McDonald, Charles M. v. Village of Winnetka ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1457
CHARLES M. MCDONALD,
Plaintiff-Appellant,
v.
VILLAGE OF WINNETKA, RONALD COLPAERT,
SCOTT SMITH and MITCHELL S. KUSHNER,
Defendants-Appellees.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 00 C 3199—John W. Darrah, Judge.
____________
ARGUED FEBRUARY 25, 2004—DECIDED JUNE 17, 2004
____________
Before CUDAHY, ROVNER and WILLIAMS, Circuit Judges.
CUDAHY, Circuit Judge. This case raises the question:
what could be worse than having most of your home burn
down in a fire? The answer, of course, is having the rest of
it burn down a couple of days later in a second fire. What
would make the situation dramatically worse, however, is
if the fire department determined that the second fire was
intentionally set (possibly by you) and called in federal au-
thorities to investigate, thus requiring you to invest sub-
2 No. 03-1457
stantial energy, time and money defending against such
allegations. Such a scenario would be particularly outra-
geous if the fire department did not actually believe that
the second fire was intentionally set but was merely trying
to draw attention away from the possibility that it had been
negligent in putting out the first fire. According to Charles
M. McDonald of Winnetka, Illinois, this is exactly what
happened to him. McDonald responded by bringing a
constitutional equal protection “class of one” claim in the
Northern District of Illinois against the Winnetka Fire
Department, following our precedent in Olech v. Vill. of
Willowbrook, 160 F.3d 386 (7th Cir. 1998), aff’d, 528 U.S.
562 (2000). After extensive discovery, and an unsuccessful
motion to dismiss, the district court eventually granted
defendants’ motion for summary judgment. For the reasons
discussed infra, we affirm the decision of the district court
because McDonald, in invoking the constitution, has failed
to identify someone similarly situated but treated differ-
ently.
I
Given the limited ground upon which we affirm the
district court, our discussion of the facts of this case is
relatively abbreviated. For a more detailed factual account,
we refer the reader to the district court’s lengthy discussion.
See McDonald v. Village of Winnetka, No. 00 C 3199, 2003
WL 168637, at *1-*15 (N.D. Ill. January 23, 2003). We note
that McDonald contends that the district court’s recitation
of the facts is one-sided and fails to construe the facts in the
light most favorable to the non-moving party. Upon inde-
pendent review, however, we find the district court’s
discussion of the facts of this case to be fair and balanced.
There simply is not enough space in the Federal Reporters
or on Westlaw’s hard drives to discuss explicitly every fact
No. 03-1457 3
and counter-fact which supports or affects each party’s
claim. Merely because a fact or argument has not been
explicitly laid out does not mean that it has not been given
serious consideration by the court. That being said, we take
you to McDonald’s first fire.
1. The first fire
Sometime during the afternoon of May 10, 1999, a fire
erupted at McDonald’s home at 894 Sunset Road,
Winnetka, Illinois. The Winnetka Fire Department (WFD)
arrived at McDonald’s home at approximately 4:09 p.m.
Among those firefighters present were Ronald Colpaert, the
Fire Chief; Scott Smith, the Deputy Fire Chief; and other
firefighters from Winnetka and from various surrounding
communities. Colpaert and Smith did not know McDonald
before the May 10 fire. After more than four hours of
fighting the fire, it was eventually extinguished at approxi-
mately 8:27 p.m. that same day.
In a subsequent investigation, WFD was able to deter-
mine that the May 10 fire started in the sunroom at the
east end of the first floor of McDonald’s home and was
caused by a spark from an electrical outlet that ignited
some paint stripping product. Fire, smoke and heat dam-
aged various rooms on the first and second floors of
McDonald’s home, including the breakfast nook.
At the time of the May 10 fire, firefighters with the WFD
knew that McDonald’s home contained cellulose insulation
that burned and smoldered. Cellulose insulation was pres-
ent throughout the walls of the attic-level bedroom, the
other rooms in the attic and above the kitchen and break-
fast nook ceiling, among other places. The WFD had dealt
with other insulation fires. In 1995, the WFD trained its
personnel with videos that specifically pertained to attic
4 No. 03-1457
fires and cellulose insulation. If not fully extinguished,
cellulose insulation can smolder undetected for periods
exceeding 2-3 days and can then ignite nearby combustible
materials, such as beams or studs. Therefore, in accordance
with common practice, a WFD firefighter returned to
McDonald’s home on the evening of May 10, to inspect the
house for “hot spots.” One hot spot was found and ex-
tinguished.
Diane Curtis, McDonald’s wife, was outside the home on
May 11 and 12, but did not report that she smelled smoke
or any burning or smoldering material. Tom Robertson of
the WFD was also at McDonald’s home for several minutes
on May 11, around 2:30 p.m. He viewed the exterior of
the building from the street and did not see any signs of
smoke. Various other employees of the Village of Winnetka
were at McDonald’s home on May 11 and 12, and did not
report seeing or smelling any smoke or any burning or
smoldering material.
At approximately 11:00 a.m. on May 11, Steven Strus, the
General Adjuster employed by McDonald’s insurer, Atlantic
Mutual Insurance Company, met with the insureds at the
house. They surveyed both the interior and exterior of the
home and did not report seeing any smoke or smelling
anything burning or smoldering. A disagreement arose
between McDonald and Strus regarding the extent of the
damage to the house caused by the first fire. McDonald
voiced his opinion that the house was a total loss, but Strus
did not agree.
McDonald was in his home on May 12 to let workers
in between 9:00 a.m. and 9:30 a.m. He returned at about
11:30 or 11:45 a.m. and remained in the building until
approximately 1:00 or 1:15 p.m. McDonald did not report
seeing any smoke or smelling anything smoldering or
burning at that time. At the scene of a fire that erupted
No. 03-1457 5
later on May 12, however, McDonald told Colpaert that he
might have seen a wisp of smoke or steam while he was
home that afternoon. McDonald claimed that he did not
report it at that time because he thought that his mind was
playing tricks on him. Except for the WFD firefighter who
detected and extinguished a hot spot the evening of May 10,
no one who had either been in the building or who had
viewed the outside of the building between the two fires
reported seeing, smelling or otherwise sensing smoke or
burning material in the building prior to the report of the
fire. Strus, the insurance adjuster, reported that McDonald
had called him at approximately 3:30 p.m. on May 12, and
“was very adamant that the dwelling be considered a total
loss.”
Brian Funches, the mail carrier on the route that in-
cluded McDonald’s home reported having observed what he
described as a gray Blazer containing a man and two
children in the driveway of McDonald’s home at about 4:30
p.m. on May 12, approximately a half hour before a fire was
reported.
2. The second fire
At approximately 5:08 p.m. on May 12, the WFD was
dispatched to McDonald’s home because of the subsequent
fire. Colpaert commanded at the fire scene with Smith’s
assistance, along with other firefighters from Winnetka and
from surrounding communities. Upon arriving at the scene,
the WFD found that a large fire had vented itself through
the roof toward the center of the structure. The fire was
extinguished by approximately 8:50 p.m. Colpaert ap-
pointed WFD Captain Dale Solberg as the lead investigator
of the cause and origin of the May 12 fire. At the scene of
the fire, McDonald asked a number of the firefighters what
had caused the fire, but they responded that they did not
6 No. 03-1457
know. He may also have inquired about the WFD’s poten-
tial liability if the fire were a rekindle.
