Hunter v. Town of Mocksville, 072618 FED4, 17-1374

Docket Nº:17-1374
Opinion Judge:WYNN, Circuit Judge
Party Name:KENNETH L. HUNTER; RICK A. DONATHAN; JERRY D. MEDLIN, Plaintiffs - Appellants, v. TOWN OF MOCKSVILLE, NORTH CAROLINA; ROBERT W. COOK, in his official capacity as Administrative Chief of Police of the Mocksville Police Department and in his individual capacity; CHRISTINE W. BRALLEY, in her official capacity as Town Manager of the Town of ...
Attorney:Reynolds Michael Elliot, Robert Mauldin Elliot, ELLIOT MORGAN PARSONAGE, Winston-Salem, North Carolina, for Appellants. Cathryn MacDonald Little, LITTLE & LITTLE, PLLC, Raleigh, North Carolina, for Appellee Interlocal Risk Financing Fund of North Carolina. Patrick Houghton Flanagan, CRANFILL, SUM...
Judge Panel:Before NIEMEYER, WYNN, and DIAZ, Circuit Judges. NIEMEYER, Circuit Judge, concurring in part and dissenting in part:
Case Date:July 26, 2018
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
SUMMARY

This appeal stemmed from and action brought by three police officers against the Town, alleging claims related to the officers' termination. On appeal, the officers challenged the district court's post trial rulings. The Fourth Circuit held that the district court erred when it concluded that each plaintiff's claim arose out of the "same" wrongful act and, in the alternative, the meaning of "inter... (see full summary)

 
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KENNETH L. HUNTER; RICK A. DONATHAN; JERRY D. MEDLIN, Plaintiffs - Appellants,

v.

TOWN OF MOCKSVILLE, NORTH CAROLINA; ROBERT W. COOK, in his official capacity as Administrative Chief of Police of the Mocksville Police Department and in his individual capacity; CHRISTINE W. BRALLEY, in her official capacity as Town Manager of the Town of Mocksville and in her individual capacity, Defendants - Appellees,

and

INTERLOCAL RISK FINANCING FUND OF NC, Intervenor - Appellee.

NORTH CAROLINA ADVOCATES FOR JUSTICE; NATIONAL ASSOCIATION OF POLICE ORGANIZATIONS, INC., Amici Supporting Appellants.

No. 17-1374

United States Court of Appeals, Fourth Circuit

July 26, 2018

Argued: March 22, 2018

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, Chief District Judge. (1:12-cv-00333-TDS-JEP)

ARGUED:

Reynolds Michael Elliot, Robert Mauldin Elliot, ELLIOT MORGAN PARSONAGE, Winston-Salem, North Carolina, for Appellants.

Cathryn MacDonald Little, LITTLE & LITTLE, PLLC, Raleigh, North Carolina, for Appellee Interlocal Risk Financing Fund of North Carolina. Patrick Houghton Flanagan, CRANFILL, SUMNER & HARTZOG, LLP, Charlotte, North Carolina, for Appellee Town of Mocksville, North Carolina.

ON BRIEF:

Albert M. Benshoff, BROUGH LAW FIRM, PLLC, Chapel Hill, North Carolina; Philip M. Van Hoy, Stephen J. Dunn, VAN HOY REUTLINGER ADAMS & DUNN, Charlotte, North Carolina, for Appellee Town of Mocksville, North Carolina.

Narendra K. Ghosh, Paul E. Smith, PATTERSON HARKAVY LLP, Chapel Hill, North Carolina, for Amicus North Carolina Advocates for Justice.

J. Michael McGuinness, THE MCGUINNESS LAW FIRM, Elizabethtown, North Carolina; William J. Johnson, NATIONAL ASSOCIATION OF POLICE ORGANIZATIONS, Alexandria, Virginia, for Amicus National Association of Police Organizations, Inc.

Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.

WYNN, Circuit Judge

Plaintiffs-three former police officers with the Town of Mocksville Police Department ("Mocksville PD")-sued Mocksville Administrative Chief of Police Robert W. Cook ("Cook"), Mocksville Town Manager Christine W. Bralley ("Bralley"), and the Town of Mocksville ("the Town," and collectively with Cook and Bralley, "Defendants"), alleging several claims related to Defendants' termination of Plaintiffs' employment. At the conclusion of trial, a jury found Defendants liable to Plaintiffs under both state and federal law, awarded Plaintiffs approximately $1.4 million in compensatory damages, and recommended that the district court further award Plaintiffs approximately $2.6 million in front pay.

In a series of post-trial rulings, the district court awarded Plaintiffs substantially less front pay than the jury had recommended and held that governmental immunity limited the Town's aggregate liability for damages. Plaintiffs appeal both rulings, as well as the district court's pre-trial dismissal of Plaintiffs' First Amendment claims against the Town.

For the reasons that follow, we reverse the district court's conclusion that the Town's insurance policy covered only $1 million of the aggregate damages awarded to Plaintiffs. We also reverse the district court's dismissal of Plaintiffs' First Amendment claims against the Town. But we conclude that the district court properly disposed of Plaintiffs' remaining claims. Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I.

