# JONES v. THE CITY OF GREENSBORO

> District Court, M.D. North Carolina · March 31, 2025

URL: https://www.frixlaw.com/law-library/cases/10836330

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** March 31, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10836330

## How later opinions describe it (automated extraction)

- concluding summary judgment for defendant was appropriate and relying on evidence adduced in discovery
- noting that “topics such as academic freedom, civil rights, campus culture, sex, feminism, abortion, homosexuality, religion, and morality . . . plainly touch[] on issues of public, rather than private, concern”
- noting that tenant’s hoarding conditions had created fire hazards

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DUSTIN ROBERT JONES, )
)
Plaintiff, )
)
v. ) 1:24CV450
)
THE CITY OF GREENSBORO and )
GREENSBORO FIRE DEPARTMENT, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
Plaintiff Dustin Jones is a firefighter who alleges his
employment was wrongfully terminated because of his posts to social
media. Before the court is the motion of Defendants the City of
Greensboro (the “City”) and the Greensboro Fire Department (“GFD”)
to dismiss Jones’s first amended complaint (the “complaint”).
(Doc. 12.) Jones has filed a response in opposition (Doc. 16),
and Defendants have filed a reply (Doc. 19). The court held a
hearing on the motion on March 19, 2025. For the reasons that
follow, the motion will be granted in part and denied in part.
I. BACKGROUND
The facts alleged in the complaint, including attachments,1

1 See E.I. du Pont de Nemours and Co. v. Kolon Indus., Inc., 637 F.3d
435, 448 (4th Cir. 2011) (“In deciding whether a complaint will survive
a motion to dismiss, a court evaluates the complaint in its entirety,
as well as documents attached or incorporated into the complaint.”)
(citation omitted). No party questions the authenticity of the
attachments.
which are viewed in the light most favorable to Jones, show the
following:
Jones was a U.S. Navy veteran and decorated captain with over
sixteen years’ experience at the GFD. (Doc. 11 at 2-3 ¶¶ 5-9).
Beginning in 2021, he made several posts to his Facebook page,
which resulted in attempts at corrective action by GFD leadership

and ultimately his termination:
In 2021, Jones “responded to a structure fire” and “took
pictures showing hoarding conditions and posted them” on social
media. (Id. at 25.) On March 10, 2021, the “leadership team”
“coached” Jones regarding this incident, which directed him to
review GFD’s social media directive. (Id. at 25-26; id. at 3-4
¶ 10.)
In November 2022, Jones reposted a Facebook video of Guilford
County Sheriff Danny Rogers dancing at a parade, on which Jones
commented “[t]his is the clown in charge of keeping you safe.
Freaking joke.” (Id. at 23, 26.) Sheriff Rogers, who is black,

was up for reelection at the time. (Id. at 23.) An anonymous
complaint was filed, which led to Jones meeting with Maria Hicks-
Few in GFD’s administration office. (Id.) According to Jones, he
was forced to “basically prove [him]self not to be a racist.”
(Id.) Jones alleges he was “read the definition of clown and told
because black people have been called monkeys and monkeys perform
in the circus with clowns that [his] comment was racist.” (Id.)
In February 2023, following the killing of Tyre Nichols2 by
Memphis police, Jones shared the headline of a related Fox News
article and commented “will we see another George Floyd situation.”
(Id. at 23, 26.) Jones then met with GFD Chief G.J. Robinson,
III, who told Jones that someone had taken his post to the
Greensboro City Council and asserted Jones was trying to incite a

riot. (Id. at 23; id. at 4 ¶ 12.) Robinson told Jones he had
spoken with the Greensboro City Attorney and its human resources
office, who reportedly “could not find fault in the post”; Robinson
nevertheless warned Jones against sharing his political views.
(Id. at 4 ¶ 13, 23.) After the meeting, Jones posted, “[t]o those
watching me . . . keep watching . . . .” (Id. at 26.)
Jones made other posts prior to his termination. While the
dates of these posts are not alleged in the complaint, the
attachments to the complaint suggest that they came to the
attention of GFD leadership following the February 2023 meeting
with Jones. (Doc. 11 at 26.) These include the following:

• “If I’ve ever offended you, I’m sorry . . . that you’re a
little bitch.” (Id. at 28 (ellipsis in original).)
• “Straight Pride. It’s natural, it’s worked for thousands
of years, and you can make babies.” (Id. at 29.)
• “If this is a woman,” (superimposed on a picture of Rachel

2 Nichols was a 29-year-old black man fatally shot by Memphis police
officers.
Levine, United States Assistant Secretary for Health during
the COVID pandemic) “this is a fishing pole” (superimposed
on a picture of an assault rifle). (Id. at 30.)
• “You know what’s insane . . . A white person can paint
their face black and be accused of being a racist. Yet a

man can dress as a woman and be called a hero . . . .” (id.
at 31) (ellipses in original); accompanying this post was
the definition of blackface from Wikipedia. (Id.)
• “I identify as invisible. I’m TRANSparent . . . My
pronouns are who/where?” (Id. at 32.)
On May 12, 2023, GFD Chief Robinson fired Jones, concluding
that his posts had “become increasingly offensive and
discriminatory” and that his conduct was “egregious to the point
that it erode[d] public trust and negatively impact[ed] or
interfere[d] with the day-to-day operations of the Fire

