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Pone v. Town of Hope Mills

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

January 8, 2020

JOHN D. PONE, JR., Plaintiff,
TOWN OF HOPE MILLS and MELISSA ADAMS, in her individual and personal capacity, Defendants.



         This 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.


         Plaintiff 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”).[1] Plaintiff seeks reinstatement, back pay, compensatory damages, costs, injunctive relief, and jury trial.

         Defendants 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.

         Plaintiff 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.


         The 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. ¶ 12).

         In 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 employees.'
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 actual emergency.'
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 original)).

         On 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 leave.” (Id.).

         Over 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.

         Plaintiff 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.

         On July 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 ...

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