March 28 Order in Ronald Johnson Lawsuit

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

WESTERN DMSION
No. 5:23i'CV-349-D
RONALD L. JOHNSON, JR., )

)
Plaintiff, )
)
v. ) ORDER
)
TOWN OF SMITHFIBLD, et al., )
)
Defendants. )
On June 26, 2023, Ronald L. Johnson, Jr. ("Johnson" or ''plaintiff'') filed this action against
(1) the Town of Smithfield ("Smithfield,,), (2) Michael Scott (''Scott'') in his individual and official
capacity as Town Manager,(3) Timothy Kerigan (''Kerigan") in his individual and official capacity
as Town Human Resources Director, (4) Terry West ("West'') in his individual and official capacity
as Town Police Deparbnent Lieutenant, (5) Keith Powell (''Powell") in his individual and official
capacity as Town Police Chief: (6) Marlon Lee ("Lee") in his individual and official capacity as
Town Council Member, (7) the Johnston County School Board of Education (''Board"), (8) Todd
Sutton ("Sutton") in his individual and official capacity as a member and former chair of the Board,
(9) Terri Sessoms ("Sessoms") in her individual and official capacity as a member of the Board,
(10) Terry Tippett ("Tippett'') in his individual and official capacity as a member ofthe Board, (11)
Michael Wooten ("Wooten") in his individual and official capacity as a member of the Board, (12)
Lyn Andrews ("Andrews") in her individual and official capacity as a member and chair of the
Board, (13) Kay Carroll ("Carroll") in his individual and official capacity as a member of the
Board, (14) Kevin Donovan ("Donovan") in his individual and official capacity as a member of
the ~oard, (15) Susan Doyle ("Doyle") in her individual and official capacity as District Attorney
Case 5:23-cv-00349-D-RN Document 112 Filed 03/28/24 Page 1 of 65

of Johnston County, (16) Richard Hoffman (''Hoffman") in his individual and official capacity as
an assistant district attorney special investigator of Johnston County, (17) Benjamin 0. Zellinger
("Zellinger") in his individual and official capacity as a special prosecutor for Johnston County,
(18) Angie McLeod ("McLeod"), (19) Jimmy Lawrence ("Lawrence"), (20) David Marshburn
("Marshburn"), and (21) the Estate of Joseph Preston ("Preston") (collectively, "defendants")
[D.E. I].
Johnson alleges (1) sex discrimination in violation of Title VII of the Civil Rights Act of
1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., against Smithfield, (2) retaliation in violation of
Title VII against Smithfield, (3) discrimination in violation of the Americans with Disabilities Act
("ADA"), 42 U.S.C. §§ 12101 e t ~ against Smithfield, (4) retaliation in violation of the ADA
against Smithfield, (5) interference in violation of the Family and Medical Leave Act ("FMLA"),
29 U.S.C. § 2615, against Smithfield and Scott, Kerigan, West, Powell, and Lee in their individual
capacities, (6) retaliation in violation of the FMLA against Smithfield and Scott, Kerigan, West,
Powell, and Lee in their individual capacities, (7) violations of the First Amendment of the United
States Constitution under 42 U.S.C. § 1983 against Smithfield, Scott, Kerigan, Powell, and West
in their individual capacities, and Lee in both his individual and official capacities, (8) violations
of the First Amendment of the United States Constitution under 42 U.S.C. § 1983 against the
Board, Sutton, Sessoms, Tippett, Wooten, Andrews, Carroll, and Donovan in their individual and
official capacities, (9) violations of the FourthAmendment of the United States Constitution under
42 U.S.C. § 1983 against Doyle, Hoffinan, and Zellinger in their individual and official capacities,
(10) wrongful termination under North Carolina law against Smithfield, Scott, Kerigan, Powell,
and West, (11) abuse of process under North Carolina law against Doyle, Hoffinan, and Zellinger,
(12) intentional infliction of emotional distress under North Carolina law against all defendants,

I '
(13) tortious interference with contract under North Carolina law against the Board, Lee, Sutton,
Sessoms, Tippett, Wooten, Andrews, Carroll, Donovan, McLeod, Marshburn, Lawrence, and
Preston, (14) defamation under North Carolina law against all defendants, and (15) conspiracy
under 42 U.S.C. § 1983 against all defendants. See [D.E. 1] 2-4, 86-108. 1
On August 25, 2023, Lawrence moved to dismiss for failure to state a claim [D.E. 41] and
filed a memorandum in support [D.E. 42]. On August 28, 2023, Zellinger moved to dismiss for
failure to state a claim [D.E. 45] and filed a memorandum in support [D.E. 46]. The same day,
Doyle and Hoffman moved to dismiss for lack ofjurisdiction and failure to state a claim [D.E. 47]
and filed a memorandum in support [D.E. 48]. On August 29, 2023, Marshburn filed an answer
[D.E. 50]. On September 8, 2023, Andrews, Carroll, Donovan, the Board, Sessoms, Sutton,
Tippett, and Wooten moved to dismiss for failure to state .a claim [D.E. 67] and filed a
memorandum in support [D.E. 71]. The same day, Kerigan, Lee, Powell, Scott, Smithfield, and
West moved to dismiss for failure to state a claim [D.E. 72] and filed a memorandum in support
[D.E. 73]. On September 20, 2023, Johnson filed a motion to deem his pleadings timely filed to
allow his response in opposition to Lawrence's motion to dismiss [D.E. 81]. On October 2, 2023,
Lawrence replied [D.E. 83]. On the same day, Johnson responded in opposition to Zellinger's
motion to dismiss [D.E. 84] and Doyle and Hoffman's motion to dismiss [D.E. 85]. On October
13, 2023, Johnson responded in opposition to Kerigan, Lee, Powell, Scott, Smithfield, and West's
motion to dismiss [D.E. 90]. On October 16, 2023, Zellinger replied [D.E. 92], and Doyle and
1 Johnson alleges violations of the North Carolina Persons with Disabilities Act, N.C. Gen.
Stat. §§ 168A-l, et seg. See [D.E. 1] 2. Johnson fails to allege any specific incidents or allege
this violation as a count in his complaint. Thus, the court declines to consider any alleged violation
of the North Carolina Persons with Disabilities Act. Additionally, Johnson alleges a Fifth
Amendment violation. See id. at 3. Johnson, however, fails to allege any specific incidents or
allege this violation as a count in his complaint. Thus, the court declines to consider any alleged
Fifth Amendment violation.
3

Hoffman replied [D.E. 93]. . On the same day, Johnson responded in opposition to Andrews,
Carroll, Donovan, the Board, Sessoms, Sutton, Tippett, and Wooten's motion to dismiss [D.E. 95].
On October 20, 2023, McLeod moved to dismiss [D.E. 98], filed a memorandum in support [D.E.
99], and filed a motion to deem timely filed her motion to dismiss [D.E. 100]. On November 6,
2023, Andrews, Carroll, Donovan, the Board, Sessoms, ~utton, Tippett, and Wooten replied [D.E.
106]. On November 10, 2023, Kerigan, Lee, J>owell, Scott, Smithfield, and West replied [D.E.
108]. On November 27, 2023, Johnson responded in opposition to McLeod [D.E. 111].
As explained below, the court grants Lawrence's motion to dismiss, denies Johnson's
motion to deem timely filed his opposition to Zellinger's motion to dismiss, grants Zellinger's
motion to dismiss, gran~ Doyle and Hoffinan's motion to dismiss, dismisses in part Johnson's
claims against Marshburn, grants the motion to dismiss of the Board, Sutton, Sessoms, Tippett,
Wooten, Andrews, Carroll, and Donovan, grants in part and denies in part Smithfield's motion to
dismiss, grants Scott, Kerigan, West, Powell, and Lee's motion to dismiss, denies McLeod's
motion to deem timely filed her motion to dismiss, and dismisses Preston from the action.
I.
On June 13, 200S, Johnson joined the Smithfield Police Department as a police officer.
See Compl. [D.E. l] 4, 18. In 2012, the Smithfield Police Department promoted Johnson to
detective1 See id. During this time, Johnson received excellent performance ratings. See id.
Johnson alleges that while he served in the police department, Powell made improper comments
and engaged in other misconduct. See id. at 42-49.
In 2016, with the knowledge and permission of his supervisors and Smithfield, Johnson
ran for the Board. In 2016, the voters in Johnston County elected Johnson to the Board. See id.
at 4, 18. While serving on the Board, Johnson allegedly encountered misconduct, including sexual

harassment of a female employee by Lawrence in July 2019, a controversy with the Clayton High
School principal, Bennett Jones ("Jones"), concerning how the school issued diplomas in August
2019, and self-dealing by Board member Tracie Zukowski ("Zukowski"). See id. at 4, 18-22. In
August 2019, in his capacity as a Board member, Johnson proposed that the Board adopt a policy
against sexual harassment. See id. at 19-22. On August 23, 2019, Lawrence filed a complaint
against Johnson for bringing his service weapon onto school property. See id. at 19.
On January 2, 2020, the Raleigh News and Observer published an article concerning a
video interview that Johnson posted on December 30, 2019. See [D.E. 2-2]. In the interview,
Johnson said that he would give the State Bureau of Investigation recordings, emails, and text
messages proving that high-ranking school officials engaged in "corrupt behavior." Id. at 2.
According to the article, Johnson alleged bribery, corruption, lying to the public, and covering up
complaints of sexual harassment of school employees. See id. According to the article, Johnson
alleged that Art Stanley, the school district's chief finance officer, had been directed to lie about
the amount of money the school district required. See id at 3. Johnson called for a forensic audit
of the school district's finances. See id. at 4. The article also stated that since June 2019, Johnson
had been trying to help two female school employees who reported being sexually harassed and
inappropriately touched by a male school employee. See id Johnson claimed that he repeatedly
conveyed information about the sexual harassment to school staff and Board members. See id.
Johnson also claimed that he had proof of the sexual harassment, "including a recording of the
male employee loosening his clothes, pulling at the clothes of one of the female employees, and
the employee pushing him away and telling him to stop." Id. at 5. In the same article, the
newspaper reported that Sutton denied that he or the Board had lied to the public about school
finances or anything else, that he had not received any proof of the alleged sexual harassment from

Johnson until January 1, 2020, and that Johnson was supposed to provide evidence to the school
superintendent to address the sexual harassment allegations. See id. at 2-5.
The newspaper also reported that Johnson claimed that Zukowski engaged in self-dealing
because she promoted products that her employer sold. See id. at 5-6. Sutton responded that there
was no conflict of interest because Zukowski's employer had replaced her as its representative
after voters elected Zukowski to the Board. See id. at 6.
In the same article, Johnson charged that a "high-ranking'' school official tried to bribe
Jones with promises that he could keep his job as principal and get a promotion. Id. According to
Johnson, the bribery scheme involved Jones publicly blaming a Board member as being the
"driving force" behind the Clayton High School diploma controversy. Id. When Jones refused to
join the bribery scheme, Jones was reassigned to another school in August 2019. See id.
On January 9, 2020, the JoCo Report published an article concerning the sexual harassment
allegations. See [D.E. 2-3]. The article recounted an interview with a "longtime Johnston County
Public Schools employee." Id. at 1. The article identified the ''victim" employee as "one of two
women" referenced in Johnson's allegations. Id. The alleged victim remained anonymous but
detailed two years of verbal comments and unwanted touching by a powerful and influential man.
See id. at 2. She repeatedly told the man to stop. See id. He did not. See id. In 2018, the victim
complained to her supervisor. See id. Her supervisor did nothing. See id. In June 2019, she
approached Johnson for assistance. See id. at 3.
In August 2019, according to the article, Johnson confronted the man and also told the
Board about the sexual harassment. See id. at 3-4. In response, the Board told the man not to be
alone with the female school employee. See id. Nevertheless, the man kept going to her office

and allegedly told her, "I will have his (Johnson's) badge and I will have it framed and on the wall
in my house." Id at 4.
According to the article, the victim came forward in response to WRAL-TV's coverage of
Board Chair Sutton's January 2, 2020 press conference. See id. The victim said that when Sutton
questioned Johnson's credibility, she knew she had to "speak out." Id In the article, the victim
urged Sutton and other members of the Board to take action. See id. at 6.
The Board retained Tharrington Smith LLP to investigate the allegations. As part of its
investigation, Tharrington Smith LLP learned about inappropriate text messages that Johnson
exchanged with then-Board counsel Lawrence during April 2019 and May 2019 Board meetings
concerning a female school employee. See [D.E. 2-4] 1-2, 6. On January 27, 2020, Tharrington
Smith LLP shared the April 9, and May 14, 2019 text messages with Johnson. Johnson, in turn,
met with the female school employee and told her that he and Lawrence inappropriately texted
with each other in 2019 about a blue dress that the female school employee had worn to some
Board meetings in 2019. See id. at 2-3. Johnson did not share the text messages with the female
school employee. See id
On March 6, 2020, Lawrence resigned as Board counsel "effective immediately." [D.E. 2-
5]; ~ Compl. 22-23.
In October 2020, McLeod initially assisted Johnson with his reelection campaign. The
relationship between Johnson and McLeod, however, turned sexual. See Compl. 23-40. Johnson
alleges that the relationship was not consensual and that McLeod forced herself upon him and then
threatened to tell Johnson's wife about their affair. See id. at 23-28.
In November 2020, the voters reelected Johnson to the Board See id. at 23. In December
2020, believing he was a victim of blackmail and extortion, Johnson requested help through the

Smithfield Employee Assistance Program from Kerigan, Smithfield's Human Resources Director.
See id at 28-29.
In May 2022, after McLeod's actions escalated, Johnson notified West, his supervisor at
the Smithfield Police Department, about his encounters with McLeod. See id at 34. Also in May
2022, Board attorneys informed Johnson that McLeod had filed a complaint against Johnson with
the school system. See id. at 63. On June 14, 2022, WRAL's Kara Lysie sent an information
'
request to Johnson stating that ''paperwork was being filed against [Johnson] by McLeod for
stalking and sexual harassment." Id. at 36. Marshburn and McLeod provided the story to WRAL.
See id Johnson called West for advice on how to respond. See id at 36-37. West told Johnson
to get a protective order against McLeod. See id. Johnson proceeded to_ do so. See id. at 37--40.
On June 24, 2022, at 8:00 p.m., Marshburn, a candidate for Johnston County Sheriff, and
Preston streamed their first of 23 Facebook Live webcasts and public posts. See id. at 5, 40--42,
50-51, 56, 59, 62. In these webcasts, Marshburn and Preston alleged that Johnson had "engaged
in misconduct as a police detective, violated the law, and that [Johnson] had engaged in misconduct
as a member of the [Board]." Id at 5. Marshburn and Preston also shared Johnson's "confidential
personnel information and confidential personal health information." Id. at 42, 51. Johnson
alleges Marshburn and Preston received this information at the direction of West or Powell. See
id. at 58. The webcasts resulted in Johnson developing anxiety and depression. See id. at 5.
On June 29, 2022, West notified Johnson that he was the subject of an admjnjstrative
investigation as a result of the June 24, 2022 webcast. See id. at 5, 49-62; [D.E. 2-6]. Smithfield
intended to determine if Johnson ''used department equipment to investigate people in furtherance
of [his] political career and in the commission of an extra-marital affair in violation of departmental
policy." [D.E. 2-6] at 1. The notice advised Johnson that Smithfield General Order Section 201

required officers to "avoid actions that tend to bring the Department into disrepute or tend to impair
the operations of the Department or the efficiency of any officer or employee." Id It also advised
Johnson that Smithfield General Order Section 202 prohibited officers from· engaging in "any
activity· or personal business which would cause them to neglect or be inattentive to their
responsibilities." Id Moreover, it advised Johnson that Smithfield General Order Section 204
stated that no "department member or employee shall use any supplies or equipment of
[Smithfield] for political or partisan purposes." Id Furthermore, it advised Johnson that
Smithfield Personnel Regulation 42 provided that "[Smithfield] employees are not to use
[Smithfield] equipment or vehicles for private purposes." Id.
On July 5, 2022, at 4:40 p.m., Smithfield placed Johnson on admjnjstrative leave with pay.
See Compl. 52. On July 6, 2022, Johnson requested leave under the FMLA and provided
Smithfield with a physician's note that he should not work until at least July 29, 2022. See id. at
55. Smithfield granted the FMLA leave but required Johnson to cooperate with the investigation
and remain in daily contact with West. See id at 56.
On July 12, 2022, Smithfield placed Johnson on administrative leave without pay. See id.
at 55. The same day, Wes~ and Powell went to Johnson's residence and pressured Johnson to return
to work early. See id. Smithfield also asked Johnson for return-to-work notices regularly. See id.
at 56.
On July 27, 2022, Johnson informed Smithfield that he believed the administrative
investigation was based on his sex. See id. at 57. Smithfield did not investigate Johnson's sex-
discrimination allegation and continued to investigate Johnson. See id.
Concurrently with Smithfield's investigation of Johnson, the Board hired Tharrington
Smith LLP to investigate Johnson's conduct on the Board. See id. at 6, 62-73. On August 1, 2022,