Because Colpaert wanted a thorough and complete cause
and origin investigation, he requested that additional fire
investigators from other fire departments report to McDon-
ald’s home on May 12, to conduct a cause and origin inves-
tigation. This procedure is known as requesting a “fire
investigator box.” The State Fire Marshal was also called to
conduct a cause and origin investigation. The fire inves-
tigator box for the May 12 fire dictated that an investigator
from each of Northbrook, Northfield and Winnetka partici-
pate in the cause and origin investigation of the May 12
fire. These individuals and Mitchell Kushner, a Special
Agent assigned to the Division of Arson Investigation for
the Office of the Illinois State Fire Marshal (OISFM),
arrived at the scene on May 12, 1999. Kushner, who
happened to be a good friend of Solberg, had received
extensive training in fire investigation, including investiga-
tion into the origins and causes of fires.
In October 1999, Solberg wrote the following email to an
online community of arson investigators, in which he co-
lorfully discussed the decision to call in outside investiga-
tors:
Let me take it one step further. Your department has a
fire in a residential structure. Approximately 48 hours
after the first fire, a second fire happens. Everyone is
starting to think rekindle. Everyone around is thinking
the same thing. The structure has a value of over
$1,000,000.00. The homeowner says to the Fire Chief,
“who is responsible for this, you?” He insinuates that
your department could not extinguish the fire right the
first time and that you should be responsible for the
damage. I called investigators from 4 surrounding
communities including the Office of the State Fire
No. 03-1457 7
Marshal—Division of Fire Investigation. I put in charge
an investigator from another community so as not to
prejudice the investigation. Their conclusion— the fire
was set—not a rekindle. Save face for my department.1
Pl. Rule 56.1(B) Statement ¶ 92. Between 8:50 p.m. on May
12 and 12:35 a.m. on May 13, Solberg, Kushner and
Michael Roeder, another WFD fire investigator, investi-
gated the fire. Roeder, however, testified that he did not
actually participate in determining the cause and origin.
The WFD was assisted by Wayne Leucht and Bernie
Arends, investigators from Northbrook, as well as Tom
Burke of Northfield. The investigators were assisted by an
evidence technician from the Winnetka Police Department,
a photographer from the WFD, and an accelerant sniffing
dog (Nikki) from OISFM. Samples taken from the home to
test for accelerants proved negative, although the absence
of accelerants would not rule out the possibility that the fire
was deliberately set by someone lighting combustibles, such
as paper.
Solberg first sought to determine the place of the origin of
the May 12 fire by examining the remains of McDonald’s
home, from the area of least damage to the area of most
damage, and by talking with eyewitnesses at the scene.
Solberg also took into consideration the effect of the May 10
fire. Before leaving McDonald’s home, Solberg concluded
that although the attic area was damaged at least to the
same extent as the breakfast nook, the origin of the May 12
fire was a stud pocket at the base of the west wall of the
breakfast nook, a wall that continues down to the lower-
level bar. He formed this conclusion based on fire and burn
patterns, firefighting tactics and witnesses’ statements.
1
Solberg admits that in the October 1999 email he was referring
to the May 12 fire. He also acknowledges that, although the email
suggests otherwise, he led the investigation of the May 12 fire.
8 No. 03-1457
Kushner also conducted an investigation of the May 12
fire by surveying the entire scene. He testified that he
consulted with firefighters and investigators who had been
on the scene at the May 10 fire in order to differentiate
damage caused by the two fires. Domingo Hernandez, a
worker at McDonald’s home who witnessed the outbreak of
the second fire, was interviewed by Kushner and others on
the 12th, after the fire. Solberg Dep. at 32; Kushner Dep. at
49. According to Hernandez, he was working in the back
east corner of the backyard with several other individuals
who thought that they smelled smoke. They walked up to
the house and saw smoke and fire through the plywood of
a boarded-up window in the south window of the breakfast
nook area. Solberg Dep. at 32-33. However, in a subsequent
declaration, Hernandez averred that he saw flames coming
from the southeast corner of the roof over the breakfast
nook and that he did not see flames or smoke coming from
the south window of the breakfast nook.2 It was Hernandez
who telephoned his boss, and his boss telephoned the fire
2
Moreover, Hernandez later stated that it had been raining
earlier in the day, and there was “steam” rising from McDonald’s
roof as a result of the rain. Hernandez could not provide an exact
time of when he first observed smoke coming from the home. At
first, he noticed a “thin” smoke and thought it was steam. Later,
he noticed a thicker “white” smoke. To his knowledge, McDonald
and the men pumping water were the only individuals that
entered the home on May 12. In February and March 2000, other
workers that were at McDonald’s home on May 12 prepared
declarations concerning their observations of that day. Javier
Echevarria declared that at approximately 4:00 p.m. on May 12,
he observed smoke coming from the roof of the house. About five
minutes later, he observed smoke and flames coming from the
southeast corner of the roof. He did not see a silver or gray Blazer
at the home on May 12. Antonio Ruiz also observed smoke coming
from the roof of McDonald’s home, and he did not see flames
coming from the area near the south wall.
No. 03-1457 9
department. Hernandez says that approximately half hour
elapsed from the time he observed smoke until the time he
called his boss.
Kushner, along with other investigators, noted an area of
heavy charring and burning in the west wall of the break-
fast nook. This wall had no drywall remaining on it and
consisted solely of exposed stud beams. Kushner and other
investigators focused on this area as a possible point of
origin of the second fire. Kushner was told that the break-
fast nook sustained smoke damage in the first fire but did
not sustain fire damage. He investigated the breakfast
nook’s west stud wall and structural members and exam-
ined the area above the stud pocket of the west wall of the
breakfast nook by shining a light on the area above the stud
wall. No light was visible from above, indicating to him that
no burn material had fallen from another area down into
the base of the stud pocket. Based on the burn patterns,
firefighting tactics and witnesses’ statements, Kushner also
concluded that the May 12 fire originated at the base of the
west wall of the breakfast nook and that the fire had spread
from the stud pocket of the breakfast nook into the bar
area. The Northbrook investigators agreed that this was the
point of origin because of the extensive damage to the west
wall of the breakfast nook and because it appeared to be the
lowest point of burning in the specific area which they had
examined.
After determining the point of origin of the second fire,
Solberg and Kushner undertook the investigation of the
cause of the May 12 fire. The cause of any fire may fall into
one of three broad categories: accidental, incendiary and
undetermined. The WFD’s expert has written in a publica-
tion entitled, Fires and Explosions: Determining Cause and
Origins, “Firemen and investigators . . . should be ex-
tremely careful about attributing the fire to any cause
whatsoever unless they have corroboration and are abso-
lutely sure of the cause.” Pl. Rule 56.1(B) Statement at
10 No. 03-1457
¶ 53. He has further explained that “[t]o properly and
effectively establish the one and only true cause, the in-
vestigator must examine, evaluate, and rule out all other
possible causes.” Id. There is “no presumption that a fire
has been intentionally set. On the contrary, the presump-
tion of innocence which belongs to the accused carries with
it a presumption that the fire is of accidental or providential
origin.” Id. at ¶ 54. Additionally, one of the textbooks in
WFD’s library warns, “[i]f doubt exists about the cause of a
fire, an investigator must rule out all possibilities of
accidental fires before drawing conclusions, forming
opinions, or proceeding with an arson investigation and
trying to determine an incendiary cause.” Id. at ¶ 57.
