Cannon v. Village of Bald Head Island, North Carolina

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

SOUTHERN DIVISION

No. 7:15-CV-187-H

THOMAS CANNON, JESSE CONNER, )

DONALD KOONS, and NICHOLAS )

TERRELL, )

Plaintiffs, )

)

v. )

)

FINDINGS OF FACT AND

VILLAGE OF BALD HEAD ISLAND, )

CONCLUSIONS OF LAW

NORTH CAROLINA, CALVIN R. )

PECK, JR., in his individual )

capacity, and CAROLINE )

MITCHELL, in her individual )

capacity, )

Defendants. )

A bench trial of the above captioned case was conducted by

the undersigned at the United States District Court in Greenville,

North Carolina, on September 8 and 9, 2020. This matter comes

before the court on claims arising from defendants’ termination of

the plaintiffs’ employment. The claims, as detailed below, include

deprivation of plaintiffs’ liberty interest in violation of the

Due Process Clause of the Fourteenth Amendment; libel per se; libel

per quod; wrongful discharge; and breach of contract. After taking

the matter under advisement, the court makes the following findings

of fact and conclusions of law.

I. Findings of Fact

General Findings

1. Plaintiffs Thomas Cannon, Jesse Conner, Donald

Koons, and Nicholas Terrell are former public safety

officers with the Department of Public Safety of the

Village of Bald Head Island (“the Village”), a

municipality located in Brunswick County, North

Carolina.

2. Defendant Calvin Peck (“Defendant Peck”), at all

times relevant to the events of the complaint, was

the Manager for the Village.

3. Defendant Caroline Mitchell (“Defendant Mitchell”),

at all times relevant to the events of the complaint,

was the Director of Public Safety for the Village.

4. The Village’s Public Safety Department is a small

department, with a total staff of approximately 20

full-time officers. Since approximately 2010, the

Public Safety Department’s officers have been

required to be cross-trained to provide law

enforcement, fire, and emergency medical services to

the Village of Bald Head Island.

5. Plaintiff Thomas Cannon (“Plaintiff Cannon”) began

working for the Village in August of 2009. He was

a Lieutenant Public Safety Officer at the time of

termination. Prior to being employed by the Village,

Plaintiff Cannon’s employment history included

working on his family farm, being a concrete

contractor, owning a construction company, serving

as a firefighter, and serving as a firefighter in

Iraq in 2006.

6. Plaintiff Jesse Conner (“Plaintiff Conner”) began

working for the Village in late 2012. He was a

Public Safety Officer at the time of termination.

He became a certified law enforcement officer in

2014. Prior to being employed by the Village,

Plaintiff Conner had been a firefighter and

paramedic.

7. Plaintiff Donald Koons (“Plaintiff Koons”) began

working for the Village in August of 2012. He was

a Public Safety Officer at the time of termination.

Prior to being employed by the Village, Plaintiff

Koons was employed as a police officer with Leland

Police Department.

8. Plaintiff Nicholas Terrell (“Plaintiff Terrell”)

began working for the Village in September of 2009.

He was a Lieutenant Public Safety Officer at the

time of termination. Prior to being employed by the

Village, Plaintiff Terrell was employed with New

Hanover Regional EMS and Leland Fire and Rescue.

9. At the time of their termination on August 28, 2014,

all plaintiffs had received positive annual reviews

and had not been subject to any prior discipline.

Terminations

10. On August 28, 2014, Plaintiffs Conner, Koons, and

Terrell were respectively summoned to individual

meetings with Defendants Peck and Mitchell and

terminated from their positions, effective

immediately. Each plaintiff was presented a letter,

signed by Defendant Peck, which indicated that

plaintiff’s conduct in communications during the

period from July 25, 2014 to August 15, 2014 violated

certain provisions of Village Policy. Plaintiffs

were not provided a copy of the alleged

communications at issue at that time. (Pls.’ Ex. 9

– Conner Termination Letter; Ex. 10 Koons

Termination Letter; Ex. 11 Terrell Termination

Letter).

11. Plaintiffs Conner, Koons, and Terrell were told to

turn in their badges, making their terminations

final.

12. At his termination meeting, plaintiff Conner was

provided a letter of termination signed by Defendant

Peck that gave as the reasons for termination a

violation of Defendant Village’s written policies

related to “discourteous treatment of other

employees, (Article IX), and inappropriate

electronic communications (Article IX).” (Pls.’ Ex.

9 – Conner Termination Letter).

13. At his termination meeting, Plaintiff Koons was

provided a letter of termination signed by Defendant

Peck which terminated him for “harassment and sexual

harassment (Article V: Conditions of Employment and

Article IX), discourteous treatment of other

employees (Article IX), and inappropriate electronic

communications (Article IX).” (Pls.’ Ex. 10 – Koons

Termination Letter). Plaintiff Koons’ termination

letter also noted, “[t]he Village of Bald Head Island

has no tolerance for harassment.”

14. At his termination meeting, Plaintiff Terrell was

provided a letter of termination signed by Defendant

Peck which terminated him for “harassment and sexual

harassment (Article V: Conditions of Employment and

Article IX), discourteous treatment of other

employees (Article IX), and inappropriate electronic

communications (Article IX).” (Pls.’ Ex. 11 –

Terrell Termination Letter). Plaintiff Terrell’s

termination letter also provided “[t]he Village of

Bald Head Island 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.”

15. Plaintiff Cannon was not physically present in the

Village on August 28, 2014. He was called later

that same day and terminated over the phone.

16. Plaintiff Cannon was provided his letter of

termination by certified mail, which indicated that

his conduct in communications during the period from

July 25, 2014 to August 15, 2014 violated certain

provisions of Village Policy.1 The letter was signed

by Defendant Peck and terminated him for “harassment

(Article V: Conditions of Employment and Article

IX), discourteous treatment of other employees

(Article IX), and inappropriate electronic

communications (Article IX).” (Pls.’ Ex. 8 – Cannon

Termination Letter). Plaintiff Cannon’s termination

letter also noted, “[t]he Village of Bald Head Island

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.” Id.

17. All four termination letters further provided,

“[t]he egregious nature of these communications and

the flagrant violation of policy thus constitutes

detrimental personal conduct[,] and is thereby

grounds for immediate termination.” (Pls.’ Exs. 8-

11).

1 Plaintiff Cannon only took part in communications on July 25, 2014.

Publication of Termination Letters

18. The next day, on the morning of August 29, 2014, Dr.

Karen Williams, the Director of both Human Resources

and Communications for the Village, provided the

plaintiffs’ termination letters to multiple news

outlets after numerous requests. (See, e.g., Pls.’

Ex. 26 - 8/29 Star News Article). Some of the

publications did not distinguish among plaintiffs

when stating alleged violations of Village policy.

19. Plaintiff Cannon’s termination letter was also

published on August 29, 2014, with the other

plaintiffs’ letters, before he even received it in

the mail.

Hearing Requests

20. On the afternoon of August 29, 2014, Dr. Karen

Williams told Defendant Peck she needed to do an

investigation and he told her “that ship has sailed,

it’s time to stand down and move on. It is too late

now.”

21. On the same day, August 29, 2014, Plaintiffs Conner,

Koons, and Terrell each sent letters to Defendant

Peck asking for an appeal of the termination because

“the grounds for which [he] was terminated were

unfair and that [his] job performance and personal

conduct were not accurately represented.” (Pls.’

