DocketNumber: SC 18046
Citation Numbers: 290 Conn. 421, 963 A.2d 979, 2009 Conn. LEXIS 20, 185 L.R.R.M. (BNA) 3063
Judges: Katz, Schaller, Vertefeuille, Whom
Filed Date: 2/24/2009
Status: Precedential
Modified Date: 11/3/2024
Opinion
The dispositive issue in this appeal is whether the collective bargaining agreement (agreement) between the named defendant, the town of Greenwich (town), and the Silver Shield Association,
The following facts and procedural history are relevant to our resolution of the present appeal. On April 4,2003, the town announced that an examination would be administered to fill a vacancy for the position of police captain in the town police department. The announcement stated that the examination would be “100 [percent]—Assessment Center.” In an assessment center examination, independent assessors evaluate a candidate’s qualifications through a variety of testing procedures including role-playing, written examinations and interviews. The agreement between the town and the union, in part, limits the potential pool of applicants eligible for promotion to police captain—and
Subsequent to Walters’ decision to promote Pacewicz, the union brought an action to enjoin the promotion temporarily. After the trial court denied the ex parte injunction and scheduled a hearing for July 1, 2003, the town officially promoted Pacewicz to police captain.
The plaintiff then filed this action against the defendants, bringing claims for breach of contract, promis-soiy estoppel, quo warranto and mandamus, as well as for violations of the plaintiffs right to due process and equal protection under the federal and state constitutions.
On the basis of these findings, the trial court granted quo warranto and mandamus relief, ordering that Pacewicz be removed from the position of police captain and that the plaintiff be promoted to that position. In addition, the trial court awarded the plaintiff $71,506.66 in back pay and prejudgment interest and $3450 for the loss of the use of a vehicle, which the
I
The crux of this appeal is whether any provision within the agreement or any other applicable town document requires the town to promote the candidate with the highest ranked score to the position of police captain, or whether the town has discretion to promote any eligible candidate. The plaintiff claims that the trial court properly determined the town’s past practices required the town to promote the candidate with the
In order to illuminate the basis of the parties’ arguments, we first briefly review the history of the agreement and the town’s promotional practices. The critical moment came on July 1, 1999, when the town and the union amended the agreement.
Several months after the amended agreement took effect, the town posted an announcement for two new police captain vacancies. As with the announcement in the present appeal, that announcement called for a 100 percent assessment center examination. Lieutenants Michael DeAngelo and David Ridberg received the two highest scores, and the police chief at the time, Peter Robbins, promoted both of them to the respective captain vacancies. The plaintiff contends that these events support his claim that, irrespective of the fact that the captain’s position was removed from the bargaining unit, the past practices clause in the agreement continued to require the town to promote the highest scoring candidate or candidates to police captain. The town contends that, while Robbins did in fact promote the two highest scoring candidates, neither the agreement nor the pay plan and policy manual required him to do so.
Because the resolution of this issue calls for the interpretation of both a collective bargaining agreement and various municipal rules and regulations, we set forth our standard of review. Principles of statutory construction govern our interpretation of the town policy manual and pay plan. See Kelly v. New Haven, 275 Conn. 580, 607, 881 A.2d 978 (2005) (“[a]s with any issue of statu
“[I]n construing contracts, we give effect to all the language included therein, as the law of contract inter
We now turn to the merits of the fundamental question in this appeal, namely, whether the agreement applies and requires the town to promote the candidate with the highest assessment score to the position of police captain.
To better understand the question before us, we first frame the issue with reference to the five primary positions within the town police department, namely, the positions of sergeant, lieutenant, captain, deputy police chief and chief of police.
We must first determine the manner in which the agreement, the policy manual and the pay plan relate to one another. After reviewing these documents,
On appeal, the plaintiff contends that the inclusion of paragraph D, which, in part, requires the promotion of a bargaining unit member, keeps the protections of the past practices clause in place during the promotional process for the captain’s position. As a result, the plaintiff claims that the past practices clause requires the town to promote the highest scoring candidate. In order to prevail on this claim, the plaintiff must demonstrate that the past practices clause protects the practice at issue. At the outset, however, we observe that, because paragraph D deals specifically with the subject matter at issue, namely, promotion to police captain, reliance on past practices is inappropriate. See F. Elkouri & E. Elkouri, How Arbitration Works (A. Ruben ed., 6th Ed. 2003) c. 12, pp. 622, 627 (past practices clause invalid if it nullifies or broadens express provision; labor law arbitrators refuse to consider evidence of past practices inconsistent with provision that is clear and unambiguous on its face, citing to numerous arbitration and federal court cases that express similar views). To the extent, however, that the dissent is based on past practices, we address the merits of that argument.
