FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETER TURNER,

Plaintiff-Appellant,

v.

CITY AND COUNTY OF SAN

FRANCISCO; SAN FRANCISCO

DEPARTMENT OF PUBLIC WORKS; ED

REISKIN; BRUCE STORRS,

Defendants-Appellees.

No. 13-15099

D.C. No.

3:11-cv-01427-

EMC

OPINION

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

potentiallysignificant in their implication, arose primarilyout

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 surveyassistant position openings at DPW, but his

applications were rejected. Turner contends that “Storrs (with

the knowledge and ratification of DPW) had simply handpicked 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 clearlyarose out of an ongoing personnel

dispute with Storrs and DPW about his alleged

misclassification as a temporaryexempt 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.