Cannon v. Peck

• Decision Date: 08 June 2022
• Docket Number: 20-2382, No. 21-1061
• Citation: 36 F.4th 547
• Parties: Thomas M. CANNON; Jesse M. Conner; Donald M. Koons; Nicholas M. Terrell, Plaintiffs – Appellees, v. Calvin R. PECK, Jr., in his individual capacity; Caroline Mitchell, in her individual capacity, Defendants – Appellants, and Village of Bald Head Island, North Carolina, Defendant. Thomas M. Cannon; Jesse M. Conner; Donald M. Koons; Nicholas M. Terrell, Plaintiffs – Appellants, v. Village of Bald Head Island, North Carolina; Calvin R. Peck, Jr., in his individual capacity; Caroline Mitchell, in her individual capacity, Defendants – Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

36 F.4th 547

Thomas M. CANNON; Jesse M. Conner; Donald M. Koons; Nicholas M. Terrell, Plaintiffs – Appellees,

v.Calvin R. PECK, Jr., in his individual capacity; Caroline Mitchell, in her individual capacity, Defendants – Appellants,andVillage of Bald Head Island, North Carolina, Defendant.

Thomas M. Cannon; Jesse M. Conner; Donald M. Koons; Nicholas M. Terrell, Plaintiffs – Appellants,

v.Village of Bald Head Island, North Carolina; Calvin R. Peck, Jr., in his individual capacity; Caroline Mitchell, in her individual capacity, Defendants – Appellees.

No. 20-2382

No. 21-1061

United States Court of Appeals, Fourth Circuit.

Argued: January 25, 2022

Decided: June 8, 2022

ARGUED: Norwood Pitt Blanchard, III, CROSSLEY MCINTOSH COLLIER HANLEY & EDES PLLC, Wilmington, North Carolina, for Appellants/Cross-Appellees. Samuel B. Potter, HODGES, COXE & POTTER, LLP, Wilmington, North Carolina, for Appellees/Cross-Appellants. ON BRIEF: Bradley A. Coxe, HODGES, COXE & POTTER, LLP, Wilmington, North Carolina, for Appellees/Cross-Appellants.

Before MOTZ, AGEE, and WYNN, Circuit Judges.

Affirmed in part and reversed in part by published opinion. Judge Wynn wrote the opinion, in which Judge Motz and Judge Agee joined.

WYNN, Circuit Judge:

In August 2014, Plaintiffs Thomas Cannon, Jesse Conner, Donald Koons, and Nicholas Terrell were fired from their Department of Public Safety positions with the Village of Bald Head Island ("the Village"), a municipality located in Brunswick County, North Carolina. Following their departures, Village employees published Plaintiffs' termination letters and department separation affidavits which accused Plaintiffs of violating certain employee policy provisions.

Plaintiffs filed suit alleging numerous claims. As relevant here, they brought defamation claims under North Carolina state law against the Village; Calvin Peck, Jr., the Village Town Manager; and Caroline Mitchell, the Village Director of Public Safety. The district court dismissed the defamation claims against the Village but found Peck and Mitchell liable for defamation for publishing the termination letters and separation affidavits, respectively. Defendants appealed and Plaintiffs cross-appealed as to the dismissal of the Village.

For the reasons discussed below, we affirm the district court's dismissal of all defamation claims against the Village and its judgment against Mitchell for defamation stemming from the publication of the separation affidavits. However, we reverse the district court's judgment against Peck for defamation arising from publication of the termination letters for lack of actual malice.

I.

A.

For several years Plaintiffs worked for the Village's Department of Public Safety.¹ Cannon v. Vill. of Bald Head Island (Cannon IV ), No. 7:15-CV-187-H, 2020 WL 7041459, at *1 (E.D.N.C. Nov. 30, 2020). "The Department combines [the Village]'s firefighting, paramedic, and police departments in a single multi-disciplinary group of emergency personnel." Cannon v. Vill. of Bald Head Island (Cannon II ), 891 F.3d 489, 494 (4th Cir. 2018). Conner and Koons worked as Public Safety Officers, while Cannon and Terrell were employed in leadership positions as Lieutenants of Public Safety.

On August 28, 2014, Conner, Koons, and Terrell were called to individual meetings with Peck and Mitchell, and informed that they were being fired, effective immediately. Conner, Koons, and Terrell were then made to turn in their badges and clean out their lockers before being escorted off the premises. Because he was out of town at the time, Cannon was informed of his immediate termination by way of a phone call from Mitchell on the same day.

During their individual meetings, Conner, Koons, and Terrell were each handed a letter, signed by Peck, stating that the "communications that [they] took part in during the period from July 25, 2014 to August 15, 2014" violated certain provisions of the Village Personnel Policy (the "Policy"), subjecting Plaintiffs to immediate termination. J.A. 37–39].² Cannon later received a similar termination letter by certified mail.

