F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

P E T E R T U R

N E R , Plaintiff-Appellant
,

v

.

C I T Y A N D C O U N T Y O F S A

N F R A N C I S C O ; S A

N F R A N C I S C O D E P A R T M E N T O F P U B L I C W O R

K S ; E D R E I S K I N ; B R U C E S T O R

R S , Defendants-Appellees

. N o. 13-15099

D.C. No. 3:11-cv-01427- EMC

OPI NI ON

Appeal from the United States District Court for the Northern District of California Edward M. Chen, District J u dg e, Presiding

Arg ued and Submitted J anuary 15, 2015—San F rancisco, California

F iled J une 11, 2015

B efore: J . Clifford W allace, Milan D. Smith, J r. and Michelle T. F riedland, Circuit J udg es.

O pinion by

J udg e Milan D. Smith, J r.T U R N E R V

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SUMMARY *

Civil Rights

The panel affirmed the district court’s d i s missal of an action ag a i n s t the City and County of San F rancisco by a former employ ee who alleg ed t h a t he w as wrong f ully discharg ed in retaliation for eng ag ing in protected speech.

Plaintiff a lleg ed that s t a tements he made to his supervisors reg arding the alleg ed unlawful hiringand use of temporary e x e m p t employ ees in contravention of the San F rancisco Charter were r elated to a matter of “ public concern,” and were therefore protected by the F irst Amendment.

The p anel determined that p laintiff’s compla i n ts, while potentially sig nificant in their implication, arose primarily out of concerns for his own professional advanceme n t, and his dissatisfaction with his status as a temporary employ ee. The panel noted that plaintiff voiced his g rievances internally
, at union meeting s, to his supervisor, and to Human Resources, and they were specifically related t o t h e conditions of his employ ment. The panel c oncluded that p laintiff did not eng ag e in protected speech under the F irst Amendment when he complained to his supervisors about the City ’s hiring and use of temporary

ex empt employ e es.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.T U R N E R V

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COUNSEL

G. Whitney L eig h (arg

ued), Gonz alez & L eig h L L P, San F rancisco, California, for Plaintiff-Appellant.

J onathan Rolnick ( argued), Dennis J

. Herrera, and Eliz abeth Salveson, City

Attorney ’s Office, San F rancisco, California, for Defendants-Appellees.

OP INION

M. SMI TH, Circuit J udg e :
Peter Turner, a former “temporary ex empt employ ee” of the City and County

of San F rancisco (the City ), a ppeals the dismissal with prejudice of his claims ag ainst the City f o r wrong ful discharg e. Turner contends that the distric t court improperly dismissed his claim under 42 U.S.C. § 1983 that the City retaliated ag a inst him for eng ag ing i n protected speech, in violation of the F irst Amendment. Specifically
, he contends t h a t t he statements he made to his supervisors
reg arding the a lleg ed unlawful hiring and u s e of temporary

ex e mpt e mploy ees in contravention o f t he San F r ancisco Charter ( C h ar t er) were related to a matter of “ public concern,” and were therefore protected by the F irst Amendment.

After p ermitting Turner to amend his complaint five times, the district court properly concluded that he had failed
t o state a claim under the F irst Amendment. Tu rn e r’ s communications were focused o n , a nd driven by
, a private
g rievance a

bout his spec i fic employ

ment situation; h e w as not speaking as a citiz en on a matter of public concern.T U R N E R V

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All o ther c laims r aised on appeal by Turner are addressed in a memorandum disposition filed concurrent l y with this opinion. W e affirm.

F ACTUAL AND P ROCEDURAL BACK G ROUND

W e recount the f

acts as alleg ed in Turner’s Fi f t h Amended Complaint, a ccepting them as true for purposes o f the City ’ s m o tion to dismiss. I n 2 0 07, the San F r ancisco Department of Public W o rks ( D P W ) a nnounced an opening for a permanent “survey assistant” position. After completing

ex aminations required for a permanent position, Turner was informed that he had been hired as a survey a ssistant. T urner

was not informed until the day he started wo r k t h a t h e h ad been hired as a “temporary ex empt employ ee,” rather than a s

a p e rm a nent c ivil service employ e e, despite the fact that he had interviewed and been tested for a permanent position. T u rner a lleg es that h e w ould not have left his other

e m p l o y ment had he known DPW was hiring him a s a temporary employ ee. F ive other individ uals were also hired as temporary

ex empt employ ees at about the same time.

