Judge grants in part, denies in part Phila. School Dist. motion to dismiss whistleblower suit by fired administrator

By Jon Campisi | Dec 19, 2012

A former top level administrator with the School District of Philadelphia - suing the

educational institution over claims that he was fired in retaliation for raising issues of favoritism in the awarding of public contracts - has had portions of his complaint dismissed by a federal judge.

The defendant had sought dismissal for failure to state a claim, arguing that Francis X. Dougherty, the plaintiff, who was formerly the district’s deputy chief business officer, had not established the first element of a prima facie case.

Specifically, the school district contended that Dougherty’s reports of wrongdoing are not entitled to First Amendment protection because they “took place entirely within the scope of his official duties.”

The school district claimed that Dougherty was speaking as a public employee when he reported alleged racial discrimination in the awarding of school district contracts to the FBI, Pennsylvania state legislators, the Office of the Inspector General for the U.S. Department of Education and the Philadelphia Inquirer.

The crux of Dougherty’s lawsuit surrounds allegations that the plaintiff was fired from his job for reporting that the contracts had been awarded due to personal connections, favoritism and race.

The awarding of the contracts on these bases allegedly resulted in the inequitable and improper allocation of school district resources to the “detriment” of the district and city taxpayers, Dougherty stated in his lawsuit.

The school district, in essence, countered that Dougherty’s speech was not entitled to First Amendment protection because he was acting pursuant to his official duties as deputy chief business officer at the time he spoke out.

In her memorandum opinion issued this week, U.S. District Judge Petrese B. Tucker, of the Eastern District of Pennsylvania, wrote that the U.S. Supreme Court has determined that public employees do not completely surrender their First Amendment rights because of their employment.

“Rather, public employees have a qualified right under the First Amendment to speak as citizens addressing matters of public concern,” the judge wrote.

In the present case, Tucker ruled that Dougherty’s factual allegations have established a “plausible” claim that he was speaking as a citizen, and not pursuant to his official duties, when he made the reports to the FBI and others.

Tucker wrote that the school district is attempting to make the argument that it was Dougherty’s job to make reports of racial discrimination, but, as Dougherty contends, “the deficiency of this argument is that the Defendants have confused the question of where Dougherty learned this information (i.e., on the job) with the question of whether Dougherty was speaking pursuant to his official duties or as a citizen.”

“The mere fact that Dougherty learned about the alleged discriminatory conduct that gave rise to the reports while he was working as a school district employee does not automatically necessitate the conclusion that Dougherty was speaking pursuant to his official duties,” the ruling states. “On the contrary, in the great majority of cases, it is likely that only an employee (that is, someone “on the inside”) would be in a position to acquire information that is of public concern.”

The district had also argued in its motion to dismiss that Dougherty had not satisfied the public concern test because the plaintiff’s reports were “not made out of any legitimate concern for the public.”

The defendants said they believed Dougherty was actually on a “personal crusade” to vilify the district in response to a perceived personal insult.

The judge, however, dismissed this defense argument, writing that Dougherty’s First Amendment claim does not fail the public concern test.

One of Dougherty’s whistleblower reports concerned a district contract awarded to IBS, a firm that was not a state-approved vendor and never competitively bid for a school district contract, but was nonetheless granted “lucrative” contracts because it was minority-owned and had personal ties to then-Superintendent Arlene Ackerman.

Tucker wrote that allegations of wrongdoing such as the IBS situation “clearly implicate matters of public concern: the waste and inefficient use of taxpayer dollars in the Philadelphia School District based on racial discrimination.”

Tucker then turned her attention to the second part of the defendant’s motion to dismiss: is the school district immune from suit because of an exemption in state law.

The district argued that because Dougherty’s claims under Pennsylvania’s Whistleblower Law do not fall within the enumerated exceptions to the Pennsylvania Political Subdivision Tort Claims Act, his claims against the School District of Philadelphia and the School Reform Commission, which is also a defendant in the litigation, must be dismissed.

Dougherty had argued that the PSTCA specifically exempts claims arising out of the “willful misconduct” of a defendant agency, and that in his case, the defendants intentionally retaliated against him in violation of the law.

The judge, however, ended up agreeing with the defendants, writing that the school district’s assessment of the exemption situation was a correct reading of the law.

Therefore, Tucker dismissed Dougherty’s claims under the Whistleblower Act against the district and the School Reform Commission.

Lastly, the defendants had argued in their dismissal motion that Dougherty’s complaint fails to identify any specific conduct on the part of the School Reform Commission or its past commissioners sufficient to establish liability for either First Amendment retaliation or for violation of the Whistleblower Act.

In his suit, Dougherty had alleged that the school district recommended his termination to the commissioners because he told the press and the authorities about the IBS contract award.

“However, Dougherty provides no facts in support of this theory,” Tucker wrote. “This is mere speculation, and is therefore legally insufficient.”

Accordingly, Tucker dismissed three claims dealing with this issue in the complaint.

In the end, Tucker dismissed five counts contained within the complaint but allowed seven more to proceed.

Tucker’s order was docketed on Dec. 14.

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