaintiffs did not clearly request a "name clearing
hearing"; plaintiffs did not contest the accuracy of the underlying
allegations; defendants did not voluntarily disclose plaintiffs'
termination
processes
letters;
to
plaintiffs
contest
the
had
accuracy of
alternative
the
state
termination
law
letters;
plaintiffs have not been foreclosed from future public employment;
and Defendant Peck is entitled to qualified immunity.
[D.E. #47
at 1; D.E. #48 at 2].
a. Charges Placed a Stigma on Plaintiff's Reputation
First,
protected
"[t] he
liberty
type
of
interest
communication that
implies
'the
gives
existence
rise
of
to
a
serious
Ridpath,
character defects such as dishonesty or immorality.'"
447 F.3d at 308 (quoting Robertson v. Rogers, 679 F.2d 1090, 1092
(4th
Cir.
1982)
communication
communication
is
(internal
citations
stigmatizing
"imposed
on
depends
[the
plaintiff]
omitted)).
whether
upon
a
Whether
stigma
or
the
other
disability that foreclosed his freedom to take advantage of other
employment opportunities."
reflects
the
Defendants
statements
Peck
and
Roth,
placed
Mitchell
50
in
408
the
U.S.
at
573.
termination
concluded
that
The
record
letters
by
plaintiffs'
communications
were
in
violation
of
a
varying
combination
of
Village policies. See supra, Statement of the Facts at 4.
Allegations
of
"harassment,"
"sexual
harassment,"
and
"detrimental personal conduct" fall within the conduct that could
be classified as "serious character defects" and "immorality" as
provided by the Fourth Circuit in Ridpath.
308
(quoting Robertson v.
1982)
Rogers,
Ridpath,
679 F.2d 1090,
447 F.3d at
1092
(4th Cir.
(internal citations omitted)).
Defendants
Peck
and
Mitchell
assert
plaintiffs
were
not
foreclosed from employment opportunities as Plaintiffs Terrell,
Conner,
However,
and Koons
are
currently employed.
[D.E.
#48
at
21].
there is sufficient evidence showing these allegations
"foreclosed [their] freedom to take advantage of other employment
(
opportunities."
Terrel~
Roth,
408 U.S.
at 573.
For example,
Plaintiff
was only able to secure a part-time position at Oak Island
Fire and Rescue and later a full-time position at less than his
compensation with Village.
2-3].
Plaintiff Conner was
[D.E. #58-8 Terrell Interrogatories at
able
to
secure
employment with Oak
Island Fire Department at a lower rate of pay, and without any law
enforcement
duties,
after
an
extensive
interview
process,
and
relying on the personal knowledge and recommendations of persons
in that department.
[D.E. #58-6 Conner Interrogatories at 2-3].
Plaintiff Koons was unemployed for approximately one year after
his
termination
at
Village
during
51
which
time
he
applied
unsuccessfully
with
four
police
departments
and
one
sheriff's
office, and finally on his second application obtained employment
with the Town of Shallotte Police Department.
Interrogatories at 2-3].
employment
entities
after
he
including
offices.
[D.E.
#58-7 Koons
Plaintiff Cannon was unable to secure
applied
four
unsuccessfully
police
departments
with
and
ten
two
separate
sheriff's
[D.E. #58-5 Cannon Interrogatories at 2-3].
The record contains sufficient evidence of stigma.
b. Charges Were Made Public by the Employer
As to the second element, plaintiff must show "a likelihood
that prospective employers (i.e., employers to whom he will apply)
or the public at large will inspect the file."
at 650.
Sciolino, 480 F.3d
In the instant case, it is undisputed the charges in the
termination letters and Forms F-5B were produced to news media and
the Criminal Justice Education and Training Standards Commission,
respectively.
public
at
Obviously,
large
and
it
disclosure
is
to
the media
likely prospective
informs
employers
the
would
inspect the Forms F-5B in the course of determining plaintiffs'
fitness for employment.
See Scott v. Town of Taylortown, 2014 WL
4114313 *6 (M.D.N.C. 2014)
(unpublished). Additionally, Defendant
Peck sent an email to all Village employees and part-time staff of
the
department
of
public
safety
informing
them that
the
five
officers were terminated for violating Village policies related to
harassment,
sexual
harassment,
discourteous
52
treatment
of other
employees,
and
inappropriate
electronic
communications
without
making any distinctions as to which officers were terminated for
violating
particular
policies.
[D. E.
#59-4
Peck
Email
to
Employees] .
Defendants Peck and Mitchell assert that disclosure was not
made
voluntarily
as
Defendant
Peck
and
Human
Resources
felt
respectively obligated to give the termination letter in response
to media requests pursuant to the North Carolina Public Records
Act
and
N.C.G.S.
