United States District Court, E.D. North Carolina, Southern Division
THOMAS CANNON, JESSE CONNER, DONALD KOONS, and NICHOLAS TERRELL, Plaintiffs,
VILLAGE OF BALD HEAD ISLAND, NORTH CAROLINA, CALVIN R. PECK, JR., in his individual capacity, and CAROLINE MITCHELL, in her individual capacity, Defendants.
Malcolm J. Howard Senior United States District Judge
matter is before the court on Defendant Mitchell's Motion
for Summary Judgment, [D.E. #38]; Defendants Peck and
Village's Motion for Summary Judgment, [D.E. #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
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
before the court are defendants' motions for summary
judgment, plaintiffs' response, each parties' notice
of subsequently decided authority, [D.E. #65, #68], as well
as plaintiffs' motion for oral argument and motion for
extension of time and length of response.
OF FACTS 
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.
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 summoned Plaintiffs Conner and Koons, officers
of public safety, to a meeting with Defendants Peck and
Mitchell. [D.E. #55-2 Conner Dep. at 35; D.E. #55-3 Koons
Dep. at 28-29]. At both meetings, Defendants Peck and
Mitchell notified plaintiffs of their immediate termination
from employment as lieutenant and public safety officers,
respectively, at Defendant Village. 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. #55-1
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." [D.E. #55-8 Aff. Terrell at 1;
D.E. #55-4 Terrell Dep. at 30; D.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].
four of plaintiffs' termination letters listed violations
of Village policies related "to discourteous treatment
of other employees, (Article IX), and inappropriate
electronic communications (Article IX)." [D.E. #1-4
Termination Ltr Terrell at 1; D.E. #1-2 Termination Ltr
Conner at 1; D.E. #1-3 Termination Ltr Koons at 1; D.E. #1-1
Termination Ltr Cannon at 1]. Termination letters for.
Plaintiffs Terrell, Koons, and Cannon stated termination was
also based on violations of Village policies related to
harassment "(Article V: Conditions of Employment and
Article IX)." [D.E. #1-4; D.E. #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; D.E. #1-3]. 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].
the listing of policy violations, each letter stated,
"The egregious nature of these communications and the
flagrant violation of policy thus constitutes detrimental
personal conduct and is thereby grounds for immediate
termination." [D.E. #1-1; #1-2; #1-3; and #1-4] . The
text message exchange at issue occurred over six days as
Friday, July 25, 2014
Plaintiff Cannon: Sammy getting his hands dirty! Of course
there was a young female involved.
Plaintiff Cannon: [image containing person working on a 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.
Sam Prof fit: Once again [, ] while I am doing all the 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 [sic] of the
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
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 8am-1130 am and 2pm-7pm[.]
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 ifv he has to[, ] but he's
like a [expletive] wet cat for the rest of the day [sic]
Sam Prof fit: And Jesse only does it to show off for the same
Jeff Sypole: At least I only have 2 more weeks of list[en]ing
Jeff Sypole: [image of man containing the following words]
"YOU WANT U.S. TO THINK NOTHING OF YOU GOING TO COLORADO
FOR CPR TRAINING? YOU JUST WENT FULL RETARD.]
Wednesday, August 6, 2014
Plaintiff Terrell: Hahaha Plaintiff Koons: Good one[.]
Herbert Bryant: You got to read the state port pilot piece on
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]
Plaintiff Koons: Sau [sic][.]
12526227939: I'm new, I'mnew[.]
Herbert Bryant: You can't get it online. Unless you are a
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 getting good at this
Jeff Sypole: Take pictures of it and send them[.]
Herbert Bryant: Caroline says all but two staff are certified
in fire law SMS [sic] and water [.]
Herbert Bryant: SMS=SMS[.]
Plaintiff Terrell: Send the link[.]
Herbert Bryant: [Expletive].
Herbert Bryant: Ems[.]
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 [sic] with a five o
Plaintiff Koons: In Colorado u [sic] do not need certs u
[sic] do what ever [sic] u [sic] want just like bald head
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 lam [sic] taller than that lol [.]
Plaintiff Terrell: New water rescue gear, not shown but there
will be cheetah print also!!!
Plaintiff Terrell: [image of Speedo-type swimwear]
Plaintiff Koons: [Expletive] [M]o already has these[.]
12526227939: You guys can try mine on so you'll get the
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
Plaintiff Koons: Do u [sic] have extra small[?]
12526227939: It's short but at least it's skinny
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 have a gorgeous [expletive] though.
12526227939: You [expletive][.]
12526227939: You ...