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