Solberg and Kushner ruled out the possibility that gas,
electricity or lightning caused the May 12 fire because the
utilities at McDonald’s home had been turned off following
the May 10 fire, and the weather service had reported no
lightning strikes in the area. They ruled out the possibility
that smoking materials caused the fire because witnesses
reported that no one was smoking in the house and because
there was no evidence of smoking materials in the area of
origin. They also ruled out the possibility of spontaneous
combustion because there was no evidence of spontaneous
combustion in the area of origin.
Solberg and Kushner ruled out the possibility that a
rekindle of the May 10 fire caused the May 12 fire because
they concluded that the area of origin of the second fire was
physically remote from the area of the first fire and because
there was no burning in the area of origin of the second fire
which remained from the first fire. Moreover, in the
experience of Smith, Solberg and Kushner, no structure had
rekindled after the extinguishment of a fire at the same
structure approximately 48 hours earlier. The possibility of
a rekindle never entered Burke’s mind because of the 48-
hour time span between the two fires. On May 20, 1999, the
local newspaper, Winnetka Talk, quoted Smith as saying,
No. 03-1457 11
“It’s not a rekindle. Rekindles don’t happen 49 hours after
the first fire.” Def.’s 56.1 Statement ¶ A78; Smith Dep. at
104-09. At his deposition, Smith testified that he was
speaking generally and not specifically about the May 12
fire. Id. Solberg admitted that the mere fact that a second
fire flares as long as two days after the first fire does not, in
and of itself, enable an investigator to rule out a rekindle.
McDonald seems to argue that smoldering cellulose
insulation may have fallen down from the attic, thereby
igniting a fire near the breakfast nook. Solberg and
Kushner claim, however, that they also ruled out the
possibility that combustible material had dropped down into
the stud bay area of the breakfast nook to cause the May 12
fire because the structural materials above the open stud
bay were intact following the May 10 fire and, thus, could
not have fallen down. Moreover, no burned material, such
as wood members or insulation, was present in the stud bay
following the second fire. Solberg, Kushner and John
Agosti, a fire investigator for Atlantic Mutual, all concluded
that the May 12 fire was incendiary. Northbrook’s investi-
gators agreed, and Burke, Northfield’s firefighter, consid-
ered the May 12 fire suspicious.
3. Involvement of the Bureau of Alcohol, Tobacco and
Firearms
On May 17, 1999, Kushner and Solberg decided to call
Agent Glowski of the Bureau of Alcohol, Tobacco and
Firearms (ATF) to relate their findings regarding the cause
of the May 12 fire and to suggest that the ATF might want
to look into it. Solberg testified that he contacted the ATF
to tap into its resources and expertise. It is apparently not
uncommon for local fire departments to write a preliminary
report that a fire is incendiary and then call in the ATF,
and even McDonald’s expert did not criticize the WFD or
the State Fire Marshal for contacting the ATF under the
circumstances present in this case.
12 No. 03-1457
Kushner spoke with Glowski about the May 12 fire,
briefly summarizing what he found and expressing his
conclusions. He told Glowski that he thought the May 12
fire was an arson, and mentioned the conversation McDon-
ald had had with Strus shortly before the fire broke out.
Solberg also informed Glowski that he did not believe that
the May 12 fire was a rekindle and that he believed the fire
was incendiary. He told Glowski that the opinions of the
investigators as to the cause and origin were preliminary.
Neither Solberg nor Kushner mentioned any suspects in
connection with the fire. The ATF got involved in the
investigation because Kushner indicated that the fire was
“a possible arson.” Def. 56.1 Statement at ¶ A60.
Once the ATF was called into the investigation, the ATF,
itself, determined the scope and nature of its involvement.
Solberg provided the ATF with information that he had, but
the ATF was free to conduct its own cause and origin
investigation if it felt that appropriate. No one from the
WFD objected to the ATF’s conducting a cause and origin
investigation, and no one told the ATF not to conduct such
an investigation. Within one or two months of the ATF’s
involvement, Glowski enlisted Special Agent John Mirocha,
an ATF cause and origin specialist, to review the cause and
origin of the fire. Solberg was “open and forthright” and
complied with everything that the ATF asked of him. Id. at
¶ A67. Neither Kushner nor the WFD ever expressed to
Glowski any animus toward McDonald or his family. After
reviewing photographs, sketches and plans of the house and
discussing the two fires with Solberg, Mirocha agreed with
the cause and origin determination Solberg and Kushner
had made.
Glowski interviewed McDonald on June 15, 1999. This
was the first time that McDonald learned that the investi-
gators believed that the cause of the May 12 fire was
incendiary. During the ATF’s investigation, Glowski de-
termined that David Curtis, McDonald’s brother-in-law,
No. 03-1457 13
owned a gray Blazer and that he was in the area of the May
12 fire at the time the fire began, although he did not work
or reside in the area. When Glowski interviewed Curtis he
appeared to Glowski to be extremely nervous. Glowski
served Curtis with a grand jury subpoena. Curtis, however,
did not appear before the grand jury. In mid-to-late 1999,
an Assistant United States Attorney spoke with McDonald’s
counsel about an investigation by the U.S. Attorney’s Office
into a possible arson at McDonald’s home and into McDon-
ald’s possible involvement in the arson.
On January 5, 2000, Winnetka issued a nuisance vio-
lation to McDonald, ordering him to demolish his home.
Apparently, the official who issued the nuisance violation,
had consulted with the WFD before issuing it. Neither
Solberg nor Smith informed this official that the ATF might
need to get into the house at some point to physically
inspect it in the course of the ongoing investigation.
In March 2000, McDonald’s counsel and a private cause
and origin investigator employed by McDonald made a
presentation to the U.S. Attorney’s Office and the ATF,
expressing his opinion that the May 12 fire had been a
rekindle. After this presentation, cause and origin experts
went to the scene of the house. The ATF concluded, based
upon its examination of the scene, that, while it could not
eliminate the possibility of a rekindle, it also could not rule
out that the May 12 fire was intentionally set “by someone
piling up available combustibles in that stud bay and
lighting it.” Id. at ¶ A70. The ATF did not conclude that the
May 12 fire was a rekindle, nor did it eliminate arson as a
cause of the May 12 fire. The ATF’s uncertainty regarding
the cause of the May 12 fire was due not to any question-
able quality of the previous fire investigation but, at least
in part, to the significant alteration of the scene in the
months since the May 12 fire.
When the ATF shared its opinion with Solberg and
Colpaert, Solberg refused to change Winnetka’s National
Fire Incident Reporting System (NFIRS) report to reflect
14 No. 03-1457
that the cause of the May 12 fire was indeterminate.