Department.” (Doc. 11 at 21.) Jones appealed his firing to the
City Manager (id. at 22-24), who upheld the termination (id. at
25-27).
This lawsuit followed. Jones alleges violation of his First
Amendment rights pursuant to 42 U.S.C. § 1983 (First Cause of
Action); violation of his Free Speech rights under the North
Carolina Constitution Article I, Section 4 (Second Cause of
Action); violation of North Carolina General Statute § 160A-169
(Third Cause of Action); wrongful discharge in violation of the
North Carolina Constitution (Fourth Cause of Action); breach of
contract (Fifth Cause of Action); and punitive damages (Sixth Cause
of Action). (Doc. 11.) Jones named GFD and the City as Defendants,
although he stipulated at the hearing to dismissal of GFD as a
party. The City now moves to dismiss all counts of the complaint.
II. ANALYSIS

A. Standard of Review
Federal Rule of Civil Procedure 8(a)(2) provides that a
pleading must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P.
(8)(a)(2). A Rule 12(b)(6) motion to dismiss is meant to “test[]
the sufficiency of a complaint” and not to “resolve contests
surrounding the facts, the merits of a claim, or the applicability
of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943,
952 (4th Cir. 1992). To survive such a motion, “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
In considering a Rule 12(b)(6) motion, a court “must accept
as true all of the factual allegations contained in the complaint,”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), and all
reasonable inferences must be drawn in the non-moving party’s
favor, Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997).
However, the court “need not accept as true unwarranted inferences,
unreasonable conclusions, or arguments.” Giarratano v. Johnson,
521 F.3d 298, 302 (4th Cir. 2008) (citation omitted). Rule
12(b)(6) protects against meritless litigation by requiring
sufficient factual allegations “to raise a right to relief above
the speculative level” so as to “nudge[] . . . the[] claims across

the line from conceivable to plausible.” Twombly, 550 U.S. at
555, 570; see Iqbal, 556 U.S. at 678. Thus, mere legal conclusions
should not be accepted as true, and “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S. at 678.
B. Jones’s First Amendment Retaliation Claim
To state a claim under the First Amendment for retaliatory
discharge, a plaintiff must plausibly allege facts that satisfy
the three-prong test set forth in McVey v. Stacy, 157 F.3d 271
(4th Cir. 1998). Thus, the plaintiff must allege facts showing
(1) that he was a “public employee . . . speaking as a
citizen upon a matter of public concern [rather than] as
an employee about a matter of personal interest;” (2)
that his “interest in speaking upon the matter of public
concern outweighed the government's interest in
providing effective and efficient services to the
public;” and (3) that his “speech was a substantial
factor in the employer's termination decision.”
Grutzmacher v. Howard Cnty., 851 F.3d 332, 342 (4th Cir. 2017)
(alteration in original) (quoting and relying on McVey, 157 F.3d
at 277-78).
As to the first prong, “[s]peech involves a matter of public
concern when it involves an issue of social, political, or other
interest to a community.” Id. at 343 (citation omitted). “In
determining whether speech addresses matters of public concern,”
courts “‘examine the content, context, and form of the speech at
issue in light of the entire record.’” Id. (quoting Urofsky v.

Gilmore, 216 F.3d 401, 406 (4th Cir. 2000) (en banc)). “This
public-concern inquiry centers on whether the public or the
community is likely to be truly concerned with or interested in
the particular expression.” Id. (quotation marks and citations
omitted). Conversely, speech implicating matters of only personal
interest does not satisfy the first McVey prong. See id. In that
vein, personal grievances and complaints about employment
conditions do not amount to public-concern speech. See id.
Whether speech addresses a matter of public concern is a legal
determination for the court. Goldstein v. Chestnut Ridge Volunteer
Fire Co., 218 F.3d 337, 351-52 (4th Cir. 2000). If a plaintiff

cannot show his speech was on a matter of public concern, his First
Amendment retaliation claim fails “[i]n the absence of unusual
circumstances,” and the court need not consider the other two McVey
prongs. See Kashdan v. George Mason Univ., 70 F.4th 694, 703 (4th
Cir. 2023) (citation omitted) (dismissing First Amendment claim
where the plaintiff could not show his speech was on a matter of
public concern).
If the plaintiff can show at least some of the speech at issue
implicated matters of public concern, the court must determine
“whether [the plaintiff’s] interest in speaking upon the matters
of public concern outweighed [the defendant’s] interest in
providing effective and efficient services to the public” — the
balancing required by Pickering v. Board of Education, 391 U.S.

