                              In the

United States Court of Appeals
               For the Seventh Circuit

Nos. 08-3206 & 09-1049

S USAN S RAIL, JEFFREY S RAIL,
JANEEN B RZECZEK, AND
R ONALD B RZECZEK, individually
and on behalf of all persons
similarly situated,
                                                Plaintiffs-Appellants,
                                  v.

V ILLAGE OF L ISLE, ILLINOIS,
                                                 Defendant-Appellee.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
          No. 1:07-cv-02617—Matthew F. Kennelly, Judge.



    A RGUED O CTOBER 7, 2009—D ECIDED D ECEMBER 7, 2009




  Before R IPPLE, K ANNE, and SYKES, Circuit Judges.
  K ANNE, Circuit Judge. Appellants are citizens of the
Village of Lisle, Illinois, and of the Oak View subdivision
located therein. Appellants sued the Village of Lisle, the
Appellee, claiming that Lisle had violated the Equal
2                                   Nos. 08-3206 & 09-1049

Protection Clause of the Fourteenth Amendment and
state negligence laws by discriminating against Appel-
lants. The district court certified a class consisting of all
individuals who owned or resided in residential property
in the Oak View subdivision. Subsequently, the district
court granted Lisle’s summary judgment motion on the
equal protection claim and declined to exercise supple-
mental jurisdiction over Appellants’ state law claim.
Appellants filed this appeal, seeking reversal of the
summary judgment decision and vacation of the award
for costs. We affirm the district court’s grant of summary
judgment.


                      I. Background
  The Oak View subdivision was built in the 1950s, and
in 1956, the developer created its own water and sewer
utility to serve Oak View residents. Since that time, a
privately owned utility company has provided Oak View
residents with their water needs.
  The Village of Lisle, Illinois, was incorporated in 1956.
In 1967, Lisle developed its own water system. Prior to
that time, most residents received their water through
private, underground wells. Lisle’s system grew gradually
as developers built new housing developments, installing
water mains that the developers then donated to Lisle.
In 1980, Lisle purchased one of the two privately owned
water companies operating in town, which also contrib-
uted to the growth of the Lisle system. Lisle did not
purchase the privately owned water company operating
in Oak View. The Lisle system received its water supply
Nos. 08-3206 & 09-1049                                    3

from the DuPage Water Commission (“DWC”), which
provided water from Lake Michigan to the utilities
with which it contracted. Lisle would then deliver this
water to its customers.
  The water company serving Oak View entered into a
similar contract with DWC to receive its water; how-
ever, because of difficulties in transporting the water
from DWC to Oak View, Lisle entered into an agreement
with DWC and the water company in 1995 providing that
Lisle would deliver the water purchased by the water
company from DWC’s facilities to Oak View. This agree-
ment was known as the “Wheeling Agreement.”
   In 2002, Illinois-American Water Company (“IAWC”)
purchased the water company that operated in Oak View,
thus becoming the exclusive operator of the water system
in the subdivision. Under both IAWC and its predecessor,
Oak View’s water system operated with pressure insuffi-
cient to extinguish fires. It was this concern that sparked
the litigation in this case—Appellants claim that Lisle
impermissibly discriminated against them by expanding
its water services to other subdivisions within Lisle,
but not to Oak View.


                       II. Analysis
  On appeal, Appellants assert that the district court erred
in granting summary judgment for Lisle. Specifically,
Appellants claim (1) that the district court erred in
holding that Lisle’s proffered monetary concerns could
serve as a rational basis for its discrimination against
4                                     Nos. 08-3206 & 09-1049

Appellants, and (2) that the district court improperly
drew inferences in Lisle’s favor to reach this holding. We
address Appellants’ arguments in turn.


    A. Standard of Review
  We review a district court’s grant of summary judg-
ment de novo. Pepper v. Oak Park, 430 F.3d 805, 808 (7th
Cir. 2005). We will affirm only if there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law. Id. We construe all facts
and draw all inferences in the light most favorable to the
non-moving party. Id. We may affirm on any ground
adequately supported in the record; we need not affirm
on the basis found by the district court. See Rauen v.
U.S. Tobacco Mfg. Ltd. P’ship, 319 F.3d 891, 895 (7th Cir.
2003).