Ex. 15 – Conner Appeal Letter; Pls.’ Ex. 17 – Koons

Appeal Letter; Pls.’ Ex. 19 – Terrell Appeal Letter).

22. Plaintiff Cannon never submitted a request for a

grievance or appeal hearing.

23. Defendant Peck responded on September 3, 2014, to

Plaintiff Conner, Koons, and Terrell’s letters

individually, that “[e]mployment with the Village of

Bald Head Island is ‘at-will’ and as such can be

terminated for any reason or for no reason. There

is no right to a grievance or appeal process.”

(Pls.’ Ex. 16 – Response to Conner grievance letter;

Pls.’ Ex. 18 – Response to Koons grievance letter;

Pls.’ Ex. 20 – Response to Terrell grievance letter).

Creation and Publication of Forms F-5B

24. On or about September 8, 2014, Defendant Mitchell

completed and signed before a notary a Form F-5B,

also known as a Report of Separation, regarding the

plaintiffs’ terminations. (Pls.’ Ex. 22 – Cannon

Form F-5B; Pls.’ Ex. 23 – Conner Form F-5B; Pls.’

Ex. 24 – Koons Form F-5B; Pls.’ Ex. 25 – Terrell

Form F-5B).

25. The Form F-5B has a section entitled “Reason for

Separation,” which provides for a box to check if

the agency is (or is not) “aware of any

investigations in the last 18 months concerning

potential criminal action or potential misconduct by

this officer.” The Form F-5B then asks for a

“detailed description of reasons for the

investigation.”

26. For each of the plaintiffs, Defendant Mitchell

checked the box indicating that the agency “IS aware

of any investigation(s) in the last 18 months

concerning potential criminal action or potential

misconduct by this officer.” (Pls.’ Ex. 22, 23, 24,

25).

27. The Forms F-5B for Plaintiffs Cannon, Conner, Koons,

and Terrell then provide as follows in the section

for a “detailed description of reasons for

investigation,” “[a] complaint was filed with this

agency regarding this Officer and several others

involving inappropriate electronic communications

that created a hostile work environment in violation

of Village Policy.” (Pls.’ Ex. 22 – Cannon Form F-

5B; Pls.’ Ex. 23 – Conner Form F-5B; Pls.’ Ex. 24 –

Koons Form F-5B; Pls.’ Ex. 25 – Terrell Form F-5B).

28. Forms F-5B must be sent to Training Standards within

10 days after a certified law enforcement officer

ceases to work for a police department in North

Carolina. Form F-5Bs are reviewed to determine

whether an officer should be certified to continue

working as a law enforcement officer when he or she

seeks employment with a subsequent law enforcement

agency.

29. The Forms F-5B were both available to employers and

the common practice of a law enforcement agency is

to request from Training Standards Commission the

Forms F-B for an applicant during the background

check. Plaintiffs Cannon and Koons both had to go

through this process to obtain recertification as

law enforcement officers after their Forms F-5B were

requested. Plaintiffs Conner and Terrell did not

apply for law enforcement officer jobs as they knew

their Form F-5B would be requested.

30. In accordance with the above requirement, the Forms

F-5B were provided to The North Carolina Criminal

Justice Education and Training Standards Commission

where they are available to any potential law

enforcement employer of Plaintiffs.

31. Officer Nick Hiatt was employed with the Village as

a Public Safety Officer from July 2013 to May 2015

and worked with Plaintiffs Cannon, Conner, Koons,

and Terrell.

32. Defendant Mitchell testified at trial that Officer

Nick Hiatt was the complainant she referred to in

the Form F-5B and she construed Lieutenant Matthew

Cox to be a complainant as well.

33. However, the court finds Officer Hiatt was not

offended and did not intend his actions to be a

“complaint.” Officer Hiatt was not a complainant.

34. Based on Matt Cox’s testimony, the court finds that

he had not read the text messages, was not offended

by the text message exchange, and did not make a

complaint to Defendant Mitchell about them.

35. Officer Hiatt had mentioned the text messages to

Lieutenant Cox on a ferry ride, prior to the time

that the plaintiffs were terminated, but it was a

brief conversation in which Lieutenant Cox told

Officer Hiatt to “recuse himself” from the

conversation.

36. The court finds Lieutenant Matt Cox was also not a

complainant. He testified that after learning that

he was considered a complainant, he informed

Defendant Mitchell he was not a complainant.

37. Matt Cox witnessed off-color or R-rated jokes made

in the Public Safety Department as a common

occurrence including one made by Director Mitchell.

He did not complain as he felt that in context it

was a joke.

38. Plaintiff Cannon’s Form F-5B was requested by future

employers to which he applied after termination,

including Beech Mountain Police Department and

Sparta Police Department.

39. Plaintiff Conner’s Form F-5B was not requested by

Oak Island because he applied there as a firefighter

and paramedic, not as a law enforcement officer

because he did not want the Form F-5B released.

40. Plaintiff Koons’ Form F-5B was requested by

Shallotte Police Department to which he applied

after termination.

41. Plaintiff Terrell’s Form F-5B was not requested by

Oak Island because he also sought employment as a

firefighter and paramedic rather than as a law

enforcement officer because he did not want the Form

F-5B form released.

Text Messages – Two Chains

42. The court incorporates by reference the text

messages admitted into evidence at trial. [Pls.’ Ex.

30a – Text Messages].

43. The text messages at issue are contained within two

separate text message chains. (Pls.’ Ex. 30a – Text

Messages).

44. The first chain is dated July 25, 2014 and consists

of the first three pages of Exhibit 30a.

45. The second chain is dated August 6, 2014 to August

15, 2014 and consists of the remaining 23 pages of

Exhibit 30a.

46. The text messages were sent on the plaintiffs’

private, personal phones and were sent when the

plaintiffs were off-duty.

47. Plaintiff Cannon sent one text in the first text

chain and was not part of the second text chain. He

therefore neither sent nor received any texts from

the second chain.2

48. Defendant Peck and Defendant Mitchell testified that

they did not know until the trial that Plaintiff

Cannon only participated in the first text chain.

Text Messages – Content

49. The text messages themselves included jokes, in the

form of text and photos, internet memes and movie

2 Plaintiff Cannon sent a photo message and a text message, “Sammy getting his

hands dirty! Of course there was a young female involved,” along with a photo

of a person fixing a bicycle. [Pls.’ Ex. 30a at 1].

references, many of which were sent by Officer Jeff

Sypole and not the plaintiffs.3

50. No credible evidence was produced that Officer

Hiatt, Lieutenant Cox, or any party to the text

message exchanges, was offended, upset, or felt

picked on, or harassed, sexually or otherwise.

51. There was no evidence presented that anyone’s work

performance was affected by either text message

chain.

52. Plaintiffs Conner, Koons, and Terrell expressed

concerns in the text messages regarding the lack of

training and leadership impacting public safety.4

(Pls.’ Ex. 30a – text messages). They had also

expressed concerns outside of the text messages

about the lack of training and leadership impacting

public safety.

53. Plaintiffs’ texts also related to statements made by

Defendant Mitchell to a local newspaper about public

safety officer training.5

3 The text message thread also included a number of crude sex jokes, including

comments about homosexual sex acts, penis sizes, men wearing bikini underwear,

and men’s anatomy. For example, two separate text messages regarding a plaintiff

stated as a joke, (“he’s been in the office taking a pounding,” and “if dicks

had wings, [his] mouth would be an airport”). The former message was sent by

plaintiff Koons and the latter message was sent by an officer who is not a party

to the lawsuit.

