Federal Judge Rules that Denial of Position with Prospective Law Enforcement Employer Because of Applicant’s Union Activities May Violate First Amendment

By: Jim Cline and Geoff Kiernan

In Walter v. City of St. Peters, a Federal Court Judge in Missouri ruled that a police offer stated sufficiently plausible facts to survive a motion to dismiss his claim that the City, and the individual supervisors within the city, violated his First Amendment rights, when they refused to hire the officer as park ranger, as part of an unofficial policy of retaliating against workers for union activity.

The plaintiff, Robert Walter, was a 12 year veteran of the Wentzville Police Department and was very active in the union as a shop steward.  Seeking a change of employment, Walter sought a new job as a park ranger with the City of St. Peters. Within a week Walter passed all the physical, written and oral exams required to be a park ranger and completed several successful interviews with the Parks Department.  The employee in charge of hiring the new ranger called Walter and scheduled a polygraph test, which was to be the final step in the hiring process. At the time of this phone call, Walter was told he was the only applicant under consideration.

Sometime between this phone call and the polygraph test it was alleged that Major Finkelstein, of the Saint Peter’s Police Department, contacted the manager of the Parks and Recreation Department, Hutsler, and told him not to hire Walter because of his union activities while working at Wentzville.  Hutsler then allegedly told the Chief of the Ranger Department that “he did not want an employee like him due to his union association.” Days later the Saint Peter’s Human Resources Department called and told Walter that he was no longer in contention for the Park Ranger position. Walter then filed suit against the City of Saint Peters for its anti-union policies and, Finkelstein and Hutsler, for their individual roles in retaliating against him for union activities.

The judge started off by explaining that in order to prove that Walter faced retaliation for his union activities, he must prove that he engaged in activity protected by the First Amendment, which is union activity. He must then prove that the defendants took an adverse employment action against him and that the protected conduct was a substantial or motivating factor in the defendant’s decision to take that action.  The judge first turned to Walter’s claim against the city, noting that in order for the city to be liable, Walter would have to prove that the city created a policy of retaliation, or that the city was the motivating force behind Walter being excluded from consideration for the park ranger position.  The judge explained:

A Plaintiff seeking to impose liability on a government entity…must identify a “policy” or “custom” of the entity that caused the violation of the Plaintiff’s constitutional rights…A reasonable inference, in the light most favorable to the Plaintiff, is that Finkelstein and Hutsler made statements regarding the undesirable nature of the Plaintiff’s Union activity as a result of an unwritten retaliatory, anti-union St. Peter’s policy.

The court ruled that if Walter’s allegations are true then he was not hired to the job as result of a policy of the City of St. Peters. The court then turned to Walter’s claims against Finkelstein and Hutsler. They found that if what Walter was alleging is true, then there is clearly a connection between the actions taken by these individuals and the alleged retaliatory conduct.  They found that these two men were the final decision makers in the hiring process and it was only on their direction that the Chief Park Ranger was directed to stop considering Walter for the position.

So while ultimately the case still has to go to trial, the court ruled that there was enough evidence to show that Walters could have a case. At trial, the City will still have a chance to dispute Walter’s version of the story and articulate reasons beside his union activity and why he was not granted the position.

In States such as Washington where there is a strong collective bargaining law, union retaliation issues are typically addressed as a ULP.  It is useful to remember though that union activity is protected by the First Amendment and therefore, may be the subject of a civil rights lawsuit.

This case also reminds us that retaliation need not be limited to current workplace discrimination. Job applicants are also protected against discrimination on their past history of union activity.

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