Anthony Smith v. City of Janesville

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19‐3282
ANTHONY SMITH, et al.,
Plaintiffs‐Appellants,
v.
CITY OF JANESVILLE, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 18‐cv‐00523 — William M. Conley, Judge.
____________________
ARGUED FEBRUARY 23, 2022 — DECIDED JULY 22, 2022
____________________
Before SYKES, Chief Judge, and FLAUM and KANNE, Circuit
Judges.
FLAUM, Circuit Judge. The Janesville Police Department of
Janesville, Wisconsin, decided to create its own “no‐prefer‐
ence tow list” to simplify its response to traffic accidents in
 Circuit Judge Kanne died on June 16, 2022, and did not participate
in the decision of this case, which is being resolved under 28 U.S.C. § 46(d)
by a quorum of the panel.
2 No. 19‐3282
which a vehicle owner expressed no preference as to which
tow company towed their car. Appellant Anthony Smith is
Black and owns Flying A.J.’s Towing Company, LLC, which
operates in Janesville and the surrounding area. Upon receiv‐
ing Flying A.J.’s application to be added to the list, the Ja‐
nesville Police Department originally stated that the applica‐
tion would be placed on file, but shortly thereafter approved
Flying A.J.’s and included it on the tow list. Less than two
months later, however, the Janesville Police Department re‐
moved the company from its tow list, citing the company’s
unresponsiveness and complaints related to one particular
tow job. Smith and Flying A.J.’s claim that their removal was,
instead, due to Smith’s race and certain complaints of racial
discrimination he had made against the police department.
The district court dismissed these claims, brought under 42
U.S.C. §§ 1983 and 1981, finding that Smith had failed to put
forth sufficient evidence to allow a jury to determine that
Smith’s race or former complaints caused the department’s
decision to remove Flying A.J.’s from the tow list. For the fol‐
lowing reasons, we affirm.
I. Background
The City of Janesville’s Creation of Its No Prefer‐
ence Tow List
Smith and his wife, both Black, own and operate Flying
A.J.’s in Rock County, Wisconsin. Janesville is a city within
Rock County.
A “no preference tow list” is a list of towing companies
that a police department may call when it needs to tow a ve‐
hicle and the vehicle’s owner states that they have no prefer‐
ence as to which company performs the job. Before June 2016,
No. 19‐3282 3
the Janesville Police Department (the “Department”) simply
used the tow list maintained by Rock County. Around that
time, however, Deputy Chief Jimmy Holford, Jr., recom‐
mended to Chief David Moore that the Department imple‐
ment its own tow list in response to a number of complaints
they had received regarding companies on the Rock County
list. Chief Moore agreed, and in early June 2016, Holford sent
out an application form to all companies on the old Rock
County list, notifying them that Janesville was creating its
own tow list and that they would need to apply in order to be
included. The application listed a number of requirements for
companies wishing to be added to the list, including that they
maintain a business address in Janesville and that they allow
the Department to perform a facility inspection. The applica‐
tion requested that the form be completed and returned by
June 23, 2016.
By June 15, 2016, four companies had submitted applica‐
tions, and Holford had determined that all four met the re‐
quirements set out in the application. Chief Moore approved
the list of those four companies, so Holford published the list
that day. The announcement stated, in relevant part: “The fol‐
lowing companies met the required standards and will com‐
prise the Janesville Police Department ‘No Preference Tow
List.’” In an email a few days later, Holford referred to this as
the “final list.” None of the owners of the four companies on
the list were Black.
Six days later, but still two days before the June 23 dead‐
line, Smith submitted his application for Flying A.J.’s to Hol‐
ford via email. The next day, Holford responded: “Thank you
for your returned application, it has been placed on file in the
event [the Department] needs to replace or add to its current
4 No. 19‐3282
list.” In response, Smith filed a complaint with the Janesville
City Manager’s Office, alleging that the Department’s deci‐
sion not to include Flying A.J.’s on the tow list was motivated
by racial discrimination. As the district court noted, in 2010,
Smith had successfully sued the town of Beloit, Wisconsin, af‐
ter experiencing racial discrimination by the police depart‐
ment. Smith now alleges that Janesville’s reticence to include
his company on the tow list stemmed in part from these pre‐
vious actions speaking out against discrimination.
Smith’s complaint was forwarded to Chief Moore, who
called Smith and assured him that the decision was not ra‐
cially motivated and that if Flying A.J.’s met all of the require‐
ments, the company would be added to the tow list.
Moore instructed Holford to determine whether Flying
A.J.’s met the relevant requirements, so Holford set up a time
to meet with Smith at Flying A.J.’s Janesville office. Holford
met with Smith on July 12, 2016, and Smith has now testified
that, during the meeting, Holford stated that if Smith men‐
tioned race discrimination, “the interview would be termi‐
nated and Flying A.J.’s application for the tow list would not
be considered.” Holford completed the inspection, however,
and issued a new tow list later that day that added Flying
A.J.’s and one other towing company, KB Towing.
The July 25, 2016 Incident
About two weeks later, on July 25, 2016, at around 4:15 PM,
Sgt. Jimmy G. Holford III (“Sgt. Holford III”)1 and Officer Joel
Melton responded to a car crash, and the owner of one of the
1 Sergeant Jimmy G. Holford III is a separate individual from Jimmy
G. Holford, Jr. We refer to Holford III as Sgt. Holford III to avoid confu‐
sion.
No. 19‐3282 5
vehicles, Susan Paul, requested a tow. Flying A.J.’s was the
next company on the tow list rotation, so when Paul ex‐
pressed no preference as to which tow company responded,
Flying A.J.’s was contacted.
The parties dispute many of the details of what happened
next, but the following core elements are undisputed. Flying
A.J.’s driver Calvin Richardson arrived at the scene. Richard‐
son spoke to neither the officers at the scene nor the owner of
the vehicle, Paul. Richardson spoke to the Flying A.J.’s dis‐
patcher, who told him that the customer wanted her car de‐
livered to Rock County Honda. Instead, Richardson took the
car to the Flying A.J.’s lot in Janesville with the intent to de‐
liver the car to the Honda dealership the following day. Smith
later explained that Richardson made this decision because
the Honda dealership would have been closed at that time of
day.
On the day of the crash, Melton submitted a memoran‐
dum to Holford detailing the events at the scene and explain‐
ing his disappointment with the tow service provided by Fly‐
ing A.J.’s. In particular, he opined that the tow driver dis‐
played a “lack of professionalism or courtesy” when he left
without offering the customer a ride home. Holford for‐
warded Melton’s complaint to Smith, stating, “I am interested
in your response as I fully investigate the issues.” A week
later, when he still had not received a response from Smith,
Holford sent the following message:
Mr. Smith,
I have not received a response from you refer‐
ence this complaint [sic]. Please respond by
Thursday, August 11th. You may also report to
6 No. 19‐3282
my office if that is preferable, call first to insure
my availability.
This email did prompt a response from Smith. Later that
same day, he sent a rambling message to Holford, in which he
claimed that there were no officers or vehicle owners at the
scene. This is contradicted by later sworn statements made by
the driver, who clarified that he interacted (but did not speak)
with both police officers and fire department personnel at the
scene. Smith’s message then addressed the complaint’s asser‐
tion that the driver displayed a lack of professionalism by
stating:
This is very disturbing to me and very danger‐
ous for an African American owned company to
be operating in the City of Janesville, viewing
videos of officers gunning down African Amer‐
icans for un‐threatening actions and killing
them along with false allegations…. [The com‐
plaint’s] allegations [against Flying A.J.’s] are
false and unbelievable. The officer should be
fired and anyone else who helped write up
these trumped up charges on this minority
owned company. I can be killed in the streets
and the allegations could be that I picked up a
chain and lunged at the officer or another per‐
son with a “J” hook. Some of these officers just
look for a reason to shoot and kill an African
American.
Perhaps having difficulty following the thread of Smith’s
response, Holford replied the next morning and suggested
that “it would be most productive” if Smith came to his office
No. 19‐3282 7
to discuss the complaint in person that Thursday, two days
later. He noted that he had stopped by Flying A.J.’s Janesville
location twice the day before but found it unattended. When
Holford had not received a response by that Thursday, he
emailed Smith again and requested that they set up a meeting
to discuss the issue the following Tuesday, August 16, “any
time after 9 a.m.” Holford noted that he would be “forced to
suspend” Flying A.J.’s from the tow list if Smith did not re‐
spond. Smith did not respond, and no follow‐up meeting ever
occurred.
Sometime after Melton submitted his memorandum about
the traffic incident but before August 15, Melton followed up
with Paul, the owner of the vehicle towed by Flying A.J.’s.
Paul relayed that she was “unhappy with the tow service
she[] received,” and stated that her GPS device was missing
from her vehicle after the tow. She also told Melton that Smith
had called her directly and that she felt threatened by the call.
Smith had told her that he wanted to record the conversation,
and she was sufficiently frightened after the call that she no‐
tified the Janesville Police Department. In particular, she was
afraid of falling victim to retaliation given that Flying A.J.’s
might have been in possession of her GPS device, which con‐
tained her home and work addresses, as well as her common
travel routes. Melton relayed this information to Holford in a
memorandum.
Holford then summarized all of these events—the tow
truck driver’s response and conduct at the July 25 crash, Hol‐
ford’s attempts to get a response from Smith, and Smith’s call
to Paul—in a memorandum to Chief Moore dated August 15,
2016. On August 29, 2016, Moore issued a letter informing
8 No. 19‐3282
Smith that Flying A.J.’s would be removed from the tow list
for one year.
Smith then brought this suit against the City of Janesville,
Chief Moore, Deputy Chief Holford, Sgt. Holford III, and Of‐
ficer Melton. His complaint alleged three causes of action: (1)
that the defendants violated his Equal Protection rights by de‐
laying adding Flying A.J.’s to the tow list and removing Fly‐
ing A.J.’s from the tow list because of Smith’s race; (2) that the
delay and removal based on Smith’s race also violated his
right to make and enforce contracts, guaranteed by 42 U.S.C.
§ 1981; and (3) that the delay and removal were retaliation
against Smith for complaining about the defendants’ violation
of his § 1981 rights.
The district court entered summary judgment in favor of
the defendants on all of Smith’s claims, holding that Smith
had failed to produce evidence sufficient to allow a reasona‐
ble jury to find that racial discrimination or retaliation were
the causes of the Department’s delay in adding his company
to the list or its later removal of his company from the tow list.
Smith now appeals.
II. Discussion
We review summary judgment rulings de novo. Abdullahi
v. City of Madison, 423 F.3d 763, 769 (7th Cir. 2005). “Summary
judgment is warranted when the evidence, when viewed in a
light most favorable to the non‐moving party, presents ‘no
genuine issue as to any material fact’” such that “‘the moving
party is entitled to a judgment as a matter of law.’” Id. (quot‐
ing Fed. R. Civ. P. 56(c)). “[T]here is no issue for trial unless
there is sufficient evidence favoring the nonmoving party for
a jury to return a verdict for that party. If the evidence is
No. 19‐3282 9
merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249–50 (1986) (citations omitted).
The key issue in this case, as in many discrimination cases,
is causation. In particular, we must determine whether
Smith’s race or his complaints of racial discrimination caused
the Department to remove his company from its tow list. See,
e.g., Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir.
2016) (holding that the question in discrimination cases “is
simply whether the evidence would permit a reasonable fact‐
finder to conclude that the plaintiff’s race, ethnicity, sex, reli‐
gion, or other proscribed factor caused the discharge or other
adverse employment action”); Lord v. High Voltage Software,
Inc., 839 F.3d 556, 563 (7th Cir. 2016) (“A retaliation claim re‐
quires proof of causation….”); Egonmwan v. Cook Cnty. Sher‐
iff’s Dep’t, 602 F.3d 845, 850 (7th Cir. 2010) (“The same require‐
ments for proving discrimination apply to claims under Title
VII, § 1981, and § 1983.”). Because this is true for all of his
claims, we examine the Department’s conduct toward Flying
A.J.’s, asking whether a reasonable jury could conclude that
either the delay in adding or removal of the tow company was
caused by Smith’s race or prior complaints.