Colpaert ordered him to do so, but Solberg refused and
Colpaert made the change himself. Glowski wanted to
continue to investigate following the ATF’s visit to
McDonald’s home because the occupants of the gray Blazer
seen at the residence half an hour before the May 12 fire
had not been identified. The Assistant U.S. Attorney who
was investigating the case telephoned McDonald’s counsel,
however, and informed him that the investigation would be
dropped.
4. Documentation
The defendants involved in this litigation apparently did
a questionable job of documenting McDonald’s fires. On
June 24, 1999, the WFD conducted a Post-Incident Analysis
(PIA) of the May 10 fire. The WFD Standard Operating
Procedure (SOP) # 3.02.01 requires each PIA that is
conducted to be documented by completing a PIA Fact
Sheet, a Post-Incident Worksheet and a Post-Incident
Summary. In this case, however, there is no record of what
transpired at the PIA. Colpaert testified that the WFD
SOPs are simply guidelines—not requirements.
Less than a week after the PIA, however, shift com-
mander John Gaughan ordered a videotape from an outside
vendor entitled, “Overhaul: Loss Control,” which demon-
strated, inter alia, “the practice of searching through an
extinguished fire scene to find hidden fires that could
rekindle.” Pl. Rule 56.1(B) Statement ¶ 107. In the follow-
ing weeks, WFD firefighters who were present at the May
10 fire watched the video—some more than once.
Under Illinois law, fire departments are obligated to
report all fire incidents to the Office of the State Fire
Marshal (OSFM). The NFIRS reporting system is used to
meet this obligation. The NFIRS incident report for the May
12 fire, dated May 13, was completed and signed by Solberg.
The report lists the “Ignition” factor as “Incendiary” and the
No. 03-1457 15
“Type of Action Taken” as “Investigation Only.” Id. at ¶ 132.
Although the NFIRS handbook calls for the “Officer in
Charge” section of the document to bear the date that the
officer creates the report, Solberg did not sign the report on
May 13, and he could not recall when he created it. The
NFIRS report was also apparently amended multiple times,
but only the most recent amended version could be recov-
ered.
An NFIRS report for the May 12 fire was also prepared by
the City of Highwood. Highwood responded to the May 12
fire after the WFD asked for other municipalities to assist.
Highwood was not dispatched to the fire scene. Instead,
Highwood reported to the WFD fire station for station
coverage. Highwood’s original NFIRS report lists the cause
of fire as a rekindle. Highwood Chief Ron Pieri, however,
testified that he changed the original report because it did
not correctly reflect Highwood’s role in the May 12 fire. The
Highwood firefighter who had prepared the original report
testified that he was in the kitchen of the WFD when he
had a conversation with an unidentified WFD dispatcher.
Based on this brief conversation with the dispatcher, the
Highwood firefighter prepared the report and marked
rekindle as the cause of the May 12 fire. When Pieri
changed the report, he did not explain to its original author
that he was going to change it, did not mark the change
field, did not change the date and did not put his name on
the new version. The revised version of Highwood’s NFIRS
report did not include a cause determination.
A WFD SOP requires that the fire investigator “[p]repare
the necessary forms, sketches and report to record the facts
determined by his investigation.” (SOP 401). This is known
as a “Fire Investigation Report” (FIR) and is not the same
thing as a NFIRS report. Although Solberg prepared a FIR
for the May 10 fire, he did not prepare a FIR for the May 12
fire because he intended to rely on Kushner’s report and did
not have time to prepare a separate one.
16 No. 03-1457
The OSFM requires that its investigators complete a
single-page initiation form that is intended to provide the
basic information about the time, date, location and cause
of the fire incident. After the form is completed, the inves-
tigator provides a copy of the form to the OSFM. On May
13, Kushner began filling out an initiation form for the May
12 fire. He completed the form on or about May 17; how-
ever, for reasons unknown, neither Kushner nor the OSFM
was able to produce this form. Kushner did, however,
prepare an investigatory report, which is dated May 27.
5. Procedural history
On May 25, 2000, McDonald brought suit against the
defendants in the Northern District of Illinois, bringing an
equal protection claim and a state law claim for intentional
and reckless infliction of emotional distress. McDonald
argued that “[f]or ten months, [he] lived in a state of con-
stant dread, fearing what would happen to his wife, chil-
dren, including a disabled child, and livelihood.” Pl. Br. at
10. The district court denied the defendants’ motion to
dismiss on May 2, 2001. However, it granted the defen-
dants’ motion for summary judgment on October 25, 2002.
This appeal followed.
II
We review a grant of summary judgment de novo. See
Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 974 (7th
Cir. 2004). In doing so, we construe all facts in favor of the
non-moving party. See id.; Rogers v. City of Chicago, 320
F.3d 748, 752 (7th Cir. 2003). However, “we are not re-
quired to draw every conceivable inference from the record.”
Bell v. Duperrault, No. 03-3829, 2004 WL 1057713, at *3
(7th Cir. 2004), quoting McCoy v. Harrison, 341 F.3d 600,
604 (7th Cir. 2003). Inferences that are supported by only
speculation or conjecture will not defeat a summary
judgment motion. Id. Summary judgment is proper “if the
No. 03-1457 17
pleadings, depositions, answers to interrogatories, and ad-
missions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(c) (2003).
This Court has recognized equal protection claims
brought by a “class of one,” although we have acknowledged
that it is difficult to succeed with such a claim. See
Levenstein v. Salafsky, 164 F.3d 345, 353 (7th Cir. 1998)
(citing Esmail v. Macrane, 53 F.3d 176, 179 (7th Cir. 1995)).
A class of one equal protection claim may be brought where
(1) the plaintiff alleges that he has been intentionally
treated differently from others similarly situated and (2)
that there is no rational basis for the difference in treat-
ment or the cause of the differential treatment is a “totally
illegitimate animus” toward the plaintiff by the defendant.
See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000);
Nevel v. Vill. of Schaumberg, 297 F.3d 673, 681 (7th Cir.
2002); but see Bell, 2004 WL 1057713, at *5 (Posner, J.,
concurring); and Hilton v. City of Wheeling, 209 F.3d 1005,
1008 (7th Cir. 2000) (rejecting the “no rational basis”
approach because “[i]f a merely unexplained difference in
police treatment of similar complaints made by different
people established a prima facie case of denial of equal
protection of the laws, the federal courts would be drawn
deep into the local enforcement of petty state and local
laws.”).3
3
Although bound by Olech and Nevel, we mention the concern
expressed in Hilton and Judge Posner’s concurrence in Bell that
there may be conceptual problems with allowing “class of one”
equal protection claims to proceed where the plaintiff alleges “no
rational basis” rather than a “totally illegitimate animus.” In the
typical equal protection claim, the victim alleges disparate treat-
ment based on race, gender, ethnicity, religion or sexual orienta-
(continued...)
