Labor and Employment Bulletin, by M. Paulose Jr., Esq.
Public service employees enjoy significant levels of job protection, the highest level being a federal action against an employer for violations of their constitutional rights. Most public service employees are aware of this protection and often try to explain a problem at work as a violation of one of these rights. How many times, for instance, have you thought that a particular employment decision may have been based on race or gender or, perhaps, national origin? How often, for example, has a colleague mentioned to you that he was invited to a high level client meeting solely on the basis of being a token minority, or another employee was promoted because she was a woman, or another employee was fired because his behavior – tailored by his foreign heritage – just didn’t “fit in”?
Sometimes, however, it’s difficult to neatly fit an adverse employment decision into any of these reasons. What then? The answer may lie in the 14th Amendment of the U.S. Constitution, which offers a protection of last resort. Under what’s now becoming called “a class of one claim,” a public employer may not treat a public employee differently from another similarly situated employee no matter his or her race, gender, religion, hair color, or even shoe size. An employee merely needs to prove that the employer had no legitimate and rational reason for the particular employment decision. This is the broadest type of protection offered a public employee. But it does not mean that it’s the easiest to prove.
In Bell v. South Delta School District (S.D. Miss. 2004), for example, a public school teacher brought a class of one claim against her school district and its director. According to the teacher, the defendants engaged in a systematic campaign of harassment, including involuntary transfers to three different schools. Apparently the school district and its director were retaliating against the teacher for complaining to the police about some improper billing practices. The Court listened to all of the teacher’s arguments but ultimately dismissed the case because the teacher had failed to show that she was being treated differently compared to other teachers. This was unfortunate, because surely the teacher could have found another teacher who was in all respects similarly situated and not treated the same way as she was.
Another similar case is Levesque v. Town of Vernon (D. Conn. 2004). There, a full time town clerk sued her employer the Town and its Town Administrator for engaging in a pattern of retaliatory conduct, including termination, solely because of a personality dispute between the clerk and the Administrator. Notice here, like in Bell, the employee sued not because she was treated differently based on some protected class, such as race or gender, but because of a non-protected class, which in this case was a personality difference. Unfortunately again however, like in Bell, the clerk failed to present enough evidence of other similarly situated employees who were not terminated. The court accordingly dismissed the case.
These cases show the importance of accumulating enough evidence before filing suit, particular under a class of one claim. Employment cases are often the hardest cases to prove. An employee who believes that she may be terminated, or otherwise adversely treated, should start thinking in advance about whether the adverse treatment is going to be based on a legitimate reason. One good thing to do is to contact an employment lawyer and have him help prepare for the outcome. So if you feel you are going to be terminated or downsized, call an attorney right away.