Engquist--Decision--No Such Thing as Class of One in Public Employment Cases

The Supreme Court (6-3; Opinion by Roberts; dissents by Stevens, Souter, Ginsburg) affirmed the Ninth Circuit and held that the class-of-onoe theory of equal protection, which the Court extended into the public sector in 2000 for government regulatory decisions, does not apply in the public employment context. This essay summarizes the facts of the case, as well as the argument of Chief Justice Roberts, as taken from the Syllabus of the Court's decision.

Relevant Facts

"Petitioner Engquist, an Oregon public employee, filed suit against respondents-her agency, her supervisor, and a co-worker-asserting, inter alia, claims under the Equal Protection Clause: She alleged she had been discriminated against based on her race, sex, and national origin, and she also brought a so-called “class-of-one” claim, alleging that she was fired not because she was a member of an identified class (unlike her race, sex, and national origin claims), but simply for arbitrary, vindictive, and malicious reasons. The jury rejected the class-membership equal protection claims, but found for Engquist on her class-of-one claim. The Ninth Circuit reversed in relevant part. Although recognizing that this Court had upheld a class-of-one equal protection challenge to state legislative and regulatory action in Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060, the court below emphasized that this Court has routinely afforded government greater leeway when it acts as employer rather than regulator. The Court concluded that extending the class-of-one theory to the public-employment context would lead to undue judicial interference in state employment practices and invalidate public at-will employment."

The Supreme Court Affirms

Here is the way that the Chief Justice argued in affirming the lower court. As you note, the crucial point was the one isolated by the Ninth Circuit--that government as regulator, where the "class of one" doctrine is recognized, is in a distinctively more powerful possition against the "little guy" than in an employment context. Thus, the public employee plaintiff doesn't need the extra "boost" of this doctrine in the employment context.

"There is a crucial difference between the government exercising “the power to regulate or license, as lawmaker,” and acting “as proprietor, to manage [its] internal operation.” Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 896, 81 S.Ct. 1743, 6 L.Ed.2d 1230. Thus, in the public-employment context, the Court has recognized that government has significantly greater leeway in its dealings with citizen employees than in bringing its sovereign power to bear on citizens at large. See, e.g., O'Connor v. Ortega, 480 U.S. 709, 721-722, 107 S.Ct. 1492, 94 L.Ed.2d 714. The relevant precedent establishes two main principles: First, government employees do not lose their constitutional rights when they go to work, but those rights must be balanced against the realities of the employment context. See, e.g., id., at 721. Second, in striking the appropriate balance, the Court considers whether the claimed employee right implicates the relevant constitutional provision's basic concerns, or whether the right can more readily give way to the requirements of the government as employer. See, e.g., Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708."

The heart of the Court's equal protection jurisprudence, however, has been concerned with classes of people and with actions of government that affect some groups of citizens differently than others. The 2000 Olech case, on which the plaintiff leaned, did talk about a "class-of-one" equal protection claim, but, as the Court explains:

"Olech did recognize that a class-of-one equal protection claim can in some circumstances be sustained. Its recognition of that theory, however, was not so much a departure from the principle that the Equal Protection Clause is concerned with arbitrary government classification, as it was an application of that principle to the facts in that case: The government singled Olech out with regard to its regulation of property, and the cases upon which the Court relied concerned property assessment and taxation schemes that were applied in a singular way to particular citizens. What seems to have been significant in Olech and the cited cases was the existence of a clear standard against which departures, even for a single plaintiff, could be readily assessed. This differential treatment raised a concern of arbitrary classification, and therefore required that the State provide a rational basis for it. There are some forms of state action, however, which by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments. In such cases treating like individuals differently is an accepted consequence of the discretion granted to governmental officials. This principle applies most clearly in the employment context, where decisions are often subjective and individualized, resting on a wide array of factors that are difficult to articulate and quantify. Unlike the context of arm's-length regulation, such as in Olech, treating seemingly similarly situated individuals differently in the employment context is par for the course. It is no proper challenge to what in its nature is a subjective and individualized decision that it was subjective and individualized. That the Court has never found the Equal Protection Clause implicated in this area is not surprising, given the historical understanding of the at-will nature of government employment. See, e.g., Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 896, 81 S.Ct. 1743, 6 L.Ed.2d 1230. Recognition of a claim that the State treated an employee differently from others for a bad reason, or for no reason at all, is simply contrary to the at-will concept. The Constitution does not require repudiating that familiar doctrine. Finally, the Court is guided, as in the past, by the “common-sense realization that government offices could not function if every employment decision became a constitutional matter.” Connick, supra, at 143. If class-of-one claims were recognized in the employment context, any personnel action in which a wronged employee can conjure up a claim of differential treatment would suddenly become the basis for a federal constitutional claim. The Equal Protection Clause does not require “[t]his displacement of managerial discretion by judicial supervision.” Garcetti v. Ceballos, 547 U.S. 410, 423, 126 S.Ct. 1951, 164 L.Ed.2d 689."

The dissent would have read Olech more broadly. As Justice Stevens said:

"Nor did the outcome in Olech turn on the fact that the Village was discriminating against a property owner rather than an employee. The majority does not dispute that the strictures of the Equal Protection Clause apply to the States in their role as employers as well as regulators. See ante, at 5 . And indeed, we have made clear that “the Equal Protection and Due Process Clauses of the Fourteenth Amendment, and other provisions of the Federal Constitution afford protection to employees who serve the government as well as to those who are served by them, and § 1983 provides a cause of action for all citizens injured by an abridgment of those protections.” Collins v. Harker Heights, 503 U.S. 115, 119-120, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)."

The dissent would rather have used a "scalpel" to confine the so-called "class of one" claims to cases involving a complete absence of any conceivable rational basis for the adverse action. Instead, the majority used a "meat axe" to fashion an unnecessarily broad rule that "tolerates arbitrary and irrational decisions in the employment context."

The only thing that I am not sure about is whether the case would have to be sent back, not from the Supreme Court, but from the Ninth Circuit to the District Court to see if the claim eliminated by the Ninth Circuit and affirmed by the Supremes means that Engquist's recovery would be less than awarded her at trial....

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