Turner claims that DPW manag er, B ruce Storrs (Storrs)
eng ag ed in a scheme to subvert Section 10.104 of the Charter, which authoriz es the hiring of temporary employ ees only for special projects or p rofessional services w ith limited funding

. Turner alleg es that, in violation of the Charter, he w orked on many core department tasks, and was g iven ex tra responsibility that w as incon gru ent with his compensation. Turner al s o alleg es that Storrs and Robert Hanley (Hanley ), the DPW Chief Survey or, attempted to fo r c e Turner to approve maps and survey s he ha d n o t supervised. Storrs refused to promote Turner to a perman e n t p osition, a nd instead hired individuals who were less qualified than Turner.T U R N E R V

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Turner alleg es that t h is hiring scheme was part of a broader p lan by the City and Storrs—via DPW —to underbid

s u r v e y work for other City and County ag encies in order t o “corner the market” on this work, and to make up the money by overcharg ing the p ublic f o r mapping fees, while underpay in g staff. Storrs acknowledg ed that the w ay he operated his portion of DPW “ made the department money

. ” Turner alleg e s that it was illeg al to use mapping fund fees to offset the cost of low survey bids.

At staff meeting s, un i o n meeting s, and face-to-face meeting s with Storrs and DPW officials
, T urner b eg an “spea k i n g out a g ainst the practice” of using temporary

ex e mpt employ ees “in violation of civil serv ice rules.” He also repeatedly asserted that he and other temporary ex e mpt employ e es w ere regularly assigned to work on matters inappropriate to someone in “temporary ex empt” status, a nd that Storrs a

nd DPW were well aware o f Turner’s concerns. Turner was subsequently a s s ig ned to perform “map checking ,” a task Storrs acknowledg ed he used t o punish individuals who “did not follow instructions.”

Storrs and D PW blocked Turner’s attempts at promotion, and “intervened to overturn a permanent survey ing job offer that h a d been ex t ended to Turner for work at the City ’s airport.” Turner w rote to the human resources a g ent handling the position and told her that he planned to e x p o s e these policies, and to report them to w hatever authority w ould hold Storrs and DPW responsible. S hortly thereafter, Turner was summoned to a meetin g w ith a human resources representative, Storrs, and Storrs’s supervisor, during which he was “asked hostile and intimidating q uestions by Storrs.” Turner restated his concerns a bout the unlawful practices, a nd immediately after the meeting
, Storrs informed Turner that heT U R N E R V

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would be fired. The nex t 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 opening s at DPW
, b ut his applications were rejected. Turner c ontends that “Storrs (with the knowledg e and ratification of DPW ) h a d simply handpicked t he employ ees he wanted to hire without reg ard to objective sta n dards or c ivil service rules.” Turner f urther alleg es that he “has effectively been b l acklisted from obtaining future work” because Storrs and o th e r s “have deliberately put forth a false a nd neg ative reputation for [ him] .”

I n December 2 010, T urner filed his initial complaint
ag ainst the City in state court, alleg ing numerous state causes of action. Turner subsequently amended h is complaint to cure deficiencies in his numerous c laims, and the City removed the

case to federal court. The district court g ave Turner multiple opportunities to plead one or more causes o f action, a nd Turner eventually filed a Second, Thi r d
, Fourth, and F ifth Amended Com plaint. Turner’s F ifth Amended Complaint purported to alleg e seven causes of action (including the ones he raises o n appeal). W ith t h e e x ception of one of Turner’s claims, whic h t h e district court remanded to state court, the dist r ict court dismissed T urner’s claims with prejudice, pursuant to F ederal Rule of Civil Procedure 12(b)(6). Among other conclusions, the district court h eld that Turner failed to state a claim for r etaliation under t h e F irst A mendment because he had n ot alleg ed f a c t s demonstrating that he h ad
eng ag ed in protected speech.

