Surgery or Butchery? Engquist v. Oregon, Class-of- One Equal Protection, and the Shift to Categorical Treatment of Public Employees' Constitutional Claims

• Author: Matthew C. Juneau
• Pages: 314-351

The author thanks Professor William R. Corbett for lending his expertise in the area of employment law and for providing invaluable guidance, insight, and support throughout the writing of this paper. The author also thanks Professor Paul R. Baier for his scrutiny of the constitutional issues in this paper and for his comments and suggestions.

"Even if some surgery were truly necessary to prevent governments from being forced to defend a multitude of equal protection 'class of one' claims, the Court should use a scalpel rather than a meat-axe."¹

Page 314

I Prelude: The Case Of Eva Ciechon

A career paramedic employed by the City of Chicago, Ms. Ciechon was called to her shift fourteen hours early during the record-setting Chicago Blizzard of 1979.² While on her twenty- seventh call during her twenty-seventh hour of work, Ms. Ciechon and a fellow paramedic were treating an elderly man at his home.³The man was short of breath after chipping ice and shoveling snow.⁴ He refused to be taken to the hospital but demanded that oxygen be administered to him.⁵ Through her initial questioning of the patient, Ms. Ciechon determined that he had a prior condition, a collapsed lung, which made the administration of oxygen outside of a controlled medical environment a dangerous, perhaps life- threatening, proposition.⁶ After unsuccessfully pleading with the Page 315 patient to accept hospital treatment, Ms. Ciechon and her colleague left the scene.⁷ Soon thereafter the patient died.⁸ His family, understandably distraught, had the city conduct an investigation into the incident.⁹ Ms. Ciechon boasted a spotless record and three years of experience.¹⁰ Yet, it was she, and she alone, who was terminated from employment.¹¹ Although not a member of any class traditionally protected under the Fourteenth Amendment,¹²Ms. Ciechon was vindicated by the Seventh Circuit Court of Appeals on equal protection grounds.¹³ The court expressed disbelief "that a three-year career paramedic with a theretofore unblemished record would be discharged for a single incident of alleged improper conduct."¹⁴ It concluded:

In this case the family's grief was expressed in pointless vengeance and, in view of media and family pressure, the official investigation was single-mindedly and intentionally directed to ruining the career of one, but only one, of the . . . employees involved in this unfortunate incident. Because of these two factors, we have no difficulty in finding [a violation] of . . . equal protection.¹⁵

As an employee of the city of Chicago, Ms. Ciechon enjoyed the protection of the Constitution from the adverse employment action taken against her.¹⁶ Today, however, the same right that she relied upon is no longer available to public employees subjected to similar mistreatment.

In 2008, the United States Supreme Court's opinion in Engquist v. Oregon Department of Agriculture substantially altered the law of the Equal Protection Clause in the public employment context.¹⁷ Post-Engquist, plaintiffs like Ms. Ciechon are denied the right to assert equal protection claims when they cannot allege Page 316 class-based discrimination.¹⁸ Even if public employees are treated differently from their coworkers for arbitrary and malicious reasons, the Equal Protection Clause is unavailable to them under the class-of-one theory.¹⁹

II Introduction: Constitutional Rights In The Public Employment Context

A state's citizens wield a wider constitutional shield than its employees. The United States Supreme Court has long held that "[t]he government as employer indeed has far broader powers than does the government as sovereign."²⁰ On this basis, the Court has concluded that "government has significantly greater leeway in its dealings with citizen employees than it does when it brings its sovereign power to bear on citizens at large."²¹

Although these principles are well established, the Court recently employed the constitutional wiggle-room it affords government employers to effect a significant change in public employment law. First, in the 2006 case of Garcetti v. Ceballos, the Court held that "when public employees make statements pursuant to their official duties . . . the Constitution does not insulate their communications from employer discipline."²²Essentially, the First Amendment no longer shields speech in the public employment context conducted as part of an employee's job. This per se rule is a significant departure from the Court's prior First Amendment jurisprudence. In prior cases, a balancing approach was employed to determine whether a public employee should be afforded First Amendment protection.²³ In the 2008 case Page 317 of Engquist v. Oregon, the Court again categorically denied public employees the right to assert a constitutional claim, holding the class-of-one theory of equal protection inapplicable in the public employment context.²⁴ On its face, this shift in the treatment of public employees' constitutional claims is indicative of the current Court's legal philosophy with respect to these types of cases.²⁵However, the movement from a balancing approach to a categorical approach also signals the Court's desire to effect a change in judicial process for public employees' constitutional claims in general. This development has altered the distinctive nature of public employment, making it more similar to its private sector counterpart.

The rationales set forth in Engquist and Garcetti reflect that the shift to categorical treatment of public employees' constitutional claims was motivated by two major concerns. In Garcetti, the Court feared the "displacement of managerial discretion with judicial supervision."²⁶ In Engquist, the Court echoed this concern in support of a related, but not identical, apprehension.²⁷ It was feared that the entanglement of the federal judiciary in discretionary employment matters would lead to a flood of litigation.²⁸ Both of these rationales deserve skepticism and scrutiny.

The Court's new per se approach to public employees' constitutional claims has been criticized in the First Amendment context as a harmful departure from prior law that could "fail to advance-and may even harm-the important interests at stake."²⁹Concern regarding the displacement of managerial discretion with judicial supervision seems a "slender reed"³⁰ upon which to base such a significant change in the law. With respect to class-of-one equal protection claims, the unsubstantiated fear of a potential Page 318 flood of constitutional litigation in the public employment context also appears to be a flimsy justification for the categorical denial of such claims. One commentator has advanced the view that:

Concerns about floodgates are not unreasonable from a practical point of view, but they are an unprincipled reason for completely excising some instances of unequal treatment from the [Equal Protection Clause's] purview . . . . [T]he need remains for some principle to distinguish between judicially-cognizable claims and government action that does not implicate equal protection.³¹

It is ironic that a constitutional right has been denied to public employees based on the potential that too many of them might invoke its protection.

In his dissent in Engquist, Justice Stevens criticized the majority's rule as being "based upon speculation about inapt hypothetical cases."³² Indeed, the Court offered no concrete support for its assertion that the class-of-one theory's application in the public employment context would cause a flood of litigation. The denial of these claims in this area is too harsh because it eliminates what could be the only viable remedy for a certain set of plaintiffs. Further, the Court's dual rationale for that denial is flawed. First, the Court erred by applying principles to the public employment context that are more closely related to private employment. Second, the Court failed to substantiate its flood concern with actual cases. The implications of the shift to categorical treatment of public employees' constitutional claims not only include the alteration of the judicial process with respect to these cases, but also encompass the erosion of the distinguishing traits of public employment through the misplaced application of private employment law principles.

This Comment will address the concerns...