4 Plaintiff Conner wrote “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 Koons wrote “In Colorado u do not need [certifications] u do what

ever u want just like bald head.”

Plaintiff Terrell wrote, “How about some fire or EMS training.” He also wrote

about what he considered to be an unqualified officer promoted to leadership

“Ask her what your plan of attack is when you get a fire or what you guys should

do when you get a bad medical. Oh yea also what’s her plan when you guys get

that water rescue call. She didn’t help your shift she just hurt it and she

should have the integrity to say so.” (Exhibit 30A – text messages).

5 First referenced and then posted to the group chat by Officer Bryant, the

article, based on information from Defendant Mitchell, stated that all but two

public safety officers at the Village were trained in all four applicable

disciplines.

Plaintiff Conner wrote, “Hey. If everyone but two are all 4 certs then why are

only a hand full of the staff doing ems fire and water rescue?” Plaintiff Koons

wrote regarding the article “This is getting out of control over.”

Plaintiffs and their co-workers knew the statements in the article were false.

Personnel Policy

54. The termination letters for Plaintiffs Koons and

Terrell found them in violation of Article V:

Conditions of Employment of the Defendant Village’s

Personnel Policy for sexual harassment. (Pls.’ Ex.

10 – Koons termination letter; Pls.’ Ex. 11 – Terrell

termination letter).

55. The Personnel Policy defines sexual harassment as

“unwelcome sexual advances, requests for sexual

favors, and other verbal or physical conduct of a

sexual nature when 1) submission to such conduct is

made either explicitly or implicitly a term or

condition of an individual’s employment; 2)

submission to or rejection of such conduct by an

individual is used as the basis for employment

decisions affecting such individual; or 3) such

conduct has the purpose or effect of unreasonably

interfering with an individual’s work performance or

creating an intimidating, hostile, or offensive

working environment.” (Pls.’ Ex. 7 Personnel Policy

at 24).

56. The published termination letters for Plaintiffs

Cannon, Koons and Terrell found them in violation of

Article V: Conditions of Employment of the Defendant

Village’s Personnel Policy for harassment. (Pls.’

Ex. 8 – Cannon termination letter; Pls.’ Ex. 10 –

Koons termination letter; Pls.’ Ex. – Terrell

termination letter).

57. The Personnel Policy defines harassment as “verbal

or physical conduct that denigrates of (sic) shows

hostility or aversion toward an individual because

of his or her race, color, religion, gender, national

origin, age, or disability, or that of his or her

relatives, friends, or associates.” (Pls.’ Ex. 7

Personnel Policy at 24).

58. The published termination letters for Plaintiffs

Cannon, Conner, Koons, and Terrell found them in

violation of Article IX of the Defendant Village’s

Personnel Policy for inappropriate electronic

communications (Pls.’ Ex. 8 – Cannon termination

letter; Pls.’ Ex. 9 – Conner termination letter;

Pls.’ Ex. 10 – Koons termination letter; Pls.’ Ex.

11 – Terrell termination letter).

59. The Personnel Policy, Article IX Section 9, defines

Inappropriate Electronic Communications as

“electronic communications or website-postings,

accessible via the internet or other media outlet,

which negatively reflect upon the Village or contain

inappropriate comments, images or conduct.” (Pls.’

Ex. 7 Personnel Policy at 46).

60. The text messages at issue were accessed from the

physical phone of Nick Hiatt by David Cox, an

Information Technology employee of Defendant

Village.

61. The text messages were not accessible via the

internet or other media outlet.

62. The published termination letters for Plaintiffs

Cannon, Conner, Koons and Terrell found them in

violation of Article IX of the Defendant Village’s

Personnel Policy for “discourteous treatment of

other employees” and “[t]he egregious nature of

these communications and the flagrant violation of

policy thus constitutes detrimental personal conduct

and is thereby grounds for immediate termination.”

(Pls.’ Ex. 8 – Cannon termination letter; Pls.’ Ex.

9 – Conner termination letter; Pls.’ Ex. 10 – Koons

termination letter; Pls.’ Ex. 11 – Terrell

termination letter).

63. The Personnel Policy, Article IX Section 2, defines

Unsatisfactory Job Performance as including “any

aspect[s] of the employee’s job which are not

performed as required to meet the standards set by

the Department Head (including written performance

standards, verbal performance coaching, and

performance review discussions. Examples of

unsatisfactory job performance include, but are not

limited to, the following: … “d) Discourteous

treatment of the public or other employees.” (Pls.’

Ex. 7 Village Personnel Policy at 44).

64. The Personnel Policy, Article IX Section 1, provides

“Disciplinary Action for Unsatisfactory Job

Performance” as follows: “[a] regular employee may

be placed on disciplinary suspension, demoted, or

dismissed for unsatisfactory job performance, if

after following the procedure outlined below, the

employee’s job performance is still deemed to be

unsatisfactory. All cases of disciplinary

suspension, demotion, or dismissal must be approved

by the Village Manager prior to giving notice to the

employee.” (Pls.’ Ex. 7 Personnel Policy at 44).

65. The Personnel Policy, Article IX Section 5, defines

“detrimental personal conduct” as including

“behavior of such a serious detrimental nature that

the functioning of the Village may be or has been

impaired; the safety of persons or property may be

or ha[s] been threatened; or the laws of any

government may be or have been violated.” (Pls.’

Ex. 7 Village Personnel Policy at 45).

66. The Personnel Policy, Article IX Section 4 entitled

“Disciplinary Action for Detrimental Personal

Conduct,” provides “[w]ith the approval of the

Village Manager, an employee may be placed on

disciplinary suspension, demoted, or dismissed

without prior warning for causes relating to

Detrimental Personal Conduct or Inappropriate

Communications to 1) avoid disruption of work; 2)

protect the safety of persons or property; 3) protect

the goodwill and reputation of the Village or 4) for

other serious reasons.” (Pls.’ Ex. 7 Village

Personnel Policy at 45).

Defendant Mitchell’s Meeting with Officer Hiatt

67. Defendant Mitchell first became aware of the text

message chains while meeting with Officer Nick Hiatt

regarding an unrelated incident.

68. Hiatt showed a text message on his phone from one of

the text chains at issue to Defendant Mitchell about

an officer’s promotion to lieutenant, because he did

not think “that she was fit for the duties of the

lieutenant's position and [he] was expressing [his]

concern, along with everybody else's.” [DE #152 at

102].

69. After a lawsuit was filed against Defendant Village,

Defendant Mitchell told Hiatt to watch his comments

to anybody regarding the firing since he was the

“complainant.” He responded by telling her he was

not a complainant about any of the text messages

that led to the firing of plaintiffs.

Defendant Mitchell’s Meeting with Captains

70. After the IT Director retrieved the text message

chains from the cell phone, Mitchell met with three

other members of her command staff, Capt. Shawn

Freeman, Capt. Scott Anderson, and Capt. Paul

Swanson and discussed the termination of plaintiffs

based upon text messages.

71. Defendant Mitchell felt that the text message

exchange demonstrated that the officers involved

disrespected their superiors.