    B. Requirements of an Equal Protection Challenge
  The Equal Protection Clause of the Fourteenth Amend-
ment commands that no state shall “deny to any person
within its jurisdiction the equal protection of the laws.”
U.S. Const. amend. XIV. Often an equal protection viola-
tion occurs when a regulation draws distinctions
among people based on a person’s membership in a
“suspect” class. Martin v. Schwano-Gresham Sch. Dist., 295
F.3d 701, 712 (7th Cir. 2002). Suspect classes include race,
alienage, and national origin. Vision Church v. Vill. of Long
Grove, 468 F.3d 975, 1000 (7th Cir. 2006). Another typical
equal protection challenge is based on denial of a funda-
Nos. 08-3206 & 09-1049                                     5

mental right. Id. Fundamental rights include freedom of
speech and religion. Id. With both suspect classes
and denials of fundamental rights, the government’s
justification for the regulation must satisfy the strict
scrutiny test to pass muster under the Equal Protection
Clause. Id.
  Neither scenario is present in this case. Appellants are
not members of a suspect class, nor do they assert that
Lisle infringed upon their fundamental rights. See
Jackson v. Byrne, 738 F.2d 1443, 1446 (7th Cir. 1984) (“The
Constitution creates no positive entitlement to fire pro-
tection.”); see also Magnuson v. City of Hickory Hills, 933
F.2d 562, 567 (7th Cir. 1991) (“We do not consider the
right to continued municipal water service such a funda-
mental right . . . .”). In the absence of deprivation of a
fundamental right or the existence of a suspect class, the
proper standard of review is rational basis. Vision Church,
468 F.3d at 1000-01. Rational basis review requires the
plaintiff to prove that (1) the state actor intentionally
treated plaintiffs differently from others similarly
situated; (2) this difference in treatment was caused by
the plaintiffs’ membership in the class to which they
belong; and (3) this different treatment was not
rationally related to a legitimate state interest. Smith v.
City of Chicago, 457 F.3d 643, 650-51 (7th Cir. 2006).
  Appellants in this case allege that they are a “class of
one,” meaning, for practical purposes, that Appellants
need not demonstrate the second element of an equal
protection challenge. As the Supreme Court explained in
Village of Willowbrook v. Olech, a class-of-one equal protec-
6                                     Nos. 08-3206 & 09-1049

tion claim has merit when it “alleges that [the plaintiff]
has been intentionally treated differently from others
similarly situated and that there is no rational basis for the
difference in treatment.” 528 U.S. 562, 564 (2000); see also
Engquist v. Or. Dep’t. of Agric., 128 S. Ct. 2146, 2153 (2008).
Appellants contend that a class-of-one claim can also
be brought by certified class members, citing to
the Supreme Court’s decision in Olech that a class-of-
one equal protection claim is not limited to just a single
claimant. 528 U.S. at 564 n.1 (“Whether the complaint
alleges a class of one or of five is of no consequence
because we conclude that the number of individuals in
a class is immaterial for equal protection analysis.”). The
district court speculated that Appellants could pursue
a class-of-one equal protection claim even though they
were members of a certified class, but did not make an
explicit holding because its decision that Lisle had a
rational basis for its disparate treatment of Appellants
made such a holding unnecessary. We agree with the
district court that we need not reach the class-of-one
issue in this case because Appellants fail to establish the
requirements of an equal protection claim. See infra
Part II.C-D.
  The district court also prudently refrained from at-
tempting to reconcile the Seventh Circuit’s divergent class-
of-one precedent. At times, we have held that a class-of-
one claim’s absence of rational basis requires proof
of illegitimate animus, while at other times, we have
held that a class-of-one claim requires illegitimate
animus as an alternative to the absence of rational ba-
sis. Compare Hilton v. City of Wheeling, 209 F.3d 1005,
Nos. 08-3206 & 09-1049                                        7

