U.S. SUPREME COURT
High Court Rules “Class of One” Theory Does Not Apply in Public Employment

In Engquist v. Oregon Department of Agriculture, 128 S.Ct. 2146 (2008), the Supreme Court considered whether the Equal Protection Clause prohibited a government employer from intentionally treating an employee differently from similarly situated employees without a rational basis to do so. Specifically, the issue was whether a public employee could allege an equal protection claim where the allegation was not that class-based discrimination occurred, but instead that she was irrationally singled out as a so-called “class of one.”

On June 9th, the Supreme Court handed down its 6-3 decision, holding that the class-of-one theory of equal protection does not apply in the public employment context. Justices Scalia, Kennedy, Thomas, Breyer and Alito joined Chief Justice John Roberts’ majority opinion, while Justices Ginsburg and Souter signed on to Justice Stevens’ dissent.

Anup Engquist, an employee with the Oregon Department of Agriculture (ODA), alleged that her supervisor repeatedly harassed her which affected her job performance. After more alleged harassment, the ODA terminated
Engquist, citing budget cuts as the reason. Engquist’s complaint contended that there was no credible or rational justification for dismissing her rather than others in the department.

Applied to school districts, the Engquist decision essentially adopted the reasoning of the National School Boards Association, which argued in its amicus brief, “…already-strapped school districts [need to] spend their limited resources on the education of students, not additional litigation, when ample school district employee protections already exist.” Brief of Amicus Curiae National School Boards Association in Support of Respondents, 2008 WL 838360 at *29-30 (2008).

If the Court had recognized the judicial “class of one” equal protection remedy, it could have allowed any public school employee subject to a disciplinary action to claim an equal protection grievance, a sobering prospect for school districts.

Justice Roberts’ opinion made clear that the Court believed an appropriate balance between worker rights and efficient delivery of public services such as education has already been struck, and that more protections for employees would be redundant, creating inefficiencies and additional expense. See Engquist, 128 S.Ct. 2146 at 2156.

In December 2002, Engquist brought suit in federal court, asserting an equal protection claim that she was mistreated and fired “for arbitrary, vindictive, and malicious” reasons.

Engquist, at 2148, (quoting Petitioner’s Brief, 2008 WL 1721900 at *1). The district court denied the ODA’s motion for summary judgment as to the equal protection claim, holding that Engquist could maintain a class-of-one claim by showing “that [respondents’] actions were spiteful efforts to punish her for reasons unrelated to any legitimate state objective.” Engquist v. Oregon Dept. of Agric., 2004 WL 2066748 at *5 (2004). Moreover, the court continued, “[a]s with any equal protection claim, plaintiff must also demonstrate that she was treated differently than others who were similarly situated.” Id. (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)). At trial, the jury returned a verdict for Engquist on her class-of-one claim. Engquist v. Oregon Dept. of Agric., 2005 WL 711652 at *1 (2005).

The 9th Circuit reversed, holding that “the class-of-one equal protection theory is not applicable to decisions made by public employers.” Engquist v. Oregon Dept. of Agric., 478 F.3d 985, 992 (9th Cir. 2007). In doing so, it provided the basis for the Supreme Court’s eventual logic, distinguishing between the government’s actions as sovereign and its role as employer. The decision focused on efficiency, suggesting that allowing a class-of-one claim in the public employment context would “upset long-standing personnel practices,” because “[t]he power of employers to discharge employees for reasons that may appear arbitrary, unless constrained by contract or statute, is well-established under the common law of at-will employment.” Engquist, 478 F.3d at 995 (citing NLRB v. J. Weingarten, Inc., 420 U.S. 251, 273-74, 95 S.Ct. 959, 43 L.Ed.2d 171 (1975); Andrews v. Louisville & Nashville R.R., 406 U.S. 320, 324, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972)).

In affirming the 9th Circuit’s decision, the Supreme Court’s opinion compared the balancing of interests in the employment context to First Amendment cases concerning speech by public employees. While noting “…government employees do not lose their constitutional rights when they go to work,” Roberts asserted “…those rights must be balanced against the realities of the employment context.” Engquist, at 2147 (citing O’Connor v. Ortega, 480 U.S. 709, 721, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987)).

