Bloch v. Frischholz, 587 F.3d 771; 2009 U.S. App. LEXIS 24917 (7th Cir.)
kuacou
EDWARD FRISCHHOLZ and SHORELINE TOWERS CONDOMINIUM ASSOCIATION,
Defendants-Appellees.
No. 06-3376
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
587 F.3d 771; 2009 U.S. App. LEXIS 24917
May 13, 2009, Argued
November 13, 2009, Decided
PRIOR HISTORY: [*1]
Appeal from the United States District Court for the Northern District
of Illinois, Eastern Division. No. 05 C 5379--George W. Lindberg,
Judge.
Gassman v. Frischholz, 2007 U.S. Dist. LEXIS 31584 (N.D. Ill., Apr.
30, 2007)
Bloch v. Frischholz, 533 F.3d 562, 2008 U.S. App. LEXIS 14576 (7th
Cir. Ill., 2008)
COUNSEL: For LYNNE BLOCH, HELEN BLOCH, NATHAN BLOCH, Plaintiffs -
Appellants: Gary S. Feinerman, Attorney, SIDLEY AUSTIN, Chicago, IL.
For EDWARD FRISCHHOLTZ, SHORELINE TOWERS CONDOMINIUM ASSOCIATION,
Defendants - Appellees: David C. Hartwell, Attorney, PENLAND &
HARTWELL, Chicago, IL.
For DECALOGUE SOCIETY OF LAWYERS, Not Party - Amicus Curiae: Stanley
J. Adelman, Attorney, DLA PIPER US LLP, Chicago, IL.
For UNITED STATES OF AMERICA, Not Party - Amicus Curiae: April J.
Anderson, Steven H. Rosenbaum, Attorneys, DEPARTMENT OF JUSTICE, Civil
Rights Division, Appellate Section, Washington, DC.
JUDGES: Before EASTERBROOK, Chief Judge, and BAUER, POSNER, KANNE,
WOOD, EVANS, SYKES, and TINDER, Circuit Judges. *
*
Circuit Judges Flaum, Rovner, and Williams took no part in the
consideration of this case.
OPINION BY: TINDER
OPINION
TINDER, Circuit Judge. In this case, we consider whether condominium
owners can sue their condo association under the Fair Housing Act
(FHA), 42 U.S.C. §§ 3601 et seq., for alleged religious and racial
discrimination that took place after the owners bought their condo
[*2] unit. We highlight the word "after" because based on a prior
opinion from this court, Halprin v. Prairie Single Family Homes of
Dearborn Park Ass'n, 388 F.3d 327 (7th Cir. 2004), the district court
concluded that condo owners couldn't rely on the FHA to safeguard
their rights from any post-acquisition discrimination. We took this
case to the full court to consider this important question. Upon
careful review of the FHA and our prior opinion in Halprin, we
conclude that in some circumstances homeowners have an FHA cause of
action for discrimination that occurred after they moved in. On the
facts of this case, we conclude that Lynne, Helen, and Nathan Bloch
have offered enough evidence to allow a trier of fact to decide
whether they suffered intentional discrimination at the hands of the
Shoreline Towers Condo Association and its president Edward
Frischholz. We therefore reverse the summary judgment granted against
the Blochs.
I. The Mezuzah Dispute
At the center of this case is a little rectangular box, about six
inches tall, one inch wide, and one inch deep, which houses a small
scroll of parchment inscribed with passages from the Torah, the
holiest of texts in Judaism. n1 The scroll [*3] is called a mezuzah
(or in the plural form, mezuzot or mezuzoh). Though small in size, the
mezuzah is a cental aspect of the Jewish religious tradition--many
Jews believe they are commanded by God to affix mezuzot on the
exterior doorposts of their dwelling (specifically, on the right
doorpost when facing into the home, one-third of the way down from the
top of the doorway, within about three inches of the doorway opening).
Many Jews touch and kiss the mezuzah and pray when entering a home
with a mezuzah on the doorpost. n2
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1
The inscribed passages from the Torah are Deuteronomy 6:4-9, 11:13-21,
translated in English in The Five Books of Moses 912-13, 937 (Robert
Alter trans., 2004).2
For a discussion of the mezuzah and its role in Judaism, see THE
OXFORD DICTIONARY OF THE JEWISH RELIGION 460-61 (1997) (R. J. Zwi
Werblowsky & Geoffrey Wigoder eds., 1997).
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The Blochs, long-time residents of three units in the Shoreline Towers
condominium building, are Jewish. As residents, the Blochs are subject
to the rules and regulations enacted by the Condo Association's Board
of Managers. For approximately three decades, the Blochs displayed
mezuzot on the doorposts outside of their condo units without [*4]
objection.
In 2001, the Association's rules and regulations committee enacted a
set of rules to govern certain activities taking place outside the
units in the common hallways. Lynne chaired that committee at that
time and voted in favor of the rules. The "Hallway Rules," as they
have come to be called, stated:
Hallways
1. Mats, boots, shoes, carts or objects of any sort are prohibited
outside Unit entrance doors.
2. Signs or name plates must not be placed on Unit doors.
3. Pets must not be left unattended in the hall. Hallways should not
be used as dog/pet runs.
4. No alterations to the common area hallways are allowed.
5. No playing with or riding of bicycles, tricycles, roller blades,
etc. is allowed.We're most concerned with Hallway Rule 1. From the
Rules' enactment until mid-2004, the Association did not remove
mezuzot or any other object affixed to the outside of unit doors or
doorposts, with the exception of a few pictures, depicting a swastika,
a marijuana plant, and the Playboy bunny. Instead, the Association
ordinarily relied on Rule 1 to remove clutter from the hallways.
In May 2004, the Association began renovating the building's hallways
and repainted the walls and doors. The [*5] Association asked
residents to remove everything from their doors to prepare for the
work. The Blochs obliged and took down their mezuzot. When the work
was finished, they put their mezuzot back up. But then, without notice
to the Blochs, the Association began removing and confiscating the
mezuzot. The Association said that mezuzot on doorposts violated
Hallway Rule 1, because "objects of any sort" included mezuzot. It
included more than that, though, as the Association also confiscated
crucifixes, wreaths, Christmas ornaments, political posters, and
Chicago Bears pennants.