1008 (7th Cir. 2000) (“We described the class of equal
protection cases illustrated by Olech as ‘vindictive ac-
tion’ cases and said that they require ‘proof that the cause
of the differential treatment of which the plaintiff com-
plains was a totally illegitimate animus toward the plaintiff
by the defendant.’ ” (quoting Olech v. Vill. of Willowbrook,
160 F.3d 386, 388 (7th Cir. 1998), aff’d, 528 U.S. 562 (2000))),
with Lunini v. Grayeb, 395 F.3d 761, 768 (7th Cir. 2005) (“We
have recognized on several occasions that ‘[a] class of one
equal protection claim may be brought where . . . there is
no rational basis for the difference in treatment or the cause
of the differential treatment is a “totally illegitimate
animus” toward the plaintiff by the defendant.’ ”(quoting
McDonald v. Vill. of Winnetka, 371 F.3d 992, 1001 (7th Cir.
2004) (emphasis added)). Like the district court, we need
not address this issue to resolve the case before us because
we find that Appellants fail to establish that there exist
comparators with whom they are similarly situated and
that Lisle lacked a rational basis for its decision. See infra
Part II.C-D.
  But we will address the fact that Appellants’ claim fails
for another reason entirely under Engquist v. Oregon
Department of Agriculture, 128 S. Ct. 2146 (2008). The
plaintiff in Engquist was a public employee with the
state of Oregon who filed a class-of-one equal protection
claim against her employer. 128 S. Ct. at 2149. In affirming
the court of appeals, the Supreme Court held that “the
class-of-one theory of equal protection does not apply
in the public employment context.” Id. at 2151. The Court
explained that to be cognizable, a class-of-one theory
requires “a clear standard against which departures, even
8                                   Nos. 08-3206 & 09-1049

for a single plaintiff [can] be readily assessed.” Id. at
2153. Important to our analysis here, the Court further
reasoned:
    There are some forms of state action, however,
    which by their nature involve discretionary
    decisionmaking based on a vast array of subjective,
    individualized assessments. In such cases the
    rule that people should be “treated alike, under
    like circumstances and conditions” is not violated
    when one person is treated differently from
    others, because treating like individuals differ-
    ently is an accepted consequence of the discretion
    granted. In such situations, allowing a challenge
    based on the arbitrary singling out of a particular
    person would undermine the very discretion
    that such state officials are entrusted to exercise.
Id. at 2154.
  Lisle’s decision to extend its water mains to some
communities and not others was based on subjective and
individualized assessments. For example, on some occa-
sions Lisle determined that it should extend its water
system to some communities based on groundwater
contamination in those neighborhoods. On other occa-
sions, Lisle decided that it would be profitable for it
to extend its system to communities not already served
by private utilities. And with regard to Oak View, Lisle
made the determination that there was not enough
interest to justify the tremendous expenditures required
to service the community. This is the exact type of individ-
ualized and discretionary decision-making to which the
Nos. 08-3206 & 09-1049                                      9

Engquist Court was referring. Even though Lisle’s
decisions affect the communities at-large, the decision to
extend water services is inherently individualized
because, in essence, it involves the decision to extend
water to particular residences.
   Furthermore, neither Appellants nor Lisle cited any
standards, let alone clear standards, that Lisle uses to
make determinations about the expansion of its system.
In the absence of clear standards, Lisle’s determinations
are merely ad hoc and individualized and consequently
offer no standard by which we can assess departures
in conduct. We therefore harbor serious doubts that Appel-
lants’ claim is cognizable in the first instance. Even if
the claim is cognizable, however, Appellants fail to estab-
lish an equal protection violation.


  C. Similarly Situated Comparators
  Appellants cannot establish that there exist similarly
situated communities to serve as comparators. In an
equal protection claim, the challenger must prove that he
or she was treated disparately from those similarly situ-
ated. Smith, 457 F.3d at 650. This necessarily requires a
challenger to introduce evidence of similarly situated
persons. See RJB Prop., Inc. v. Bd. of Educ. of Chicago, 468
F.3d 1005, 1010 (7th Cir. 2006). To be similarly situated,
“comparators must be ‘prima facie identical in all
relevant respects.’ ” Racine Charter One, Inc. v. Racine
Union Sch. Dist., 424 F.3d 677, 680 (7th Cir. 2005) (quoting
Purze v. Vill. of Winthrop Harbor, 286 F.3d 452, 455 (7th Cir.
2002)). Although whether a comparator is similarly situ-
10                                 Nos. 08-3206 & 09-1049

ated is usually a question for the fact-finder, summary
judgment is appropriate when no reasonable fact-finder
could find that plaintiffs have met their burden on
the issue. McDonald, 371 F.3d at 1002.
  In oral argument, Appellants claimed that three com-
munities were similarly situated to Oak View: Front-Reidy-
Westview, Woodridge Estate, and Lisle Farms. How-
ever, Appellants have failed to persuade us that these
communities are suitable comparators to Oak View for a
variety of reasons. Significant differences exist between
these three communities and Oak View. First and
foremost, all three of these communities were served by
private, underground wells prior to the time that Lisle
decided to extend its system to them. In contrast, IAWC
operated in Oak View, and had Lisle extended its
system there, it would have been forced to compete for
customers with an existing private utility company.
Although Appellants assert that Lisle similarly “competed”
with private wells already existing in the three communi-
ties, we find this comparison unavailing. Competing
with a preexisting private utility company for customers
is not the same as providing services to communities
that are only served by private wells.
  Next, Appellants attempt to show similarity by
pointing to what they view as public health and safety
grounds for comparison. In both Woodridge Estates and
Front-Reidy-Westview, the Illinois Environmental Pro-
tection Agency (“IEPA”) found a carcinogen in the pri-
vately pumped well water supplying the residents. The
IEPA and DuPage County recommended that Lisle
Nos. 08-3206 & 09-1049                                        11

extend its system to these communities to prevent the
threat of contamination. In Lisle Farms, the wells were not
contaminated but the neighborhood was located immedi-
ately adjacent to a contaminated community and Lisle
Farms residents were entirely dependent on well water.
At least one motivation of Lisle’s extension to Lisle
Farms was to prevent the spread of contamination there
as well. Unlike the other three communities, Oak View
was not threatened by carcinogens in its water supply,
but Appellants nevertheless argue that they are similar
to these three communities because they faced a similar
public health threat in the form of inadequate fire pro-
tection.
   This comparison misses the mark. As Lisle noted in
its brief and at argument, although both the threat of
contaminated water and the threat of inadequate fire
protection are public health and safety concerns, they are
not necessarily similar threats. Unlike contaminated
well water, inadequate water pressure can be corrected.
In fact, since commencement of this litigation, IAWC has
taken steps to correct the pressure problems in the Oak
View system. Therefore, a comparison of the com-
munities based on a public safety threat is inappropriate.
   Finally, Appellants attempt to use “all other residents of
Lisle” as comparators. This argument is not only overly
broad, but also, it fails to appreciate that evidence of
similarity requires specificity. Maulding Dev., LLC v. City
of Springfield, Ill., 453 F.3d 967, 971 (7th Cir. 2006) (“[Plain-
tiff’s] sweeping argument that it was ‘treated [ ] differently
than any other developer has ever been treated,’ with
12                                    Nos. 08-3206 & 09-1049

no evidentiary support, has no specificity.”). Merely
stating that all residents of Lisle live within Lisle’s
borders and receive Lake Michigan water is insufficient
to establish that such residents are similarly situated to
Oak View residents.
  The district court was correct in granting summary
judgment on Appellants’ equal protection claim because
Appellants have failed to raise a genuine issue of
material fact with respect to similarly situated compara-
tors.