Plaintiffs Kenneth L. Hunter, Rick A. Donathan, and Jerry D. Medlin worked at Mocksville PD for several years.[1] Throughout their tenure with Mocksville PD, Plaintiffs received numerous awards and commendations. After Cook became Mocksville PD's Administrative Chief of Police, Plaintiffs developed concerns about his personal conduct and management of Mocksville PD. Plaintiffs initially voiced their concerns to Bralley; however, they noticed no marked improvement in Cook's behavior thereafter.

On December 14, 2011, Plaintiffs used a disposable cell phone to contact the North Carolina Office of the Governor (the "Governor's Office") and report what they viewed as corruption and misconduct within Mocksville PD. The Governor's Office relayed Plaintiffs' concerns to the State Bureau of Investigation ("SBI") for further inquiry. A week later, Plaintiffs noticed a local SBI Agent at Mocksville PD and subsequently received a call from that agent on the disposable phone. Plaintiffs did not return the call and, out of fear of retaliation, disposed of the phone.

Despite Plaintiffs' efforts to remain anonymous, Cook and Bralley eventually identified Plaintiffs as the anonymous callers. Thereafter, Cook and Bralley consulted with the Town's attorney to determine whether they could lawfully terminate Plaintiffs. After being advised that they could do so lawfully, Cook and Bralley terminated Plaintiffs from Mocksville PD on December 29, 2011. Plaintiffs' termination letters stated that they were fired for myriad misdeeds, including "[i]nsubordinat[ion]," "[a]ttitude," and "conduct unbecoming a[n] [o]fficer." See J.A. 2381, 2415, 2420. However, prior to Plaintiffs' terminations, none had received any performance-related discipline, and "[t]heir written service records were essentially unblemished." Hunter v. Town of Mocksville, 201 F.Supp.3d 750, 754 (M.D. N.C. 2016). Additionally, this "was the first time that then-Chief Cook had ever terminated an officer," notwithstanding the fact that other officers previously had engaged in misconduct. Id. at 753.

In April 2012, Plaintiffs filed a complaint in the U.S. District Court for the Middle District of North Carolina against the Town, Cook, and Bralley. In their complaint, Plaintiffs alleged that they were (1) terminated in retaliation for exercising their free speech rights under the First Amendment of the United States Constitution, in violation of 42 U.S.C. § 1983; (2) denied their rights to free speech, guaranteed by Sections 1 and 14 of Article 1 of the North Carolina Constitution; and (3) wrongfully discharged against public policy, in violation of North Carolina state law.

In September 2013, the district court granted partial summary judgment to Defendants on all of Plaintiffs' First Amendment claims. In a memorandum opinion explaining its decision, the district court first concluded that qualified immunity shielded Cook and Bralley from suit. The district court further concluded that Plaintiffs' terminations could not fairly be attributed to the Town for purposes of municipal liability under Section 1983 because Plaintiffs failed to demonstrate that either Cook or Bralley possessed "final policymaking authority" to set employment policy for the Town. Hunter v. Town of Mocksville, No. 1:12-cv-333, 2013 WL 5726316, at *9-10 (M.D. N.C. Oct. 21, 2013), vacated in part, 2014 WL 881136 (M.D. N.C. Jan. 22, 2014). And the district court reserved judgment on the question of whether Plaintiffs could properly pursue their free speech claims under the North Carolina Constitution. Id. at *11.

In January 2014, the district court reversed its grant of summary judgment to Cook and Bralley on Plaintiffs' First Amendment claims, instead concluding that neither defendant was entitled to qualified immunity. Hunter v. Town of Mocksville, No. 1:12-cv-333, 2014 WL 881136, at *2 (M.D. N.C. Jan. 22, 2014). In so doing, the district court relied on Durham v. Jones, 737 F.3d 291 (4th Cir. 2013), then a newly issued opinion, in which this Court held that "it was clearly established in the law of this Circuit . . . that an employee's speech about serious governmental misconduct, and certainly not least of all serious misconduct in a law enforcement agency, is protected," id. at 303-04 (citation omitted). This Court affirmed the district court's holding that neither Cook nor Bralley was entitled to qualified immunity, but concluded that we lacked subject matter jurisdiction to consider the propriety of the district court's interlocutory order dismissing Plaintiffs' First Amendment claims against the Town. Hunter v. Town of Mocksville, 789 F.3d 389, 400-03 (4th Cir. 2015).

Following a nine-day trial, a jury returned a verdict for Plaintiffs on their First Amendment claims against Cook and Bralley, as well as a verdict for Plaintiffs on their state-law wrongful-discharge claims against the Town. The jury found all Defendants liable to Plaintiffs for approximately $1.4 million in compensatory damages, and awarded Plaintiffs an aggregate total of $60, 000 in punitive damages to be paid specifically by Cook and Bralley. The jury also returned an advisory verdict recommending that Defendants pay Plaintiffs approximately $2.6 million in front pay. Soon thereafter, Plaintiffs moved for the entry of judgment and equitable relief in the form of reinstatement or...

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