Thursday, June 18th, 2015

Employee’s Critical Comments about City-Employer Not Protected Speech

Turner v. City of San Francisco: A temporary employee was terminated after he repeatedly voiced criticisms about the City of San Francisco’s practice of using temporary employees to perform tasks intended to be performed by permanent employees. The employee believed that the City was abusing employment practices by not hiring permanent employees to save money, and that he specifically should have been hired as a permanent employee.

A public employee, unlike an employee in the private sector, enjoys a right to speak “as a citizen upon matters of public concern.” To establish a case of retaliatory discharge based on protected speech, however, the employee must show that (1) he engaged in protected speech, (2) the employer took adverse action, and (3) that the protected speech was a “substantial or motivating” factor in the adverse action. The pertinent issue on appeal was whether the employee’s speech was considered protected under the First Amendment. There was no apparent dispute as to whether his termination was based on his repeated criticisms of the City.

The Ninth Circuit ruled that the employee’s speech did not rise to the level of protected speech. The Court examined the specific facts of the case in reaching its conclusion. First, the court determined that the employee’s criticisms of the City’s hiring practices were motivated out of a concern for the employee himself, not the public at large. The employee made several of his comments in closed communications with supervisors and managers about his own situation, as opposed to more publicly denouncing the general practice of hiring temporary employees. Also significant was the fact that he only later came to believe that what was happening to him was a “greater illegal scheme” which the Court further stated indicated that his initial and primary motivation for voicing his complaints was his own interests and not the public at large.

While the outcome of the Turner case did not find a violation by the municipal employer, it is important to note that the plaintiff met two of the three elements of a retaliatory discharge claim, and the outcome of the third factor hinged on the specific facts of the case. A slightly different set of facts, for example if the employee had tried to drum up support from other employees or the union, may have resulted in a finding of a violation.

Brad Stewart

Author: Brad Stewart