Tuesday, January 12, 2016

Public Employee's Personal Grievance Not Protected by the First Amendment

Pete Turner was hired as a "temporary exempt employee" for the Department of Public Works (DPW) in the City and County of San Francisco. Turner complained about his temporary job status, claiming the City and his Manager Bruce Storrs were violating the City Charter. The Charter only allows hiring temporary employees for certain special projects. According to Turner, the City and Storrs planned to underbid survey work for City and County agencies to "corner the market." They would then be able to make up the money on these low bids by overcharging the public and underpaying the staff. Turner claimed he spoke out against this practice at union meetings, staff meetings, and in face-to-face meetings with Storrs. Turner claimed he was being underpaid and assigned work on matters outside of his job description. Shortly after filing a complaint with HR, Turner was fired.

When he was unable to secure a job as a permanent DPW employee, Turner filed a complaint against the City in state court. The district court dismissed his complaint, finding Turner did not state a claim for retaliation under the First Amendment. To state a claim, the employee must show his speech was protected.

In Turner v. City and County of San Francisco, the Ninth Circuit held the district court did not err by dismissing the complaint. The Court clarified that an employee's speech is protected when he speaks out "as a citizen on matters of public concern," but not when he merely airs a personal grievance. The Court distinguished Turner's case from others where the public employee's speech was protected. Unlike those cases, Turner did not raise his complaint in a public forum, like the Civil Service Commission or Board of Supervisors. Because Turner did not seek relief on behalf of other temporary employees, the Court found Turner was motivated by his own dissatisfaction with his job status. The Court noted Turner's allegation that the City and Storr were violating the Charter could touch on a matter of public interest. However, this was not enough for the Court to find Turner's speech was protected under the First Amendment.

This case illustrates that a personal complaint voiced in a private forum will likely not be protected under the First Amendment even if it touches on matters of public interest.