Dougherty v. School Dist. Of Philadelphia, No. 13-3836 (3d Cir. Nov. 21, 2014)
Abstract: A U.S. Court of Appeals for the Third Circuit three-judge panel has ruled that school district officials were not entitled to qualified immunity from a First Amendment retaliation suit brought by a former school district employee. Affirming the federal court’s decision, it held that the former employee had raised a valid claim in alleging that his free speech rights had been violated and that the asserted constitutional right was clearly established at the time the alleged violation had occurred.
The panel concluded that the former employee had not spoken “pursuant to official duties” when he reported the superintendent’s alleged misconduct to the newspaper. It rejected the defendants’ attempt to replace the Garcetti “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.” It also found that the balancing test laid out Pickering v. Board of Education, 391 U.S. 563 (1968), favored the employee’s interests over the employer’s. Finally, the panel determined that the right asserted by the former employee was clearly established.
Facts/Issues: Francis X. Dougherty was employed as the Deputy Chief Business Officer for Operations and the Acting Chief of Operations for the Office of the Deputy Superintendent within the School District of Philadelphia (PSD). He reported to the Deputy Superintendent who reported to the Superintendent. After PSD Superintendent Arlene Ackerman ordered the installation of cameras at all schools designated “persistently dangerous,” Dougherty was tasked with leading the procurement process, which was to be completed within 30 to 60 days. Because of the short time frame, the usual competitive bidding process could not be utilized.
As a result of the short timeline and pursuant to state guidelines and school district policy, Dougherty’s team was required to select a pre-qualified contractor, i.e., a contractor with an existing contract with the School District or another state agency that was obtained through a competitive bid. The team identified Security and Data Technologies, Inc. (“SDT”) as one such contractor. A proposal was then forwarded to Ackerman for approval.
Ackerman allegedly rejected the SDT proposal for lack of minority participation and directed that IBS Communications, Inc. (“IBS”), a minority owned firm, be awarded the prime contract instead. IBS was not a pre-qualified contractor and was therefore ineligible for no-bid contracts. However, Dr. Ackerman submitted IBS’s implementation plan to the School Reform Commission for review. The SRC ratified the plan at its voting meeting. Ackerman subsequently transferred responsibility for managing the camera project to PSD’s procurement director, whose department did not ordinarily handle this type of project.
In approximately November of 2010, IBS lodged a complaint. Dougherty was not included in a camera project personnel meeting called by Deputy Superintendent Dr. Leroy Nunery to discuss the complaint. Nunery criticized the staff and blamed Dougherty for obstructing IBS’s work. An upset Dougherty sent Nunery an email rejecting his allegations and requesting a meeting to discuss the issue. Following Nunney’s accusations, Dougherty met with reporters from The Philadelphia Inquirer concerning Ackerman’s alleged wrongdoing in connection with the IBS contract.
The Philadelphia Inquirer published an article headlined, “Ackerman Steered Work, Sources Say.” It was the first of several articles accusing 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.
The day after The Philadelphia Inquirer article was published, Dougherty was called to a meeting with Ackerman and Nunery. Dr. Ackerman vowed to get to the bottom of who leaked the information and stated she could fire Dougherty over this information getting to the press. Ackerman decided a full-blown investigation was needed, and placed Dougherty and five others on administrative leave pending the outcome of the investigation. At that point, Dougherty informed PSD’s human resources executive that he was the source of the leak and had gone to federal law enforcement agencies.
Several days later, Ackerman hired Michael Schwartz of Pepper Hamilton LLP to conduct the investigation. There is a significant factual dispute as to the nature of the investigation. Dougherty contends that Ackerman specifically instructed Schwartz to find the source of the leak. Schwartz maintains, however, that the scope of the investigation was limited to discovering “[a]ll of the facts surrounding the decision to award these contracts . . . [and] whether anyone at the School District had violated School District policies or Pennsylvania or federal [laws].” The relevant confidentiality provision of PSD’s Code of Ethics provides: “A School District employee shall not disclose confidential information concerning property, personnel matters, or affairs of the [School] District or its employees, without proper authorization . . . . Nothing in this provision shall be interpreted as prohibiting the practice of ‘whistle-blowing.’”
In March of 2011, Pepper Hamilton issued its report, which concluded that there was no evidence of unlawful motive in the award of the IBS contract. Pepper Hamilton did find, however, that Dougherty violated the Code of Ethics by emailing information about the SDT proposal to an unknown email address, which the district determined was a personal email address belonging to Dougherty. The investigation also revealed that Dougherty emailed large volumes of confidential information related to the camera project to his personal email address, which was not a violation of the Code of Ethics, per se.