Johnson met with the Board's attorneys conducting the investigation, but Johnson refused to
provide information during August 2022 without first obtaining counsel. See id. at 65-66.
On August 9, 2022, the day after the April 9, and May 14, 2019 text exchanges aired on a
Facebook Live webcast, the female school employee texted Johnson. See [D.E. 2-4] 3. She asked,
"so the texts in the infamous Facebook live last night are what you told me about / apologized for
awhile ago?" Id. Johnson responded, "Yes." Id.
On August 24, 2022, Tharrington Smith LLP reported its findings to the Board. See [D.E.
2-8] 1. The investigation focused on two allegations: Johnson's recording of a closed session
Board meeting and Johnson's attemptto interfere in the school assignment of two special education
students. See id. at 2.
As for the first allegation, the investigation revealed that Johnson secretly recorded a
portion of the Board's May 31, 2022 closed session meeting and later played that recording for a
Board employee. See id. at 5. The Tharrington Smith LLP report stated that Johnson
"acknowledged that he has recorded Board members on approximately 10 occasions since January
2022, without telling them he was recording, and that one discussion he recorded pertains to JCPS
business." Id. at 5. Tharrington Smith LLP observed that under the Board's Code of Ethics Policy,
Board members promise to ''not make secret recordings, in any format, on school system property,
at school- or Board-related events or meetings, or otherwise connected to the business of the Board
or the Johnston County Public Schools." Id. at 7. Tharrington Smith LLP concluded that Johnson's
actions violated Section (B)(7) of the Code of Ethics. See id. at 8.
As for the second allegation, Tharrington Smith LLP investigated complaints from a parent
that Johnson attempted to remove the parent's two autistic children from their school assignment
because of ''personal issues" between Johnson and the parent. See id. at 11. Tharrington Smith
10

LLP's interviews with the school's principal and other Board employees revealed that Johnson
"sought to interfere with the school assignment of two special education students for personal
reasons," specifically because, "Johnson said Parent A had turned on him and that pulling the
reassignments for Students 1 and 2 would do him a solid." Id. at 13. Tharrington Smith LLP found
that Johnson violated Board Code of Ethics Policy 2120(B)(l4), which includes "refrain[ing] from
using the [B]oard member's position on the Board for personal or partisan gain." Id.
On August 24, 2022, the Board issued two public censures against Johnson based on
Tharrington Smith LLP's findings. See Compl. 67. After the Board meeting, Tharrington.Smith
LLP contacted Johnson concerning a third allegation. See id. at 69-70. According to Sutton, an
employee raised ~ claim of sexual harassment based on text messages that Johnson exchanged
with Lawrence during Board meetings in April and May 2019. See [D.E. 2-9] 1.
On September 7, 2022, Johnson's attorney provided Tharrington Smith LLP with
information concerning the allegations. See Compl. 71. On September 19, 2022, Johnson also
provided sworn answers to interrogatories. See id. On September 26, 2022, Tharrington Smith
LLP also asked Johnson whether Johnson used a Smithfield Police Department vehicle to visit a
female school employee's residence and whether he showed that female school employee videos
or promotional material for his Board campaign. See [D.E. 2-9] 2.
On September 30, 2022, West told Johnson that Johnson perjured himself when seeking a
protective order against McLeod because Johnson requested a "SOC protective order'' instead of a
"SOB protective order." See Compl. 61. A SOB protective order is a domestic violence protective
order concerning a person with whom the alleged victim had a personal relationship, including a
current or former spouse or current or former paramour. See id. A SOC protective order is a civil
no contact order that is designed for a victim of sexual assault or stalking who has not had a
11

personal relationship with the offender. See id Powell also told Johnson that Johnson used police
department equipment for personal use. See id at 81.
On October 5, 2022, following Smithfield's investigation of Johnson, Powell delivered to
Johnson an "Employee Dismissal Recommendation." See id. at &-7, 8~5. In his
recommendation, Powell stated that Johnson's conduct on the Board negatively affected Johnson's
''perceived integrity, neutrality, or reputation related to the performance of the employee's town
duties" in violation of the Smithfield handbook. [D.E. 2-13] 1. Powell also found that Johnson
violated General Order Section 201, which states that "[o]fficers and employees are to conduct
their private and professional lives in a manner becoming the office they hold." Id. "Officers and
employees shall avoid actions that tend to bring the department into disrepute or tends to impair
the operation of the department ...." Id
On October 6, 2022, Tharrington Smith LLP completed its investigation and issued a
memorandum concerning the alleged inappropriate text messages that Johnson exchanged with
Lawrence during Board meetings in April and May 2019. See [D.E. 2-4]. During the investigation,
Tharrington Smith LLP interviewed Lawrence, and he admitted exchanging the inappropriate text
messages. Additionally, Johnson responded, through counsel, via affidavits in September and
October 2022. See id. In the affidavits, Johnson admitted that during a Board meeting on April 9,
2019, he and Lawrence exchanged inappropriate text messages about the desirability of a female
school employee who was attending the meeting. See id. at 1-2, 6. Likewise, on May 14, 2019,
at a Board meeting, Johnson and Lawrence exchanged another inappropriate text message about
the same female school employee attending the meeting. See id. at 2, 7.
As mentioned, on January 27, 2020, Tharrington Smith LLP shared the text messages of
April 9, and May 14, 2019, with Johnson as part of a separate investigation. See id. at 2. The
12

same day, Johnson texted the female school employee who was the subject of the text exchanges.
See id. at 2-3. Johnson asked to meet her because he ''might've let [her] down." Id. at 2. In
response to Tharrington Smith LLP's questions in 2022, Johnson said that the purpose of the
January 27, 2020 meeting with the female school employee was not to discuss the text exchanges
ofApril 9, and May 14, 2019. See id. at 3. Instead, Johnson claimed that he met the female school
employee to discuss a personal matter. See id. The female school employee, however, told
Tharrington Smith LLP in 2022 that at the January 27, 2020 meeting, Johnson told her that he and
Lawrence had texted about a blue dress that she was wearing at a 2019 Board meeting. See id. In
2020, Johnson did not share the text messages with the female school employee. See id. At a
Board meeting following their meeting on January 27, 2020, Johnson texted the female school
employee and asked ''where's the blue dress?" Id.
On October 6, 2022, Tharrington Smith LLP found that Johnson's 2019 text messages
concerning the appearance and desirability of a female school employee violated Board policies
requiring a respectful work environment. See id. at 4. Tharrington Smith LLP also found that
Johnson's subsequent 2019 text to the female school employee asking ''where's the blue dress"
also violated the same Board policies. See id.
Tharrington Smith LLP observed that Board Policy 1010 required Board members to take
"steps necessary to ensure legal compliance ofBoard and school system functions." Id. Moreover,
the Board's Code of Ethics required Board members to: (1) "uphold the integrity and
independence of the [B]oard member's office"; (2) "avoid impropriety in the exercise of the
Board's and [B]oard member's official duties"; (3) model "civility to students, employees, and all
elements of the community by encouraging the free expression of opinion by all [B]oard members
and engaging in respectful dialogue with fellow [B]oard members on matters being considered by
13

the Board"; and (4) ''take no private action that will compromise the Board or admjnjstration." Id
at4-5.
Tharrington Smith LLP found that (1) "Johnson's text strings about the appearance and
desirability of an employee on duty at a Board meeting damaged the integrity of his office in
violation of Policy 2120(A.2)"; (2) "Johnson's text messages constituted unpropriety in the
exercise of his office and thus violated Policy 2120(A.3)"; (3) "Johnson's text messages set an
example of incivility to a school employee in violation of Policy 2120(B.4)"; and (4) "Johnson's
salacious text messages during a Board meeting about an employee present in her official role
compromised the Board's mission ofprovid[ing] a respectful workplace that complies with law
and Board policy in violation of Policy 2120(B.16)." Id at 5.
On October 6, 2022, the Board issued its third public censure against Johnson. See Compl.
73. Johnson alleges that the Board's investigation was incomplete and biased in an attempt to •
force Johnson to resign from the Board. See id. at 6. The same day, the Board's attorneys released
their investigative reports in a public session. See id. at 73.
After censuring Johnson on October 6, 2022, the Board referred Johnson's conduct to the
Johnston County District Attorney's Office to determine whether Johnson committed the
misdemeanors of a public official's willful and corrupt omission, neglect, or refusal to discharge
his duties and the willful and corrupt violation of his oath of office. See id. at 6.
On October 14, 2022, Scott terminated Johnson's employment with Smithfield. See [D.E.
2-14]. Scott's stated reasons for terminating Johnson's employment included those reasons
outlined in Powell's October 5, 2022 recommendation and the new allegations that were publicly
revealed on October 6, 2022, in a JoCo Report news article concerning the inappropriate text
messages in April and May 2019. See id. at 1. Scott determined that this admitted conduct of
14

"sending the text messages at issue in the article" also violated the Smithfield Employee
Handbook. See id. Scott noted that he and Johnson met on October 12, 2022, to allow Johnson
to respond to the most recent allegations and Powell's recommendation. See id. at 1-2. Scott
made his final decision to terminate Johnson's employment after reviewing Johnson's responses,
Powell's recommendation, the recent allegations, and Johnson's admissions. See id. at 2. After
terminating Johnson's employment, Scott informed Johnson of his right to appeal the decision.
See id.
In November 2022, the voters reelected Johnson to the Board See Compl. 73.
On January 25, 2023, Hoffman, an investigator with the Johnston County District
Attorney's office, obtained a search warrant from a North Carolina Superior Court Judge to search
Johnson's office and car and to seize evidence of "[l]arceny of property" and "[w]illfully failing
to discharge duties and [o]bstruction of [j]ustice." Id. at 75-76 (quotations omitted); see N.C. Gen.
Stat.§§ 14-72, 14-230. Hoffman's probable cause affidavit in support of the search warrant cited
Tharrington Smith LLP's findings that Johnson "secretly recorded a closed session" meeting of
the Board. [D.E. 2-11] 6. The affidavit also stated that upon Johnson's termination from the
Smithfield Police Department, the department asked Johnson to return two iPhones that the
department issued to him. See id. Johnson had not returned the two iPhones despite department
requests, and the affidavit noted that a person could use the iPhones as recording devices even
without active cellular service. See id. The affidavit noted Johnson's history of making and
sharing recordings of other individuals without their knowledge. See id. The affidavit also noted
reports from witnesses that Johnson had used an iPhone to discuss school board information and
information related to Board election campaigns. See id. at 7. The affidavit stated that Hoffman
personally and recently viewed an iPhone and other electronic items used for video and
15

photography at Johnson's office. See id. The iPhone matched the model and description that the
Smithfield Police Department provided to Johnson. See id. at 8.
On January 25, 2023, the Clayton Police Department assisted Hoffman when he went to
apply to a North Carolina Superior Court Judge for a search warrant to obtain the iPhones. See id.
While Hoffman was applying for the search warrant, Johnson visited his office and left minutes
later with a large box. See id.
On March 29, 2023, Hoffman obtained another search warrant from a North Carolina
Superior Court Judge to search Johnson's residence and car and to seize evidence of"[l]arceny of
property," "[w]illfully failing to discharge duties, [f]elony obstruction ofjustice[,] and [c]onspiracy
to [c]ommit extortion." Id at 12. Hoffman's probable cause affidavit in support of the search
warrant recounted Johnson's secret recordings concerning Board matters. See id. at 16--17. The
affidavit also recounted statements from Angie McLeod (then named Angie Barbour) concerning
Johnson's request for McLeod to ''help record other persons," so that Johnson could "obtain
recordings he could use at a later time for leveraging or to give him an advantage." Id. at 18.
According to McLeod, Johnson "asked her to help him get De[V]an Barbour by recording him or
by having sex with him." Id. A search warrant for the records connected with a phone Johnson
gave to McLeod revealed that the email address used to activate the. phone was
''[email protected]." Id. at 19-20. The affidavit also stated that a search of Johnson's
police department computer revealed "recordings of several past school superintendents and
[B]oard members." Id. at 20.
The affidavit in support of the search warrant also included details of Hoffman's interview
of DeVan Barbour on November 1, 2022. See id. at 21. During that interview, Barbour recounted
to Hoffman a meeting between Barbour and Johnson in April 2022, where Johnson told Barbour
16

that he had a damaging recording of an incident between Barbour and McLeod. See id. at 22. At
the time of the April 2022 meeting, Barbour was a candidate for Congress in a contested primary
and the election was on May 17, 2022. See id. At the time of the April 2022 meeting, Johnson
told Barbour that in exchange for not releasing the damaging recording and thereby damaging
Barbour's campaign, Johnson wanted Barbour to secure a ''written statement from [McLeod]
stating that she lied about the affair'' with Johnson. Id. As further support of Barbour's allegations
about Johnson, Hoffman obtained text messages from Barbour. The text messages were between
Barbour and Johnson and corroborated the occurrence and timing of Barbour's April 2022 meeting
with Johnson. See id at 22-24. The affidavit also stated that on May 12, 2022, Barbour received
a text message from a phone number with an out of state area code again threatening to release the
damaging recording of an incident between Barbour and McLeod. See id. Hoffman also obtained
and executed a search warrant to determine the registered phone number behind the disguised
''Pinger'' phone number, and the search revealed Johnson's T-Mobile phone number as the
registered user of the disguised ''Pinger'' number. See id. at 25.
Hoffman's affidavit in support ofthe search warrant also stated that Johnson removed items
from his office before a Superior Court Judge issued the January 25, 2023 search warrant and
immediately after someone told Johnson that the district attorney's office asked about security
footage at the location of Johnson's office. See id. at 28. Hoffman noted that this "appeared to be
in an effort to remove and/or destroy evidence this investigator was attempting to seize with a
search warrant." Id
On April 3, 2023, a Johnston County grand jury indicted Johnson and charged him with (1)
felony extortion on April 25, 2022, in violation of North Carolina General Statute§ 14-118.4 by
threatening a candidate for political office, DeVan Barbour rv, with the intent to wrongly obtain
17

an advantage, (2) willfully failing to discharge duties in violation of North Carolina General Statute
§ 14-230 by recording a closed session of the Board's meeting on May 31, 2022, (3) willfully
failing to discharge duties in violation of the same statute by failing to comply with public records
requests on November 10, 2022, (4) willfully failing to discharge duties in violation of the same
statute by attempting to transfer students to another school as an act of personal retaliation on July
1, 2022, and (5) felony common law obstruction of justice on January 25, 2023, by removing
evidence related to Johnson's criminal activity when he was aware that law enforcement intended
to search his belongings. See [D.E. 2-12]; Compl. 78-79. The charges remain pending in Johnston
County Superior Court. See Compl. 7, 73-86.
On June 26, 2023, Johnson filed this action. Johnson seeks reinstatement with the
Smithfield Police Department, backpay, compensatory damages, punitive damages, and injunctive
relief against all defendants. See id. at 108--09.
n.
A.
Johnson seeks to have his response in opposition to Zellinger's motion to dismiss deemed
timely filed. See [D.E. 80, 81]. On September 18, 2023, Johnson's response was due. See [D.E.
81] 1. That day, Johnson's counsel was unable to file in CM/ECF. See id. To remedy this issue,
at 11:56 p.m., Johnson's counsel emailed the filings to
''[email protected]'' and opposing counsel. See id. at 2. On September
20, 2023, Johnson filed a motion to have his response in opposition deemed timely filed. See id.
The Eastern District of North Carolina's CM/ECF Policy Manual ("Policy Manual")
outlines the policy for technical failures. ''The Eastern District of North Carolina's CM/ECF
website will be considered a 'technical failure' if the site is unable to accept filings continuously
18

or intermittently over the course of any period of time greater than one hour after 10:00 A.M.
Eastern Standard Time on a given day." Policy Manual 22. "A filer who is experiencing difficulty
filing in CM/ECF should call the CM/ECF Helpdesk at 1-866-855-8894 to determine whether
there is a technical failure as defined in this section." Id at 23. "The Helpdesk is staffed only
during regular business hours." Id. ''Problems of the filing user, such as failure with the filer's
phone line, internet service provider, or hardware and software, will not constitute a technical
failure." Id.
On September 18, 2023, CM/ECF did not fail. Rather, Johnson's counsel waited until the
final hour to file Johnson's response and then experienced technical difficulties. See [D.E. 81] 1-
2. Counsel's difficulties do not constitute excusable neglect. See, e..&, Smith v. Look Cycle USA,
933 F. Supp. 2d 787, 790-92 (E.D. Va. 2013); cf. Pioneer Inv. Servs. Co. v. BrunswickAssocs.
Ltd. P'ships, 507 U.S. 380, 395 (1993) (describing factors to consider concerning excusable
neglect). Thus, the court strikes as untimely Johnson's response in opposition to Zellinger's
motion to dismiss. See [D.E. 80, 81]. 2
B.
McLeod seeks to have her motion to dismiss deemed timely filed See [D.E. 98-100]. Pro
se litigants are not held to the same standards as attorneys, and courts liberally construe their
pleadings. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Hughes v. Rowe, 449
U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam). Prose litigants,
however, must comply with the Federal Rules of Civil Procedure. See McNeil v. United States,
508 U.S. 106, 113 (1993); Hansan v. Fairfax Cnty. Sch. Bd, 405 F. App'x 793, 794 (4th Cir. 2010)
2Alternatively, the court has considered the arguments in Johnson's response. These
arguments are not persuasive and do not alter the court's analysis of Zellinger's motion to dismiss.
19

