In the

United States Court of Appeals
              For the Seventh Circuit

No. 11-2496

A NTHONY S MITH and
F LYING A.J.’S T OWING C OMPANY, LLC,

                                          Plaintiffs-Appellants,
                              v.



JOHN W ILSON, in his official capacity as
Police Chief and in his individual
capacity, and T OWN OF B ELOIT, W ISCONSIN,
a municipal corporation,
                                       Defendants-Appellees.


           Appeal from the United States District Court
               for the Western District of Wisconsin.
       No. 10-cv-062-wmc—William M. Conley, Chief Judge.



   A RGUED S EPTEMBER 12, 2012—D ECIDED JANUARY 23, 2013




  Before F LAUM, W OOD , and H AMILTON, Circuit Judges.
  W OOD , Circuit Judge. For the better part of a decade,
Anthony Smith sought a place on the Town of Beloit’s
“tow list,” hoping to be called upon when the local
2                                              No. 11-2496

police department required towing services. Chief of
Police John Wilson denied these requests, and Smith
(who is African-American) attributed his exclusion to
racial bias. In December 2008, Wilson’s subordinates
came forward with allegations that appeared to confirm
Smith’s suspicions: in everyday conversation, Wilson
repeatedly referred to people of color as “niggers,” “sand-
niggers,” “towel heads,” and “spics.” Several officers
specifically recalled that Wilson used such slurs in con-
versations about Smith.
  Smith filed racial discrimination claims against
Wilson and the Town of Beloit under Title VI of the Civil
Rights Act of 1964 (42 U.S.C. § 2000d et seq.), 42 U.S.C.
§ 1981, and 42 U.S.C. § 1983. Following a three-day
trial, a jury returned a verdict finding that race was
a “motivating factor” in Wilson’s decision not to in-
clude Smith on the list. The jury also found, however,
that Wilson would not have added Smith to the list
even if race had played no part in Wilson’s thinking.
The district court concluded that this mixed verdict pre-
cluded Smith’s requested relief and entered judgment
for the defendants.
  Smith raises three main issues on appeal. First, he
argues that he is entitled to a new trial because the
jury’s second finding—that his company would have
been left off the tow list even had race not been a “moti-
vating factor” in Wilson’s decision—was contrary to the
manifest weight of the evidence. Second, even if that
determination stands, Smith contends that he is entitled
to some relief because he succeeded in demonstrating
No. 11-2496                                                  3

that improper racial considerations at least partially
motivated Wilson. Finally, Smith urges that the district
court’s instruction on the allocation of the burden of
persuasion was incorrect. Notwithstanding the stag-
gering and regrettable evidence of racial bigotry
presented at trial, we conclude that the district court
properly entered judgment for the defendants.


                               I
  Smith first wrote to the Town of Beloit in 2002 to offer
the services of his newly founded company, Flying A.J.’s
Towing. These initial efforts bore little fruit, but on May 19,
2003, Wilson became Beloit’s new police chief, and
Smith heard that Wilson was planning to shake up
the Town’s tow list. Smith called Wilson in June 2003
to renew his offer.
   The parties offer conflicting accounts of this phone
conversation. According to Smith, Wilson confirmed
that the police department was revising the Town’s tow
list and promised to be in touch with Smith as the
process moved forward. Wilson denies telling Smith
that he was revisiting the tow list and maintains that
he explained to Smith that he was satisfied with the
three companies (Ace Towing, Dewey Towing, and D&J
Towing) the Town already used.
  Immediately after the 2003 phone call, Wilson
surveyed his officers to find out if anyone was familiar
with Smith or his tow company. One officer told Wilson
of rumors that Smith was involved in drug dealing.
4                                             No. 11-2496

