,                                                         NOT PRECEDENTIAL



                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                       No. 13-1573
                                      _____________

                                   SCOTT E. KOCHER,
                                               Appellant
                                          v.

           LARKSVILLE BOROUGH; MAYOR JOE ZAWADSKI;
        TONY KOPKO, Police Chief; JOHN PEKAROVSKY, Individually


                   On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                            District Court No. 3-11-cv-02053
                   District Judge: The Honorable A. Richard Caputo

                              Argued November 20, 2013
                       Before: AMBRO, SMITH, Circuit Judges
                       and O’CONNOR, Associate Justice (Ret.)

                               (Filed: December 10, 2013)

Cynthia L. Pollick, Esq. (ARGUED)
The Employment Law Firm
363 Laurel Street
Pittston, PA 18640-0000
                   Counsel for Appellant


  Sandra Day O’Connor, Associate Justice (Ret.) of the Supreme Court of the United States,
sitting by designation.

                                               1
Eric M. Brown, Esq. (ARGUED)
Siana, Bellwoar & McAndrew
941 Pottstown Pike
Suite 200
Chester Springs, PA 19425
                  Counsel for Appellee

                            _____________________

                                   OPINION
                            _____________________

SMITH, Circuit Judge.

       Appellant Scott E. Kocher brought this action under 42 U.S.C. § 1983

against Larksville Borough, Joseph Zawadski, Tony Kopko, and John Pekarovsky

alleging that the defendants violated his First and Fourteenth Amendment rights in

connection with his termination from the Larksville Borough Police Department.

The District Court granted summary judgment in favor of the defendants and

Kocher appealed. For the reasons that follow, we will affirm.

                                            I.

      As this appeal comes to us following summary judgment, we review the

facts in the light most favorable to the nonmoving party. See Gwynn v. City of

Phila., 719 F.3d 295, 297 (3d Cir. 2013).

      Kocher brought this action after being terminated from his position as a part-

time patrol officer for Larksville Borough (the “Borough”). Kocher was terminated

                                            2
in September 2010 following a confrontation with the Borough’s mayor, Joseph

Zawadski (“Mayor Zawadski”).

      On August 13, 2010, Mayor Zawadski learned that attendees of a local

church bazaar were illegally parked on Borough sidewalks. Mayor Zawadski called

Kocher and directed him to handle the issue, but Kocher responded that he was

addressing another matter. It was nearly two hours after Mayor Zawadski’s call

before Kocher finally arrived at the bazaar. As soon as Kocher arrived, Mayor

Zawadski confronted him about his delayed response. Kocher alleges that Mayor

Zawadski—with a finger poked at Kocher’s chest—declared that he was the boss,

instructed Kocher to follow his orders, and threatened to bring charges against

Kocher.

      Before leaving the bazaar, Kocher discussed the confrontation with Police

Chief Tony Kopko (“Chief Kopko”). Chief Kopko opined that Kocher should have

arrested Mayor Zawadski, and he advised Kocher to complete an incident report

documenting the exchange. Kocher also contacted Detective John Edwards

(“Detective Edwards”), who similarly suggested that Mayor Zawadski should have

been arrested and that Kocher should file an incident report to cover himself.

      The following day, Kocher received a phone call from Borough Councilman

John Pekarovsky (“Councilman Pekarovsky”). Councilman Pekarovsky had a

different perspective on the confrontation, and he instructed Kocher that Mayor
                                         3
Zawadski was his boss and that Kocher must obey the Mayor’s orders.

      On the advice of Chief Kopko and Detective Edwards, Kocher completed a

written incident report to document both his encounter with Mayor Zawadski and

the call from Councilman Pekarovsky (the “Incident Report”). Kocher drafted the

Incident Report with a password-protected program available only on computers

inside the police station. The Incident Report followed departmental standards,

providing the time, date, area, and location of the incident, as well as a narrative

description of what occurred. After the report was completed, Kocher entered his

badge number at the bottom, printed a copy for himself, and placed a second copy

in the appropriate basket with the other reports.

