United States District Court, E.D. North Carolina, Western Division
JOHN D. PONE, JR., Plaintiff,
TOWN OF HOPE MILLS and MELISSA ADAMS, in her individual and personal capacity, Defendants.
W. FLANAGAN, UNITED STATES DISTRICT JUDGE
matter is before the court on defendants' motion to
dismiss for failure to state a claim (DE 23), defendants'
motion to strike second amended complaint (DE 30), and
plaintiff's motion to file second amended complaint (DE
36). The motions have been briefed fully, and the issues
raised are ripe for ruling. For the following reasons,
defendants' motions are granted and plaintiff's
motion is denied.
OF THE CASE
commenced this action on November 20, 2018, and filed the
operative amended complaint on April 17, 2019, asserting
claims against defendants under 42 U.S.C. § 1983 for
violation of his rights under the First and Fourteenth
Amendments to the United States Constitution and under the
North Carolina Constitution, arising from plaintiff's
suspension from his position as a firefighter for defendant
Town of Hope Mills (the “Town”), and termination
by Town Manager, defendant Melissa Adams
(“Adams”). Plaintiff seeks reinstatement, back pay,
compensatory damages, costs, injunctive relief, and jury
filed the instant motion to dismiss for failure to state a
claim, pursuant to Federal Rule of Civil Procedure 12(b)(6),
on May 31, 2019, relying on plaintiff's notice of
termination and a Town personnel policy. Plaintiff responded
to the motion to dismiss, and filed a second amended
complaint on July 9, 2019. Defendants replied in support of
their motion to dismiss and filed the instant motion to
strike the second amended complaint on July 23, 2019.
responded to the motion to strike on August 15, 2019, and
filed the instant motion for leave to file second amended
complaint on August 16, 2019. Defendants replied in support
of their motion to strike and responded in opposition to
plaintiff's motion to amend on August 29, 2019.
facts alleged in the operative amended complaint may be
summarized as follows. Plaintiff was a firefighter for the
town for approximately 13 years, from August 2004 to July
2017. He held the positions of Certified Level Two
Firefighter, Acting Lieutenant, and Acting Captain. “In
those positions, he commanded company firefighters and other
safety care individuals; identified hazardous materials and
complied with organization, healthcare and legal standards in
handling, packaging and moving hazardous materials; provided
direct patient care in emergency situations, ensured the
safety and comfort of patients while administering emergency
stabilization procedures and educated subordinates, peers and
the community through training programs.” (Am. Compl.
October 2015, plaintiff “sent an anonymous
letter” to the Hope Mills Town Council (“Town
Council”) and two candidates running for office, which
addressed “Plaintiff's concerns with regards to the
leadership of Deputy Chief Steve Lopez (‘Chief
Lopez') as a Safety Coordinator for Hope Mills and as a
safety decision-maker for the Fire Department.”
(Id. ¶ 13). The letter, in part, stated:
a. There is ‘a lack of safety-toed boots to reduce
cost, an ongoing issue with breaks on the ladder truck,
integrity concerns [with the] Self Contained Brakes Apparatus
being solved with electrical tape . . .'
b. ‘Most of the members of the fire department are
members at the other Fire Departments as volunteers or
c. ‘In [Plaintiff s] personal opinion, the town has
failed [them] as career firefighters by allowing [Chief
Lopez] to continue with his reckless behavior.'
d. ‘[Chief Lopez] is putting firefighter's career
and lives in jeopardy by making priorities in cleaning the
fire department rather than training. By signing names to
training that were not present during the training evolution.
Training is the most important thing we do outside of an
e. ‘. . . our newer member's lack of training and
the level of firefight training is subpar.'
f. ‘. . . what has been the case for years is backlash
for someone choosing to speak out.' g. Plaintiff has
posed questions inquiring, ‘. . . where does the money
come from to fund the Search and Rescue Team?'
h. ‘Our community deserves better than this.'
i. ‘This fire department and the citizens of the Town
of Hope Mills will suffer because of this.'
(Id. (brackets and internal quotations in
January 1, 2016, “then Hope Mills Town Manager, John
Ellis, placed Plaintiff on administrative leave because he
was ‘going around to other firefighters asking them to
sign a letter critical of Deputy Chief Lopez.'”
(Id. ¶ 15). On January 5, 2016, “Fire
Department officials discovered that Plaintiff was
responsible for sending the anonymous letter and discovered
that Plaintiff had sent that same letter to Lieutenant Jeff
Cannady.” (Id. ¶ 19). “As a result
of Plaintiff's distribution of the letter about
Plaintiff's safety concerns, Chief Charles Hodges sent a
letter to the then Hope Mills Town Manager, John Elis,
recommending the termination of Plaintiff on the grounds that
the failed to follow directives to refrain from discussing
the matters in the October 2015 letter, and that Plaintiff
had displayed ‘deceitful behavior,' and
‘gross insubordination.'” (Id.
¶ 20). “Plaintiff was placed on administrative
one year later, on February 1, 2017, human resources
administrator for the town notified plaintiff that “he
would be permitted to return to work a fire fighter, a
lower-paying position than he held when he left as the Acting
Captain of C-Shift.” (Id. ¶ 21).
Plaintiff was not able to return to work as scheduled because
in the interim he injured himself playing basketball.
Plaintiff sought and received leave under the Family Medical
Leave Act from March 6, 2017 through May 30, 2017.
was unable to return to work at the conclusion of his medical
leave because his doctor had not released him. On June 21,
2017, plaintiff's doctor released plaintiff from his
care, but not to return to work until August 1, 2017.
“Plaintiff was advised that there was no light duty
work available for him at the Hope Mills Fire
Department.” (Id. ¶ 25). Plaintiff's
additional medical leave was approved.
24, 2017, defendant Adams, then Town Manager, sent plaintiff
a letter “advising that he was being terminated because
his ‘work' at another fire station while he was on
paid leave was in violation of Section 15 ...