18 No. 03-1457
In the present case, we find that McDonald has failed to
identify someone who is similarly situated but intentionally
treated differently than he. There is no precise formula to
determine whether an individual is similarly situated to
comparators. See Barrington Cove, LP v. R.I. House &
Mortg. Fin. Corp., 246 F.3d 1, 8 (1st Cir. 2001). As a general
rule, whether individuals are similarly situated is a factual
question for the jury. See Harlen Assoc. v. Vill. of Mineola,
273 F.3d 494, 499 n.2 (2d Cir. 2001). However, a court may
properly grant summary judgment where it is clear that no
reasonable jury could find that the singularly situated
requirement has been met. Id.; Bell, 2004 WL 1057713, at
*5 (affirming district court’s grant of summary judgment
where the plaintiff failed to raise a triable issue as to
whether he was “similarly situated” to comparators); Purze
v. Vill. of Winthrop Harbor, 286 F.3d 452, 455-56 (7th Cir.
2002) (same).
(...continued)
tion. In an equal protection “class of one” claim based on “totally
illegitimate animus,” the victim alleges disparate treatment
because he was disliked by the defendant, presumably on account
of prior dealings. See Albiero v. City of Kankakee, 246 F.3d 927,
931 (7th Cir. 2001) (quoting Esmail v. Macrane, 53 F.3d 176, 178
(7th Cir. 1995)) (noting that a “class of one” claim is appropriate
where a “powerful public official pick[s] on a person out of sheer
vindictiveness.”). In an equal protection “class of one” claim based
only on “no rational basis,” however, the victim is seemingly not
required to present any basis at all for the disparate treatment.
We wonder how a plaintiff can be expected to effectively show that
he was “intentionally treated differently” (as opposed to merely
showing he was intentionally treated badly) if he cannot even
identify the basis for the alleged difference in treatment. If the
plaintiff cannot show that he was intentionally treated differently,
there is not much room for such a claim under the equal protec-
tion clause. These thoughts are consistent with Judge Posner’s
postulation in Bell of differential treatment “for [unalloyed]
improper (usually personal) reasons” as the essential ingredient
of a “class of one” equal protection claim.
No. 03-1457 19
It is clear that similarly situated individuals must be very
similar indeed. Purze, 286 F.3d at 455 (holding that in order
to be considered “similarly situated,” comparators must be
“prima facie identical in all relevant respects”). For in-
stance, in the employment context, we have said that
“[m]ore evidence than the mere fact that other employees
were not discharged for at best arguably similar misconduct
must be demonstrated . . . .” Hiatt v. Rockwell Int’l Corp., 26
F.3d 761, 771 (7th Cir. 1994). Where the plaintiff claims
that he was disciplined more harshly than others, he must
show that he is “similarly situated to persons outside the
protected class with respect to performance, qualifications,
and conduct.” Radue v. Kimberly-Clark Corp., 219 F.3d 612,
617 (7th Cir. 2000) (citation omitted). “This normally
entails a showing that two employees dealt with the same
supervisor, were subject to the same standards, and had
engaged in similar conduct . . . .” Id. at 617-18; see also Cruz
v. Coach Stores, 202 F.3d 560, 568 (2d Cir. 2000) (holding
that for purposes of a claim of selective enforcement of a
policy calling for termination of employees engaged in
fighting or verbal assault, a plaintiff who had engaged in
fighting was not situated similarly to those who engaged in
a verbal assault).
We have imposed on plaintiffs an equally high burden
with regard to establishing someone who is similarly situ-
ated in the context of “class of one” equal protection claims.
See Bell, 2004 WL 1057713, at *4 (individuals were not
similarly situated in a “class of one” equal protection case
where individuals submitted applications for pier exten-
sions at different times, requested different extensions, or
requested to replace existing structures rather than build
new ones); Purze, 286 F.3d at 455 (individuals were not
similarly situated in a “class of one” equal protection case
where the individuals submitted different variances than
the plaintiff requested, submitted their plats during
20 No. 03-1457
different time periods, or had requests granted by different
and previous Boards); see also Manley v. Thomas, 255 F.
Supp. 2d 263, 267-268 (S.D.N.Y. 2003) (“[T]he number and
variety of factors bearing on the seriousness of the underly-
ing offense and the likelihood that an offender will be a
danger to the community make it impossible to conclude, on
the bases of the sketchy data presented, that petitioner has
been singled out from among all homicide offenders for
disparate treatment.”); Wantanabe Realty Corp. v. City of
New York, No. CIV.10137-LAK, 2003 WL 21543841, at *14
(S.D.N.Y. July 10, 2003) (“[Plaintiff] would have to show
that other property owners whose structures for some rea-
son were unwanted by high City officials were not also
subjected to sham inspections and politically driven dem-
olition processes.”)
In the present case, McDonald attempts to meet the
“similarly situated” requirement by arguing that the WFD
had an established procedure that it followed when inves-
tigating every fire in Winnetka other than his. Reply Br. at
4 (“Defendants deviated from these norms only in their
investigation of the second fire at McDonald’s home and
thus treated McDonald differently from every other
Winnetka homeowner at whose residence defendants in-
vestigated a fire.”). This procedure, argues McDonald, is to
rule out all possible accidental causes before deeming a fire
arson. Id. Therefore, McDonald argues that he is similarly
situated to every resident who had a residential, structural
fire, but that he was treated differently because only in his
case did the WFD fail to rule out all non-arson causes
before making an arson determination.4 Id.
4
McDonald also argues that another fire investigation norm is
that “[a]n arson finding requires affirmative proof that the fire
was intentionally set.” Reply Br. at 4 (emphasis in original).
(continued...)
No. 03-1457 21
There are several problems with this argument. First,
McDonald has failed to present any competent evidence
that the WFD did not rule out all possible accidental
causes, including rekindle, in this case. In fact, the evidence
upon which McDonald relies demonstrates that the WFD
did rule out rekindle. For instance, McDonald relies heavily
on Solberg’s email as a sort of “smoking gun.” See supra,
Slip op. at 6-7. However, this email suggests that the WFD
initially considered rekindle as a possible cause but ulti-
mately eliminated it. McDonald further relies on Smith’s
public comments right after the second fire, in which he
discussed one reason that he believed the fire was not a
rekindle. Additionally, McDonald presents “cause and ori-
gin” reports, which McDonald claims were edited to remove
references to rekindle. If true, these deletions would also
suggests that rekindle had been considered at one point but
was ultimately eliminated. Both Solberg and Kushner
testified that the investigative team eliminated rekindle.
Kushner Dep. at 107-09, 176; Solberg Dep. at 89, 156. Their
(...continued)
However, McDonald presented no evidence that this norm was one
that the WFD ever followed. To the contrary, Solberg testified
that one can conclude that a fire is incendiary simply by eliminat-
ing all accidental and natural causes for a fire even if there is no
direct evidence of an incendiary cause. Solberg Dep. at 96-98.
WFD fire reports support this assertion. See, e.g., Pl. Rule 56.1(B)
Statement, Ex. 33 (“Due to the intense heat, the rapid and even
burn, amount of burn throughout the structure, and ruling out all
accidental causes in which the fire could have started, I have to
conclude that this fire was deliberately set.”). Moreover, Kushner’s
fire investigation reports also suggest that no affirmative evidence
is required. For instance, in one report he concluded that he was
unable to rule out an incendiary act as a possible cause of the fire
but discussed no affirmative evidence of arson. Id. at Ex. 27. If
affirmative evidence were required, Kushner should have been
able to rule out arson as a potential cause.
