Case: 20-50501 Document: 00515981597 Page: 1 Date Filed: 08/17/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 17, 2021
No. 20-50501
Lyle W. Cayce
Clerk
United Steel, Paper and Forestry, Rubber
Manufacturing, Energy, Allied Industrial and Service
Workers International Union; United Steel Workers
International Union; Bexar County Probation Officers
Association United Steelworkers Local 9528; Trisha
Cantu, as next friend of J.M.C., a minor; Emily Ann Caroline
Castilleja,
Plaintiffs—Appellants,
versus
Jarvis Anderson; Brian Brady,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:17-CV-1242
Before Jolly, Duncan, and Oldham, Circuit Judges.
Stuart Kyle Duncan, Circuit Judge:
Sergio Castilleja’s children and various unions appeal the summary
judgment dismissal of their claims that Castilleja was fired for engaging in
union-related activities in violation of the First Amendment, the Equal
Protection Clause, and Texas law. We affirm.
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I. Background
A. Facts
Castilleja spent fifteen years as a community service officer (“CSO”),
or probation officer, for the Bexar County Community Supervision and
Corrections Department (“CSCD”).1 His career was marked by multiple
reprimands and termination warnings. When the events at issue here took
place, Castilleja was on “zero tolerance,” meaning he could be immediately
fired for any infraction of CSCD policies.
After Castilleja was transferred in December 2014, his new manager,
John Escalante, suspected Castilleja was violating overtime rules. An
investigation by Assistant Chief Sloane Kelly confirmed that was true:
Castilleja was routinely taking unapproved overtime and using his work
computer to send union-related emails. Although she recommended to Chief
Jarvis Anderson that he be fired, Castilleja only received counseling and was
put on a “performance improvement plan” in April 2015.
In Castilleja’s October 2015 evaluation, Escalante rated him
“satisfactory” overall but gave him the lowest rating in multiple categories,
including “[f]ollow[ing] departmental policies and procedures,” and noted
numerous areas needing improvement, including the key area of reporting
probationers’ violations to the court. Still, Escalante praised Castilleja’s
work and described him as “experienced, wise, intelligent, and
knowledgeable” and “an asset.”
On January 28, 2016, Castilleja was sworn in as president of the Bexar
County Probation Officers Association (“BCPOA”). 2 According to
1
Castilleja passed away during the litigation. The district court allowed
substitution of Emily Ann Caroline Castilleja, Castilleja’s adult daughter, and Trisha
Cantu, as next friend of Castilleja’s minor daughter. We continue to refer to the plaintiff-
appellant as Castilleja.
2
He had served in the BCPOA since 2007.
2
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Castilleja, the next day Anderson asked him to stop the union’s second no-
confidence petition against Anderson, but Castilleja refused. The previous
BCPOA president, Sherri Simonelli, recalled that she told Anderson around
that time that a no-confidence vote was imminent and that Anderson
responded he would “go after Sergio hard” and he “hated” him. Anderson
denied saying this.
In February 2016, Castilleja switched units with another CSO,
Lindsey Fermin, who found “serious case management issues” in
Castilleja’s work that required notifying the court of unreported violations.
This was reported to then-Assistant Chief Brian Brady. Around that time,
Anderson himself became aware of a “troubling” case Castilleja had
managed and, as a result, ordered an audit of 100 of Castilleja’s former cases.
In May, Escalante reviewed some of those cases, revealing the most
“egregious” case management deficiencies he had ever seen. Had Escalante
known about them, he said, he would not have commended Castilleja in the
2015 review. Brady’s own review revealed Castilleja’s “blatant disregard to
instructions from the judges” as well as “gross negligence in [case]
management,” “documentation of errors,” “reporting of violations to the
courts,” and “total disregard for the protection of the community.”3 He
found similar problems in Castilleja’s new cases. As a result, Brady
recommended firing Castilleja. He later explained that, as an experienced
officer, Castilleja’s disregard of “the basic ten[e]ts of case management”
made his violations especially damning.
3
For example, in a DWI case where the court required use of an ignition interlock,
Castilleja unilaterally permitted urinalysis tests instead, thus allowing the probationer to
drink and drive. Castilleja also failed to report two positive alcohol tests, notifying the court
only after the probationer was arrested for a third DWI. In another case, Castilleja
permitted a probationer to avoid reporting for sixteen months and travel to Austin for the
school year without court approval. The probationer reported using alcohol and drugs
thirty to forty times while unsupervised.
3
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On August 5, 2016, Castilleja received a proposed adverse action
(“PAA”) recommending termination. The PAA cited not only Castilleja’s
numerous case management and policy violations, but also two instances of
conducting union business while at work, and one use of work email to send
union-related emails. Castilleja appealed.