The Blochs voiced their concerns to the Association and provided the
Association with information explaining the religious significance of
the mezuzah. For example, a letter from the Chicago Rabbinical Council
explained that Jewish law requires mezuzot to be displayed on the
exterior doorpost, rather than indoors. Another letter explained that
observant Jews could not live in a place that prohibited them from
affixing mezuzot to their doorposts. But the Blochs received no relief
from Frischholz or the Association. Though Frischholz knew as early as
2001 that removing mezuzot would be a problem for Lynne Bloch, he
[*6] made no effort to stop the staff from repeatedly tearing them
down. Instead, he accused Lynne of being a racist, called her a liar,
encouraged other tenants to vote against her reelection to the
Association's Board of Managers, and told her that if she didn't like
the way the rules were enforced, she should "get out." He also
admitted in his deposition that, when Lynne was on the Board, he held
Board events on Friday evenings, despite knowing that Lynne could not
attend due to her religious obligations. When asked about whether he
was aware of those obligations, he answered affirmatively, stating,
"She's perfectly able. She decides not to. . . . She says that she
can't attend after sunset, because it is Shavus [sic]." n3 He was well
aware of Lynne's fidelity to Judaic religious practices.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -3
Though transcribed as "Shavus," Frischholz probably was referring to
"Shabbat" or "Sabbath," which is the "weekly day of rest observed from
sunset on Friday until nightfall on Saturday," THE OXFORD DICTIONARY
OF THE JEWISH RELIGION, supra, at 595; see also id. at 624 (defining
"Shabbat").
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
As for the Board, it rejected a formal proposal by the Blochs to
change the Rules. The Association went on to warn [*7] the Blochs
that they would be fined if they continued to display their mezuzot.
So for over a year, each time the Blochs put their mezuzot back up,
the Association took them down. We also know that the mezuzah of at
least one other Jew, Debra Gassman, was removed pursuant to the
reinterpretation of Rule 1.
The mezuzah removals persisted even during the funeral of Marvin
Bloch, Lynne's husband and Helen and Nathan's father, despite the
Blochs' request that the mezuzot be left up for the seven-day Shivah,
the Jewish period of mourning. n4 Frischholz had agreed to allow the
mezuzah to stay up during Shivah. The Association also provided a coat
rack and a card table, both of which were placed in the hall outside
the Blochs' condo unit. A jug of water was placed on the table so
visitors could wash their hands when returning from the cemetery. Upon
their return from the burial, though, the Blochs and their guests,
including a rabbi, were shocked to find the doorpost empty once again.
The Blochs were humiliated having to explain to the rabbi why, on the
day of the funeral, their mezuzah was not on the doorpost. The coat
rack and the table, however, were still sitting in the hallway. The
Blochs [*8] reaffixed the mezuzah after retrieving it from the
management office. But on three more occasions during the week-long
Shivah, the Blochs were interrupted in their mourning as they
confronted the Shoreline Towers maintenance staff who came to again
take down their mezuzah. (Of course, we don't vouch for the veracity
of these facts and the inferences that can be drawn from them, but we
must accept the facts as true and construe reasonable inferences in
the Blochs' favor at this stage in the proceedings.)
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -4
For a discussion of Shivah, see THE OXFORD DICTIONARY OF THE JEWISH
RELIGION, supra, at 638.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
On September 16, 2005, the Blochs filed this lawsuit, seeking an
injunction and damages for distress, humiliation, and embarrassment. A
magistrate judge entered an order prohibiting the defendants from
removing the Blochs' mezuzot, consistent with a rule change the Board
of Managers was considering. Shortly thereafter, the Board ratified
the change, which created an exception to Hallway Rule 1 for religious
objects. In the coming months, the City of Chicago would amend its
code to proscribe in condos and rental properties restrictions on
affixing religious signs or symbols to doorposts. See Chi., [*9]
Ill., Municipal Code, § 5-8-030(H). Soon thereafter, the Illinois
legislature followed suit. See 765 ILCS 605/18.4(h). These legislative
changes mooted the Blochs' claim for an injunction, but their claim
for damages remains alive.
II. The Proceedings Leading to Rehearing En Banc
The Blochs sought relief on both federal and state grounds. On the
federal side, the Blochs asserted three theories based on the FHA, 42
U.S.C. §§ 3604(a), 3604(b), and 3617; and one on the Civil Rights Act,
42 U.S.C. § 1982. The district court, however, granted summary
judgment for the defendants on each federal theory. The court
concluded that our decision in Halprin precluded FHA claims under §
3604(a) and (b) for discrimination that occurred while the Blochs
owned their condo unit, because Halprin said the FHA prohibited
discrimination only at the time of sale. The district court also found
that the record failed to show that the defendants harbored any
discriminatory animus based on religion or race toward the Blochs.
Since §§ 3617 and 1982 require proof of discriminatory intent, the
court found these claims meritless as well. Finally, without any
federal claims left, the district court declined to exercise [*10]
supplemental jurisdiction over the Blochs' state-law claims.
The Blochs appealed to this court and the panel affirmed over a
dissent. Bloch v. Frischholz, 533 F.3d 562 (7th Cir. 2008). The
majority agreed with the district court that the Blochs failed to
present sufficient evidence of intentional discrimination to survive
summary judgment. In the majority's view, the Hallway Rules were
neutrally adopted and enforced, so the Blochs merely sought a
religious accommodation. Id. at 565. Though the FHA permits
accommodations for disabilities, it is silent as to religious
accommodations. Id. Because we cannot create what Congress left out,
the majority concluded the Blochs' discrimination claims must fail,
regardless of the theory. Id.
The dissent, on the other hand, didn't see a request for accommodation
but rather a straightforward claim for intentional discrimination. Id.
at 572-73 (Wood, J., dissenting). The dissent examined the statute and
found that the Blochs could maintain a claim for post-sale
discrimination under the FHA; Halprin left enough room for the Blochs
to rely on § 3604(a) and (b). Id. at 570-71. Concluding that the FHA
could give the Blochs a cause of action, the dissent [*11] went on
to argue that, based on the record, it does. The dissent contended
that the majority prematurely characterized the Blochs' claim as one
for an exception to the supposedly neutral Hallway Rules. Whether
Hallway Rule 1 reached mezuzot at all, the dissent argued, was a
disputed material issue of fact. Moreover, the dissent found that the
Blochs marshaled sufficient facts to show that the Association's
"reinterpretation" of the Hallway Rule in 2004 to include mezuzot was
intentionally discriminatory. In other words, though Hallway Rule 1's
text was facially neutral, the record contained evidence that the
defendants' enforcement of it was done with discriminatory animus,
allowing the Blochs to proceed to trial. Id. at 572-73.
III. The Fair Housing Act
This case presents essentially two questions. First, under which
federal theories, if any, can the Blochs seek relief? We focus
exclusively on the three FHA provisions to determine whether any of
them supports a claim for post-sale discrimination. n5 Second, did the
Blochs offer sufficient evidence of discrimination to proceed to trial
on one or more of their federal theories?