We begin by setting forth well established principles of labor law in relation to promotions to positions outside the bargaining unit and to the effect of past practices clauses. Pursuant to these principles, the question of whether the past practices clause applies turns on whether the promotional process to a position outside the bargaining unit constitutes a mandatory or nonman-datory subject of bargaining.
The general rule that promotion to a position outside the bargaining unit is not a mandatory subject of bargaining specifically was applied to the present case. In denying the grievance filed by the union on the plaintiff s behalf, the state board of mediation and arbitration (board) concluded that “[s]ince the promotional process for this nonbargaining unit position ([c]aptain) is outside the mandatory bargaining scope, the subject matter of the [ujnion’s complaint cannot be reviewed through the [contractual grievance and arbitration process.”
The significance of the distinction between mandatoiy versus nonmandatory
Our state labor relations board also has addressed the issue of whether a past practices clause protects nonmandatory subjects of bargaining. It has concluded that past practices clauses that protect employees’ “benefits,” such as the clause at issue, protect only mandatory subjects of bargaining. In re Connecticut, Conn. Board of Labor Relations Decision No. 2662 (August 26, 1988) (“[t]he term ‘benefits’ clearly falls within the purview of wages, hours and conditions of
In making this conclusion, we pay particular attention to two other provisions within the agreement. First, article XXIII of the agreement, entitled “Arbitration and Grievance Procedure,” limits grievances to those concerning “wages, hours, or conditions of employment, which wages, hours, or conditions are controlled by this agreement . . . .” It is significant that the agreement expressly limits grievances to mandatory subjects of bargaining, as evinced by the reference to “wages, hours, or conditions of employment,” and does not offer arbitrability of nonmandatory subjects of bargaining.
We also observe that our conclusion leaves intact the current status of labor law in our state. To conclude that past practices clauses protect nonmandatory subjects of bargaining, in the absence of express language to the contrary, would set forth a rule of law that might have the perverse effect of encouraging municipalities and other employers to behave erratically with respect to permissive subjects of bargaining so as not to create a past practice precedent. That we will not do.
Rather than demonstrate how the past practices clause incorporates the practice at issue, the dissent makes a subtle but significant departure from the plaintiffs argument. The dissent pivots away from reliance
Proceeding with this tool of construction, the dissent bases its ultimate conclusion on an interpretation of the term “promotional list” independent of that term’s definition in the pay plan. Contrary to the dissent, both parties rely on the pay plan’s definition of that term. Moreover, to supplement the dissent’s independent interpretation of “promotional list,” it asserts that the town’s definition also is consistent with the past practice of promoting the highest ranked candidate.
Even assuming that some other language in the agreement could be construed to govern promotion to police captain, a careful review of the record reveals no evidence to support that the town ever engaged in a past practice where it promoted the highest scoring candidate who was a member inside the bargaining unit to a position outside the bargaining unit. Although the trial court found that for thirty years, the town routinely had promoted the highest scoring candidate, that evidence was overwhehningly limited to circumstances where all the candidates and the positions themselves were inside the bargaining unit.
In sum, absent a demonstration of how the past practices clause can preserve a nonmandatory subject of bargaining or how another agreement provision unambiguously supports the contention that the town did in fact agree to bargain over promoting the highest ranking candidate to police captain, the plaintiffs argument must fail.