563 (1968). Grutzmacher, 851 F.3d at 344-45 (alteration adopted)
(quoting McVey, 157 F.3d at 277). This second prong is also a
question of law for the court. Id. at 345. The public employer
does not need to show actual disruption from the speech, “only
that an adverse effect was ‘reasonably to be apprehended.’”
Maciariello v. Sumner, 973 F.2d 295, 300 (4th Cir. 1992) (quoting
Jurgensen v. Fairfax Cnty., 745 F.2d 868, 879 (4th Cir. 1984)).
To carry out this balancing, the court considers “the context
in which the speech was made, including the employee's role and the
extent to which the speech impairs the efficiency of the
workplace.” Grutzmacher, 851 F.3d at 345 (citation omitted). The

Fourth Circuit has identified nine non-exhaustive factors to
consider:
whether a public employee's speech (1) impaired the
maintenance of discipline by supervisors; (2) impaired
harmony among coworkers; (3) damaged close personal
relationships; (4) impeded the performance of the public
employee's duties; (5) interfered with the operation of
the institution; (6) undermined the mission of the
institution; (7) was communicated to the public or to
coworkers in private; (8) conflicted with the
responsibilities of the employee within the institution;
and (9) abused the authority and public accountability
that the employee's role entailed.
Id. at 345 (quoting Ridpath v. Bd. of Governors Marshall Univ.,
447 F.3d 292, 317 (4th Cir. 2006)). “[T]his inquiry is fact-
intensive and context-specific, and will depend on the arguments
the government develops and the evidence it offers.” Lawson v.
Union Cnty. Clerk of Court, 828 F.3d 239, 252 (4th Cir. 2016).
The government bears the burden to justify the adverse employment
action on legitimate grounds. Id.
The third prong is not contested by the City. Thus, the court
turns to consideration of the first two prongs.
1. Whether Jones’s Posts Implicate Matters of
Public Concern.

The City first argues that Jones’s First Amendment
retaliation claim should be dismissed because his Facebook posts
were not on a matter of public concern. (Doc. 13 at 12-16.) The
City offers several reasons why this is so. As to the post about
Sheriff Rogers, it notes that speech does not address a matter of
public concern simply because it concerns a public official. (Id.
at 13 (citing Carey v. Throwe, 957 F.3d 468, 475 (4th Cir. 2020));
Doc. 19 at 6.) As to the post about the death of Tyre Nichols,
the City asserts that the post should be considered alongside the
follow-up warning, “[t]o those watching me . . . keep
watching . . . ,” and in context merely expresses “‘displeasure
with his supervisors’ that is an interpersonal issue ‘with no
immediate connection to the public well-being.’” (Doc. 13 at 14
(quoting Carey, 957 F.3d at 476); see Doc. 19 at 8.) The City
asserts that Jones’s post “[i]f I ever offended you, I’m
sorry . . . that you’re a little bitch” does not “involve at least
some objective nexus to the public welfare.” (Doc. 13 at 14
(quoting Carey, 957 F.3d at 478); see Doc. 19 at 8.) As to the

post comparing cross-dressing and blackface, it argues this is no
more than a “‘contempt-communicating’ comment of little public
concern.” (Doc. 13 at 15 (quoting Mitchell v. Hillsborough Cnty.,
468 F.3d 1276, 1285 (11th Cir. 2006)).) And as to the hoarding
post, it contends there is no basis within the complaint to
conclude that Jones’s post on the aftermath of a fire at a private
residence was part of a commentary on fire safety. (Doc. 19 at 6;
see Doc. 13 at 13.) The City similarly asserts there is no basis
to conclude Jones’s post of a meme about Dr. Levine is actually a
criticism of that official’s role in leading the country’s response
to the Covid-19 pandemic. (Doc. 19 at 7.) The remainder of the

posts are of little to no public concern, the City argues, because
they are not “intended to evaluate the performance of” Jones’s
employer. (Doc. 13 at 15 (quoting Brooks v. Arthur, 685 F.3d 367,
371 (4th Cir. 2012)).) The public, according to the City, is not
“truly concerned with or interested in” any of Jones’s posts.
(Doc. 19 at 6 (quoting Kashdan, 70 F.4th at 703).)
Jones responds that most, if not all, of his posts implicated
matters of public concern.3 According to Jones, both the post of
the aftermath of a fire at a residence with hoarding conditions
and the post criticizing Sheriff Rogers relate to public safety.
(Doc. 16 at 8-9.) The meme of Dr. Levine implicated both efforts
against the Covid-19 pandemic and the national debate around
transgender rights. (Id. at 9-10). Jones argues that his post

“to those watching me . . . keep watching” referred to the
“unnamed persons” who had a problem with his Tyre Nichols post and
not to any supervisors. (Id. at 11.)
The court agrees with Jones that several of his posts
implicate matters of public concern. His comment asking “will we
see another George Floyd situation” after Tyre Nichols’s death
following beatings by Memphis police implicates matters of public
concern. It is implausible to suggest that concerns over the
racial tensions and societal unrest seen after George Floyd’s
death, and their possible recurrence in the wake of another police-
related death, were not matters of public discourse. Cf. Noble.

v. Cincinnati & Hamilton Cnty. Pub. Libr., 112 F.4th 373, 381 (6th
Cir. 2024) (“Whether one agrees with Noble's views or not, there
is no question that he spoke to a matter of public
concern — namely, whether the alleged violent and destructive

