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w . v i l l a no v a . e du/thir dc ir c uit_2012/1258NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 11

- 2130

___________ SHAUN BROWN, Appellant

v. MONTGOMERY COUNTY; SEAN PETTY, Individually And In His Official

Capac ity As Supervisory For Emergency Services Of Montgomery County; JAMES R. MATTHEWS; JOSEPH HOEFFEL; BRUCE L. CASTOR, JR., In

Their Official Capacities Only As Commissioners Of Montgomery County ,

___________ On Appeal from the United States District Court F or the Eastern District of Pennsylvania (D.C. No. 08

- CV

- 0 4259 ) District Judge: Hon. Juan R. Sanchez

Submitted Under Third Circuit 34.1(a), January 12 , 2012
Before: MCKEE, Chief Judge and FUENTES and JORDAN , Circuit Judge s
. (Opinion Fi led: March 21, 2012 )

__________________ OPINION OF THE COURT

_____________________
FUENTES, Circuit Judge

. Shaun Brown appeals from the District Court’s decisions dismis sing his First Amendment retaliation and Pennsylvania Whistleblower Law claims and granting2 summary judgment in favor of his former employer, M ontgomery County , on his due
process claim. For the reasons expressed below, we will affirm. 1
I.
As we write p rimarily for the parties, we discuss only those facts necessary to our
decision.
Shaun Brown worked as a platoon supervisor at the Montgomery County Emergency Operations Center (“the Center”) from 2003 to 2008. His responsibilities included supervising the Center and ensuring that dispatchers responded appropriately to
911 calls. On December 23, 2007, Brown and several dispatchers participated in a holiday gift ex change while on duty

. Brown was the only supervisor present at the time. Among other thin gs, t he employees exchanged cases o f beer , bottles of liquor , and sex toys . One of the dispatchers took photographs of the event, which depicted dispatchers, including Brown, posing with alcohol and s ex toys at their work stations. Brown posted
four of t he se pictures on his MySpace page. On March 6, 2008, the Salary Board of the Board of Commissi oners voted to
terminate Brown. After Brown’s termination, newspaper articles appeared that detailed
the events surro unding his firing. Though the articles di d not mention Brown by name , the Commissioner s we re quoted as stating that the behavior that took place at the gift

1 The District Court ha d jurisdiction over this action pursuant to 28 U.S.C. § § 1331 and 1367 . We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.3 exchange w as “unbelievably stupid” and “moronic.” 2

On September 4, 2008, Brown filed suit, claim ing t hat the County fired him not as

a consequence of the gift exchange, but in retaliation for reports he made to county employees, a n independent contractor , regulatory authorities, and the media about alleged
deficiencies in the Center’s C omputer

- Aided Dispatch system

. He argued that his
termination violated the First Amendment, the Due Process Clause of the Fourteenth Amendment, a nd Pennsylvania ’s Whistleblower Law. Brown says that he requested a

name
- clearing hearing after his termination, but no such hearing was provided as the County believed that he was not entitled to one.

3
The County filed a Motion to Dismiss, which the District Court granted with respect to Brown’s First Amendment and Whistleblower Law claims but denied with respect to his due process claim. After discovery was complet ed, the County filed a Motion for Summary Judgment on the due process claim, which the District Court granted.
II. The First Amendment and Whistleblower Law Claims Were Properly Dismissed
We exercise plenary review of a grant of a motion to dismi ss , ac cepting all allegations in the c omplaint as true and drawing all reasonable inferences in the light

2 A March 21, 2008 article in the Morning Call newspaper did identify Brown by name, but by this time he had already made himself available to the news media. The County did not identify him for the press.

3 Brown also asserted claim s for invasion of privacy and d efamation , but he has abandoned these claims and they are not a part of this appeal.4 most favorable to the plaintiff. United States v. Occidental Chem. Corp. , 200 F.3d 143 (3d Cir. 1999).
A.
T he threshold inquiry when analyzing a re taliation claim is whether the speech in question is protected by the First Amendment

. Watters v. Philadelphia , 55 F.3d 886 , 892 (3d Cir. 1995). T he Supreme Court has held that , “ w hen public employees make statements pursuant to their official duties , th e employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti v. Ceballos , 547 U.S. 410 , 421 (2006). We have
added that statements relate to an emplo yee’s official duties when t hey derive from

“ special knowledge ” or “experience ” acquired on the job. Foraker v. Chaffinch , 501 F.3d 231 (3d Cir. 2007 ) , abrogated in part by Duryea v. Guarnieri , 131 S. Ct. 2488 (2011) ; s ee also Reilly v. Atl. City , 532 F.3 d 216, 226 (3d Cir. 2008 ) (“[T]he First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities.” (internal quotation marks and citation omitted)). In his capacity as platoon sup ervisor , Brown gained intimate knowledge of and experience with the Computer

- Aided Dispatch system

. Thus, Brown’s reports were
made pursuant to his official duties , and his statements do not receive First Amendment protection

.5 B . The Penns ylvania Whistleblower Law mandates that a person alleging a violation
of its provisions must bring an action “within 180 days after the occurrence of the alleged
violation. ” 43 P.S. § 1424(a). This 180

