THOMAS M. CANNON; JESSE M. CONNER; DONALD M. KOONS; NICHOLAS M. TERRELL, Plaintiffs - Appellees,
VILLAGE OF BALD HEAD ISLAND, NORTH CAROLINA; CALVIN R. PECK, JR., in his individual capacity; CAROLINE MITCHELL, in her individual capacity, Defendants - Appellants.
Argued: February 28, 2018
from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Malcolm J. Howard,
Senior District Judge. (7:15-cv-00187-H)
Norwood Pitt Blanchard, III, CROSSLEY MCINTOSH COLLIER HANLEY
& EDES PLLC, Wilmington, North Carolina, for Appellants.
Bradley Andrew Coxe, HODGES COXE POTTER & PHILLIPS, LLP,
Wilmington, North Carolina, for Appellees.
B. Potter, HODGES COXE POTTER & PHILLIPS, LLP,
Wilmington, North Carolina, for Appellees.
DUNCAN, AGEE, and WYNN, Circuit Judges.
August 2014, the Village of Bald Head Island, N.C.
("Bald Head"), fired Plaintiffs Thomas Cannon,
Jesse Conner, Donald Koons, and Nicholas Terrell
(collectively, the "Officers")-who worked for Bald
Head's Department of Public Safety (the
"Department")-for the content of messages the
Officers sent in a private text-message chain. Approximately
one year later, the Officers filed suit against Bald Head,
its town manager Calvin Peck ("Peck"), and its
director of public safety Dr. Caroline Mitchell
("Mitchell, " and collectively with Bald Head and
Peck, "Defendants"), asserting that the
terminations violated their First Amendment rights, and that
subsequent public disclosures by Bald Head explaining the
bases for the terminations constituted defamation and
violated the Officers' Fourteenth Amendment rights to
procedural due process. After the parties completed
discovery, Peck and Mitchell, who were responsible for the
firings and subsequent disclosures, unsuccessfully moved to
dismiss the Officers' constitutional claims on the basis
of qualified immunity.
reasons that follow, we affirm the district court's
denial of qualified immunity regarding the alleged due
process violations. However, we conclude that the district
court erred in holding that Peck and Mitchell were not
entitled to qualified immunity as to the Officers' First
Amendment retaliation claims. In particular, the
Officers' evidence does not establish beyond debate that
the Officers' interest in speaking freely outweighed the
Department's interest in maintaining order and
discipline. Accordingly, we affirm in part, reverse in part,
and remand the case to the district court for further
proceedings consistent with this opinion.
Department combines Bald Head's firefighting, paramedic,
and police departments in a single multi-disciplinary group
of emergency personnel. From July 25 to August 15, 2014, the
Officers engaged in a group text-message chain with several
other members of the Department. The group text messages
discussed a wide variety of topics. A number of messages
concerned a local news article, which was published on August
6, in which Mitchell reportedly said that all but two
officers in the Department were certified to perform the four
emergency services for which the Department is responsible:
firefighting, emergency medicine, water rescue, and law
enforcement. Many of the Officers questioned the veracity of
that claim, identifying a number of Department employees who
lacked one or more of the certifications. And several
messages expressed concern that the Department was providing
inadequate training to public safety officers. See
J.A. 322 (Officer Conner expressing concern that staff is not
"doing first in engine drills"); id.
(Officer Terrell expressing concern that Department official
responsible for training only sends officers to law
enforcement training, not the training required for the other
services provided by the Department).
in the chain also questioned certain officers' competence
to perform various emergency services. For example, Officer
Conner expressed concern about the Department's lack of
"worr[y] that people who claim to be ems can't take
a blood pressure" or that employees engaged in
firefighting "have no real fire experience" and had
not attended "a controlled training burn."
Id. In addition to the messages questioning
Mitchell's representations regarding the Department's
training, several other messages questioned the
Department's leadership. For example, Officer Terrell
questioned the decision to promote another officer, Robin
Wallace, to lieutenant, suggesting that Wallace lacked the
ability to form a "plan of attack" to respond to a
fire, medical emergency, or water rescue call. J.A. 342.
number of the text messages also discussed non-safety-related
topics, including workout tips, sexual gibes, and former
coworkers. Several messages joked about hypothetical
situations in "Colorado, " which referred to
Mitchell, who previously lived in Colorado. J.A. 324-25. And
one message, which was sent by an officer who is not a party
to this action, included an image of a police officer with
the meme: "Who am I? I'm the dude, playing a dude,
disguised as another dude"-a reference to the movie
Tropic Thunder. J.A. 340. That message elicited no
response from anyone else on the text-message chain.
learned of the text-message chain during a meeting with
another public safety officer, Nick Hiatt
("Hiatt"), who also participated in the chain.