3 At the hearing, counsel for Jones conceded that the post “[i]f I ever
offended you, I’m sorry . . . that you’re a little bitch” would not
implicate a matter of public concern.
tactics of BLM were appropriate means to protest the deaths of
George Floyd and others.”); Darlow v. Babineck, No. 21-13020, 2022
WL 15345444, at *3 (11th Cir. Oct. 27, 2022) (per curiam) (“[I]t
is clear that the death of George Floyd and the resulting events
were matters of public concern because at the time of the post,
they were being discussed extensively in the news. We cannot

conclude that Darlow’s meme of George Floyd with pink skin is
anything other than commentary on the racial issues raised by the
George Floyd incident.”) (internal citation omitted). And as
Jones’s counsel pointed out at the hearing, Jones — as a first
responder — was uniquely positioned to be impacted by any such
unrest.
Jones’s posts advocating for “straight pride” and comparing
cross-dressing (and perhaps implicitly transgenderism) to
blackface also implicate matters of public concern. Courts have
held that debate related to homosexuality and cross-
dressing/transgenderism are matters of public concern. See, e.g.,

Adams v. Trustees of the Univ. of N.C.-Wilmington, 640 F.3d 550,
565 (4th Cir. 2011) (noting that “topics such as academic freedom,
civil rights, campus culture, sex, feminism, abortion,
homosexuality, religion, and morality . . . plainly touch[] on
issues of public, rather than private, concern”); Willey v.
Sweetwater Cnty. Sch. Dist. No. 1 Bd. of Trustees, 680 F. Supp. 3d
1250, 1287 (D. Wyoming 2023) (noting that “it could fairly be said
issues surrounding transgenderism are of ‘political, social, or
other concern to the community’”).
In the City’s view, these posts are not matters of public
concern because the public is not “truly concerned with or
interested in” them. (Doc. 19 at 6 (quoting Kashdan, 70 F.4th at
703).) At oral argument, however, counsel for the City

acknowledged that “discussion on sexual orientation can rise to a
matter of public concern,” but contended that these posts were
merely the “boorish” commentary that falls short of the well-
informed views of a public employee on topics of genuine public
interest. The problem with this argument, though, is that there
is no eloquence threshold speech must clear before it touches on
matters of public concern. In Grutzmacher, for example, Plaintiff
Kevin Buker posted on Facebook, “My aide had an outstanding
idea . . . lets all kill someone with a liberal . . . then maybe
we can get them outlawed too! Think of the satisfaction of beating
a liberal to death with another liberal . . . its almost poetic.”

851 F.3d at 338. Plaintiff Mark Grutzmacher then replied,
“But . . . was it an ‘assult liberal’? Gotta pick a fat one, those
are the ‘high capacity’ ones. Oh . . . pick a black one, those are
more ‘scary’. Sorry had to perfect on a cool idea!” Id. Relying
on an expert report, the Fourth Circuit concluded that the
“liberal” and “assault liberal” post and comment implicated a
matter of public concern because they raised the propriety of gun
control legislation, a recognized topic of public concern. Id. at
343. The posts’ patent boorishness did not prevent the Fourth
Circuit from making such a conclusion. See id.
Here, Jones’s posts are admittedly not masterpieces of social
commentary. But they staked out his positions on matters of
national debate. The court concludes, therefore, that his posts

favoring heterosexuality and comparing cross-
dressing/transgenderism to blackface implicate matters of public
concern.
This conclusion applies as well to Jones’s post about Dr.
Levine, which plainly gives Jones’s stance on transgenderism, a
matter of public concern. See Willey, 680 F. Supp. 3d at 1287.
Jones suggests in his briefing that the post goes beyond a mere
critique of transgenderism and implicates the governmental
response to the Covid-19 pandemic. (See Doc. 16 at 9.) The City
contests this reading. (See Doc. 19 at 7.) Whether the post in
its temporal context was additionally a criticism of the

government’s response to the pandemic and thus further implicates
the public concern is a question better suited for a more developed
record. Cf. Grutzmacher, 851 F.3d at 343-44 (relying on an expert
report to conclude that the plaintiff’s posts implicated the public
concern).
Finally, Jones’s post of photographs from a residence with
hoarding conditions from an “emergency incident” (Doc. 11 at 20)
warrants the reasonable inference that it addressed the safety of
the local community, a matter of public concern. See Goldstein,
218 F.3d at 353. Although the post itself was not attached to the
complaint, it is referenced in the complaint and its attachments.
(Doc. 11 at 3-4 ¶ 10; id. at 20, 22, 25-26.) Jones’s appeal letter
suggests the post was “made in showing pride in the job well done

by [his] crew.” (Id. at 22.) It is true, as the City points out,
that the complaint does not specifically allege at any point that
this post implicated the fire safety of the local community. (See
Doc. 19 at 6; see generally Doc. 11.) At this stage, however, the
court is obliged to draw all reasonable inferences in favor of
Jones as the non-moving party. See Ibarra, 120 F.3d at 474. The
complaint and attached materials suggest the post was taken with
Jones’s crew in the aftermath of a structure fire at a residence
with hoarding conditions. (Doc. 11 at 20, 22, 25-26.) It is a
reasonable inference that Jones’s post implicated the safety of
the local community, given the fire danger inherent in hoarding

conditions. See, e.g., Blatch ex rel. Clay v. Hernandez, 360 F.
Supp. 2d 595, 618 (S.D.N.Y. 2005) (noting that tenant’s hoarding
conditions had created fire hazards); Allstate Vehicle & Property
Ins. Co. v. Harris, Civil Action No. 20-741, 2020 WL 4201598, at
*1 (E.D. Pa. July 22, 2020) (relating Fire Marshal’s Report, which
noted the role of hoarding conditions in a house fire). “Matters
relating to public safety are quintessential matters of ‘public
concern.’” Goldstein, 218 F.3d at 353. A reasonable inference
supports the conclusion that Jones’s post of the aftermath of a
fire, especially given Jones’s knowledge and experience as a
firefighter, implicates public safety and thus a matter of public
concern. Grutzmacher, 851 F.3d at 347 (ellipsis in original)
(citation omitted).4

