Mixed motives speak in different tongues: doctrine, discourse, and judicial function in class-of-one equal protection theory.

Author:Hagen, Alex M.
Position:IV. Charting a New Course by Founding a Different Discourse through VI. Conclusion: Two Paths for the Class-of-One Theory, Two Roles for Judges, with footnotes, p. 226-249
 
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  1. CHARTING A NEW COURSE BY FOUNDING A DIFFERENT DISCOURSE

    Engquist holds that the class-of-one claim makes a "poor fit" in the employment context and therefore will not be recognized therein. (155) Read strictly, it stands for the proposition that the government, in its role as employer, should not be subjected to class-of-one claims to which private employers are not subjected. (156) Engquist was not so narrowly written, nor was it intended to be so narrowly read. Roberts's use of broad, amorphous concepts extends his analysis beyond the strict confines of the holding, (157) but this should not be thought of as analytic oversight or a result of fuzzy thinking. (158)

    To the contrary, the opinion's overreaching is purposeful, the concepts driving its analysis are broad-gauged and open-ended for good reason, and the formalist leaps that Roberts undertakes are made in service of an expedient end. (159) To fault Engquist for failing to achieve analytic precision is, as Roberts said in a different setting, "somewhat like criticizing a person for speaking awful French, only to discover that he was in fact speaking fluent Spanish." (160) The analysis in Engquist is intended to inaugurate a different conception of how the judiciary should approach class-of-one litigation. Rather than sounding the merits of a particular claim, it asks about the nature of the public action that is under challenge. It invites the question: in what other contexts should discretionary decisions of public officials that allegedly single out a citizen for differential treatment be shielded from the Equal Protection Clause? Engquist is evocative and aspirational in providing lower courts with a discourse and vocabulary with which to tackle this question.

    In the process, Roberts establishes a number of substantive themes that will likely reverberate in the continued development of the class-of-one doctrine. Roberts takes personnel decisions in the public employment context to be a species of a larger class of government actions whose defining feature is the subjective, discretionary nature of the decision-making process. Rather than try to integrate the defendant's subjective intent into the class-of-one analysis, he concluded that the inscrutability of subjective intent counsels limited recognition of the cause of action. He stakes out a claim for a categorical approach that would foreclose class-of-one challenges to certain forms of discretionary action. In elaborating this framework, Roberts flirts with the notion that there is something intrinsic to a discretionary decision that makes it incompatible with the idea of equal protection altogether. (161)

    1. FACTUAL AND PROCEDURAL BACKGROUND

      In 1992, Norma Corristan hired Anup Engquist, the plaintiff-petitioner, to work as an international food standard specialist at a laboratory within the Oregon Department of Agriculture ("ODA"). (162) While working at the lab, Engquist complained to Corristan about the conduct of Joseph Hyatt, another ODA employee who allegedly made false statements about Engquist and generally made her life difficult. (163) Corristan had Hyatt attend diversity and anger management training. (164)

      In 2001, John Szczepanski, an assistant director at ODA, assumed supervision of Corristan, Hyatt, and Engquist. (165) Szczepanski disparaged Engquist and Corristan and intimated to a client that they "would be gotten rid of." (166) When a managerial position opened up, Engquist and Hyatt each applied. (167) Szczepanski chose Hyatt despite Engquist's greater experience. (168) That same year, during budget cuts, Szczepanski eliminated Corristan's position. (169) He cut Engquist's position in January 2002. (170) Faced with "bumping" to another position or being demoted, Engquist found that she was unqualified for lateral transfer to a position at her level and declined a demotion. (171)

      Corristan brought suit in state court and was awarded $1.1 million in damages. (172) Engquist brought suit in federal court, alleging that ODA, Hyatt, and Szczepanski had violated state law, federal antidiscrimination statutes, and both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. (173) She alleged that she had been discriminated against on the basis of race, sex, and national origin in violation of the Equal Protection Clause, and also stated a class-of-one claim, alleging that she had been fired for "arbitrary, vindictive, and malicious reasons." (174)