22 No. 03-1457
testimony was consistent with contemporaneous ATF
reports of conversations each member had had with the
ATF. See Glowski Dep., Ex. 9 (ATF Report 001) (“Kushner
did not believe the second fire was a rekindle from the first
fire.”); Ex. 10 (ATF Report 002) (noting that Solberg
“eliminated all possible causes for the start of the fire. He
also said it was not rekindle from the first fire.”). Bernie
Arends, a fire investigator from Northbrook, agreed. See
Arends September 25, 2002 Decl. (“It was the collective
conclusion of the six investigators at the scene on May 12
that there was no reasonable possibility that fire rekindled
in the stud pocket. There was therefore no reason to
conclude that a rekindle caused the May 12 fire.”).
Further, McDonald has presented no evidence of any
particular procedure which should be used to “rule out”
rekindle. In other words, McDonald does not identify any
additional steps that the WFD would have had to take to
officially rule out rekindle.5 This makes it difficult, if not
5
The only evidence McDonald presents to suggest that the
defendants failed to ruled out rekindle as a procedural matter, is
the fact that “rekindle” was not expressly included in the Fire
Investigation Report’s list of natural and accidental causes which
had been ruled out. See Pl. Rule 56.1(B) Statement, Ex. 37. This
Fire Investigation Report, however, is not a statute to which we
apply expressio unius. Given the facts of this case, the absence of
the word “rekindle” from the report is of minimal relevance and
certainly does not present a triable issue. McDonald’s allegation
is that the defendants were intentionally covering up a rekindle.
If that were true, it would be irrational for the defendants to
intentionally leave “rekindle” off the list of accidental causes
which they had eliminated. Therefore, if anything, the absence of
a reference to rekindle in Kushner’s report suggests that there
was no intentional cover up. Instead, the absence of an express
reference can best be explained by the fact that Kushner typically
prepares reports by cutting and pasting boilerplate language from
(continued...)
No. 03-1457 23
impossible, for McDonald to effectively argue that, as a
procedural matter, the WFD failed to rule out rekindle. It
also supports the conclusion that McDonald’s real argument
is not procedural (i.e., that the WFD failed to rule out
rekindle) but substantive (i.e.,that they improperly ruled
out or should not have ruled out rekindle).6
Second, even assuming McDonald had presented some
competent evidence that WFD failed to rule out rekindle, he
presented no evidence of anyone “similarly situated” but
treated differently. Instead, McDonald presents seven
“cause and origin” reports prepared by the WFD for pre-
vious fires that it investigated (some dating back almost
twenty years). Not surprisingly, these reports suggest that
the WFD believed that it properly eliminated all non-arson
causes in prior fires. This evidence is of little relevance,
however, because it does not establish whether the WFD
(...continued)
previous reports, which likely did not include any discussion of
rekindle. See Kushner Dep. at 21-22 (“[I]t is a template . . . I
usually pull one up . . . kind of fill it in over the one that’s there
because it’s pretty much a standard—as you guys would say,
boilerplate language. . . . [I]t is easier for me to go back and fill in
the blanks and change things than it is for me to type the whole
thing every time.”)
6
McDonald has also failed to raise a triable issue as to whether
the WFD “provide[d] false information to law enforcement re-
garding their investigation.” Reply Br. at 4; see also Pl. Br. at 23.
The defendants told the ATF that they did not believe the fire was
a rekindle. Glowski Dep., Ex. 9 (ATF Report 001), Ex. 10 (ATF
Report 002). McDonald has presented no evidence that the
defendants believed otherwise at the time they contacted the ATF,
and the ATF did not believe it had been misled. See id. at 191 (“Q:
Did you feel in any way that Mr. Kushner had misled you in any
factual matter with respect to the information that he conveyed
to you in this phone call based upon your subsequent investiga-
tion? A: No, I did not.”); Id. at 193-94.
24 No. 03-1457
actually eliminated all non-arson causes in prior investiga-
tions. In other words, they do not show whether these
comparators were actually treated differently. The home-
owners in those cases may have been just as displeased
with the WFD’s investigation as McDonald is in the present
case. It must be remembered that the WFD argues that it
eliminated all non-arson causes for McDonald’s fire as well.
Therefore, even if a jury could find that the WFD failed to
rule out a non-arson cause in this case, there is no way that
the jury could determine whether there were similar
problems with its other investigations. The simple fact that
the WFD thinks it did a thorough job with respect to its
earlier investigations is no more dispositive than its belief
that it did a thorough job in the present case.
These other investigations are not similarly situated to
McDonald’s for another reason. None of these other inves-
tigations involved possible rekindle. Eliminating rekindle
as a possible cause of a fire is not as simple or objectively
demonstrable as eliminating other causes. For instance, one
can eliminate lightning as a cause simply by checking the
weather as recorded by a weather service. See Solberg Dep.
at 104. Similarly, natural gas can be eliminated as a
possible cause where, as in this case, the gas had been
turned off well before the fire. Id. at 101; Pl. Rule 56.1(B)
Statement, Ex. 37 (Kushner’s May 27, 1999 Report).
Smoking materials can be eliminated if nobody was in the
house smoking. See Solberg Dep. at 102. Eliminating re-
kindle, however, is a more subjective and imprecise task,
and as this case demonstrates, reasonable experts can differ
on the matter. Therefore, the possibility that the defendants
may have been able to eliminate other accidental causes in
previous investigations would not make it surprising that
they “failed” to rule out rekindle with the same degree of
precision in this case.
McDonald’s real argument in this case is that the WFD
improperly ruled out rekindle—not that it failed to rule out
No. 03-1457 25
rekindle. As discussed supra, McDonald has presented
evidence only of the former and not the latter. Moreover, it
would be irrelevant to an equal protection claim that the
WFD intentionally failed to rule out rekindle if it would
have been proper to rule it out anyway. See Nevel, 297 F.3d
at 681 (“[I]f the government would have taken the action
anyway, the animus will not condemn the action.”).7
The fact that McDonald must ultimately show that the
WFD improperly ruled out rekindle in this case is helpful in
understanding the “relevant respects” in which comparators
must be similarly situated. In order to identify in what
respects comparators must be similarly situated, we may
draw on the well-established law regarding “selective
prosecution” since such claims illustrate principles applica-
ble here. See Levenstein, 164 F.3d at 353 (“Levenstein’s
allegation that his [injuries] were caused not by allegations
that he had committed acts of sexual harassment, but
rather arose from the sheer vindictiveness the University
officials felt toward him . . . falls within the context of
selective prosecutions prohibited by the Equal Protection
clause.”); Cobb v. Pozzi, 352 F.3d 79, 99 (2d. Cir. 2003)
(discussing the narrow difference between a selective
prosecution claim and an equal protection “class of one”
claim).
The cases discussing selective prosecution have made it
clear that in order for an individual to be similarly situated
for such purposes, the evidence against the comparator
must be “as strong [as] or stronger” than that against the
person arguing there has been an equal protection violation.
