Fired Phila. School Dist. administrator can assert free speech violations in termination suit, judge rules

By Jon Campisi | Oct 9, 2013

A former high-level administrator with the Philadelphia School District

who is suing over a termination he alleges was tied to his whistleblowing activities has won a partial victory in federal court.

U.S. District Judge Juan R. Sanchez, sitting in the Eastern District of Pennsylvania, ruled that Francis Dougherty can proceed with his claim that his employment with the district was terminated after he spoke to members of the press and law enforcement regarding misconduct relating to the awarding of a district contract for security camera installation.

Dougherty, who served as the district’s deputy chief business officer, first filed suit against the district and various current and former officials in February 2012 over allegations that he was retaliated against after raising issues of favoritism in the awarding of public contracts.

The district soon sought to have the case dismissed, arguing 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 Pennsylvania Record previously reported.

Late last year, U.S. District Judge Petrese Tucker partially agreed with the defendants in their petition to dismiss the case, with the jurist ultimately tossing five counts of the complaint, but allowing seven additional counts to proceed.

At the time, however, Tucker noted that the U.S. Supreme Court has held that public employees do not completely surrender their First Amendment rights because of their employment, but rather “public employees have a qualified right under the First Amendment to speak as citizens addressing matters of public concern,” Tucker had written back in December 2012.

Now, nearly a year later, Sanchez, Tucker’s fellow jurist, wrote in an Oct. 4 memorandum that the district and its codefendants are not entitled to qualified immunity against suit because they were on notice that Dougherty’s speech activity was protected and that they were not allowed to retaliate against Dougherty for exercising his right to speak.

In denying the defendants’ motion for summary judgment on the issue of qualified immunity, Sanchez wrote that the type of speech Dougherty engaged in is given “great protection by the courts, and the case law put Defendants on notice that a public employee cannot be retaliated against for exercising this right under the First Amendment.”

“Viewing the facts in the light most favorable to Dougherty, his speech to the press was an attempt to expose alleged malfeasance by a government official,” Sanchez wrote in his 31-page memorandum.

The defendants had argued that even if they were acting in retaliation against Dougherty, case law established that where an employee’s speech causes great disruption, termination is often justified.

The cases referenced by the defendants’ counsel, however, involved plaintiffs challenging their direct supervisors, making the likelihood of disruption greater, Sanchez wrote.

In this case, however, given the nature of Dougherty’s speech and what the judge calls the “significant public interest in such information,” and given the nature of the relationship between Dougherty and three of the defendants – former district Superintendent Arlene Ackerman, Ackerman’s second-in-command, Leroy Nunery, and district chief talent and development officer Estelle Matthews – the court determined that a reasonable official should have been on notice that Dougherty’s speech was protected.

Sanchez wrote that case law exists establishing both a public employee’s right to speak out on issues of public concern and to be free from retaliation for exercising that right.

“In particular, there is case law establishing ‘speech disclosing public officials’ malfeasance is protected,’” the judicial memorandum states.

Sanchez said the court determined that Dougherty has indeed established that a constitutional violation took place, writing that the fired employee made a “sufficient showing of improper motivation to put the issue before a jury.”

Earlier in the memorandum, Sanchez addressed the issue raised by school district lawyers involving the “disruption” allegedly caused by Dougherty speaking to the press and law enforcement investigators about the preferential awarding of lucrative contracts for the placement of the security cameras.

While district officials maintained that the disruption was caused by leaks to the media, Dougherty had countered that the disruption actually arose from former Superintendent Ackerman’s misconduct and her subsequent hunt to find the leaker rather than from the leaks themselves.

Ackerman died at 66 years of age soon after leaving the district in the summer of 2011.

Her departure after three years at the helm of Philly schools was controversial due to the $905,000 buyout she received due to her being asked to leave soon after her contract was renewed by the School Reform Commission.

Then, and now, the Philadelphia School District struggled with budgetary woes.

As for Dougherty’s complaint, Judge Tucker previously wrote that while the fired employee could proceed with some of the counts in his lawsuit, others would not be allowed to move forward.

Tucker, for instance, ended up dismissing Dougherty’s claims under Pennsylvania’s Whistleblower Act, with the judge agreeing with the defendants that Dougherty’s claims under the Act did not fall within the enumerated exceptions to the Pennsylvania Political Subdivision Tort Claims Act.

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