(per curiam) (unpublished); Mason v. Walmart Stores, Inc., No. 5:23-CV-226, 2024 WL 497137, •
at *2 (E.D.N.C. Feb. 8, 2024) (unpublished); Jones v. Se. Reg'l Med. Ctr., No. 7:18-CV-28, 2019
WL 97036, at *3 (E.D.N.C. Jan. 2, 2019) (unpublished); Howard v. Lea, No. 5:05-CV-637, 2006
WL 8438735, at *2 (E.D.N.C. May 1, 2006) (unpublished).
On June 29, 2023, Johnson sent McLeod a waiver of service. See [D.E. 30]. McLeod
waived service, and her answer was due on August 28, 2023. See id. On October 20, 2023,
McLeod filed her motion to dismiss. See [D.E. 98-100]. McLeod's failure to file a timely
responsive pleading does not constitute excusable neglect. See,~ McNeil, 508 U.S. at 113.
Accordingly, the court strikes as untimely McLeod's motion to dismiss. See [D.E. 98-100].
C.
In March 2023, Preston died. See Compl. 85. On June 26, 2023, Johnson filed this action
against Preston. See id. at 111. On June 27, 2023, the Clerk of Court notified Johnson through
CM/ECF of his failure to provide a summons or waiver of service on Preston or his estate.
Johnson, who is represented by counsel, failed to serve a summons and complaint or waiver of
service on Preston within 90 days. See Fed. R. Civ. P. 4(m). Accordingly, the court dismisses
without prejudice Johnson's action against Preston and his estate. See id.; Henderson v. United
States, 517 U.S. 654, 662-63, 663 n.10 (1996).
D.
Johnson brings some claims against Smithfield and the Board and some claims against the
employees of Smithfield and members of the Board in both their individual and official capacities.
See Compl. 1. A claim against a public official sued in his official capacity is "essentially a claim
against" the government entity the official represents. Love-Lane v. Martin, 355 F.3d 766, 783
(4th Cir. 2004); see Kentucky v. Graham, 473. U.S. 159, 165-66 (1985); Ri<b>ath v. Bd of
20

Governors Marshall Univ., 447 F.3d 292, 307 n.13 (4th Cir. 2006). Thus, Johnson's claims against
Scott, Kerigan, Powell, West, and Lee in their official capacities are functionally brought against
Smithfield. See Compl. 1; [D.E. 73] 10-11; Santos v. Frederick Cnty. Bd. ofComm'rs, 725 F.3d
451, 469 (4th Cir. 2013) (''For purposes of section 1983, these official-capacity suits [against
government officials] are treated as suits against the municipality." (cleaned up)); see also Hafer
v. Melo, 502 U.S. 21, 25 (1991). Similarly, Johnson's claims against Sutton, Sessoms, Tippett,
Wooten, Andrews, Carroll, and Donovan in their official capacities are functionally brought
against the Board, which Johnson admits. See [D.E. 90] 5--6. Accordingly, the court dismisses
Johnson's official capacity claims against Scott, Kerigan, Powell, West, Lee, Sutton, Sessoms,
Tippett, Wooten, Andrews, Carroll, and Donovan.
E.
In Johnson's response in opposition to the motion to dismiss of Smithfield, Scott, Kerigan,
Powell, West, and Lee, Johnson attempts to add another claim under 42 U.S.C § 1983 and a claim
under the ADA. See [D.E. 90] 4-8, 18-20; [D.E. 95] 24-33. Johnson cannot use a response in
opposition to a motion to dismiss to amend his complaint. See United States ex rel. Carter v.
Halliburton Co., 866 F.3d 199,210 n.6 (4th Cir. 2017); Murray Energy Corp. v. Admin. of EPA,
861 F.3d 529,537 n.5 (4th Cir. 2017); vonRosenberg v. Lawrence, 849 F.3d 163, 167 n.1 (4th Cir.
2017); S. Walk at Broadlands Homeowner's Ass'n, Inc. v. QpenBand at Broadlands, LLC, 713
F.3d 175, 184 (4th Cir. 2013); Wahi v. Charleston Area Med Ctr., Inc., 562 F.3d 599, 617 (4th Cir.
2009): Qptima Tobacco Corp. v. U.S. Flue-Cured Tobacco Growers, Inc., No. 5:16-CV-889, 2019
WL 4858848, at •7 (E.D.N.C. Sept. 30, 2019) (unpublished); Hexion Specialty Chems., Inc. v.
Oak-Bark Corp., No. 7:09-CV-105, 2011 WL 4527382, at *7-8 (E.D.N.C. Sept. 28, 2011)
(unpublished). Accordingly, these claims are not in this case.
21

m.
A motion to dismiss under Rule 12(b)(6) tests the complaint's legal and factual sufficiency.
See Ashcroft v. Igbal, 556 U.S. 662, 677-80 (2009); Bell Atl. Cor,p. v. Twombly. 550 U.S. 544,
554-63 (2007); Coleman v. Md Ct. ofAppeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd. 566 U.S.
30 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6)
motion, a pleading "must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face." Igbal, 556 U.S. at 678 (quotation omitted);~ Twombly. 550
U.S. at 570; Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the
facts and reasonable inferences "in the light most favorable to [the nonmoving party]." Massey v.
Ojaniit, 759 F.3d 343, 352 (4th Cir. 2014) (quotation omitted); see Clatterbuck v. City of
Charlottesville, 708 F.3d 549,557 (4th Cir. 2013), abrogated on other grounds ]2yReed v. Town of
Gilbert, 576 U.S. 155 (2015). A court need not accept as true a complaint's legal conclusions,
''unwarranted inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.3d at 302
(quotation omitted);~ Igbal, 556 U.S. at 678-79. Rather, a plaintiff's factual allegations must
"nudge□ [his] claims," Twombly, 550 U.S. at 570, beyond the realm of "mere possibility" into
'1>lausibility." Igbal, 556 U.S. at 678-79.
"Determining whether a complaint states a plausible claim for relief ... [is] a context
specific task that requires the reviewing court to draw on judicial experience and common sense."
Igbal, 556 U.S. at 679. "[W]here the well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct," the complaint does not suffice. Id.
When evaluating a motion to dismiss, a court considers the pleadings and any materials
"attached or incorporated into the complaint." E.I. du Pont de Nemours & Co. v. Kolon Indus.,
Inc., 637 F.3d 435,448 (4th Cir. 2011); see Fed. R. Civ. P. IO(c); Goines v. Valley Cmty. Servs.
22

Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); Thompson v. Greene, 427 F.3d263, 268 (4th Cir. 2005).
A court also may consider a document submitted by a moving party if it is "integral to the
complaint and there is no dispute about the document's authenticity" without converting the
motion into one for summary judgment. Goines, 822 F.3d at 166. "[I]n the event of conflict
between the bare allegations of the complaint and any exhibit attached ... , the exhibit prevails."
Id. (quotation omitted); see Fayetteville Invs. v. Com. Builders, Inc., 936 F.2d 1462, 1465 (4th Cir.
1991). Additionally, a court may take judicial notice of public records. See,~ Fed. R. Evid.
201; Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007); Philips v. Pitt Cnty.
Mem'l Hom., 572 F.3d 176, 180 (4th Cir. 2009).
North Carolina law applies to some claims in this case. For those claims, this court must
predict how the Supreme Court of North Carolina would rule on any disputed state-law issue. See
1\vin City Fire Ins. Co. v. Ben Arnold-Sunbelt Beverage Co .• 433 F.3d 365, 369 (4th Cir. 2005).
First, the court looks to opinions of the Supreme Court of North Carolina. See Stahle v. CTS
~ 817 F.3d 96, 100 (4th Cir. 2016). If there are no governing opinions from that court, this
court may consider the opinions of the North Carolina Court of Appeals, treatises, and "the
practices of other states." 1\vin City Fire Ins. Co., 433 F.3d at 369 (quotation and citation omitted).
In predicting how the highest court of a state would address an issue, this court must "follow the
decision of an intermediate state appellate court unless there is persuasive data that the highest
court would decide differently." Town of Nags Head v. Toloczko, 728 F.3d 391, 398 (4th Cir.
2013) (quotation omitted); see Hicks ex. rel. Feiock v. Feiock, 485 U.S. 624, 630 & n.8 (1988).
Moreover, in predicting how the highest court of a state would address an issue, this court "should
not create or expand a [s]tate's public policy." Time Warner Ent-Advance/Newhouse P'ship v.
Carteret-Craven Blee. Membership Com., 506 F.3d 304, 314 (4th Cir. 2007) (alteration and
23

quotation omitted);~ Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3, 4 (1975) (per curiam);
Wade v. Danek Med., Inc., 182 F.3d 281, 286 (4th Cir. 1999).
A.
In count one, Johnson alleges a Title VII sex discrimination claim against Smithfield. See
Compl. 86-87. Even though a plaintiff need not plead a prima facie case to survive a motion to
dismiss,3 Swierkiewicz "left untouched the burden of a plaintiff to allege facts sufficient to state
all the elements of [his] claim." Jordan v. Alt. Res. Com., 458 F.3d 332, 346 (4th Cir. 2006)
(cleaned up), overruled .Q!! other grounds by Boyer-Liberto v. Fontainebleau Com., 786 F.3d 264
(4th Cir. 2015) (en bane);~ McCleary-Evans v. Md De,p't ofTraDSJ)., 780 F.3d 582, 585 (4th
Cir. 2015). In order to state a sex discrimination claim under Title VII, Johnson must plausibly
allege that Smithfield discriminated against him because of his sex.
Johnson lacks direct evidence of sex discrimination and proceeds under the burden-shifting
framework in McDonnell Douglas Com. v. Green, 411 U.S. 792, 802--04 (1973). See Hill v.
Lockheed Martin Logistics Mgmt.. Inc., 354 F.3d 277, 285 (4th Cir. 2004) (en bane), abrogated in
part .Q!! other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009). ''The McDonnell
Douglas framework is comprised of three steps: (1) the plaintiff must first establish a prima facie
case of employment discrimination or retaliation; (2) the burden of production then shifts to the
employer to articulate a non-discriminatory or non-retaliatory reason for the adverse action; (3)
the burden then shifts back to the plaintiff to prove by a preponderance of the evidence that the
stated reason for the adverse employment action is a pretext and that the true reason is
discriminatory or retaliatory." Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir.
2016). The McDonnell Douglas framework applies to hiring, promotion, termination, and
3
See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-15 (2002).
24

retaliation claims under Title VII. See, ~ Williams v. Giant Food Inc .• 370 F.3d 423. 428. 430
& n.5 (4th Cir. 2004); Beall v. Abbott Laby's. 130 F.3d 614, 619 (4th Cir. 1997). abrogated in part
.Q!! other grounds hy Nat'l R.R. Passenger Com. v. Morgan. 536 U.S. 101 (2002).
To plausibly allege a prima facie case of sex discrimination. a plaintiff must plausibly allege
that (1) he was a member of a protected class, (2) he suffered an adverse employment action. (3)
he was fulfilling his employer's legitimate expectations at the time of the adverse action. and (4)
he was treated differently than a similarly situated employee outside the protected class. See, ~
Goode v. Cent. Va. Legal Aid Soc'y, Inc.• 807 F.3d 619. 626 (4th Cir. 2015), abrogated in part on
other grounds hy Bing v. Brivo Sys., LLC, 959 F.3d 605, 611-12 (4th Cir. 2020); Coleman, 626
F.3d at 190; White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004); Tahir v. Sessions,
No. 5:16-CV-781, 2017 WL 1735158, at *4 (E.D.N.C. May 2, 2017) (unpublished), aff'd, 703 F.
App'x 211 (4th Cir. 2017) (per curiam) (unpublished).
An adverse employment action includes "one that constitutes a significant change in
employment status, such as hiring. firing. failing to promote. reassignment with significantly
different responsibilities. or a decision causing a significant change in benefits." Hoyle v. .
Freightliner, LLC. 650 F.3d 321, 337 (4th Cir. 2011) (quotation omitted); see Burlington Indus.,
Inc. v. Ellerth. 524 U.S. 742. 761 (1998); Boone v. Goldin, 178 F.3d 253, 255-56 (4th Cir. 1999),
abrogated on other grounds hy Burlington N. & Santa Fe Ry. v. White. 548 U.S. 53 (2006); Wtlson
v. City of Chesapeake. 290 F. Supp. 3d 444. 457 (E.D. Va. 2018).
A plaintiff can prove pretext by showing that the alleged nondiscriminatory "explanation
is unworthy of credence or by offering other forms of circumstantial evidence sufficiently
probative of [sex] discrimination." Mereish v. Walker. 359 F.3d 330, 336 (4th Cir. 2004) (quotation
omitted). abrogated in part on other grounds hy Gross. 557 U.S. 167 (2009). In analyzing the
25

record concerning pretext, the court does not sit to decide whether the ·employer in fact
discriminated against the plaintiff on the basis of sex. See, ~ Holland v. Washington Homes,
Inc., 487 F.3d 208,217 (4th Cir. 2007); Hawkins v. Pe_psiCo, Inc., 203 F.3d 274, 279-80 (4th Cir.
2000).
Johnson alleges that he is a male and that Powell, the Smithfield Chief of Police,
diminished Johnson's sexual assault complaints concerning McLeod ''because [Johnson] was
male." Comp!. 87; ~ Bostock v. Clayton Cnty., 590 U.S. 644, 663-6S (2020); Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998). Thus, Johnson plausibly alleges the first
element. As for adverse employment action, Smithfield terminated Johnson. See Comp!. 86.
Thus, Johnson plausibly alleges the second element.
As for the third element, Johnson alleges that Powell recommended Johnson's termination
for ''us[ing] Police Department equipment and ... misrepresent[ing] facts when obtaining a no
contact order (SOC) on the female involved in the affair." Id. at 81. Moreover, Smithfield's
personnel handbook states that working with an organization which could negatively affect an
employee's perceived integrity could be a basis for termination. See id. at 82. Powell states that
he based his termination recommendation, in part, on "Detective Johnson's outside involvement
with the ... Board [which] has brought a negative light on the [Police] Department and
[Smithfield]" and that Johnson's ''personal life has brought about [i]ssues with his integrity as a
police officer by the agency, citizens of Smithfield, and court officials." Id. at 82-83.
In his complaint, Johnson does not allege that he was fulfilling his employer's legitimate
expectations when Smithfield (through Scott) terminated his employment on October 14, 2022.
Furthermore, Johnson admits that his affair with McLeod could negatively affect his perceived
26

integrity. See id. at 23. Accordingly, Johnson fails to plausibly allege that he was fulfilling his
employer's legitimate expectations when Smithfield terminated his employment.
As for the fourth element, in his complaint, Johnson paints the police department as lacking
discipline and order. See id. at 42-49. But Johnson's allegations about various inappropriate
actions of other officers that went unpunished include inappropriate actions by both male and
female officers. See id. Furthermore, Johnson fails to plausibly allege a similarly situated
employee outside the protected class who was not disciplined for similar behavior. See, e.:&., Cosby
v. S.C. Prob., Parole & Pardon Servs.. 93 F.4th 707, 714-17 (4th Cir. 2024); Haynes v. Waste
Connections, Inc., 922 F.3d 219, 223-24 (4th Cir. 2019); Spencer v. Va. State Univ., 919 F.3d 199,
207--08 (4th Cir. 2019); Lightner v. City of Wilmington, 545 F.3d 260, 265 (4th Cir. 2008).
Accordingly, Johnson's sex discrimination claim fails, and the court dismisses count one against
Smithfield.
B.
In count two, Johnson alleges a Title VII retaliation claim against Smithfield. See Compl.
87-89. Johnson does not have direct evidence of retaliation and proceeds under the McDonnell
Douglas burden-shifting framework. To establish a prima facie case of retaliation, Johnson must
prove that (1) he engaged in protected activity under Title VII, (2) his employer took some action
against him that a reasonable employee would find materially adverse, and (3) his employer took
the adverse action because of the protected activity. See Massaro v. Fairfax Cnty., _ F.4th _ ,
2024 WL 1162061, at *5 (4th Cir. Mar. 19, 2024); Cosby, 2024 WL 792270, at *8; Mciver v.
Bridgestone Ams., Inc., 42 F.4th 398, 411 (4th Cir. 2022); Walton v. Harker, 33 F.4th 165, 177 (4th
Cir. 2022); Roberts v. Glenn Indus. Gr,p .. Inc., 998 F.3d 111, 122 (4th Cir. 2021); Sempowich v.
Tactile Sys. Tech., Inc., 19 F.4th 643, 653 (4th Cir. 2021); Kitlinski v. U.S. De,p't of Justice, 994
27

F.3d 224,232 (4th Cir. 2021); Wtlcox v. Lyons, 970 F.3d 452,460 (4th Cir. 2020); Evans v. Int'l
Paper Co., 936 F.3d 183, 195 (4th Cir. 2019); Perkins v. Int'l Paper Co., 936 F.3d 196, 213 (4th
Cir. 2019); Savage v. Maryland, 896 F.3d 260, 276 (4th Cir. 2018); Strothers v. City of Laurel, 895
F.3d 317, 327 (4th Cir. 2018); Abilt v. CIA, 848 F.3d 305, 315 n.9 (4th Cir. 2017); Guessous, 828
F.3d at 217; Foster v. Univ. ofMd.-E. Shore, 787 F.3d 243,253 (4th Cir. 2015); Adams v. Anne
Arundel Cnty. Pub. Schs., 789 F.3d 422, 429 (4th Cir. 2015); DeMasters v. Carillon Clinic, 796
F.3d 409,416 (4th Cir. 2015); Boyer-Liberto, 786 F.3d at 281; Balas v. Huntington Ingalls Indus.,
Inc., 711 F.3d 401, 410 (4th Cir. 2013); see also White, 548 U.S. at 67-70; Bonds v. Leavitt, 629
F.3d 369, 384 (4th Cir. 2011).
Title VII protects two kinds of activities: opposition and participation. See Netter v.
Barnes, 908 F.3d 932, 937-38 (4th Cir. 2018); Laughlin v. Metro. Wash. Airports Auth., 149 F.3d
253, 259 (4th Cir. 1998). "[O]ppositional activity must be directed to 'an unlawful employment
practice' under Title VII ...." DeMasters, 796 F.3d at 417; see Netter, 908 F.3d at 937-38; Boyer-
Liberto, 786 F.3d at 282; Laughlin, 149 F.3d at 259. The opposition clause applies when an
employee "opposes not only employment actions actually unlawful under Title VII but also
employment actions [he] reasonably believes to be unlawful [under Title VII]." DeMasters, 796
F.3d at 417 (cleaned up); see Netter, 908 F.3d at 937-38; Boyer-Liberto, 786 F.3d at 282. The
participation clause protects employees making a charge, testifying, assisting, or participating in
any manner in an investigation, proceeding, or hearing under Title VII. See 42 U.S.C. § 2000e-
3(a); Laughlin, 149 F.3d at 259.
Under Title VII, material adversity ''means [that an employer's actions] well might have
dissuaded a reasonable worker from making or supporting a charge of discrimination." White,
548 U.S. at 68 (quotation omitted). Title VII does not redress "trivial harms" or provide a "general
28

civility code for the American workplace." Id. (quotation omitted); see Oncale, 523 U.S. at 80.
Rather, Title VII's anti-retaliation provision prohibits an employer's actions that "are likely to deter
victims of discrimination from complaining to the EEOC, the courts, and their employers." White,
548 U.S. at 68 (quotation omitted);~ Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). The
court analyzes material adversity from the perspective of an objective, reasonable employee and
ignores "a plaintiff's unusual subjective feelings." White, 548 U.S. at 68-69; see also Bryant v.
BellAtl. Md., Inc., 288 F.3d 124, 134-35 (4th Cir. 2002). Additionally, the court must account for
the "particular circumstances" surrounding the alleged retaliation. White, 548 U.S. at 69.
A plaintiff must prove that "the desire to retaliate was the but-for cause of the challenged
employment action." Univ. of Tex. Sw. Med. Center v. Nassar, 570 U.S. 338, 352 (2013); ~ Villa
v. CavaMezze Grill, LLC, 858 F.3d 896, 900 (4th Cir. 2017); Guessous, 828 F.3d at 216-17;
Huckelba v. Deering. No. 5:16-CV-247, 2016 WL 6082032, at *3 (E.D.N.C. Oct. 17, 2016)
(unpublished). "This but-for causation requirement is stricter than the lessened causation standard
for discrimination claims, under which a plaintiff need only show that race, color, religion, sex, or
national origin was a motivating factor for an adverse action by an employer." Netter, 908 F.3d at
938 (quotations omitted); see Foster, 787 F.3d at 249. This causation standard ''requires proof that
the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or
actions of the employer." Nassar, 570 U.S. at 360; see Guessous, 828 F.3d at 217. As such,
"[n]aked allegations of a causal connection between plainti:trs protected activity and the alleged
retaliation do not state a plausible Title VII claim." Huckelba, 2016 WL 6082032, at *3. "To
establish a causal relationship between the protected activity and the termination, a plaintiff must
show that the decision maker was aware of the protected activity at the time the alleged retaliation
occurred." Roberts, 998 F.3d at 124.
29

An employee cannot plausibly allege a but-for causal connection between protected
activity and the employer's adverse action without alleging that the decisionmaker who took the
adverse action knew that the employee had engaged in protected activity. See Holland, 487 F.3d
at 218; Hooven-Lewis v. Calder~ 249 F.3d 259,278 (4th Cir. 2001); Dowe v. Total Action Against
Poverty in Roanoke Valley. 145 F.3d 653, 657 (4th Cir. 1998), abrogated on other grounds~
White, 548 U.S. 53; see also Conrad v. CSX TratlSJ!.. Inc., 824 F.3d 103, 108 (4th Cir. 2016);
Gestamp S.C., L.L.C. v. NLRB, 769 F.3d 254, 261--62 (4th Cir. 2014). Courts consider temporal
proximity between an employer's knowledge of protected activity and an adverse employment
action. See,~ Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (per curiam);
Price v. Thompson, 380 F.3d 209, 213 (4th Cir. 2004), abrogated on other grounds~ Nassar, 570
U.S. 338. An adverse action taken shortly after an employer learned of protected activity typically
permits a reasonable inference of causation. See Dowe, 145 F.3d at 657. "A lengthy time lapse
between the employer becoming aware of the protected activity and the alleged adverse
employment action, [however,] ... negates any inference that a causal connection exists between
the two." Id. (finding three years too long to infer causation); see Breeden, 532 U.S. at 274 (same
for 20 months); Massaro, 2024 WL 1162061, at *5 (same for 18 months); Roberts, 998 F.3d at 126
(same for three months); Penleyv. McDowell Cnty. Bd ofEd., 876 F.3d 646,656 (4th Cir. 2017)
(same for eight and nine months); Causey v. Balog. 162 F.3d 795, 803 (4th Cir. 1998) (same for
13 months). A plaintiff can rebut this conclusion by plausibly alleging that her employer's actions
taken during the intervening period demonstrate retaliatory animus. See Lettieri v. Eguant Inc.,
478 F.3d 640, 650 (4th Cir. 2007); King v. Rumsfeld, 328 F.3d 145, 151 n.5 (4th Cir. 2003).
Viewing Johnson's complaint in the light most favorable to him, Johnson plausibly alleges
that he engaged in protected "opposition" activity on July 27, 2022, when he told Smithfield that
30

he believed that the administrative investigation was based on his sex. Moreover, Johnson
plausibly alleges that Smithfield thereafter took action against him that a reasonable employee
would consider materially adverse, including terminating his employment on October 14, 2022.
See Compl. 88. Furthermore, Johnson plausibly alleges the required but-for causation. See, ~ ·
Wilcox, 970 F.3d at 457. Thus, the court denies Smithfield's motion to dismiss count two against
Smithfield.
C.
In count three, Johnson alleges an ADA Title I discrimination claim against Smithfield.
See Compl. 89. The ADA prevents discrimination "against a qualified individual on the basis of
disability in regard to job application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms, conditions, and privileges of
employment." 42 U.S.C. § 12112(a). To establish an ADA discrimination claim, a plaintiff must
prove "(l) that [he] has a disability, (2) that [he] is a 'qualified individual' for the employment in
question, and (3) that [his] employer discharged [him] (or took other adverse employment action)
because of [his] disability." Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 572 (4th Cir.
2015) (cleaned up); see EEOC v. McLeod Health, Inc., 914 F.3d 876,883 (4th Cir. 2019). A party
may prove disability discrimination through direct evidence or through the McDonnell Douglas
burden-shifting framework. See Raytheon Co. v. Hernandez, 540 U.S. 44, 49-50 & n.3 (2003);
Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985); McDonnell Douglas, 411 U.S.
at 802-04; Guessous, 828 F.3d at 216. Direct evidence requires "conduct or statements that both
reflect directly the alleged discriminatory attitude and that bear directly on the contested
employment decision." Rhoads v. F.D.I.C., 257 F.3d 373, 391-92 (4th Cir. 2001) (quotation
omitted); see Brinkley v. Harbour Recreation Club, 180 F.3d 598, 607 (4th Cir. 1999), abrogated
31

.Qll other grounds~ Desert Palace v. Costa, 539 U.S. 90 (2003); EEOC v. Mfrs. & Traders Tr. Co.,
429 F. Supp. 3d 89, 118-19 (D. Md. 2019).
Johnson lacks direct evidence that Smithfield terminated his employment because of his
alleged disability. Under the McDonnell Douglas framework, a plaintiff must plausibly allege:
"(I) he was a qualified individual with a disability; (2) he was discharged; (3) he was fulfilling his
employer's legitimate expectations at the time of discharge; and (4) the circumstances of his
discharge raise a reasonable inference of unlawful discrimination." Reynolds v. Am. Nat'l Red
Cross, 701 F.3d 143, 150 (4th Cir. 2012) (quotations and alterations omitted); see Rhoads, 257
F.3d at 387 n.11; Haulbrook v. Michelin N. Am., Inc., 252 F.3d 696, 702 (4th Cir. 2001); Ali v.
WorldWide Language Res., LLC, _ F. Supp. 3d __. 2023 WL 5120224, at * 18 (E.D.N.C. Aug.
9, 2023); Hunter-Raineyv. N.C. State Univ., No. 5:17-CV-46, 2018 WL 1092963, at *3 (E.D.N.C.
Feb. 28, 2018) (unpublished), aff'd, 744 F. App'x 801 (4th Cir. 2018) (per curiam.) (unpublished).
Johnson does not plausibly allege that his anxiety and depression are disabilities under the
ADA because he does not allege that they "substantially limit[ed] one or more [of his] major life
activities" or that Smithfield perceived them as doing so. 42 U.S.C. § 12102(1)(A); ~ Compl. 5;
J.D. ex rel. Doherty v. Colonial Williamsburg Found., 925 F.3d 663, 670 (4th Cir. 2019); Jacobs,
780 F.3d at 572-74; Reynolds, 701 F.3d at 152-54. Johnson also does not plausibly allege that
Smithfield terminated his employment because of his alleged disability. See Compl. 5, 89;
Haulbrook, 252 F.3d at 705-07. Johnson also does not plausibly allege that he was fulfilling
Smithfield's legitimate expectations at the time of his discharge on October 14, 2022, or that the
circumstances of his discharge raise a reasonable inference of discrimination under the ADA.
Accordingly, Johnson does not plausibly allege an ADA claim in count three, and the court
dismisses count three against Smithfield.
32

D.
In count four, Johnson alleges an ADA retaliation claim against Smithfield. See Comp!.
90-91. The ADA makes it "unlawful to ... interfere with any individual ... on account of his or
her having exercised or enjoyed ... any right granted or protected by this chapter." 42 U.S.C. §
12203(b); see Reynolds, 701 F.3dat 154. Seeking a reasonable accommodation, including medical
leave, under the ADA constitutes protected activity. See Works v. Colvin, 519 F. App'x 176, 186
(4th Cir. 2013) (per curiam) (unpublished); Rhoads, 257 F.3d at 381; Haulbrook, 252 F.3d at 706.
To state a retaliation claim under the ADA, a plaintiff must plausibly allege that "(l) he engaged
in protected conduct, (2) he suffered an adverse action, and (3) a causal link exists between the
protected conduct and the adverse action." Reynolds, 701 F.3d at 154; see White, 548 U.S. at 67-
70; A Soc'y Without a Name v. Virginia, 655 F.3d 342, 350 (4th Cir. 2011); Ollis v. Hawkins, No.
5:18-CT-3276, 2020 WL 618835, at *2 (E.D.N.C. Feb. 10, 2020) (unpublished).
Viewing Johnson's complaint in the light most favorable to him, Johnson plausibly alleges
that he engaged in protected activity under the ADA on July 6, 2022, when he submitted a
physician's note that he should not work until July 29, 2022. Moreover, Johnson plausibly alleges
that Smithfield thereafter took adverse actions against him, including converting his administrative
leave from paid leave to unpaid leave on July 12, 2022, and then terminating his employment on
October 14, 2022. See Comp!. 90-91. Furthermore, Johnson plausibly alleges the required but-
for causation. See,~ Wilcox, 970 F.3d at 457. Thus, the court denies Smithfield's motion to
dismiss count four against Smithfield.
E.
In count five, Johnson alleges an FMLA interference claim against Smithfield, Scott,
Kerigan, Powell, West, and Lee. See Comp!. 2, 91-92. The FMLA entitles employees to take
33

"reasonable leave for medical reasons." 29 U.S.C. § 260l(b)(2). The FMLA allows eligible
employees to take a total of twelve workweeks of unpaid leave during any twelve-month period
due to "a serious health condition that makes the employee unable to perform the functions of the
position of such employee." Id. § 2612(a)(l )(D). Generally, after taking FMLA leave, employees
may return to their pre-leave job or an equivalent position. See id. § 2614(a)(l)(A}-(B); see fu
v. Rand Constr. Cor.p., 964 F.3d 239, 244 (4th Cir. 2020).
Interference claims stem from section 2615(a)(l), which states that "[i]t shall be unlawful
for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any
right provided under this subchapter." 29 U.S.C. § 2615(a)(l); seem, 964 F.3d at 244; Waag v.
Sotera Def. Sols., Inc., 857 F.3d 179, 186 (4th Cir. 2017). "[W]hether the FMLA imposes liability
on employee supervisors in their individual capacities is an open question in this circuit . . . ."
Jones v. Stemheimer. 387 F. App'x 366, 368 (4th Cir. 2010) (per curiam) (unpublished); see Meyer •
v. Town of Wake Forest, No. 5:16-CV-348, 2018 WL 4689447, at *14 (E.D.N.C. Sept. 28, 2018)
(unpublished); Reed v. Md., De_p't of Hum. Res., Civ. No. 12-0472, 2013 WL 489985, at •7 (D.
Md. Feb. 7, 2013) (unpublished); see,~ Ainsworth v. Loudon Cnty. Sch. Bd., 851 F. Supp. 2d
963, 972-74 (E.D. Va. 2012); Weth v. O'Leary. 796 F. Supp. 2d 766, 775-77 (E.D. Va. 2011);
Sadowski v. U.S. Postal Serv., 643 F. Supp. 2d 749, 752-56 (D. Md. 2009).
On July 6, 2022, Johnson gave Smithfield a physician's note stating that Johnson needed
medical leave until at least July 29, 2022. See Compl. 55. Johnson had worked over 1,250 hours
for Smithfield in the last 12 months and qualified for FMLA leave. See id. at 91-92. After
receiving the note, Smithfield granted Johnson leave. See id. at 55.
On July 13, 2022, West and Powell appeared at Johnson's residence to deliver a letter. See
id. at 55. The letter told Johnson that his leave became unpaid on July 12, 2022. See id.
34