Meanwhile, on November 9, 2016, the BCPOA issued a no-
confidence petition calling for Anderson’s removal.
On November 15, 2016, Anderson heard Castilleja’s appeal. When
confronted with the case management violations, Castilleja explained he was
used to having “discretion and working things out,” acknowledged his failure
to respect the court’s authority, and insisted he “never meant to not follow
the policy.” Asked if he would report violations in the future, Castilleja said
he would “try [his] best.” Anderson fired Castilleja on January 3, 2017. The
final decision notice cited the evidence presented in the PAA and called
“unacceptable” Castilleja’s “questionable ethical professional conduct”
and “inability to comply” with CSCD policies and procedures.
B. Procedural History
On December 7, 2017, Castilleja—along with the BCPOA and its
affiliate the United Steelworkers International Union (collectively, the
“Unions”)4—sued Anderson and Brady in federal court in their individual
and official capacities. The plaintiffs generally claimed Castilleja was fired in
retaliation for his union-related speech and association in violation of the
First Amendment, federal law, and Texas law.
Specifically, the operative complaint5 asserted: (1) Castilleja’s First
Amendment retaliation claim under 42 U.S.C. § 1983 against Anderson and
Brady; (2) the Unions’ First Amendment claim against Anderson; (3) the
4
Unless otherwise indicated, our references to Castilleja include the Unions.
5
This is the first amended complaint, filed in June 2018.
4
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Unions’ equal-protection claims against Anderson; (4) Castilleja’s claim
under Texas Labor Code § 101.301 against Anderson and Brady; and (5) a 42
U.S.C. § 1985 conspiracy claim against Anderson and Brady.6 Plaintiffs
sought injunctive relief and damages. The parties filed cross motions for
summary judgment. The district court granted Anderson and Brady’s
motion, dismissing all claims against them. This appeal followed.
II. Standard of Review
We review a summary judgment de novo. Patel v. Tex. Tech Univ., 941
F.3d 743, 747 (5th Cir. 2019). Summary judgment is appropriate “if the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
We view the evidence in the light most favorable to the non-movant,
“drawing all justifiable inferences in the non-movant’s favor.” Renwick v.
PNK Lake Charles, L.L.C., 901 F.3d 605, 611 (5th Cir. 2018) (cleaned up).
III. Discussion
A. First Amendment Retaliation
We first consider Castilleja’s claim that he was fired in retaliation for
his union-related speech and activity, in violation of the First Amendment.
Our precedent articulates slightly different standards depending on whether
a retaliation claim turns on a plaintiff’s union-related speech or association.7
Both standards, however, require a causal relationship between the protected
6
Castilleja does not appeal the dismissal of the § 1985 claim.
7
Compare Anderson v. Valdez, 845 F.3d 580, 590 (5th Cir. 2016) (speech-related
claim requires showing: (1) plaintiff suffered adverse employment action; (2) plaintiff spoke
on matter of public concern; (3) plaintiff’s speech interest outweighed government’s
efficiency interest; and (4) speech “precipitated” adverse action (citation omitted)), with
Hitt v. Connell, 301 F.3d 240, 246 (5th Cir. 2002) (union-association claim requires
showing: (1) plaintiff suffered adverse employment action; (2) plaintiff’s associational
interest outweighed government’s efficiency interest; and (3) association was “a
substantial or motivating factor” in adverse action (citations omitted)).
5
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activity and the adverse employment action. See, e.g., Garza v. Escobar, 972
F.3d 721, 728–29 (5th Cir. 2020) (adverse action must have been “because
of” speech (citation omitted)); Hitt v. Connell, 301 F.3d 240, 246 (5th Cir.
2002) (union association must have been “a substantial or motivating factor”
in adverse action (citations omitted)). If a plaintiff makes this showing, both
claims permit an affirmative defense, known as the “Mt. Healthy defense”:
the employer may avoid liability by “showing a legitimate reason for which it
would have discharged the employee even in the absence of his protected
conduct.” Coughlin v. Lee, 946 F.2d 1152, 1157 (5th Cir. 1991) (citing Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
Finally, the plaintiff may rebut by showing the employer’s proffered reason
is pretextual. Haverda v. Hays County, 723 F.3d 586, 592 (5th Cir. 2013).
The district court assumed Castilleja presented sufficient evidence of
causation. But it granted Anderson summary judgment based on the Mt.
Healthy defense—i.e., that Anderson had legitimate reasons to fire Castilleja
apart from his protected conduct, reasons Castilleja failed to show were
pretextual. Castilleja argues this was error, but we agree with the district
court.
