Argument preview: Engquist v. Oregon Department of Agriculture
In No. 07-474, Engquist v. Oregon Department of Agriculture, the Court will consider whether the Equal Protection Clause, and in particular the "class-of-one" doctrine, prohibits a government employer from intentionally treating an employee differently from similarly situated employees when it has no rational basis to do so. Petitioner Engquist argues that her class-of-one claim is permitted under Village of Willowbrook v. Olech (2000). Respondents "“ the Oregon Department of Agriculture (ODA) and two ODA officials "“ counter that Olech does not extend to government decisions regarding public employment, but that "“ at a minimum "“ the Court should cabin the doctrine's reach. Petitioner, however, contends that the standard elements of an equal protection claim, along with traditional rationality review, sufficiently limit the doctrine's reach.
Petitioner Anup Enquist was an employee at the Oregon Department of Agriculture (ODA), where she worked as an international food standards specialist. Engquist alleges that respondent Joseph Hyatt, who was hired a few years before her, made repeated attempts to harass her and to frustrate her job performance. In 2001, respondent John Szczepanski became the Assistant Director of ODA and promoted Hyatt to a supervisory position despite some indications that Engquist was more qualified. Szczepanski later justified Hyatt's promotion on the ground that Hyatt's previous business experience suggested he would be more capable of addressing the department's pressing financial challenges. Engquist asserts that Hyatt continued to harass her after assuming his new position as her supervisor. A few months after his promotion, Hyatt and Szczepanski fired Engquist, citing budget necessity; Engquist, however, alleges that there was no credible or rational justification for dismissing her rather than others in the department.
In December 2002, Engquist brought suit in federal court. As relevant here, her claims included an equal protection claim asserting that she had been mistreated and fired "for arbitrary, vindictive, and malicious reasons." The respondents filed a motion for summary judgment, which the district court denied as to the equal protection claim. Instead, it held, 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." 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." The case went to trial, and the jury returned a verdict for Engquist on her class-of-one claim.
On appeal, the Ninth Circuit reversed, holding that "the class-of-one equal protection theory is not applicable to decisions made by public employers." The majority drew a line between the government's actions as a sovereign and its actions as a proprietor managing its own affairs; in the latter arena, the panel explained, a class-of-one claim is impermissible. The majority emphasized that in the employment context the State has broad powers, and that "the scope of judicial review is correspondingly restricted." The court also suggested that recognizing a class-of-one claim in this 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." The majority went on to conclude that "[t]he class-of-one theory of equal protection is another constitutional area where the rights of public employees should not be as expansive as the rights of ordinary citizens."
Petition for Certiorari
Engquist filed a petition for certiorari on October 5, 2007. Although the petition presented two questions for review, the Court granted certiorari on only one: whether traditional equal protection "rational basis" analysis under Village of Willowbrook v. Olech (2000) applies to public employers who intentionally treat similarly situated employees differently with no rational bases for arbitrary, vindictive or malicious reasons.
Engquist argued that the petition should be granted because the Ninth Circuit's decision in the case conflicted with the decisions of seven other circuits. She further argued that the Ninth Circuit's concerns "“ viz., that a contrary ruling would undermine the tradition of at-will employment and constitutionalize too broad a range of state actions "“ were unfounded. Opposing certiorari, respondents acknowledged that the circuits were divided on the issue but disagreed that certiorari was warranted because, in their view, the conflicting circuits had not "given thoughtful consideration to this issue." Respondents suggested that the Ninth Circuit had correctly identified an important distinction between actions in which the government functions as a sovereign and those in which the government functions as an employer. To extend class-of-one equal protection claims to the latter arena, they argued, would risk constitutionalizing too broad a range of employment decisions.
The Court granted certiorari on January 11, 2008.
Engquist's merits brief begins by emphasizing that the Equal Protection Clause was originally intended to protect individual persons, not just classes. She then argues that application of traditional equal protection rational basis review to class-of-one claims limits potential government liability, thereby avoiding the Ninth Circuit's concerns about exposing state governments to excessive federal oversight.
Turning to the text of the clause, petitioner emphasizes its command that "[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws." Thus, she argues, application of the clause is not limited to certain classes and "does not exempt public employers from its command." Engquist then examines the history of the clause's ratification, along with early Supreme Court cases, attempting to underscore that the clause was originally understood to protect individuals. This history, argues Engquist, led "inexorably" to the holding in Olech, which recognized that equal protection claims could be brought by a "class of one." Given this history, she argues, recognition of class-of-one claims in the public employment context "adhere[s] to the long-established principle that the Equal Protection Clause applies to all forms of discrimination, whatever the context and whoever the actor." While recognizing that the clause will be applied differently in different contexts, petitioner urges that "regardless of how the Clause applies, it always applies."
Respondent ODA rejects this argument, suggesting instead that the "class-of-one theory in general is at the outskirts of the concerns that underlie the Equal Protection Clause . . . , and applying the theory in the context of decisions public employers make about their employees . . . distort[s] the clause and its application." ODA suggests that "any person" was not intended to be read literally, that the Supreme Court itself has recognized that the evidence regarding the circumstances surrounding the adoption of the Amendment are inconclusive, and that pre-Olech case law did not lead "inexorably" to recognition of class-of-one claims.
Engquist also argues that there is no reason to distinguish between government as regulator and government as employer. While recognizing the different considerations at play in various contexts, she argues that specific standards of pleading and proof, rather than a categorical ban, would best address the Ninth Circuit's concern that allowing class-of-one claims by government employees would interfere with government employment decisions. Moreover, she argues, although the government has an interest in efficiency in all its operations "“ employment and otherwise "“ that general interest need not completely eliminate constitutional protections. Even in the employment context, she argues, the Supreme Court has applied "the Constitution to public employers and address[ed] concerns unique to the employment setting by delineating the cause of action to take those concerns into account."
Specifically, Engquist asserts that the required elements of a typical equal protection violation will protect state governments from excessive litigation and liability. Olech itself outlines the three requirements of a successful suit: (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. These three requirements, argues petitioner, present a significant hurdle to any prospective plaintiff, and will ensure that run-of-the-mill government decisions are not subjected to constitutional scrutiny.
Respondents, however, argue that these requirements are not sufficient. As an initial matter, respondents assert that class-of-one claims in general should not be recognized in the public employment context. Failing that, they argue, simple rational basis review "applies awkwardly at best" to employment-related decisions. Because of the individualized focus of employment decisions, and the unavoidably subjective nature of such decisions, federal equal protection review would subject states to "unpredictable and subjective second-guessing." Instead, respondents urge the Court to impose a more demanding "similarly situated" requirement, which will both limit the broad range of variables that are at play in many employment decisions and reduce the subjectivity of a court's review of employment decisions. The Court can further protect run-of-the-mill employment decisions from review, respondents contend, by adopting a more restrained reasonability requirement, in which a plaintiff must prove that animus or ill-will is the only possible basis for the decision.