Another officer who overheard the exchange testified
that Wilson responded, “That settles it then, that fucking
nigger isn’t going to tow for us.” Though denying the
expletive, Wilson concedes that he made the rest of
the remark.
   This was not the only time Wilson used such language
in reference to Smith. Smith testified that he made 25-
40 requests—both verbally and in writing—for inclusion
on the list between 2003 and 2010. Several officers con-
firmed that Smith regularly inquired about the list
when their paths crossed. When these officers relayed
Smith’s inquiries, Wilson’s response was blunt and unam-
biguous: “[T]hat stupid nigger isn’t going to work or
tow for me”; “I’m not letting that goddamn nigger tow
for us”; “That goddamn nigger is not towing for us
and that’s the bottom line”; “I’m not going to put that
fucking nigger on the tow list.” Wilson concedes
making some of these comments; he estimates that he
used the term “nigger” to refer to Smith “probably
less than ten” times between 2003 and 2011.
  Such racism was, unfortunately, not aberrational
during Wilson’s tenure as police chief. One officer
testified that Wilson instructed him to “keep the blacks
out of the Town of Beloit” by ticketing and towing
their cars across the Town’s borders. The municipal
court clerk testified that she heard Wilson use the word
“nigger”—as well as other racial slurs for black, Latino,
and Arab residents—hundreds of times. Wilson himself
acknowledged that there was a “free-flowing use of
racial slurs” in the Town’s police department through-
out the relevant period.
No. 11-2496                                                 5

  As police chief, Wilson was in charge of the Town’s
tow list, and he made several minor changes to its compo-
sition between 2003 and his retirement in 2011. In 2004,
he reduced the list from three companies to two after
an officer complained that one of the companies (Ace
Towing) had damaged a car. Smith asserts that he
spoke with Wilson after learning of Ace’s removal;
Wilson denies such a conversation took place. Wilson
also became dissatisfied with Dewey Towing in 2008
and temporarily demoted it from the “primary tow”
position to the “secondary tow” position. Soon thereafter,
Wilson implemented a “rotational system” that split
responsibilities evenly between Dewey and D&J Towing.
Wilson did not add any companies during the rele-
vant period.
  In 2010, Smith and Flying A.J.’s filed suit against
Wilson, in his individual and official capacities, and the
Town of Beloit. (For simplicity, we refer to the plaintiffs
as “Smith.”) Following the jury’s finding that Smith
would have been excluded from the tow list even if he
were white, the district judge solicited post-trial briefing
from the parties. Smith argued that he was entitled to
a judgment based on the verdict, and he also filed a
motion for a new trial on damages or in the alternative
on all issues. The district court rejected these argu-
ments, finding that the mixed verdict “legally bars all of
plaintiffs’ requested relief.” The district judge neverthe-
less acknowledged how “painful [it must be] to learn
that one’s worst suspicions are true when it comes to
the motives of a public official, particularly if the official
is the chief of police.” It concluded its opinion with
6                                               No. 11-2496

an admonishment that bears repeating: “Regardless of
the outcome here, the jury’s finding of a racial motive
should elicit embarrassment—not a sense of vindica-
tion—on the part of defendants.”


                             II
   We begin with Smith’s challenge to the evidentiary
support for the jury’s verdict—in particular, for its af-
firmative answer to Question No. 2 on the special verdict
form, which asked “Even if race were not a motivating
factor, would Wilson still have denied plaintiffs an op-
portunity to apply for inclusion on the Town’s towing
list?” Bearing in mind that a verdict may be set aside
only if “no rational jury could have rendered” it, we
conclude that the district court did not abuse its discre-
tion in denying a new trial on this ground. Lewis v. City
of Chicago Police Dep’t, 

, 444 (7th Cir.
2009) (quoting Moore ex rel. Estate of Grady v. Truelja,

, 427 (7th Cir. 2008); see also King v. Har-
rington, 

, 534 (7th Cir. 2006) (same).
  While the overwhelming evidence of Wilson’s racism
certainly could have allowed a jury to attribute Smith’s
exclusion solely to race, it was not irrational for this jury
to reach a contrary conclusion. The defendants pre-
sented testimony that Wilson inherited a satisfactory
tow list in 2003 and that he had no reason to supple-
ment the roster with additional companies. In 2004,
Wilson removed Ace Towing from the list after receiving
a complaint that the company damaged a vehicle, but
there is no evidence that Wilson ever restored Ace or
No. 11-2496                                                7