The specific Policy provisions these "communications" violated varied with each termination letter and Plaintiff. Conner's letter stated that his "actions and comments" violated provisions of the Policy "related to discourteous treatment of other employees ... and inappropriate electronic communications." J.A. 37. Cannon's letter included allegations of discourteous treatment and inappropriate communications as well as violations of Policy provisions pertaining to "harassment." J.A. 36. And Koons's and Terrell's letters included accusations of discourteous treatment, inappropriate electronic communications, harassment, and "sexual harassment." J.A. 38–39. Cannon's and Terrell's letters further stated that the Village had "no tolerance for harassment," especially by those in leadership positions who were "expected to not only abide by policy, but to assist in upholding" those policies. J.A. 36, 39. Each letter concluded that the "egregious nature of these communications and the flagrant violation of policy ... constitute[d] detrimental personal conduct and is thereby grounds for immediate termination." J.A. 36–39. The letters offered no further information as to what specific behaviors or comments violated these provisions.

The communications referenced in the termination letters included two separate text-message chains in which Plaintiffs, and other Village Public Safety Officers, participated.³ The text messages were sent during the officers' off-duty time and on their private phones. The content of the text messages runs the gamut, containing swear words, personalized memes, movie references, general commentary, and crude jokes.

For example, the first text-message chain, which includes all Plaintiffs, begins with a comment from Cannon stating, "[Officer Sam Proffit] getting his hands dirty ... Of course there was a young female involved," followed by a picture of a man fixing a bicycle. J.A. 921. Conner reiterated the sentiment and Proffit retorted that "[Conner] only does it to show off for the same sex." J.A. 923.

In the second chain, Conner, Koons, Terrell, and several other officers exchanged memes and discussed frustrations with Village management. For instance, in one message, Terrell sent a picture of a man in a revealing bathing suit with the remark "New water rescue gear," which sparked a train of comments from Conner, Koons, Terrell, and other officers regarding male genitalia sizes. J.A. 929–930B. Another officer messaged that he "heard on [a social media app] the other day that [Officer] Matt [Cox] and [Terrell] were lovers," to which Terrell retorted that the other officers were "all just jealous because Matt is the best and coolest supervisor on [Bald Head Island] and he chose me to be his [best friend forever]." J.A. 930J, 930L.

Officer Jeff Sypole, who is not a party to this suit, sent several memes involving Conner. The first included Conner's picture captioned, "I am not saying I want to be a [Lieutenant] but if dicks had wings, my mouth would be an airport." J.A. 930E. Another was captioned, "I am no weather man, but the command staff can expect a few inches tonight." J.A. 930D. The last meme sent by Sypole depicted a man being hit in the face with hot dogs and stated that "Jeese's [sic] [Lieutenant] interview went well." J.A. 930F. Terrell, Koons, and Conner all responded to these memes. Terrell indicated laughter ("Haha") and commented that one of them was "The funniest shit [he had] ever seen." J.A. 930E–F. Koons remarked that he thought Conner got "upgraded to [Captain]" and that Conner had "been in the office all day taking a pounding." J.A. 930F. Conner simply stated that Sypole had spelled his first name incorrectly.

The texts also discussed issues with management and referenced Mitchell several times. Many of these messages related to a 2014 newspaper article which allegedly quoted Mitchell as claiming that "all but two of the full-time staff of 20 have their certifications in the four areas"—law enforcement, paramedic, firefighter, and water rescue. J.A. 21, 328–29; see also J.A. 925–29. Plaintiffs assert that there was technically no certification for water rescue. Accordingly, Conner, Terrell, and Koons all expressed concern about the article, as did other officers in the chat who indicated that this statement was categorically false. A few comments, largely made by officers other than Plaintiffs, observed that Mitchell was either being less than honest or simply could not count.

As part of this ongoing conversation, Sypole sent a meme of Mitchell captioned, "Only two of our staff are not certified in all areas. But that does not include me, a captain. A captain not fit for duty[,] and four other staff members[,] but that is off the record." J.A. 930I. None of the Plaintiffs responded. Sypole also sent a picture of Mitchell captioned, "Who am I? I'm the dude, playing a dude, disguised as another dude," in reference to the film Tropic Thunder. J.A. 930N Once again, none of the Plaintiffs responded. Sypole also sent another Tropic Thunder –inspired meme regarding Mitchell seeking CPR training in Colorado, commenting, "You want us to think nothing of you going to Colorado for CPR training? You just went full retard." J.A. 924; see also J.A. 458. In response, Terrell wrote "Hahaha" and Koons commented, "Good one." J.A. 924.

B.

After Plaintiffs were terminated, Karen Williams, the Village's Director of Human Resources and Communications, sent an email on behalf of Peck to all Village employees regarding Plaintiffs' terminations ("August 28 email"). The email did not explicitly name Plaintiffs but stated that several "officers have been released from employment this morning based on violations of Village policies pertaining to harassment, sexual harassment, discourteous conduct[,] and inappropriate electronic communications." J.A. 1132. The email then quoted the section of the Policy...