  D. Rational Basis
  A state or municipal statute survives rational basis
scrutiny “if there is a rational relationship between the
disparity of treatment and some legitimate govern-
mental purpose.” City of Chicago v. Shalala, 189 F.3d 598,
605 (7th Cir. 1999) (internal quotation marks omitted).
This is an onerous test to overcome, as “the burden is
upon the challenging party to eliminate any reasonably
conceivable state of facts that could provide a rational
basis for the classification.” Smith, 457 F.3d at 652 (internal
quotation marks omitted). Furthermore, “[w]e are re-
quired, under the rational basis standard, to accept a
legislature’s generalizations even when there is an im-
perfect fit between means and ends. A classification
does not fail rational-basis review because it is not made
with mathematical nicety or because in practice it results
in some inequality.” Shalala, 189 F.3d at 606 (internal
quotation marks omitted). Thus, any rational basis will
Nos. 08-3206 & 09-1049                                    13

suffice, even one that was not articulated at the time
the disparate treatment occurred. Smith, 457 F.3d at 652.
   Lisle asserts that it had an economic reason for its
refusal to extend its system into Oak View. Lisle claims
that the costs associated with an extension, coupled with
its assessment of resident disinterest and the unlikely
success of an expansion, provided it a rational basis for
its decision. Specifically, Lisle points to the fact that an
expansion into Oak View would cost it approximately
four million dollars. Lisle would normally recoup the
costs of an expansion by passing these costs on to
residents who connect to the Lisle system. However, in
this case, Lisle offered evidence supporting its deter-
mination that residents of Oak View were uninterested
in personally financing the expansion of the Lisle sys-
tem. This conclusion was based on a survey of
nineteen Oak View homeowners who lived adjacent to
existing Lisle mains. Out of the nineteen surveyed, only
one expressed interest in connecting to the Lisle system.
  Appellants claim that Lisle’s failure to survey all of the
Oak View residents made its reliance on the nineteen
responses unreasonable. But this ignores the fact that
under rational basis review, “ ‘courts are compelled . . . to
accept a legislature’s generalizations . . . .’ ” Johnson v.
Daley, 339 F.3d 582, 600 (7th Cir. 2003) (quoting Heller v.
Doe by Doe, 509 U.S. 312, 321 (1993)). A rational basis
“may be based on rational speculation unsupported by
evidence or empirical data.” F.C.C. v. Beach Commc’ns, Inc.,
508 U.S. 307, 315 (1993). Thus, as long as Lisle was rational
in its belief that the nineteen responses served as an
14                                   Nos. 08-3206 & 09-1049

appropriate barometer to measure interest throughout
Oak View, Lisle was entitled to base its decision on its
survey of the nineteen residents. We cannot say that
Lisle’s reliance on the nineteen responses as a method
to measure neighborhood-wide interest was unrea-
sonable in light of the fact that smaller test groups are
often used to predict public sentiment on a given issue.
See, e.g., Donohue v. Bd. of Elections of N.Y., 435 F. Supp.
957, 970 (E.D.N.Y. 1976) (discussing the use of a sample
survey to predict the amount of voter fraud within the
greater voter population); cf. Jonathan S. Fox, Push
Polling: The Art of Political Persuasion, 49 Fla. L. Rev. 563,
627 (1997) (“[E]ven a relatively small sample can approxi-
mate the population, provided the properties of the
sample are representative of the broader population.”).
  Additionally, Lisle relied on other bases to support its
decision that extending its mains into Oak View was cost-
prohibitive. For example, Oak View was served by an
existing private utility company. In no other circum-
stance had Lisle extended its system into an area where
it would have been forced to compete with another
utility company. Furthermore, Lisle relied on its ex-
perience with Lisle Farms in reaching its conclusion that
lack of public support for an extension was prohibitive.
Lisle expended more than $400,000 for the expansion
into Lisle Farms but only recouped $45,000 from
resident connections there. Extrapolating this experience
onto its consideration of an Oak View expansion, Lisle
made the determination that without public interest in
paying for the expansion, Lisle would stand to lose even
more money than it had in Lisle Farms. These two consid-
Nos. 08-3206 & 09-1049                                     15

