Second Circuit outlines how to win (and lose) non-employment equal protection claims

In this case, the Court of Appeals tells us all we need to know about how to resolve equal protection cases when the government is accused to singling someone out in the provision of government services.

The case is Hu v. City of New York, issued on June 13. Plaintiffs are an Asian construction worker and Asian-owned companies who perform work in New York City. They claim that an Assistant Chief Inspector, Burkart, selectively enforced the building codes against plaintiffs out of anti-Asian animus, in part through a personal vendetta against Asians in general and Hu in particular. Plaintiffs claim Burkart has harassed and belittled Asian workers while constructive construction websites, and that he has singling them out for code violations, acts which have harmed the plaintiffs financially and cost them prospective customers.

Plaintiffs pursue two avenues for relief: they invoke LeClair v. Saunders, 627 F.2d 606 (2d Cir. 1980), which requires proof of disparate treatment and impermissible motivation (such as race), and Village of Willowbrook v. Olech, 528 U.S. 562 (2000), where the Supreme Court recognized "class of one" claims, which permits equal protection claims where the plaintiff is shafted by the government and others who are nearly identical to the plaintiffs' situation are left alone and not hassled. This case examines the interaction between Olech and LeClair.

These two precedents "offer distinct pathways for proving a non-class based Equal Protection violation," the Second Circuit (Jacobs, Lynch and Hall [D.J.]) says. Unlike a malice-based LeClair claim, an Olech claim does not require proof of the defendant's subjective ill-will toward the plaintiff, who can win under Olech on the basis of similarity alone. But in order to prove an Olech claim, that similarity must be almost identical to the plaintiff's situation, requiring almost a mirror-image.

Plaintiffs have made out a LeClair claim, the Second Circuit rules, reversing the district court on this issue. They argue that Burkart cited them for the same conduct (having a pool of standing water) on a job site without similarly charging a white company at the same job site. The Court says this is a close case, and discovery may show that there were meaningful distinctions among the alleged misconduct by the Asian and white companies. But for now, the plaintiffs have case, as the fact-intensive nature of the "similarly-situated" inquiry cautions against deciding whether two comparators are similarly-situated on a motion to dismiss.

Plaintiffs do not have an Olech claim, however, as none of their proffered comparators satisfy the more stringent similarly standard under that case. It looks like the allegations in the complaint are too sparse to satisfy Olech. "The Amended Complaint is silent as to a whole host of potential factors that could legitimately justify Burkart's behavior, including, inter alia, whether the white workers were engaged in the same type of work as the plaintiffs, the length of time between Burkart's visits to the 34th Avenue Jobsite, and the identity of the white workers' employer." This case reminds us just how difficult it is to win an Olech claim, or to even plead it plausibly.

Finally, plaintiffs had a plausible Section 1981 claim. These claims carry a similar burden of proof to claims under LeClair. Plaintiffs may proceed to discovery in part through allegations that Burkart has enlisted the help of other government employees by searching Department of Buildings databases to find construction firms that employ Hu, and the then inspect those worksites. It also looks like Burkart has bragged about shutting down Hu's worksites throughout the city. The complaint asserts that Burkart has been angry at Hu for years ever since Hu filed a complaint with the Department of Buildings against Hu in 2011, alleging that Burkart was enforcing the building code in a discriminatory manner.