II
We next address the town’s claim that the trial court improperly concluded that the town deprived the plaintiff of his property interest without due process of law in violation of 42 U.S.C. § 1983, by promoting Pacewicz to police captain even though the plaintiff had received the highest examination score. The trial court concluded, on the basis of its conclusion that the past practices clause required the town to promote the highest scoring candidate, that the plaintiff had a property interest in the promotion to the position of police captain. The trial court determined that the plaintiffs “expectation of promotion based upon his rank on the promotion list rises to the level of a constitutionally protected property interest.” On appeal, the defendants
“Our due process inquiry takes the form of a two part analysis. [W]e must determine whether [the plaintiff] was deprived of a protected interest, and, if so, what process was . . . due.” (Internal quotation marks omitted.) Giaimo v. New Haven, 257 Conn. 481, 499, 778 A.2d 33 (2001). If a claimant does not sufficiently establish the existence of a constitutionally protected interest, the due process analysis ceases because no process is constitutionally due for the deprivation of an interest that is not of constitutional magnitude. Hunt v. Prior, 236 Conn. 421, 442, 673 A.2d 514 (1996).
“To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.
“Property interests, of course, are not created by the [constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” (Internal quotation marks omitted.) Giaimo v. New Haven, supra, 257 Conn. 499, quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972).
Because we conclude that the plaintiff does not have a constitutionally protected property interest, the trial court’s award of attorney’s fees to the plaintiff cannot stand.
Ill
As an alternate ground for affirmance, the plaintiff contends that the trial court improperly denied his claim that the town, Walters and Cava violated his constitutional right to equal protection of the laws pursuant to 42 U.S.C. § 1983. The plaintiff advances two theories in support of his claim: (1) that the decision to pass him over for promotion was driven by a malicious intent to injure in violation of the test announced in LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir. 1980), cert. denied, 450 U.S. 959, 101 S. Ct. 1418, 67 L. Ed. 2d 383 (1981); and (2) the town did not have a rational basis to promote Pacewicz over the plaintiff in violation of the test articulated in Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 145 L. Ed. 2d 1060 (2000). We are not persuaded.
The following additional facts are relevant to our resolution of this claim. In short, the plaintiff argues
We turn to the merits of the plaintiffs claim. As we have stated, “[t]he decisions of the federal circuit in which a state court is located are entitled to great weight in the interpretation of a federal statute. This is particularly true in 42 U.S.C. § 1983 cases, where the federal statute confers concurrent jurisdiction on the federal and state courts.” (Internal quotation marks omitted.) Red Maple Properties v. Zoning Commission, 222 Conn. 730, 739 n.7, 610 A.2d 1238 (1992). We, therefore, look to recent decisions of the United States Court of Appeals for the Second Circuit for guidance on the
“The [e]qual [protection [cjlause of the [fourteenth [ajmendment to the United States [constitution is essentially a direction that all persons similarly situated should be treated alike.” (Internal quotation marks omitted.) Zahra v. Southold, 48 F.3d 674, 683 (2d Cir. 1995). In LeClair, the Second Circuit stated that a violation of equal protection by selective treatment arises if: “(1) the person, compared with others similarly situated, was selectively treated; and (2) . . . such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.” LeClair v. Saunders, supra, 627 F.2d 609-10. “[When a plaintiff] does not allege selective treatment based upon his race, religion, or any intentional effort by [the] defendants to punish him for exercising his constitutional rights, [the plaintiff] must demonstrate that [the] defendants maliciously singled [him] out . . . with the intent to injure him.” Crowley v. Courville, 76 F.3d 47, 52-53 (2d Cir. 1996); see also Thomas v. West Haven, supra, 249 Conn. 393.
Pursuant to the foregoing principles, the plaintiffs claim must fail. The plaintiff cannot demonstrate that the defendants maliciously singled him out with an intent to injure. The trial court found that, at most, the incidents involving the plaintiff and Walters established
The judgment is reversed with respect to the claims of breach of contract, due process, quo warranto and mandamus and the case is remanded to the trial court with direction to render judgment in favor of the defendants on those claims; the judgment is affirmed in all other respects.
In this opinion NORCOTT and ZARELLA, Js., concurred.
The Silver Shield Association is the authorized union representing the uniformed and investigatory personnel in the town police department. It filed an amicus brief on behalf of the plaintiff.
The defendants named in the complaint consisted of the town; its police chief, James A. Walters; its deputy chief, Pasquale Chila; its human resources director, Alfred C. Cava; and its candidate promoted to police captain, Lieutenant Michael A. Pacewicz. At the close of the plaintiffs case, all counts against Chila were dropped. We refer to Walters, Cava, Pacewicz and the town collectively as the defendants and individually by name when appropriate.