      The District Court granted summary judgment on some claims and the case proceeded to trial on others, including the class-of-one claim. (175) The District Court reasoned that the class-of-one claim was legally viable and that

      Engquist could succeed on that theory if she could prove "that she was singled out as a result of animosity on the part of Hyatt and Szczepanski"--i.e., "that their actions were spiteful efforts to punish her for reasons unrelated to any legitimate state objective" --and if she could demonstrate, on the basis of that animosity, that "she was treated differently than others who were similarly situated." (176) At trial, the jury rendered judgment for Engquist on the class-of-one claim and several other claims and awarded her $175,000 in compensatory damages and $250,000 in punitive damages. (177)

      The defendants appealed from that judgment, and the Ninth Circuit reversed in relevant part, concluding that Engquist's constitutional claims were invalid as a matter of law and holding that "the class-of-one theory of equal protection is inapplicable to decisions made by public employers with regard to their employees." (178) Engquist petitioned for certiorari, which the Supreme Court granted, and the majority, led by Chief Justice Roberts, upheld the Ninth Circuit's reversal. (179)

    2. DOWN A DIFFERENT ANALYTIC PATH

      Roberts begins with the unassuming proposition that the Government has broader powers in its role as employer than in its role as regulator. From this, Roberts draws two main principles: first, the individual rights of employees "must be balanced against the realities of the employment context." (180) Second, "in striking the appropriate balance," the Court must "consider whether the asserted employee right implicates the basic concerns of the relevant constitutional provision, or whether the claimed right can more readily give way to the requirements of the government as employer." (181) The balancing permits the Court to weigh two mutually exclusive values--government autonomy as against individual rights--and emphasizes the "realities of the employment context" as a reason why primacy may be given to government autonomy. Whether such primacy should be given turns on whether the claims at issue strike at the core of a constitutional provision or sit at its periphery. As a practical matter, the balancing test runs in one direction, so as to devalue the significance of employees' rights.

      In trying to locate Engquist's claim on the spectrum of equal protection, Roberts begins by reclaiming Olech--the only extant Supreme Court class-of-one precedent--in terms more amenable to traditional equal protection analysis. "What seems to have been significant in Olech and the cases on which it relied[,]" according to Roberts,

      was the existence of a clear standard against which departures, even for a single plaintiff, could be readily assessed. There was no indication in Olech that the zoning board was exercising discretionary authority based on subjective, individualized determinations--at least not with regard to easement length, however typical such determinations may be as a general zoning matter. Rather, the complaint alleged that the board consistently required only a 15-foot easement, but subjected Olech to a 33-foot easement. This differential treatment raised a concern of arbitrary classification, and we therefore required that the State provide a rational basis for it. (182) Roberts defines "arbitrary classification" as an inexplicable deviation from a clear standard, which can be helpfully contrasted with differential treatment stemming from "subjective, individualized determinations." The former gets at a "basic concern" of the equal protection claim, whereas the latter is more peripheral.

      Later in the opinion, Roberts specifies that "recognition of a class-of-one theory of equal protection in the public employment context--that is, 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 concept of at-will employment." (183) Consistent with the balancing test, class-of-one claims cannot be reconciled with public at-will employment and must give way to the requirements of the government as employer, including the right to exercise autonomy in making personnel decision. Roberts was not content to end there, but instead asked and then tried to answer a question that was much more abstract and consequential: should judges be scrutinizing public officials' discretionary decisions that are not alleged to be based on impermissible classifications in the first place?

      Some have taken the answer Roberts sketched out to forecast a new faultline in constitutional law and the exercise of judicial review. (184) The easiest entrance point into his analysis comes in his attempt to identify the constitutive features of decisions that class-of-one litigation might call into question. He asserts that

      [t]here 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 the rule that people should be "treated alike, under like circumstances and conditions" is not violated when one person is treated differently from others, because treating like individuals differently is an accepted consequence of the discretion granted. In such situations, allowing a challenge based on the arbitrary singling out of a...

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