The report also stated that Dougherty had breached the confidentiality section of the district’s code of ethics, by forwarding e-mails to his personal e-mail address and to the unknown e-mail address, and that his refusal to cooperate with the investigation after he had been suspended and retained a lawyer prevented PSD from reaching any other conclusion. Dougherty was terminated shortly after the report was issued. Dougherty filed suit in federal district court against PSD, Ackerman, Nunery, and other district officials. The suit alleged that he was terminated in retaliation for his disclosure of Dr. Ackerman’s alleged misconduct to The Philadelphia Inquirer and law enforcement agencies, in violation of the First Amendment under 42 U.S.C. § 1983 and Pennsylvania’s Whistleblower Law.
The school district officials filed a joint motion for summary judgment and asserted the defense of qualified immunity as to Dougherty’s First Amendment retaliation claim. The district court explained that Dougherty’s allegations were sufficient to establish a First Amendment retaliation claim. First, it found no evidence “suggesting [Dougherty’s speech] fell within the scope of his duties to recognize the alleged misconduct as such and report it,” and, therefore, concluded that Dougherty spoke as a citizen under Garcetti v. Ceballos, 547 U.S. 410 (2006). Second, it found no evidence “compel[ling] a conclusion that Dougherty and [defendants] had such close working relationships that his reports to the press would undermine their ability to work together,” tipping the balancing test established in Pickering v. Board of Education, 391 U.S. 563 (1968).
The court found that defendants’ motivation for firing Dougherty was a disputed issue of material fact, and concluded that Dougherty made a sufficient showing of improper motivation to put the issue before a jury. Turning to whether the right was clearly established, the district court found that a reasonable governmental official would have been on notice that retaliating against Dougherty’s speech was unlawful. Thus, it concluded that defendants were not entitled to qualified immunity.
Ruling/Rationale: The Third Circuit panel affirmed the lower court’s decision denying the school district defendants qualified immunity from Dougherty’s First Amendment retaliation claim. It stated that in order for Dougherty to defeat the claim of qualified immunity, pursuant to the U.S. Supreme Court’s holding in Saucier v. Katz, 533 U.S. 194, 201 (2001), he must show: (1) the defendants’ conduct “violated a constitutional right;” and (2) that right was “clearly established” at the time of the challenged conduct. Because the claim asserted by Dougherty was a First Amendment retaliation one, it looked to the three-part test that requires a public employee to show: “(1) his speech is protected by the First Amendment and (2) the speech was a substantial or motivating factor in the alleged retaliatory action, which, if both are proved, shifts the burden to the employer to prove that (3) the same action would have been taken even if the speech had not occurred.”
However, the panel focused solely on part one of the test, as 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, 391 U.S. 563 (1968), “[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 panel, therefore, employed a three-part analysis to determine if Dougherty’s speech was protected, beginning with the test established in Garcetti v. Ceballos, 547 U.S. 410 (2006), and reiterated by the Supreme Court in Lane v. Franks, 134 S. Ct. 2369 (2014). As to the second part, which requires that the speech involve a matter of public concern, it found that the question was undisputed. Finally, the third part requires proof that the government lacks an “adequate justification” for treating the employee differently than the general public based on its needs as an employer under the Pickering balancing test.
Addressing the Garcetti inquiry of whether Dougherty spoke pursuant to his official duties, the panel explained that the Supreme Court “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.’” It stressed that whether an employee’s speech is made within the context of job duties “is a mixed question of fact and law.” Applying Garcetti test to the facts, the panel agreed with the lower 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 that “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 panel 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 defendants 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.” It emphasized that “whether an employee’s speech “concern[s] the subject matter of [his] employment” is ‘nondispositive’ under Garcetti.” The panel pointed out that the Supreme Court 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 panel found that if anything “Lane may broaden Garcetti’s holding by including ‘ordinary’ as a modifier to the scope of an employee’s job duties.” However, it left the question unanswered as it was not before the court in the appeal. It stated: Under 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 panel next took up the Pickering balancing test under which Dougherty’s speech is protected only if the “test tilts in his favor.” It agreed with the lower 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.” Like the district court, it found that any workplace disruption was not the result of Dougherty’s whistle blowing activities, but of PSD officials’ attempt to suppress his speech. The panel 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.”
Turning to the second prong of the qualified immunity analysis, which requires courts to determine whether that right was “clearly established,” the panel concluded “that the illegality of the [defendants’] actions was sufficiently clear in the situation they confronted.” It stated: “Given the citizenlike 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.”
Dougherty v. School Dist. Of Philadelphia, No. 13-3836 (3d Cir. Nov. 21, 2014)
[Editor’s Note: In February 2013, Legal Clips summarized a decision by a A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit in McArdle v. Peoria Sch. Dist. 150 holding that school district officials in Illinois did not retaliate against a former middle school principal for exercising her First Amendment free speech rights by reporting her predecessor’s misuse of district funds. The panel concluded that the former principal had not spoken as a private citizen, but as a public employee, and, therefore, her speech was not constitutionally protected from discipline by her employer.]