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Media Alerts - Dougherty v. School District of Philadelphia - Third Circuit
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November 24, 2014
  Dougherty v. School District of Philadelphia - Third Circuit
Headline: Third Circuit Adopts Broadened View of First Amendment Rights for Government Whistleblowers

Area of Law: First Amendment; Qualified Immunity

Issues Presented:

Does a public employee whistleblower have First Amendment protections when his speech concerns information gained during the course of his employment?

Does a violation of First Amendment rights of a public employee by a public official destroy qualified immunity?

Brief Summary:

Dougherty, a public employee of the Philadelphia School District, was fired after reporting to the Philadelphia Inquirer that the District Superintendent had improperly given a contract for installing security cameras to a company in violation of District procedures. The Third Circuit affirmed the district court in denying the School District and its' officials qualified immunity for their retaliation against Dougherty. The Third Circuit held that Dougherty's speech was entitled to First Amendment protections because the speech was not made pursuant to his duties as a public employee.

The Third Circuit also held that Dougherty had spoken as a citizen with regard to his allegations of impropriety. The Third Circuit reasoned that recent Supreme Court cases had clearly reinforced protection for employees to speak out on matters about which they learn on the job. The Third Circuit, balancing between the disruptive effects of Dougherty's speech and the value of whistleblowing, found in favor of Dougherty and refused to extend qualified immunity on the grounds that First Amendment protections were a clearly established right that School District officials could not violate and be entitled to immunity as public officials.

Extended Summary:

Francis Dougherty, an employee of the Philadelphia School District, was suspended and fired after revealing to the Philadelphia Inquirer that he believed the School District Superintendent had improperly steered a contract for security cameras to a minority-owned business. Dougherty was not involved in the final process for approving the assignment of the contract. After he reported the issue to the Philadelphia Inquirer, School District officials sought to determine the source of the leak. Their activities included hiring counsel, suspending six people including Dougherty, and ultimately firing him. The School District and various named defendant school district officials were denied qualified immunity by the district court. The Third Circuit affirmed the denial of qualified immunity and held both that Dougherty's speech was protected by the First Amendment and that his rights to free speech were clearly established.
The Third Circuit focused on whether Dougherty's whistleblowing was protected speech. The Third Circuit held that Dougherty had not been speaking pursuant to his public duties when he revealed the alleged misconduct of the Superintendent. The Third Circuit distinguished cases where a public employee was obligated to report information up the chain of command or where the speech related to the public employee's job. The Third Circuit refused to apply a "owes its existence to" test and instead adopted a fact intensive practical inquiry. Dougherty, the Third Circuit concluded, had no obligations or responsibilities in fact or under the law and therefore was entitled to First Amendment protection. The Third Circuit further held that the U.S. Supreme Court's recent decision in Lane v. Franks reinforces the holding of previous case law that a public employee may speak as a citizen even when the speech involves the subject matter of his or her employment.
After balancing the interests of the employee and those of the State, the Third Circuit then held that the legitimate interest in protecting whistleblowing was greater than the State's professed interest in promoting an efficient and harmonious workplace. The Third Circuit specifically distinguished cases where an employee was a proxy or alter ego for another, finding that Dougherty was removed enough from the District Superintendent so as to not tip the balance against him. The Third Circuit rejected the argument that Dougherty's actions were disruptive enough to tip the balance against him because the disruptions were minimal until the School District hired counsel, suspended multiple administrators, and subsequently fired Dougherty. Disruption, the Third Circuit held, cannot simply be the result of attempts to suppress the speech at issue.
Lastly the Third Circuit found that First Amendment protections are a clearly established right for public employees and that therefore the School District and its' officials were not entitled to qualified immunity because they had fair notice that retaliation against Dougherty for his speech would not be protected.

Find the full opinion at:

Panel: Fisher, Jordan, Hardiman, Circuit Judges

Argument Date: September 9, 2014

Date of Issued Opinion: November 21, 2014

Docket Number: No. 13-3868

Decided: Affirmed

Case Alert Author: Philip Jones


Bacardi L. Jackson, Esq., Carl E. Jones, Jr., Esq., Joe H. Tucker, Jr., Esq., Corey M. Osborn, Esq., Christopher A. Lewis, Esq., Will J. Rosenzweig, Esq. (argued) for Appellants

Alice W. Ballard, Esq., Lisa A. Mathewson, Esq. (argued) for Appellees

Author of Opinion: Fisher, Circuit Judge

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 11/24/2014 10:35 AM     3rd Circuit  

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