Fifth Circuit Rejects First Amendment Retaliation Claim for Union Activities

Steven D. Schwinn, University of Illinois Chicago School of Law

The Fifth Circuit earlier this week rejected free-speech and free-association claims of a public employee, who was also a public-union leader, after he was terminated for performance reasons. The court also rejected the plaintiffs' class-of-one equal protection claim.

The case, United Steel v. Anderson, arose when Sergio Castilleja, a community service officer for the Bexar County Community Supervision and Corrections Department, was terminated for violating Department rules and other performance issues, including using Department equipment for union activities. But prior to his termination, Castilleja had been elected president of the Bexar County Probation Officers Association, and, in that role, oversaw a no-confidence petition against the Department chief, Jarvis Anderson. When he was fired, Castilleja's children and various unions sued, arguing that the Department terminated him for his union activities in violation of the First Amendment and that the Department treated him differently than officers in other unions in violation of equal protection.

The Fifth Circuit rejected the claims. The court ruled that the Department provided a legitimate, non-speech and non-association reason for his termination--his performance deficiencies--and that the plaintiffs failed to show that this reason was a pretext for reprisal for protected speech and association. The court also ruled that the unions' equal protection argument failed, because under Engquist v. Oregon Department of Agriculture class-of-one equal protection claims (where one person alleges unequal treatment as compared to similarly situated persons) don't apply to discretionary public-employment decisions.