Engquist v. Or. Dep't of Agric., 553 U.S. 591 (2008)

(a) There is a crucial difference between the government exercising “the power to regulate or license, as lawmaker,” and acting “as proprie tor, to manage [its] internal operation.” Cafeteria & Restaurant Work ers 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 constitu tional 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 constitu tional provision’s basic concerns, or whether the right can more readily p. 592give way to the requirements of the government as employer. See, e. g., Connick v. Myers, 461 U. S. 138. Pp. 597–600.

(b) The Court’s equal protection jurisprudence has typically been con cerned 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 assess ment and taxation schemes that were applied in a singular way to par ticular citizens. What seems to have been significant in Olech and the cited cases was the existence of a clear standard against which depar tures, even for a single plaintiff, could be readily assessed. This differ ential treatment raised a concern of arbitrary classification, and there fore required that the State provide a rational basis for it. There are some forms of state action, however, which by their nature involve dis cretionary decisionmaking based on a vast array of subjective, individu alized 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. Un like 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 Protec tion Clause implicated in this area is not surprising, given the historical understanding of the at-will nature of government employment. See, e. g., McElroy, supra, at 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 Constitu tion 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 be came 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 displace p. 593ment of managerial discretion by judicial supervision.” Garcetti v. Ceballos, 547 U. S. 410, 423. Pp. 601–609. 478 F. 3d 985, affirmed.

In 2001, John Szczepanski, an assistant director of ODA, assumed responsibility over ESC, supervising Corristan, Hyatt, and Engquist. Szczepanski told a client that he could not “control” Engquist, and that Engquist and Corristan “would be gotten rid of.” When Engquist and Hyatt both applied for a vacant managerial post within ESC, p. 595Szczepanski chose Hyatt despite Engquist’s greater experi ence in the relevant field. Later that year, during a round of across-the-board budget cuts in Oregon, Szczepanski elim inated Corristan’s position. Finally, on January 31, 2002, Engquist was informed that her position was being elimi nated because of reorganization. Engquist’s collective bargaining agreement gave her the opportunity either to “bump” to another position at her level, or to take a demo tion. She was found unqualified for the only other position at her level and declined a demotion, and was therefore effec tively laid off.

The District Court granted the respondents’ motion for summary judgment as to some of Engquist’s claims, but al lowed others to go forward, including each of the equal pro tection claims. As relevant to this case, the District Court found Engquist’s class-of-one equal protection claim legally viable, deciding that the class-of-one theory was fully appli cable in the employment context. Civ. No. 02–1637–AS (D Ore., Sept. 14, 2004), App. 49, 58, 2004 WL 2066748, *5. The court held 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 ac tions were spiteful efforts to punish her for reasons unre p. 596lated 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 situ ated.” Ibid.

Judge Reinhardt dissented, “agree[ing] with the other cir cuits that the class-of-one theory of equal protection is appli p. 597cable to public employment decisions.” Id., at 1010. We granted certiorari to resolve this disagreement in the lower courts, 552 U. S. 1136 (2008), and now affirm.

We do not quarrel with the premises of Engquist’s argu ment. It is well settled that the Equal Protection Clause “protect[s] persons, not groups,” Adarand Constructors, Inc. v. Pen˜ a, 515 U. S. 200, 227 (1995) (emphasis deleted), and that the Clause’s protections apply to administrative as well as legislative acts, see, e. g., Raymond v. Chicago Union Trac tion Co., 207 U. S. 20, 35–36 (1907). It is equally well settled that States do not escape the strictures of the Equal Protec tion Clause in their role as employers. See, e. g., New York City Transit Authority v. Beazer, 440 U. S. 568 (1979); Harrah Independent School Dist. v. Martin, 440 U. S. 194 p. 598(1979) (per curiam); Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307 (1976) (per curiam). We do not, how ever, agree that Engquist’s conclusion follows from these premises. Our traditional view of the core concern of the Equal Protection Clause as a shield against arbitrary classi fications, combined with unique considerations applicable when the government acts as employer as opposed to sover eign, lead us to conclude that the class-of-one theory of equal protection does not apply in the public employment context.