      Chief Kopko’s initial review of the Incident Report led him to believe that

Kocher had acted properly at the bazaar. However, Chief Kopko became less

convinced of that after he discovered that several 911 time records were missing

for the evening of August 13. Chief Kopko assigned Detective Edwards to gather

information about the missing calls. After reviewing the call logs obtained by

Detective Edwards, Chief Kopko concluded that the times listed on Kocher’s

Incident Report were inaccurate. More specifically, Chief Kopko determined that

Kocher had misrepresented his status when Mayor Zawadski called, and that he

was actually inactive for about an hour before reporting to the bazaar. Chief Kopko

further concluded that Kocher had erased the 911 records in an attempt to falsify
                                          4
his time.

      On September 21, 2010, Chief Kopko prepared an internal memorandum

(the “Kopko Memorandum”) for the Larksville Borough Council recommending

that Kocher be terminated from his position as patrol officer. With respect to the

confrontation at the bazaar, the Kopko Memorandum stated:

      I have recently discovered that in the problem at [the bazaar] between
      Mayor Zawadski and [patrolman] Scott Kocher that Kocher lied about
      his times on his reports. He did in fact have at least one (1) hour to
      address the Mayor’s concerns and orders. He did not. What he did do
      was lie and falsify his reports. I found out that the 911 Center times
      were erased from our computer. I was able to recover the times,
      proving he was lying.

Based in part on the Kopko Memorandum, the Borough Council terminated

Kocher at its September 21, 2010 public meeting. Although the Council reviewed

the Kopko Memorandum during its executive session, neither the reasons for the

termination nor the contents of the memo were discussed on the record.

      In April 2009 (prior to the incident at the bazaar), Kocher had applied for a

position as a full-time officer for Kingston Borough. In connection with the

application, Kocher signed a Waiver and Release for Background Investigation

(the “Release”), authorizing Kingston Borough “to make a thorough investigation

into [his] background, previous employment, education, and references in order to

ascertain [his] suitability for service as a police officer.” The Release also

purported to release “from all liability and claims any and all persons, companies
                                        5
and corporations (public and private) supplying any information whatsoever to

representatives of the Municipality of Kingston.”

      Detective Richard Kotchik (“Detective Kotchik”) was assigned to conduct

Kocher’s background check, which he initially completed on September 4, 2010

(after the confrontation at the bazaar but before Kocher’s termination). As part of

his investigation, Detective Kotchik spoke with Chief Kopko. Although Chief

Kopko opined that Kocher had a tendency to be a lazy worker, he did not mention

that Kocher was under investigation or that he might be terminated. After

completing his investigation, Detective Kotchik reported to the Kingston

Borough’s Civil Service Commission that Kocher “could be a good Police Officer”

but was “not . . . the best applicant for the position.”

      Shortly after submitting his initial report, Detective Kotchik learned that

Kocher had been terminated by Larksville Borough, and he thus followed up with

Larksville Borough to request that he be allowed to inspect Kocher’s personnel

file. The Borough Secretary initially denied Kotchik’s request to view the file, but

later permitted an inspection after Kotchik showed her the Release signed by

Kocher. After reviewing the personnel file, which contained the Kopko

Memorandum, Detective Kotchik supplemented his earlier report to provide the

information pertaining to Kocher’s termination.

      By letter dated November 30, 2010, Kingston Borough’s Civil Service
                                            6
Commission informed Kocher that he was not suitable for employment with the

Kingston police department. The letter expressly noted that Kocher failed his

background investigation because of the circumstances surrounding his termination

by Larksville Borough.

      Based on the foregoing events, Kocher filed the instant action against

Larksville Borough, Mayor Zawadski, Chief Kopko, and Councilman Pekarovsky.

Kocher’s amended complaint sets out three causes of action: (1) a First

Amendment retaliation claim; (2) a Fourteenth Amendment claim for deprivation

of a liberty interest in reputation; and (3) state law claims for defamation and false

light. The District Court granted summary judgment in favor of the defendants on

Kocher’s federal claims and declined supplemental jurisdiction over Kocher’s state

law claims. Kocher timely appealed.

                                         II.

      The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and

1367. We have jurisdiction under 28 U.S.C. § 1291.

      “We exercise plenary review over the District Court’s grant of summary

judgment and apply the same standard that the District Court would apply.” Burton

v. Teleflex Inc., 707 F.3d 417, 424–25 (3d Cir. 2013) (citing Howley v. Mellon Fin.

Corp., 625 F.3d 788, 792 (3d Cir. 2010)). “A grant of summary judgment is

appropriate where the moving party has established ‘that there is no genuine
                                          7
dispute as to any material fact and the movant is entitled to judgment as a matter of

law.’” Id. at 425 (quoting Fed. R. Civ. P. 56(a)).

                                         III.

      We begin with Kocher’s First Amendment retaliation claim. Kocher

contends he was retaliated against for engaging in speech protected by the First

Amendment. Specifically, Kocher claims he was terminated for complaining to

Chief Kopko about Mayor Zawadski’s conduct at the bazaar and for memorializing

those complaints in a formal incident report. The District Court rejected this claim,

finding that because Kocher “did not speak as a citizen on a matter of public

concern,” his speech was not protected by the First Amendment.

      To state a claim for retaliation under the First Amendment, a public

employee plaintiff must allege that he engaged in protected speech. Public

employee speech is “protected” when the employee: (1) speaks “as a citizen,” (2)

“on a matter of public concern,” and (3) the government employer does not have

“an adequate justification” for its negative employment action. Garcetti v.

Ceballos, 547 U.S. 410, 418 (2006); see also Gorum v. Sessoms, 561 F.3d 179, 185

(3d Cir. 2009) (citing Hill v. Borough of Kutztown, 455 F.3d 225, 241–42 (3d Cir.

2006)). Under Garcetti, the threshold question is whether the employee spoke in

his capacity as a private citizen or, rather, in his capacity as an employee. As the

Supreme Court explained, “when public employees make statements pursuant to
                                          8
their official duties, the employees are not speaking as citizens for First

Amendment purposes, and the Constitution does not insulate their communications

from employer discipline.” Garcetti, 547 U.S. at 421; see also id. at 421–22

(“Restricting speech that owes its existence to a public employee’s professional

responsibilities does not infringe any liberties the employee might have enjoyed as

a private citizen.”).

       Thus, we must first determine whether Kocher’s speech was made pursuant

to his official duties. Determining what falls within the scope of an employee’s

official duties is a “practical” exercise that focuses on “the duties an employee is

actually expected to perform.” Garcetti, 547 U.S. at 424–25. Although formal job

descriptions may be helpful, the inquiry is not confined to such descriptions

because they “often bear little resemblance” to an employee’s actual workplace

responsibilities. Id. at 424. Only if Kocher was speaking in his capacity as a private

citizen, and not as an employee, will we inquire into the content of the speech to

ascertain whether it touched upon a matter of public concern.

       Applying the practical inquiry envisioned by Garcetti, we have no difficulty

concluding that Kocher’s speech was made pursuant to his official duties, and,

therefore, is not entitled to First Amendment protection. Kocher drafted the

Incident Report while he was on duty and at the suggestion of his supervisors. The

report was typed on the police department’s official incident report form, which
                                          9
identified Kocher’s badge number, and it was completed using a password-

protected program available only on police department computers. After finalizing

the report, Kocher placed it in a filing bin in the same manner as he did with all

other incident reports. These formalities lead us to conclude that Kocher’s speech

was made pursuant to his official duties and not in his capacity as a private citizen.

      Moreover, it is apparent that the task of completing incident reports falls

squarely within a Larksville Borough patrol officer’s professional responsibilities.

The Larksville Police Department Policies and Operating Procedures expressly

provide, inter alia, that patrol officers have a duty to “prepare[] neat thorough and

concise reports of all police activity.” Kocher acknowledged as much in his

deposition, noting that patrol officers have a duty to complete incident reports even

when no arrests are made. Consistent with department policy, Kocher’s Incident

Report provided a narrative description of the “police activities” that transpired

while he was on duty the evening of the bazaar. It is difficult to conceive of this as

anything other than employee speech.

      Kocher responds that Larksville “police officers do not have an official duty

to report being the victim of a public assault or official misconduct.” Kocher views

his duties too narrowly. As the Supreme Court explained, “the listing of a given

task in an employee’s written job description is neither necessary nor sufficient to

demonstrate that conducting the task is within the scope of the employee’s
                                          10
professional duties for First Amendment purposes.” Garcetti, 547 U.S. at 425

(emphasis added). Our review looks more broadly to determine which “duties an

employee actually is expected to perform.” Id. at 424–25. Here, completing

incident reports is one of the duties Larksville Borough patrol officers are expected

to perform. That a particular report contains material not mandated by department

policy does not negate the fact that completing incident reports is an official

employee function.

       This principle applies with equal force to Kocher’s argument that he filed

the Incident Report only because he feared losing his job. As we explained,

Kocher’s professional duties as a patrol officer included completing incident

reports to document his police activity. Regardless of the motivating factor, that is

precisely what Kocher did here.1

       For the reasons stated, we agree with the District Court that Kocher spoke

pursuant to his official duties as a patrol officer. Accordingly, Kocher’s speech is



1
        Although he fails to clearly articulate it, Kocher seems to argue that he was retaliated
against for the oral report he gave to Chief Kopko before leaving the bazaar. Although that
speech was not as formally expressed as was the Incident Report, we conclude that it, too, is
employee speech and not citizen speech. It is to be expected that employees will report to, and
seek advice from, their supervisors when job-related problems arise. Kocher’s oral report to
Chief Kopko related solely to his status as an employee and has “no relevant analogue to speech
by citizens who are not government employees.” Garcetti, 547 U.S. at 424 (distinguishing non-
employment-related speech such as “writing a letter to a local newspaper” and “discussing
politics with a co-worker”). Accordingly, we likewise conclude that Kocher’s oral report to
Chief Kopko is not protected under the First Amendment.

                                              11
not entitled to First Amendment protection.2

                                          IV.

      Kocher also claims that Larksville Borough and the individual defendants

deprived him of a liberty interest in his reputation by making materially false and

stigmatizing public statements about him, thereby preventing him from obtaining

full-time employment. The District Court rejected Kocher’s claim, finding that

none of the individual defendants were responsible for publishing the allegedly

stigmatizing statements and that any dissemination by Larksville Borough was not

made by a policymaker or pursuant to official policy or custom, which would be

necessary for liability to attach under 42 U.S.C. § 1983.

      The Supreme Court has long recognized that an individual has a protectable

interest in his reputation. See Wisconsin v. Constantineau, 400 U.S. 433, 437

(1971). To make out a claim for deprivation of a liberty interest in reputation, “a

plaintiff must show a stigma to his reputation plus deprivation of some additional

right or interest.” Hill, 455 F.3d at 236 (emphasis removed) (citing Paul v. Davis,

424 U.S. 693, 701 (1976)). Under the “stigma-plus” test, “[t]he creation and

dissemination of a false and defamatory impression is the ‘stigma,’ and the

termination is the ‘plus.’ When such a deprivation occurs, the employee is entitled


2
      Because we conclude Kocher did not speak as a citizen, we will not address whether
Kocher’s speech touched upon a matter of public concern.
                                             12
to a name-clearing hearing.” Id.

       In order to satisfy the “stigma” prong, a plaintiff must show (1) that the

stigmatizing statement was made publicly, and (2) that the statement was

substantially and materially false. Hill, 455 F.3d at 236. Defendants contend that

Kocher cannot meet the first of these requirements, i.e., he cannot show any

defendant was responsible for publicly disseminating the allegedly stigmatizing

information. Kocher responds that the defendants, in particular Larksville Borough

and Chief Kopko, publicly disseminated the stigmatizing charges by placing the

Kopko Memorandum into Kocher’s personnel file and allowing it to be viewed by

a prospective employer.3

       We begin by evaluating Kocher’s claims against the individual defendants.

“[A] defendant in a civil rights action must have personal involvement in the

alleged wrongs to be liable.” Sutton v. Rasheed, 323 F.3d 236, 249 (3d Cir. 2003)

(citation omitted).

       First, with respect to Mayor Zawadski and Councilman Pekarovsky, Kocher

has failed to cite any evidence in the record to support his contention that either of

3
        Kocher additionally argued before the District Court that the stigmatizing comments were
made public when the Kopko Memorandum was provided to the Larksville Borough Council and
when it was transmitted to the Unemployment Compensation Bureau in response to Kocher’s
application for employment benefits. Because these arguments are not set forth in Kocher’s
appellate briefs, they are waived. See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.1993) (“It is
well settled that if an appellant fails to [set forth an issue and arguments in support thereof in his
opening brief], the appellant normally has abandoned and waived that issue on appeal and it need
not be addressed by the court of appeals.”).
                                                    13
these two men publicly disseminated any stigmatizing comments. There is simply

no evidence to show the direct or indirect involvement of either of them in the

drafting of the Kopko Memorandum. Nor does the evidence implicate either

Zawadski or Pekarovsky in placing the Kopko Memorandum in Kocher’s

personnel file or in disclosing the file to Detective Kotchik. Without evidence that

Mayor Zawadski or Councilman Pekarovsky personally published the reasons for

Kocher’s termination, summary judgment was proper as to both.

      Kocher has likewise failed to produce evidence that the allegedly

stigmatizing information was made public by Chief Kopko. Although it is

undisputed that Chief Kopko authored the Kopko Memorandum, for purposes of a

“stigma-plus” claim, drafting a document does not automatically render someone

liable for its subsequent publication. Chief Kopko was not the custodian of

Kocher’s personnel file. And there is no evidence before us that he personally

placed the Kopko Memorandum in the file or that he played a part in making the

file available for inspection. To the contrary, the evidence presented shows that the

contents of Kocher’s personnel file were made available by the Borough’s

Secretary, an individual not named as a defendant in this action.

      At all events, Kocher’s claim would be unavailing even if he could show

that Chief Kopko actually placed the Kopko Memorandum in his personnel file. As

this Court’s previous cases demonstrate, simply depositing material into an
                                         14
employee’s personnel file does not meet the stigma prong’s “made publicly”

requirement. See, e.g., Cooley v. Pa. Hous. Fin. Agency, 830 F.2d 469, 473–75 (3d

Cir. 1987), abrogated on other grounds by Foster v. Chesapeake Ins. Co., 933 F.2d

1207 (3d Cir. 1991); Copeland v. Phila. Police Dep’t, 840 F.2d 1139, 1148 (3d

Cir. 1988). Rather, under Cooley and Copeland, it is the dissemination of the

contents of an employee’s personnel file that must be shown for a claim to be

successful. See Cooley, 830 F.2d at 474; Copeland, 840 F.2d at 1148. As already

noted, the evidence is clear that Chief Kopko was not present when Detective

Kotchik reviewed the contents of Kocher’s file, and there is nothing in the record

to suggest he directed others to disseminate the allegedly stigmatizing document.

