Peter Turner v. City & County of San Francisco

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETER TURNER, No. 13-15099
Plaintiff-Appellant,
D.C. No.
v. 3:11-cv-01427-
EMC
CITY AND COUNTY OF SAN
FRANCISCO; SAN FRANCISCO
DEPARTMENT OF PUBLIC WORKS; ED OPINION
REISKIN; BRUCE STORRS,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Argued and Submitted
January 15, 2015—San Francisco, California
Filed June 11, 2015
Before: J. Clifford Wallace, Milan D. Smith, Jr.
and Michelle T. Friedland, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
2 TURNER V. CITY & CTY. OF SAN FRANCISCO
SUMMARY*
Civil Rights
The panel affirmed the district court’s dismissal of an
action against the City and County of San Francisco by a
former employee who alleged that he was wrongfully
discharged in retaliation for engaging in protected speech.
Plaintiff alleged that statements he made to his
supervisors regarding the alleged unlawful hiring and use of
temporary exempt employees in contravention of the San
Francisco Charter were related to a matter of “public
concern,” and were therefore protected by the First
Amendment.
The panel determined that plaintiff’s complaints, while
potentially significant in their implication, arose primarily out
of concerns for his own professional advancement, and his
dissatisfaction with his status as a temporary employee. The
panel noted that plaintiff voiced his grievances internally, at
union meetings, to his supervisor, and to Human Resources,
and they were specifically related to the conditions of his
employment. The panel concluded that plaintiff did not
engage in protected speech under the First Amendment when
he complained to his supervisors about the City’s hiring and
use of temporary exempt employees.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
TURNER V. CITY & CTY. OF SAN FRANCISCO 3
COUNSEL
G. Whitney Leigh (argued), Gonzalez & Leigh LLP, San
Francisco, California, for Plaintiff-Appellant.
Jonathan Rolnick (argued), Dennis J. Herrera, and Elizabeth
Salveson, City Attorney’s Office, San Francisco, California,
for Defendants-Appellees.
OPINION
M. SMITH, Circuit Judge:
Peter Turner, a former “temporary exempt employee” of
the City and County of San Francisco (the City), appeals the
dismissal with prejudice of his claims against the City for
wrongful discharge. Turner contends that the district court
improperly dismissed his claim under 42 U.S.C. § 1983 that
the City retaliated against him for engaging in protected
speech, in violation of the First Amendment. Specifically, he
contends that the statements he made to his supervisors
regarding the alleged unlawful hiring and use of temporary
exempt employees in contravention of the San Francisco
Charter (Charter) were related to a matter of “public
concern,” and were therefore protected by the First
Amendment.
After permitting Turner to amend his complaint five
times, the district court properly concluded that he had failed
to state a claim under the First Amendment. Turner’s
communications were focused on, and driven by, a private
grievance about his specific employment situation; he was not
speaking as a citizen on a matter of public concern.
4 TURNER V. CITY & CTY. OF SAN FRANCISCO
All other claims raised on appeal by Turner are addressed
in a memorandum disposition filed concurrently with this
opinion. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We recount the facts as alleged in Turner’s Fifth
Amended Complaint, accepting them as true for purposes of
the City’s motion to dismiss. In 2007, the San Francisco
Department of Public Works (DPW) announced an opening
for a permanent “survey assistant” position. After completing
examinations required for a permanent position, Turner was
informed that he had been hired as a survey assistant. Turner
was not informed until the day he started work that he had
been hired as a “temporary exempt employee,” rather than as
a permanent civil service employee, despite the fact that he
had interviewed and been tested for a permanent position.
Turner alleges that he would not have left his other
employment had he known DPW was hiring him as a
temporary employee. Five other individuals were also hired
as temporary exempt employees at about the same time.
Turner claims that DPW manager, Bruce Storrs (Storrs)
engaged in a scheme to subvert Section 10.104 of the Charter,
which authorizes the hiring of temporary employees only for
special projects or professional services with limited funding.
Turner alleges that, in violation of the Charter, he worked on
many core department tasks, and was given extra
responsibility that was incongruent with his compensation.
Turner also alleges that Storrs and Robert Hanley (Hanley),
the DPW Chief Surveyor, attempted to force Turner to
approve maps and surveys he had not supervised. Storrs
refused to promote Turner to a permanent position, and
instead hired individuals who were less qualified than Turner.
TURNER V. CITY & CTY. OF SAN FRANCISCO 5
Turner alleges that this hiring scheme was part of a
broader plan by the City and Storrs—via DPW—to underbid
survey work for other City and County agencies in order to
“corner the market” on this work, and to make up the money
by overcharging the public for mapping fees, while
underpaying staff. Storrs acknowledged that the way he
operated his portion of DPW “made the department money.”