160A-168(b) (11).
However,
this
argument
is
misplaced as there is no requirement that the "making public" be
"voluntary."
Additionally, Defendant Peck's email to all Village
employees and part-time staff of the department of public safety
was
voluntarily
sent
without
any
request
for
the
information.
Therefore, the court finds sufficient evidence of element two to
survive summary judgment.
c. Charges
Were
Termination
Made
in
Conjunction
with
Plaintiff's
Next, plaintiff must show "a public employer's stigmatizing
remarks
[were]
demotion.'"
172 n. 5).
'made in the course of a discharge or significant
Ridpath, 447 F.3d at 309 (quoting Stone, 855 F.2d at
The charges in the instant case were stated explicitly
in the termination letters.
September 8,
2014,
[D.E.
#1-1;
#1-2;
#1-3;
#1-4].
Defendant Mitchell prepared the Forms
On
F-:-5B,
Affidavit of Separation, stating as the reason for separation and
53
investigation
that
"complaint
a
was
filed,"
regarding
"inappropriate electronic communications that created a hostile
work environment in violation of Village policy."
#56-7;
#56-8;
stigmatizing
#56-9].
remarks
Therefore,
were
made
plaintiffs
in
the
[D.E.
have
course
of
#56-6;
shown
the
plaintiffs'
discharge.
d. Charges Were False
"There
can
be
no
deprivation
of
liberty
Ridpath,
stigmatizing charges at issue are false."
312
(citing Stone,
855 F.2d at 172 n.
5)
unless
the
447 F.3d at
Defendant Peck argues
the charges were not false, as plaintiffs did not dispute sending
the text messages.
Codd v. Velger,
[D.E.
429 U.S.
#48 at 19-20].
624,
627-28
Defendant Peck cites
(1977), arguing plaintiffs,
like plaintiff in Codd, only dispute the characterization of their
conduct, not the conduct itself.
Codd, 429 U.S. at 628.
However,
here the falsity alleged is not the falsity of the characterization
of the conduct or speech of plaintiffs, but rather the falsity of
the reasons for terminating plaintiffs as listed in the termination
letters, email, and Forms F-5B.
[Compl.
~~
54, 72, 77].
In Codd,
the liberty interest claim failed because the plaintiff did not
dispute the "substantial accuracy of the report."
at
628.
However,
substantial
letters,
in
in the
accuracy
the
of
email,
instant
case,
each
Forms
plaintiffs
allegation
and
54
Codd, 429 U.S.
F~5B
in
on
their
the
contest the
termination
grounds
the
allegations are inconsistent with Village policy defin{tions and
testimony of alleged "complainant."
Terrell Dep.
at 34-35;
[D. E.
#55-2 Conner Dep.
#55 at 2 4-2 5;
at 15-16;
#55-4
#55-3 Koons
Dep. at 55; #55-1 Cannon Dep. at 30-31].
As discussed supra, there is a factual dispute as to whether
any
"complaint"
was
ever
filed
and
the
reasons
given
for
termination by Defendant Peck in his deposition are different from
the reasons
in the termination letters,
email,
and Forms F-5B.
Plaintiffs have shown sufficient evidence for a reasonable juror
to find the allegations against plaintiffs were false.
e. Qualified Immunity
Defendant Peck asserts he is entitled to qualified immunity
in his individual capacity on plaintiffs' 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 for
immunity protects government officials
civil damages
insofar as
their
'from
conduct does
not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.'" Crouse, 848 F.3d at
583 (quoting Pearson, 555 U.S. at 231 (quoting Harlow, 457 U.S. at
818)).
"To defeat a qualified immunity defense, a plaintiff must
show '(1) that the official violated a statutory or constitutional
right,
and
(2)
that the right was
time of the challenged conduct.'"
55
'clearly established'
Id.
at the
(quoting Ashcroft, 563 U.S.
at 735
(internal citations omitted)).
right is clearly established,
"In order to hold that a
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. '"
(quoting Ashcroft,
563 U.S.
at
741.)
"The qualified
Id.
immunity
inquiry depends on the official's 'perceptions at the time of the
incident in question. '"
Id.
(quoting Rowland,
41
F. 3d at 173
(internal citations omitted)).
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.
4 4 7 F. 3d at 313.
their
conduct
"Thus,
violates
circumstances.'"
Id.
'officials can still be on notice that
established
law
even
in
novel
factual
(quoting Hope v. Pelzer, 536 U.S. 730, 741
"The 'salient question'
(2002).
Ridpath,
is whether the state of the law
at the time of the events in question gave the officials
'fair
warning' that their conduct was unconstitutional." Id.
