The opinion of the court was delivered by: Juan R. Sanchez, J.
Plaintiff Shaun Brown brings a 42 U.S.C. § 1983 claim against his
former employer, Defendant Montgomery County, for violation of his
Fourteenth Amendment right to procedural due process.*fn1
Brown alleges the County deprived him of his liberty interest
in his reputation by making false and defamatory public statements
about him in connection with his termination without providing a
name-clearing hearing. Both parties have filed motions for summary
judgment. For the reasons set forth below, the County's motion is
granted and Brown's motion is denied. FACTS*fn2
From 2003 until his termination in 2008, Brown worked for the Montgomery County Emergency Operations Center (the 911 Center) as a platoon supervisor, supervising the Center and ensuring dispatchers appropriately responded to 911 calls. On December 22, 2007, Brown and the dispatchers working the 7:00 p.m. to 7:00 a.m. shift participated in a gift exchange/holiday party at the 911 Center. Brown was the only supervisor on duty at the time. One of the dispatchers took photographs of the gift exchange, and on December 25, 2007, Brown posted four of those photographs on his MySpace page.*fn3 The posted photographs depict (1) a dispatcher with a Michelob Ultra box on her lap, (2) two dispatchers at a work station, with one holding a bottle of Captain Morgan rum, (3) two dispatchers at another work station, with one holding a bottle of alcohol, and (4) Brown and another dispatcher, with Brown wearing a ball gag in his mouth and holding an anal plug.*fn4 Brown incorporated some of the photographs from the gift exchange into a PowerPoint presentation he prepared for a Christmas party his platoon held at a local restaurant on December 28, 2007, including the photograph of a dispatcher with a Michelob Ultra box and possibly others.
On December 31, 2007, two 911 Center supervisors called Brown at home and told him Deputy Director of Public Safety Sean Petty had seen the photographs on Brown's MySpace page and was extremely angry about them. The supervisors told Brown he had two hours to take the photographs off-line and directed him to call any other dispatchers who had photographs online and tell them to remove them. Brown immediately deleted the photographs from his MySpace account and never re-posted them after December 31, 2007.
In March 2008, Montgomery County Director of Public Safety Thomas Sullivan learned of the existence of the photographs from Petty in the course of investigating a grievance Brown had filed against Petty. The photographs were thereafter brought to the attention of County Commissioner James Matthews, who ordered an investigation. On March 5, 2008, the County's Chief Operating Officer/Chief Clerk, Robert Graf, instructed Sullivan to "investigate the situation with the pictures and the holiday party," directing him to interview the participants that same evening. Defs.' Mot. Ex. H, Sullivan Dep. 36.
As part of the investigation, John DiNolfi, the 911 Center's Assistant Director of Operations, told Brown to report to work on March 5 at 5:00 p.m., rather than 7:00 p.m., for a platoon meeting. When Brown arrived at work, Sullivan took him into a conference room where several other higher-level employees were assembled. Members of the group attempted to question Brown, but he declined to cooperate without his attorney present. Sullivan then directed Brown to relinquish his ID card and work pager and told him he was being suspended with possible intent to dismiss.
On March 6, 2008, a public Board of Commissioners Meeting was held, at which the investigation into the gift exchange was discussed and the Salary Board of the Board of Commissioners voted to terminate Brown. Following the meeting, articles appeared in various newspapers regarding the investigation and Brown's firing, several of which included quotes from County Commissioners about the matter. Specifically, articles published in The Mercury, The Times Herald, and The Philadelphia Inquirer on March 7, 2008, quoted the Commissioners as referring to the behavior of those involved in the gift exchange as "unbelievably stupid" and "moronic," and characterizing the photographs as damaging to the "public confidence." Pl.'s Ex. 1a. The Philadelphia Inquirer article also reported the photographs had come to light "weeks after a disabled woman burned to death after her Jan. 29 Bucks County 911 call was bungled." Id. After noting the capacity of the photographs "to damage public confidence in Montgomery County's emergency-response system was not lost on Matthews," the article quoted Commissioner Matthews as stating, "[t]hat in itself is a malfeasance." Id.
Although none of the March 7 articles mentioned Brown by name, a March 21, 2008, article in The Morning Call identified Brown as the platoon supervisor who had been fired. The March 21 article reported on a Board of Commissioners meeting on March 20, 2008, and stated Assistant County Solicitor Maureen Coggins's probe of the gift exchange and photographs "revealed that no one consumed alcohol that evening but that employees violated county code by having alcohol on county property. They also violated the county's code of ethics by engaging in inappropriate behavior." Id.
Although Brown requested a name-clearing hearing, he has never been provided one.
Summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Material" facts are those facts "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). The same rules apply when there are cross-motions for summary judgment. Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir. 2008).
When a public employer "'creates and disseminates a false and defamatory impression about [an] employee in connection with his termination,' it deprives the employee of a protected liberty interest." Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006) (quoting Codd v. Velger, 429 U.S. 624, 628 (1977)). A § 1983 due process claim alleging a deprivation of a liberty interest in reputation is known as a "stigma-plus" claim, in which "[t]he creation and dissemination of a false and defamatory impression is the 'stigma,' and the termination is the 'plus.'" Id.
To satisfy the "stigma" prong of the test, there must be (1) publication of (2) a substantially and materially false statement that (3) infringes upon the "reputation, honor, or integrity" of the employee. Ersek v. Twp. of Springfield, 102 F.3d 79, 83-84 (3d Cir. 1996). Because the principal remedy for a stigma-plus claim is a name-clearing hearing, "there must be some factual dispute between an employer and a discharged employee which has some significant bearing on the employee's reputation." Codd, 429 U.S. at 627 (emphasis added).
Brown's claim for deprivation of his liberty interest in his reputation is based solely on statements which appeared in the March 7 Philadelphia Inquirer article and the March 21 article in The Daily Call. Specifically, Brown contends he was stigmatized by (1) a quote from Commissioner Matthews in the March 21 Daily Call article, in which Matthews referred to the capacity of the gift exchange photographs to damage public confidence in the County's emergency response system as "a malfeasance," and (2) statements in the March 7 Philadelphia Inquirer article that a probe by Assistant County Solicitor Maureen Coggins revealed "that ...