Turner alleges that it was illegal to use mapping fund fees to
offset the cost of low survey bids.
At staff meetings, union meetings, and face-to-face
meetings with Storrs and DPW officials, Turner began
“speaking out against the practice” of using temporary
exempt employees “in violation of civil service rules.” He
also repeatedly asserted that he and other temporary exempt
employees were regularly assigned to work on matters
inappropriate to someone in “temporary exempt” status, and
that Storrs and DPW were well aware of Turner’s concerns.
Turner was subsequently assigned to perform “map
checking,” a task Storrs acknowledged he used to punish
individuals who “did not follow instructions.”
Storrs and DPW blocked Turner’s attempts at promotion,
and “intervened to overturn a permanent surveying job offer
that had been extended to Turner for work at the City’s
airport.” Turner wrote to the human resources agent handling
the position and told her that he planned to expose these
policies, and to report them to whatever authority would hold
Storrs and DPW responsible. Shortly thereafter, Turner was
summoned to a meeting with a human resources
representative, Storrs, and Storrs’s supervisor, during which
he was “asked hostile and intimidating questions by Storrs.”
Turner restated his concerns about the unlawful practices, and
immediately after the meeting, Storrs informed Turner that he
6 TURNER V. CITY & CTY. OF SAN FRANCISCO
would be fired. The next day, DPW Director Ed Reiskin sent
Turner a letter confirming his termination.
After being fired, Turner continued to inquire about new
permanent survey assistant position openings at DPW, but his
applications were rejected. Turner contends that “Storrs (with
the knowledge and ratification of DPW) had simply hand-
picked the employees he wanted to hire without regard to
objective standards or civil service rules.” Turner further
alleges that he “has effectively been blacklisted from
obtaining future work” because Storrs and others “have
deliberately put forth a false and negative reputation for
[him].”
In December 2010, Turner filed his initial complaint
against the City in state court, alleging numerous state causes
of action. Turner subsequently amended his complaint to cure
deficiencies in his numerous claims, and the City removed the
case to federal court. The district court gave Turner multiple
opportunities to plead one or more causes of action, and
Turner eventually filed a Second, Third, Fourth, and Fifth
Amended Complaint. Turner’s Fifth Amended Complaint
purported to allege seven causes of action (including the ones
he raises on appeal). With the exception of one of Turner’s
claims, which the district court remanded to state court, the
district court dismissed Turner’s claims with prejudice,
pursuant to Federal Rule of Civil Procedure 12(b)(6). Among
other conclusions, the district court held that Turner failed to
state a claim for retaliation under the First Amendment
because he had not alleged facts demonstrating that he had
engaged in protected speech.
Turner timely filed this appeal.
TURNER V. CITY & CTY. OF SAN FRANCISCO 7
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291. We review
de novo the district court’s order dismissing Turner’s claims
pursuant to Rule 12(b)(6). Stearns v. Ticketmaster Corp.,
655 F.3d 1013, 1018 (9th Cir. 2011).
DISCUSSION
Turner contends that the district court improperly
dismissed his claim against the City for retaliatory
termination based on protected speech. We disagree.
To survive a Rule 12(b)(6) motion to dismiss, a “plaintiff
must allege enough facts to state a claim to relief that is
plausible on its face.” Lazy Y Ranch Ltd. v. Behrens, 546 F.3d
580, 588 (9th Cir. 2008) (internal quotation marks omitted);
Fed. R. Civ. P. 12(b)(6). In assessing whether a party has
stated a claim upon which relief can be granted, a court must
take all allegations of material fact as true and construe them
in the light most favorable to the nonmoving party; but
“conclusory allegations of law and unwarranted inferences
are insufficient to avoid a Rule 12(b)(6) dismissal.” Cousins
v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009) (internal
quotation marks omitted). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). This standard “asks for more than a sheer
possibility that a defendant has acted unlawfully,” but it “is
not akin to a probability requirement.” Id. (internal quotation
marks omitted).
8 TURNER V. CITY & CTY. OF SAN FRANCISCO
“In order to state a claim against a government employer
for violation of the First Amendment, an employee must
show (1) that he or she engaged in protected speech; (2) that
the employer took ‘adverse employment action’; and (3) that
his or her speech was a ‘substantial or motivating’ factor for
the adverse employment action.” Coszalter v. City of Salem,
320 F.3d 968, 973 (9th Cir. 2003). A public employee’s
speech is protected under the First Amendment if the
employee spoke “as a citizen upon matters of public
concern.” Connick v. Meyers, 461 U.S. 138, 147 (1983); see
also Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).
“Whether an employee’s speech addresses a matter of public
concern must be determined by the content, form, and context
of a given statement, as revealed by the whole record.”