- day time limit is “ mandatory and must be strictly
ap plied. ” Jackson v. Lehigh Valley Physicians Group, 2009 WL 229756 at *5 (E.D. Pa.
Jan

. 30 , 2009) ; see also O'Rourke v. Pennsylvania Department of Corrections, 730 A.2d 1039, 1042 (Pa. Commw. Ct. 1999) (“ [T]his 180

- day time limit is mandatory, and courts
have no discretion to extend it. ” ).
Brown claims that it was err or to allow Montgomery County to assert the statute
of limitations in a motion to dismiss because “the statute of limitations is an affirmative
defense” that is not properly resolved under Federal Rule of Civil Procedure 12(b). Appellant’s Br. 18. Rule 12(b) sta tes that “[e]very defense . . . must be asserted in the responsive pleading if one is required, ” Fed. R. Civ. P. 12(b) , though the Rule goes on to
enumerate certain defenses that may be made by motion

. Because t he statute of limitations defense is not among those that Rule 12(b) allows to be brought by motion , a defendant wishing to invoke its protection must normally raise it in the answer.
However , under the law of this Circuit (the so
- called “Third

- Circuit Rule ” ), such a
defense may be asserted by motion to di smiss if “the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of
limitations.” Hanna v. U.S. Veterans' Admin. Hosp., 514 F.2d 1092, 1094 (3d Cir.1975) ; see also N'Jai v. Floyd , No. 07

- 1506 , 2009 WL 4823839 at *5 (W.D. Pa. Dec. 9, 2009) ( “ I f the limitations bar is apparent on the face of the complaint, then it may be the basis6 for dismissal of the complaint under Rule 12(b)(6)

. ” ) , aff'd, 386 F. App'x 141 (3d Cir. 2010)

. In this case, Brown ’s amended complaint facially demonstrates noncompliance
with the 180

- day statutory limitation s period of the Pennsylvani a Whistleblower Act.
The c omplaint lists March 7, 2008, as Brown’s date of termination, and the District Court
docket shows that Brown filed his complaint on September 4, 2008, exactly 181 days
later. Thus, the District Court properly dismiss ed Brown’s Whistleblower Law claim
under Rule 12(b)(6) as untimely.
III. The District Court Properly Granted Summary Judgment to Montgomery Count y on Brown’s Due Process Claim
We exercise plenary review over the District Court’s grant of summary judgment. Summary judgment may be granted if, drawing all inferences in favor of the nonmoving party, “ the pleadings, depositions, answers to interrogato ries, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a jud gment as a matter of law.” Orsatti v. New Jersey State Police , 71 F.3d 480, 482 (3d Cir. 1995) (quoting Fed.R.Civ.P. 56(c) ). Brown alleges that Montgomery County deprived him of his liberty interest in his reputation by making fals e and defamatory public statements about him without providing a name

- clearing hearing. Specifically, Brown claims that he was stigmatized by quotes from County employees that appeared in a March 7 th Philadelphia Inquirer
article (wherein Commissioner Mat thews referred to the employees’ conduct as7 “malfeasance”) 4

In order to state a claim for a § 1983 due process liberty interest violation in the public employment context, a plaintiff must satisfy the “ stigma plus ” test

. See Hill v. Borough of Kutztown , 455 F.3d 225, 236 (3d Cir. 2006). Under the “stigma plus” test, the “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 to

a name
- clearing hearing.” Id. To satisfy the “stigma” prong of the test, the employee must show: 1) publication of 2) a substantially and materially false statement that 3) infringed upon the “re putation, honor, or integrity” of the employee. Ersek v. Springfield , 102 F.3d 79, 83

- 84 (3d Cir. 1996). and a March 21 st article in The Morning Call (wherein Assistant County Solicitor Maureen Coggins was reported to have said that “employees violated county code by having alcohol on county property [and] . . . violated the county’s code of ethics by engaging in inappropriate behavior”)

.

Brown failed to satisfy the stigma prong of the test . Even if Commissioner
Matthews’ comments had been directed at him , such statements we re not su fficiently stigmatizing to implicate a liberty interest. Mercer v . Cedar Rapids , 308 F.3d 840, 845

– 46 (8th Cir.2002) (“[N]o liberty interest of constitutional significance is implicated when

‘ the employer has alleged merely improper or inadequate performance, incompetence, neglect of duty or malfeasan ce. ’ ” (citation omitted) ). Assistant County Solicitor

4 Reading Commissioner Ma tthews’ actual comments at the March 6 th Board of Commissioners meetin g in context reveals that the reference to “malfeasance” was not directed at Brown. Rather, the statement referred to the possibility that additional disciplinary action might be taken against other employees if they were found to have committed an act of malfeasance during the gift exchange.8 Coggins’s statements likewise described the employees’ conduct at the gift exchange as having been improper and did little, if anything, to add to the stigma that Brown brought upon himself with his be havior. As the District Court noted, “[d]escribing [Brown’s]
conduct as malfeasance due to its capacity to damage public confidence in the County’s emergency response system adds little to the reputational injury Brown suffered as a
result of the disclosu re of the conduct itself.” Brown , 2011 U.S. Dist. LEXIS 35811 at
*12. Thus, the District Court properly granted summary judgment to Montgomery County on Brown’s due process claim.
I V. For the reasons stated above, we will affirm.