The defendants petitioned this court for certification to appeal pursuant to General Statutes § 52-265a (a), which permits a direct appeal in an action
Our resolution of the defendants’ first two claims make it unnecessary to reach their third claim that the trial court improperly measured damages.
Paragraph D of article XXV of the agreement provides: “Promotion to the classification of [pjolice [cjaptain shall be made from bargaining unit employees who are candidates certified to the promotional list.”
The pay plan sets forth rules regarding personnel, salary and administration and is approved by the town’s board of estimate and taxation and by the town’s legislative body. The policy manual is approved by the town’s board of estimate and taxation and by the first selectman and is a guide for day-to-day administration of the town’s personnel programs to be used in conjunction with the charter, pay plan and applicable collective bargaining agreements.
Section 4.1.19 of the pay plan defines “[pjromotional [ljist” as: “A list of qualified employees who have passed a promotional examination for a position in the classified service and ranked on the list in the order of the score received, signed and approved by the Director of Human Resources.”
Honulik and Pacewicz received overall scores of 86.06 percent and 84.85 percent, respectively. The town divided the applicants, on the basis of their examination scores, into categories ranging from “Band I-Exceptional” to “Band Vi-Very Marginal.” Both the plaintiff and Pacewicz were categorized as “Band Hi-Qualified.” The three other applicants were categorized as either “Band IV-Moderately Qualified” or “Band Vi-Very Marginal.”
Walters testified that he consulted with Cava to confirm that he could interview the candidates after the examination.
Walters also testified that he confirmed with Cava that he could promote a candidate out of rank order.
The union did not pursue the ipjunction action after Pacewicz was promoted, and the action was dismissed for dormancy on June 1, 2007.
The past practices clause, set forth in article XXVIII of the agreement provides in relevant part: “All benefits and obligations which are not described in this [ajgreement or in either the manual or plan and which are now enjoyed by or required of the employees are specifically included in this [ajgreement by reference just as though each such benefit or obligation was specifically set forth.”
At the close of the plaintiffs case, the parties stipulated to dismiss all counts against Pasquale Chila, the town’s deputy chief of police. The trial court dismissed all counts against Pacewicz except the claim for quo warranto and mandamus, and dismissed the breach of contract and promissory estoppel claims against Walters and Cava.
The plaintiffs cross appeal claimed that the trial court improperly failed to increase further the award for the loss of the use of the town vehicle and to award compensatory and punitive damages pursuant to 42 U.S.C. § 1983. Because we conclude that the plaintiff is not entitled to relief in this case, the plaintiffs cross appeal must also fail. In addition, Pacewicz cross appealed with respect to the trial court’s quo warranto and mandamus order. On January 5, 2009, the plaintiff filed a motion requesting that we dismiss Pacewicz’ cross appeal on the ground that Pacewicz’ retirement from the town police department moots his appeal. Pacewicz filed an opposition to the motion. Because our resolution of this case makes it unnecessary to decide the cross appeal, we need not reach the issue presented by the motion to dismiss. Accordingly, we reverse the trial court’s quo warranto and mandamus relief.
The operative dates for the new agreement ran from July 1,1999, through June 30, 2004.
The sole exception occurred when an officer with the highest examination score was not promoted because of a pending disciplinary matter.
With respect to testimony regarding promotions from lieutenant to captain, every promotion, except the two simultaneous promotions described in this opinion, occurred prior to the 1999 amendments.
Robbins testified that he did not consult the human resources department or the pay plan and policy manual to determine whether he was required to promote the candidate with the highest assessment score. In support of its position, the town cites the postassessment letters to DeAngelo and Ridberg, which state that “[y]our result places you on the list of candidates eligible for appointment to [police captain]. Under the [r]ules and [Regulations of the . . . [p]ay [p]lan, a [department [h]ead may hire any candidate certified as eligible by the [h]uman [Resources [djepartment. Your name has been forwarded to the hiring authority for consideration for appointment to this position.” (Emphasis added.)
