Plaintiffs were asked during depositions whether they had any
evidence of a racial motive or discriminatory intent on the part of
_the Defendants, Plaintiffs conceded they did not have any such
evidence. (R. Robinson Dep. at 42, 43, 50.) Plaintiffs rely on
having no other explanation and their own subjective feelings,
which is insufficient to create a factual dispute on the issue.
Cavalieri-Conway, 992 F.Supp. at 1004; Alexander v. Briar-Grace
Mgmt. Co., No. 87 C 9348, 1989 WL 81958, at *5, (N.D. Ill. July
13,1989).

Under the indirect method, the Court applies the burden
shifting test of McDonnell Douglas, which provides: (1) the
plaintiff bears the initial burden of proving a prima facie case of
housing discrimination by a preponderance of the evidence; (2) if
the plaintiff satisfies this initial burden, then the plaintiff has
created a presumption of illegality and the burden shifts to the
defendant to articulate a legitimate, nondiscriminatory reason for
the challenged actions; and (3) if the defendant meets this burden,
then the plaintiff has the opportunity to prove by a preponderance
of the evidence that the nondiscriminatory justification asserted
by the defendant is only a pretext for discrimination. See
generally McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);
Cavalieri-Conway, 992 F.Supp. at 1005.

To establish a prima facie case of discrimination under the

FHA, Plaintiffs must show: 1) Plaintiffs are members of a protected


for assignment and possession of storage closets and to guarantee
the residents have adequate storage. Thus, Defendant had a
legitimate interest in imposing the building policy.

The final factor which effects the Court’s exercise of its
discretion is the nature of the relief which Plaintiffs’ seek
Courts should be reluctant to grant relief when the plaintiff seeks
affirmative relief. Arlington Heights, 558 F.2d at 1293. If the
court orders a FHA defendant to provide affirmative relief, such as
to pass policies or rules, build housing or take other affirmative
steps toward non-discriminatory housing, then such mandates require
serious justification, Hispanics United, 988 F.Supp. at 1163,
because it is a “massive judicial intrusion on private autonomy.”
Arlington Heights, 558 F.2d at 1293. Here, Plaintiffs demand money
damages as well as “immediate possession” of the storage closet,
i.e. affirmative relief. Plaintiffs have failed to suggest the
policy’s discriminatory impact merits such a drastic remedy and
the Court will not order Defendants to violate their race-blind
policy without substantial justification.

In sum, the four factors here do not add up to a case
warranting relief under the FHA and the Court finds no genuine
issue of fact for trial. Plaintiffs’ Section 3604 claim fails
under both disparate treatment and disparate impact theories.

Count If

In Count II, Plaintiffs allege Defendants’ refusal to assign


response to these inquiries, the Board determined that building-
wide the resident with the most seniority on the closet’s floor
would use the storage closets, as Plaintiffs suggested; however, in
the interest of fairness to the new tenant and other residents then
using storage closets, all possessors would be permitted to
continue to possess their closets until they moved out of the
building.*? Thus, Defendants made their decision in the interest of
fairness for all the building’s residents; by “grand-fathering” all
current possessors of storage closets until these tenants move out
of the building, Defendants do not impose an unreasonable
retroactive policy but instead prospectively adopt and implement
the policy suggested by Plaintiffs. Further, Plaintiffs have come
forward with no evidence indicating Defendants’ asserted reasons
were a pretext for intentional discrimination. Therefore,
Plaintiffs have not met their burden to produce evidence of
indirect discrimination.
Disparate Impact

Because Plaintiffs cannot establish intentional discrimination
on the part of Defendants, the Court’s analysis must proceed under
a disparate impact theory. A Section 3604 disparate impact claim
does not require proof of discriminatory intent. Hamilton v.
Svatik, 779 F.2d 383, 387 (7 Cir. 1985). However, not every

action which produces a discriminatory effect is illegal. Metro.

2 Defendant offered Plaintiffs additional storage space in the basement of the building; Plaintiffs declined.

6


class; 2) Defendants knew this; 3) Plaintiffs were qualified to
possess the storage closet; and 4) Defendants refused to provide
them the closet despite Plaintiffs’ qualifications. Hamilton v.
Svatik, 779 F.2d 383, 387 (7% Cir.1985); Cavalieri-Conway, 992
F.Supp. at 1005. Plaintiffs have established a prima facie case of
discrimination. Plaintiffs are members of a protected class;
Defendants knew they are African-Americans. As residents of the
building and the floor with the storage closet at issue, Plaintiffs
were ready and able to possess the storage closet; Plaintiffs have
shown Defendants refused to assign them the closet despite their
qualifications.

