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No Qualified Immunity for School District's Firing of Whistleblower

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By Mark Wilson, Esq. on November 24, 2014 2:47 PM

Qualified immunity? For a claim of employment retaliation for whistle-blowing? Believe it or not, that's the defense Philadelphia School District mounted after a federal district court denied its motion for summary judgment in this employment retaliation case.

Francis Dougherty, a former employee, was fired after she told the news media that the school district's superintendent, Dr. Arlene Ackerman, directed a contract to a minority-owned firm without a bidding procedure. The Third Circuit said "no" to the district's claim that it was protected by qualified immunity.

Blow That Whistle

Dougherty was the deputy chief business officer and acting chief of operations for the school district, in which position she handled the process of soliciting bids for capital projects. One such project was installing security cameras in "persistently dangerous" schools. After Dougherty submitted a proposal, Ackerman decided to award the contract to a minority-owned business, and without a bidding process. Ackerman thereafter shut Dougherty out of the procurement process for this project.

The Philadelphia Inquirer then published a series of articles critical of the contracting process. Ackerman launched an investigation, which determined Dougherty had leaked this information to the press, leading to his being fired. Dougherty claimed the firing was retaliation for exercising a constitutional right.

Qualified Immunity Was Hardly Ever Less Deserved

Qualified immunity is a two-step analysis: First, was there a violation of a constitutional right? Second, was that right "clearly established" at the time of the alleged violation? On appeal, the only question is whether Dougherty's speech was entitled to First Amendment protection. Public employees' speech isn't protected if the speech is made pursuant to that employee's official duties. The school district wanted to twist this test ever so slightly in its favor, arguing that Dougherty's speech "owes its existence to" his public responsibilities.

Nice try, but "this nearly all-inclusive standard would eviscerate citizen speech by public employees simply because they learned the information in the course of their employment," said the Third Circuit. So no, the fact that Dougherty learned about the subject matter during his job doesn't make his speech unprotected.

The court also concluded that the speech was in the public interest. Exposing alleged misconduct "is the archetype of speech deserving the highest rung of First Amendment protection," the court said. The opposing consideration -- workplace efficiency and disruption -- ranked a distant second, as the evidence showed little to no evidence that Dougherty's speech disrupted the school's operation.

The school's last, desperate grasp at qualified immunity required believing that this was really a super-duper close call. Not so much: The court found this contention "unpersuasive" given the lack of evidence for the district's claim of disruption.

The right here couldn't be more clearly established. "Appellants had fair notice that their retaliation against Dougherty's constitutionally protected speech would not be shielded by qualified immunity."

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