NC Captain Fired Over Social Media Posts Survives Motion to Dismiss

A North Carolina fire captain who was terminated for a series of offensive social media posts, will be allowed to proceed with his federal lawsuit, but the scope of his claims have been narrowed greatly. That was the ruling by US District Court Judge Thomas D. Schroeder in a lawsuit brought by Captain Dustin Jones against the City of Greensboro.

Captain Jones made a number of social media posts that led to progressive discipline and ultimately his termination in 2023. The posts included:

• 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.”
• “If I’ve ever offended you, I’m sorry . . . that you’re a little bitch.”
• “Straight Pride. It’s natural, it’s worked for thousands of years, and you can make babies.”
• “If this is a woman,” (superimposed on a picture of Rachel Levine, United States Assistant Secretary for Health during the COVID pandemic) “this is a fishing pole” (superimposed on a picture of an assault rifle).
• “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 . . . .” accompanying this post was the definition of blackface from Wikipedia.
• “I identify as invisible. I’m TRANSparent . . . My pronouns are who/where?”

Here is earlier coverage of the suit, including a copy of the complaint. In his suit, Captain Jones alleged six causes of action:

• violation of his First Amendment rights pursuant to 42 U.S.C. § 1983
• violation of his Free Speech rights under the North Carolina Constitution Article I, Section 4
• violation of North Carolina General Statute § 160A-169
• wrongful discharge in violation of the North Carolina Constitution
• breach of contract
• punitive damages

The court dismissed all but Captain Jones’ First Amendment claim, characterizing it as a retaliation action. The court explained as follows:

• 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.
• The public employer does not need to show actual disruption from the speech, “only that an adverse effect was ‘reasonably to be apprehended.'”
• 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.”
• 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.
• “[T]his inquiry is fact-intensive and context-specific, and will depend on the arguments the government develops and the evidence it offers.”
• The government bears the burden to justify the adverse employment action on legitimate grounds.
• The court agrees with Jones that several of his posts implicate matters of public concern.
• 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.
• 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.
• 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 … First Amendment retaliation inquiry – the Pickering balance.
• 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.”
• [T]he 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.

Here is a copy of the decision: