Lauth, Chester A. v. McCollum, David L.

In the
United States Court of Appeals
For the Seventh Circuit
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No. 04-3782
CHESTER A. LAUTH,
Plaintiff-Appellant,
v.
DANIEL L. MCCOLLUM,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 8529—Samuel Der-Yeghiayan, Judge.
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ARGUED JUNE 10, 2005—DECIDED SEPTEMBER 20, 2005
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Before FLAUM, Chief Judge, and POSNER and KANNE, Circuit
Judges.
POSNER, Circuit Judge. The plaintiff, Lauth, a police officer
in the Chicago suburb of LaGrange Park, sued his police
chief, McCollum, under 42 U.S.C. § 1983. The suit charged
that McCollum (and the Village, but it’s been dropped as a
defendant) had deprived Lauth of the equal protection of
the laws by asking the Village’s Board of Police Commis-
sioners to sanction him for misfeasance. (The Board
obliged.) The district judge granted summary judgment for
the defendants, and Lauth appeals.
A woman had reported her 11-year-old son missing, and,
though the child was found the next day unharmed, Lauth
2 No. 04-3782
in responding to the report had failed to comply not only
with standard operating procedures for handling missing-
persons reports but also with statutory requirements. See
Intergovernmental Missing Child Recovery Act, 325 ILCS
40/1-8. The Board, upon McCollum’s complaint, ordered
Lauth suspended without pay for a total of 60 days. He
could have sought judicial review of the Board’s decision in
the Illinois state courts, 65 ILCS 5/10-2.1-17; Van Milligan v.
Board of Fire & Police Comm’rs, 630 N.E.2d 830, 836 (Ill. 1994),
but he did not, and instead brought the present suit, in
which he implausibly seeks some $20,000 in compensatory
damages (his annual salary is only $59,000 and one-sixth of
that is not even $10,000), plus an undetermined amount of
damages for emotional distress, plus punitive damages and
attorneys’ fees.
Lauth claims that McCollum’s action in hauling him
before the Board was motivated by animus (hostility,
dislike, ill will), and so he is appealing to the “class of one”
theory of denial of equal protection. E.g., Village of
Willowbrook v. Olech, 528 U.S. 562, 564-65 (2000) (per
curiam); Crowley v. McKinney, 400 F.3d 965, 972 (7th Cir.
2004). Lauth had been instrumental in getting the Village
police force unionized, and McCollum had been down on
him ever since, Lauth testified. He also testified that years
earlier another officer had not been disciplined for mishan-
dling a missing-person complaint; though in that case the
missing person had been an adult rather than a child.
There is clearly something wrong with a suit of this
character coming into federal court dressed as a constitu-
tional case. At argument one of Lauth’s lawyers candidly
described it as a grudge suit, as in fact the latest move in a
labor dispute. McCollum may conceivably be guilty of
retaliation against Lauth (by having reported him to the
Board) for Lauth’s union activities. But, if so, Illinois labor
No. 04-3782 3
law, which governs the Village’s labor relations, 5 ILCS
315/1-27; Grchan v. Illinois State Labor Relations Board, 734
N.E.2d 33, 39 (Ill. App. 2000), provides an adequate remedy.
5 ILCS 315/10(a)(2), 11(c); Administrative Office of Illinois
Courts v. State & Municipal Teamsters, Chauffeurs & Helpers
Union, Local 726, 657 N.E.2d 972, 981 (Ill. 2000). At argu-
ment, Lauth’s lawyer told us—against his interest in
minimizing his client’s alternative remedies—that the
National Labor Relations Act might also provide Lauth with
a remedy. It would not; the Act does not apply to state or
municipal employees. 29 U.S.C. § 152(2); Abood v. Detroit
Board of Education, 431 U.S. 209, 223 (1977).
Lauth might lose a retaliation suit. McCollum might be
able to show that he would have reported Lauth’s violation
of police and statutory regulations intended for the safety of
missing persons to the Board whether or not he was on the
outs with Lauth over the union; and that would be a
complete defense, City of Burbank v. Illinois State Labor
Relations Board, 538 N.E.2d 1146, 1150 (Ill. 1989); County of
Menard v. Illinois State Labor Relations Board, 560 N.E.2d 1236,
1244 (Ill. App. 1990), just as it would be in a “mixed motive”
federal employment discrimination case. Desert Palace, Inc.
v. Costa, 539 U.S. 90, 93 (2003). It is not as if McCollum
suspended Lauth; the Board did; and so a retaliation suit
might fail on the distinct ground that to allow Lauth to
obtain damages against McCollum would nullify the
Board’s lawful sanction. But see Grchan v. Illinois State Labor
Relations Board, supra, 734 N.E.2d at 39-40. It is not as if the
charges were trumped up, the sanction excessive, or the
Board in cahoots with McCollum. None of these things has
been shown.
The reason the case has gotten as far as it has is the
uncertainty that attends “class of one” equal protection
cases. Lunini v. Grayeb, 395 F.3d 761, 772 (7th Cir. 2005);
4 No. 04-3782
Jennings v. City of Stillwater, 383 F.3d 1199, 1211-12 (10th Cir.
2004); Bell v. Duperrault, 367 F.3d 703, 709 (7th Cir. 2004)
(concurring opinion). These are cases in which the plaintiff
does not claim to be a member of a class that the defendant
discriminates against, but argues only that he is being
treated arbitrarily worse than some one or ones identically
situated to him. If that is the law and any unexplained or
unjustified disparity in treatment by public officials is
therefore to be deemed a prima facie denial of equal
protection, endless vistas of federal liability are opened.
Complete equality in enforcement is impossible to achieve;
nor can personal motives be purged from all official action,
especially in the frequently tense setting of labor relations.
If reporting Lauth’s misfeasance violated the Constitution,
McCollum might as well resign, since he will lose all control
over Lauth and any other officer with whom McCollum
may have clashed over labor issues. It would be a paradox,
moreover, to provide federal judicial protection (in the
name of equal protection of the laws) for the union activities
of a part of the workforce (namely state and municipal
employees) that Congress has placed outside the protection
of federal labor law.
The paradigmatic “class of one” case, more sensibly
conceived, is one in which a public official, with no conceiv-
able basis for his action other than spite or some other
improper motive (improper because unrelated to his public
duties), comes down hard on a hapless private citi-
zen—perhaps the holder of a license from the state to
operate a bar or restaurant or other business—depriving
him of a valuable property right that identically situated
citizens toward whom the official bears no ill will are
permitted the unfettered enjoyment of. E.g., Village of
Willowbrook v. Olech, supra, 528 U.S. at 563; Esmail v.
Macrane, 53 F.3d 176, 178 (7th Cir. 1995); Cruz v. Town of
No. 04-3782 5
Cicero, 275 F.3d 579, 582, 587-88 (7th Cir. 2001); Squaw Valley
Development Co. v. Goldberg, 375 F.3d 936, 944, 947 (9th Cir.
2004). As one moves away from the paradigmatic case, the
sense of a wrong of constitutional dignity, and of a need for
a federal remedy, attenuates. And when as in this case the
unequal treatment arises out of the employment relation,
the case for federal judicial intervention in the name of
equal protection is especially thin. Given the legal
protections that tenured public employees such as Lauth
enjoy, see 65 ILCS 5/10-2.1-17, which include the right to
sue in federal or state court under section 1983 for a depri-
vation of property (a tenure employment contract being
considered a property right for due process purposes)
without due process of law, e.g., Swick v. City of Chicago, 11
F.3d 8, 86 (7th Cir. 1993), there is no gap in legal protections
to justify dragging in equal-protection concepts designed for
entirely different situations. And when the public employee
does not have tenure, imposing a norm of equal treatment
changes employment at will, or (what is the same thing)
probationary employment, into something very close to
tenured employment because it is so easy to invent a case of
unequal treatment by a supervisor. The principal effect of
“class of one” suits by public employees is, as this case
illustrates, to undermine discipline in public agencies. In the
particular case, as we said, it is also to inject the federal
courts into an area of labor relations that Congress dis-
claimed a federal interest in.
We are therefore not surprised to have found no “class of
one” cases in which a public employee has prevailed,
Levenstein v. Salafsky, 414 F.3d 767 (7th Cir. 2004); Hedrich v.
Board of Regents, 274 F.3d 1174 (7th Cir. 2001); Staples v. City
of Milwaukee, 142 F.3d 383 (7th Cir. 1998); Orr v. City of
Albuquerque, No. 03-2287, 2005 U.S. App. LEXIS 15852, at *13
n. 6 (10th Cir. Aug. 2, 2005); Neilson v. D’Angelis, 409 F.3d
6 No. 04-3782
100, 106 (2d Cir. 2005); Campagna v. Massachusetts Dept. of
Environmental Protection, 334 F.3d 150, 156 (1st Cir. 2003),
since the extreme case that kicked off the “class of one”
movement more than two decades ago. That was Ciechon v.
Chicago, 686 F.2d 511 (7th Cir. 1982), where a paramedic was
made a scapegoat for conduct that had drawn the wrath of
the local media, while her identically situated partner
received no disciplinary sanction at all. Our case is remote
from that one. Lauth has identified no other officer who
despite being similarly situated was deliberately treated
differently, McDonald v. Winnetka, 371 F.3d 992, 1001 (7th
Cir. 2004), let alone one who was “prima facie identical in
all relevant respects.” Purze v. Village of Winthrop Harbor, 286
F.3d 452, 455 (7th Cir. 2002). He has not shown that “totally
illegitimate animus . . . was the sole cause” of McCollum’s
reporting his misfeasance to the Board. Nevel v. Village of
Schaumburg, 297 F.3d 673, 681 (7th Cir. 2002); cf. Esmail v.
Macrane, supra, 53 F.3d at 179.
As the Tenth Circuit noted in Jennings v. City of Stillwater,
supra, 383 F.3d at 1211, “In the wake of Olech, the lower
courts have struggled to define the contours of class-of-one
cases. All have recognized that, unless carefully circum-
scribed, the concept of a class-of-one equal protection claim
could effectively provide a federal cause of action for review
of almost every executive and administrative decision made
by state actors.” We are still struggling to circumscribe this
amorphous cause of action. In light of Ciechon, and reluctant
to complicate the law by proposing different standards for
different categories of discriminatory state action, we
decline to rule that a public employee can never maintain a
class-of-one case. A more promising approach, and one that,
incidentally, enables reconciliation of the two lines of class-
of-one cases in our case law—the “animus” and the “ratio-
nal basis” lines, see Crowley v. McKinney, 400 F.3d 965, 972
No. 04-3782 7
(7th Cir. 2004)—is simply to remind that a plaintiff who
does not belong to any “suspect” (that is, favored) class—by
definition, the situation of a class-of-one plaintiff—must, to
prevail, “negative any reasonably conceivable state of facts
that could provide a rational basis for the classification.”
Board of Trustees v. Garrett, 531 U.S. 356, 367 (2001); Lamers
Dairy, Inc. v. U.S. Dept. of Agriculture, 379 F.3d 466, 473 (7th
Cir. 2004). “Governmental action only fails rational basis
scrutiny if no sound reason for the action can be hypothe-
sized.” Id.; see also FCC v. Beach Communications, 508 U.S.
307, 315 (1993). Our decision in Esmail v. Macrane, supra, 53
F.3d at 180, evoked that approach, stating that the target of
class-of-one cases is “governmental action wholly impossi-
ble to relate to legitimate governmental objectives.” There is
additional support for the approach in Ross v. Duggan, 402
F.3d 575, 587-88 (6th Cir. 2004), and Kirby v. City of Elizabeth
City, 388 F.3d 440, 447-48 (4th Cir. 2004). Animus thus
comes into play only when, no rational reason or motive
being imaginable for the injurious action taken by the
defendant against the plaintiff, the action would be inexpli-
cable unless animus had motivated it.
Since hypothesis is not proof, this test that we have
articulated can often be applied in advance of discovery.
Wroblewski v. Washburn, 965 F.2d 452, 459-60 (7th Cir. 1992);
Ross v. Duggan, supra, 402 F.3d at 589; Connolly v. McCall,
254 F.3d 36, 42 (2d Cir. 2001) (per curiam); Knapp v. Hanson,
183 F.3d 786, 789 (8th Cir. 1999). It could have been here.
AFFIRMED.
8 No. 04-3782
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-20-05