Turner timely

filed this appeal.T U R N E R V

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JURISDICTION AND STANDARD OF REVIEW

W e have jurisdiction under 28 U.S.C. § 1291. W e r eview de novo the district court’s order dismissing Turner’s c laims pursuant to Rule 1 2(b)(6 ). Stearns v

. Ticketmaster Corp.
, 655 F .3d 1013, 1018 (9th Cir. 2011).

D ISCUSSION

Tu r ner contends that the d istrict court improperly dismissed h is claim ag ainst the City for r etaliatory termination based on protected speech. W e disag ree.

To survive a Rule 12(b)(6) motion to dismiss, a “plaintiff
must alleg e enoug h facts to state a claim to relief th a t is plausible o n its face.” Lazy Y Ranch Ltd. v. Behrens
, 546 F .3d 580, 588 (9th Cir. 2008) (internal quotation marks omitted); F ed. R. Civ. P. 12(b)(6). I n a ssessing w h e t her a party has stated a claim upon which relief can be g ranted, a court must take a ll alleg ations o f material fact a s true and construe them in the lig h t most favorable to the nonmoving p arty ; but “conclusory alleg ations of law a nd unwarr anted inferences are insufficient to avoid a Rule 12(b)(6) dismissal.” Cousins

v. Lockyer
, 568 F

. 3d 1063, 1067 (9th Cir. 2 0 0 9) (internal quotation marks omitted). “A clai m has facial p lausibility when the plaintiff pleads factual content that allows the court t o d r a w the reasonable inference that the defendant is liab l e for the misconduct a lleg ed.” Ashcroft v. Iqbal
, 556 U.S. 662, 678 (2009). This standard “asks for mo r e than a sheer possibility that a defendant has acted unlawfully ,” but it “ is
not akin to a probability requirement.” Id

. (internal quotation marks omitted).T U R N E R V

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“I n order to state a claim ag ainst a g overnment employ er for violation of the F irst Amendment
, an employ ee must show (1) that he or she eng ag ed in protected speech; (2) that the employ e r took ‘adverse employ ment action’; and (3) that his or her speech was a ‘substantial or motivating ’ factor for the adverse employ

ment action.” Coszalter v. City of Salem
, 320 F .3d 968, 9 73 ( 9 t h Cir. 2003). A public e mploy ee’s speech is protected under the F irst Amendment i f the employ e e spoke “as a citiz en upon matters of p u b l i c concern.” Connick v. Meyers
, 4 61 U.S. 138, 147 (1983); see also Garcetti v. Ceballos
, 5 47 U.S. 410, 418 (2006). “W h e ther an employ ee’s speech addresses a matter of public

concern must be determined b y the content, form, and c ontex t of a g iven statem e n t , as revealed by the whole record.” Connick
, 461 U.S. at 1 47–48. “I f employ e e ex pression relates
to an issue of political, social, o r other concern to the community
, it may fairly be said to be of public concern.” Brewster v. B d. of Educ. of Lynwood U n i f i ed Sch. Dist.
, 149 F .3d 971, 978 (9th Cir. 1998) (interna l q uotation marks omitted). H owever, “[ a] n employ ee’s motivation [ is] relevant
to the public-concern inquiry .” Desroche r s v. City of San Bernardino
, 572 F .3d 703, 71 5 (9th Cir. 2009) (second alteration in orig inal) (citing Gilbrook v. City of W estminster
, 177 F .3d 839
, 866 (9th Cir. 1999)). W e have framed that inquiry with two questions: “[ W ] hy did the em p l o y ee speak (as best as we can te l l ) ? D o e s the speech ‘seek to bring to lig ht actual or potential wrong doing or breach of public trust,’

or is it animated instead by ‘ dissatisfaction’ with one’s employ ment s i t u a t i o n ? ” D esrochers
, 572 F .3d at 715 (quoting Connick , 461 U.S. at 148).