Justice Roberts’ opinion began by recognizing the Court’s previous stance that, when the government acts as an employer, it has “far broader powers than [it] does…as sovereign.” Engquist, at 2151 (2008) (quoting Waters v. Churchill, 511 U.S. 661, 671, 114 S.Ct. 1878, 128 L.Ed. 2d 1230 (1994)). Moreover, the opinion went on to emphasize that the government has an obligation to be effective and efficient, especially “when it acts as employer.” Id. (quoting Waters, at 675).

Referring to “the ‘common sense realization that government offices could not function if every employment decision became a constitutional matter,’” Roberts noted “a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.” Engquist, 128 S.Ct. 2146 at 2151-2 (quoting Connick v. Myers, 461 U.S. 138,143-47, 103 S.Ct. 1684, 75 L.Ed. 2d 708 (1983)). As an employer, the government requires more latitude in making its personnel decisions than a stricter review would allow. The appropriate balance, Roberts reasoned, is reached by considering if “the asserted employee right” implicates basic constitutional provisions, or “whether the claimed right can more readily give way to the requirements of the government as employer.” Engquist, at 2152.

As stated in the Court’s opinion, the issue accepted for review was “whether a public employee can state a claim under the Equal Protection Clause by alleging that she was arbitrarily treated differently from other similarly situated employees, with no assertion that the different treatment was based on the employee’s membership in any particular class.” Engquist’s brief argued that traditional equal protection “rational basis” analysis under Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073 (2000) should apply to public employers. Petitioner’s Brief, 2008 WL 1721900 at *4.

Olech, a property owner, had asked her municipality to connect her property to the municipal water supply. Previously, the village had required a 15-foot easement from other property owners seeking access to the water supply, however, the village required Olech to grant a 33-foot easement. Olech’s suit claimed that the village’s requirement of an easement 18 feet longer than the norm violated the Equal Protection Clause. The Supreme Court held that Olech’s claim was valid because it alleged that she had “been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073 (2000).

The Olech standard for a successful class-of-one challenge contains three requirements: (1) that the government treated the employee differently from similarly situated persons; (2) the difference in treatment was intentional; and (3) the difference was not rationally related to any legitimate government purpose. Olech, 528 U.S. 562,564 (citing Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 43 S.Ct. 190, 67 L.Ed. 340 (1923); Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty., 488 U.S. 336, 109 S.Ct. 633, 102 L.Ed.2d 688 (1989)).

In Engquist, the Court rejected Engquist’s argument that Olech opened the door to class-of-one claims in the public employment context, reasoning that “treat[ing] employees differently is not to classify them in a way that raises equal protection concerns.” Engquist, 128 S.Ct. at 2155. Instead, it is an “exercise [of the] the broad discretion that typically characterizes the employer-employee relationship.” Id.

The Court construed Olech’s reach narrowly, noting that it was “not . . . a departure from the principle that the Equal Protection Clause is concerned with arbitrary government classification.” Engquist, at 2153. Application of the class-of-one theory to the public employment context would be “simply a poor fit…” and, therefore, Olech did not extend to government decisions regarding public employment. Id. at 2155.

Justice Stevens’ dissent suggested that the majority’s holding “creates a new substantive rule excepting state employees from the Fourteenth Amendment’s protection against unequal and irrational treatment at the hands of the State.” Id. at 2158. The Olech holding, according to the dissenting justices, rested “solely” on “the absence of a rational basis for the discrimination.” Id. Therefore, Engquist’s claim that her treatment was arbitrary and irrational was sufficient to state a constitutional claim.

Further, the dissent argued the majority overstated the potential for abuse of a class-of-one protection because “there is a clear distinction between an exercise of discretion and an arbitrary decision.” Id. at 2159. Only a truly arbitrary decision – one unsupported by any rational basis – would support an equal protection claim. Id.