“Class of One” Equal Protection Claims by Public Employees Are Not Permitted

DiBuonaventura v. Washington Tp., 462 N.J. Super. 260 (App. Div. 2020). Plaintiff was a police officer in Washington Township, Gloucester County. He made several complaints about the conduct of the Police Department and the Police Chief. Investigations determined that plaintiff’s complaints were unfounded.

Thereafter, plaintiff was involved in two incidents that led to his suspension and eventual termination. First, he stopped a vehicle that was being driven by an Assemblyman who was also the former Mayor of Washington Township. Plaintiff arrested the Assemblyman and charged him with driving under the influence and other offenses. The Assemblyman disputed the charges and filed complaints against plaintiff. Plaintiff was then suspended, and he was indicted on criminal charges arising out of the incident with the Assemblyman. After a jury trial, however, plaintiff was found not guilty of all charges.

An internal affairs investigation of plaintiff was conducted, and his suspension was continued even after the acquittal. Plaintiff was then charged with two types of misconduct. The first charge related to the incident with the Assemblyman, with plaintiff being charged with making false statements and omitting material information about that incident and about his prior encounters with the Assemblyman. The second charge asserted that plaintiff had falsely reported issuing numerous warnings for motor vehicle violations. An investigation determined that those warnings were never given to the motorists.

The Township sought to fire plaintiff based on those alleged instances of misconduct. A hearing officer found plaintiff guilty on all the allegations. Plaintiff appealed, but the Law Division and then the Appellate Division upheld the hearing officer’s verdict.

Meanwhile, before the filing of the disciplinary charges, plaintiff had sued the Township, the Police Chief, and the Township’s Business Administrator. He asserted (among other claims; the others were dismissed and were not the subject of this appeal) that defendants had violated his constitutional right to equal protection and had violated the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14 (“CEPA”). On cross-motions for summary judgment, the Law Division granted defendants’ motion and denied that of plaintiff for partial summary judgment. Plaintiff then appealed, and today the Appellate Division affirmed. Judge Gilson wrote the panel’s opinion.

Since the appeal was from a summary judgment, Judge Gilson properly applied the de novo standard of review. He ruled that each of plaintiff’s claims was barred by precedent from a higher court.

Plaintiff’s equal protection claim was that “while he is not part of a protected class, he was treated differently from other police officers in retaliation for his ‘protected’ activities.” Equal protection claims not based on membership in a protected class are known as “class of one” claims. Judge Gilson stated that such claims “require that a plaintiff show that he or she was (1) intentionally treated differently from other people who are similarly situated, and (2) there is no rational basis for the difference in treatment.”

In Engquist v. Oregon Dep’t of Agriculture, 553 U.S. 591 (2008), the Supreme Court of the United States held that, under the United States Constitution, public employees cannot bring “class of one” equal protection claims. Defendants invoked that ruling here, and plaintiff countered that the New Jersey Constitution should be construed differently so as to allow his claim.

Judge Gilson did not agree. He endorsed the view of Engquist that “the class-of-one theory is a poor fit for analyzing public employment decisions.” He noted that the Legislature “has enacted a comprehensive umbrella of protections for public employees, including the review of public employee disciplinary decisions by a Superior Court judge or the Civil Service Commission.” Additional protections for public employees were afforded by CEPA, the New Jersey Law Against Discrimination, and union contracts.

“Constitutionalizing employee grievances would interfere with the discretion required when the government acts as an employer.” These types of issues, Judge Gilson said, are “better addressed as a question of progressive discipline in the employee grievance proceedings. In other words, if, as here, a public employee has engaged in misconduct, it is not a defense to claim other employees also engaged in misconduct.” Besides, Judge Gilson concluded, plaintiff and those to whom he compared himself were not in fact alike “in all relevant aspects,” as required for a “class of one” claim.

Plaintiff’s CEPA claim failed for a different reason. In Winters v. North Hudson Regional Fire & Rescue, 212 N.J. 67 (2012), our Supreme Court held that collateral estoppel precluded a plaintiff who had unsuccessfully argued retaliation in a disciplinary proceeding from relitigating retaliation claims under CEPA. Here, plaintiff had fought and lost retaliation claims in the disciplinary proceeding before the hearing officer, and on appeal to the Law and Appellate Divisions.

Plaintiff argued that, at most, his retaliation argument had been limited to the incident with the Assemblyman. But Judge Gilson observed that Winters “embraced a broad view of estoppel in employee discipline cases.” The Appellate Division “specifically reject[ed] plaintiff’s argument that he can raise one type of retaliation and preserve his claims as to other types of retaliation.” Winters had stated that a litigant should not be allowed to participate “in the administrative system designed to promote a fair and uniform statewide system of public employee discipline, raise a retaliation defense … .and then hold back on the defense in an attempt to save it for later duplicative litigation.”

Here, plaintiff had the chance to argue, and did in fact vigorously argue, retaliation during the disciplinary proceedings. Accordingly, Winters precluded his CEPA claim.