Mixed Motives Speak in Different Tongues: Doctrine, Discourse, and Judicial Function in Class-of-One Equal Protection Theory

By Hagen, Alex M. | South Dakota Law Review, Summer 2013 | Go to article overview

Mixed Motives Speak in Different Tongues: Doctrine, Discourse, and Judicial Function in Class-of-One Equal Protection Theory


Hagen, Alex M., South Dakota Law Review


IV. 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)

A. 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. …

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