2. Whether Jones has Plausibly Alleged that He
Prevails on the Pickering Balance.
The City next argues that the court should dismiss Jones’s
First Amendment retaliation claim because even assuming Jones’s
posts implicate matters of public concern, Jones cannot succeed at
the second stage of the First Amendment retaliation inquiry — the
Pickering balance. According to the City, the complaint does not
support a reasonable inference that Jones’s interest in speaking
outweighs its interest in the efficient provision of services to
the public. (Doc. 13 at 16-27, Doc. 19 at 9-13.)
The City raises several arguments as to why the Pickering
balance favors it. First, three factors magnify its interests:

4 The court concludes that Jones’s post criticizing Sheriff Rogers also
implicates matters of public concern, as it implicates both the safety
of the local community and local political decisions. The City argues
that the post is merely criticism of a fellow official for purportedly
boorish off-duty conduct that does not implicate a matter of public
concern under Carey, 957 F.3d at 475. (Doc. 19 at 6-7.) Carey appears
distinguishable, however, because the criticism in that case was not
directed toward an elected official, such as the sheriff, and in context
was merely part of an interpersonal dispute between an employee and his
former captain. See generally id. However, even if Jones’s post
criticizing Sheriff Rogers did not implicate a matter of public concern,
the court’s conclusion on the Pickering balance, infra, would not change.
(1) the paramilitary structure of GFD; (2) Jones’s leadership role;
and (3) “the disrespect [Jones’s] posts showed for members of the
Greensboro community and members of GFD.” (Doc. 13 at 20, 20-26.)
Second, Jones’s interests in his posts are minimal because the
posts are not “grounded . . . in specialized knowledge [nor do
they] express[] a general concern about the inability of the [GFD]

to carry out its vital public mission effectively.” (Id. at 26
(quoting Grutzmacher, 851 F.3d at 347-48).) The City characterizes
Jones’s speech as insubordinate conduct. (Id. at 18-19.)
Few cases, if any, resolve the Pickering balance against the
plaintiff at the Rule 12(b)(6) stage where the plaintiff has
alleged more than a de minimis interest in speech on a matter of
public concern. Rather, the balancing usually implicates fact
questions appropriate for summary judgment. See, e.g.,
Grutzmacher, 851 F.3d at 344-48 (concluding summary judgment for
defendant was appropriate and relying on evidence adduced in
discovery); Maciariello, 973 F.2d at 299-301 (same); Ridpath, 447

F.3d at 318 (stating that “we cannot say that Ridpath will be
unable to show that his interest in first Amendment expression
outweighed the University’s interest in the efficient operation of
his workplace” and noting that “[n]othing in the Amended Complaint
indicates, for example, that his comments impaired the maintenance
of discipline, hurt workplace morale, or constituted an abuse of
his position”).
Although the City properly notes that the Pickering balance
can be completed at this stage, see Doc. 19 at 10-12, the cases
which do so are distinguishable. In one case, the plaintiff school
test coordinator contacted news media to let students and parents
know of safe testing alternatives to in-person testing during the
Covid-19 pandemic, including by opting out of testing. McCoy v.

Kanawha Cnty. Bd. of Educ., No. 2:23-cv-314, 2024 WL 1805005, at
*4 (S.D. W. Va. Apr. 25, 2024). The court concluded that although
this amounted to speech on a topic of public concern, the test
coordinator failed the Pickering balance because her statements to
the media were “misleading,” and “belie[d]” by the U.S. Department
of Education’s guidance on which she purported to rely. Id. at
*16, *17. In another case, the plaintiff assistant county attorney
was fired after she was elected to the city council because her
dual role created an “incurable conflict of interest.” Loftus v.
Bobzien, 848 F.3d 278, 289-90 (4th Cir. 2017). That plaintiff
also failed to sufficiently allege what portions of speech, if

any, were at issue. See id. at 289. And in yet another case, the
plaintiff — who had not been fired, had his pay reduced, or been
demoted — failed the Pickering balance because he failed to
properly plead retaliatory acts by his employer, leaving the court
to conclude he had alleged at most a de minimis harm. Sullivan v.
City of Frederick, No. JKB-17-1881, 2018 WL 337759, at *6 (D. Md.
Jan. 9, 2018), aff’d, 738 F. App’x 198 (4th Cir. 2018). None of
these cases stands for the proposition that a defendant may prevail
on the Pickering balance at the Rule 12(b)(6) stage despite a
plaintiff’s more than de minimis interest in non-misleading speech
on matters of public concern.
The City also emphasizes that the governmental employer need
only have a reasonable fear of disruption from employee speech.