any other company to the vacated position. (Plaintiffs
repeatedly represented, both in their briefs and at oral
argument, that “in 2005, Ace Towing was then put back
on the list despite prior complaints.” We can find no
support in the record for this assertion, and so we do not
rely on it to undermine the jury’s verdict.) Wilson
grew frustrated with Dewey in 2008, and Smith now
argues that Wilson removed Dewey from the list before
“re-adding” it. But there was also evidence that Wilson
merely reconfigured the order of the two-company list
in 2008, temporarily demoting Dewey without changing
the composition of the list. Smith actually advanced
this latter interpretation of events during his closing
argument. In short, the jury was entitled to credit
Wilson’s testimony that he simply “didn’t see any need
to be putting on any more tow companies” after 2003.
  The jury could have relied on evidence that another
white-owned tow company, C&C Towing, unsuccessfully
petitioned for a place on the tow list during part of
the relevant period to buttress Wilson’s explanation. The
owner of C&C Towing testified that he stopped by the
Town’s police department repeatedly over three or four
years, hoping to speak with someone about adding his
company to the list, to no avail. This testimony, showing
that Wilson also rebuffed entreaties from a similarly-
situated white-owned tow company, also supports
the jury’s finding.
  Somewhat more problematic are Wilson’s additional
reasons for refusing to consider Flying A.J.’s in particular.
At trial, Wilson testified that immediately after his
8                                               No. 11-2496

initial 2003 conversation with Smith, Wilson asked
his subordinates whether they were familiar with
Smith’s reputation. According to Wilson, one officer told
him that the neighboring town’s police department sus-
pected Smith of drug dealing, and another officer later
shared rumors that Smith overcharged clients. Wilson
conceded that he conducted no further investigation
and lacked any evidence corroborating these reports.
  Plaintiffs attack these allegations as “hearsay” and
“unsubstantiated rumors,” arguing that a rational jury
should not have been permitted to reach its verdict on
the basis of such dubious evidence. We are mindful
that certain ostensibly neutral bases for a hiring decision
may be predicated on impermissible stereotypes and
biases. See Price Waterhouse v. Hopkins, 

, 250
(1989) (“In the specific context of sex stereotyping, an
employer who acts on the basis of a belief that a
woman cannot be aggressive, or that she must not be,
has acted on the basis of gender.”). Particularly when
coupled with Wilson’s racist disparagement of Smith,
the purported link between Smith and drug dealing
warrants skepticism. See David Rudovsky, Law Enforce-
ment by Stereotypes and Serendipity: Racial Profiling and
Stops and Searches Without Cause, 3 U. Pa. J. Const. L. 296,
306-17 (2001) (discussing policing based on stereotypes
associating African-Americans and drugs). Were this
the sole evidence in the defendants’ favor, this would be
a much closer case.
  But the presumably false accusation that Smith had
some association with drug-dealing did not stand alone;
No. 11-2496                                             9

it was coupled with a report of overcharging. Smith
offers us no reason to characterize a concern about over-
charging as a proxy for racial animus. We note as well
that Smith misses the point when he characterizes the
rumors as “hearsay”: they were offered not to prove
the truth of the matter asserted (i.e., that Smith over-
charged), but rather for the non-hearsay purpose
of explaining Wilson’s subsequent actions. F ED. R.
E VID. 801(c). Moreover, it was Smith, not the defendants,
who elicited this allegedly improper evidence. If the
jury credited Wilson when he said that he believed
that Smith overcharged, it could have used that fact
to support a finding that this assessment rather than
racial bias accounted for Wilson’s decision not to
include Flying A.J.’s on the tow list.
  In the final analysis, viewing the evidence in the
light most favorable to the defendants, we conclude that
a rational jury could have concluded that no matter
how much racism Wilson exhibited, it was inertia, not
racial bias, that accounted for Smith’s exclusion from
the Town’s tow list.


                           III
  Smith next contends that the district court erred in
concluding that the jury’s mixed verdict precluded all
of the relief he sought, and that the court erred in
assigning the burden of proof for his various claims.
These are related inquiries.
10                                               No. 11-2496

  A. “Motivating Factor” Relief
   Smith argues that despite the jury’s finding that Wilson
would have denied him a place on the Town’s towing
list regardless of his race, he is still entitled to a partial
recovery under Title VI, 42 U.S.C. § 1981, or 42 U.S.C.
§ 1983. The problem that he faces is that none of these
laws explicitly authorizes relief where a plaintiff demon-
strates only that race was a “motivating factor” for the
adverse action.
  Smith’s request is based on an analogy to claims
brought under Title VII, which prohibits employment
discrimination “because of [an] individual’s race.” 42
U.S.C. § 2000e-2(a). In 1991, Congress amended Title VII
to provide that an “unlawful employment practice”
is established where a plaintiff demonstrates “that race,
color, religion, sex, or national origin was a motivating
factor for any employment practice, even though
other factors also motivated the practice.” 42 U.S.C.
§ 2000e-2(m). If an employer can establish that the
same result would have obtained even “in the absence
of the impermissible motivating factor,” a court may
still grant the plaintiff declaratory relief, injunctive
relief, and attorney’s fees and costs (but not damages). 42
U.S.C. § 2000e-5(g)(2)(B). Smith argues that because
his discrimination claims share certain similarities
to employment discrimination claims brought under
Title VII, he is entitled to similar relief here.
  The history of the Title VII amendments reveals why
Smith’s position is not well taken. In 1989, before the
addition of the “motivating factor” language to Title VII,
No. 11-2496                                              11

the Supreme Court addressed in Price Waterhouse v.
Hopkins, 

 (1989), whether a plaintiff could
recover under that statute if there were both proscribed
and non-proscribed bases for an employment decision.
The Court crafted a burden-shifting framework to
govern such “mixed-motive” cases: a Title VII plaintiff
who showed that an impermissible motive influenced
an adverse employment decision “placed upon the de-
fendant the burden to show that it would have made
the same decision in the absence of the unlawful mo-
tive.” Id. at 250. A defendant who made such a showing
avoided liability altogether. Id. at 258. The Civil Rights
Act of 1991, which amended Title VII and several other
statutes, represented both a codification of this burden-
shifting approach and a limited roll-back of Price Water-
house’s complete defense to employer liability in mixed-
motive situations.
  As we explained in McNutt v. Board of Trustees of the
University of Illinois, these amendments only partially
abrogated Price Waterhouse: for employment discrim-
ination claims falling outside the five categories
specifically listed in 42 U.S.C. § 2000e-2(m), an employer’s
demonstration that the same result would have
occurred without the “motivating factor” still constitutes
a complete defense. 

 (7th Cir. 1998). In
McNutt, a jury found that an employer improperly retali-
ated against a Title VII plaintiff, but it also found that
the plaintiff would have received the same job assign-
ments even in the absence of the retaliatory motive. Id.
at 707. The district court awarded the plaintiff attorney’s
fees and costs, despite the fact that § 2000e-2(m) makes
12                                               No. 11-2496

no mention of Title VII retaliation claims. Id. Acknowl-
edging “compelling logical argument[s]” in favor of
granting limited relief for all species of Title VII “motivat-
ing factor” claims, we nevertheless vacated the judg-
ment. Id. at 709. Absent explicit statutory authorization,
we said, the district courts are powerless to give such
relief. Id. For the same reasons, we cannot import the
authorization of partial “motivating-factor” relief found
in § 2000e-2(m) into entirely different statutes—Title VI,
§ 1981, or § 1983. Accord Serwatka v. Rockwell Automation,
Inc., 

 (7th Cir. 2010) (rejecting award
of injunctive relief, declaratory relief, and attorney’s
fees and costs for mixed-motive ADA claim).


B. Burden Shifting
   Finally, Smith argues that even if his claims require a
showing that Wilson’s racial bias was outcome-determina-
tive—i.e., “but for” Smith’s race, Wilson would have
included Flying A.J.’s on the tow list—“[t]he district
court [erred by] requir[ing] Plaintiffs to prove [such]
‘but for’ causation.” In other words, according to Smith,
even if partial “motivating-factor” recoveries are a
creature of statute, a court should still shift the burden
of persuasion to the defendants once the plaintiff estab-
lishes that an impermissible “motivating factor” in-
fluenced the adverse action. This line of argument is
also unavailing.
  Burden-shifting for mixed-motive claims outside the
Title VII context became more common following Price
No. 11-2496                                              13

