From the same court that cabined public employees’ First Amendment rights in Garcetti v. Ceballos, 547 U. S. 410 (2006), the Supreme Court now holds — 6 to 3 — that the recently-minted “class of one” equal protection doctrine does not extend to claims concerning adverse action in public employment.
Engquist v. Oregon Dept. of Agriculture, No. 07-474 (U.S. June 9, 2008) mirrors the imperative in Garcetti to weigh the application of generalized constitutional doctrines in the specific setting of the public workplace. In Garcetti, the employee’s right to speak out on matters of public interest (Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968)) was curtailed — 5 to 4 — by the Court in cases where the communications took place in the course of employment.
The present case involved a termination that the employee characterized as arbitrary and hence challenged as a violation of equal protection under Village of Willowbrook v. Olech, 528 U. S. 562 (2000). She was denied a promotion and later terminated by managers whom she claimed harbored personal animosity against her and then retaliated when she went over their heads to complain. One can see the problem here at once: Pickering could not apply (no matter of public interest under the First Amendment), but with one door closed might another one (Equal Protection) swing open even wider?
The Garcetti majority, joined by Justice Breyer, affirmed the Ninth Circuit’s 2-1 decision below holding that citizens’ rights in Olech stop at the village job-applicant window. Writes Chief Justice Roberts, “we have often recognized that government has significantly greater leeway initial dealings with citizen employees than it does when it brings its sovereign power to bear on citizens at large.” The majority points to instances where it has previously excused warrantless searches of public office space and imposed a balancing test in First Amendment cases (in Pickering). The majority summarizes:
“Our precedent in the public-employee context therefore establishes two main principles: First, although government employees do not lose their constitutional rights when they accept their positions, those rights must be balanced against the realities of the employment context. Second, in striking the appropriate balance, we 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.”
The Olech case involved a property-use dispute: the village had wanted the property owner (who applied to connect to the municipal water supply) to give the village a 33-foot easement instead of the ordinary 15-foot easement required of others. The court held that the property owner stated a claim where the village government deviated from an objective norm, to the detriment of the property owner, without an individualized determination or other stated rationale. On the other hand, the court observed that there are circumstances (public employment among them) where subjective judgment calls must often be made:
“There are some forms of state action, however, which by their nature involve discretionary decision making 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 particular person would undermine the very discretion that such state officials are entrusted to exercise.”
The opinion here makes (uncredited) use of Judge Richard Posner’s Equal Protection hypothetical in Bell v. Duperrault, 367 F.3d 703, 712 (7th Cir. 2004) (Posner, J., concurring), of the traffic cop’s decision to ticket one particular speeding car while ignoring other cars traveling at similar speeds (which is evocative, but doesn’t really have much to do with employment, as the dissent demonstrates).
Finally, the majority arrives at the practical answer that public employees already enjoy enough rights, and that public accountability demanded some latitude for managers in public agencies to manage. “Public employees typically have a variety of protections from just the sort of personnel actions about which Engquist complains, but the Equal Protection Clause is not one of them.”
Probably not one of the most consequential decisions in the employment field — unlike Garcetti, this decision does not upset widely-settled expectations — but another building block in the argument that public employees deserve no more protection than ordinary private-sector, at-will employees.