Furthermore, the letter required Johnson to remain in daily contact with West to "cooperate with
the investigation." Id. at 56. Thereafter, Smithfield ''repeated[ly]" asked Johnson for a return.-to-
work doctor's note. Id.
As for Scott, Kerigan, and Lee, Johnson fails to plausibly connect them to this claim. See
id. at 55-56, 91-92. Thus, the court dismisses Johnson's FMLA claim against them.
As for Powell and West, the FMLA defines "employer," in relevant part, as "any person
who acts, directly or indirectly, in the interest of an employer to any of the employees of such
employer." 29 U.S.C. § 2611(4)(A)(ii)(I). The FMLAalso includes public agencies as employers.
See id. § 2611(4)(A)(iii). Thus, some courts have concluded that a public employee who "acts,
directly or indirectly, in the interest of [his] employer'' falls within the FMLA's definition of
"employer'' and may be held liable in his individual capacity. See, ~ Ainsworth, 851 F. Supp.
2d at 973 (collecting cases); Weth, 796 F. Supp. 2d at 776. Moreover, the FMLA's definition of
"employer'' "closely parallels that in the Fair Labor Standards Act ('FLSA'), 29 U.S.C. §[§] 201
et a., and the FMLA's implementing regulations provide that 'as under the FLSA, individuals
such as corporate officers acting in the interest of an employer are individually liable for any
violations of the requirements of the FMLA."' Weth, 796 F. Supp. 2d at 776 (quoting 29 C.F.R. §
825.104(d) (2009)) (cleaned up). 4 Under the FLSA, employers "include those with managerial
responsibilities and substantial control of the terms and conditions of the work of employees."
Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62, 83 (4th Cir. 2016) (cleaned up). In order to
determine whether an individual is an "employer'' under the FLSA, a court considers ''whether the
alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled
4
Since 2009, the relevant portions of the FMLA's implementing regulations have not
changed. See 29 C.F.R. § 825.104(d) (2017).
I
35

employee work schedules or conditions of employment, (3) determined the rate and method of
payment, and (4) maintained employment records." Id. (quotation omitted).
The court assumes without deciding that under certain circumstances individuals may be
held liable as an "employer'' under the FMLA. See, ~ Ainsworth, 851 F. Supp. 2d at 972
(collecting cases); Weth, 796 F. Supp. 2d at 776. The court also assumes without deciding that the
court should examine the same factors that the Fourth Circuit identified in Kerr to determine
whether an individual is an "employer" under the FMLA. See Kerr, 824 F.3d at 83.
Johnson conclusorily alleges Powell and West are his "employer'' under the FMLA. See
Compl. 91. 5 Johnson, however, alleges no facts concerning Powell or West's power to hire and
fire employees or that they controlled work schedules or conditions of employment, controlled the
rate and method of payment of employees, or maintained employment records. Rather, Johnson
alleges Powell only recommended Johnson's firing. See id. at 80-83; see also [D.E. 2-13]
(Powell's dismissal recommendation). Furthermore, Scott made the termination decision. See
[D.E. 2-14] (Scott's termination decision). Accordingly, Johnson fails to plausibly allege that
Powell or West are his "employer'' who can be held individually liable under the FMLA. See, ~
Kerr, 824 F.3d at 83. Thus, the court dismisses Johnson's FMLA claim against Powell and West.
Johnson also contends that Smithfield's refusal to give him paid leave violates the FMLA.
See id. at 55-56, 91-92. The FLMA, however, does not require an employer to grant paid leave.
See 29 U.S.C. § 2612(c). Thus, any such claim fails and is dismissed
Johnson also objects to Smithfield's request for a return-to-work note. See Compl. 56. To
the extent Johnson objects to Smithfield's request for a return-to-work note, the FMLA allows
5 Notably, when Johnson mentions his "employer'' elsewhere in his complaint, he means
Smithfield alone. See id. at 5, 10, 18.
36

employers to have "a uniformly-applied policy or practice" to obtain a fitness-for-duty certification
from the employee's doctor. 29 C.F.R. § 825.312(a). Nonetheless, Johnson's claim that Smithfield
required him to maintain daily contact with West to cooperate with the investigation plausibly
violates the FMLA's interference provision. Although the FMLA does not define interference,
requiring Johnson to maintain daily contact with West to participate in the investigation plausibly
exceeds the scope of "de minimis work-related contact." Antekeier v. Lab'y Corp. of Am., 295 F.
Supp. 3d 679,685 (E.D. Va. 2018); see 29 U.S.C. § 2615(a)(l).
In opposition to this conclusion, Smithfield cites Antekeier and argues that its contact with
Johnson was de minimis. See [D.E. 73] 23-25. InAntekeier, the plaintiff's employer contacted
the employee multiple times concerning client contact information, a new client account, her
return-to-work date, and whether to hold a holiday party. See Antekeier, 295 F. Supp. 3d at 685.
In resolving cross motions for summary judgment, the district court held that because the employer
requested only basic information and did not require the employee to respond to emails or
telephone calls that this requirement was de minimis contact. See id. at 685-87.
Unlike Antekeier, Johnson plausibly alleges Smithfield required daily contact and an
unanticipated in-person meeting. Compare Compl. 55-56, withAntekeier, 295 F. Supp. 3d at 685-
86. Johnson also plausibly alleges that Smithfield repeatedly asked Johnson to return to work to
answer questions "regarding the allegations against [Johnson]." Compl. 55-56. In contrast,
Antekeier's supervisor simply asked when she would return to work, not ifAntekeier would return
to work before her medically suggested end date. See Antekeier, 295 F. Supp. 3d at 685-86; see
also Adams, 789 F.3d at 426-28. Here, Johnson plausibly alleges an FMLA interference claim
against Smithfield. Accordingly, the court declines to dismiss Johnson's FMLAinterference claim
against Smithfield.
37

F.
In count six, Johnson alleges an FMLA retaliation claim against Smithfield, Scott, Kerigan,
Powell, West, and Lee. See Compl. 2, 92-94. The FMLA also protects employees who exercise
their rights under the FMLA from retaliation. See 29 U.S.C. § 2615(a)(2) ("It shall be wilawful
for any employer to discharge or in any other manner discriminate against any individual for
opposing any practice made unlawful by this subchapter."). Section 2615(a)(2) encompasses
retaliation claims. See fu, 964 F.3d at 244; Waag. 857 F.3d at 186, 191. "In both contexts, a
plaintiff can either (1) produce direct and indirect evidence ofretaliatory animus or (2) demonstrate
intent by circumstantial evidence, which we evaluate under the :framework established for Title
VII cases in McDonnell Douglas." fu, 964 F.3d at 244 (quotations omitted); see Vannoy v. Fed.
Rsrv. Bank of Richmond, 827 F.3d 296, 304 (4th Cir. 2016); Laing v. Fed. Express Corp., 703 F.3d
713, 717 (4th Cir. 2013); Yashenko v. Harrah's N.C. Casino Co., 446 F.3d 541, 550-51 (4th Cir.
2006).
The court dismisses Johnson's FMLA retaliation claim against Scott, Kerigan, Powell,
West, and Lee for the same reasons it dismisses Johnson's FMLA interference claim against them.
See Compl. 92-94; Igbal, 556 U.S. at 677-80; Twombly. 550 U.S. at 554--63; Kerr, 824 F.3d at
83; Ainsworth, 851 F. Supp. 2d at 972-75. Nonetheless, viewing the complaint in the light most
favorable to Johnson, Johnson has plausibly alleged that he engaged in protected activity under
the FMLA when he requested FMLA leave on July 6, 2022, and provided Smithfield with a
physician's note stating that he should not work until at least July 29, 2022. Moreover, Johnson
has plausibly alleged that Smithfield thereafter took adverse action. See Compl. 93. Furthermore,
Johnson has plausibly alleged the required but':'for causation. See,~ Wilcox, 970 F.3d at 457.
38

Accordingly, the court declines to dismiss Johnson's FMLAretaliation claim against Smithfield in
count six.
G.
In count seven, Johnson alleges a First Amendment retaliation claim under 42 U.S.C. §
1983 against Smithfield, Scott, Kerigan, Powell, West, and Lee. See Compl. 94-96. In count
eight, he alleges the same claim against the Board, Sutton, Sessoms, Tippett, Wooten, Andrews,
Carroll, and Donovan. See id. at 96-99.
"To state a claim under [section] 1983, a plaintiff must allege the violation of aright secured
by the Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988).
Additionally, a section 1983 plaintiff must plausibly allege the personal involvement of a
defendant. See,~ Igbal, 556 U.S. at 676-77; Monell v. Dep't of Soc. Servs., 436 U.S. 658,
691-94 (1978); Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985). Qualified immunity may bar
such a claim. See Pearson v. Callahan, 555 U.S. 223, 232 (2009).
In order to state a First Amendment retaliation claim under section 1983, a plaintiff must
plausibly allege that: "(1) he engaged in protected First Amendment activity, (2) the defendant
took some action that adversely affected his First Amendment rights, and (3) there was a causal
relationship between his protected activity and the defendant's conduct." Martin v. Dutfy, 858
F.3d 239,249 (4th Cir. 2017) (cleaned up); see Tobey v. Jones, 706 F.3d 379, 387 (4th Cir. 2013);
Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474,499 (4th Cir. 2005). A
plaintiff"suffers adverse action if the defendant's allegedly retaliatory conduct would likely deter
a person of ordinary firmness from the exercise of First Amendment rights." Constantine, 411
F.3d at 500 (quotation omitted);~ Bait. Sun Co. v. Ehrlich, 437 F.3d 410, 416 (4th Cir. 2006). A
39

plaintiff also must plausibly allege that a "defendant's conduct resulted in something more than a
'de minimis inconvenience' to [his] exercise of First Amendment rights." Bait. Sun Co., 437 F.3d
at 416 (quotation omitted); see Constantine, 411 F.3d at 500.
i.
''The First Amendment protects not only the affirmative right to speak, but also the right to
be free from retaliation by a public official for the exercise of that right." Adams v. Trs. of the
Univ. ofN.C.-Wilmington, 640 F.3d 550,560 (4th Cir. 2011) (quotation omitted). Johnson's First
Amendment retaliation claim against Smithfield, Scott, Kerigan, Powell, West, and Lee requires
the court to examine the constitutional protection afforded to the speech of public employees.
The Pickering-Connick framework governs the analysis. See,~ Connick v. Myers, 461
U.S. 138, 143-46 (1983); Pickering v. Bd. of Educ., 391 U.S. 563, 571-73 (1968); Adams, 640
F.3d at 562-65; Lee v. York Cnty. Sch. Div., 484 F.3d 687, 692-94 & n.9 (4th Cir. 2007); Boring
v. Buncombe Cnty. Bd of Educ., 136 F.3d 364, 368-69 (4th Cir. 1998) (en bane). To state a claim
under the Pickering-Connick framework, Johnson must plausibly allege that (1) he spoke as a
citizen on a matter of public concern, rather than as an employee on a matter of private interest,
(2) his interest in speaking on the matter of public concern outweighed the defendants' interest in
providing effective and efficient public service, (3) defendants took some action against him that
deprived him of a valuable government benefit or that would tend to chill his protected speech,
and (4) a causal relationship existed between his protected speech and the retaliation. See, ~
Massaro, 2024 WL 1162061, at *8; Smith v. Gilchrist, 749 F.3d 302,308 (4th Cir. 2014); Bland v.
Roberts, 730 F.3d 368, 373-75 (4th Cir. 2013); Peters v. Jenney. 327 F.3d 307, 322-23 (4th Cir.
2003); Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 351-52, 356 (4th Cir. 2000);
McVey v. Stapy, 157 F.3d 271, 277-78 (4th Cir. 1998).
40

Two inquiries guide the scope of constitutional protection accorded to a public employee's
speech. "The first requires determining whether the employee spoke as a citizen on a matter of
public concern." Garcetti v. Ceballos, 547 U.S. 410,418 (2006); see Lindke v. Freed,_ S. Ct.
__, 2024 WL 1120880, at *6 (U.S. Mar. 15, 2024); Lee, 484 F.3d at 694. Ifnot, "the employee
has no First Amendment cause of action based on his or her employer's reaction to the speech."
Garcetti, 547 U.S. at 418. If so, the court proceeds to the second inquiry: ''whether the relevant
government entity had an adequate justification for treating the employee differently from any
other member of the general public." Id. This determination requires weighing "the employee's
interest in First Amendment expression" against ''the public employer's interest in what the
employer has determined to be the appropriate operation of the workplace." Lee, 484 F.3d at 694
(quotation omitted). Employees speaking as citizens on matters of public concern "must face only
those speech restrictions that are necessary for their employers to operate efficiently and
effectively." Garcetti, 547 U.S. at 419.
Whether the employee spoke as a citizen on a matter of public concern requires an effort
to participate in a larger public dialogue. See Crouse v. Town of Moncks Comer, 848 F.3d 576,
585-87 (4th Cir. 2017); see, ~ Pickering. 391 U.S. at S66 (including writing a letter to a
newspaper about a public issue); Liverman v. City of Petersburg. 844 F.3d 400, 409-10 (4th Cir.
2016) (including making an online Facebook post concerning a public discussion of an important
issue); Robinson v. Balog. 160 F.3d 183, 188 (4th Cir. 1998) (including testifying at a public
meeting).
Johnson alleges that he spoke as a citizen on a matter of public concern when he opposed
(1) Lawrence's "sexual harassment of a [Board] employee," (2) ''the hiding of funds by the
[Board]," (3) his own sexual harassment by his supervisors at the police department, (4) the
41

Board's illegal discrimination against a Board employee, and (5) his own sexual assault by
McLeod. See Compl. 94. Additionally, Johnson alleges that obtaining a protective order against
McLeod was a matter of public concern. See id
The court assumes without deciding that Johnson spoke about matters of public concern
when discussing: (1) Lawrence's sexual harassment of a Board employee; (2) the hiding of funds
by the Board; (3) his own sexual harassment by his police department supervisors; (4) the Board's
illegal discrimination against a Board employee; and (5) his own sexual assault by McLeod. See,
l l , Campbell v. Galloway. 483 F.3d 258, 266-70 (4th Cir. 2007) (protecting a police officer's
complaint to a superior about sexual harassment in the department); Robinson, 160 F.3d at 187-
89 (protecting Bureau of Solid Waste employee's testimony to the Board of Estimates and
cooperation with federal agents); Knapp v. Whitaker, 757 F.2d 827, 845-46 (7th Cir. 1985)
(protecting public employee's speech to school board on an "inequitable mileage allowance,
liability insurance, and the grievance procedure"); McHugh v. Bd. of Educ. of Milford Sch. Dist.,
100 F. Supp. 2d 231, 240-41 (D. Del. 2000) (protecting a School Board employee who complained
about "issues of student safety, public officials' alleged malfeasance, and School Board policies,
all of which are clearly matters of public concem").6 Nonetheless, Johnson fails to plausibly allege
a causal relationship between this protected speech and the alleged retaliation. See Compl. 94-96.
Johnson has not plausibly alleged that Smithfield asked Johnson to stop speaking about these
issues or to resign from the Board. Moreover, Johnson's complaint only conclusorily links
Johnson's speech about his own alleged sexual discrimination and sexual assault while working as
6
Seeking a protective order against McLeod is not protected speech. Thus, the court does
not rely on Johnson's allegations about that conduct in analyzing his First Amendment claim.
42

a Smithfield employee to his October 14, 2022 termination and his First Amendment claim against
Smithfield, Scott, Kerigan, Powell, and West. See id.
Smithfield has a strong interest in ensuring that its police officers provide proper service,
including telling the truth in seeking a protective order, acting with integrity, and using police
equipment for its intended purpose. Moreover, Scott's termination letter, which Johnson attached
to his complaint, illustrates that Johnson's admission to sending inappropriate text messages during
Board meetings in 2019 constituted an additional violation of Smithfield's policies. See [D.E. 2-
14] 1. These breaks in the causal chain, including Johnson's October 2022 admission of
misconduct in 2019, render Johnson's First Amendment claim implausible. See,~ Bhattacharya
v. Munay. 93 F.4th 675, 687-98 (4th Cir. 2024); Porter v. Bd. ofTrs. ofN.C. State Univ., 72 F.4th
573, 582-84 (4th Cir. 2023); Hill v. Town of Mocksville, No. 22-1037, 2023 WL 2929681, at* 1-
2 (4th Cir. Apr. 13, 2023) (per curiam) (unpublished). Accordingly, the court dismisses count seven
against Smithfield, Scott, Kerigan, Powell, West, and Lee.
ii.
In count eight, Johnson seeks relief against the Board, Sutton, Andrews, Sessoms, Carroll,
Tippett, and Wooten. In support, Johnson alleges that he spoke as a citizen on a matter of public
concern when he opposed (1) Lawrence's "sexual harassment of a [Board] employee," (2) ''the
hiding of funds by the [Board]," (3) paycuts for a Board employee concerning "her age and
disability," (4) "conflicts of interest in the expenditure of school system funds," and (5) ''whether
students were assigned to appropriate schools." Comp!. 96. Additionally, Johnson alleges that the
Board censured him, declined to assign any schools to him, and threatened to criminally prosecute
him in retaliation for his speech. See id at 98.
43