The question of who is eligible for promotion is not in dispute. The parties concur that paragraph D of the agreement requires that only members of the bargaining unit certified to the promotional list are eligible.
Though perhaps obvious, we ultimately base our assertion on the documents provided by both parties.
In such a case, if town rules and regulations were inconsistent with the agreement, the agreement would prevail pursuant to § 3.2 of the pay plan, which provides that “[a]ny inconsistencies between these rules and procedures and collective bargaining agreements shall be read in favor of the collective bargaining agreements.”
In such a case, any inconsistency between the town rules and regulations and the agreement would be irrelevant because neither the candidates nor the positions are within the bargaining unit. Accordingly, the town rules govern, unchallenged by provisions of the agreement.
Both parties rely on provisions of the town charter, pay plan and policy manual, and the agreement to support their positions and those documents refer to one another. See, e.g., Greenwich Personnel Policy and Procedures Manual § 100 (“[t]he policy manual is intended to supplement and should be used in conjunction with the [t]own [cjharter, union agreements, [pjolicy [mjanual, [p]ay [p]lan rules”); article XXVIII of the agreement (“Mil benefits and obligations which are not described in this [agreement or in either the manual or plan ... are specifically included in this [agreement”). We, therefore, analyze each document.
The town’s discretion to select any candidate who has qualified to be placed on the applicable list makes the process for promotions to police captain identical to the hiring procedures for the other two positions in the police department that are outside the bargaining unit.
The dissent relies on a decision of the Supreme Court of Michigan to support its assertion that “[t]here is not . . . universal consensus” as to whether promotions to positions outside abargaining unit are nonmandatory subjects of bargaining. See Local 1383 of International Assn. of Firefighters, AFL-CIO v. Warren, 411 Mich. 642, 653 n.2, 311 N.W.2d 702 (1981). In that case, however, the court did not have before it the issue of whether the promotional process for a position outside the bargaining unit was a mandatory subject of bargaining. The promotional process at issue in Warren was with regard to positions within the bargaining unit. Id., 649-50. The footnote to which the dissent cites is dicta, citing with approval a decision of the Court of Appeals of Michigan, Detroit Police Officers Assn. v. Detroit, 61 Mich. App. 487, 492-94, 233 N.W.2d 49 (1975). Moreover, as the court in Orlando v. Florida Public Employees Relations Commission, 435 So. 2d 275, 280 (Fla. App. 1983), noted, the Detroit decision, although it does conclude that the promotional process for positions outside the bargaining unit is a mandatory subject of bargaining, “contains little analysis and does not attempt to distinguish between promotional criteria within the unit and
Prior to this action, the union filed a grievance on behalf of the plaintiff with the board pursuant to article XXIII (A) (3) of the agreement.
For clarity, we recognize that in addition to mandatory and nonmandatory subjects of bargaining, there is a third category: illegal subjects of bargaining. No authority contends, however, that promotion to a position outside of a bargaining unit constitutes an illegal subject of bargaining. See, e.g., 1 A.B.A., supra, c. 16, p. 1393.
Neither the trial court nor the dissent analyze the language or contours of the past practices clause. Both simply take as a given that this particular past practices clause protects the practice at issue, namely, promotion to positions outside the bargaining unit. As we have detailed at length in part I of this opinion, the weight of labor law suggests that such a practice, which relates to a nonmandatory subject of bargaining, cannot be protected by the clause as set forth in the agreement. If the clause does not protect the practice at issue, then, as we argue, the past practices clause has no relevance, in which case, the plaintiffs claim cannot stand.
In addition to matters concerning wages, hours, or conditions of employment, unit members may also grieve matters affecting “health and safety.” Accordingly, we conclude that if the agreement intended to expand grievance
By pivoting away from the past practices clause, the dissent relieves itself of the task of demonstrating how that clause protects the practice at issue.
As the agreement makes clear, the purpose of the past practices clause is to incorporate into the agreement any applicable practice “just as though each such benefit or obligation was specifically set forth.” Therefore, it is a wholly different matter to treat a practice not covered by the clause as a course of dealing to interpret another provision within the agreement.