First, the evidence shows without dispute that Anderson had valid
reasons for firing Castilleja. Anderson emphasizes three that are well-
supported by the record: (1) Castilleja’s mismanagement of numerous cases
in violation of CSCD policies after incurring multiple sanctions, including
being placed on zero tolerance8 and being disciplined for repeated overtime
violations; (2) the “egregious” nature of Castilleja’s case management
8
When asked at oral argument about “zero tolerance,” Castilleja’s counsel
claimed the policy could be understood to cover only offenses like the one that triggered its
application to Castilleja (a physical altercation). O.A. Rec. at 6:43–8:00. The record
contradicts this, however. The policy stated Castilleja could be “immediately” fired for
“any infraction of [CSCD’s] administrative policies and case management procedures.”
And the record shows Castilleja admitted he understood that.
6
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violations, as attested by multiple witnesses including Fermin, Escalante, and
Brady; and (3) Castilleja’s insistence that his “discretion[ary]” style
somehow excused those violations. Moreover, those reasons were reflected
in the PAA, in Brady’s firing recommendation, and in Anderson’s final
decision notice. See Gerhart v. Hayes, 217 F.3d 320, 322 (5th Cir. 2000) (Mt.
Healthy defense established where termination letter relied on employer’s
proffered, permissible reasons). We therefore agree Anderson showed
undisputedly that he had valid reasons to fire Castilleja apart from any
protected activity.9
Second, we disagree with Castilleja that the evidence raised a genuine
dispute that the reasons given for his firing were pretextual. For instance,
Castilleja points to Escalante’s “glowing” comments in his 2015 review. But
this overlooks that the same review gave Castilleja the lowest rating in
multiple categories and stated he needed improvement in the key area of
reporting violations to the court. Moreover, Escalante wrote the review
before learning of Castilleja’s worst lapses and testified that, had he known
about them, he would not have made the positive comments.10 Castilleja also
claims he was treated differently from other officers with similar records. But
none of the officers Castilleja identifies had disciplinary histories as bad as
his, none had Castilleja’s experience, and none was on zero tolerance.
Moreover, the evidence does not even show Anderson or Brady was aware of
9
This evidence is at least as substantial as evidence previously found sufficient on
summary judgment to satisfy Mt. Healthy. See Beattie v. Madison Cnty. Sch. Dist., 254 F.3d
595, 604 (5th Cir. 2001) (school board members’ testimony that they would have fired
teacher based on complaints she was rude to students, parents, and teachers); Gerhart, 201
F.3d at 322 (evidence that employee failed in assigned duty to improve funding).
10
Castilleja asserts the “surreptitious” nature of the audits that uncovered these
lapses shows pretext. But he identifies no evidence suggesting the audits were anything
other than a rational response to deficiencies discovered in Castilleja’s cases by Anderson
and Fermin.
7
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these other officers and failed to discipline them.11 Cf. Jordan v. Ector County,
516 F.3d 290, 300 (5th Cir. 2008) (pretext shown when other employees
“engaged in similar conduct without being disciplined”). Finally, Castilleja
claims his firing diverged from CSCD practice of first offering training or
intermediate sanctions. But even if pretext could be inferred from such
evidence,12 the record does not show CSCD’s practice was to offer more
training or lesser sanctions in a situation like this—where an experienced
officer, despite repeated discipline and warnings, persisted in committing
serious violations. In sum, we conclude the evidence did not raise a genuine
dispute that Anderson’s reasons for firing Castilleja were pretextual.
That conclusion disposes of Castilleja’s First Amendment retaliation
claim against Anderson in his official capacity for injunctive relief. It also
disposes of the same claim against Anderson and Brady in their individual
capacities for damages. Because we have found no First Amendment
violation arising from Castilleja’s firing, Anderson and Brady necessarily
merit qualified immunity on this claim.13 Finally, similar reasoning also
11
Manager Sherri Simonelli’s declaration testimony that Castilleja’s errors were
“common for probation officers” is similarly inadequate without evidence those other
CSOs had comparable histories and experience levels, faced the threat of zero tolerance,
and yet received different treatment.
12
Our precedent in the employment discrimination context suggests that
procedural departures alone cannot support an inference of pretext. See, e.g., EEOC v. Tex.
Instruments, Inc., 100 F.3d 1173, 1183 (5th Cir. 1996) (replacing seniority policy to reduce
workforce and promote efficiency did not create an inference of age discrimination without
“clear nexus to discrimination”); Risher v. Aldridge, 889 F.2d 592, 597 (5th Cir. 1989) (no
inference of pretext from failure to use required criteria in appraising plaintiff’s
performance without evidence she was evaluated in a discriminatory way); Moore v. Eli Lilly
& Co., 990 F.2d 812, 819 (5th Cir. 1993) (rejecting argument that failure to follow
termination procedures established pretext under the ADEA).