(See Doc. 19 at 9-13.) This is correct. See Maciariello, 973
F.2d at 300. It is also true that Jones attached the City Manager’s
letter upholding Jones’s termination, which expressed concern that
Jones’s posts “interfere with the City’s interest in maintaining
an efficient operation.” (Doc. 11 at 27.) The question, however,
is not whether the governmental employer had a reasonable fear of
disruption, but whether the plaintiff’s “interest in speaking upon
the matter of public concern outweighed the government's interest
in providing effective and efficient services to the public.”
Grutzmacher, 851 F.3d at 342. Indeed, the Fourth Circuit has
“expressly caution[ed] that a fire department’s interest in

maintaining efficiency will not always outweigh the interests of
an employee in speaking on matters of public concern.” Id. at
348. The inquiry is fact-intensive, Lawson, 828 F.3d at 252,
suggesting that evidence will often be needed. Cf. McVey, 157
F.3d at 282 (“This case will require discovery, and perhaps trial,
before the district court can fully weigh McVey's interest in
speaking and the public's interest in her speech against the
government-employer's interest in controlling that speech.”)
(Murnaghan, J.) (controlling opinion).
Here, Jones has expressly alleged that his posts did not
affect either relationships within the fire company or his ability
to lead. (Doc. 11 at 7 ¶¶ 26-29.) And Jones’s posts, although
perhaps not eloquent, implicate matters of public concern in a

more than de minimis and non-misleading fashion, distinguishing
this case from others where courts resolved the Pickering balance
against the plaintiff at the Rule 12(b)(6) stage. Cf. McCoy, 2024
WL 1805005; Loftus, 848 F.3d 278; and Sullivan, 2018 WL 337759.
Finally, the Pickering balance is a fact-intensive inquiry, and
the burden is on the governmental employer to justify the
discharge. The court concludes, therefore, that Jones has
plausibly alleged his interest in speaking upon the matters of
public concern will not be outweighed by the City’s interest in
providing effective and efficient services to the public.5
For these reasons, and because the City acknowledged at oral

argument that it does not contest at this stage that Jones’s speech
was a motivating factor in his termination, reserving the right to

5 Jones’s appeal letter, attached to the complaint, asserts a “double
standard” where other GFD individuals have made offensive posts and not
been fired. (Doc. 11 at 23.) The complaint does not allege any specific
facts to support this contention. The court therefore need not consider
it at this stage. In any event, because the court concludes that there
are fact questions as to the City’s reasonable apprehension of
disruption, Jones’s contention of a “double standard” does not affect
the City’s motion to dismiss.
contest this third McVey prong at a later stage, the court
concludes that the complaint has plausibly stated a claim for First
Amendment retaliation. The City’s motion to dismiss this claim
will therefore be denied.
C. Violation of North Carolina General Statute § 160A-169
Jones’s third cause of action alleges a violation of North

Carolina General Statute section 160A-169. (Doc. 11 at 12.) That
statute is entitled “City Employee Political Activity.” Its
“purpose” is to “ensure that city employees are not subjected to
political or partisan coercion while performing their job duties,
to ensure that employees are not restricted from political
activities while off duty, and to ensure that public funds are not
used for political or partisan activities.” N.C. Gen. Stat.
§ 160A-169(a). To that end, it provides that no employee who is
on duty or in the workplace may “(1) [u]se his or her official
authority or influence for the purpose of interfering with or
affecting the result of an election or nomination for political

office; or (2) [c]oerce, solicit, or compel contributions for
political or partisan purposes by another employee.” Id. § 160A-
169(c). Employers are forbidden from requiring employees to
“contribute funds for political or partisan purposes” as a
condition of employment. Id. § 160A-169(d). And there is a
prohibition on the use of “city funds, supplies, or equipment” for
partisan or political purposes. Id. § 160A-169(e). Nevertheless,
“[it] is not the purpose of this section to allow infringement
upon the rights of employees to engage in free speech and free
association.” Id. § 160A-169(a).
The City argues that this claim should be dismissed because
section 160A-169 does not provide a private right of action, and
even if it did, Jones’s conduct does not implicate the statute.

(Doc. 13 at 28.) Jones conceded at the hearing that this statute
does not contain an express private right of action, which is
plainly correct from its text. Jones argues, however, that there
is an implied cause of action under the statute (Doc. 16 at 18)
and that his politically-oriented social media posts fall within
its protections (id. at 18-20). Jones also quotes from Marbury v.
Madison for the proposition that “where there is a legal right,
there is also a legal remedy by suit or action at law, whenever
that right is invaded.” (Doc. 16 at 18-19 (quoting 5 U.S. 137,
163 (1803)).) The question for this court, therefore, is whether
section 160A-169 contains an implied private right of action under

North Carolina law.
Jones points to no North Carolina case that states that
section 160A-169 provides a private right of action. He points to
the North Carolina Court of Appeals decision in Sugar Creek Charter
School, Incorporated v. Charlotte-Mecklenburg Board of Education,
as establishing a framework for the creation of implied private
rights of action. (Doc. 16 at 18 (relying on 673 S.E.2d 667, 673
(N.C. Ct. App. 2009)).) But this argument is not persuasive. As
an initial matter, it is uncertain whether Sugar Creek accurately
states the test for whether a statute creates an implied private
right of action under North Carolina law. The North Carolina
Supreme Court has recently declined to endorse Sugar Creek, albeit
without disavowing that decision. See United Daughters of the