The court assumes without deciding that the First Amendment protects Johnson's speech
as an elected official. See, e...&, Bond v. Floyd, 385 U.S. 116, 135-37 (1966); Werkheiserv. Pocono
~ 210 F. Supp. 3d 633, 637-40 (M.D. Pa. 2016). Censure, however, does not suffice for a
First Amendment retaliation claim. See, ~ Houston Cmty. Coll. Sys. v. Wilson, 595 U.S. 468,
474-75 (2022). Thus, the court does not rely on the Board's censures in analyzing Johnson's First
Amendment claim in count eight. Rather, the court focuses on the Board's decision not to assign
any schools to Johnson and the Board's referral of its internal investigations to the district
•attorney's office for possible criminal prosecution.
"[A]n adverse action against an elected official is material when it prevents the elected
official from doing his job, deprives him of authority he enjoyed by virtue of his popular election,
or otherwise prevents him from enjoying the full range of rights and prerogatives that came with
having been publicly elected." Boguist v. Courtney, 32 F.4th 764, 777 (9th Cir. 2022). Yet,
Johnson only alleges that ''he has been stripped of any assigned schools as normally assigned to
other members." Campi. 85 (emphasis added). The Board's actions have not prevented Johnson
from taking office, attending Board meetings, or exercising his voting power. See, ~ Bond, 385
U.S. at 118, 136-37; Velez v. Levy. 401 F.3d 75, 98 (2d Cir. 2005). Furthermore, referring an
internal investigation to the district attorney's office for possible criminal prosecution does not
constitute an adverse action, particularly when the Board acknowledges that it lacks legal authority
over whether Johnson is criminally prosecuted or legal authority to remove Johnson from office
due to any potential criminal conviction. See.~ Velez, 401 F.3d at 99; Paladino v. Seals-
Nevergold, No. 17-CV-538, 2020 WL 5544342, at *3 (W.D.N.Y. Sep. 15, 2020) (unpublished).
Rather, the Board's actions to limit Johnson's school assignments and to refer the investigative
:findings of the Board's attorneys about Johnson to the Johnston County District Attorney for
44

possible criminal prosecution are more akin to censure. Essentially, they are "a form of speech
from [Johnson's colleagues on the Board] that concerns the conduct of public office," rather than
a deprivation of Johnson's authority of public office. Wilson, 595 U.S. at 478; cf. Penley, 876 F.3d
at 662-63 (Wtlkinson, J., concurring). Accordingly, Johnson fails to plausibly allege that the Board
took a materially adverse action to sustain his First Amendment retaliation claim in count eight.
See, ~ Bhattacharya, 93 F.4th at 689-90 (describing the standard applicable to determine
whether something constitutes adverse action and concluding that a medical student receiving a
concern card and a letter about his tone and demeanor at a meeting were not adverse actions);
Constantine, 411 F.3d at 500. 7
Alternatively, even if the Board's actions do qualify as a materially adverse action, Johnson
fails to plausibly allege a causal connection between his protected speech and the alleged
retaliation. 8 First, Johnson alleges that his protected speech occurred between July 2019 and
January 2020. See Compl. 19-22, 96. The beginning of the Board's investigation into Johnson's
conduct did not occur until spring 2022. See id. at 63-65. Moreover, the Board only initiated its
7
The Supreme Court is considering a case concerning a Texas city council member's First
Amendment retaliation claim against city officials who allegedly referred her legal misconduct to
investigative authorities and had her arrested. See Gonzalez v. Trevino, 144 S. Ct. 325 (2023). In
Gonzalez, however, the defendants did more than publicly refer investigative information to the
district attorney. Rather, in Gonzalez, the defendants allegedly appointed a special detective,
directed the investigation, secured an arrest warrant for the city council member, and circumvented
the district attorney by walking the warrant directly to the magistrate. See Gonzalez v. Trevino,
42 F.4th 487, 489-90 (5th Cir. 2022), rehearing m bane denied, 60 F.4th 906 (5th Cir. 2023) (per
curiam). Thus, the Board's actions in this case are materially distinguishable from the actions in
Gonzalez.
8 Johnson did not characterize this claim as a retaliatory prosecution claim concerning the
criminal charges in the grand jury indictment. If, however, Johnson is asserting a retaliatory
prosecution claim, Johnson's claim fails. Johnson has not plausibly alleged an absence of probable
cause for his prosecution. Moreover, he does not plausibly allege that he was arrested when other
similarly situated individuals who had not engaged in the same protected speech were not. See,
~ Nieves v. Bartlett, 139 S. Ct. 1715, 1723-27 (2019); Hartman v. Moore, 547 U.S. 250, 259-
66 (2006).
45

investigation after receiving new allegations about Johnson's alleged wrongdoing. See,~ [D.E.
2-4] l; [D.E. 2-8] 5, 11; Compl. 63. Thus, Johnson cannot rely on temporal proximity to infer
causation.
Second, the Board hired an outside law firm, Tharrington Smith LLP, to investigate
allegations against Johnson after the Facebook Live webcasts and posts in June 2022. See Compl.
63-73. Johnson attached Tharrington SmithLLP's reports to his complaint. See [D.E. 2-4]; [D.E.
2-8] 5-15; Kolon Indus., Inc., 637 F.3d at 448. As part of the investigation, Tharrington Smith
LLP interviewed Johnson, several Board members, Lawrence, the Johnston County Public Schools
Superintendent, other Board employees, and a parent. See [D.E. 2-4] l; [D.E. 2-8] 5, 11.
Tharrington Smith LLP found that Johnson violated the Board's policy and ethics code by (1)
sending salacious text messages in April and May 2019 concerning school employees during a
Board meeting, (2) secretly recording Board meetings and playing the recordings for other
employees, and (3) attempting to unlawfully reassign the children of a personal adversary to a
different school for personal retaliatory reasons. See [D.E. 2-4] l; [D.E. 2-8] 5, 11. The Board
relieved Johnson of certain responsibilities and referred Johnson for criminal prosecution because
of these independent findings. See Compl. 63-79; see also [D.E. 2-8] 1. In light of Tharrington
Smith LLP's findings, and the repeated breaks in the causal chain from independent allegations
that prompted the investigation, the court rejects as implausible Johnson's allegations that the
Board's investigation was a pretext for retaliating against Johnson's speech. See Porter, 72 F.4th
at 584; Hill, 2023 WL 2929681, at *2; Giarratano, 521 F.3d at 302. Accordingly, the court
dismisses Johnson's First Amendment retaliation claim in count eight against the Board, Sutton,
Andrews, Sessoms, Carroll, Tippett, and Wooten.
46

H.
In count nine, Johnson alleges a Fourth Amendment claim under 42 U.S.C. § 1983 against
Hoffman, Doyle, and Zellinger. See Compl. 99-100. A "[section] 1983 malicious prosecution
action is nothing more than a [section] 1983 claim arising from a Fourth Amendment violation."
Lambert v. Williams, 223 F.3d 257,260 (4th Cir. 2000). For malicious prosecution, the plaintiff
must allege "that the defendant (1) caused (2) a seizure of the plaintiff pursuant to legal process
unsupported by probable cause, and (3) criminal proceedings terminated in plaintiff's favor."
Evans v. Chalmers, 703 F.3d 636,647 (4th Cir. 2012) (quotation omitted). Moreover, prosecutors
are absolutely immune from suit for acts carried out in the judicial phase of their prosecutorial
functions, including initiating a judicial proceeding or appearing in court. See, ~ Van de Kamp
v. Goldstein, 555 U.S. 335, 342-43 (2009); Buckley v. Fitzsimmons, 509 U.S. 259, 269-70 (1993);
Imbler v. Pachtman, 424 U.S. 409, 430 (1976).
''When a prosecutor performs the investigative functions normally performed by a
detective or police officer," the prosecutor is entitled only to qualified immunity. Buckley, 509
U.S. at 273. Johnson argues that the prosecutors in this case were engaging in police-style
investigation. See [D.E. 84] 12-14; [D.E. 85] 21-23. Johnson also cites State v. Felts, 79 N.C.
App. 205, 339 S.E.2d 99 (1986), and contends that North Carolina General Statute§ 14-230 did
not give the prosecutors the power to remove him as a detective. See [D.E. 84] 16-17; [D.E. 85]
25-27; Felts, 79 N.C. App. at 209-10, 339 S.E.2d at 101.
In his complaint, Johnson alleges that Hoffman, under the supervision of Doyle and
Zellinger, investigated Johnson. See Compl. 99. Johnson also alleges that Hoffman, Doyle, and
Zellinger knew the Board violated its powers in censuring Johnson. See id. Nonetheless,
Hoffman, Doyle, and Zellinger presented an affidavit to a North Carolina Superior Court Judge
47

and obtained a search warrant. See id. Johnson alleges that Hoffinan, Doyle, and Zellinger then
improperly seized Johnson's property based on the warrant. See id.
Johnson does not specifically allege how any affidavit was improper or failed to establish
probable cause. See id at 73-79. Moreover, and in any event, Johnson cannot use this action to
have this court review the propriety of a state court search warrant. Johnson must attack the
validity of such state court search warrants in his pending criminal case in state court. See, ~
Younger v. Harris, 401 U.S. 37, 41-46 (1971); Nivens v. Gilchrest 444 F.3d 237, 241 (4th Cir.
2006).
Even viewing Johnson's complaint in the light most favorable to Johnson, Johnson's Fourth
Amendment claim against Doyle; Hoffinan, and Zellinger fails because probable cause existed to
arrest him and because the criminal proceedings have not terminated in his favor. Alternatively,
absolute prosecutorial immunity applies to Doyle, Hoffman, and Zellinger on count nine. See,
~ Van de Kamp. 555 U.S. at 342-43. Accordingly, the court dismisses count nine.
I.
In count ten, Johnson alleges a wrongful termination claim under North Carolina law
against Smithfield, Scott, Kerigan, Powell, and West. See Compl. 100---01. Under North Carolina
law, an employer generally may terminate an at-will employee for any reason. See Garner v.
Rentenbach Constructors Inc., 350 N.C. 567, 568-72, 515 S.E.2d 438, 439-41 (1999). North
Carolina recognizes a narrow exception to that general rule if an employee's termination violates
North Carolina public policy. See,~ Whitt v. Harris Teeter, Inc., 359 N.C. 625, 625, 614 S.E.2d
531, 532 (2005) (per curiam) (adopting dissenting opinion at 165 N.C. App. 32, 43-50, 598 S.E.2d
151, 159-63 (2004) (McCullough, J., dissenting)); Garner, 350 N.C. at 568-72, 515 S.E.2d at 439-
41; Amos v. Oakdale Knitting Co., 331 N.C. 348, 350-54, 416 S.E.2d 166, 167-70 (1992); Coman
48

v. Thomas Mfg. Co., 325 N.C. 172, 176-78, 381 S.E.2d 445, 447--49 (1989). To prove a claim of
wrongful discharge in violation of North Carolina public policy, a plaintiff must identify and rely
upon a specific North Carolina statute or North Carolina constitutional provision stating North
Carolina's public policy. See Garner, 350 N.C. at 568-72, 515 S.E.2d at 439--41; Amos, 331 N.C.
at 350-54, 416 S.E.2d at 167-70; Coman, 325 N.C. at 176, 381 S.E.2d at 447; Home v.
Cumberland Cnty. Hosp. Sys., Inc., 228 N.C. App. 142, 146--48, 746 S.E.2d 13, 17-19 (2013);
Gillis v. Montgomery Cnty. Sheriff's De_p't 191 N.C. App. 377, 379-81, 663 S.E.2d 447, 449-50
(2008); Whitings v. Wolfson Casing Corp., 173 N.C. App. 218,222,618 S.E.2d 750, 753 (2005);
Considinev. CompassGtp. USA. Inc., 145 N.C.App. 314,321,551 S.E.2d 179, 184(2001), aff'd.
354 N.C. 568,557 S.E.2d 528 (2001) (per curiam).
Johnson conclusorily alleges that his termination ''violated the public policy of the State of
North Carolina." Comp1. 101. Even viewing the complaint in the light most favorable to Johnson,
Johnson fails to state a wrongful termination claim. Accordingly, the court dismisses count ten.
J.
In count eleven, Johnson alleges abuse of process under North Carolina law against Doyle,
Hoffman, and Zellinger. See id. at 101--03. Under North Carolina law, "[i]n order to succeed on
a claim for abuse of process, the plaintiff must establish that (1) a prior proceeding was initiated
against the plaintiff by the defendant or used by him to achieve an ulterior motive or purpose; and
(2) once the proceeding was initiated, the defendant committed some willful act not proper in the
regular prosecution of the proceeding." Semones v. S. Bell Tel. & Tel. Co., 106 N.C. App. 334,
341, 416 S.E.2d 909, 913 (1992); ~ Stanback v. Stanback, 297 N.C. 181, 200, 254 S.E.2d 611,
624 (1979), disapproved of on other grounds~ Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325
(1981); Pinewood Homes, Inc. v. Harris, 184 N.C. App. 597, 602, 646 S.E.2d 826, 831 (2007). A
49

plaintiff satisfies the ulterior motive requirement when the plaintiff plausibly alleges that the
defendant initiated the prior action ''to achieve a purpose not within the intended scope of the
process used. The act requirement is satisfied when the plaintiff alleges that during the course of
the prior proceeding, the defendant committed some [willful] act whereby he sought to use the
proceeding as a vehicle to gain advantage of the plaintiff in respect to some collateral matter."
Hewes v. Wolfe, 74 N.C. App. 610, 614, 330 S.E.2d 16, 19 (1985) (citations omitted); ~
Stanback, 297 N.C. at 200, 254 S.E.2d at 624. ''The gravamen of a cause of action for abuse of
process is the improper use of the process after it has been issued." Chidnese v. Chidnese, 210
N.C. App. 299,311, 708 S.E.2d 725, 735 (2011) (cleaned up).
Johnson conclusorily alleges that "[d]efendants had an ulterior motive" to "go on a fishing
expedition to find evidence of some matter for which they could charge [Johnson] criminally."
Compl. 102. Defendants then obtained a search warrant and "proceeded to use the illegally seized
evidence" to convince a grand jury to return an indictment against Johnson "on a felony charge of
extortion and the resulting harassment and expenses of defending himself." Id.
Even viewing the complaint in the light most favorable to Johnson, Johnson fails to
plausibly allege an abuse ofprocess claim against Doyle, Hoffman, and Zellinger. See,~ Turner
v. Thomas, 235 N.C. App. 520, 531-32, 762 S.E.2d 252,262 (2014), aff'd in part, rev'd in pm,
369 N.C. 419, 794 S.E.2d 439 (2016); Petrou v. Hale, 43 N.C. App. 655, 659, 260 S.E.2d 130,
133-34 (1979); London Leasing, LLCv. Ray. No.14 CVS 7419, 2015WL8020472, at *2-3 (N.C.
Super. Ct. Dec. 4, 2015) (unpublished) (''Without both an ulterior motive and a malicious misuse
of process to gain an advantage to accomplish some purpose collateral to the lawsuit, an allegation
of an ulterior motive in tiling a lawsuit is not enough to support an abuse of process claim.").
Accordingly, the court dismisses count eleven.
50

K.
In count twelve, Johnson alleges intentional infliction of emotional distress ("IIED") under
North Carolina law against all defendants. See Compl. 103-04. An TIED claim requires "1)
•extreme and outrageous conduct by the defendant 2) which is intended to and does in fact cause
3) severe emotional distress." Waddle v. Sparks, 331 N.C. 73, 82,414 S.E.2d 22, 27 (1992); s
Dickens, 302 N.C. at 452, 276 S.E.2d at 335. Under North Carolina law, conduct is extreme and
outrageous only when it is "so outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community." Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 493, 340 S.E.2d 116, 123
(1986) (quotation omitted); compare Chidnese, 210 N.C. App. at 316, 708 S.E.2d at 738
("[L]iability clearly does not extend to mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities." (quotation omitted)), with Clark v. Clark, 280 N.C. App. 384,
397, 867 S.E.2d 743, 754 (2021) (holding that harassing and stalking after a separation, scaring
someone by stating "We are going to continue doing everything in our power to make your life
miserable," and posting advertisements and photographs online containing personal information
presented ''more than a scintilla of evidence of' extreme and outrageous behavior'"), and Chapman
ex rel. Chapman v. Byrd, 124N.C.App.13, 20,475 S.E.2d 734,739 (1996) (holding that repeating
rumors that someone at the workplace had AIDS or was mv positive and failing to investigate the
truth and falsity of the alleged rumors before repeating them constituted extreme and outrageous
behavior). Whether conduct meets this standard is a question of law for the court. See Lenins v.
K-Mart Corp., 98 N.C. App. 590, 599, 391 S.E.2d 843, 848 (1990).
Severe emotional distress means "any emotional or mental disorder, such as, for example,
neurosis, psychosis, chronic depression, phobia, or any other type of severe and disabling
51

emotional or mental condition which may be generally recognized and diagnosed by professionals
trained to do so." Johnson v. Ruark Obstetrics & GynecologyAssocs., P.A., 327 N.C. 283,304,
395 S.E.2d 85, 97 (1990).
"Under North Carolina law, it is extremely rare to find conduct in the employment context
that rises to the level of outrageousness necessary to support an IIED claim." Miller v. Gerber
Collision (Ne.), Inc., No. 4:19-CV-18, 2019 WL 2527105, at *3 (E.D.N.C. June 19, 2019)
(unpublished); see Ortizv. Vance Cnty. Sch.,Admin. Unit, No. 5:18-CV-91, 2019WL 1940596, at
*9 (E.D.N.C. Apr. 30, 2019) (unpublished); Everett v. Redmon, No. 7:16-CV-323, 2017 WL
2313468, at *9 (E.D.N.C. May 26,~017) (unpublished); Howard v. Coll. oftheAlbermarle, 262