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -5
We don't need to discuss the Blochs' § 1982 claim separately, [*12]
because that claim, like the FHA claims, will survive only if the
record demonstrates triable issues of fact on intentional
discrimination. See Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th
Cir. 1996). The parties do not dispute the legal underpinnings of the
§ 1982 theory, see Shaare Tefila Congregation v. Cobb, 481 U.S. 615,
617-18, 107 S. Ct. 2019, 95 L. Ed. 2d 594 (1987) (holding that Jews
can sue for race discrimination under § 1982), but only whether there
are sufficient facts to support it. We will return to discuss the
intentional discrimination concept and the relevant facts in part IV,
infra.
Section 1982 provides that "[a]ll citizens of the United States shall
have the same right, in every State and Territory, as is enjoyed by
white citizens thereof to inherit, purchase, lease, sell, hold, and
convey real and personal property." 42 U.S.C. § 1982.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
We begin with the FHA. The Blochs argue they can sustain independent
claims under all three provisions, 42 U.S.C. §§ 3604(a), 3604(b), and
3617. The defendants, by contrast, contend that none of these statutes
provides the Blochs an avenue for relief because the FHA, with respect
to condo owners, is addressed only to discrimination that takes place
in the sale [*13] of housing. They assert that the FHA's protections
are left on the doorstep as owners enter their new homes. We examine
each of the three theories in turn.
A. 42 U.S.C. § 3604(a)
Section 3604(a) makes it unlawful "[t]o refuse to sell or rent after
the making of a bona fide offer, or to refuse to negotiate for the
sale or rental of, or otherwise make unavailable or deny, a dwelling
to any person because of race, color, religion, sex, familial status,
or national origin." The issue is whether this text prohibits any form
of discrimination after the buyer or renter signs on the dotted line.
(We recognize that the plaintiffs in this case are owners rather than
renters, but there is no reason that there would be a distinction
under the relevant provisions of the FHA.) Our opinion in Halprin left
little room for a post-acquisition discrimination claim. Halprin also
involved allegations of anti-Semitic harassment; members of the
homeowners' association allegedly graffitied and vandalized the
plaintiff's property and thwarted the plaintiff's attempts to
investigate this conduct. 388 F.3d at 328. This harassment did not
give rise to an FHA claim, we concluded in Halprin, because the FHA by
and [*14] large concerned only "access to housing." Id. at 329
(emphasis in original).
Nonetheless, Halprin noted that "[a]s a purely semantic matter the
statutory language might be stretched far enough to reach a case of
'constructive eviction.'" Id. That statutory language is the
"otherwise make unavailable or deny" part, which is not tethered to
the words "sale or rental" that constrain the other two § 3604(a)
clauses. Availability of housing is at the heart of § 3604(a).
"Section 3604(a) is designed to ensure that no one is denied the right
to live where they choose for discriminatory reasons." Southend
Neighborhood Improvement Ass'n v. County of St. Clair, 743 F.2d 1207,
1210 (7th Cir. 1984). There could be situations where a person is
denied that right after he or she moves in. Prohibiting discrimination
at the point of sale or rental but not at the moment of eviction would
only go halfway toward ensuring availability of housing. A landlord
would be required to rent to an African-American but then, the day
after he moves in, could change all the locks and put up signs that
said, "No blacks allowed." That clearly could not be what Congress had
in mind when it sought to create "truly integrated [*15] and
balanced living patterns." Trafficante v. Metro. Life Ins. Co., 409
U.S. 205, 211, 93 S. Ct. 364, 34 L. Ed. 2d 415 (1972) (quotation
omitted). So we agree with Halprin that § 3604(a) may reach post-
acquisition discriminatory conduct that makes a dwelling unavailable
to the owner or tenant, somewhat like a constructive eviction. See
Evans v. Tubbe, 657 F.2d 661, 662-63 & n.3 (5th Cir. Unit A Sept.
1981) (concluding that defendant's depriving plaintiff-landowner
access to already-owned property on account of race arguably violated
§ 3604(a)).
The question here is whether the defendants have made the Blochs'
units "unavailable" because of their religion (or their race). Proving
constructive eviction is a tall order, but it's the best analogy the
Blochs give to support their argument. Ordinarily, the plaintiff in
such a case must show her residence is "unfit for occupancy," often to
the point that she is "compelled to leave." BLACK'S LAW DICTIONARY 594
(8th ed. 2004). Plaintiffs must show more than a mere diminution in
property values, see Southend Neighborhood, 743 F.2d at 1210; Cox v.
City of Dallas, Tex., 430 F.3d 734, 742-43 & n.21 (7th Cir. 2005),
more than just that their properties would be less desirable to
[*16] a certain group, see Tenafly Eruv Ass'n v. Tenafly, 309 F.3d
144, 157 n.13 (3d Cir. 2002). Even in Halprin, the allegations of the
defendants' blatantly discriminatory acts, including spraying the
plaintiff's yard with harmful chemicals, were insufficient to give
rise to a § 3604(a) claim. Availability, not simply habitability, is
the right that § 3604(a) protects. See Southend Neighborhood, 743 F.2d
at 1210 ("[Section 3604(a)] does not protect the intangible interests
in the already-owned property raised by the plaintiffs [sic]
allegations."); Jersey Heights Neighborhood Ass'n v. Glendening, 174 F.
3d 180, 192 (4th Cir. 1999) (rejecting plaintiff's claim that
selection of site for new highway construction violated § 3604(a)
because plaintiff failed to allege that "anyone has for discriminatory
reasons been evicted from his home or denied the right to purchase or
rent housing"); Clifton Terrace Assocs., Ltd. v. United Techs. Corp.,
929 F.2d 714, 719, 289 U.S. App. D.C. 121 (D.C. Cir. 1991) ("A lack of
elevator service is a matter of habitability, not availability, and
does not fall within the terms of these subsections.").
Still, despite the analogy to constructive eviction, nothing in §
3604(a) suggests that [*17] "unavailability" refers only to the
physical condition of the premises. "[C]ourts have construed the
phrase 'otherwise make unavailable or deny' in subsection (a) to
encompass mortgage 'redlining,' insurance redlining, racial steering,
exclusionary zoning decisions, and other actions by individuals or
governmental units which directly affect the availability of housing
to minorities." Southend Neighborhood, 743 F.2d at 1209 & n.3 (citing
cases). In other words, the defendant need not burn the plaintiff's
house down for the plaintiff to have an FHA claim. A defendant can
engage in post-sale practices tantamount to "redlining" that make a
plaintiff's dwelling "unavailable."