We have long held the view that there is a crucial differ ence, with respect to constitutional analysis, between the government exercising “the power to regulate or license, as lawmaker,” and the government acting “as proprietor, to manage [its] internal operation.” Cafeteria & Restaurant Workers v. McElroy, 367 U. S. 886, 896 (1961). This distinc tion has been particularly clear in our review of state action in the context of public employment. Thus, “the govern ment as employer indeed has far broader powers than does the government as sovereign.” Waters v. Churchill, 511 U. S. 661, 671 (1994) (plurality opinion). “[T]he extra power the government has in this area comes from the nature of the government’s mission as employer. Government agen cies are charged by law with doing particular tasks. Agen cies hire employees to help do those tasks as effectively and efficiently as possible.” Id., at 674–675. See also Connick v. Myers, 461 U. S. 138, 150–151 (1983) (explaining that the government has a legitimate interest “in ‘promot[ing] effi ciency and integrity in the discharge of official duties, and [in] maintain[ing] proper discipline in the public service’ ” (quoting Ex parte Curtis, 106 U. S. 371, 373 (1882); alter ations in original)). “The government’s interest in achiev ing its goals as effectively and efficiently as possible is ele vated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer.” p. 599Waters, supra, at 675 (plurality opinion). Given the “common-sense realization that government offices could not function if every employment decision became a constitu tional matter,” Connick, supra, at 143, “constitutional re view of government employment decisions must rest on dif ferent principles than review of . . . restraints imposed by the government as sovereign,” Waters, supra, at 674 (plural ity opinion).

Our public employee speech cases are particularly instruc tive. In Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968), we ex plained that, in analyzing a claim that a public employee was deprived of First Amendment rights by her employer, we must seek “a balance between the interests of the [em ployee], as a citizen, in commenting upon matters of public p. 600concern and the interest of the State, as an employer, in pro moting the efficiency of the public services it performs through its employees.”

Engquist correctly argues, however, that we recognized in Olech that an equal protection claim can in some circum stances be sustained even if the plaintiff has not alleged class-based discrimination, but instead claims that she has been irrationally singled out as a so-called “class of one.” In Olech, a property owner had asked the village of Willow brook to connect her property to the municipal water supply. Although the village had required only a 15-foot easement from other property owners seeking access to the water sup ply, the village conditioned Olech’s connection on a grant of a 33-foot easement. Olech sued the village, claiming that the village’s requirement of an easement 18 feet longer than the norm violated the Equal Protection Clause. Although Olech had not alleged that the village had discriminated against her based on membership in an identifiable class, we held that her complaint stated a valid claim under the Equal Protection Clause because it alleged that she had “been in tentionally treated differently from others similarly situated and that there is no rational basis for the difference in treat ment.” 528 U. S., at 564 (citing Sioux City Bridge Co. v. p. 602Dakota County, 260 U. S. 441 (1923), and Allegheny Pitts burgh Coal Co. v. Commission of Webster Cty., 488 U. S. 336 (1989)).

What seems to have been significant in Olech and the cases on which it relied 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 p. 603determinations may be as a general zoning matter. See id., at 565 (Breyer, J., concurring in result). Rather, the com plaint 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 clas sification, and we therefore required that the State provide a rational basis for it.

