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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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No same-sex benefits for employees
February 07, 2007 by Ross Runkel at LawMemo
Public sector employees in Michigan can't get benefits for their same-sex partners. Why? Michigan’s “marriage amendment” prohibits public employers from recognizing same-sex unions for any purpose.
National Pride At Work v. Governor of Michigan (Michigan Ct App 02/01/2007).
In 2004, Michigan voters approved the “marriage amendment” to the Michigan Constitution. That amendment (set forth at Article I, section 25 of the Michigan Constitution) provides:
“To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.”
The court held that the marriage amendment, by its plain language, “prohibits public employers from recognizing same-sex unions for any purpose.”
More particularly, the court held that the marriage amendment prohibits public employers from
- entering into contractual agreements with their employees to provide domestic partner benefits; or
- voluntarily providing domestic partner benefits as a matter of policy.
The court reasoned that “[t]he operative language of the amendment plainly precludes the extension of benefits related to an employment contract, if the benefits are conditioned on or provided because of an agreement recognized as a marriage or similar union.”
The court also held that the marriage amendment does not violate the equal protection provision of the Michigan Constitution, since it “does not make arbitrary or invidious distinctions in furthering the legitimate governmental interests of the state.”
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Wal-Mart class action approved
February 06, 2007 by Ross Runkel at LawMemo
The 9th Circuit has approved a 1.5 million member class action in a Title VII case brought by current and former employees. Let the litigation begin.
The case: Dukes v. Wal-Mart (9th Cir 02/06/2007)
The capsule: Dukes and others sued claiming sex discrimination as to pay and managerial promotions in violation of Title VII. The trial court certified a class of all women employed at any Wal-Mart domestic retail store at any time since December 26, 1998 who have been or may be subjected to Wal-Mart's challenged pay and management track promotions policies and practices. The class concerns approximately 1.5 million women who worked at any of Wal-Mart's 3,400 stores, including part-time, full-time, entry-level, hourly, salaried, managerial. The 9th Circuit affirmed (2-1), using a highly deferential "abuse of discretion" standard of review.
The class was certified under Rule 23(a) and (b)(2).
Rule 23(a): There was no dispute as to the numerosity requirement. As to common questions of fact and law, the court found that there was significant evidence of corporate-wide practices and policies of excessive subjectivity in personnel decision and sexual stereotyping, statistical evidence of gender disparities, and anecdotal evidence of gender bias. The court found the claims to be typical even though the only class representative for managers holds a low level position. The court found adequate representation even though there are in-store managers who are both class members and decision-making agents of the employer.
Rule 23(b)(2): In order to qualify under Rule 23(b)(2), plaintiffs' claims for injunctive and declaratory relief must predominate over their claims for monetary relief. The court rejected the employer's argument that monetary claims predominate, saying that this issue turned on "plaintiffs' intent in bringing the suit."
Individualized hearings: The employer argued that it was entitled to an individualized hearing for each member's claim, based on case law, Title VII, the Civil Rights Act of 1991, 42 USC Section 1991a, and the due process clause. The court rejected these arguments, noting that some of them can be raised at the merits stage.
The DISSENT argued that the class lacks commonality and typicality. In addition, if the named plaintiffs were zealously represented, then their interests would diverge and require separate counsel. Finally, the dissent argued that both the Civil Rights Act of 1991 and the due process clause "require more individual justice than Wal-Mart will receive."
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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