erations lend further credence to the rationality of Lisle’s
belief that an Oak View expansion would be too costly.
  Despite the rationality of Lisle’s belief, Appellants
contend that Lisle’s asserted justifications only cover the
period in 2006 when Lisle made the ultimate decision to
avoid expansion into Oak View. Appellants assert that
Lisle’s discrimination also occurred during the period
from 1995 (when Lisle entered into the Wheeling Agree-
ment with IAWC) to 2006. This claim disregards
the fact that rational basis review recognizes that a legisla-
ture need not explain its reasons for legislating at the
time it undertakes (or refrains from undertaking) an
action. Smith, 457 F.3d at 652. Rather, as we noted in
Smith, “[t]he government need not have articulated a
reason for the challenged action at the time the decision
was made.” Id.
   The costs resulting from the proposed expansion, in
addition to Lisle’s perceived lack of community interest,
its desire to avoid competition with existing utilities, and
its past experience with Lisle Farms, forms a rational
basis for its decision to treat Oak View differently than
other Lisle communities. As we have noted in prior cases,
significant expense is a sufficient rational basis that
justifies disparate treatment. Racine Charter One, 424 F.3d
at 687 (“We need only recognize that extending the
busing benefit will come at a significant enough expense
to [the school district], and that is rational basis enough
to justify its transportation policy decision.”).
  Lisle faced a significant expense, and it harbored real
concerns that it would be unable to recoup that expense. In
16                                  Nos. 08-3206 & 09-1049

this situation, we cannot say that Lisle’s belief was not
rational. We again agree with the district court that this
claim must fail because Appellants failed to negate
Lisle’s asserted rational basis for its refusal to extend
its system into Oak View.


  E. Inferences on Summary Judgment
  Appellants finally assert that the district court
impermissibly drew inferences in Lisle’s favor. On a
motion for summary judgment, the district court must
construe all facts and draw all reasonable inferences
in favor of the non-movant. NLFC, Inc. v. Devcom
Mid-America, Inc., 45 F.3d 231, 234 (7th Cir. 1995). In
this case, Appellants contend that the district court erred
by impermissibly drawing inferences in favor of Lisle.
Specifically, they argue that inferences were drawn to
find that Lisle was rational in relying on the nineteen
homeowners surveyed, and that the asserted costs of
expansion were as prohibitive as Lisle claimed them to be.
  Appellants’ argument fails to recognize that in deter-
mining that Lisle rationally relied upon the survey and the
projected costs of expansion, the district court was not
drawing inferences in Lisle’s favor. It was not deter-
mining that the nineteen homeowners were, in fact, a
true sampling of Oak View public opinion, nor was it
determining what the actual costs to Lisle might be.
Rather, the district court was making a finding that
Lisle’s belief in the existence of those facts was rational.
This is all that a municipality is required to show to
Nos. 08-3206 & 09-1049                                     17

survive rational basis review. As the Court noted in
Heller, a municipality’s belief need not be correct; it just
needs to be rational. See 509 U.S. at 320-21 (“A State,
moreover, has no obligation to produce evidence to
sustain the rationality of a statutory classification. A
legislative choice is not subject to courtroom factfinding
and may be based on rational speculation unsupported
by evidence or empirical data. . . . The burden is on the
one attacking the legislative arrangement to negative
every conceivable basis which might support it whether
or not the basis has a foundation in the record.” (internal
quotation marks omitted)). The existence or non-
existence of the underlying facts supporting Lisle’s deter-
mination that it would not extend its water mains is not
at issue here. What matters in this inquiry is whether
Lisle had a rational basis to believe in the existence or non-
existence of such facts, and Appellants have failed
to produce evidence to the contrary.


                      III. Conclusion
  There are numerous grounds on which we affirm the
district court’s grant of summary judgment. Initially,
Appellants have failed to establish that they have a cogni-
zable claim under Engquist. That basis alone merits dis-
missal; however, even if Appellants’ claim was
cognizable, Appellants have failed to raise a genuine
issue of material fact as to whether Appellants are
similarly situated to like individuals and whether Lisle
had a rational basis for its disparate treatment of Appel-
18                                  Nos. 08-3206 & 09-1049

lants. Because of Appellants’ failure to meet any of the
requirements necessary to establish their claim, we A FFIRM
the district court’s grant of summary judgment.




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