While Plaintiffs have alleged a prima facie case of
discrimination, Defendants have produced a legitimate,
nondiscriminatory reason for their action. When Plaintiffs
approached the building’s property supervisor and asked him to
assign to them their floor’s storage closet after the vacating
tenant’s left the building, the property supervisor presented the
issue of possession of closets to the Parkshore Cooperative’s
Board. The Board recognized no policy for assignment and
possession of storage closets existed at that time and ordered the
property supervisor to investigate the situation and report back.
The supervisor ordered the new tenant, who had assumed possession
of the storage closet from the vacating tenant, to remove her items

from the closet; the new tenant protested to the Board. In


the FHA, because only Plaintiffs were adversely affected by the
Defendants’ action. Thus, based upon the lack of data, statistics
or related information, Plaintiff's showing of discriminatory
effect is weak and they cannot show the policy has a greater
adverse impact on African-Americans.

Second, a showing of discriminatory intent under disparate
impact requires that the plaintiff give “some indication ... which
might be suggestive rather than conclusive ... of discriminatory
intent.” Phillips v. Hunter Trails Community Ass'n, 685 F.2d 184,
190 (7 Cir. 1982). Plaintiffs provide no evidence of
discriminatory intent on the part of Defendants and admit as much
in their depositions. There is nothing even suggestive of
discriminatory intent here.

The Seventh Circuit considered the third element in Arlington
Heights and held that when the defendant is “a group of private
individuals seeking to protect private rights, the courts cannot be
overly solicitious” when the alleged effect of their actions is
discrimination in housing. 558 F.2d at 1293. Thus, while
municipalities have wide discretion in zoning matters and the
plaintiff bears a heavy burden in proving discriminatory effect,
private tenants’ boards enjoy no such deference in their decision
making. Id. Here, Defendants were acting properly within the
scope of their authority. Defendants’ interest in enacting the

closet policy was to ensure all residents had an equitable process


Minute Order Form (0697)

aN l United States District Court, Northern District of Illinois

Nam d Judge illi i Sitting Judge if Other
ov Magistrate Judge William J. Hibbler than assigned Judge
CASE NUMBER 012103 DATE 6/26/2002
CASE TITLE Robinson v. Parkshore Coop, etal.

[in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.]

MOTION:
Defendant’s Motion for Summary Judgment (#4-1)
DOCKET ENTRY:
qd) Oo Filed motion of [ use listing in “Motion” box above.]
(2) im) Brief in support of motion due
(3) im} Answer brief to motion due___. Reply to answer brief due____
(4) o Ruling/Hearingon____—set for___ at
(5) a Status hearing [held/continued to] [set for/re-set for] on setfor at
(6) Qo Pretrial conference [held/continued to] [set for/re-set for] on setfor__— at.
7) QO Trial [set for/re-set for]on__at
(8) Oo {Bench/Jury trial] [Hearing] held/continued to___—__at
(9) im This case is dismissed [with/without] prejudice and without costs [by/agreement/pursuant to]
COFRCP4(m) (General Rule 21 CIFRCP41(a)(1) CI FRCP41(a)(2).
(10) MH [Otherdocketentry] For the attached reasons, the Court GRANTS Defendants’ Motion for Summary
Judgment. All pending dates and motions are terminated as moot. Enter Memorandum Opinion and
Order.
a1) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court,

No notices required.
umber of notices:

JUN 27 200%

date docketed,

Co ingfiats

date msiled notice

Notices mailed by judge's staff.

Notified counsel by telephone.

vo | Docketing to mail notices.
VV, | Mait a0 450 form.

Copy to judge/magisteate judge.

courtroom
deputy's
initials

fv eon 20

uisia’sn
a

mailing deputy initia

ot 03-G2l4



Plaintiffs the storage closet violated Section 1982 of the Civil
Rights Act. Section 1982 prohibits discrimination in property
transactions. 42 U.S.C. § 1982; Morris v. Office Max, Inc., 89
F.3d 411, 413 (7% Cir. 1996). To establish a claim under Section
1982, Plaintiffs must establish: (1) they are members of a racial
minority; (2) Defendants intended to discriminate against them on
the basis of their race; and (3) the discrimination concerned the
rights enumerated in the statute. Morris, 89 F.3d at 413;
Hamilton, 779 F.2d at 387.

