1

, NOT PRECEDENTIAL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.
2

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 parttime patrol officer for Larksville Borough (the “Borough”). Kocher was terminated 
3

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 
4

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 
5

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 
6

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 
7

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 
8

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 
9

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 
10

identified Kocher’s badge number, and it was completed using a passwordprotected 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 
11

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 nonemployment-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.
12

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.
13

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.”).
14

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 
15

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.
16

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
17

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.
18

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.