Waterhouse, but in 2009, the Supreme Court held that a
mixed-motive jury instruction was never appropriate in
a suit brought under the Age Discrimination in Employ-
ment Act (ADEA). Gross v. FBL Fin. Servs., Inc., 

 (2009). Focusing on the statutory text, which
prohibits employment decisions “because of an indi-
vidual’s age,” the Court concluded that the ADEA
requires plaintiffs to prove “by a preponderance of the
evidence, that age was the ‘but-for’ cause of the chal-
lenged adverse employment action.” Id. at 180. The Gross
Court construed the words “because of” as colloquial
shorthand for “but for” causation (interestingly, a
position that a plurality of the Court had rejected two
decades earlier in Price Waterhouse. 490 U.S. at 240).
   In the immediate wake of Gross, we suggested that
burden-shifting no longer would be appropriate for any
mixed-motive discrimination claim unless a statute
explicitly provides otherwise. Fairley v. Andrews, 

, 525 (7th Cir. 2009). We later extended Gross’s
prohibition against burden-shifting to claims brought
under the Americans with Disabilities Act (ADA) and
retaliation claims brought under the Labor-Management
Reporting and Disclosure Act of 1959 (LMRDA). Serwatka,
591 F.3d at 963-64 (ADA); Serafinn v. Local 722, Int’l Bhd.
of Teamsters, 

 (7th Cir. 2010) (LMRDA).
  In Greene v. Doruff, however, we attempted to clarify
both what Gross requires and what its limits are. 

, 978 (7th Cir. 2011) (noting circulation of opinion
pursuant to Seventh Circuit Rule 40(e)). While acknowl-
edging that “Gross may have implications for suits under
14                                              No. 11-2496

other statutes” beyond the ADEA, we held that Gross was
“inapplicable” to suits “to enforce First Amendment
rights.” Id. at 977. See Mt. Healthy City School Dist. Bd. of
Educ. v. Doyle, 

, 287 (1977). Greene thus ac-
knowledges that the Supreme Court has never aban-
doned the Mt. Healthy rule. This statute-by-statute ap-
proach is also faithful to the Gross Court’s close scrutiny
of the relevant text and its insistence that we not
“apply rules applicable under one statute to a dif-
ferent statute without careful and critical examination.”
557 U.S. at 174.
  That said, we need not decide in the present case
whether Gross foreclosed burden-shifting for claims
under Title VI (prohibiting discrimination “on the
ground of race”) and § 1981 (guaranteeing “the same
right . . . as is enjoyed by white citizens”). The reason
is simple: rightly or wrongly, the district court assigned
to the defendants the burden of disproving “but for”
causation. The special verdict form asked the jury to
answer “yes” or “no” to the following question:
     QUESTION NO. 2: Even if race were not a motivating
     factor, would Wilson still have denied plaintiffs
     an opportunity to apply for inclusion on the Town’s
     towing list?
  The court then instructed the jury that “the burden of
proof is on the party contending that the answer to a
question should be ‘yes.’ ” The court made several
passing statements throughout the trial that the plaintiffs
bore the burden of proving their claims. Nevertheless,
No. 11-2496                                             15

taking the jury instructions as a whole as we must, see
Boyd v. Illinois State Police, 

, 894 (7th Cir.
2004), it is apparent that this jury was informed that
the defendants bore the burden of persuasion on this
point. If the district court erred in assigning this
burden, Smith was not prejudiced by its mistake. Id.
  Smith’s Equal Protection claim under § 1983 requires
separate consideration. Well before Price Waterhouse
approved of burden-shifting in the Title VII context,
federal courts used an identical framework to assess
constitutional claims. See Mt. Healthy, 429 U.S. at
287; Arlington Heights v. Metropolitan Housing Corp., 