Turner contends that the content of his complaints at staff meeting s, union meeting s, a n d face-to-face meeting s with DPW officials falls squarely within the bounds of “pu b l icT U R N E R V

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concern , ” and that the “ f orm and contex t” of his speech support such a finding

. See Connick
, 461 U.S

. a t 147–48. Turner spoke to City officials “ about what he perceived to be the unlawful hiring and use of temporary ex empt employ ees in direct contravention of the City Charter.”

W e agr e e w ith the district court that, althoug h Turner’s complaint “ostensibly c ould invoke a matter of public
concern, as it discusses civil service rules prescribed b y local law,

. . . Plaintiff’s voiced complaint w as focu sed on a nd driven by his internal g rievance.” I n o ther w ords, Turner’s

c o m p l a i n t s

— w h i l e p o t e n t i a l l y s i g n i f i c a n t i n t h e i r implications—arose pr i m a rily out o f concerns for his o wn professional advancement, and his dissatisfa c t i o n with his

s t atus as a temporary employ ee. Turner does not a lleg e t h at he spoke out about e x cessi v e mapping f ees or n eg lig ent survey w ork, b ut rather, only about the unlawful h i r ing a nd

use of temporary employ ees, which he “later came to believe

. . . was part o f a g reater illeg al scheme to misappropriate

. . . fund[ s] .”

W e conclude that the form and contex t of Turner’s speech wei g hs strong ly ag ainst finding that F irst A mendment protection is warranted. W hen assessing these two factors, we look to t h e p u blic or private nature of the speech, and to the speaker’s motive. W

eeks v. Bayer , 246 F .3d 1231, 1235 (9th Cir. 2001). I n Lambert v. Richard
, 59 F

. 3d 134, 136–37 (9th Ci r

. 1 9 9 5), we held that a librarian’s statement to the city council a t a televised city council meeting “ t h a t the library

was ‘barely ’ functioning and that e mploy e es who d ealt
regularly with the public we r e p erforming ‘devoid of z est, with leaden hearts and w ooden hands’” c onstituted protected speech under Connick . W e emphasiz ed that L ambert “spoke

as a union r e p r e s entative, not as a n individual, and that sheT U R N E R V

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described departmental problems, not private g rievances.” Id

. at 137. I n addition, “[ t] he f act that L amber t spoke at a televised c ity council meeting underline[ d] the public nature of the

. . . c ontroversy .” Id

. I n Desrochers
, we held that to be protected, “speech must inv o l v e issues about which information is needed or appropriate to enable the members of society to make informed decisions about the o peration o f their g overnment,” but “spe e c h that deals with individual personnel d isputes and g riev a n ce s a nd that would be of no relevance to the public’s evaluation of the perf o rmance o f
g overnmental ag encies is g enerally not of public concern.” 572 F .3 d a t 7 10 (internal quotation marks and citations omitted).

Unlike the plaintiff in Lambert
, w ho spoke at a televised city council meeting
, Turner v oiced his g rievances internally —at union meeting s, to h i s supervisor, and to Human Resources—and they were specifically related to the conditions of his employ

ment. Turner c o u l d have p ursued a complaint with the San F rancisco Civil Service Commission,
g one to the B oard of Supervisors for the City a nd County o f San F r ancisco, g one 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 ong oing personnel dispute with Stor rs and DPW about his alleg ed misclassification as a temporary e x empt employ ee r a ther than

a permanent employ e e. Mor e o v er, a nd also unlike the plaintiff in Lambert
, who spok e a s a union representative, there is no indication that Turner soug ht broad-based union action or relief on behalf of other similarly situated employ e es. Such “ individual personnel disputes a nd
g rievances” are “g enerally not o f public concern.” Desrochers , 572 F .3d at 710.T U R N E R V

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Given that all three Connick f a c tors weig h a g ainst Turner,

w e conclude that T urner did not eng ag e in protected spee c h under the F irst Ame n d ment when he complained to his supervisors about the City ’s hiring and use of tem p orary

ex e mpt employ ees.

CONCLUSION

W e affirm the decision of the d istrict court di s m issing Turner’s cla i m pursuant to Rule 12(b)(6) for the reasons stated in this opinion and i n the concurrently filed memorandum disposition. E a ch p arty shall bear its own costs on appeal.

AF F IRMED.