See United States v. Smith, 231 F.3d 800, 810-11 (11th Cir.
2000) (citing United States v. Armstrong, 517 U.S. 456, 465
(1996)); United States v. Monsoor, 77 F.3d 1031, 1034 (7th
7
If the WFD accidentally failed to eliminate rekindle, this would
not be an actionable equal protection claim, since such claims
must be based on intentional conduct. See Nevel, 297 F.3d at 681.
26 No. 03-1457
Cir. 1996) (defendant could not show that he was situated
similarly to his uncharged accomplices for purposes of
making a selective prosecution claim where the government
lacked sufficient evidence to charge the other individuals);
United States v. Hayes, 236 F.3d 891, 895 (7th Cir. 2001)
(“[I]n order to obtain discovery on such a claim, a defendant
must at least produce some evidence that similarly-situated
defendants of other races could have been prosecuted but
were not.”); United States v. Davis, 339 F.3d 1223, 1228 n.3
(10th Cir. 2003); United States v. Serafino, 281 F.3d 327,
331 (1st Cir. 2002); United States v. Hastings, 126 F.3d 310,
315 (4th Cir. 1997) (“[D]efendants are similarly situated
when their circumstances present no distinguishable
legitimate prosecutorial factors that might justify making
different prosecutorial decisions with respect to them.”)
(internal quotation marks omitted). Therefore, in this case,
McDonald must present other investigations conducted by
the defendants in which the evidence of rekindle (or another
non-arson cause) was of a similar or lesser weight and the
evidence of arson was of a similar or greater weight, and
that, nonetheless, the defendants did not deem the fire to be
arson and did not refer the matter to the ATF.
McDonald has failed to identify a similarly situated
individual most fundamentally because in none of the cases
identified by McDonald was the evidence of a non-arson
cause of a similar or lesser weight or the evidence of arson
“as strong or stronger” than in McDonald’s situation. See
Smith, 231 F.3d at 810-11. Unlike the present case, in each
of the WFD cases cited by McDonald, the cause of the fire
was the obvious and admitted negligence of the home-
owners or their agent.8 In the first case, the housekeeper
8
McDonald also presents two different reports prepared by
Kushner related to his investigation of other fires. These com-
parators also fail to meet the similarly situated requirement. In
the first case, the house was under construction at the time of the
(continued...)
No. 03-1457 27
admitted to starting the fire accidentally while working
near the stove. Pl. Rule 56.1(B) Statement, Ex. 29. In the
second case, the fire was started when the homeowners
were barbecuing, and they removed ten charcoal briquettes
from the grill and put them in a brown paper bag in their
kitchen. Id. at Ex. 30. In the last case, the fire was started
when the homeowner threw a rag soaked with paint thinner
into a trash can in his garage which unfortunately also
contained approximately three gallons of saw dust. Id. at
Ex. 31.9 Based on the investigation reports, the WFD did
(...continued)
fire, and the entire house fell into the basement section. There-
fore, the investigators admitted being unable to determine the
point of origin of the fire. See Pl. Rule 56.1(B) Statement, Ex. 27.
In the present case, the WFD was able to determine the point of
origin. In the second case, it was raining and overcast at the time
of the fire, and the fire was determined to have started in the attic
of the house. Id. at Ex. 28. Therefore, Kushner was unable to
eliminate lightning as a possible cause. Unlike the present case,
there was no evidence contraindicating the possible non-arson
cause. Moreover, nothing in the report indicates that arson was
ever considered as a possibility. Id.
9
McDonald also presents five pages from a deposition of Solberg
in which he discusses a different fire investigation by the WFD.
Pl. Rule 56.1(B) Statement, Ex. 32. These deposition excerpts do
not provide a fact-finder with competent evidence to determine
whether the fire investigation discussed in them was similarly
situated. First, it cannot be determined which officers investigated
the fire or what role Solberg played in the investigation, if any.
Second, in this other fire investigation, there was evidence of a
non-arson cause (equipment found in the area of origin) and “no
evidence of foul play” or other evidence contraindicating the non-
arson cause. Id. at 50, 52. Moreover, the WFD was able to
eliminate an intentionally set fire, in part, because “there was no
forced entry into the building.” Id. at 51. This suggests that the
building was locked and inaccessible at the time of the fire.
Finally, the deposition shows that Solberg knew very little about
(continued...)
28 No. 03-1457
not even consider arson as a possibility in any of these
cases, likely because the causes of the fires were apparent.
In each of these cases, the homeowners suggested their own
accidental involvement in the fire and unlike the present
case, in each of these cases there was no evidence presented
of any fact contraindicating the possible non-arson cause.
While in the present case there may have arguably been
evidence of rekindle, this cause certainly was not obvious.
Even the ATF ultimately was unable to conclude that the
second fire was or was not a rekindle. In fact, no party has
ever conclusively determined the cause of this fire to be
rekindle. First, the WFD determined that the point of origin
of the second fire was a portion of McDonald’s home that
was unaffected by the first fire, seemingly ruling out
rekindle. Regardless whether this determination was
proper, the fact that the WFD articulated a basis for elim-
inating the non-arson cause itself distinguishes this case
from the other investigations.
Second, the subsequent fire started more than 48 hours
after the first fire. While a rekindle can apparently occur up
to three days after an initial fire, such an occurrence must
be rare, as none of the investigators in this case had ever
experienced a rekindle occurring after such a significant
gap in time. Agent Glowski of the ATF had never investi-
gated such a rekindle and knew of no rekindle that occurred
48 hours after a fire. Glowski Dep. at 204. Kushner, in fact,
did not believe that a rekindle could occur after such a time
gap, at least given the facts of this case. See Kushner Dep.
at 155; see also Arends September 25, 2002 Decl. at 11 (“In
my 30 years of experience in the fire service, I have never
(...continued)
the particular fire he was being asked about. For all these
reasons, we do not believe that this deposition testimony is com-
petent evidence of a similarly situated fire investigation.
No. 03-1457 29
experienced a rekindle anywhere near 48 hours after the
first fire. Rekindles are very unusual (I have seen it happen
only twice in my career) and rekindles occurring more than
one or two hours after the first fire are especially extraordi-
nary.”) Third, during the 48-hour gap between the fires, a
variety of individuals had been in and around the residence
at different points and none reported to the WFD any
smoke, smoldering or anything else that would suggest that
the fire from May 10 was still burning. Fourth, the WFD
was confident that the earlier fire had been completely
extinguished.
Additionally, unlike the other investigations identified by
McDonald, in the present case, there were what could be
called suspicious circumstances surrounding the fire. Most
notably, McDonald had multiple conversations with his
insurer after the first fire, in which he was apparently very
adamant in his attempts to convince the insurer to declare
his home a total loss—a request which the insurer refused.
The last of these conversations occurred shortly before the
second fire began. Additionally, McDonald made a visit to
the remains of his home shortly before the second fire.
It is also noteworthy that in the other investigations
relied upon by McDonald, the investigating officer and the
officer who prepared the investigative report was Michael
Roeder. Roeder, however, did not participate in determining
the cause and origin of the May 12 fire. Roeder Dep. at 204.