The Blochs argue that the defendants' reinterpretation of Hallway Rule
1 rendered Shoreline Towers unavailable to them and other observant
Jews because their religion requires that they be able to affix
mezuzot to their doorposts. Letters from the Mezuzah Division of
Chicago Mitzvah Campaigns, the Rabbinical Council of Chicago, and the
Decalogue Society of Lawyers state that Jewish law requires observant
Jews to place mezuzot on the exterior of their entrance doorposts. One
went so far as to explain that, "A Jew who [*18] is not permitted to
affix mezuzohs as aforesaid to all of the doorposts of his dwelling
would therefore be required by Jewish Law not to live there." We think
this evidence is sufficient to establish a dispute about whether
Shoreline Towers was unavailable to observant Jews.
But was it ever unavailable to the Blochs? Though our interpretation
of unavailability under the FHA is undoubtedly a matter of federal
law, an analogy to the common law property concept of constructive
eviction is useful. The defendants argue that the Blochs were never
evicted, actually or constructively, because they never vacated the
premises. The defendants' point is well-taken. To establish a claim
for constructive eviction, a tenant need not move out the minute the
landlord's conduct begins to render the dwelling uninhabitable--in
this case, when the defendants began enforcing the Hallway Rule to
take down the Blochs' mezuzot. Tenants have a reasonable time to
vacate the premises. Auto. Supply Co. v. Scene-in-Action Corp., 340
Ill. 196, 203, 172 N.E. 35 (1930); see also Shaker & Assocs., Inc. v.
Med. Techs. Group, Ltd., 315 Ill. App. 3d 126, 733 N.E.2d 865, 873,
248 Ill. Dec. 190 (Ill. App. Ct. 2000). Nonetheless, it is well-
understood that constructive eviction [*19] requires surrender of
possession by the tenant. E.g., Infinity Broad. Corp. of Ill. v.
Prudential Ins. Co. of Am., 869 F.2d 1073, 1077-78 (7th Cir. 1989)
(citing cases); RESTATEMENT (SECOND) OF PROP.: LANDLORD & TENANT §§
5.4, 10.1 cmt. e (1977); Auto. Supply Co., 340 Ill. at 201; Shaker &
Assocs., 733 N.E.2d at 872; JMB Props. Urban Co. v. Paolucci, 237 Ill.
App. 3d 563, 604 N.E.2d 967, 969, 178 Ill. Dec. 444 (Ill. App. Ct.
1992); Sigsbee v. Swathwood, 419 N.E.2d 789, 794 (Ind. Ct. App. 1981);
see also BLACK'S LAW DICTIONARY, supra, at 594. If the tenant fails to
vacate within a reasonable time, she waives her claim for constructive
eviction. Auto. Supply Co., 340 Ill. at 203; JMB Props. Urban Co., 604
N.E.2d at 969; Dell' Armi Builders, Inc. v. Johnston, 172 Ill. App. 3d
144, 526 N.E.2d 409, 412, 122 Ill. Dec. 150 (Ill. App. Ct. 1988).
We recognize that the analogy to constructive eviction is imperfect.
Section 3604(a) concerns making a dwelling "unavailable," not
constructive eviction per se. Still, the Blochs never moved out.
Though the Blochs compare their plight to constructive eviction, they
give no reason why they failed to vacate. Instead, they stayed put and
resisted (by repeatedly replacing their mezuzot) the defendants'
allegedly discriminatory enforcement [*20] of Hallway Rule 1 for
over a year before a court enjoined the Rule's enforcement and the
Association amended the Rules. Whether "unavailability" means that a
plaintiff must, in every case, vacate the premises to have a § 3604(a)
claim is an issue we refrain from reaching. n6 But based on these
facts, we see no possibility that a reasonable jury could conclude
that the defendants' conduct rendered Shoreline Towers "unavailable"
to the Blochs, which is what § 3604(a) requires. See Infinity Broad.,
869 F.2d at 1078 (holding that district court "correctly declined to
render an advisory opinion" where plaintiff sued for constructive
eviction but had not yet vacated premises); Shaker & Assocs., 733 N.E.
2d at 873 (ten-month delay to find new location deemed unreasonable);
Auto. Supply Co., 340 Ill. at 203 (two-month delay after loss of heat
deemed unreasonable); Sigsbee, 419 N.E.2d at 795 (eight-month delay
deemed unreasonable). Section 3604(a) does not contemplate attempted
constructive eviction.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -6
Perhaps a future case may require us to reconsider our understanding
of constructive eviction, depending on how the Supreme Court treats
the potentially analogous concept of constructive termination. [*21]
See Marcoux v. Shell Oil Prods. Co., 524 F.3d 33 (1st Cir. 2008),
cert. granted sub nom. Mac's Shell Serv., Inc. v. Shell Oil Prods.
Co., 129 S.Ct. 2788, 174 L. Ed. 2d 289 (June 15, 2009) (No. 08-240).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The panel dissent raised one other possibility for the Blochs--the
Hallway Rule restricted not only the Blochs' ability to live in their
unit but also their ability to sell to other observant Jews. To borrow
the words from the dissent, "Hallway Rule 1 operates exactly as a
redlining rule does with respect to the ability of the owner to sell
to observant Jews. No such person could buy a unit at Shoreline
Towers. The Association might as well hang a sign outside saying, 'No
observant Jews allowed.'" Bloch, 533 F.3d at 570 (Wood, J.,
dissenting). Such a sign would undoubtedly violate § 3604(a); hence,
so would the Hallway Rule. However, the Blochs never made this
argument to the district court, and moreover, offered no evidence that
they intended to sell their units and that the Rule's enforcement
stifled their efforts. As such, we conclude that the Blochs cannot
proceed under § 3604(a). n7
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -7
The panel dissent notes that another Shoreline Towers resident, Debra
Gassman, whose mezuzah removal we mentioned above, [*22] has also
filed suit against Frischholz and the Condo Association for the
removal of her mezuzah. See Bloch, 533 F.3d at 568 (Wood, J.,
dissenting) (citing Gassman v. Frischholz, No. 05-CV-5377, 2007 U.S.
Dist. LEXIS 31584 (N.D. Ill.), on appeal, No. 07-2213 (7th Cir.)).
Gassman's appeal has been stayed pending the appeal in this case. The
dissent discusses the fact that Gassman actually moved out of her unit
at Shoreline Towers to return to Israel. Id. at 568, 570. Such
circumstances might dictate a different result under § 3604(a) than
the Blochs' case. However, we refrain from making any conclusions
about that case given that the only facts before us are those of Bloch
v. Frischholz.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
B. 42 U.S.C. § 3604(b)
Turning to the second of the three FHA theories, § 3604(b) makes it
unlawful "[t]o discriminate against any person in the terms,
conditions, or privileges of sale or rental of a dwelling, or in the
provision of services or facilities in connection therewith, because
of race, color, religion, sex, familial status, or national origin."
