           06-5723-cv
           Appel v. Spiridon


                               UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT
                                        _______________

                                          August Term, 2007

    (Argued: June 17, 2008                                                   Decided: July 2, 2008)

                                        Docket No. 06-5723-cv

                                           _______________

                                            ROSALIE APPEL,
                                                                                  Plaintiff-Appellee,

                                                 —v.—

          CHARLES P. SPIRIDON , LINDA VADEN -GOAD , LINDA RINKER and JAMES SCHMOTTER,
                                                                       Defendants-Appellants.

                                           _______________

    Before:

            JACOBS , Chief Judge, STRAUB, Circuit Judge, and CEDARBAUM , District Judge.*

                                           _______________


1           Appeal from an order of the United States District Court for the District of Connecticut
2   (Stefan Underhill, Judge), entered on December 1, 2006, granting a preliminary injunction in
3   favor of Plaintiff-Appellee to enjoin Defendants-Appellants from requiring her to submit to a
4   psychological examination as a condition of employment. The District Court based the
5   injunction on a “class of one” theory of a violation of the Equal Protection Clause of the
6   Fourteenth Amendment. As the United States Supreme Court in Engquist v. Oregon Department
7   of Agriculture, 128 S. Ct. 2146 (2008), recently held that such a theory does not apply, as here,


    *
     The Honorable Miriam Goldman Cedarbaum, United States District Judge for the Southern
    District of New York, sitting by designation.

                                                    1
 1   in the public employment context, we reverse the District Court’s order and remand for further proceedings.
 2           Reversed and remanded.
 3                                         _______________
 4
 5          JOHN R. WILLIAMS, New Haven, Connecticut, for Plaintiff-Appellee.
 6
 7          BETH Z. MARGULIES, Assistant Attorney General (Richard Blumenthal, Attorney
 8          General for the State of Connecticut, on the brief), Hartford, Connecticut, for
 9          Defendants-Appellants.
10
11                                          _______________
12
13   PER CURIAM:
14
15          Defendants-Appellants Charles P. Spiridon, Linda Vaden-Goad, Linda Rinker and

16   James Schmotter appeal from an order of the United States District Court for the District of

17   Connecticut (Stefan Underhill, Judge) granting a preliminary injunction in favor of Plaintiff-

18   Appellee Rosalie Appel enjoining Defendants-Appellants from requiring Appel to submit to

19   a psychological examination in order to maintain her teaching position at Western

20   Connecticut State University (“WCSU”). In her amended complaint, Appel asserts claims

21   based on alleged violations of her constitutional rights under the Free Speech Clause of the

22   First Amendment and under the Equal Protection Clause of the Fourteenth Amendment as a

23   “class of one.” The District Court granted Appel’s motion for a preliminary injunction on

24   the ground that Appel had met her burden of establishing that she would suffer irreparable

25   harm without an injunction, that serious questions existed regarding the merits of her equal




                                                     2
 1   protection claim, and that the balance of hardships tipped decidedly in her favor.1 See Appel

 2   v. Spiridon, 463 F. Supp. 2d 255, 261–62, 264–66 (D. Conn. 2006).

 3          The Supreme Court recently held that the Equal Protection Clause does not apply to a

 4   public employee asserting a violation of the Clause based on a “class of one” theory of

 5   liability. See Engquist v. Or. Dep’t of Agric., 128 S. Ct. 2146, 2155–57 (2008). As Appel’s

 6   equal protection claim premised on this theory was the only basis for the District Court’s

 7   grant of a preliminary injunction, we reverse the order of the District Court and remand the

 8   matter with instructions to vacate the order and for further proceedings. Furthermore, we

 9   overrule any existing precedent of this Court to the extent that it conflicts with the holding of

10   Engquist.2 See, e.g., Skehan v. Vill. of Mamaroneck, 465 F.3d 96 (2d Cir. 2006); Neilson v.

11   D’Angelis, 409 F.3d 100 (2d Cir 2005).

12

13                       FACTUAL AND PROCEDURAL BACKGROUND

14          Appel has worked as a professor of art at WCSU for over forty years, and WCSU

15   granted her tenure in 1969. In May 2005, Appel testified on behalf of a colleague who was

16   pursuing a claim of race discrimination before the Connecticut Commission on Human

17   Rights. In the course of this testimony, Appel described the events of a closed September

18   2003 meeting of art department faculty, the purpose of which was to consider Appel’s

19   colleague’s application for a position in the department.


     1
       The District Court rejected Appel’s First Amendment claim as a basis for a preliminary
     injunction. See Appel v. Spiridon, 463 F. Supp. 2d 255, 262–63 (D. Conn. 2006) (“Appel has
     failed to raise serious questions going to the merits of her First Amendment retaliation claim.”).
     2
       The text of this opinion has been circulated to all of the active judges of the Court, and there is
     no objection. See, e.g., United States v. Frias, 521 F.3d 229, 232 n.3 (2d Cir. 2008).

