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Bryant v. Village of Bald Head Island

United States District Court, E.D. North Carolina, Southern Division

March 30, 2017

HERBERT BRYANT, Plaintiff,
v.
VILLAGE OF BALD HEAD ISLAND, NORTH CAROLINA, CALVIN R. PECK, JR., in his individual capacity, and CAROLINE MITCHELL, in her individual capacity, Defendants.

          ORDER

          MALCOLM J. HOWARD, SENIOR UNITED STATES DISTRICT JUDGE

         This 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.

         PROCEDURAL HISTORY

         Plaintiff filed a complaint on October 7, 2014, alleging seven claims for relief arising from his termination as a police officer employed by the Village of Bald Head Island ("Village"). The court issued an order on August 12, 2015, [D.E. #18], dismissing plaintiff's claims in part.[1] 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.[2]

         Defendant 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.

         STATEMENT OF FACTS[3]

         Plaintiff 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.

         On 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[4]
Plaintiff: You got to read the state; port pilot piece on dps.
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 member.
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 twittering
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
Plaintiff: SMS=SMS
Nick Terrell: Send the link
Plaintiff: [Expletive].
Plaintiff: Ems
Nick Terrell: Technologically retarded
Jeff-Sypole: I can think of at least 4 people not being all 3, her being one, a captain is one, and 2 staff members. And if you count, seasonal that makes ---- 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 3
12526227939: Maybe she just can't count
Plaintiff: What makes the statement truly awesome is that [sic] in [sic] the picture they use for the article. In the picture: Sam, Courtney, Paul, James, Scott, and Matt
Jeff Sypole: Maybe she is going to Colorado for a math class, or maybe they are just complete liars
Jeff Sypole: [Image of animal with following words] KNOCK KNOCK HERE COMES THE COCK
13309903780: That looks like Dj [sic] with a five o clock shadow.
Dj Koons: In Colorado u [sic] do not need certs u [sic] do what ever [sic] u [sic] want just like bald head [sic]
Plaintiff: I wish the water rescue class I took was a certification class someday I will have all four certs
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 right size.
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 ball.
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: Hahaha
12526227939: You [expletive]
12526227939: You [expletive],
12526227939: Hahaha
Plaintiff: The room startin to spin real fast cuz of the gayness
Jeff Sypole: Then leave and it will stop
13309903780: Ohhh burn.
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 ...

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