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Francis X. Dougherty, a former employee of the School District of Philadelphia, was terminated after publicly disclosing that the school district’s superintendent had steered a prime contract to a minority-owned business. Dougherty filed a lawsuit against the school district for violating his rights under the Pennsylvania Whistleblower Law and the First Amendment. The school district’s request for summary judgment on the ground of qualified immunity in regards to his First Amendment retaliation claim was rejected after it was determined that Dougherty’s constitutional rights had been violated.
Dougherty had previously served as the Deputy Chief Business Officer for Operations and as the Acting Chief of Operations for the Office of the Deputy Superintendent within the School District of Philadelphia. Dougherty was responsible for the School District’s operational departments, including the Office of Capital Programs (OCP). Subject to the approval of the School Reform Commission (SRC), the OCP developed projects and solicited bids for all capital works within the School District. Dougherty reported to Deputy Superintendent, Dr. Leroy Nunery, who reported to the Superintendent Dr. Arlene Ackerman.
On September 2, 2010, Ackerman directed OCP to install new security cameras across nineteen of the school district’s consistently dangerous schools. Dougherty was instructed to lead the procurement process in thirty to sixty days. Due to the short time frame, OCP was required (pursuant to school district policy) to select a pre-qualified contractor since it could not utilize its usual competitive bidding process. Dougherty and his team identified Security and Data Technologies, Inc. (SDT) as a potential contractor. Dougherty submitted a completed resolution to Ackerman for review after his team prepared a proposal and came up with an implementation plan with SDT for the camera project. Dougherty did not receive a response from Ackerman or Nunery, and the resolution was not presented to SRC at its next meeting.
Instead, on September 23, 2010, Ackerman held a meeting with Nunery, Dougherty, and several other operations employees. Ackerman allegedly rejected the SDT proposal for lack of minority participation and directed that IBS Communications, Inc. (IBS) be awarded the prime contract since it is a minority owned firm. IBS was ineligible for no-bid contracts because it was not a pre-qualified contractor. Ackerman transferred management responsibility for the camera project to the school district’s procurement director, whose department did not ordinarily handle this type of project. She later submitted IBS’s implementation plan to the SRC for review at its October 13th meeting, and the SRC ratified the plan at its voting meeting on October 20.
Dougherty met with reporters from The Philadelphia Inquirer (Inquirer) on November 10, 2010, about Ackerman’s alleged wrongdoing in connection with the IBS contract. On November 28, 2010, the Inquirer published the first of several articles that accused Ackerman of steering the contract to IBS in violation of state guidelines and school district policies and procedures. Dougherty also submitted a report to the FBI Tips and Public Leads website, contacted several state representatives, and submitted a hotline report to the Office of Inspector General for the U.S. Department of Education. On November 29, 2010, Dougherty was called into a meeting with Ackerman and Nunery, and Ackerman told Dougherty she would fire him over this information getting to the press. On December 13, 2010, Ackerman placed Dougherty and five others on administrative leave pending the investigation. Dougherty told Estelle Matthews (the school district’s senior-most human resources executive) that he was the leak and that he had already gone to federal law enforcement agencies when she suspended him.
Ackerman hired Michael Schwartz of Pepper Hamilton LLP to conduct the investigation several days later. In March 2011, Pepper Hamilton issued its report, where it concluded that there was no evidence of unlawful motive in the award of the IBS contract and found that Dougherty had violated the Code of Ethics for the school district by emailing information about the SDT proposal to an unknown email address prior to the September 23rd meeting. After the investigation, Dougherty was notified that the school district was recommending that he be terminated due to his violation of the code of ethics and because he refused to cooperate in the investigation, which prevented the school district from reaching any other conclusion. On April 27, 2011, the SRC terminated Dougherty.
Dougherty filed a complaint against the School District of Philadelphia, Nunery, Ackerman, the SRC, four individual SRC members (the claims against the SRC and the SRC members were later dismissed), and Matthews. Dougherty claimed that he was terminated in retaliation and that his rights under the First Amendment in accordance with 42 U.S.C. § 1983 and under the Pennsylvania Whistleblower Law, had been violated. In August 2013, the school district, Ackerman, and Matthews filed a joint motion for summary judgment and asserted the defense of qualified immunity as to Dougherty’s First Amendment retaliation claim. Anthony Antognoli filed a motion for summary judgment on behalf of the estate of Ackerman and asserted the same defense.
