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Dougherty v. School District of Philadelphia

United States District Court, Third Circuit

October 4, 2013

FRANCIS X. DOUGHERTY
v.
THE SCHOOL DISTRICT OF PHILADELPHIA, et al.

MEMORANDUM

Juan R. Sanchez, J.

Plaintiff Francis Dougherty sues the School District of Philadelphia (the District) and three current or former District Officials-Leroy Nunery, Estelle Matthews, and Arlene Ackerman[1] alleging violations of his First Amendment rights and the Pennsylvania Whistleblower Law. Dougherty’s employment with the District was terminated after he spoke to the press and law enforcement regarding misconduct related to the award of a District contract for the installation of security cameras. Dougherty alleges his termination was in retaliation for his First Amendment protected speech and also violated the Pennsylvania Whistleblower Law.

Nunery, Matthews, and the District filed a joint motion for summary judgment, arguing (1) Dougherty could not show Nunery or Matthews took any adverse action against him in retaliation for his protected speech; (2) the District could not be held liable because Dougherty could not show his termination was the result an official policy or custom; (3) Dougherty could not show his protected speech caused his termination; and (4) Nunery and Matthews are entitled to qualified immunity. Antognoli also filed a motion for summary judgment, arguing Ackerman is entitled to qualified immunity as to Dougherty’s First Amendment claim and Dougherty cannot show a causal connection between Dougherty’s alleged whistleblowing and Ackerman’s actions. This Court denied both motions for summary judgment by Order of September 18, 2013. The individual Defendants having taken an interlocutory appeal from the September 18, Order, insofar as it denied their motion for summary judgment based on qualified immunity, the Court now supplements the Order on the issue of qualified immunity. FACTS[2]

The School District of Philadelphia previously employed Dougherty as Deputy Chief Business Officer for Operations and Acting Chief of Operations for the Office of the Deputy Superintendent. In this position, Dougherty was responsible for the District’s operational departments, including Capital Programs, Transportation, Food Services, Facilities, Information Technology, and Grade and Space Planning. Dougherty reported to Leroy Nunery, the Deputy Superintendent.

The District’s Office of Capital Programs was responsible for all capital works within the District, including developing projects, designing the work to be performed, soliciting bids for projects, and selecting the awardee. As of 2010, the District permitted prime contractors to bid on large capital projects only if they had been pre-qualified under the Office of Capital Programs’s process. When exigent circumstances made it impossible to solicit competitive bids, and the District did not already have an open contract with a vendor for the type of work to be performed, the Office of Capital Programs would select a contractor from among vendors with which the Commonwealth had previously contracted to perform similar work, so long as the prior contract was obtained through a competitive bidding process. The Superintendent did not have substantive authority with regard to the design, bid award, or supervision of capital construction projects.

All of the District’s contracts required approval from the School Reform Commission (SRC) pursuant to the following process: When a proposed contract originated from the Office of Capital Programs, the office prepared a resolution defining the scope of the work and value of the proposed contract. The Superintendent then reviewed and approved the resolution before it was presented to the SRC for consideration. If the SRC approved the resolution, the parties would then finalize and execute the contract.

On September 2, 2010, Ackerman, who was then the District’s Superintendent, called a school safety plan meeting to discuss the impending release of the Department of Education’s (DOE) School Safety Annual Report. At the meeting, which Nunery, Matthews, [3] and Dougherty attended, Ackerman instructed the Office of Capital Programs to develop a plan to replace older security cameras with new cameras at 19 schools the DOE had designated as “persistently dangerous” within 30 to 60 days. The next day Dougherty called a meeting of individuals from the relevant departments to discuss implementation of the camera project. Due to the short time frame for completion of the project, Dougherty and his team decided to forego the standard competitive bidding process and instead work with a contractor that already had an existing state contract secured via a competitive bidding process. Following this meeting, Amy McCole, the District Senior Information Technology Manager, contacted Security Data Technologies (SDT) to request an expedited proposal for the camera project. SDT was chosen from a list of approved vendors because it had a positive track record with the District, knowledge of District technology and camera systems, and an existing state contract involving camera systems.

SDT conducted preliminary work on the proposal, drawing up blueprints, roughing out plans, identifying and contacting potential subcontractors, and making budget estimates. Based on this work, Dougherty and his team estimated the project would cost up to $7.5 million and prepared a proposal for the SRC, including an SRC resolution and a Surveillance Cameras Implementation Plan (the Plan). The Plan stated the rate of subcontractor participation by minority-owned firms would be 33% and the rate of subcontractor participation by women-owned firms would be 34%. Dougherty kept Nunery informed of his team’s progress and emailed the completed Plan to him for approval on September 17, 2010, in order to present it at the SRC’s September 22, 2010, meeting. Dougherty’s email stressed the importance of obtaining advance approval from the SRC rather than seeking ratification after SDT started work. Dougherty received no response to his email from Nunery, Ackerman, or either of their staffs, and the Plan was not presented at the September 22 meeting.