13
See, e.g., Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (to overcome qualified
immunity, plaintiff must show that (1) “the official violated a statutory or constitutional
right,” and (2) “the right was ‘clearly established’ at the time of the challenged conduct”
(citation omitted)). The district court reached the same conclusion by relying on the
“clearly established law” prong of qualified immunity. But we may rely on either prong,
ibid., and we “may affirm summary judgment on any ground raised below and supported
8
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dispatches the Unions’ First Amendment retaliation claim. The sole basis for
the Unions’ claim is that Castilleja was fired in retaliation for his union-
related speech and association. See Allee v. Medrano, 416 U.S. 802, 819 n.13
(1974) (because “the union can act only through its members,” it may bring
a First Amendment claim if “its members were subject to . . . intimidation for
engaging in union organizational activity”). Because Castilleja’s claim fails,
the district court also properly dismissed the Unions’ claim.
B. Equal Protection
The Unions complain that the district court erred by dismissing on
summary judgment their class-of-one equal-protection claim against
Anderson. That claim rests on allegations that Anderson treated them less
favorably than other similarly situated organizations (specifically, the Texas
Probation Association and the Combined Law Enforcement Association of
Texas (“CLEAT”)) by penalizing Castilleja for conducting BCPOA
business on work time and with work equipment.
“A class-of-one equal-protection claim lies where the plaintiff alleges
that it has been intentionally treated differently from others similarly situated
and that there is no rational basis for the difference in treatment.” Integrity
Collision Ctr. v. City of Fulshear, 837 F.3d 581, 586 (5th Cir. 2016) (quoting
Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)) (cleaned up). We
have recognized, however, that “[i]n Engquist [v. Oregon Department of
Agriculture], the [Supreme] Court held that class-of-one equal-protection
claims are inapposite in the context of discretionary public-employment
decisions.” Ibid. (citing Engquist v. Or. Dep’t of Agric., 553 U.S. 591 (2008)).
The district court correctly concluded that Engquist precludes the Unions’
class-of-one claim, which attacks a public entity’s discretionary decision
about employee discipline.
by the record.” See, e.g., Ballard v. Devon Energy Prod. Co., 678 F.3d 360, 365 (5th Cir. 2012)
(citation omitted).
9
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The Unions argue that Engquist and Integrity Collision concern only
hiring and firing, not the access-to-facilities issue presented here. We
disagree. Engquist specified that class-of-one claims have “no application in
the public employment context,” which covers “not only hiring and firing
decisions,” but also “any personnel action, such as promotion, salary, or
work assignments.” 553 US. at 607–08 (emphasis added); see also Integrity
Collision, 837 F.3d at 587 (applying Engquist to city’s purchase of tow
services, which involved “subjective, individualized assessments” of
“reputation, personal experience”). The Unions’ challenge to how the
facilities policy was applied is a “claim of differential treatment” the
Supreme Court has refused to recognize. Engquist, 553 U.S. at 608. The
district court properly granted summary judgment dismissing the Unions’
equal-protection claim.14
C. Texas Labor Code
Lastly, we turn to Castilleja’s argument that the district court wrongly
dismissed his claims under Texas Labor Code § 101.301 based on its finding
Brady and Anderson entitled to official immunity under Texas law.15
Castilleja’s briefing on this point is anemic: it states in a single sentence,
without citing authority, that Anderson and Brady “were not acting in good
faith or within the scope of their duties . . . because Castilleja was terminated
because of his union activities.” Castilleja has forfeited this challenge by
14
We therefore need not consider the district court’s alternative holdings that the
Texas Probation Association was not similarly situated to BCPOA and that the evidence
did not show official approval of CLEAT’s use of facilities.
15
Texas law authorizes a damages action against an employer for violating a
person’s right to work, including his right to be “free from threats, force, intimidation, or
coercion.” Tex. Lab. Code § 101.301(a)–(c). To merit official immunity from such
claims, officials must show their actions were (1) “discretionary duties,” (2) performed in
“good faith,” (3) “within the scope of their authority.” City of Lancaster v. Chambers, 883
S.W.2d 650, 653 (Tex. 1994).
10
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failing to brief it adequately on appeal. See Rutherford v. Harris County, 197
F.3d 173, 193 (5th Cir. 1999).
IV. Conclusion
The district court’s judgment is AFFIRMED.
11