A. Delay in Being Added to the Tow List
Smith’s first claim is that the Department delayed in add‐
ing him to the tow list. Smith submitted Flying A.J.’s’ appli‐
cation on June 21, and the Department added the company to
the tow list on July 12. As we understand it, Smith’s claim is
that his company should have been added more quickly,
though he has not suggested an amount of time that would
have been acceptable.
10 No. 19‐3282
In support of his claim that this delay was caused by racial
discrimination and was an act of retaliation for his previous
complaints, Smith offers two pieces of evidence. First, he
points to the fact that the Department published its “final list”
before the application period expired and before Flying A.J.’s
had submitted its application. When Smith then submitted
Flying A.J.’s application (still within the original application
window), Holford told him the application would be “placed
on file in the event [the Department] needs to replace or add
to its current list.” In Smith’s view, the Department intention‐
ally stopped reviewing applications before Flying A.J.’s had
submitted its paperwork—even though the application win‐
dow was still open—because it did not want to work with
Smith due to his race. But there is simply no evidence that the
decision to publish the final tow list early was motivated by
racial animus. ʺThe mere existence of a scintilla of evidence in
support of the plaintiffʹs position will be insufficientʺ to ena‐
ble a plaintiff to survive summary judgment, and here, Smith
has failed to marshal even a scintilla of evidence to support
his allegation. See Liberty Lobby, Inc., 477 U.S. at 252. It is worth
noting that the Department also reviewed an application from
and added to the tow list a white‐owned company after orig‐
inally publishing the “final list.”
Moreover, Smith is far from the only tow company owner
that was upset by Holford’s decision to publish the tow list
early. On July 7, a number of tow companies—whose owners
do not appear to all be of any one race—planned a protest
outside of the Janesville police station, stating that their “right
to earn a living in the City of Janesville was taken away from
[them] unjustly” when only four companies were added to
the tow list on June 15. Given that so many companies were
negatively affected by Holford’s decision, we cannot agree
No. 19‐3282 11
with Smith that the decision was aimed at him in particular
or was motivated by racial animus.
Second, Smith points to Holford’s alleged comments to
him during the on‐site inspection (Smith claims that Holford
told him not to mention race discrimination or the interview
would be terminated) as evidence that Holford delayed add‐
ing Flying A.J.’s to the list due to Smith’s race and previous
complaints of discrimination. But since Holford added Flying
A.J.’s to the tow list the very same day Smith alleges Holford
made this comment, no juror could reasonably interpret the
comment as evidence that any alleged delay was the result of
racial discrimination.
In short, we agree with the district court that no reasona‐
ble jury could conclude that the Department delayed in add‐
ing Flying A.J.’s to the tow list because of Smith’s race or pre‐
vious complaints.
B. Removal from the Tow List
Smith’s next claim is that the Department removed Flying
A.J.’s from the tow list on the basis of his race and in retalia‐
tion for his complaints of racial discrimination. Smith at‐
tempts to support this claim with the same evidence dis‐
cussed above—the early publication of the “final list” and
Holford’s comment at the site inspection—and also points to
one additional piece of evidence: a comparator tow company.
As discussed above, the early publication of the tow list and
Holford’s site inspection comment are insufficient, standing
alone, to permit a jury to infer racial discrimination, so we
turn now to the proffered comparator, a white‐owned tow
company, Don’s Towing. Smith claims that Don’s Towing re‐
ceived a complaint similar to the complaint levied against
12 No. 19‐3282
Flying A.J.’s related to the July 25 accident but that Don’s
Towing received a lesser punishment because the owner was
white. However, the situations leading to the two complaints
are too dissimilar for any reasonable jury to conclude that the
factor leading to any perceived disparate treatment was the
race of the companies’ owners. We therefore affirm the dis‐
trict court’s entry of summary judgment on the removal
claims as well.
Whether another entity is an adequate comparator de‐
pends on whether it is similarly situated to the plaintiff.