                                                       3
 1          Several months afterward, all of the full-time members of the art department other

 2   than Appel signed a petition to Defendant-Appellant Vaden-Goad, the Dean of the School of

 3   Arts and Sciences at WCSU, in which they objected to Appel’s “bullying” conduct at

 4   department meetings and her hostility toward the department chair. The petition did not

 5   mention Appel’s involvement with her colleague’s discrimination claim.

 6          Pursuant to the collective bargaining agreement applicable to Appel, Vaden-Goad

 7   convened a special assessment committee (“SAC”) to evaluate Appel’s conduct and develop

 8   an action plan to address any problems. After several months of investigation, the SAC

 9   issued its findings in an April 2006 report. The report described some of Appel’s conduct as

10   “bordering on bullying” and concluded that Appel’s service was “significantly limited by her

11   apparent inability to work with her colleagues.” The report also set forth several

12   recommendations pertaining to Appel’s job performance, such as changes to Appel’s course

13   syllabi and the articulation of professional boundaries when interacting with students. The

14   SAC also recommended that Appel be given an “in-depth pscyhological assessment” because

15   the SAC was uncertain whether Appel had the ability to control her own behavior

16   consistently. After providing Appel with an opportunity to respond to these

17   recommendations, the SAC issued a remediation plan in June 2006 to identify specific steps

18   to improve Appel’s job performance, including the psychological assessment.

19          Shortly thereafter, Vaden-Goad sought to meet with Appel to discuss the remediation

20   plan, but Appel refused to do so. In addition, Defendant-Appellant Spiridon, the Dean of

21   Human Resources at WCSU, wrote to Appel to inform her of the necessity of her compliance

22   with the psychological assessment recommendation of the remediation plan. On July 31,


                                                      4
 1   2006, Appel filed her complaint in the District Court.

 2          On September 5, 2006, Appel met with Spiridon and Defendant-Appellant Rinker,

 3   the Provost and Vice President for Academic Affairs at WCSU, but refused to discuss the

 4   remediation plan. After the meeting, Rinker decided to suspend Appel, as of September 14,

 5   2006, without pay due to her failure to undergo the psychological assessment. It appears

 6   undisputed that Appel is the only WCSU faculty member ordered to undergo an involuntary

 7   psychological examination in order to continue teaching and receiving pay and benefits at

 8   WCSU.

 9          Before the District Court, Appel filed a motion for a preliminary injunction to

10   prohibit Defendants-Appellants from suspending her without pay for refusing to submit to a

11   psychological examination. On December 1, 2006, the District Court granted the motion

12   based on Appel’s equal protection claim under a “class of one” theory. See Appel, 463 F.

13   Supp. 2d at 266–67.

14          Defendants-Appellants timely filed notice of this appeal.

15

16                                           DISCUSSION

17          The Supreme Court first recognized a claim based upon an alleged violation of the

18   Equal Protection Clause of the Fourteenth Amendment under a “class of one” theory in

19   Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam). In that case, the plaintiff

20   argued that a municipality’s demand for a larger than usual easement in exchange for

21   connecting her property to the municipal water supply violated her rights under the Equal

22   Protection Clause by treating her differently from all other similarly situated individuals. See


                                                      5
 1   id. at 563. The District Court had dismissed the action for failure to state a claim, and the

 2   Seventh Circuit reversed. See id. at 563–64. The Supreme Court concluded that the

 3   plaintiff’s allegation that the municipal conduct was “irrational and wholly arbitrary” stated a

 4   claim for a constitutional violation under the Equal Protection Clause. See id. at 565. Since

 5   Olech, we have recognized such “class of one” liability in the public employment context.

 6   See, e.g., Skehan, 465 F.3d at 110; Neilson, 409 F.3d at 104.

 7          Recently, the Supreme Court held that the Equal Protection Clause does not apply to

 8   a public employee asserting a violation of the Clause under a “class of one” theory. See

 9   Engquist, 128 S. Ct. at 2155–57. As this theory served as the only basis for the equal

10   protection analysis underlying the District Court’s grant of a preliminary injunction in favor

11   of Appel, we reverse the order of the District Court. In addition, we overrule any precedent

12   of this Circuit to the extent that it conflicts with the holding of Enquist. See, e.g., Skehan,

13   465 F.3d at 110; Neilson, 409 F.3d at 104.

14

15                                           CONCLUSION

16          For the foregoing reasons, we REVERSE the order of the District Court granting a

17   preliminary injunction in favor of Plaintiff-Appellee and REMAND the case with

18   instructions to vacate the order and for further proceedings.




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