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Cassidy v. Salt Lake County Fire Civil Service Council3/4/1999
he crux of the Council's argument is that "only the fire chief can promote Mr. Cassidy," and that "any judgment would be prejudicial without his presence as a party."
We agree with Cassidy that the Council's argument is essentially a reincarnation of the argument it tendered before the district court when the Council claimed it did not have jurisdiction to hear Cassidy's grievance. The Council insisted at that time it "lack jurisdiction or authority over county fire [department] hiring and promotional issues except as a council may adopt rules consistent with the delegation of powers and duties as provided in Chapter 28 of Title 17." The district court, however, rejected that reasoning, concluding the Council did have jurisdiction to hear Cassidy's grievance, and ordered the Council to consider his grievance. In an order dated November 17, 1997, this court also rejected the Council's argument that it lacked subject matter jurisdiction to hear Cassidy's grievance.
The Council has the authority to adopt rules, establish procedures, and recommend guidelines that are binding on the fire chief and other employees or agents of the department. See Utah Code Ann. § 17-28-2.4 (1995). Moreover, applicable law provides that the Council is the proper defendant for this dispute and directed Cassidy to bring an action "against the County Fire Civil Service Council in its official capacity"--not the fire chief--if Cassidy was "aggrieved" by the Council's determination. See Utah Code Ann. § 17-28-13(1)(1995). Cassidy followed that mandate.
As the Council must abide by our decision, so must the fire chief and the department abide by the Council's action as directed by this court. Complete relief, even absent Chief Hinman, therefore is available to either party. Further, neither Chief Hinman's interests nor those of the parties before us are compromised by Chief Hinman's absence. Accordingly, we determine Chief Hinman is not a necessary and indispensable party to this action.
II. Adverse Employment Action
Turning to Cassidy's First Amendment claims, we initially address whether Cassidy suffered an "adverse employment action" sufficient to constitute a violation of his First Amendment rights. See Rutan v. Republican Party, 497 U.S. 62, 73-77, 110 S. Ct. 2729, 2736-38 (1990). The Council asserts Cassidy's claim must fail because a refusal to promote cannot be considered an adverse employment action.
In support of its argument, the Council cites two decisions from the Seventh Circuit, Dahm v. Flynn, 60 F.3d 253 (7th Cir. 1994), and DeGuiseppe v. Village of Bellwood, 68 F.3d 187 (7th Cir. 1995). The Council maintains these cases, addressing retaliation claims under 42 U.S.C. § 1983, establish in the federal civil rights context that to be adverse, a change in employment conditions must be material such "that the employee is made worse off by it." DeGuiseppe, 68 F.3d at 192. In Dahm, the Seventh Circuit, while examining what action could be "materially adverse" to a public employee, quoted its prior decision in Crady v. Liberty National Bank and Trust Co., 993 F.2d 132, 136 (7th Cir. 1993) (applying the burden-shifting test of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), to federal age discrimination claim), in which the court included as materially adverse changes "a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation." Dahm, 60 F.3d at 257. Because a failure to promote did not appear in that list as an adverse employment action,
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