McDaniel v. Progress Rail Locomotive, Inc., 940 F.3d 360, 369 (7th
Cir. 2019). “[T]he similarly‐situated inquiry is flexible, com‐
mon‐sense, and factual. It asks ‘essentially, are there enough
common features between the individuals to allow a mean‐
ingful comparison?’” Coleman v. Donahoe, 667 F.3d 835, 841
(7th Cir. 2012) (quoting Humphries v. CBOCS West, Inc., 474
F.3d 387, 405 (7th Cir.2007), aff’d, 553 U.S. 442 (2008)). At base,
the purpose of the “similarly situated” inquiry is “to eliminate
other possible explanatory variables, … [to] isolate the critical
independent variable—discriminatory animus.” Id. at 846 (ci‐
tation and internal quotation marks omitted).
In this case, the complaint against Don’s Towing related to
one excessive charge for a tow job and an unstaffed Janesville
address. Though the Department did not suspend Don’s
Towing from the tow list in response to these occurrences,
Holford sent an arguably harsher email to Don’s Towing than
he did to Flying A.J.’s. In it, he specifically warned that any
future complaints against Don’s Towing would result in its
suspension from the list. Additionally, the owner of Don’s
Towing responded to the email within two hours to address
No. 19‐3282 13
Holford’s concerns—a far cry from the response time from
Flying A.J.’s, as discussed below.
The complaints about Flying A.J.’s’ conduct in relation to
the July 25 accident were arguably more concerning, and
Smith’s response to those complaints was far less prompt and
professional. First, the Flying A.J.’s driver who responded to
the accident spoke to no one at the scene, towed away the cus‐
tomer’s vehicle without letting her know where he was taking
it, and left her without a ride. The record establishes not only
these facts but also that Deputy Chief Holford, the person re‐
sponsible for creating and maintaining the tow list, was frus‐
trated with how the company handled the accident at the time
he learned of it, which undermines any argument that he
cooked up his dismay with the company’s conduct after the
fact as pretext for removing them on the basis of race.
Second, when Holford reached out to Smith to get his
comments on the July 25, 2016 accident, Smith first ignored
his email and then, after Holford followed up, Smith’s reply
was rambling and largely unresponsive to Holford’s con‐
cerns. Moreover, Smith’s response relaying that the Flying
A.J.’s driver did not see any police or fire department person‐
nel at the scene of the accident was contradicted by Officer
Melton’s body camera footage that Holford reviewed as part
of his investigation into the incident.
Third, Paul, the owner of the vehicle involved in the July
25 accident, alleged serious misconduct on the part of Flying
A.J.’s. First, she claimed that her GPS device was missing after
she got her car back from the mechanic shop. Though there is
no direct proof that anyone at Flying A.J.’s was responsible,
theft of property was a serious concern for the Department—
the June 2016 letter inviting applications for the new tow list
14 No. 19‐3282
explicitly listed “[v]ehicle owner complaints” and “theft or
loss of personal property” as “examples” of conduct that
would “be cause for removal from the no‐preference tow list.”
Second, Paul told Melton that Smith called her after learning
what she had told the police. Smith had apparently wanted to
record the conversation, which left Paul frightened and
threatened—so much so that she decided to notify the police
department. It was plainly reasonable for Holford to take
these complaints from Paul seriously, and they too, provide
legitimate, nondiscriminatory, and nonretaliatory reasons to
remove Flying A.J.’s from the tow list.
Finally, Smith neglected to meet with Holford to discuss
the complaint and declined to even respond to any of Hol‐
ford’s emails requesting such a meeting. This lack of commu‐
nication stands in contrast to that of Don’s Towing, which re‐
sponded to Holford promptly when confronted with the com‐
plaint against it. Thus, the comparison Smith attempts to
draw between Don’s Towing and Flying A.J.’s does not sup‐
port an inference of discrimination or retaliation.
In sum, the evidence Smith offers is insufficient, even
when considered together, to allow a reasonable jury to con‐
clude that racial discrimination motivated the Department’s
decision to remove Flying A.J.’s from the tow list. Summary
judgment was therefore appropriate.
III. Conclusion
The district court’s entry of summary judgment is
AFFIRMED.