, 271 n.21 (1977); Hunter v. Underwood, 

, 228 (1985); Board of Cnty. Comm’rs, Wabaunsee Cnty.
v. Umbehr, 

, 674 (1996). In race discrimina-
tion cases, for example, once a plaintiff discharges her
burden of establishing that a decision “was motivated
in part by a racially discriminatory purpose,” the burden
shifts to the defendant to “establish[] that the same deci-
sion would have resulted even had the impermissible
purpose not been considered.” Arlington Heights, 429
U.S. at 271 n.21. In Gross, the plaintiff highlighted
these constitutional cases, arguing that burden-shifting
was equally appropriate in the ADEA context. Brief for
Petitioner at 54-55, Gross, 

. The Court
responded by distinguishing “constitutional cases such
as Mt. Healthy” from ADEA claims, for which the
statutory text governs the assignment of the burden of
persuasion. Gross, 557 U.S. at 179 n.6. It was on the
basis of this distinction that we concluded in Greene
that Gross “does not affect suits to enforce First Amend-
16                                              No. 11-2496

ment rights.” The same conclusion logically follows for
the Equal Protection Clause.
  In contrast to its Title VI and § 1981 instructions, the
district court’s § 1983 instructions placed the burden of
persuasion squarely on Smith. To establish a violation
of the Equal Protection Clause, the court told the jury, the
plaintiffs bore the burden of proving:
     . . . that Wilson purposefully treated plaintiffs less
     favorably than similarly-situated white businesses
     when Wilson denied plaintiffs an opportunity to
     apply for inclusion on the Town’s towing list.
       Plaintiffs must prove . . . that they were able and
     ready to provide towing services for the Town and
     that they suffered an injury in fact . . . .
Question No. 4 on the special verdict form then asked
jurors, “Did Wilson violate the plaintiffs’ rights to equal
protection under the Fourteenth Amendment . . . ?” The
jury answered “no.” On the claim for which burden-
shifting was most clearly warranted, the district court
failed to assign to the defendants the burden of proving
that the same result would have occurred even had
race not been a motivating factor.
  For several reasons, however, this error does not change
the outcome here. First, it was Smith who proposed the
wording of the Equal Protection instruction in the first
instance. The defendants wanted to eliminate it on the
ground that it was redundant and prejudicial. After
proposing the instruction, Smith did not later suggest
to the district court that the wording was erroneous,
No. 11-2496                                                 17

and “it is axiomatic that arguments not raised below are
waived on appeal.” Marseilles Hydro Power, LLC v. Mar-
seilles Land and Water Co., 

, 470 (7th Cir.
2008) (internal quotation marks omitted). Nor did Smith
highlight the language of the Equal Protection instruc-
tion in his appellate briefing. See F ED. R. A PP. P. 28(a)(9)
(“The appellant’s brief must contain . . . citations to
the authorities and parts of the record on which the
appellant relies.”). Finally, we cannot accept Smith’s
invitation to regard this as “a plain error in the instruc-
tions that . . . affects [plaintiffs’] substantial rights.” See
F ED. R. C IV. P. 51(d)(2). Given that the jury found that
the defendants proved the same result would have ob-
tained even if race had not been a “motivating factor,”
we think it quite unlikely that a proper Equal Protec-
tion instruction here would have made any difference.
This is not enough to justify the uncommon use of the
plain error doctrine in a civil case.


                              IV
  We conclude by noting that no one should have
to experience the kind of racial bigotry that Smith
endured for years—an experience confirmed by the
jury’s verdict. We would have liked to believe that this
kind of behavior faded into the darker recesses of our
country’s history many years ago. When the chief law-
enforcement officer of a Wisconsin town regularly uses
language like “fucking nigger” in casual conversation,
however, it is obvious that there is still work to be done.
As a result of our holding today, Anthony Smith will
18                                            No. 11-2496

end up paying statutory costs of $4,423.51 to John
Wilson and the Town of Beloit, unless the defendants
in the interests of a broader vision of justice choose to
forgive that payment. We can only hope that the out-
come of this case does not discourage future plaintiffs
who seek to challenge official misconduct and vindicate
the basic guarantees of our Constitution and laws.
   We A FFIRM the judgment of the district court, and
we join in that court’s epitaph for the case: “Regardless
of the outcome here, the jury’s finding of a racial motive
should elicit embarrassment—not a sense of vindica-
tion—on the part of defendants.” Each party is to bear
its own costs on appeal.




                          1-23-13