Confederacy v. City of Winston-Salem by and through Joines, 881
S.E.2d 32, 52 (N.C. 2022) (assuming without deciding that Sugar
Creek accurately “identified the circumstances under which a
statute implicitly authorizes a private right of action”). But
even if Sugar Creek is good law, section 160A-169 does not
authorize a private right of action under the considerations that
case identifies. In Sugar Creek, the court of appeals stated that
“an implicit right of a cause of action exists when a statute
requires action from a party, and that party has failed to comply
with the statutory mandate.”6 Sugar Creek, 673 S.E.2d at 673
(emphasis added) (citing Lea v. Grier, 577 S.E.2d. 411, 415-16

(N.C. Ct. App. 2003)). The court of appeals concluded: “We hold

6 Jones’s reference to Marbury v. Madison for the proposition that where
there is a right, the law provides a remedy of course begs the question
whether there is a legal right. The Supreme Court has explained,
however, that “even where a statute is phrased in such explicit rights-
creating terms, a plaintiff suing under an implied right of action still
must show that the statute manifests an intent ‘to create not just a
private right but also a private remedy.’” Gonzaga Univ. v. Doe, 536
U.S. 273, 284 (2002) (emphases in original) (quoting Alexander v.
Sandoval, 532 U.S. 275, 286 (2001)). Here, section 160A-169 provides
neither a right nor a private remedy.
that [the North Carolina statute governing charter schools]
creates an implied cause of action in favor of Plaintiffs when
they allege violation of the mandatory provisions of this statute.”
Id. at 674.
Here, the statute’s operative subsections list only
prohibited activities. N.C. Gen. Stat. § 160A-169(c), (d), (e).

The statute does not include any affirmative mandate. Jones
therefore cannot show that section 160A-169 includes a private
right of action under the test set out in Sugar Creek, even
assuming it sets out the applicable standard. Cf. United Daughters
of the Confederacy, 881 S.E.2d at 52 (noting that “even assuming,
without deciding, that the Court of Appeals has correctly
identified the circumstances under which a statute implicitly
authorizes a private right of action in Sugar Creek Charter School,
nothing in N.C.G.S. § 100-2.1 ‘requires action from a party’ with
which ‘that party has failed to comply’” but rather “prohibits the
removal or relocation of certain specified objects that are owned

by the State or located on public property”) (emphasis removed)
(internal citation removed).
Jones also compares this case to Lambert v. Town of Sylva,
816 S.E.2d 187 (N.C. Ct. App. 2018). (See Doc. 16 at 19-20.) But
Lambert is distinguishable for three reasons. First, it is
factually distinct, as the plaintiff there alleged he was fired
for having run for county sheriff as a Republican. Lambert, 816
S.E.2d at 190. Second, although the plaintiff pressed several
claims, including one pursuant to section 1983, id. at 193, he did
not assert a standalone claim for a violation of section 160A-169,
see generally id. Instead, he asserted “wrongful termination in
violation of North Carolina public policy as expressed in N.C.
Gen. Stat. § 160A-169.” Id. at 190 (emphasis added). Here,

Jones’s claim under section 160A-169 is asserted in addition to
his separate claim for wrongful termination. (See Doc. 11 at 12
(Fourth Cause of Action).) Third, the Town of Sylva did not raise
any challenge to the viability of a claim under section 160A-169,
and the court of appeals did not consider any such challenge. See
Lambert, 816 S.E.2d at 190-91. Lambert simply did not consider
the viability of a claim under section 160A-169. It is well
settled that “[q]uestions which merely lurk in the record, neither
brought to the attention of the court nor ruled upon, are not to
be considered as having been so decided as to constitute
precedents.” Webster v. Fall, 266 U.S. 507, 511 (1925).

For these reasons, the court will therefore grant the City’s
motion to dismiss as to Jones’s claim under section 160A-169 (Third
Cause of Action).
D. Breach of Contract
Jones alleges that the City breached his contractual rights
by failing to adhere to the disciplinary procedures contained
within the GFD Directives (the "Directives”). (Doc. 11 at 14-15
¶¶. 62-70.) The parties dispute both whether the Directives bind
the City contractually and whether the City violated the
Directives. (Doc. 13 at 29-31; Doc. 16 at 20-22; Doc. 19 at 15-
16.)
In North Carolina, in the absence of an employment contract,
one is employed at-will. Kurtzman v. Applied Analytical Indus.,

Inc., 493 S.E.2d 420, 422 (N.C. 1997). Under North Carolina law,
“unilaterally promulgated employment manuals or policies do not
become part of the employment contract unless expressly included
in it.” Walker v. Westinghouse Elec. Corp., 335 S.E.2d 79, 83-84
(N.C. Ct. App. 1985). Such policies may, however, be incorporated
by explicit reference within the employment contract. See, e.g.,
Hoaglin v. Duke Univ. Health Sys., Inc., 901 S.E.2d 378, 383, 385
(N.C. Ct. App. 2024). Here, the closest Jones comes to alleging
that the Directives are binding is the statement that “[a]s an
employee, Defendant has a contractual right to enforce the
directives and mandate punishment within its directives.”7 (Doc.