72. Captain Anderson supported termination based on a

photo or “meme” of Defendant Mitchell with the

message that he remembered said “something along the

lines of, is this a man or a woman” that was included

in the text message chain; however, Captain Anderson

did not know and was not told that this meme was

sent by Officer Jeff Sypole, not any of the

plaintiffs.

73. Captain Anderson did not know and was not told that

there were two separate text chains nor did he know

Plaintiff Cannon did not text or receive texts on

the second text chain.

74. The court finds Captain Anderson recommended

termination based on his understanding of what

Defendant Mitchell wanted, as he testified at trial

that he “knew how [Defendant Mitchell] felt and [he]

followed and supported my commander.”

75. Captain Anderson testified that at the time of his

deposition, he stated “I’m going to [be] honest, I

felt like, thinking back, that the decision had

already been made, she was just using us to confirm

what she wanted to do.”

76. At trial he stated that those were his words from

his deposition but that at the time of trial, “it’s

hard to know whether or not the decision had been

premade but the decision was made, obviously.”

77. At the meeting with Defendant Mitchell, Captain

Freeman was shown one or two of the text messages

from Exhibit 30a on the phone.

78. Captain Freeman was opposed to termination. He

believed plaintiffs did not break any policy in the

Personnel Policy, and he told Defendant Mitchell

that prior to plaintiffs’ terminations.6

Defendant Mitchell’s Meeting with Defendant Peck

79. After meeting with her command staff, Defendant

Mitchell met with Defendant Peck about the matter.

Defendant Mitchell told Defendant Peck that the text

messages had come to her attention when one of the

employees in the Public Safety Department complained

about them.

80. Defendant Mitchell also told Defendant Peck that

after meeting with the command staff at the Public

Safety Department, they had reached a consensus to

recommend to Defendant Peck that Plaintiffs Cannon,

Conner, Koons and Terrell should be terminated.

81. After reviewing the text messages, Defendant Peck

agreed with Defendant Mitchell’s recommendation that

the officers should be terminated.

82. Defendant Peck did not know until trial that

Plaintiff Cannon only sent one text message and one

photo on one day on the first text chain.

83. Defendant Peck believed that the overall tone of the

text message exchange displayed a clear tone of

hostility and insubordination toward Defendant

Mitchell and other members of the command staff at

the Public Safety Department. In particular,

Defendant Peck felt that it was obvious from the

text messages that the officers had no respect for

the superior officers in their chain of command.

Defendant Peck also believed that some of the

comments were directed at Defendant Mitchell because

of her sexual orientation, which he also found

offensive.

84. The court finds Defendant Peck terminated plaintiffs

because he believed they were jerks and

disrespectful of the chain of command, not for the

reasons stated in the termination letters.7

6 Captain Freeman testified that at the time of plaintiffs’ termination he “felt

like what they were being dealt was not appropriate and, you know, [he] felt

like [he] needed to stand up for that, which didn’t really matter.”

7 Defendant Peck testified at trial, affirmatively when asked, “[a]nd you fired

Tom Cannon, Jesse Conner, DJ Koons, and Nick Terrell because they were jerks

and disrespectful to the chain of command, correct?” [DE #152 at 199-200].

85. The court finds based on Defendant Mitchell’s

testimony at trial, that she recommended firing

Cannon in his role as lieutenant for being a

participant in the text messages that she believed

did not create a culture of supporting the team,

although she did not understand that he sent two

text messages on one day. Defendant Mitchell also

testified she thought the text messages were

disrespectful to the chain of command. [DE #153 at

158].

86. This meeting between Defendants Peck and Mitchell

occurred within days prior to plaintiffs’

termination. [DE #152 at 216].

87. Five additional employees of the Department were on

the text chains and not terminated.

88. Because they did not investigate the text chains,

Defendant Peck and Defendant Mitchell did not know

until the trial that Plaintiff Cannon only

participated in the first text chain.

89. The decision to terminate plaintiffs was ultimately

Defendant Peck’s but he based his decision on the

recommendation of the Director of the Public Safety

Department, Defendant Mitchell. [DE #152 at 193-

94].

Preparation of Termination Letters

90. After discussing the matter with Defendant Mitchell,

Defendant Peck directed Dr. Karen Williams, HR

Director, to prepare termination letters for each of

the Plaintiffs.

91. Defendant Peck’s real reasons for termination of

plaintiffs were different than the termination

letters he signed.

92. At trial, Defendant Peck could not explain why

Plaintiffs Koons and Terrell were terminated for

sexual harassment, but plaintiffs Cannon and Conner

were not.

93. He was aware that the termination letters he signed

were public records and would have to be provided to

anyone who requested them.

Offer of Grievance Hearing

94. On September 30, 2016, over two years after the

termination of plaintiffs, and subsequent to the

filing of the lawsuit, Village Manager Chris McCall

sent each of the plaintiffs a letter offering them

the option of participating in a grievance hearing

pursuant to the Village’s Personnel Policy.

(Letters from C. McCall to Plaintiffs, Defs’ Exhibit

207).

Plaintiff Cannon’s Employment Sought After Termination

95. Plaintiff Cannon was paid $24.73 per hour at the

time he was terminated from Defendant Village and

worked approximately 171.5 hours per month. He also

paid law enforcement pension contributions and

received health insurance.

96. Plaintiff Cannon applied for over a dozen jobs since

being terminated. He was employed for two weeks as

a forklift driver and is currently working one or

two days a week as a letter carrier for the United

States Postal Service.

97. Plaintiff Cannon has received $600 per month in law

enforcement retirement benefits and $240 per month

in a special separation allowance since being

terminated.

98. Cannon was seeking to retire in the period right

before he was terminated and had indicated that he

was going to apply for the statutory Special

Separation Allowance.

99. Cannon was ultimately recertified by Training

Standards as a law enforcement officer because he

knew Captain Freeman at Beech Mountain Police

Department, who became Chief Freeman at Beech

Mountain and vouched for Plaintiff Cannon to be hired

as a reserve officer despite the information

contained in his Form F5-B and the termination

letter.8 After becoming recertified, Cannon did not

8 Captain Freeman left the Village in November 2014 due to his lack of agreement

with the way in which terminations of plaintiffs were conducted. He is the

Chief of Black Mountain Police Department as of the time of trial.

work for Beech Mountain but became a reserve officer

for the Town of Sparta, North Carolina to maintain

his certification.

100. Plaintiff Cannon has sold some of his real property

in order to provide for his family and additionally

has experienced significant distress emotionally as

a result of the publication.

Plaintiff Conner’s Employment Sought After Termination

101. Plaintiff Conner testified that, subsequent to his

terminations from Bald Head Island, he has not

applied for any law enforcement jobs and his

certification as a law enforcement officer has

expired.

102. Plaintiff Conner was paid $21.38 per hour at the

time he was terminated from Defendant Village and

worked approximately 171.5 hours per month. He also

paid law enforcement pension contributions and

received health insurance.

103. Plaintiff Conner obtained employment as a

firefighter and paramedic at the Town of Oak Island

in October of 2014 and was still employed in the

same position at the time of trial. Plaintiff

Conner’s pay history at the Town of Oak Island is:

a. $12.83 per hour at hiring.

b. $13.48 per hour beginning October 2015;

c. $13.88 per hour beginning October 2016;

d. $14.34 per hour beginning October 2017;

e. $15.02 per hour beginning October 2018; and

f. $15.49 per hour beginning October 2019 and

g. $15.81 at the time of trial.

h. Despite six years between Plaintiff Conner’s

termination from Defendant Village and trial,

Plaintiff Conner, as of trial, makes $5.57 per

hour less per hour then at the time of his

termination from Defendant Village.

