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Francis X. Dougherty v. School District of Philadelphia et al

December 14, 2012


The opinion of the court was delivered by: Tucker, J.


December ___, 2012

Presently before the Court are Defendants' Motion to Dismiss Plaintiff's Complaint (Doc. 14); Plaintiff's Response in Opposition thereto (Doc. 17); Defendants' Reply (Doc. 23); and Plaintiff's Sur-Reply (Doc. 25). Upon consideration of the parties' motions with briefs and exhibits, and for the reasons set forth below, Defendants' motion will be granted in part and denied in part


Because the Court writes primarily for the parties, the Court will discuss only those facts necessary to its decision. Plaintiff Francis X. Dougherty ("Dougherty") brings the instant civil action against the Defendants for his allegedly wrongful termination. Dougherty served as Deputy Chief Business Officer for School District of Philadelphia ("School District") and directly participated in the execution and administration of School District contracts. (Compl. ¶¶3, 85-90, 115-117.) Defendants are the School District; Arlene C. Ackerman, Leroy D. Nunery, II, and Estelle G. Matthews (collectively, "School District Defendants"); the School Reform Commission ("SRC"); and Robert L. Archie, Jr., Denise McGregor Armbrister, Johnny Irizarry, and Joseph A. Dworetzky (collectively, "SRC Defendants").

Dougherty claims he was terminated by the Defendants, without justification, because he spoke out on issues of public concern and reported instances of wrongdoing and waste to the Federal Bureau of Investigation, Pennsylvania state legislators, the Office of the Inspector General for the United States Department of Education, and the Philadelphia Inquirer . (Compl. ¶¶ 134-145.) Specifically, Dougherty alleges that he reported the award of public contracts on the basis of favoritism, personal connections, and race. The award of contracts on these bases allegedly resulted in the inequitable and improper allocation of School District resources, to the detriment of the School District and the taxpayers who fund its operations.

Two contracts in particular are at issue here. Dougherty first alleges that in December 2009, then-Superintendent of Philadelphia Public Schools Arlene Ackerman ("Defendant Ackerman") directed him to "find some work" for IBS Communications, Inc. ("IBS"), a minority-owned enterprise, on a school camera project at South Philadelphia High School. (Compl. ¶ 58.) Dougherty alleges that at the time Defendant Ackerman ordered him to do this, the work at South Philadelphia High School was near completion. Dougherty and his staff nonetheless found work for IBS as a subcontractor on the project. Dougherty alleges the School District paid IBS $12,000 for drawings that would have cost the School District only $1,000 if completed by the company that the School District had already contracted with to do the work. (Comp; ¶ 63.)

Next, on September 2, 2012, Defendant Ackerman directed Dougherty to take charge of a security camera installation project for schools that were on the precipice of being designated as "persistently dangerous" by the Pennsylvania Department of Education (Compl. ¶ 72.) By September 17, 2010, Dougherty and his team completed a plan to submit for the School Reform Commission's approval. Under the plan, the School District would hire Security and Data Technologies, Inc. ("SDT"), a state-approved firm that had previously received School District contracts, as the prime contractor on the $7.5 million project. (Compl. ¶ 84-90.) The plan provided that the rate of participation by minority-owned firms would be 33 percent and the rate of subcontractor participation by women-owned firms would be 34 percent. (Compl. ¶ 93.)

Dougherty alleges that, instead of recommending his plan to the School Reform Commission, Defendant Ackerman rejected the plan in its entirety, allegedly for its lack of minority participation. Defendant Ackerman allegedly directed Dougherty to make IBS the prime contractor. (Compl. ¶ 99.) Dougherty alleges that IBS, unlike SDT, was not a state-approved vendor and had never competitively bid for a School District contract. (Compl. ¶ 60-61.) Dougherty further alleges that Defendant Ackerman gave the School District contracts to IBS because it was a minority-owned business with which she had a connection. (Compl. ¶ 64-66, 103-112.) Ultimately, IBS, with the approval of the SRC, became the prime contractor on the project. (Compl. ¶ 132.)

It is at this point that Dougherty made his reports to the aforementioned authorities and the Philadelphia Inquirer . As a result of these reports, the School District hired the Pepper Hamilton law firm to conduct an independent investigation into any alleged improprieties. (Compl. ¶ 168.) On or about March 4, 2011, Pepper Hamilton issued a report of its investigation, along with findings and recommendations, to the School District. (Compl. ¶ 177.) Dougherty alleges, based on information and belief, that the Pepper Hamilton report identified him as the person who had given information to the Philadelphia Inquirer regarding the two contracts granted to IBS. (Compl. ¶ 179.) Subsequently, on March 30, 2011, Defendant Matthews sent Dougherty a letter notifying him that the School District would recommend the termination of his employment to the School Reform Commission. (Comp. ¶ 184.) On April 27, 2011, the SRC voted to terminate Dougherty's employment as of March 31, 2011 (Compl. ¶ 186.)

Dougherty's Complaint asserts twelve counts against the Defendants: alleged causes of action for First Amendment retaliation (Counts I through VI) and for violation of the Pennsylvania Whistleblower Law (Counts VII through XII). Dougherty's causes of action against the School District Defendants are for recommending his termination to the School Reform Commission. Dougherty's causes of action against the School Reform Commission Defendants are for voting or otherwise acting to terminate him.


On a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), the court is required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and to view them in the light most favorable to the non-moving party. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). A complaint should be dismissed only if the alleged facts, taken as true, fail to state a claim. See In re Warfarin Sodium Antitrust Litig., 214 F.3d 395, 397-98 (3d Cir. 2000). The question is whether the claimant can prove any set of facts consistent with his or her allegations that will entitle him or her to relief, not whether that person will ultimately prevail. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000).

While a court will accept well-pleaded allegations as true for the purposes of the motion, it will not accept bald assertions, unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). The United States Supreme Court has recognized that "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original). In Twombly, the Court made clear that it would not require a "heightened fact pleading of specifics," but only "enough facts to state a claim to relief that is plausible on its face." Id. at 570. A "pleader is ...

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