In the instant case, a reasonable official in the position of
Defendant
Peck should have
known that
due process
rights were
clearly established, as 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[]
in the course of an injury such as
56
or immorality'
lodged
[adverse employment action]."
Id.
at 313-14
the
(quoting Roth,
violated
right
was
408 U.S.
clearly
at 573.
established
official would have known of this right,
entitled
to
qualified
immunity
as
to
Considering that
and
a
reasonable
Defendant Peck is not
plaintiffs'
claims
for
deprivation of liberty interest in violation of the Due Process
Clause of the United States Constitution.
f. Name-Clearing Hearing and Defendant Mitchells' Involvement
While
defendants
argue
name-clearing hearing was
plaintiffs'
not
clear,
initial
[D. E.
request
#4 8 at
for
22-23],
a
the
clarity of a request for a name-clearing hearing is not required.
"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, e.g., future employers to
whom
the
employee
Therefore,
Sciolino,
a
will
apply."
name-clearing
hearing
Sciolino,
was
480
already
F.3d
at
required
650.
under
and the clarity of the request after dissemination of
false, stigmatizing charges is not dispositive.
defendants'
offer
September 30, 2016,
for
a
[D. E.
post-termination
Additionally, the
hearing
on
or
about
#69 Defendant's Suggestion of Mootness
(Partial) at 1], was insufficient for a name-clearing hearing under
Sciolino.
"An opportunity to clear your name after it has been
ruined by dissemination of
'meaningful.'"
false,
stigmatizing
Sciolino, 480 F.3d at 653.
57
charges
is
not
Additionally,
Defendant
Mitchell
asserts
she
was
not
responsible for making any decisions about what sort of appeal or
grievance process would be provided to plaintiffs, and as a result,
plaintiffs' due process claim for deprivation of liberty interest
should be dismissed against her.
However, plaintiffs have provided
evidence of involvement as Defendant Mitchell drafted each Form F58;
chose language for each termination letter in collaboration
with Defendant
Peck;
assisted in compiling termination meeting
notes prohibiting a review if requested
Meeting
Notes;
D.E.
#59-1
recommended termination to
"complaint" had been filed.
Ellison
Defendant
[D.E.
Williams
#59-8 Termination
Dep.
at
49];
Peck on the basis
and
that
a
Defendant Mitchell's assertion that
plaintiffs have not shown personal involvement is without basis in
the facts of this case.
Defendants Peck and Mitchell also argue plaintiffs' claim for
violation of due process by deprivation of liberty interest should
be dismissed because there are available adequate state remedies.
While available adequate state remedies preclude claims under the
North Carolina 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, Defendants Peck and Mitchell's motions for summary
judgment as to plaintiffs' claim of 42 U.S.C.
58
§
1983 deprivation
of liberty interest
in violation of
Due
Process
Clause of the
United States Constitution is DENIED.
CONCLUSION
For
Argument
the
in
plaintiffs'
Length,
foregoing
Opposition
reasons,
to
plaintiffs'
D. E.
#38
and
#44,
Motion
for
[D. E.
Oral
#52],
and
Motion for Extension of Time to Respond and Extend
[D. E.
#66],
Summary Judgment,
are DENIED.
[D.E.
#38],
Defendant Mitchell's Motion for
is GRANTED in part and DENIED in
part. Defendants Peck and Village's Motion for Summary Judgment,
[D.E. #44], is GRANTED in part and DENIED in part.
Remaining before the court are the following claims:
l. Claims One and Four 8
Constitutionally
-
42 U.S.C.
Guaranteed
§
1983 Violation of
Liberty
Interest
in
Violation of Procedural Due Process Clause as against
Defendants
Peck
and
Mitchell,
in
their
individual
capacities;
2. Claim Two - Plaintiff Terrell, Conner, and Koons'
U.S.C.
§
1983
Claim
of
Retaliatory
Discharge
42
in
Violation of First Amendment Right to Free Speech as
against
Defendants
Peck
and
Mitchell,
in
their
individual capacities;
8
Plaintiffs' Complaint, [D. E. #1], pleads two separate claims for § 1983
violation of liberty interest and procedural due process under the United States
Constitution.
However, as there are no property interests in plaintiffs'
employment, it is alleged deprivation of their liberty interests that is the
subject of their procedural due process claims.
59
3. Claim Three -
Plaintiff Conner's Claim of Breach of
Contract as against Village;
4. Claim
Five
Mitchell,
Libel
in
their
as
against
individual
Defendants
capacities,
Peck,
and
as
against Village;
5. Claim
Six
Violation
of
the
North
Carolina
Constitutional Right to Privacy as against Village;
and
6. Claim Seven - Wrongful Discharge as against Village.
'2-~
This~
day of June 2017.
Howard
Senior United States District Judge
At Greenville, NC
#35
60
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