104. Plaintiff Conner works 240-260 hours per month at

the Town of Oak Island, compared to the 171.5 hours

he worked per month for Defendant Village.

105. In addition to lost wages and earning capacity,

Plaintiff Conner has been diagnosed by a medical

professional with Post Traumatic Stress Disorder

arising from the publication of his termination

letter.

106. Plaintiff Conner was able to obtain his current

employment because of a close personal relationship

with a senior leader at the Town of Oak Island Fire

Department.

107. Plaintiff Conner has not applied for a law

enforcement job based on his belief that he would

not be able to obtain employment, without a personal

connection in his chosen field, due to the false,

stigmatizing statements made by the Defendants in

both Plaintiff Conner’s termination letter and Form

F-5(b).

108. In order to truthfully and accurately describe to

any potential employer the reasons given for his

termination from Defendant Village, Plaintiff Conner

would have to tell them the reasons given in his

termination letter and his Form F-5B.

Plaintiff Koons’ Employment Sought After Termination

109. Plaintiff Koons was paid $18.03 per hour at the

time he was terminated from Defendant Village and

worked approximately 171.5 hours per month. He also

paid law enforcement pension contributions and

received health insurance.

110. Plaintiff Koons applied for, and was denied, many

jobs after his termination from Defendant Village.

Plaintiff Koons had to disclose the reason for which

he was terminated in the Form F-5(b).

111. Plaintiff Koons was unable to obtain employment for

about a year after his termination, when he was hired

by the Shallotte Police Department.

112. In order to gain employment at the Shallotte Police

Department, Plaintiff Koons underwent the following:

a. Plaintiff Koons worked 240 hours of unpaid time

at the Shallotte Police Department as a “trial.”

b. Plaintiff Koons was investigated by Criminal

Justice Education and Training Standards

Commission of North Carolina;

c. Plaintiff Koons’ friend and former co-worker,

John Hollman, vouched for Plaintiff Koons.

d. Plaintiff Koons, and his supervising Captain at

Shallotte Police Department, submitted written

statements to Criminal Justice Education and

Training Standards Commission of North Carolina

regarding the events at Defendant Village and

Plaintiff Koons’ actions during his 240 hours of

“trial” work at the Shallotte Police Department.

113. Once Plaintiff Koons began being paid, he was

initially paid $16.04 per hour and worked 169 hours

per month.

114. Plaintiff Koons began getting paid more than he was

paid at Defendant Village in 2017. He testified

that he was paid $20.63 per hour in 2017.

115. In addition to lost wages and diminished earning

capacity, Plaintiff Koons has suffered embarrassment

in his community as a result of the false statements

in his termination letter and Form F-5(b).

Plaintiff Terrell’s Employment Sought After Termination

116. Plaintiff Terrell testified that, subsequent to his

terminations from Bald Head Island, he has not

applied for any law enforcement jobs and his

certification as a law enforcement officer has

expired.

117. Plaintiff Terrell was paid $24.35 per hour at the

time he was terminated from Defendant Village and

worked approximately 171.5 hours per month. He also

paid law enforcement pension contributions and

received health insurance.

118. Plaintiff Terrell applied for work with the New

Hanover County Fire Department but was rejected from

the position.

119. Plaintiff Terrell obtained employment as a

firefighter and paramedic at the Town of Oak Island

in October of 2014. Plaintiff Terrell pay history

at the Town of Oak Island was:

i. $12.83 per hour at hiring;

j. $13.15 per hour six months later after completion

of his probationary term of employment,

approximately April 2015;

k. $13.47 per hour when he became a full-time

employee beginning September 2015;

l. $13.74 per hour beginning October 2016;

m. $14.20 per hour beginning October 2017;

n. $14.51 per hour due to Cost of Living Allowance

(“COLA”) increase in 2018;

o. Plaintiff Terrell reduced his hours at Oak Island

in September 2018 in order to start a painting

and drywall business;

p. When Plaintiff Terrell left Oak Island in May

2019, his rate of pay was $14.51 per hour.

120. Plaintiff Terrell worked 230-260 hours per month at

the Town of Oak Island, compared to the 171.5 hours

he worked per month for Defendant Village, until he

went part time in September of 2018.

121. Plaintiff Terrell also worked part time at New

Hanover County Fire and Rescue at a rate of pay of

$10 per hour.

122. Plaintiff Terrell is self-employed with a painting

and drywall business and did not provide evidence of

income information at trial.

123. In addition to lost wages and earning capacity,

Plaintiff Terrell testified that he became very

depressed after the loss of his job and because of

the allegations and job loss, he experienced

significant marital strife.

II. Conclusions of Law

Liberty Interest

Defendant Peck

1. The court finds by a preponderance of the evidence that

Defendant Peck, in his individual capacity, deprived each

of the plaintiffs of their liberty interest in violation

of the 14th Amendment of the United States Constitution.

a. The charges in the termination letters, as outlined

above, placed a stigma on the reputation of each

plaintiff; were made public by the employer as they

were published to media the day after the

terminations; were made in conjunction with the

termination as the letters were provided at the

termination meetings and mailed after Plaintiff

Cannon’s termination phone call; and were false, as

the reasons for termination in the plaintiffs’ letters

contradicted Defendant Peck’s testimony of his

reasons for termination and also contradicted the

definitions of the Village Personnel Policy.9

b. The court finds by a preponderance of the evidence, a

name-clearing hearing was denied to all plaintiffs.10

i. In the termination meetings with Plaintiffs

Conner, Koons, and Terrell, and in the

termination phone call with Plaintiff Cannon,

the plaintiffs were not given an opportunity or

notice of any opportunity to appeal or file a

grievance regarding the decision prior to the

disclosure of the false, stigmatizing charges in

the termination letters.

ii. Defendant Peck wrote in response to the grievance

letters of Plaintiffs Conner, Koons, and

Terrell, that “[t]here is no right to a grievance

or appeal process.”

iii. Plaintiffs were not offered a name-clearing

hearing until more than two years after

9 “[A] Fourteenth Amendment ‘liberty interest is implicated by public

announcement of reasons for an employee’s discharge.’” Sciolino v. City

of Newport News, 480 F.3d 642, 645-46 (4th Cir. 2007) (quoting Johnson v.

Morris, 903 F.2d 996, 999 (4th Cir. 1990)). To succeed on a claim under

the Due Process Clause for violation of this liberty interest, a plaintiff

must first establish the charges against him: “(1) placed a stigma on his

reputation; (2) were made public by the employer; (3) were made in

conjunction with his termination or demotion; and (4) were false.” Id.

(citing Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 172 n.5 (4th

Cir. 1988)).

10 Second, a plaintiff must “demonstrate that [his] liberty was deprived

without due process of law.” Cannon v. Village of Bald Head Island, 891

F.3d 489, 501 (4th Cir. 2018) (quoting Segal v. City of N.Y., 459 F.3d 207,

213 (2d Cir. 2006). “To that end, the Supreme Court has recognized that,

when a governmental employer places an employee’s reputation ‘at stake’ by

publicly disclosing defamatory charges, ‘notice and opportunity to be heard

are essential.’” Id. at 501-02 (quoting Bd. of Regents v. Roth, 408 U.S.

