In the

United States Court of Appeals

For the Seventh Circuit ____________

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.

____________

ARGUED JUNE 10, 2005—DECIDED SEPTEMBER 20, 2005

____________

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 Commissioners 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 missingpersons 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 mishandling 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 constitutional 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 argument, 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 conceivable 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 citizen—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 deprivation 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 disclaimed 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 circumscribed, 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 classof-one cases in our case law—the “animus” and the “rational 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 hypothesized.” 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 impossible 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 inexplicable 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