There is a dispute of fact as to why Hiatt disclosed the
text-message chain to Mitchell. According to Mitchell, Hiatt
showed her the text messages while lodging a complaint that
the Officers were acting unprofessionally and engaging in
"harass[ment]." J.A. 209-10. By contrast, Hiatt
averred that he "never made a complaint about the text
messages, " J.A. 307, and that he "did not indicate
to . . . Mitchell that [he] was offended, sexually harassed,
[or] upset, or that [he] felt that the work environment was
hostile or offensive, " J.A. 304. Rather, Hiatt further
averred that he showed Mitchell the text messages in order to
demonstrate that "management and the rank and file
employees and public safety officers did not have a good
relationship; did not have good communication; did not have
clear understandings of job duties and responsibilities; did
not all have proper training; and [that he thought] this
affected the public's safety." J.A. 303.
obtaining a copy of the text-message chain, Mitchell
consulted other members of the Department's command
staff. Several members of the command staff expressed concern
that certain messages in the chain seemed to derogatorily
joke about Mitchell's sexual orientation, most notably
the Tropic Thunder message. After receiving the
command staff's input, Mitchell showed Peck the
text-message chain and recommended terminating the Officers
and one of their coworkers.
agreed with Mitchell's recommendation to terminate the
officers, largely because Peck "felt that the
[text-message] conversation displayed a clear tone of
hostility and insubordination towards . . . Mitchell and the
other members of the command staff." J.A. 61; see
also J.A. 164 ("[The Officers] were terminated
because they were jerks. . . . [T]hey were disrespectful . .
. of the chain of command."). Mitchell testified that
she recommended terminating the Officers solely because she
did not "want [the Officers] to be part of our
[Department's] team." J.A. 220. She further
testified that she did not make any other specific
recommendation as to why the Officers should be fired.
Peck and Mitchell decided to terminate the Officers, Bald
Head's human resources director, Karen Williams, provided
Peck and Mitchell with potentially relevant sections of Bald
Head's personnel policy. Williams testified that Peck and
Mitchell then "picked which [provisions in the personnel
policy] applied to which officers." J.A. 403. After Peck
and Mitchell "[c]onveyed those [choices] to [Williams],
[Williams] drafted the [termination] letters based on [Peck
and Mitchell's] direction." Id.
August 28, 2014, Peck, Mitchell, and another member of the
Department's command staff met with Officers Conner,
Koons, and Terrell, and informed each Officer that he had
been terminated by an immediate, final decision for
participating in the text-message chain. Officer Cannon was
unable to attend an in-person meeting, and therefore was
fired by phone instead.
the meetings, the Department provided each Officer with a
termination letter listing various Bald Head policy
violations. Each officer was terminated for
"discourteous treatment of other employees" and
"inappropriate electronic communications." J.A.
147-50. Officers Cannon, Koons, and Terrell also were
terminated for "harassment." J.A. 147, 149, 150.
And Officers Koons and Terrell were terminated for
"sexual harassment" as well. J.A. 149-50. Each
letter additionally indicated that the Officers' actions
qualified as "detrimental personal conduct, " which
"is . . . grounds for immediate termination" under
Bald Head policy. J.A. 147-50. The day after the
Officers' termination, local media requested copies of
the letters, which Williams turned over because she believed
doing so was necessary to comply with North Carolina's
Public Records Act.
hours after the Officers' termination, Peck sent an email
to all of Bald Head's full-time employees and all of the
Department's part-time employees, which stated that
"five officers have been released from employment . . .
based on violations of [Bald Head's] policies pertaining
to harassment, sexual harassment, discourteous conduct and
inappropriate electronic communications." J.A. 451. The
email did not differentiate between each Officer's
alleged policy violations. Additionally, Peck included the
full text of Bald Head's policy regarding
"[d]etrimental personal conduct"-one of the
violations listed in all the Officers' termination
letters-which is defined as "behavior of such a serious
detrimental nature that the functioning of [Bald Head] may be
or has been impaired; the safety of persons or property may
be or have been threatened; or the laws of any government may
be or have been violated." Id.
next day, August 29, 2014, Mitchell filled out an affidavit
of separation, or "Form F-5B, " regarding each
Officer's termination and, as required by law, submitted
them to the North Carolina Criminal Justice Education and
Training Standards Commission. Notwithstanding that the
termination letters offered different grounds for terminating
several of the Officers, on each Officer's Form F-5B
Mitchell provided the same reason for termination: that
"[a] complaint was filed with this agency . . .
involving inappropriate electronic communications that
created a hostile work environment in violation of [Bald
Head] policy." J.A. 268-75.
same day, Officers Conner, Koons, and Terrell each sent a
grievance letter to Peck, stating that "the grounds for
which I was terminated were unfair and . . . my job
performance and personal conduct were not accurately
represented." J.A. 278-80. Peck responded that
"[t]here is no right to a grievance or appeal
process." J.A. 300-02.
one year after the firings, on August 26, 2015, the Officers
filed the instant suit alleging, among several other claims,
that Defendants violated (1) the First Amendment, by firing
the Officers for engaging in speech on matters of public
concern; (2) the Fourteenth Amendment, by failing to afford
the Officers due process before publicly ...