564, 573 (1972)). Indeed, “[f]undamental to due process is an opportunity

to be heard — ‘an opportunity which must be granted at a meaningful time.’”

Sciolino, 480 F.3d at 653 (quoting Armstrong v. Manzo, 380 U.S. 545, 552

(1965)). “An opportunity to clear your name after it has been ruined by

dissemination of false, stigmatizing charges is not ‘meaningful.’” Id.

termination and publication of the false,

stigmatizing charges, which offer was not made

at a reasonable time to be “meaningful.”

Sciolino, 480 F.3d at 653 (citations omitted).

iv. As to Plaintiff Cannon, he was terminated by

phone and the Termination Letter was published

prior to his receipt of or knowledge of the

contents of the letter, therefore he was denied

notice and an opportunity to be heard.

Defendant Mitchell

2. The court finds by a preponderance of the evidence that

Defendant Mitchell, in her individual capacity, deprived

each of the plaintiffs of their liberty interest in

violation of the 14th Amendment of the United States

Constitution.

a. The court finds by a preponderance of the evidence

that the charges in the Forms F-5B as outlined above,

placed a stigma on the reputation of each plaintiff;

were published by the employer because they were

available to potential employers and likely to be

inspected by potential employers; were made in

conjunction with termination because they were the

forms completed based upon termination of the

plaintiffs; and were false as Defendant Mitchell

falsely claimed Officer Hiatt and Lieutenant Cox were

complainants.

i. The forms were requested by potential employers

of both Plaintiffs Cannon and Koons. Both

plaintiffs had personal contacts that vouched

for them to be rehired.11

ii. Plaintiffs Conner and Terrell did not apply for

law enforcement jobs because they knew that their

Forms F-5B would be requested and released to

prospective law enforcement employers.12

11 As to publication, there was a “substantial likelihood” that “the personnel

file is available to prospective employers, and that those prospective employers

not only have permission to, but are likely to, inspect the file.” Sciolino,

480 F.3d at 650 n.5.

12 “[T]o satisfy the public disclosure requirement ‘an employee must allege

(and ultimately prove) a likelihood that prospective employers (i.e., employers

b. The court finds by a preponderance of the evidence,

Defendant Mitchell13 denied a name-clearing hearing to

Plaintiffs Cannon, Conner, Koons, and Terrell in

violation of due process.

Libel Per Se14

to whom he will apply) or the public at large will inspect the [stigmatizing]

file.’” Cannon, 891 F.3d at 503 (quoting Sciolino, 480 F.3d at 650). As the

Fourth Circuit found in Sciolino, a plaintiff can also satisfy this standard by

showing

[a] plaintiff can meet this standard in two ways. First, the

employee could allege (and ultimately prove) that his former

employer has a practice of releasing personnel files to all

inquiring employers. Second, the employee could allege that

although his former employer releases personnel files only to

certain inquiring employers, that he intends to apply to at least

one of these employers. In either case, he must allege that the

prospective employer is likely to request the file from his former

employer.

Sciolino, 480 F.3d at 650.

13In a separate cause of action arising out of the same set of facts and

brought by another terminated Village Public Safety Officer, Herbert Bryant,

the Fourth Circuit noted,

Although in Cannon we determined that Mitchell did not

properly raise her qualified immunity defense as to the

officers’ due process claim before the district court,

she did adequately raise the defense below in this case.

However, we conclude that her drafting of the Form F-5B

and joint failure with Peck to offer Bryant a pre-

termination hearing precludes an award of qualified

immunity to Mitchell on Bryant's due process claim.

Bryant v. Vill. of Bald Head Island, 730 F. App'x 165, 166 (4th Cir. 2018)

(citing Cannon, 891 F.3d at 501 n.2 - 506); see also Cannon, 891 F.3d at 506

Accordingly, regardless whether the Fourteenth Amendment obliged

Defendants to afford the Officers an adversarial, pre-termination

name-clearing hearing, Sciolino established that the Fourteenth

Amendment required Defendants to afford the Officers a

constitutionally adequate name-clearing hearing before publicly

disclosing false information regarding the basis for the Officers’

termination that, in fact, restricted their ability to obtain new

employment.

14While plaintiffs alleged Village waived governmental immunity by the purchase

of liability insurance under N.C. Gen. Stat. § 160A-485, Village has denied

waiver. [DE #1 ¶12 and DE #37 ¶12]. As plaintiffs have brought forth no

evidence on this issue and therefore have not met their burden of proof on the

libel claims against Defendant Village, the libel per se and libel per quod

1. Termination Letters

a. The court finds by a preponderance of the evidence

that Defendant Peck committed libel per se15 against

Plaintiffs Cannon, Koons, and Terrell by publishing16

termination letters which contained defamatory

statements that were materially false.17

i. Statements which were false and stigmatizing

included the reasons for termination within

Plaintiff Koons and Terrell’s termination

letters that their participation in text

messages constituted “sexual harassment” and the

reasons in Plaintiffs Cannon, Terrell, and

Koons’ termination letters that their

participation in text messages constituted

“harassment.”

ii. These statements were materially false in light

of the actual reasons Defendant Peck provided in

his deposition and at trial. Defendant Peck

admitted the officers on the text message chain

were terminated because he thought they were

“jerks” and “disrespectful of the chain of

command.” Further, the court finds the text

message chains do not meet the definitions of

claims against Defendant Village are dismissed. See Mellon v. Prosser, 126

N.C. App. 620, 623, 486 S.E.2d 439, 441–42 (1997), rev'd in part on other

grounds, 347 N.C. 568, 494 S.E.2d 763 (1998) (citing Whitaker v. Clark, 109

N.C. App. 379, 384, 427 S.E.2d 142, 145 (1993)) (plaintiff bears the burden of

showing waiver of immunity.)

15 To prove a claim of defamation, a plaintiff must establish that “the defendant

caused injury to the plaintiff by making false, defamatory statements of or

concerning the plaintiff, which were published to a third person.” Boyce &

Isley, PLLC v. Cooper, 153 N.C. App. 25, 29, 568 S.E.2d 893, 897 (2002) (citing

Tyson v. L’eggs Products, Inc., 84 N.C. App. 1, 10-11, 351 S.E.2d 834, 840

(1987)).

16 “Publication” for purposes of defamation, means that the defendant knowingly

communicated the statement so that it reached one or more persons other than

the plaintiff. Taylor v. Jones Bros. Bakery, Inc., 234 N.C. 660, 662, 68 S.E.2d

313, 314 (1951), overruled on other grounds, Hinson v. Dawson, 244 N.C. 23, 92

S.E.2d 393 (1956).

17 The court finds Defendant Mitchell is not liable for the statements in the

termination letter for Plaintiffs Cannon, Koons, and Terrell because the

termination letters were drafted and signed by Defendant Peck.

these violations as found in the Personnel

Policy.

b. The court finds the defamatory statements in the

termination letters as detailed above, to be libelous

per se.18

c. The court finds by clear and convincing evidence that

Defendant Peck acted with actual malice.

i. As to actual malice, the stated reasons for

termination in the termination letters were

“sexual harassment” and “harassment,” and

creation of a “hostile work environment.”

ii. Defendant Peck recklessly disregarded whether

the reasons in the termination letters because

he admitted he fired them because he believed

“they were jerks.”