Because Kocher has not identified any culpable action by Chief Kopko, summary

judgment was appropriate.4

       Finally, we consider Kocher’s claim against Larksville Borough. The

analysis for a municipal liability claim differs from the analysis for individual

liability. We therefore review Kocher’s municipal liability claims independently of

the § 1983 claims against the individual defendants. Kneipp v. Tedder, 95 F.3d


4
       Although he fails to express it clearly, Kocher appears to also argue that Chief Kopko
made the information public during an interview with Detective Kotchik which took place after
Kotchik reviewed the personnel file. But while Detective Kotchik acknowledged that he spoke to
Chief Kopko after reviewing Kocher’s personnel file, the record is silent as to the content of that
conversation. Without more, knowledge that a conversation took place is insufficient to create a
genuine issue of material fact as to whether Chief Kopko disseminated materially false and
stigmatizing information.
                                               15
1199, 1213 (3d Cir. 1996).

      A municipality may not be held liable under § 1983 for an injury inflicted

solely by its employees or agents. Monell v. Dep’t of Soc. Servs. of City of New

York, 436 U.S. 658, 694 (1978). “Instead, it is when execution of a government’s

policy or custom, whether made by its lawmakers or by those whose edicts or acts

may fairly be said to represent official policy, inflicts the injury that the

government as an entity is responsible under § 1983.” Id. A policy is a decision of

a municipality’s “duly constituted legislative body” or of “officials whose acts may

fairly be said to be those of the municipality.” Bd. of the Cnty. Comm’rs of Bryan

Cnty. v. Brown, 520 U.S. 397, 403–04 (1997). A custom is a practice that, although

“not . . . formally approved by an appropriate decisionmaker . . . is so widespread

as to have the force of law.” Id. at 404.

      Even assuming Larksville Borough was responsible for disseminating the

contents of the personnel file, Kocher cannot establish municipal liability because

there is no evidence that the decision to allow Detective Kotchik to inspect the file

was made pursuant to a policy, custom, or practice of the Borough. The only policy

Kocher has identified is a statement which provides that “[e]very [disciplinary]

action . . . shall . . . be entered into [an] officer’s personal file.” This policy,

however, relates only to placement of information in a personnel file; it says

nothing about the Borough’s policy regarding granting access to those files by
                                            16
outsiders. Likewise, despite the opportunity to conduct discovery, Kocher has not

presented evidence showing a widespread custom or practice by the Borough of

freely allowing prospective employers access to the Borough’s employee files. To

the contrary, the fact that the Secretary initially denied Detective Kotchik access to

Kocher’s file, and then only allowed inspection after Kotchik showed her the

Release signed by Kocher, suggests this was an atypical event.5

       The evidence presented in this case suggests that the decision to disseminate

Kocher’s personnel file was an isolated, discretionary decision made by the

Borough’s Secretary. The Secretary—who was not named as a party to this

lawsuit—is not a Borough policymaker. Nor does Kocher point to evidence that

her decision to allow Detective Kotchik to review the file was made at the

direction of, or ratified by, an individual “whose edicts or acts may fairly be said to

represent official policy.” Monell, 436 U.S. at 694. Even if the Secretary is

somehow liable for her decision (and there is no evidence before us that she is),

that liability cannot pass to Larksville Borough on a theory of respondeat superior.

Id.

       To establish his claim, Kocher must prove the Borough was responsible for

the wrongful action, either because the action was made pursuant to an official
5
         Kocher argues in his reply that the Release is unenforceable. However, the validity of the
Release is irrelevant to our municipal liability analysis. And moreover, because Kocher did not
raise this argument until his reply brief, it has been waived. See Kost, 1 F.3d at 182. In any event,
it is hard to conceive how the Release would be unenforceable on the facts before us.
                                                   17
policy, custom, or practice of the Borough, or because it was undertaken or ratified

by a final policymaker. Kocher has proven neither. Therefore, the District Court’s

decision to grant summary judgment in favor of Larksville Borough was

appropriate.

                                        V.

      For the foregoing reasons, we will affirm the judgment of the District Court.




                                        18
