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"Class of one" theory rejected for public employment decisions
February 08, 2007 by Ross Runkel at LawMemo
The ("liberal") 9th Circuit today rejected a legal theory that many other circuits have adopted. It's the class-of-one idea that you can win an equal protection case even though you're not claiming to be in a multi-member class such as is involved in race and sex discrimination.
Engquist v. Oregon Dept of Agriculture (9th Cir 02/08/2007) (2-1 vote).
Enquist was laid off from her state job. She sued her public employer under several theories and won a jury verdict based on two constitutional theories and on intentional interference with contract. The 9th Circuit reversed on the equal protection claim.
Equal protection for a class of one? No.
The jury found liability under the equal protection clause because the defendants "intentionally treat[ed] the plaintiff differently than others similarly situated with respect to the denial of her promotion, termination of her employment, or denial of bumping rights without any rational basis and solely for arbitrary, vindictive, or malicious reasons." This was done on a theory that Engquist was a "class of one."
The 9th Circuit held, as a matter of first impression, that a class-of-one theory is not applicable to public employees. Following Village of Willowbrook v. Olech, 528 US 562 (2000), the 9th Circuit has applied the class of one theory to regulatory land use cases, and other Circuits have applied it to public employment decisions.
The court concluded that the rights of public employees are not as broad as the rights of ordinary citizens, the need for review under equal protection analysis is "thin" due to other legal protections enjoyed by public employees, and "prohibiting arbitrary public employer actions would also upset long-standing personnel practices."
Substantive due process? Yes, but not proved.
The jury also found liability under substantive due process, for "arbitrary and unreasonable government actions causing plaintiff to be unable to pursue her profession." The court held that this stated a valid claim, but that Engquist's claim failed for insufficient evidence.
Mandatory sharing of punitive damages with the state? Yes.
An Oregon statute allocates 60 percent of punitive damages awards to a state fund. The court held that this did not violate the 5th amendment's takings clause or the 8th amendment's excessive fines clause.
And one judge dissented:
The DISSENT would hold that the class-of-one theory applies to public employment decisions, noting that the majority's decision creates an inter-circuit conflict, is at odds with Supreme Court precedent, and is not supported by the policy concerns raised by the majority.
My view: Interesting to see the 9th Circuit bucking the trend of the other circuits, especially in a pro-employer way. Perhaps this case will go to the Supreme Court and give that Court a chance to affirm the 9th Circuit for once.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
