424 F.3d 631 (7th Cir. 2005), 04-3782, Lauth v. McCollum

Docket Nº:04-3782.
Citation:424 F.3d 631
Party Name:Chester A. LAUTH, Plaintiff-Appellant, v. Daniel L. McCOLLUM, Defendant-Appellee.
Case Date:September 20, 2005
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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424 F.3d 631 (7th Cir. 2005)

Chester A. LAUTH, Plaintiff-Appellant,


Daniel L. McCOLLUM, Defendant-Appellee.

No. 04-3782.

United States Court of Appeals, Seventh Circuit.

September 20, 2005

Argued June 10,2005

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 03 C 8529 – Samuel Der-Yeghiayan, Judge.

Kevin Vodak (argued), Lisa Kane, Kane & Associates, Chicago, IL, for Plaintiff-Appellant.

Thomas R. Weiler (argued), Norton, Mancini, Argentati, Weiler & Deano, Chicago, IL, for Defendant-Appellee McCollum.

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 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

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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 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 pol ice 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);

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