Class-of-one Equal Protection Claim is Not Viable in Employment Context but Substantive Due Process Right to Pursue Chosen Profession is Cognizable.

A? jury? awarded? Engquist? $175,000? in compensatory damages and $250,000 in punitive damages against her former public employer and individual defendants for violating her constitutional? equal? protection? and? substantive due process rights and for interference with contract; she did not prevail on federal anti- discrimination laws. ?Engquist was told that her job was being eliminated due to a re-organization and that she was unqualified for the only position at her level. ?She applied for, but was not offered, about 200 jobs.?? Defendants? vocational expert testified that there are very few opportunities in the? state? for? work ?in? Engquist?s? fields. Defendants? were? held? liable? for? violation? of equal? ?protection?? because? ?they?? intentionally treated Engquist, as a class-of-one, different than other similarly situated employees ?without any rational basis and solely for arbitrary, vindictive, or malicious reasons.? In contrast to all seven federal circuits that have considered the matter, the Ninth Circuit declined to extend the class-of-one theory from its application?? in? ?the? ?regulatory? ?and? ?legislative arenas? to? public? employment? decisions.?? ?The court? explained? that? ?the? government? as employer? has? broader? powers? than? the government as regulator.? ?In support, the court noted that the rights of public employees are limited, as compared to ordinary citizens, in the First? and? Fourth? Amendment? contexts,? and? to hold otherwise would upset long-standing personnel practices and ?generate a flood of new cases.??? On a matter of first impression in this Circuit, however, the court did extend its substantive due process rulings from the regulatory and legislative area to the employment context, holding that an employee has a constitutional right to pursue a particular profession.? ?The court limited the claim to ?extreme cases, such as a ?government blacklist, which when circulated or otherwise publicized to prospective employers effectively excludes the blacklisted individual from his occupation, much as if the government had yanked the license of an individual in an occupation that requires licensure.??? ?But the court reversed the jury verdict on this claim anyway, holding that Engquist failed to prove causation.? ?Engquist?s damages and attorneys fees were remanded for re- determination under his successful state law claim. Judge Reinhardt dissented explaining that the majority?s? class-of-one? analysis? was? flawed? and that?? at-will?? employment?? is?? preserved?? by?? the rational basis test to which government decisions in regulatory and legislative areas are subject, and that the seven circuits who have so ruled have not suffered a flood of resulting litigation. ?Engquist v. Oregon Dep?t of Agriculture, 478 F.3d 985 (9th Cir. 2007)