The dissent asserts that after resort to past practice the “agreement unambiguously requires the town to continue its past practices for promotions to captain.” Indeed, it is difficult to discern whether the dissent construes the agreement to be ambiguous or unambiguous. Although it asserts that the agreement is unambiguous, the dissent, in addition to its reliance on tools of construction for ambiguous language, concludes by arguing that the agreement could also be viewed as ambiguous, and then goes on to make selective arguments regarding the parties’ intent.
The significance of this point was persuasively stated by the United States Court of Appeals for the Seventh Circuit: “To place past practice on a par with the parties’ written agreement would create the anomaly that, while the parties expend great energy and time in negotiating the details of the [agreement, they unknowingly and unintentionally commit them
The dissent places great emphasis on the portion of § 4.1.19 of the pay plan that provides that candidates will be “ranked on the list in the order of the score received”; see footnote 7 of this opinion; to support its contention that the town must promote the highest ranked candidate. The dissent, however, is unable to explain why the testimony at trial established that for the positions of deputy chief and chief of police, the town was free to promote any candidate certified to the eligibility list, despite the fact that that list also calls for candidates to be “ranked on the list in the order of the score received . . . .” Greenwich Classification and Pay Plan § 4.1.19.
Moreover, similar language in § 7-474 (g), which addresses the interplay of towns and collective bargaining agreements, never has been interpreted to require municipalities to promote the highest ranked candidates. Section 7-474 (g) provides in relevant part that “[n]othing herein shall diminish the authority and power [of a town] ... to conduct and grade merit examinations and to rate candidates in the order of their relative excellence from
This concern is especially apt considering that the record is replete with evidence that the town has promoted outside of rank order for other municipal positions, despite the fact that those lists also required candidates to be listed in rank order.
We recognize that subsequent to the amended agreement, the town did in fact promote the two highest scoring lieutenants to police captain vacancies. That singular instance cannot, on its own, support a proposition that the town has established a past practice of hiring the highest scoring bargaining unit member to a position outside the bargaining unit. “[A] past practice must be clearly enunciated and consistent, endure over a reasonable length of time, and be an accepted practice by both parties.” (Emphasis added.) Public Service Electric & Gas Co. v. Local 94 International Brotherhood of Electrical Workers, 140 F. Sup. 2d 384, 398 (D.N.J. 2001), citing Posadas de Puerto Rico Associates, Inc. v. National Labor Relations Board, 243 F.3d 87, 92 (1st Cir. 2001); see also F. Elkouri & E. Elkouri, supra, c. 12, p. 625 (single incident has been held insufficient to establish past practice, citing arbitration cases therein).
Prior to 1999, that evidence would have needed to show that the town engaged in a practice of promoting the highest ranked police captains, who at the time were still members inside the bargaining unit, to the position of deputy chief, which was, and still is, outside the unit.
Past practice may no longer bind a party if the underlying conditions on which that practice was based have changed. F. Elkouri & E. Elkouri, supra, c. 12, p. 618. The dissent attempts to circumvent this principle by asserting that the status of the captain’s position, inside or outside of the unit, was not a condition on which the practice was based. This is simply not the case. All the evidence that supported rank order promotion was in connection with promotions to positions inside the bargaining unit, and no evidence was presented regarding a requirement for rank order promotion with respect to positions outside the bargaining unit. It cannot be denied then, that the past practice of rank order promotion was conditioned on the fact that promotions were made to positions inside the bargaining unit. Under the facts of the present case, that condition has obviously changed.
In short, the dissent’s assertion exemplifies the crux of the dispute between it and the majority. The dissent unyieldingly refuses to acknowledge that the removal of the police captain’s position from the bargaining unit had an impact on promotions to that position. In accordance with the constructs of labor law, we are bound to accord proper significance to that fact.
The trial court found that Walters’ “failure to appoint [the plaintiff] was motivated by bias against [the plaintiff] and favoritism toward Pacewicz.”
The plaintiff also raised a claim pursuant to Willowbrook v. Olech, supra, 528 U.S. 564, which recognizes an equal protection claim brought by a “ ‘class of one ....’” Subsequent to oral argument of this case, however, the United States Supreme Court decided Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591, 128 S. Ct. 2146, 170 L. Ed. 2d 975 (2008), in which it held that class of one claims were inapplicable to public employment.