2. Forms F-5B

a. The court finds by a preponderance of the evidence

that Defendants Mitchell committed libel per se

against each plaintiff by publishing the Forms F-5B

containing defamatory statements that were materially

false.19

b. The court finds by clear and convincing evidence that

Defendants Mitchell did so with actual malice.20

18 “[D]efamatory words to be libelous per se must be susceptible of but one

meaning and of such nature that the court can presume as a matter of law that

they tend to disgrace and degrade the party or hold him up to public hatred,

contempt or ridicule, or cause him to be shunned and avoided.” Broughton v.

McClatchy Newspapers, Inc., 161 N.C. App. 20, 26, 588 S.E.2d 20, 26 (2003)

(quoting Flake v. Greensboro News Co., 212 N.C. 780, 786, 195 S.E. 55, 60

(1938)).

19 The court finds Defendant Peck is not liable for the statements in the Forms

F-5B for Plaintiffs Cannon, Conner, Koons, and Terrell.

20 “Actual malice is a subjective standard.” Cannon, 891 F.3d at 507 (quoting

Reuber v. Food Chem. News, Inc., 925 F.2d 703, 714 (4th Cir. 1991) (en banc)).

“Although what constitutes ‘[r]eckless disregard . . . cannot be fully

encompassed in one infallible definition,’ the Supreme Court has ‘emphasized

the necessity for a showing that a false publication was made with a “high

degree of awareness of . . . probable falsity.”’” Id. (quoting St. Amant v.

Thompson, 390 U.S. 727, 730-31 (1968)).

i. Nick Hiatt and Matt Cox were not complainants.

ii. As Defendant Mitchell was the self-described

person to whom the alleged complaint was made

and also was the author of the Forms F-5B, she

had knowledge of the falsity. Finally, the

definition of “inappropriate electronic

communications” in the Village Personnel Policy

required the communications to be available over

the internet, which these text messages were not.

c. The court finds the defamatory statements in the Form

F5-Bs, as detailed above, to be libelous per se.

Libel Per Quod

1. The court finds by a preponderance of the evidence that

Defendant Peck21 committed libel per quod against Plaintiff

Conner as the statements in Conner’s termination letter

that he was terminated for “inappropriate electronic

communications,” and “detrimental personal conduct” were

intended to impeach him in his profession, were false, and

were published.22

2. The court finds by clear and convincing evidence that

Defendant Peck did so with actual malice.

a. Defendant Peck was familiar with the Personnel Policy

and knew the definitions of the terms or recklessly

21 The court finds Defendant Mitchell is not liable for the statements in the

termination letter of Plaintiff Conner because Defendant Peck wrote and signed

Plaintiff Conner’s termination letter.

22 To prove defamation, plaintiff must show “that the defendant made false,

defamatory statements of or concerning the plaintiff, which were published to

a third person, causing injury to the plaintiff’s reputation.” Griffin v.

Holden, 180 N.C. App. 129, 133, 636 S.E.2d 298, 302 (2006) (quoting Smith-Price

v. Charter Behavioral Health Sys., 164 N.C. App. 349, 356, 595 S.E.2d 778, 783

(2004)). “The publication must have been intended by defendant to be defamatory

and had to be understood as such by those to whom it was published.” Raymond

U v. Duke Univ., 91 N.C. App. 171, 181, 371 S.E.2d 701, 708 (1988) (citing

Robinson v. Ins. Co., 273 N.C. 391, 394, 159 S.E.2d 896, 899 (1968)). Relevant

to the instant case, the defamatory statement “(1) must touch the plaintiff in

his special trade or occupation, and (2) must contain an imputation necessarily

hurtful in its effect on his business.” Badame v. Lampke, 242 N.C. 755, 757,

89 S.E.2d 466, 468 (1955).

disregarded the definitions of the terms when he wrote

the termination letter for Plaintiff Conner.

b. Conner did not commit “Detrimental personal conduct”

as stated in the letter. “Detrimental personal

conduct” includes “behavior of such a serious

detrimental nature that the functioning of the Village

may be or has been impaired; the safety of persons or

property may be or ha[s] been threatened; or the laws

of any government may be or have been violated.”

(Pls.’ Ex. 7 Village Personnel Policy at 46). The

officers were messaging one another when they were

off-duty and their job performance was unaffected.

There was no threat to the safety of persons or

property or violation of laws in their text messages.

3. Plaintiff Conner has proven special damages23 by showing he

was unable to obtain law enforcement employment after the

publication of his termination letter and instead was

employed as a firefighter and paramedic at Oak Island with

significantly reduced pay. Additionally, Plaintiff Conner

works 240-260 hours per month at the Town of Oak Island,

compared to the 171.5 hours he worked per month for

Defendant Village. In addition to lost wages and earning

capacity, Plaintiff Conner has been diagnosed by a medical

professional with Post Traumatic Stress Disorder arising

from the publication of his termination letter.

Wrongful Discharge24

1. The court finds that Plaintiffs Conner, Koons, and

Terrell failed to prove their wrongful discharge

claims against Defendant Village by a preponderance

of the evidence.

2. Plaintiffs Conner, Koons, and Terrell participated in

some conduct protected by law by speaking about public

23 To prove a claim for libel per quod specifically, a plaintiff must allege and

prove special damages, Renwick v. News and Observer Pub. Co., 310 N.C. 312,

317, 312 S.E.2d 405, 408 (1984), as well as actual malice as the plaintiff is

a public official. Varner v. Bryan, 113 N.C. App. 697, 703, 440 S.E.2d 295,

299 (1994) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964)).

24 Plaintiff Cannon’s wrongful discharge claim was precluded by the court’s

finding that Plaintiff Cannon’s speech did not constitute protected conduct.

[DE #136 at 33 (citing DE #72 at 41)].

safety, a matter of public concern. However, as the

court noted above, Plaintiffs Conner, Koons, and

Terrell also spoke on matters of private concern, and

these matters were not protected.

3. Even if the court were to find that all of the conduct

was protected by law, and that Plaintiffs Conner,

Koons, and Terrell’s participation in this conduct

protected by law was a substantial factor in Defendant

Village’s decision to terminate the Plaintiffs,

Defendant Village offered evidence at trial that it

would have terminated plaintiffs even if they had not

engaged in protected conduct.

4. Village would have terminated plaintiffs for the

unprotected conduct, that is, namely the jokes that

were exchanged as text messages, which Defendants Peck

and Mitchell testified offended them.

5. Therefore, as Defendant Village offered evidence of a

reason for termination other than for the messages on

a matter of public concern, Plaintiffs Conner, Koons,

and Terrell failed to prove their claims of wrongful

discharge.

Breach of Contract

1. As Plaintiff Conner introduced no evidence of the

existence of a contract, the court finds no contract

existed between Plaintiff Conner and Defendant

Village.25

2. Therefore, Plaintiff Conner failed to prove his breach

of contract claim.

Damages

1. Compensatory damages are proper in § 1983 actions.26

25 The court notes Plaintiff Conner himself testified that he “signed a contract

for BLET training.” [DE #153 at 42]. The parties agree that a BLET Training

Agreement was executed between Defendant Mitchell and Plaintiff Conner,

providing that Village would pay for Conner’s BLET Training in exchange for

Conner working for the Village, but there was no evidence presented at trial of

an employment contract. [DE #1-6].

26 Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 306 (1986) (in section

1983 actions, damages are typically "determined according to principles derived

from the common law of torts" and are to compensate for the injury caused by

defendant's breach.)

