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Transfer triggered due process rights
June 30, 2008 by Ross Runkel at LawMemo
Thompson sued the employer for violation of his First Amendment free speech rights and of his Fifth Amendment due process rights. The trial court granted the employer's motion for judgment on the pleadings. The DC Circuit affirmed in part and reversed in part.
Thompson v. District of Columbia (DC Cir 06/27/2008)
The court held that Thompson's complaints to Lottery Board officials about corruption were made pursuant to his official job duties and thus the employer did not violate his First Amendment rights by sanctioning him for his speech.
The court held that when an employer attempted to get rid of an employee by transferring him from a career service position to a job scheduled for imminent elimination pursuant to an otherwise legitimate reduction-in-force (RIF), the employee was constructively removed from the service at the time of the transfer.
The court explained that an employee's right to due process was triggered at the time of the pretextual action, in this case, at the time of the transfer to the doomed position.
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No "class-of-one" equal protection for public employees
June 09, 2008 by Ross Runkel at LawMemo
Engquist v. Oregon Dept of Agriculture (US Supreme Court 06/09/2008)
Official syllabus:
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, 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.
Held: The class-of-one theory of equal protection does not apply in the public employment context.
(a) 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. 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. 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.
(b) The Court’s equal protection jurisprudence has typically been concerned with governmental classifications that “affect some groups of citizens differently than others.” McGowan v. Maryland, 366 U. S. 420, 425. 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. 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.
478 F. 3d 985 [9th Cir 02/08/2007], affirmed.
ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, BREYER, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, in which SOUTER and GINSBURG, JJ., joined.
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PDA extends to abortions
June 01, 2008 by Ross Runkel at LawMemo
The 3rd Circuit holds that the Pregnancy Discrimination Act (PDA), a part of Title VII, prohibits discrimination due to having an abortion.
Doe v. C.A.R.S. Protection (3rd Cir 05/30/2008)
Doe sued the employer for violation of Title VII as amended by the Pregnancy Discrimination Act (PDA) alleging wrongful discharge because of a surgical abortion.
The employer claimed the discharge was because Doe abandoned her job.
The trial court granted the employer’s motion for summary judgment. The 3rd Circuit reversed.
Relying on the legislative history of the PDA, the Equal Employment Opportunity Commission’s guidelines, and the 6th Circuit holding that an employer could not discriminate against a woman employee because she had an abortion (Turic v. Holland Hospitality, Inc., 85 F3d 1211 (1996)), the court held that the term “related medical condition” in the PDA included an abortion.
The court modified the first element of a prima facie case for disparate treatment requiring the employee to establish that she was pregnant and the employer knew it.
The three working days between notifying the employer that she would have to undergo an abortion and the discharge met the prima facie burden as to the causal connection element.
The court stated the record refuted the trial court’s conclusion that Doe presented no evidence from which a reasonable jury could disbelieve the employer’s reason for discharging her for abandoning her job.
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