Cassidy v. Salt Lake County Fire Civil Service Council3/4/1999
the Council urges us to dismiss Cassidy's claim.
We believe the Council has misunderstood what Dahm, DeGuiseppe, and, most importantly, Rutan stand for. Although Dahm does not specifically list a failure to promote as an adverse employment action, its omission does not necessarily support the Council's assertion. Moreover, the Dahm court also cited Smith v. Fruin, 28 F.3d 646, 649 n.3 (7th Cir. 1994), which declares that "even minor forms of retaliation can support a First Amendment claim, for they may have just as much of a chilling effect on speech as more drastic measures." Dahm, 60 F.3d at 257. Further, the DeGuiseppe court cited Pierce v. Texas Department of Criminal Justice, 37 F.3d 1146, 1149 (5th Cir. 1994), cert. denied, 514 U.S. 1107, 115 S. Ct. 1957 (1995), a decision that expressly included a refusal to promote as an adverse employment action. See DeGuiseppe, 68 F.3d at 191.
Finally, and most fatal to the Council's position, the United States Supreme Court in Rutan rejected the Seventh Circuit's "unduly restrictive" standard "that only those employment decisions that are the 'substantial equivalent of a dismissal' violate a public employee's rights under the First Amendment." Rutan, 497 U.S. at 75, 110 S. Ct. at 2737 (citing Rutan v. Republican Party, 868 F.2d 943, 954-57 (7th Cir. 1989)). Consequently, the Court included promotions based on political affiliation or patronage as "an impermissible infringement on the First Amendment rights of public employees." Id. The Court even suggested in dictum that the First Amendment protects a public employee from "'an act of retaliation as trivial as failing to hold a birthday party for a public employee . . . when intended to punish her for exercising her free speech rights.'" Id. at 75-76 n.8, 110 S. Ct. at 2738 n.8 (citations omitted).
While we express no opinion as to whether the First Amendment extends to protect against a retaliatory cancellation of birthday celebrations, we do agree that a threat of non-promotion or a retaliatory failure to promote may indeed threaten to chill free speech, just as employment termination does. Accordingly, the Council's actions warrant First Amendment scrutiny.
III. Free Speech and Public Employment
The State may not condition public employment on conditions that infringe on a public employee's right to free speech. See Connick v. Myers, 461 U.S. 138, 142, 103 S. Ct. 1684, 1687 (1983) (citing Branti v. Finkel, 445 U.S. 507, 515-16, 100 S. Ct. 1287, 1293 (1980); Perry v. Sindermann, 408 U.S. 693, 697, 92 S. Ct. 2694, 2697 (1972); Pickering v. Board Of Educ., 391 U.S. 563, 568, 88 S. Ct. 1731, 1734 (1968); Keyishian v. Board of Regents, 385 U.S. 589, 605-06, 87 S. Ct. 675, 684-85 (1967)). In safeguarding that right, the United States Supreme Court has attempted to strike a balance between a public employee's right, as a citizen, to free speech on matters of public concern and the State's interest in efficiently maintaining public services. See Pickering, 391 U.S. at 568, 88 S. Ct. at 1734-35; see also Elwell v. Board of Educ., 626 P.2d 460, 467-68 (Utah 1981)(Maughan, C.J., Dissenting)(citing Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 284, 97 S. Ct. 568, 574 (1977)). The Court has also protected a public employee's speech, even though made privately, as long as the employee speaks as a citizen and the speech relates to a public concern. See Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, 415-16, 99 S. Ct. 693, 696-97 (1979) (stating " either the [First] Amendment itself nor our decisions indicate that this freedom is lost to the public employee who arranges to communicate privately with his employer rather than to spread his views befor
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