Suppose, for example, that a traffic officer is stationed on a busy highway where people often drive above the speed limit, and there is no basis upon which to distinguish them. If the officer gives only one of those people a ticket, it may be good English to say that the officer has created a class of p. 604people that did not get speeding tickets, and a “class of one” that did. But assuming that it is in the nature of the par ticular government activity that not all speeders can be stopped and ticketed, complaining that one has been singled out for no reason does not invoke the fear of improper gov ernment classification. Such a complaint, rather, challenges the legitimacy of the underlying action itself—the decision to ticket speeders under such circumstances. Of course, an allegation that speeding tickets are given out on the basis of race or sex would state an equal protection claim, because such discriminatory classifications implicate basic equal pro tection concerns. But allowing an equal protection claim on the ground that a ticket was given to one person and not others, even if for no discernible or articulable reason, would be incompatible with the discretion inherent in the challenged action. It is no proper challenge to what in its nature is a subjective, individualized decision that it was subjective and individualized.

To be sure, Congress and all the States have, for the most part, replaced at-will employment with various statutory p. 607schemes protecting public employees from discharge for im permissible reasons. See, e. g., 5 U. S. C. § 2302(b)(10) (2006 ed.) (supervisor of covered federal employee may not “dis criminate . . . on the basis of conduct which does not ad versely affect the performance of the employee or applicant or the performance of others”). See also Brief for United States as Amicus Curiae 20–21. But a government’s deci sion to limit the ability of public employers to fire at will is an act of legislative grace, not constitutional mandate.

In concluding that the class-of-one theory of equal protec tion has no application in the public employment context—and that is all we decide—we are guided, as in the past, by the “common-sense realization that government offices could not function if every employment decision became a constitu tional matter.” Connick, supra, at 143. If, as Engquist suggests, plaintiffs need not claim discrimination on the basis of membership in some class or group, but rather may argue only that they were treated by their employers worse than p. 608other employees similarly situated, any personnel action in which a wronged employee can conjure up a claim of differ ential treatment will suddenly become the basis for a federal constitutional claim. Indeed, an allegation of arbitrary dif ferential treatment could be made in nearly every instance of an assertedly wrongful employment action—not only hir ing and firing decisions, but any personnel action, such as promotion, salary, or work assignments—on the theory that other employees were not treated wrongfully. See 478 F. 3d, at 995. On Engquist’s view, every one of these em ployment decisions by a government employer would become the basis for an equal protection complaint.

We agree that, even if we accepted Engquist’s claim, it would be difficult for a plaintiff to show that an employment decision is arbitrary. But this submission is beside the point. The practical problem with allowing class-of-one claims to go forward in this context is not that it will be too easy for plaintiffs to prevail, but that governments will be forced to defend a multitude of such claims in the first place, and courts will be obliged to sort through them in a search for the proverbial needle in a haystack. The Equal Protec p. 609tion Clause does not require “[t]his displacement of manage rial discretion by judicial supervision.” Garcetti v. Ceballos, 547 U. S. 410, 423 (2006).

Congress has provided a judicial remedy for individuals whose federal constitutional rights are violated by state ac tion, 42 U. S. C. § 1983.1 In prior cases, we have refused to craft new remedies for the violation of constitutional rights of federal employees, Bush v. Lucas, 462 U. S. 367 (1983), or for the nonconstitutional claims of state employees, Bishop v. Wood, 426 U. S. 341 (1976). But refusal to give effect to the congressionally mandated remedy embodied in § 1983 would be impermissible. To avoid this result, the Court today concludes that Engquist suffered no constitutional vio lation at all, and that there was thus no harm to be remedied. p. 610In so holding, the Court—as it did in Garcetti v. Ceballos, 547 U. S. 410 (2006)—carves a novel exception out of state employees’ constitutional rights. In Garcetti, the Court cre ated a new substantive rule excepting a category of speech by state employees from the protection of the First Amend ment. Today, the Court creates a new substantive rule ex cepting state employees from the Fourteenth Amendment’s protection against unequal and irrational treatment at the hands of the State. Even if some surgery were truly neces sary 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 meataxe.