Rather, on September 23, 2010, Ackerman convened a meeting, during which she rejected the implementation plan for lack of minority participation and directed that IBS Communications, Inc. (IBS), a minority-owned firm, be made the prime contractor on the security camera project. The September 23 meeting was attended by Dougherty, Jeff Cardwell (the Senior Vice President of Facilities), Nunery, John L. Byars (the District’s Procurement Director), a Special Assistant to Ackerman, and an intern. Nunery supported Ackerman’s directive that IBS be made the prime contractor on the camera project. As of the September 23 meeting, there had been no review or consideration of IBS’s qualifications to handle the security camera project as the prime contractor or whether IBS could accomplish the project on budget and on schedule. At this meeting, Ackerman also transferred management responsibility for the camera project from Dougherty and his team to Byars, even though Byars’s department did not usually handle this type of project.

Dougherty alleges Ackerman awarded the contract to IBS because it was a minority-owned business to which she had a personal connection, in violation of a numerous laws, policies, and procedures. Ackerman had previously directed Dougherty to find work for IBS. In 2009 she called Dougherty and ordered him to find work for IBS on a camera project at South Philadelphia High School. When Ackerman first directed Dougherty to find work for IBS, the only work available was a minor project drawing schematics. Even though this project had already been subcontracted and Dougherty and his staff were unfamiliar with IBS, Dougherty reassigned the job to IBS in accordance with Ackerman’s orders. The District ultimately paid IBS $12, 000 to complete the schematics, which would have cost the District only $1, 000 if the work had been completed by the company already retained.

Prior to 2009, IBS had done no work for the District. It had no experience with the District’s specifications for surveillance cameras, or with the District’s buildings and work protocols. IBS did not have an existing contract with a state agency awarded pursuant to a competitive bidding process, nor did it have an existing contract with the District to perform emergency work of the type needed at South Philadelphia High School. Finally, IBS was not prequalified by the District to bid on capital projects. Following the 2009 project, IBS still lacked a state contract awarded pursuant to a competitive bidding process, nor had it been prequalified by the District to bid on capital projects. Thus, IBS remained ineligible for no-bid contracts.

Both Ackerman and Matthews had personal relationships with IBS personnel. Ackerman knew the owner of IBS, Darryl Boozer, and socialized with him outside of work. Matthews had known Yusaf Ali, a principal with IBS, since high school. Following IBS’s completion of work for the 2009 camera project at South Philadelphia High School, Boozer counseled Ackerman regarding the need for quality control for any future camera projects.

IBS sent its plan for the camera project to the District on October 12, 2010. The plan did not state any participation rates for minority-or women-owned businesses. Ackerman presented IBS’s plan to the SRC for review at its October 13 meeting and asked the SRC to ratify the plan at its upcoming voting meeting on October 20, which it did. Byars and District counsel worked with IBS to draft a contract, which was executed on November 17, 2010, but backdated the start date for the work to September 22, 2010.

In November 2010, Boozer called Ackerman to complain that IBS was not receiving the necessary support from the District staff. Ackerman asked Nunery to help with this problem. Nunery called a meeting of camera project personnel, including IBS staff, but excluding Dougherty. A member of Dougherty’s staff later informed him that Nunery was very critical of the District staff and blamed Dougherty for obstructing IBS’s work. Dougherty sent Nunery an email requesting a meeting to discuss these issues, stating he was “very, very upset, ” and that to imply he has been an obstacle was “insulting to [his] professionalism, [his] commitment to the team, and [his] desire to get things done here.” Defs.’ Mot. for Summ. J., Ex I.[4]

On November 10, 2010, Dougherty submitted a report to the FBI Tips and Public Leads website concerning the misuse of taxpayer dollars and other wrongdoing in connection with the IBS contract award. The FBI began an investigation as a result of this report. Also on November 10, Dougherty met with reporters from The Philadelphia Inquirer to discuss Ackerman’s conduct and the events surrounding the award of the camera project to IBS.

On November 15, 2010, SDT contacted McCole and informed her the company had given an interview to the Inquirer. McCole told Melanie Harris (the District’s Chief Information Officer) and Robert Westall (Deputy Chief Information Officer) about the upcoming article, and the three of them advised Dougherty about it. Dougherty, Harris, and Westall brought the article to Ackerman and Nunery’s attention, causing Ackerman to become very upset. Ackerman stated “she was sick of all the School District business going to majority vendors and things were going to change.” Pl.’s Opp’n to Mot. for Summ J., App. at 13-14, 65. Ackerman also yelled at Dougherty, telling him that “when SDT was chosen as the vendor Dougherty had the ‘wrong people in the room’ because there was ‘only one black man and he was probably too scared to tell you the right thing to do.’” Id.

On November 28, 2010, the Inquirer published the first in a series of articles and editorials on the security cameras project, headlined “Ackerman Steered Work, Sources Say.” Id. at 174. This article stated the District appeared to have violated state guidelines and District policies and procedures by directing the award of the contract for the camera project to IBS.

On November 29, 2010, Dougherty was called into a meeting with Ackerman and Nunery. At the meeting, Ackerman demanded to know why Dougherty had told his staff about IBS, vowed to get to the bottom of who was leaking information, and stated she could fire him over this information getting to the press. Ackerman also demanded Dougherty decide whether he was going to remain with the District or resign, stating he was either “on the team and keeping things confidential” or that he should “resign and get out.” Id. at 1. Ackerman and Nunery gave Dougherty one hour to respond, ...


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