Again, our task is to determine whether this provision proscribes the
sort of post-acquisition discrimination alleged in this case.
Subsection (b)'s language is broad, mirroring [*23] Title VII, which
we have held reaches both pre-and post-hiring discrimination. See
Kyles v. J.K. Guardian Sec. Servs., Inc., 222 F.3d 289, 295 (7th Cir.
2000) ("Courts have recognized that Title VIII is the functional
equivalent of Title VII, and so the provisions of these two statutes
are given like construction and application." (internal citations
omitted)); DiCenso v. Cisneros, 96 F.3d 1004, 1008 (7th Cir. 1996)
("[W]e recognize a hostile housing environment cause of action [under
the FHA], and begin our analysis with the more familiar Title VII
standard."). Nonetheless, Halprin found the scope of this provision
more limited than Title VII, 388 F.3d at 329, and the defendants rely
on Halprin to argue that the FHA does not reach any claims of post-
acquisition discrimination. We read Halprin more narrowly, however,
and see two possibilities for relief in this case, only the latter of
which is viable for the Blochs.
Like subsection (a), constructive eviction is an option under §
3604(b) as well. As we recognized in Halprin, the right to inhabit the
premises is a "privilege of sale." 388 F.3d at 329. Deprivation of
that right by making the premises uninhabitable violates § 3604(b).
See [*24] Cox, 430 F.3d at 746 ("[Section] 3604(b) may encompass the
claim of a current owner or renter . . . for actual or constructive
eviction."). However, as we just discussed, the Blochs have no
constructive eviction claim. So this § 3604(b) avenue is closed to
them.
But the "privilege" to inhabit the condo is not the only aspect of §
3604(b) that this case implicates. The Blochs alleged discrimination
by their condo association, an entity by which the Blochs agreed to be
governed when they bought their units. This agreement, though
contemplating future, post-sale governance by the Association, was
nonetheless a term or condition of sale that brings this case within §
3604(b). n8 See Cox, 430 F.3d at 746 ("[Section] 3604(b) may encompass
the claim of a current owner or renter for attempted and unsuccessful
discrimination relating to the initial sale or rental."); Woods-Drake
v. Lundy, 667 F.2d 1198, 1201 (5th Cir. 1982) ("[W]hen a landlord
imposes on white tenants the condition that they may lease his
apartment only if they agree not to receive blacks as guests, the
landlord has discriminated against the tenants in the 'terms,
conditions and privileges of rental' on the grounds of 'race.'").
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -8
The [*25] defendants seem to recognize this when they remarked at
the summary judgment stage, "[A]s a condition precedent to purchasing
or residing at Shoreline Towers Condominium Association, they
explicitly agreed to be bound and governed by its Declaration and
Bylaws." (Defs.' Reply Pls.' Resp. Defs.' Mot. Summ. J. 2.)
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Shoreline Towers operates under a common plan or "Declaration" that
sets forth the rights, easements, privileges, and restrictions subject
to which condo owners take their units upon purchase. Unit owners
must, for instance, pay their share of the expenses of administration,
maintenance, and repair of the building's common elements. The
Declaration also establishes a Board of Managers, elected by the unit
owners, to oversee the administration of the building; the Declaration
vests the Board with the authority to carry out this duty. For
example, the Board can cause certain repairs to the common elements to
be performed at a unit owner's expense. The Board may also adopt and
enforce rules and regulations that it "deem[s] advisable for the
maintenance, administration, management, operation, use, conservation
and beautification of the Property, and for the health comfort,
safety [*26] and general welfare of the Unit Owners and Occupants of
the Property." So, upon purchasing their units, the Blochs agreed to
be bound by the enactments of the Board of Managers, both present and
future.
This contractual connection between the Blochs and the Board
distinguishes this case from Halprin. Halprin made it clear that §
3604(b) is not broad enough to provide a blanket "privilege" to be
free from all discrimination from any source. Plaintiffs generally
cannot sue under § 3604 for isolated acts of discrimination by other
private property owners. Neither the FHA's text nor its legislative
history indicates an intent to make "quarrels between neighbors . . .
a routine basis for federal litigation." 388 F.3d at 329. As
deplorable as it might have been, the defendants' alleged conduct in
Halprin was not linked to any of the terms, conditions, or privileges
that accompanied or were related to the plaintiffs' purchase of their
property. But that's what § 3604(b) requires.
Here, however, the Blochs' agreement to subject their rights to the
restrictions imposed by the Board was a "condition" of the Blochs'
purchase; the Board's power to restrict unit owners' rights flows from
the terms [*27] of the sale. And the Blochs alleged that the Board
discriminated against them in wielding that power. Consequently,
because the Blochs purchased dwellings subject to the condition that
the Condo Association can enact rules that restrict the buyer's rights
in the future, § 3604(b) prohibits the Association from discriminating
against the Blochs through its enforcement of the rules, even facially
neutral rules.
Allowing certain claims for post-acquisition discrimination to proceed
under § 3604(b) is also consistent, as the panel dissent observed,
with regulations adopted by HUD, the agency responsible for
implementing the FHA. The HUD regulations explain that § 3604(b)'s
protections extend to prohibit "[l]imiting the use of privileges,
services or facilities associated with a dwelling because of race
[or] . . . religion . . . of an owner, tenant or a person associated
with him or her." 24 C.F.R. § 100.65(b)(4) (emphasis added). Though a
rote application of Chevron deference might be inconsistent with the
judicially enforceable nature of the FHA's private right of action,
see Adams Fruit Co. v. Barrett, 494 U.S. 638, 649-50, 110 S. Ct. 1384,
108 L. Ed. 2d 585 (1990); NAACP v. Am. Family Mut. Ins. Co., 978 F.2d
287, 300 (7th Cir. 1992), [*28] the Supreme Court has nonetheless
recognized that HUD's views about the meaning of the FHA are entitled
to "great weight," Trafficante, 409 U.S. at 210; see also NAACP, 978 F.
2d at 300 ("It would be weird to say that Title VIII applies . . . on
judicial review of administrative actions but not when the litigation
begins in district court."). Accordingly, if the Blochs produced
sufficient evidence of discrimination, we conclude that § 3604(b)
could support the Blochs' claim.
C. 42 U.S.C. § 3617
The Blochs' third and final FHA theory arises under § 3617, which
makes it unlawful "to coerce, intimidate, threaten, or interfere with
any person in the exercise or enjoyment of, or on account of his
having exercised or enjoyed, or on account of his having aided or
encouraged any other person in the exercise or enjoyment of, any right
granted or protected by section 3603, 3604, 3605, or 3606 of this
title." The Blochs argue that § 3617 supports a post-acquisition
discrimination claim independent of any allowed under § 3604.
