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Cannon v. Village of Bald Head Island

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

June 22, 2017

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

         This 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 adjudication.


         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.[1]

         Now 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.


         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 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].

         All 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].

         Following 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 follows:

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 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 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] [g]rooming himself[.]
Sam Prof fit: And Jesse only does it to show off for the same sex.
Jeff Sypole: At least I only have 2 more weeks of list[en]ing to this:)
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 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]
Plaintiff Koons: Sau [sic][.]
12526227939: I'm new, I'mnew[.]
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 getting good at this twittering[.]
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]
Plaintiff Conner: That looks like Dj [sic] with a five o 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 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 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 but at least it's skinny 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 have a gorgeous [expletive] though.
12526227939: Hahaha
12526227939: You [expletive][.]
12526227939: You ...

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