Connick, 461 U.S. at 147–48. “If employee expression relates
to an issue of political, social, or other concern to the
community, it may fairly be said to be of public concern.”
Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist.,
149 F.3d 971, 978 (9th Cir. 1998) (internal quotation marks
omitted). However, “[a]n employee’s motivation [is] relevant
to the public-concern inquiry.” Desrochers v. City of San
Bernardino, 572 F.3d 703, 715 (9th Cir. 2009) (second
alteration in original) (citing Gilbrook v. City of Westminster,
177 F.3d 839, 866 (9th Cir. 1999)). We have framed that
inquiry with two questions: “[W]hy did the employee speak
(as best as we can tell)? Does the speech ‘seek to bring to
light actual or potential wrongdoing or breach of public trust,’
or is it animated instead by ‘dissatisfaction’ with one’s
employment situation?” Desrochers, 572 F.3d at 715 (quoting
Connick, 461 U.S. at 148).
Turner contends that the content of his complaints at staff
meetings, union meetings, and face-to-face meetings with
DPW officials falls squarely within the bounds of “public
TURNER V. CITY & CTY. OF SAN FRANCISCO 9
concern,” and that the “form and context” of his speech
support such a finding. See Connick, 461 U.S. at 147–48.
Turner spoke to City officials “about what he perceived to be
the unlawful hiring and use of temporary exempt employees
in direct contravention of the City Charter.”
We agree with the district court that, although Turner’s
complaint “ostensibly could invoke a matter of public
concern, as it discusses civil service rules prescribed by local
law, . . . Plaintiff’s voiced complaint was focused on and
driven by his internal grievance.” In other words, Turner’s
complaints—while potentially significant in their
implications—arose primarily out of concerns for his own
professional advancement, and his dissatisfaction with his
status as a temporary employee. Turner does not allege that
he spoke out about excessive mapping fees or negligent
survey work, but rather, only about the unlawful hiring and
use of temporary employees, which he “later came to believe
. . . was part of a greater illegal scheme to misappropriate . . .
fund[s].”
We conclude that the form and context of Turner’s speech
weighs strongly against finding that First Amendment
protection is warranted. When assessing these two factors, we
look to the public or private nature of the speech, and to the
speaker’s motive. Weeks v. Bayer, 246 F.3d 1231, 1235 (9th
Cir. 2001). In Lambert v. Richard, 59 F.3d 134, 136–37 (9th
Cir. 1995), we held that a librarian’s statement to the city
council at a televised city council meeting “that the library
was ‘barely’ functioning and that employees who dealt
regularly with the public were performing ‘devoid of zest,
with leaden hearts and wooden hands’” constituted protected
speech under Connick. We emphasized that Lambert “spoke
as a union representative, not as an individual, and that she
10 TURNER V. CITY & CTY. OF SAN FRANCISCO
described departmental problems, not private grievances.” Id.
at 137. In addition, “[t]he fact that Lambert spoke at a
televised city council meeting underline[d] the public nature
of the . . . controversy.” Id. In Desrochers, we held that to be
protected, “speech must involve issues about which
information is needed or appropriate to enable the members
of society to make informed decisions about the operation of
their government,” but “speech that deals with individual
personnel disputes and grievances and that would be of no
relevance to the public’s evaluation of the performance of
governmental agencies is generally not of public concern.”
572 F.3d at 710 (internal quotation marks and citations
omitted).
Unlike the plaintiff in Lambert, who spoke at a televised
city council meeting, Turner voiced his grievances
internally—at union meetings, to his supervisor, and to
Human Resources—and they were specifically related to the
conditions of his employment. Turner could have pursued a
complaint with the San Francisco Civil Service Commission,
gone to the Board of Supervisors for the City and County of
San Francisco, gone to the press, or otherwise attempted to air
his concerns in a public forum. He did not do so. In addition,
Turner’s complaints clearly arose out of an ongoing personnel
dispute with Storrs and DPW about his alleged
misclassification as a temporary exempt employee rather than
a permanent employee. Moreover, and also unlike the
plaintiff in Lambert, who spoke as a union representative,
there is no indication that Turner sought broad-based union
action or relief on behalf of other similarly situated
employees. Such “individual personnel disputes and
grievances” are “generally not of public concern.”
Desrochers, 572 F.3d at 710.
TURNER V. CITY & CTY. OF SAN FRANCISCO 11
Given that all three Connick factors weigh against Turner,
we conclude that Turner did not engage in protected speech
under the First Amendment when he complained to his
supervisors about the City’s hiring and use of temporary
exempt employees.
CONCLUSION
We affirm the decision of the district court dismissing
Turner’s claim pursuant to Rule 12(b)(6) for the reasons
stated in this opinion and in the concurrently filed
memorandum disposition. Each party shall bear its own costs
on appeal.
AFFIRMED.