11 at 15 ¶ 65.)
The complaint contains no allegation that Jones entered into
an employment contract. (See generally id.) Instead, construed
in the light most favorable to Jones, the natural reading of his

7 At the hearing, counsel for Jones clarified, without objection, that
the reference in paragraph 65 of the complaint to “Defendant” should
read instead, “As an employee Plaintiff has a contractual right to
enforce the directives.”
complaint’s assertions regarding breach of contract is that he had
a contractual right in the Directives themselves; there is no
allegation or fair inference that the Directives were incorporated
into any contract of employment. (See id. at 14-15 ¶¶ 62-70.) As
the complaint stands, therefore, Jones does not plausibly allege
that the Directives were incorporated into an employment contract

so as to bind the City. Cf. Guarascio v. New Hanover Health
Network, Inc., 592 S.E.2d 612, 614 (N.C. Ct. App. 2004) (concluding
the Code of Conduct at issue was not binding where the at-will
employee did not allege the Code of Conduct was “expressly included
in” the contract, and the complaint only included the “mere
conclusory allegation, without supporting factual allegations,
that the NHRMC Code of Conduct was part of plaintiff's employment
contract”).
Jones, in his briefing and at the hearing on the motion,
suggested the existence of a separate written contract. (See Doc.
16 at 21 (“Upon information and belief, such discovery would reveal

documentation showing that Plaintiff’s contract of employment
sufficiently incorporated the manual for breach of contract
purposes.”).) Of course, a plaintiff may not amend his complaint
through his response brief. Rhoads v. Guilford Cnty., No. 1:23-
cv-854, 2024 WL 4332719, at *11 n.14 (M.D.N.C. Sept. 27, 2024).
Nor through oral argument. E.I. du Pont de Nemours and Co. v.
Kolon Indus., 637 F.3d 435, 449 (4th Cir. 2011).
The City’s motion to dismiss Jones’s breach of contract claim
(Fifth Cause of Action) will therefore be granted. But because
counsel indicated at the hearing that he may have evidence of a
contract of employment, dismissal will be without prejudice.
E. Violation of the Right to Free Speech under the North
Carolina Constitution Article 1, Section 14 and Wrongful
Termination
The complaint’s Second Cause of Action alleges “Violation of
the Plaintiff’s Rights to Free Speech as Guaranteed by the North
Carolina Constitution Article 1, Section 14”; the Fourth Cause of
Action alleges “Wrongful Termination for Participation in Lawful
Activities.” (Doc. 11 at 11-14.) The City seeks to dismiss these
claims on the same grounds it seeks to dismiss the First Amendment
retaliation claim.8 (Doc. 13 at 27.) Because the court has denied
the City’s motion to dismiss the First Amendment retaliation claim,
however, it will likewise deny the motion to dismiss these two
claims.
F. Punitive Damages
Finally, Jones’s Sixth Cause of Action is entitled “Punitive

Damages.” (Doc. 11 at 15.) Punitive damages are, however, a
remedy — not an independent cause of action. Bruton v. FirstHealth
of the Carolinas, Inc., No. 1:12-cv-253, 2012 WL 5986788, at *2
(M.D.N.C. Nov. 29, 2012) (noting that “[t]he doctrine of punitive

8 Jones’s counsel acknowledged at the hearing that Jones’s claim under
the North Carolina Constitution would rise or fall with his First
Amendment claim.
damages is a means of punishing a wrongdoer but does not, by
itself, provide an independent basis for asserting a claim”)
(quoting Gauldin v. Honda Power Equip. Mfg., Inc., 351 F. Supp. 2d
455, 458 (M.D.N.C. 2005)). Because Jones’s Sixth Cause of Action
for punitive damages is not a freestanding claim, the City’s motion
to dismiss it will be granted.9

III. CONCLUSION
For the reasons stated,
IT IS ORDERED that Defendants’ motion to dismiss (Doc. 12) is
GRANTED IN PART and DENIED in part, as follows:
The motion to dismiss Jones’s First Amendment retaliation
claim (First Cause of Action) is DENIED.
The motion to dismiss Jones’s claim for violation of North
Carolina General Statute § 160A-169 (Third Cause of Action) is
GRANTED, and the claim is DISMISSED WITH PREJUDICE;
The motion to dismiss Jones’s breach of contract claim (Fifth
Cause of Action) is GRANTED, and the claim is DISMISSED WITHOUT

PREJUDICE;
The motion to dismiss Jones’s claim for violation of the North
Carolina Constitution (Second Cause of Action) and Jones’s claim
for wrongful termination (Fourth Cause of Action) is DENIED; and

9 This dismissal does not affect Jones’s prayer for relief to the extent
it seeks punitive damages. (Doc. 11 at 17 ¶ 6.)
The motion to dismiss Jones’s claim for punitive damages
(Sixth Cause of Action) is GRANTED, and the claim is DISMISSED
WITH PREJUDICE;
The motion to dismiss the GFD is GRANTED and the GFD is
DISMISSED as a party to this litigation.

/s/ Thomas D. Schroeder
United States District Judge
March 31, 2025

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10836330. Public record. Not legal advice.