"Interference" with the enjoyment of fair housing rights, they argue,
encompasses a broader swath of conduct than an outright deprivation of
those rights. Supporting the Blochs' [*29] position is a HUD
regulation, 24 C.F.R. § 100.400(c)(2), which prohibits "[t]hreatening,
intimidating or interfering with persons in their enjoyment of a
dwelling because of the race [or] . . . religion . . . of such
persons, or of visitors or associates of such persons." Interference
with the "enjoyment of a dwelling" could only occur post-sale. See
East-Miller v. Lake County Highway Dep't, 421 F.3d 558, 562 (7th Cir.
2005).
Whether a violation of § 3617 can exist without a violation of § 3604
or any other FHA provision is a question we have routinely reserved.
See South-Suburban Hous. Ctr. v. Greater S. Suburban Bd. of Realtors,
935 F.2d 868, 886 (7th Cir. 1991) (citing Metro. Hous. Dev. Corp. v.
Vill. of Arlington Heights, 558 F.2d 1283, 1288 n.5 (7th Cir. 1977)).
Courts are split on the issue. Compare Frazier v. Rominger, 27 F.3d
828, 834 (2d Cir. 1994), and Reule v. Sherwood Valley I Council of Co-
Owners, Inc., No. 05-3197, 2005 U.S. Dist. LEXIS 25597, 2005 WL
2669480, at *4 (S.D. Tex. Oct 19, 2005), with United States v. Koch,
352 F. Supp. 2d 970, 978-79 (D. Neb. 2004), and Stackhouse v.
DeSitter, 620 F. Supp. 208, 210 (N.D. Ill. 1985). In some instances,
we have held that the circumstances of the case make [*30] §§ 3604
and 3617 coextensive--a violation of one necessarily means a violation
of the other. See Arlington Heights, 558 F.2d at 1288 & n.5 (sections
3604 and 3617 violated if defendant's refusal to rezone was done with
discriminatory intent or had discriminatory effect). Here, however,
that need not be the case. We know that the Association's enforcement
of the Hallway Rule did not constructively evict the Blochs in
violation of § 3604(a) or (b). But that does not foreclose the
possibility that the defendants "interfered" with the Blochs'
enjoyment of their § 3604 rights or "coerced" or "intimidated" the
Blochs on account of their having exercised those rights. To hold
otherwise would make § 3617 entirely duplicative of the other FHA
provisions; though its language is unique in the FHA, § 3617 would
have no independent meaning. But "'when the legislature uses certain
language in one part of the statute and different language in another,
the court assumes different meanings were intended.'" Sosa v. Alvarez-
Machain, 542 U.S. 692, 711 n.9, 124 S. Ct. 2739, 159 L. Ed. 2d 718
(2004) (quoting 2A N. Singer, Statutes and Statutory Construction §
46:06, p. 194 (6th rev. ed. 2000)). Coercion, intimidation, threats,
or interference [*31] with or on account of a person's exercise of
his or her §§ 3603-3606 rights can be distinct from outright
violations of §§ 3603-3606. For instance, if a landlord rents to a
white tenant but then threatens to evict him upon learning that he is
married to a black woman, the landlord has plainly violated § 3617,
whether he actually evicts the tenant or not. That §§ 3604 and 3617
might overlap in some circumstances is "neither unusual nor
unfortunate." See United States v. Naftalin, 441 U.S. 768, 778, 99 S.
Ct. 2077, 60 L. Ed. 2d 624 (1979) (quotation omitted); NAACP, 978 F.2d
at 298.
Despite the fact that a § 3617 claim might stand on its own, Halprin
seems to cut the legs out from under it in a case like this. Because §
3604 covers pre-sale conduct, Halprin goes, § 3617 is likewise limited
to pre-sale "interference" with § 3604 rights. 388 F.3d at 330. But,
as we've discussed above, even Halprin recognized that § 3604 might
not be constrained to purely pre-sale discrimination. Sections 3604(a)
and (b) prohibit discriminatory evictions. Eviction, actual or
constructive, can only occur after the sale or rental is complete.
Therefore, "interference" with certain rights protected by § 3604--
rights that prohibit discriminatory [*32] evictions--may also occur
post-acquisition. We recognize this interpretation effectively
overrules Halprin as far as § 3617 is concerned. But in light of our
view that § 3604 prohibits discriminatory evictions, it follows that
attempted discriminatory evictions can violate § 3617's prohibition
against interference with § 3604 rights. Though § 3604 requires that
the plaintiffs' dwelling be made truly unavailable, or that defendants
deprived plaintiffs of their privilege to inhabit their dwelling, the
text of § 3617 is not so limited. We agree with the Blochs (and the
United States, appearing as amicus in this case) that § 3617 reaches a
broader range of post-acquisition conduct. A claim for coercion,
intimidation, threats, and interference with or on account of
plaintiff's § 3604 rights does not require that the plaintiff actually
vacate the premises.
We find this construction of § 3617 consistent with Congress' intent
in enacting the FHA--"the reach of the proposed law was to replace the
ghettos by truly integrated and balanced living patterns."
Trafficante, 409 U.S. at 211 (internal quotation omitted). Requiring
the Blochs to vacate their homes before they can sue undoubtedly
stifles [*33] that purpose. Moreover, our view is consistent with
HUD's interpretation of § 3617. HUD's regulations prohibit
"interfering with persons in their enjoyment of a dwelling because of
the race [or] religion . . . of such persons." 24 C.F.R. § 100.400(c)
(2) (emphasis added). As we noted before, a rote Chevron analysis
might be inappropriate in this private-enforcement context, see Adams
Fruit, 494 U.S. at 649-50, but we still must give HUD's
interpretations of the FHA "great weight," Trafficante, 409 U.S. at
210; NAACP, 978 F.2d at 300. HUD's regulations confirm that § 3617
can, in appropriate circumstances, apply to post-acquisition
discrimination that does not result in eviction.
So the § 3617 question in this case becomes whether the defendants
coerced, intimidated, threatened, or interfered with the Blochs'
exercise or enjoyment of their right to inhabit their condo units
because of their race or religion. To prevail on a § 3617 claim, a
plaintiff must show that (1) she is a protected individual under the
FHA, (2) she was engaged in the exercise or enjoyment of her fair
housing rights, (3) the defendants coerced, threatened, intimidated,
or interfered with the plaintiff on account of [*34] her protected
activity under the FHA, and (4) the defendants were motivated by an
intent to discriminate. East-Miller, 421 F.3d at 563. "Interference"
is more than a "quarrel among neighbors" or an "isolated act of
discrimination," but rather is a "pattern of harassment, invidiously
motivated." Halprin, 388 F.3d at 330; cf. DiCenso, 96 F.3d at 1006;
Honce v. Vigil, 1 F.3d 1085, 1090 (10th Cir. 1993).