'
F. Supp. 3d 322, 340-41 (E.D.N.C. 2017), aff'd, 697 F. App'x 257 (4th Cir. 2017) (per curiam)
(unpublished); Efird v. Riley. 342 F. Supp. 2d 413,427 (M.D.N.C. 2004); see,~ Hogan, 79 N.C.
App. at 493-94, 340 S.E.2d at 122-23 (finding no extreme or outrageous conduct where a
supervisor screamed at employees, called them names, cursed at them, disrupted their work, threw
menus at them, refused to grant pregnancy leave, and terminated an employee who left work due
to labor pains). In cases where North Carolina courts have found IIED claims actionable, the
conduct has been extremely egregious, involving sexual advances, obscene language, and
inappropriate touching. See Miller, 2019 WL 2527105, at *3; Moody-Williams v. LipoScience,
953 F. Supp. 2d 677, 683 (E.D.N.C. 2013); Payne v. Whole Foods Mkt. Qm., 812 F. Supp. 2d 705,
710 (E.D.N.C. 2011), aff'd, 471 F. App'x 186 (4th Cir. 2012) (per curiam) (unpublished); see,~
Guthrie v. Comoy. 152 N.C. App. 15, 22-23, 567 S.E.2d 403, 409-10 (2002) (collecting cases);
Groves v. Travelers Ins. Co., 139 N.C. App. 795, 800--01, 535 S.E.2d 105, 107-09 (2000) (McGee,
J., dissenting) (collecting cases), rev'd per curiam on reasoning of dissent, 354 N.C. 206, 552
S.E.2d 141 (2001); Hogan, 79 N.C. App. at 493, 340 S.E.2d at 123. Moreover, ''termination,
52

allegedly in violation of federal law alone, does not necessarily constitute extreme and outrageous
conduct under North Carolina law." Efird, 342 F. Supp. 2d at 427; ~ Bratcher v. Phann. Prod.
Dev., Inc., 545 F. Supp. 2d 533, 545 (E.D.N.C. 2008); Pardasani v. Rack Room Shoes Inc., 912 F.
Supp. 187, 192 (M.D.N.C. 1996) ("Plaintiff has alleged that he was given poor performance
evaluations, not given promotions which were given to others, excluded from training and finally
terminated from his employment. Assuming these allegation[s] to be true, these actions do not rise
to the level sufficient to exceed all bounds usually tolerated by decent society.").
Johnson alleges that McLeod, Lawrence, Marshburn, and Preston engaged in extreme and
outrageous conduct by obtaining and posting on social media false information and defamatory
information. See Compl. 5, 40, 84, 103. Additionally, Johnson alleges Smithfield, Scott, Kerigan,
West, Powell, Lee, the Board, Sutton, Sessoms, Tippett, Wooten, Andrews, Carroll, Donovan,
Doyle, and Hoffinan "all ratified and adopted" the actions of McLeod, Lawrence, Marshburn, and
Preston by relying on them without a proper investigation or evaluation. Id. at 103. Johnson also
alleges that "[a]s a result ofthe social media attacks and the resulting investigation by his employer,
[he] developed anxiety and depression." Id at 5.
As for Lawrence, Lawrence argues that Johnson had no expectation of privacy in the text
messages they exchanged in 2019 which painted both Johnson and Lawrence in a negative light.
See [D.E. 42] 20-21. Lawrence also argues that it would be "only rampant speculation" that
Lawrence shared these text messages with anyone. Id. at 20. Moreover, Lawrence argues that the
text messages did not cause Johnson's anxiety and depression. See id. at 21-22.
Even if Lawrence shared the text messages, that conduct does not constitute extreme or
outrageous conduct. Accordingly, the court dismisses Johnson's TIED claim against Lawrence.
53

As for Smithfield, Scott, Kerigan, West, Powell, Lee, the Board, Sutton, Sessoms, Tippett,
Wooten, Andrews, Carroll, Donovan, Doyle, and Hoffman, these defendants investigated Johnson
based on Johnson's alleged misconduct. See Compl. 103. Unlike in 1b'.!g, Johnson does not
plausibly allege that these defendants also publicized rumors without investigation. See 1b'.!g, 124
N.C. App. at 20, 475 S.E.2d at 739. Rather, these defendants investigated Johnson as a Smithfield
employee and Board member to determine if there was any truth to the alleged misconduct
allegations. See Compl. 5. Even viewing the complaint in the light most favorable to Johnson,
Johnson fails to plausibly allege an IIED claim against these defendants. See id. at 103--04.
Accordingly, the court dismisses Johnson's IIED claim against Smithfield, Scott, Kerigan, West,
Powell, Lee, the Board, Sutton, Sessoms, Tippett, Wooten, Andrews, Carroll, Donovan, Doyle, and
Hoffinan.
As for Marshburn, Marshburn made numerous statements about Johnson on various
livestreaming platforms and in writing. See Compl. 36, 40-42, 50-51, 53, 59, 62, 72. Some of
the statements disclosed factual parts of investigations against Johnson. A few statements are
uncivil and others appear to be defamatory. See id. at 53, 59. Allegedly uncivil or defamatory
statements alone, however, do not suffice to satisfy the "extreme and outrageous conduct" element
of an IIED claim. See, ~ Collins v. AB Biodisk N. Am., Inc., No. 5:08-CV-355, 2009 WL
10705350, at *5-6 (E.D.N.C. Mar. 16, 2009) (unpublished); Sabrowski v. Albani-Bayeux, Inc.,
No. 1:02CV728, 2003 WL 23018827, at *3-4 (M.D.N.C. Dec. 19, 2003) (unpublished).
Accordingly, Johnson fails to plausibly allege an IIED claim against Marshburn.
Johnson fails to plausibly allege an IIED claim against any defendant. Thus, the court
dismisses Johnson's IIED claim in count twelve.
54

L.
In count thirteen, Johnson alleges tortious interference with contract under North Carolina
law against the Board, Lee, Sutton, Sessoms, Tippett, Wooten, Andrews, Carroll, Donovan,
McLeod, Marshburn, Lawrence, and Preston. See id at 104-05. Under North Carolina law,
tortious interference with contract requires: (1) a valid contract between the plaintiff and a third
party; (2) the defendant knows of the contract; (3) the defendant intentionally induces the third
person not to perform the contract; (4) the defendant acts without justification; (5) actual damage
to the plaintiff. See Benjamin v. Sparks, 173 F. Supp. 3d 272, 289-90 (E.D.N.C. 2016), aff'd, 986
F.3d 332 (4th Cir. 2021); United Lab'ys. Inc. v. Kuykendall, 322 N.C. 643, 661, 370 S.E.2d 375,
387 (1988) (quotation omitted). Tortious interference with contract applies to at-will employment.
See,~ Smith v. Ford Motor Co., 289 N.C. 71, 85,221 S.E.2d 282,291 (1976); Combs v. City
Elec. Sypply Co., 203 N.C. App. 75, 84, 690 S.E.2d 719, 725 (2010).
Acts of non-outsiders "are presumed to have been done in the interest of the corporation"
and are therefore '~ustified" Embree Constr. GJ;p .. Inc. v. Rafcor, Inc., 330 N.C. 487,498,411
S.E.2d 916, 924 (1992). Any party that has a "legitimate business interest ... in the subject matter''
is a ''non-outsider." Smith, 289 N.C. at 87, 221 S.E.2d at 292. On the other hand, an "outsider'' is
"one who was not a party to the terminated contract and who had no legitimate business interest
of his own" in the contract. Combs, 203 N.C. App. at 84, 690 S.E.2d at 725 (quotation omitted).
Johnson alleges that he had a valid contract with Smithfield as an at-will employee with
the Smithfield Police Department and that multiple outsiders, namely the Board, Lee, Sutton,
Sessoms, Tippett, Wooten, Andrews, Carroll, Donovan, McLeod, Marshburn, Lawrence, and
Preston, knew that Smithfield employed him. See Compl. 104. Johnson alleges that these
defendants ''took concerted efforts to make false allegations of misconduct and improper conduct
55

and to issue censures based on incomplete and inadequate investigations· which contained
unsupported conclusions against [Johnson] in order to influence [Smithfield] to terminate his
employment." Id.
Johnson fails to allege any individual or group-based facts that the Board, Lee, Sutton,
Sessoms, Tippett, Wooten, Andrews, Carroll, Donovan, or Lawrence took action to influence
Smithfield to investigate Johnson's employment. See id. at 104--05. Rather, Johnson alleges that
"[a]fter the Facebook Live posted video on Friday, June 24, 2022, on June 27th, 2022, the
Smithfield Police Department initiated an investigation based on the false allegations made in the •
webcast and published by Marshburn and Preston." Id. at 49. Moreover, and in any event, Johnson .
alleges that Smithfield engaged in its own independent investigation to come to its own conclusion
about whether Johnson violated police department policies. See [D.E. 2-8] 1-13.
Even viewing Johnson's complaint in the light most favorable to him, Johnson has not
plausibly alleged that defendants intentionally induced Smithfield not to perform its contract with
Johnson or that defendants acted without justification. Accordingly, the court dismisses count
thirteen against the Board, Lee, Sutton, Sessoms, Tippett, Wooten, Andrews, Carroll, Donovan,
Lawrence, and Marshburn.
M.
In count fourteen, Johnson alleges defamation under North Carolina law against all
defendants. See Compl. 105-06. To establish a defamation claim under North Carolina law, a
''plaintiff must allege and prove that the defendant made false, defamatory statements of ot
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) (quotation
omitted); see Desmond v. News & Observer Publ'g Co., 375 N.C. 21, 41-44, 846 S.E.2d 647,
56

661--62 (2020); Hendrix v. Town of W. Jefferson, 273 N.C. App. 27, 32, 847 S.E.2d 903, 907
(2020); Boyce & Isley, PLLC v. Cooper, 211 N.C. App. 469,478, 710 S.E.2d 309, 317 (2011);
Craven v. Cope, 188 N.C. App. 814, 816, 656 S.E.2d 729, 732 (2008); Smith-Price v. Charter
Behav. Health Sys., 164 N.C. App. 349, 356, 595 S.E.2d 778, 783 (2004); see also Syngenta Crop
Prot., LLC v. Atticus, LLC, No. 5:19-CV-509, 2022 WL 842938, at *6 (E.D.N.C. Mar. 21, 2022)
(unpublished). A statement is defamatory if it, either directly or by implication, ascribes
dishonesty, fraud, lack of integrity, or reprehensible conduct to the subject of the statement. See
Flake v. Greensboro News Co., 212 N.C. 780, 785-86, 195 S.E. 55, 60 (1938); Donovan v.
Fiumara, 114 N.C. App. 524, 526, 442 S.E.2d 572, 574 (1994); Beane v. Weiman Co., 5 N.C. App.
276,277, 168 S.E.2d 236,237 (1969). A defamatory statement ''tend[s] to prejudice another in his
reputation, office, trade, business, or means of livelihood." Donovan, 114 N.C. App. at 526,442
S.E.2d at 574 (quotation omitted);~ West v. King's De,il't Store, Inc., 321 N.C. 698, 703, 365
S.E.2d 621, 624 (1998); Flake, 212 N.C. at 786, 195 S.E. at 60.
Defamation can be either libel or slander. See,~ Craven, 188 N.C. App. at 816, 656
S.E.2d at 732; Tallent v. Blake, 57 N.C. App. 249, 251, 291 S.E.2d 336, 339 (1982); cf. Renwick
v. News & Observer Publ'g Co., 310 N.C. 312, 323-24, 312 S.E.2d 405, 412-13 (1984).
Generally, libel is written and slander is oral. See Aycock v. Padgett, 134 N.C. App. 164, 165, 516
S.E.2d 907,909 (1999); Tallent, 57 N.C. at 251,291 S.E.2d at 338; cf. Bell v. Simmons, 247 N.C.
488, 494, 101 S.E.2d 383, 388 (1958).
Whether a statement is defamatory per se is a question of law. See, ~ Ellis v. N. Star
Co., 326 N.C. 219, 224, 388 S.E.2d 127, 130 (1990). When a plaintiff alleges that statements are
defamatory per~ the statements "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
57

him up to public hatred, contempt or ridicule, or cause him to be shunned and avoided." Boyce &
Isley. 153 N.C. App. at 30-31, 568 S.E.2d at 898-99. In making this determination, the court
considers the statement alone without any explanatory circumstances, insinuations, innuendo, or
colloquium. See, _e.:.&., Nucor Cor_p. v. Prudential Equity Grp., LLC, 189 N.C. App. 731,736,659
S.E.2d 483, 487 (2008). A ''pure expression of opinion" is not actionable under North Carolina
law. .hb, 659 S.E.2d at 486; ~ Desmond, 375 N.C. at 38, 846 S.E.2d at 659; Daniels v. Metro
Mag. Holding Co., LLC, 179 N.C. App. 533, 539-40, 634 S.E.2d 586, 590 (2006). Nevertheless,
"someone cannot preface an otherwise defamatory statement with 'in my opinion' and claim
immunity from liability." Nucor Cor_p., 189 N.C. App. at 736, 659 S.E.2d at 486 (quotation
omitted); see Milkovich v. Lorain Journal Co., 497 U.S. 1, 19-20 (1990); Design Res., Inc. v.
Leather Indus. ofAm., 789F.3d495, 504---05 (4th Cir. 2015); Desmond, 375N.C. at 38,846 S.E.2d
at 659. In cases of defamation per~ damages and malice are presumed. See, ~ Eshelman v.
Puma Biotechnology, Inc., 2 F.4th 276, 283 (4th Cir. 2021); Donovan, 114 N.C. App. at 527, 442
S.E.2d at 574.
In considering a motion to dismiss, a court must "credit the plaintiff's allegation of the
factual falsity of a statement." Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1092 (4th Cir. 1993);
see Gilmore v. Jones, 370 F. Supp. 3d 630, 671 (W.D. Va. 2019). A plaintiff, however, cannot
merely allege falsity in ''vague, conclusory terms." Chapin, 993 F.2d at 1092; cf. Mayfield v.
NASCAR, Inc., 674 F.3d 369, 377 (4th Cir. 2012) (stating that ''the usual standards of notice
pleading apply in defamation cases" (quotation omitted)); Hatfill v. N.Y. Times Co., 416 F.3d 320,
329 (4th Cir. 2005); Jolly v. Acad. Collection Serv., Inc., 400 F. Supp. 2d 851, 861 (M.D.N.C.
2005).
58

Johnson fails to allege any statements, let alone false statements, made by Scott, Kerigan,
West, Lee, Sutton, Sessoms, Tippett, Wooten, Andrews, Carroll, Donovan, or Lawrence.
Furthermore, because Johnson does not allege any public statements that Board members made,
the Board members could not plausibly have made a false statement on behalf of the Board
Accordingly, the court dismisses Johnson's defamation claim against the Board, Scott, Kerigan,
West, Lee, Sutton, Sessoms, Tippett, Wooten, Andrews, Carroll, Donovan, and Lawrence.
As for Powell, Powell was Smithfield's Police Chief. Johnson alleges that Powell:
• Made statements in front of other employees that Johnson ''was engaging in

a sexual relationship with Craig Olive, the Register of Deeds."
• Made statements in front of other employees that Johnson ''was in a three-
way sexual relationship with 'Jeff and Dean,' two individuals who were
known to be acquaintances of Craig Olive."
• Made statements in front of other employees, including Jessica Zavala, that
Johnson ''was having or had had a sexual relationship with Jessica Zavala,
a former employee, and that one of Zavala's children was fathered by
[Johnson]."
• Made statements in front of other employees that Johnson ''was having
sexual relationship with Brandy Galindo/Phelps, by saying on a number of
occasions 'you are fucking Galindo's wife."'
Compl. 44. Johnson never pleads, however, that Powell's statements are false. See hi:.; Chapin,
993 F.2d at 1092; Hedge,Peth v. Smoky Mountain Country Club Prop. Owners Ass'n, Inc., 288
N.C. App. 637, 886 S.E.2d 192, 2023 WL 3190690, at *4 (2023) (unpublished table decision); cf.
Boyce & Isley, PLLC, 153 N.C. App. at 29, 568 S.E.2d at 897-98 (concluding plaintiffs' complaint
"set forth sufficient specific facts to support their claim that the statements made by defendants
were false"). Accordingly, the court dismisses Johnson's defamation claim against Powell.
As for Smithfield, Powell was Smithfield's Police Chief. Johnson attempts to hold
Smithfield liable for Powell's statements. Sometimes, "an employer may be held vicariously liable
for defamatory statements made by an employee." Hendrix, 273 1'1.C. App. at 32, 847 S.E.2d at
907; see Gillis v. Great Atl. & Pac. Tea Co., 223 N.C. 470, 474-75, 27 S.E.2d 283, 286 (1943).
59