2. Therefore, the court has calculated compensatory

damages in relation to the lost wages of each

plaintiff against Defendants Peck and Mitchell.

3. Presumed damages27 for libel per se are available for

matters such as loss of reputation or standing in the

community. Therefore, the court is awarding presumed

damages for each plaintiff against each defendant,

with the exception that Plaintiff Conner only has a

libel per se claim against Defendant Mitchell.

4. Plaintiff Conner is entitled to presumed damages on

his libel per quod claim against Defendant Peck.

5. Punitive damages may be assessed on libel claims when

the plaintiffs have proven one of the statutory

aggravating factors, namely fraud, malice, or

“willful or wanton conduct” in addition to “actual

malice.”28

6. “Willful or wanton conduct” “focuses on a defendant's

‘conscious and intentional disregard of and

indifference to the rights and safety of others.’ On

top of that, ‘willful or wanton conduct’ requires an

additional finding unnecessary for a showing of actual

malice—specifically, that ‘the defendant knows or

should know’ that the conduct ‘is reasonably likely

to result in injury, damage, or other harm.’”29

7. Defendant Peck consciously and intentionally

disregarded the rights of the plaintiffs when he wrote

and published the violations of Village Policy knowing

that they were not the reasons for termination, and

with knowledge that the publication would “reasonably

likely result in” harm to plaintiffs.

8. Defendant Mitchell consciously and intentionally

disregarded the rights of the plaintiffs when she

wrote that a complaint was filed in the Forms F-5B

27 Dunn & Bradstreet, Inc. v. Greenmoss Builders, Inc., 427 U.S. 749, 760-61

(1985) (finding “courts for centuries have allowed juries to presume that some

damage occurred from many defamatory utterances and publications.”) (citation

omitted).

28 Desmond v. News and Observer Publ’g Co., 375 N.C. 21, 71, 846 S.E.2d 647, 675

(N.C. 2020) (citing N.C. Gen. Stat. § 1D-15(a)).

29 Id. (emphasis in original) (citations omitted).

when it was not true, and with knowledge that the

publication would “reasonably likely result in” harm

to plaintiffs.

9. Therefore, the court awards punitive damages to

Plaintiffs Cannon, Conner, Koons, and Terrell against

Defendants Peck and Mitchell for punitive damages on

their respective libel claims.

The court awards damages as follows:

I. Compensatory Damages

a. Plaintiff Cannon

1. Compensatory damages for Defendant Peck and

Defendant Mitchell’s violation of plaintiff’s

liberty interest in the amount of $80,000.

2. Presumed damages for Defendant Peck’s libel of

plaintiff in the amount of $25,000.

3.Presumed damages for Defendant Mitchell’s libel

of plaintiff in the amount of $25,000.

b. Plaintiff Conner

1. Compensatory damages for Defendant Peck and

Defendant Mitchell’s violation of plaintiff’s

liberty interest in the amount of $89,000.

2.Presumed damages for Defendant Mitchell’s libel

per se of plaintiff in the amount of $25,000.

3.Presumed damages for Defendant Peck’s libel per

quod of plaintiff in the amount of $25,000.

4. Special damages30 for Defendant Peck’s libel per

quod of plaintiff in the amount of $1.

30 To prevent double recovery for the same injury, Plaintiff Conner will

be awarded lost wages only on his liberty interest claim.

c. Plaintiff Koons

1. Compensatory damages for Defendant Peck and

Defendant Mitchell’s violation of plaintiff’s

liberty interest in the amount of $46,000.

2. Presumed damages for Defendant Peck’s libel of

plaintiff in the amount of $25,000.

3. Presumed damages for Defendant Mitchell’s libel

of plaintiff in the amount of $25,000.

d. Plaintiff Terrell

1. Compensatory damages for Defendant Peck and

Defendant Mitchell’s violation of plaintiff’s

liberty interest in the amount of $92,000.

2. Presumed damages for Defendant Peck’s libel of

plaintiff in the amount of $25,000.

3. Presumed damages for Defendant Mitchell’s libel

of plaintiff in the amount of $25,000.

II. Punitive Damages

a. Plaintiff Cannon

1. Punitive damages for Defendant Peck’s libel of

plaintiff in the amount of $25,000.

2. Punitive damages for Defendant Mitchell’s libel

of plaintiff in the amount of $25,000.

b. Plaintiff Conner

1. Punitive damages for Defendant Peck’s libel of

plaintiff in the amount of $25,000.

2. Punitive damages for Defendant Mitchell’s libel

of plaintiff in the amount of $25,000.

c. Plaintiff Koons

1. Punitive damages for Defendant Peck’s libel of

plaintiff in the amount of $25,000.

2. Punitive damages for Defendant Mitchell’s libel

of plaintiff in the amount of $25,000.

d. Plaintiff Terrell

1. Punitive damages for Defendant Peck’s libel of

plaintiff in the amount of $25,000.

2. Punitive damages for Defendant Mitchell’s libel

of plaintiff in the amount of $25,000.

Conclusion

Therefore, relief is granted as to the following claims:

1. Plaintiffs Cannon, Conner, Koons, and Terrell’s

liberty interest claims against Defendants Peck

and Mitchell in their individual capacities on

plaintiffs’ section 1983 claims for violations

of their Due Process Rights under the Fourteenth

Amendment.

2. Plaintiffs Cannon, Koons, and Terrell’s libel

per se claims against Defendants Peck and

Mitchell.

3. Plaintiff Conner’s libel per se claim against

Defendant Mitchell.

4. Plaintiff Conner’s libel per quod claim against

Defendant Peck.

The following claims are dismissed:

1. Plaintiff Cannon, Conner, Koons, and Terrell’s

Wrongful Discharge claims against Defendant

Village.

2. Plaintiff Conner’s Breach of Contract claim

against Defendant Village.

3. Plaintiff Cannon, Koons, and Terrell’s Libel Per

Se Claims against Defendant Village.

4. Plaintiff Conner’s Libel Per Quod Claim against

Defendant Village.

Based upon Findings of Fact and Conclusions of Law as set out

herein, the summary of awards are as follows:

a. Thomas Cannon

i. Liberty Interest Damages: $80,000

ii. Libel Damages: $50,000

iii. Punitive Damages: $50,000

TOTAL: $180,000

b. Jesse Conner

i. Liberty Interest Damages: $89,000

ii. Libel Damages: $50,001

iii. Punitive Damages: $50,000

TOTAL: $189,001

c. Donald Koons

i. Liberty Interest Damages: $46,000

ii. Libel Damages: $50,000

iii. Punitive Damages: $50,000

TOTAL: $146,000

d. Nicholas Terrell

i. Liberty Interest Damages: $92,000

ii. Libel Damages: $50,000

iii. Punitive Damages: $50,000

TOTAL: $192,000

Plaintiffs are entitled to recover a total of $707,001 from

Defendants Peck and Mitchell as detailed supra.

Any request for costs and attorney’s fees shall be filed in

accordance with Rule 54 of the Federal Rules of Civil

Procedure.

The clerk is directed to enter judgment accordingly. Interest

shall acerue at the post-Jjudgment rate applicable on the date

of judgment. The clerk is directed to close this case.

This 30th day of November 2020.

| JK

Malcolm U. Howard

Senior United States District Judge

At Greenville, NC

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