United States District Court, E.D. North Carolina, Southern Division
MALCOLM J. HOWARD, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on Defendant Village's Motion
for Summary Judgment, [D.E. #41]; Defendants Peck and
Mitchell's Motion for Summary Judgment, [D.E. #42];
Plaintiff's Motion for Extension of Time to Complete
Discovery, [D.E. #37]; Plaintiff's Motion for Oral
Argument in Opposition regarding D.E. #41 and #42, [D.E.
#48]; and Plaintiff's Motion for Extension of Time to
Respond and Length of Response, [D.E. #62]. Plaintiff has
responded to defendants' Motions for. Summary Judgment,
[D.E. #47], and defendants have replied to plaintiff's
response [D.E. #50] . The time for further filing has
expired. This matter is ripe for adjudication.
filed a complaint on October 7, 2014, alleging seven claims
for relief arising from his termination as a police officer
employed by the Village of Bald Head Island
("Village"). The court issued an order on August
12, 2015, [D.E. #18], dismissing plaintiff's claims in
part. Plaintiff filed an Amended Complaint with
leave of court ' on November 18, 2015, [D.E. #28], adding
Calvin R. Peck, Jr., and Caroline Mitchell in their
individual capacities as parties to the action.. Defendants
filed a Partial Motion to Dismiss and Motion for Judgment on
the Pleadings on December 4, 2015, [D.E. #29]. The court
entered an order on September 14, 2016, [D.E. #51], granting
Defendants Peck and Mitchell's Partial Motion to Dismiss
and partially granting Village's Partial Motion for
Judgment on the Pleadings.
Village .filed a Motion for Summary Judgment on June 10,
2016, [D.E. #41], and Defendants Peck and Mitchell filed a
Motion for Summary Judgment on June 10, 2016, [D.E. . #42].
Plaintiff responded in opposition to defendants' Motions
for Summary Judgment on July 8, 2016, [D.E. #47]. Defendants
Village, Peck and Mitchell, jointly replied to
plaintiff's response on July 26, 2016, [D.E. #50] . After
entry of the court's order, [D.E. #51], plaintiff filed a
supplemental response on October 4, 2016, [D.E. #53]', to
Defendants' Motions for Summary Judgment. Pursuant to the
court's order, [D.E. #51], defendants filed supplemental
briefings regarding available adequate state remedies on
November. 10, 2016, [D.E. #58], and plaintiff responded on
November 29, 2016, [D.E. #59]. Plaintiff filed a Notice of
Subsequently Decided Controlling Authority on February 22,
2017, [D.E. #61], and an accompanying Motion for Extension of
Time to Respond and Length of Response, [D.E. #62], on March
3, 2017. Defendants filed two Notices of Subsequently Decided
Controlling Authority, [D.E. #64 and D.E. #65] on March 6,
2017, and March 12, 2017, respectively.
was a public safety officer 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, although he has since -
resigned, and Defendant Mitchell remains the Director of
Public Safety for Defendant Village at all relevant times.
August 28, 2014, plaintiff was summoned to a meeting with
Defendants Peck and Mitchell. At this meeting, Defendants
Peck and Mitchell notified plaintiff- -of his immediate
termination from employment as a public safety officer at
Defendant Village. Plaintiff was provided a letter of
termination signed by Defendant Peck informing him his
termination was based on violations of Defendant Village
policies "related to harassment and sexual harassment,
(Article . V: Conditions of Employment and Article IX),
discourteous . treatment of other employees, (Article IX),
and inappropriate electronic communications (Article
IX)." Plaintiff was told his termination was a
"final decision" and was further informed the
factual basis for these alleged policy violations was
developed. from a series of text messages exchanged between
him and other public safety officers employed by Defendant
Village during the period. from July 25, 2014. to August J.5,
2014. The relevant text message exchange involving plaintiff
occurred on two days as follows:
Wednesday, August 6, 2014
Plaintiff: You got to read the state; port pilot piece on
Jeff Sypole: . Where do I find it?
Plaintiff: 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?
Plaintiff: Department of public safety
Plaintiff: Us dimwit
Dj Koons: What does its day [sic]
DJ Koons: Sau [sic]
12526227939: I'm new, I'm new
Plaintiff: You can't get it online. Unless you are a
13309903780: 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?
13309903780: I like how were [sic] worried about sending
people to county check- points but not worried that people
who claim to be ems can't take a blood pressure. Or not
worried about doing first in engine drills or even sending
guys who have no real fire experience at least to a
controlled training burn.
Nick 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.
Nick Terrell: [Expletive] it I will call rich burns
Jeff Sypole: [Expletive] it I quit.
Plaintiff: [Expletive]. I'm getting good at this
Jeff Sypole: Take pictures of it and send them
Plaintiff: Caroline says all but two staff are certified in
fire law SMS [sic] and water
Nick Terrell: Send the link
Nick Terrell: Technologically retarded
Jeff-Sypole: I can think of at least 4 people not being all
3, her being one, a captain is one, and 2 staff members. And
if you count, seasonal that makes ---- 8. Plus add in the
fact .that they are short at least 2 officers. As Herbie
said, fear and lies
Jeff Sypole: Actually more... Mo, Sam, Courtney, James
hunter, Caroline, Paul and DJ are all short at least 1 of the
12526227939: Maybe she just can't count
Plaintiff: What makes the statement truly awesome is that
[sic] in [sic] the picture they use for the article. In the
picture: Sam, Courtney, Paul, James, Scott, and Matt
Jeff Sypole: Maybe she is going to Colorado for a math class,
or maybe they are just complete liars
Jeff Sypole: [Image of animal with following words] KNOCK
KNOCK HERE COMES THE COCK
13309903780: That looks like Dj [sic] with a five o clock
Dj Koons: In Colorado u [sic] do not need certs u [sic] do
what ever [sic] u [sic] want just like bald head [sic]
Plaintiff: I wish the water rescue class I took was a
certification class someday I will have all four certs
Dj Koons: Hey now I am [sic] taller than-that lol .
Nick Terrell: New water rescue gear, not shown but there will
be cheetah print also! ! !
Nick Terrell: [image of Speedo-type swimwear]
Dj Koons: [Expletive] mo already has these
12526227939: You guys can try mine on so you'll get the
13309903780: Sam has em [sic] to 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
Dj Koons: Do u [sic] have extra small
12526227939:- It's short but at least it's skinny too
Jeff Sypole: I don't think mo's will fit well, too
small in the front and too big in the-rear
Jef Sypole: I'll have to wear mo's backwards "
13309903780: He does have a gorgeous [expletive] though.
12526227939: You [expletive]
12526227939: You [expletive],
Plaintiff: The room startin to spin real fast cuz of the
Jeff Sypole: Then leave and it will stop
13309903780: Ohhh burn.
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 ...