Because Johnson fails to plausibly allege that Powell made any defamatory statements, Johnson
cannot hold Smithfield vicariously liable for Powell's statements. Accordingly, the court dismisses
Johnsons's defamation claim against Smithfield.
As for Marshburn, Johnson alleges that Marshburn made the following statements:
• Marshburn, after identifying Johnson, "called him the 'golden boy' of the
BOE, and stated that 'back in 2019 when he had just gotten elected and, you
know, be exposed a lot of people in Johnston County.'" Compl. 40.
• Marshburn and Preston said Johnson "had used 'government property"' to
"go out as a person and expose people." They accused Johnson of ''using
microphones, hidden cameras," and of "grandstanding and using
government property ... to do that." Id.
• Marshburn stated that "'to get all that information' that [Johnson] allegedly
obtained, be 'used Smithfield Police Department's equipment to get this
done. [Johnson] and another officer within the Police Department.'
[Marshburn] alleged that [Johnson] did not use the equipment for a 'legal
investigation."' Id. at 40-41.
• Marshburn and Preston stated that Johnson was "running around on his
wife" and that it ''was going to come out." Id. at 41.
• Marshburn stated that "[Johnson] had 'got to plant the seed, the problem is
[McLeod] fixing to file papers on him. The very next day Ronald Johnson
files paper against her because he was afraid she was going to file one
against him."' Id. Marshburn also stated that Johnson "'made up' the
allegation and 'told Rick she is going to be taking papers out on him. It is
an integrity thing. What good are you in law enforcement?"' Id.
• Marshburn declared: ''Don't go after my friends, damn it don't step on my
toes. It will catch you in the ass every time. When you use government
issued equipment to record people, you use people. You could get charged
for pimping and human trafficking. We are paying for the gas to go in there.
TheA/C to be used while it is getting hot in there, I amjust saying." Id. at
41-42.
• During the June 30, 2022 live stream,
o Marshburn and Preston made statements including: ''During this
whole ordeal, what transpired, I told y'all this last time that I wound
up putting a bug in the ear and it got to him. Ronald Johnson went
and filed papers on this woman. Said she is harassing me and
stalking me, took out papers, a SOC and it should have been SOB.
He is not going to admit be has had sexual relationship with her and
used government property for illegal use so forth so on to get these
bad guys right. Does a SOC and the whole time in the back of his
mind, I need to find out how to shut her up so I don't lose everything
I got that I have worked hard for to manipulate and blackmail a lot
of people so I can be in this county and become the sheriff, basically
60

be doing what Mr. Bizzell is doing over there, a lot of shady shit. I
do not see that happening ever, I think the career is over with, I think
things are going to be different. What Ronald Johnson did, when he
got into the school board, did all these recordings, paid people, paid
people to do that, used government property to get that done, was
not a formal investigation through the Smithfield Police
Department. So that's got to be thrown out the window, that's not a
formal investigation, the chain of command was not filled out, the
forms. It's got to have a chain of command." Id. at 50--51.
o Marshburn stated: "Well I know, I hate it, someone loses their
career, someone loses their position they got voted in for. Allowing
other people to use recording devices and things that he got from his
authority position as a detective, on people during the campaign that
is part of what he was saying earlier that he was going to be very
involved. These are these types of things that go on that people don't
really believe happen when they see two crazy guys like me and you
and talking. That can't be true, I am telling you it is true. I am going
to call him a predator. I am going to call Ronald Johnson a predator,
they come in and do what they do and say what they say. There's a
lot more, and it is deep. It goes to teachers, principals,
superintendents, school board members, commissioners, town
council men. It goes on and on. Some of this stuff was created by
Ronald Johnson. It was to gain in the political realm, I call it
blackmail, I call it just pure evil to do some of that stuff. We will be
exposing more." Id. at 51.
• During the July 7, 2022 webcast, Marshburn and Preston stated:
o "It is a fact that he used government property paid for by the
taxpayers for personal gain. He could actually from what I know,
things I have talked to people about, he could be arrested for
conspiracy of extortion. Do you remember when and I am not trying
to beat a dead horse, Joe mentioned the CAAG." Id. at 53.
o "Ronald Johnson was involved deeply with this voter guide and that
he pushed the agenda and extorted certain people he could because,
to better understand it. Ronald Johnson causes problems." Id.
o "[Johnson] goes in and creates a problem. He comes in and goes
back and forth and acts like he is a savior." Id
o "Ronald Johnson was the top dog when it came to the CAAG,
Conservative card and the people on it. He was the one to put the
ADT on the card. He bribed, kind of extorted, I need these people
on this board. I will get you where you need to be, higher up in the
system, I will get you a raise, I will get you this, but I need support.
He actually got these people and had them so afraid because if they
didn't do what he said, they felt like their job was in jeopardy, they
were out there at polls working because they were afraid Ronald
Johnson was going to retaliate against them. That's how sorry that
individual is." Id.
61

o "They were being intimidated at the polls, some were under the
direction of Ronald Johnson." Id.
o "He has gone to the point where he has taken the mistress, and pretty
much sell her out, rent her out so he can have dirt on other people,
like DeVan Barbour. Go flirt, see if you can have sex with him, and
get pictures and video. No what kind of sick, sadistic son of a bitch
is that? That's him. That come out of his mouth." Id.
• During an August 16, 2022 webcast, Marshburn and Preston posted ''Happy
Birthday Ronald Johnson" and a picture of a fake classified advertisement
seeking an "ADULT ENTERTAINER" with an "interest in porn" and
''bisexual tendencies." Id. at 59.
• During a September 21, 2022 webcast, Marshburn and Preston stated that
Smithfield gave Johnson the option to resign or be terminated. Marshburn
also disclosed that Johnson was in therapy. See id. at 62.
• During a September 15, 2022 Board meeting, Marshburn made a public
comment where he looked at Johnson and said to him "don't wink at me, I
am not that way." Johnson had not winked at Marshburn. Id. at 72.
Johnson alleges that the following statements are false:
• Johnson states that he has "never used any government property to record
anything, and that [Marshburn 's] allegation has never been substantiated."
Id. at 51.
• Johnson denies as untrue as all of the statements in the July 7, 2022 webcast.
See id at 53-54.
Johnson also contends that Marshburn 's description of Johnson as a ''predator'' who engaged in
''blackmail" constitutes defamation per se. Id. at 51-52, 105.
At this stage ofthe case, the court accepts Johnson's allegation that Marshburn's statements
about Johnson's misusing government property, Marshburn's statements on July 7, 2022, and
Marshburn's description of Johnson as a ''predator" who engaged in ''blackmail" are false. See id.
at 51, 53-54, 105; Chapin, 993 F.2d at 1092. Moreover, on June 30, 2022, Marshburn's statement
about misusing government property and calling Johnson a ''predator'' who engaged in
''blackmail" occurred on Marshburn's publicly broadcast webcast. See Compl. 50. On July 7,
2022, Marshburn's second set of statements occurred on his public webcast. See id. at 53. Thus,
the statements concerning Johnson were published to a third person. Finally, Johnson plausibly
62

alleges that Marshburn's statements caused injury to his reputation. See id. at 7, 51-52, 82, 104.
Accordingly, Johnson has plausibly alleged a defamation claim in count fourteen against
Marshburn.
N.
In count fifteen, Johnson alleges a conspiracy claim under 42 U.S.C. § 1983 against all
defendants. See id at 106---07. To state a conspiracy claim, Johnson must plausibly allege ''that
the [defendants] acted jointly in concert and that some overt act was done in furtherance of the
conspiracy which resulted in [Johnson's] deprivation of a constitutional right." Hinkle v. City of
Clarksburg. 81 F.3d 416,421 (4th Cir. 1996). To show joint, concerted action, plaintiffs must, at
minimum, provide "specific circumstantial evidence that each member of the alleged conspiracy
shared the same conspiratorial objective." Id. Conclusory allegations of a conspiracy do not
satisfy this "meeting of the minds" element and fail to state a claim. See, ~ Simmons v. Poe,
47 F.3d 1370, 1376-77 (4th Cir. 1995); Gooden v. Howard Cnty., 954 F.2d 960, 970 (4th Cir. 1992)
(en bane).
Johnson argues that his case is analogous to Haddle v. Garrison, 525 U.S. 121 (1998). See
[D.E. 80] 12-13. In Haddle, the plaintiff was an at-will employee who received a federal grand
jury subpoena to testify before a federal grand jury investigating his employer. See Haddle, 525
U.S. at 123. The plaintiff also was expected to testify for the prosecution in his employer's
upcoming federal criminal trial. See id. In response, plaintiff alleged that two former executives
of his employer conspired with a current executive to have him fired. See id The district court
and the United States Court of Appeals for the Eleventh Circuit held that the plaintiff's status as
an at-will employee precluded such a claim under 42 U.S.C. § 1985(2). See id at 123-24. The
63

Supreme Court reversed and held that the plaintiff need not suffer an injury to a constitutionally
protected property interest to state a claim under 42 U.S.C. § 1985(2). See id at 125-26.
This court acknowledges that Johnson's at-will employment status does not bar relief under
42 U.S.C. § 1983. Johnson, however, fails plausibly to allege a "meeting of the minds" among the
named defendants. See,~ Bartko v. Wheeler, No. 5:14-CT-3043, 2014 WL 3563359, at *8
(E.D.N.C. July 18, 2014) (unpublished); Holbach v. Jenkins, No. 4:09-CV-26, 2009 WL 2382756,
at *7 (D.N.D. July 30, 2009) (unpublished). Accordingly, the court dismisses count fifteen.
IY.
In sum, the court (1) GRANTS defendant Lawrence's motion to dismiss [D.E. 41]; (2)
DENIES plaintiff's motion to deem timely filed plaintiff's opposition to defendant Zellinger's
motion to dismiss [D.E. 81] and STRIKES [D.E. 80] from the record; (3) GRANTS defendant
Zellinger's motion to dismiss and DISMISSES defendant Zellinger from this action [D.E. 45]; (4)
GRANTS defendants Doyle and Hoffman's motion to dismiss and DISMISSES defendant Doyle
and defendant Ho:ffinan from this action [D.E. 47]; (5) DISMISSES IN PART Johnson's claims
against Marshburn [D.E. 50]; (6) GRANTS the motion to dismiss of the Board, Sutton, Sessoms,
Tippett, Wooten, Andrews, Carroll, and Donovan and DISMISSES defendants the Board, Sutton,
Sessoms, Tippett, Wooten, Andrews, Carroll, and Donovan from this action [D.E. 67]; (7)
GRANTS IN PART and DENIES IN PART defendant Smithfield's motion to dismiss [D.E. 72];
(8) GRANTS defendants Scott, Kerigan, West, Powell, and Lee's motion to dismiss and
DISMISSES defendants Scott, Kerigan, West, Powell, and Lee from this action [D.E. 72]; (9)
DENIES defendant McLeod's motion to deem timely filed defendant McLeod's motion to dismiss
[D.E. 100] and STRIKES [D.E. 98] and [D.E. 99] from the record; and (10) DISMISSES defendant
Preston from the action. Thus, the only claims and only defendants that remain are plaintiff's Title
64

VII retaliation claim in count two against Smithfield, plaintiff's ADA retaliation claim in count
four against Smithfield, plaintiff's FMLA interference claim in count five against Smithfield,
plaintiff's FMLAretaliation claim in count six against Smithfield, and plaintiff's defamation claim
in count fourteen against Marshburn. The court DISMISSES all other claims and all other
defendants.
SO ORDERED. This -68 day of March, 2024.
JSC.DEVERill
United States District Judge
65

March 28 Order in Ronald Johnson Lawsuit

Uploaded by

Copyright:

Available Formats

March 28 Order in Ronald Johnson Lawsuit

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

March 28 Order in Ronald Johnson Lawsuit

Uploaded by

Copyright:

Available Formats

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

RONALD L. JOHNSON, JR., )

Case 5:23-cv-00349-D-RN Document 112 Filed 03/28/24 Page 1 of 65

Case 5:23-cv-00349-D-RN Document 112 Filed 03/28/24 Page 2 of 65

Case 5:23-cv-00349-D-RN Document 112 Filed 03/28/24 Page 3 of 65

and engaged in other misconduct. See id. at 42-49.

Case 5:23-cv-00349-D-RN Document 112 Filed 03/28/24 Page 4 of 65

Case 5:23-cv-00349-D-RN Document 112 Filed 03/28/24 Page 5 of 65

superintendent to address the sexual harassment allegations. See id. at 2-5.

after voters elected Zukowski to the Board. See id. at 6.

approached Johnson for assistance. See id. at 3.

Case 5:23-cv-00349-D-RN Document 112 Filed 03/28/24 Page 6 of 65

school employee. See id

On March 6, 2020, Lawrence resigned as Board counsel "effective immediately." [D.E. 2-

5]; ~ Compl. 22-23.

Case 5:23-cv-00349-D-RN Document 112 Filed 03/28/24 Page 7 of 65

intended to determine if Johnson ''used department equipment to investigate people in furtherance

Case 5:23-cv-00349-D-RN Document 112 Filed 03/28/24 Page 8 of 65

[Smithfield] for political or partisan purposes." Id Furthermore, it advised Johnson that

[Smithfield] equipment or vehicles for private purposes." Id.

and remain in daily contact with West. See id at 56.

discrimination allegation and continued to investigate Johnson. See id.

Concurrently with Smithfield's investigation of Johnson, the Board hired Tharrington

Case 5:23-cv-00349-D-RN Document 112 Filed 03/28/24 Page 9 of 65

awhile ago?" Id. Johnson responded, "Yes." Id.

students. See id. at 2.

actions violated Section (B)(7) of the Code of Ethics. See id. at 8.

Case 5:23-cv-00349-D-RN Document 112 Filed 03/28/24 Page 10 of 65

On September 7, 2022, Johnson's attorney provided Tharrington Smith LLP with

or promotional material for his Board campaign. See [D.E. 2-9] 2.

Case 5:23-cv-00349-D-RN Document 112 Filed 03/28/24 Page 11 of 65

department equipment for personal use. See id at 81.

On October 5, 2022, following Smithfield's investigation of Johnson, Powell delivered to

Johnson an "Employee Dismissal Recommendation." See id. at &-7, 8~5. In his

the operation of the department ...." Id

Case 5:23-cv-00349-D-RN Document 112 Filed 03/28/24 Page 12 of 65

employee and asked ''where's the blue dress?" Id.

also violated the same Board policies. See id.

Case 5:23-cv-00349-D-RN Document 112 Filed 03/28/24 Page 13 of 65

and Board policy in violation of Policy 2120(B.16)." Id at 5.

their investigative reports in a public session. See id. at 73.

Case 5:23-cv-00349-D-RN Document 112 Filed 03/28/24 Page 14 of 65

Case 5:23-cv-00349-D-RN Document 112 Filed 03/28/24 Page 15 of 65

Smithfield Police Department provided to Johnson. See id. at 8.

later with a large box. See id.

[B]oard members." Id. at 20.

Case 5:23-cv-00349-D-RN Document 112 Filed 03/28/24 Page 16 of 65

registered user of the disguised ''Pinger'' number. See id. at 25.

Case 5:23-cv-00349-D-RN Document 112 Filed 03/28/24 Page 17 of 65

County Superior Court. See Compl. 7, 73-86.

relief against all defendants. See id. at 108--09.

at 11:56 p.m., Johnson's counsel emailed the filings to

''[email protected]'' and opposing counsel. See id. at 2. On September

Case 5:23-cv-00349-D-RN Document 112 Filed 03/28/24 Page 18 of 65

motion to dismiss. See [D.E. 80, 81]. 2

Case 5:23-cv-00349-D-RN Document 112 Filed 03/28/24 Page 19 of 65

WL 8438735, at *2 (E.D.N.C. May 1, 2006) (unpublished).

States, 517 U.S. 654, 662-63, 663 n.10 (1996).