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Cannon v. Village of Bald Head Island

United States Court of Appeals, Fourth Circuit

May 30, 2018

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

          Appeal 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.

         ON BRIEF:

          Samuel B. Potter, HODGES COXE POTTER & PHILLIPS, LLP, Wilmington, North Carolina, for Appellees.

          Before DUNCAN, AGEE, and WYNN, Circuit Judges.


         In 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.

         For the 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.



         The 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).

         Messages 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.

         A 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.

         Mitchell 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.

         After 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.

         Peck 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.

         After 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.

         On 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.

         During 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.

         Several 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.

         The 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.

         That 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.


         Approximately 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 ...

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