Nor did the outcome in Olech turn on the fact that the village was discriminating against a property owner rather than an employee. The majority does not dispute that the strictures of the Equal Protection Clause apply to the States in their role as employers as well as regulators. See ante, p. 611at 597. And indeed, we have made clear that “the Equal Protection and Due Process Clauses of the Fourteenth Amendment, and other provisions of the Federal Constitu tion afford protection to employees who serve the gov ernment as well as to those who are served by them, and § 1983 provides a cause of action for all citizens injured by an abridgment of those protections.” Collins v. Harker Heights, 503 U. S. 115, 119–120 (1992).

Here, as in Olech, Engquist alleged that the State’s actions were arbitrary and irrational. In response, the State of fered no explanation whatsoever for its decisions; it did not claim that Engquist was a subpar worker, or even that her personality made her a poor fit in the workplace or that her colleagues simply did not enjoy working with her. In fact, p. 612the State explicitly disclaimed the existence of any work place or performance-based rationale.2 See, e. g., Reply Brief for Petitioner 17, 19. The jury proceeded to find that the respondents intentionally treated Engquist “differently than others similarly situated with respect to the . . . termi nation of her employment . . . without any rational basis and solely for arbitrary, vindictive or malicious reasons.” App. to Pet. for Cert. 3–4. The jury’s verdict thus established that there was no rational basis for either treating Engquist differently from other employees or for the termination of her employment. The State does not dispute this finding. Under our reasoning in Olech, the absence of any justifica tion for the discrimination sufficed to establish the constitu tional violation.

The majority asserts that public-employment decisions should be carved out of our equal protection jurisprudence because employment decisions (as opposed to, for example, zoning decisions) are inherently discretionary. I agree that employers must be free to exercise discretionary authority. But there is a clear distinction between an exercise of discre tion and an arbitrary decision. A discretionary decision rep p. 613resents a choice of one among two or more rational alterna tives. See 1 H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 162 (Tent. ed. 1958) (defining discretion as “the power to choose be tween two or more courses of action each of which is thought of as permissible”). The choice may be mistaken or unwise without being irrational. If the arguments favoring each al ternative are closely balanced, the need to make a choice may justify using a coin toss as a tiebreaker. Moreover, the Equal Protection Clause proscribes arbitrary decisions—decisions unsupported by any rational basis—not unwise ones. Accordingly, a discretionary decision with any “rea sonably conceivable” rational justification will not support an equal protection claim; only a truly arbitrary one will. There is therefore no need to create an exception for the public-employment context in order to prevent these discre tionary decisions from giving rise to equal protection claims.

A comparable hypothetical decision in the employment context (e. g., a supervisor who is required to eliminate one p. 614position due to an involuntary reduction in force and who chooses to terminate one of several equally culpable employ ees) also differs from the instant case insofar as it assumes the existence of a rational basis for the individual decision. The fact that a supervisor might not be able to explain why he terminated one employee rather than another will not give rise to an equal protection claim so long as there was a rational basis for the termination itself and for the deci sion to terminate just one, rather than all, of the culpable employees.

The majority’s decision also rests on the premise that “[t]he Constitution does not require repudiating th[e] familiar doctrine” of at-will employment. Ante, at 606. In the 1890’s that doctrine applied broadly to government employ ment, see McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 29 N. E. 517 (1892), but for many years now “ ‘the theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreason able, has been uniformly rejected.’ ” Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589, 605–606 (1967). Indeed, recent constitutional decisions and statu tory enactments have all but nullified the significance of the doctrine. See, e. g., Elrod v. Burns, 427 U. S. 347 (1976); Rutan v. Republican Party of Ill., 497 U. S. 62 (1990); see also 5 U. S. C. § 2302(b)(10) (2006 ed.) (supervisor of covered federal employee may not “discriminate . . . on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others”). Accordingly, preserving the remnants of “at-will” employ p. 615ment provides a feeble justification for creating a broad exception to a well-established category of constitutional protections.3

In sum, there is no compelling reason to carve arbitrary public employment decisions out of the well-established cate p. 616gory of equal protection violations when the familiar rational review standard can sufficiently limit these claims to only wholly unjustified employment actions. Accordingly, I re spectfully dissent.