To the contrary, it was Solberg’s job to investigate the May
12 fire. Id. “This omission alone probably precludes a
showing of similarity because when different decision-
makers are involved, two decisions are rarely similarly
situated in all relevant respects.” Radue, 219 F.3d at 618
(internal quotation marks and citations omitted); Purze, 286
F.3d at 455 (noting that individuals were not similarly
situated where, inter alia, they had their plat requests
granted by differe and previous Boards). In this case, for
30 No. 03-1457
instance, Roeder may simply nt be a more thorough,
competent or conservative investigator than Solberg, and
this alone may explain any alleged difference in McDonald’s
treatment.10
10
McDonald also presents a number of reports which were
prepared by Solberg. See Pl. Rule 56.1(B) Statement, Ex. 33-36.
However, in each of these reports the WFD concluded that the fire
was intentionally set. Given that the WFD made this same
determination with regard to McDonald, there is no evidence that
the homeowners in these cases were treated differently than
McDonald. See Purze, 286 F.3d at 455 (“In order to succeed, the
Purzes must demonstrate that they were treated differently than
someone who is prima facie identical in all relevant respects.”)
(emphasis added). McDonald’s argument appears to be that, al-
though the WFD determined the cause of these other fires to be
incendiary, it did so only after eliminating all accidental causes.
The reports, however, fail to demonstrate that the WFD did any-
thing differently with regard to these other fires than it did with
regard to McDonald’s. One report does not state anything at all
about ruling out any accidental or natural cause. See Pl. Rule
56.1(B) Statement, Ex. 36. One report actually suggests that there
was a potential accidental cause which the WFD failed to rule out
before making an arson determination. Id. at 33 (noting that a
firefighter saw a blue flame toward the center of the building
which he initially thought was a natural gas line but nowhere
explaining how or if that potential cause was eliminated). Every
other report includes a conclusory statement that accidental and
natural causes had been ruled out. Id. at 33-35. It is true that the
report of McDonald’s fire does not include such a conclusory
statement. Id. at 37. This difference in notation is of little
relevance to our inquiry but, in any case, it can easily be ex-
plained by the fact that the report of McDonald’s fire was pre-
pared by Kushner, whereas the other reports were all prepared by
Solberg. Radue, 219 F.3d at 618. Moreover, the report of McDon-
ald’s fire was arguably more comprehensive with regard to the
ruling out of accidental causes. Unlike each of the other reports,
the report in McDonald’s case contains a discussion of many of the
(continued...)
No. 03-1457 31
Further, none of the cases identified by McDonald in-
volved second fires, so there was naturally no discussion of
rekindle in the corresponding reports. As discussed, it can
be more difficult to precisely rule out rekindle than other
accidental causes. Moreover, unlike the other cases, in the
present case, an Illinois State Fire Marshal investigated the
same fire and reached the same conclusion as did the WFD.
Similarly, the ATF investigated and was unable to rule out
arson as a possible cause. Finally, as noted supra, there is
no way for this Court or a jury to determine whether the
WFD’s investigation of these other fires was as sharply
criticized as its investigation here. We know nothing more
about these investigations than what the WFD printed in
its reports.
At this point we believe it is important to step back a bit
to avoid losing sight of the forest for the trees. The reason
that there is a “similarly situated” requirement in the first
place is that at their heart, equal protection claims, even
“class of one” claims, are basically claims of discrimination.
See Olech, 528 U.S. at 564 (“[T]he purpose of the equal
protection clause of the Fourteenth Amendment is to secure
every person within the State’s jurisdiction against inten-
tional and arbitrary discrimination”) (citations omitted);
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439
(1985) (“The Equal Protection Clause of the Fourteenth
Amendment . . . is essentially a direction that all persons
similarly situated should be treated alike.”); E.E.O.C. v.
Elrod, 674 F.2d 601, 604 (7th Cir. 1982) (“[Protection
against] discriminatory government conduct . . . is the very
essence of the guarantee of ‘equal protection of the laws’ of
(...continued)
accidental causes and how they were eliminated. See Pl. Rule
56.1(B) Statement, Ex. 37. Additionally, McDonald’s argument
with respect to these reports fails for the reasons related to
internal comparability discussed in the body of this opinion.
32 No. 03-1457
the Fourteenth Amendment.”). Even if McDonald was
wronged here, we do not believe that he has shown the
wrong to be discriminatory in nature. See Bell, 2004 WL
1057713, at *7 (Posner, J., concurring) (“[I]rrational
differences in treatment having nothing to do with discrimi-
nation against a vulnerable class abound at the bottom
rung of law enforcement.”). Every time an actor commits a
tort, he may be treating the victim differently than he
frequently treats others, simply because tortious conduct is
by nature a departure from some norm. Nonetheless, the
purpose of entertaining a “class of one” equal protection
claim is not to constitutionalize all tort law nor to transform
every claim for improper provision of municipal services or
for improper conduct of an investigation in connection with
them into a federal case. Id. (“It is highly unlikely that the
Supreme Court intended in Olech to open the door to such
cases.”). Therefore, we believe a meaningful application of
the “similarly situated” requirement is important to
avoiding a distortion of the scope of protection in “class of
one” equal protection claims. In this case, we find that
McDonald has failed to present evidence of a similarly
situated individual and we AFFIRM the district court’s grant
of summary judgment on this basis.11
11
Defendants have also filed a Motion to Dismiss Appeal or to
Strike Plaintiff-Appellant’s Statement of Facts. We agree that
McDonald’s statement of facts is rife with inappropriate argument
and comment and is therefore in violation of our circuit rules. See
Seventh Circuit Rule 28(c) (mandating that a statement of facts
“be a fair summary without argument or comment”); see also Day
v. Northern Indiana Public Serv. Corp., 164 F.3d 382, 384-85 (7th
Cir. 1999) (granting motion to strike where appellant’s statement
of facts was argumentative and unsupported by citation). For
example, in the fact section of his brief, McDonald states, without
citation that “Colpaert, the other defendants, and Solberg decided
to label the May 12 fire an arson, conceal the rekindle, and strike
out at McDonald.” Pl. Br. at 7. Even more disturbing, we find
McDonald’s assertions and citations to the record to be mislead-
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No. 03-1457 33
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
(...continued)
ing. For instance, McDonald states that “investigators testified
that a rekindle had not been eliminated during the on-scene
investigation.” Pl. Br. at 16 (citing Supp. App. at 21) (“Roeder
testified that no one at the WFD, including Solberg and himself
had ruled out rekindle.”). However, Roeder’s cited testimony was
only that he did not see or hear Solberg rule out rekindle—not
that Solberg “did not” rule out rekindle. Roeder Dep. at 201-04.
Significantly, Roeder also testified that he did not actually
participate in determining the origin and cause of the May 12 fire,
making it unsurprising and of little significance that he did not
see or hear Solberg rule out rekindle. Id. at 204. We do not
approve of McDonald playing fast and loose with the facts of this
case, nor did it make our job any easier. Nonetheless, given our
disposition of this case on the merits, we deny Defendants’ motion
as moot.
USCA-02-C-0072—6-17-04