The district court held that the summary judgment record was sufficient to show a violation of a constitutional right and denied both motions. Nunery, Matthews, and Antognoli appealed to the United States Court of Appeals for the Third Circuit, challenging the denial of summary judgment on qualified immunity grounds.
In an opinion by Circuit Judge Jordan Fisher, the United States Court of Appeals for the Third Circuit affirmed the district court’s decision denying the school district qualified immunity from Dougherty’s First Amendment retaliation claim. The Court stated that in order for Dougherty to defeat the claim of qualified immunity he must show: (1) the school district’s conduct violated a constitutional right and (2) that right was “clearly established” at the time of the challenged conduct. Since the claim asserted by Dougherty was a First Amendment retaliation claim, the Court looked to a three-part test requiring t a public employee to show (1) that his speech was protected by the First Amendment, (2) that the speech was a substantial or motivating factor in the alleged retaliatory action, and, if both are proven, the burden shifts to the employer to prove (3) that the same action would have been taken even if the speech had not occurred.
The Court focused solely on part one of the test, since the second and third elements presented questions of fact and were not being contested in the appeal. It stated that the central question was whether the facts as determined by the district court established that Dougherty’s speech was entitled to First Amendment protection. It indicated that under Pickering v. Board of Education, “[s]o long as [public] employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.”
The Court employed a three-part analysis to determine if Dougherty’s speech was protected, beginning with the test established in Garcetti v. Ceballos and reiterated by the United States Supreme Court in Lane v. Franks. The second part requires that the speech involve a matter of public concern, and the Court found that the question was undisputed. The third part requires proof that the government lacks “adequate justification” for treating the employee differently than the general public based on its needs as an employer under the Pickering balancing test.
In regards to whether Dougherty spoke pursuant to his official duties, the Court explained that the Supreme Court had “declined to advance a framework for defining when an employee speaks pursuant to his official duties, explaining that ‘[t]he proper inquiry is a practical one.’” The Court stressed that whether an employee’s speech is made within the context of his job duties “is a mixed question of fact and law.” Applying the Garcetti test to the facts, the Court agreed with the district court that Dougherty did not speak “pursuant to his official duties” when he disclosed details of Ackerman’s alleged misconduct in awarding the prime contract to IBS. It concluded “nothing about Dougherty’s position compelled or called for him to provide or report this information” to any source either within the school district or outside of the district.
As a result, the Court found: “Dougherty’s report to The Philadelphia Inquirer, therefore, was made as a citizen for First Amendment purposes and should not be foreclosed from constitutional protection.” It rejected the school district’s attempt to replace Garcetti’s “pursuant to official duties test” with one that precludes First Amendment protection for speech that “owes its existence to a public employee’s professional responsibilities.” The Court pointed out that the Supreme Court had recently reiterated in Lane that “speech by public employees ‘holds special value precisely because those employees gain knowledge of matters of public concern through their employment.’” It concluded that “Lane reinforces Garcetti’s holding that a public employee may speak as a citizen even if his speech involves the subject matter of his employment.” The Court stated “[u]nder Lane, our determination stands that Dougherty’s report to The Philadelphia Inquirer was not made pursuant to his official job duties. Dougherty’s claim is not foreclosed merely because the subject matter of the speech concerns or relates to those duties.”
The Court agreed with the district court’s assessment that “any disruption to the school district was outweighed by the substantial public interest in exposing government misconduct, tipping the Pickering balancing test in Dougherty’s favor.” It found that any workplace disruption was not the result of Dougherty’s whistle blowing activities, but of the Philadelphia School District officials’ attempt to suppress his speech. The Court concluded that “ … while the parties do not dispute that there was some actual disruption to the School District, we also keep in mind that it would be absurd to hold that the First Amendment generally authorizes corrupt officials to punish subordinates who blow the whistle simply because the speech somewhat disrupted the office.”
In regards to the second part of the qualified immunity analysis, which requires courts to determine whether that right was clearly established, the Court held “that the illegality of the [defendants’] actions was sufficiently clear in the situation they confronted.” The Court continued to state “[g]iven the citizen-like nature of Dougherty’s disclosure to The Philadelphia Inquirer, the lack of close working relationships with either Dr. Ackerman or Dr. Nunery, and the disputed issue of fact with regard to the cause of the disruption, it is sufficiently clear that Dougherty’s speech was protected under the First Amendment.”
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