Weisbuch

Opinion by Judge KLEINFELD; Partial Concurrence and Partial Dissent by Judge FLETCHER.

We affirm the dismissal of a claim by a demoted medical director that his change in rank was unconstitutional retaliation for protected speech.

FACTS

The complaint was dismissed for failure to state a claim upon which relief could be granted, under Federal Rule of Civil Procedure 12(b)(6). We therefore determine whether, if the factual averments of the complaint were proved, they would establish a cause of action. National Wildlife Federation v. Espy, 45 F.3d 1337, 1340 (9th Cir.1995); Argabright v. United States, 35 F.3d 472, 474 (9th Cir.1994). The description of events below is a summary of the averments of the complaint.

Dr. Weisbuch was employed by the County of Los Angeles as Medical Director, within the Department of Health Services. Robert C. Gates, the Director of Health Services, was his supervisor and acted as appointing authority of personnel within the department. In 1993, Dr. Weisbuch told Mr. Gates that a number of people felt that the leadership of Mr. Gates’s department “was not adequately listening to ‘medical opinion’ before decisions being made in the Department of Health…

concurring in part and dissenting in part:

I concur in the majority’s opinion, except insofar as it holds that Dr. Weisbuch failed to make out a First Amendment claim against his employer.

The majority agrees, at least for the sake of decision, that Dr. Weisbuch met the threshold pleading requirements of a First Amendment claim by alleging that Gates and the Board deprived him of a valuable government benefit (his title and position as medical director) in retaliation for his threat to speak out on a matter of public concern (Gates’ failure to consider medical opinion in making Health Services decisions). Having met these threshold requirements, Dr. Weisbuch still might lose if his free-speech interest in making his statements is outweighed by the Department’s interest in “promoting the efficiency of the public services it performs through its employees,” Pickering v. Board of Educ., 391 U.S. 563, 568 , 88 S.Ct. 1731, 1735 , 20 L.Ed.2d 811 (1968), and “the effective and efficient fulfillment of its responsibilities to the public.” Connick v. Myers, 461 U.S. 138, 150 , 103 S.Ct. 1684, 1692 , 75 L.Ed.2d 708 (1983).

I part ways with the majority when it proceeds with this…