Discriminatory intent is the pivotal element in this case. The Blochs
clearly meet the first two elements: they are Jewish and they lived in
the condo units they purchased at Shoreline Towers. The defendants
also engaged in a pattern of conduct, repeatedly ripping down the
Blochs' mezuzot for over a year's time. This conduct would constitute
"interference" if it was invidiously motivated--that is, if it was
intentionally discriminatory. Thus, like their § 3604(b) claim for
discrimination in the terms or conditions of sale and their § 1982
claim, if the Blochs produced sufficient evidence of discrimination,
they can proceed under § 3617 for interference with their § 3604
rights.
IV. Intentional Discrimination
Whether the Blochs demonstrated a triable issue as to discrimination
is the central [*35] question that divided the panel of this court
that previously considered this case. Not seeing any evidence of
discriminatory animus, the panel majority viewed the Blochs' claim as
one seeking a religious exception to a neutral rule of general
applicability because the Hallway Rules applied to all objects, not
just mezuzot. Bloch, 533 F.3d at 565. Under the Supreme Court's
reasoning in Employment Division v. Smith, 494 U.S. 872, 110 S. Ct.
1595, 108 L. Ed. 2d 876 (1990), the Association's failure to grant a
"mezuzah exception" is not tantamount to intentional discrimination.
That the Blochs' claim arose under the FHA (unlike the Free Exercise
Clause of the First Amendment, at issue in Smith) doesn't change
matters; the FHA requires accommodations only for handicaps, 42 U.S.C.
§ 3604(f)(3)(B), not for religion. The panel dissent saw the evidence
differently--not as a request for accommodation but rather as a
straightforward claim for intentional discrimination. From the
dissent's view, the record contained evidence sufficient for a
factfinder to conclude that the defendants' "reinterpretation" and
enforcement of Hallway Rule 1 was intentionally done to discriminate
against Jews. Bloch, 533 F.3d at 573 (Wood, J., dissenting).
We [*36] agree with the panel dissent that the Blochs are not
seeking an exception to a neutral rule. Hallway Rule 1 might have been
neutral when adopted; indeed, Lynne Bloch voted for the Rule when she
was on the Board of Managers. But the Blochs' principal argument is
that the Rule isn't neutral anymore. As the dissent put it, "The whole
point of the Blochs' case, however, is that the Association, under the
guise of 'interpreting' the rule in 2004, transformed it from a
neutral one to one that was targeted exclusively at observant Jewish
residents." Bloch, 533 F.3d at 572 (Wood, J., dissenting). In essence,
the Blochs claim that, after the 2004 hallway repainting project, the
Board, by its reinterpretation of Rule 1, effectively enacted a new
rule to deprive Jews of an important religious practice.
Generally, plaintiffs can prove discrimination under § 3604 in two
ways. Of course, one method requires proof of discriminatory intent.
(Section 3617, like § 1982, requires a showing of discriminatory
intent. East-Miller, 421 F.3d at 563.) In addition, we have held that,
in certain circumstances, plaintiffs can sustain a § 3604 claim on a
modified disparate impact theory. Arlington Heights, 558 F.2d at
1290; [*37] see also Gomez v. Chody, 867 F.2d 395, 402 (7th Cir.
1989); Southend Neighborhood, 743 F.2d at 1210; cf. Knapp v. Eagle
Prop. Mgmt. Corp., 54 F.3d 1272, 1280-81 (7th Cir. 1995) (recognizing
disparate impact theory but finding it inapplicable in that case);
NAACP, 978 F.2d at 290 (same); Vill. of Bellwood v. Dwivedi, 895 F.2d
1521, 1533 (7th Cir. 1990) (same). But see Gross v. FBL Financial
Services, Inc., 129 S. Ct. 2343, 2350, 174 L. Ed. 2d 119 (2009)
(finding that similar language in the ADEA provides for a narrower
category of discrimination claims).
On appeal, the Blochs argue that they survive summary judgment on both
theories. We agree with the defendants, however, that the Blochs have
waived the disparate impact option by not developing it during the
summary judgment process below. The Blochs seem to recognize their
waiver in their briefing, but they contend that the district court
went outside the pleadings on summary judgment and considered
disparate impact, which they say entitles them to raise it on appeal.
See Nabozny v. Podlesny, 92 F.3d 446, 450 (7th Cir. 1996) ("If the
court elects to rely on legal arguments and evidence not incorporated
in, or submitted with, the summary judgment motion, [*38] the court
is obligated to consider the entire record 'to ensure that the record
reveals no issue of material fact.'" (quoting Brown v. United States,
976 F.2d 1104, 1110 (7th Cir. 1992))). But a close reading of the
district court's order (and the Blochs' briefing on summary judgment)
reveals that the court never considered the disparate impact theory
the Blochs advance here. That theory, which is based on our opinion in
Arlington Heights, 558 F.2d at 1290, involves an intricate four-factor
test that balances several competing interests, none of which was ever
discussed in the district court's order. This is likely because the
Blochs never developed a disparate impact claim under the Arlington
Heights framework on summary judgment. The Blochs mentioned the words
"disparate impact" in just a few off-hand statements in their summary
judgment briefs; and they cited Arlington Heights only once, and not
until their surreply. But they never engaged or even mentioned the
four factors required to make out a disparate impact claim. And
moreover, they only mention the disparate impact of the Hallway Rules
in the context of intentional discrimination, not as an independent
argument. This explains [*39] why the district court never mentioned
Arlington Heights in its order. Though the district court did say that
the Blochs "offer[ed] no admissible evidence of the disparate impact
they claim," it did so, like the Blochs' briefing, in the context of
the Blochs' claim for intentional discrimination--the only theory they
presented at summary judgment. Accordingly, we conclude that the
Blochs waived any Arlington Heights disparate impact argument. n9
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -9
We should note that after the court issued its decision on summary
judgment, the Blochs filed a motion to reconsider, where, for the
first time, they articulated a disparate impact theory under Arlington
Heights. But developing an argument for the first time in a motion to
reconsider is too late. See Brooks v. City of Chicago, 564 F.3d 830,
833 (7th Cir. 2009) ("[A]ny arguments . . . raised for the first time
in [a] motion to reconsider are waived." (citation omitted)).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
So the Blochs must proceed on a showing of intentional discrimination.
Although the Blochs' case is no slam dunk, we think the record
contains sufficient evidence, with reasonable inferences drawn in the
Blochs' favor, that there are genuine issues for trial on intentional
discrimination.
To [*40] begin with, the Blochs produced evidence to show that the
Association reinterpreted the Hallway Rules in 2004 to apply to
mezuzot, and other objects, which the Rules were never designed to
reach. In addition to statements from past Board members and evidence
that the Blochs' mezuzot were never removed prior to 2004, a common
canon of construction supports the Blochs' argument. See Corley v.
United States, 129 S. Ct. 1558, 1566, 173 L. Ed. 2d 443 (2009) ("[O]ne
of the most basic interpretive canons" is "that [a] statute should be
construed so that effect is given to all its provisions, so that no
part will be inoperative or superfluous, void or
insignificant" (quotation omitted)). Hallway Rule 1 prohibits "objects
of any sort . . . outside Unit entrance doors." After the 2004 hallway
painting project, the Association construed that language to reach
doors and doorposts. But Hallway Rule 2 prohibits "signs or name
plates . . . placed on Unit doors." So if Rule 1 were originally
intended to cover doors and doorposts, Rule 2 would have been
superfluous. As such, a trier of fact could conclude that when the
Association adopted the Hallway Rules (with Lynne Bloch voting for
their adoption), it never intended [*41] them to prohibit objects on
the doorposts like mezuzot. Viewed in this light, the evidence shows
that the Association did not make an exception for the Blochs from
2001 to 2004, only to withdraw that exception after the painting
project. Instead, a factfinder could conclude that the Association
intentionally reinterpreted the Rules to repeatedly remove the Blochs'
mezuzot, thus burdening their religious practices.
As the panel majority correctly observed, though, this evidence alone
is insufficient to create a triable issue as to discriminatory intent.
The Hallway Rules were applied neutrally after 2004. The Association
cleared the doors and doorposts of everything from mezuzot to
crucifixes to Christmas decorations to Chicago Bears' pennants. Even
if we were to assume that Judaism was the only religion affected by
the reinterpretation of the Rules, the reasoning in Smith would put
the kibosh on the plaintiff's case. Smith requires more than just
evidence of an adverse impact on observant Jews. Even the evidence of
the Blochs' attempt to amend the Hallway Rules is insufficient
standing alone. Under Smith, the denial of a religious exception is
not intentional discrimination.
This makes [*42] the Blochs' task more difficult, but not
impossible. They must show that the Association reinterpreted the
Hallway Rules to apply to mezuzot "because of" and not merely "in
spite of" the Blochs' religion. See Pers. Adm'r of Mass. v. Feeney,
442 U.S. 256, 279, 99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979). In other
words, the evidence must indicate that the Association was not simply
indifferent when it reinterpreted the Hallway Rules; the evidence must
show that the Association reinterpreted the Rules with Jews in mind.
See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520, 534, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993).
The First Amendment "'forbids subtle departures from neutrality' . . .
and 'covert suppression of particular religious beliefs.'" Id.
Concurring in Lukumi, Justice Scalia, the author of Smith, explained
that the First Amendment prohibited "laws which, though neutral in
their terms, through their design, construction, or enforcement target
the practices of a particular religion for discriminatory treatment."
Id. at 557 (Scalia, J., concurring). So, to side with the defendants,
we must assume that the "design, construction, or enforcement" of
Hallway Rule 1 does not target observant Jews.
That's an assumption we just can't [*43] make on this record. "A
finding of discriminatory intent is usually based on circumstantial
evidence and the district court must exercise extreme caution in
granting summary judgment in such a context." Gomez, 867 F.2d at 402.
We think the district court was too hasty here. The Blochs
demonstrated that the Association repeatedly removed their mezuzot,
even though the Blochs, in complaining and petitioning for the
amendment of Rule 1, explained that they were required by Jewish Law
to affix mezuzot to the exterior of their doorpost.
The Blochs also produced evidence of animus between Frischholz and
Lynne Bloch. In some circumstances, evidence of animus might detract
from an intentional discrimination claim--one could assume that the
harasser acted out of personal spite instead of improper prejudice.
But in this case, the evidence shows more than just a petty spat
between neighbors. As early as 2001, Frischholz knew that Lynne Bloch
would be offended by removing mezuzot from her doorposts. Still, he
approved of their repeated removal from 2004 on. When she confronted
him about it, he retaliated. He accused Lynne of being a racist,
called her a liar, encouraged other tenants not to elect [*44] her
to the Board, and told her that if she didn't like the Association's
taking down her mezuzot, she should "get out."
Frischholz's comments about the Friday night Board events are also
telling. His responses smack of religious bias. He admitted that he
was aware of Lynne's religious obligations but he showed utter
intolerance for them: "She's perfectly able. She decides not to. . . .
She says that she can't attend after sunset, because it is Shavus
[sic]." Not only does this admission seem to sum up Frischholz's view
of the Blochs' religious beliefs, but it is fair to infer that
Frischholz scheduled the meetings on Friday nights with Judaism in
mind. The same inference could be made about Frischholz's views toward
mezuzot. The record also supports the view that Frischholz held
substantial influence over the Board and its activities. A trier of
fact could conclude that Frischholz carried out his contempt for Lynne
by using his position of authority to target something he knew was
important to the Blochs--their religion.
Perhaps the strongest evidence of anti-Semitic motives, though,
occurred during the Shivah after Marvin Bloch's death. Despite the
Blochs' request, and the Association's [*45] agreement, to keep
their mezuzah up during the mourning period, the defendants repeatedly
removed it. In fact, as the panel dissent put it, "the defendants
waited until the family literally was attending Dr. Bloch's funeral
and then removed the mezuzot while everyone was away." Bloch, 533 F.3d
at 567. Not only that, but the record shows that the defendants
selectively enforced the Hallway Rule only against the mezuzah. The
coat rack and the table remained in the hallway outside the unit even
after the mezuzah was stripped away. Instead of clearing the hallway
of these obstacles, the Association's maintenance person pulled down
only a six-inch-by-one-inch religious item. Selectively interpreting
"objects of any sort" to apply only to the mezuzah but not to secular
objects creates an inference of discriminatory intent.
It is the combination of all of these facts and inferences, rather
than any single one, that pushes this case beyond summary judgment. A
trier of fact could conclude that the Association's reinterpretation
of the Hallway Rule and clearing of all objects from doorposts was
intended to target the only group of residents for which the
prohibited practice was religiously required. [*46] The Blochs can
therefore proceed on an intentional discrimination theory under §§
3604(b), 3617 and 1982. (Because of the reversal of summary judgment
on three of the four federal claims, the state law claims must also be
reinstated.)
V. Conclusion
We REVERSE the judgment of the district court on the Blochs' claims
under §§ 3604(b), 3617 and 1982, and we AFFIRM its judgment on the §
3604(a) claim. This case is REMANDED for further proceedings
consistent with this opinion.