Plaintiffs may successfully establish the first and third
elements, because Plaintiffs are African-Americans and the alleged
discrimination involved their alleged property rights in the
storage closet. However, Plaintiffs’ Section 1982 claim fails
because they have not presented any evidence demonstrating
intentional discrimination. Hamilton, 779 F.2d at 387 (Section
1982 requires a showing of intentional discrimination).

Conclusion

Therefore, for the above stated reasons, the Court GRANTS
Defendants’ motion for summary judgment.

IT IS SO ORDERED.

DATED: June 26, 2002

10


Hous. Dev. Corp. v. Vill. of Arlington Heights, 558 F.2d 1283, 1290
(7 Cir. 1977).

In Arlington Heights, the Seventh Circuit noted a court has
discretion in determining whether a particular case warrants relief
under the FHA in the absence of intent. Id. at 1290. The court
then articulated four “critical factors” to guide in the exercise
of this discretion: (1) the strength of the plaintiffs'
discriminatory effect showing; (2) some evidence of discriminatory
intent; (3) the defendant's interest in taking the action at issue;
and (4) whether the relief requested requires the defendant to
affirmatively act or simply restrain interference with those who
wish to provide it. Id.; see also Gomez v. Chody, 867 F.2d 395,
400-401 (7 Cir. 1989). The court must consider all of the facts
together and balance them against each other. Hispanics United of
DuPage County v. Village of Addison, 988 F.Supp. 1130, 1151
(N.D.111.1997).

The first element requires a showing of a greater adverse
impact on one race than another. Jd. at 1155. Here, Plaintiffs
have provided no evidence Defendants’ policy regarding assignment
of storage lockers effected the African-American population in the
building differently and more harshly relative to the non-African-
American population. Instead, Plaintiffs have alleged personal
facts regarding their individual situation; as such, Plaintiffs

have asserted no racially discriminatory effect actionable under


Dep’t of Hous. and Urban Dev., 53 F.3d 821, 823-824 (7**Cir. 1995);
Cavalieri-Conway v. Butterman & Assoc., 992 F.Supp. 995, 1002 (N.D.
Tll. 1998), aff’d, 172 F.3d 52 (7 Cir. 1999) ("The elements of an
action alleging housing discrimination parallel the elements for an
action alleging employment discrimination under Title VII.”).
Under the direct method, a plaintiff brings direct evidence of
housing discrimination when he or she presents a “smoking gun” of
discriminatory intent. Cavalieri-Conway, 992 F.Supp. at 1003.
Plaintiffs have presented no direct evidence of intentional
discrimination in this case. In the alternative, circumstantial
evidence under the direct method exists in two forms: (1)
suspicious timing, ambiguous statements, behavior toward or
comments directed at others in the protected group (e.g. African-
Americans) and (2) evidence that others similarly situated to the
plaintiff, other than in the characteristic on which the defendant
is forbidden to base a difference in treatment (e.g. race),
received systematically better treatment.! Id. The record is
devoid of evidence demonstrating either permissible type of
circumstantial evidence. Instead, Plaintiffs merely assert the
occupant who received possession of the closet was white while they

were black. (R. Robinson Dep. at 50.) In particular, when

' The Seventh Circuit has recognized a third form of circumstantial evidence: evidence that the plaintiff was qualified,
but was passed over in favor of a person not having the forbidden characteristics and that defendant’s stated justification
for the difference in treatment is unworthy of belief or simply a pretext for discrimination. Cavalieri-Conway, 992
F.Supp. at 1003. The Seventh Circuit emphasized this third type of circumstantial evidence is the same type of evidence
as required under the indirect method and, thus, analyzed it separately. Huff’. Uarco, Inc., 122 F.3d 374, 380 (7"Cir.
1997). Similarly, this Court will analyze it separately.


party is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(c); Anderson v. Operative Plasterers’ and Cement Masons’ Int’l
Ass'n Local No. 12 Pension & Welfare Plans, 991 F.2d 356 (7 Cir.
1993). To avoid summary judgment, the party opposing the motion
cannot merely rest on the pleading, but must present specific facts
demonstrating a genuine issue of material fact for trial. Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986). All inferences will be
drawn in favor of the non-moving party on the respective issues.
Holland v. Jefferson Nat’l Life Ins. Co., 883 F.2d 1307, 1312 (7TM
Cir. 1989).
Analysis
Count I

Plaintiffs allege a violation of the Fair Housing Act (“FHA”),
42 U.S.C. § 3604. To prevail on a Section 3604 claim, Plaintiffs
must demonstrate either (1) disparate treatment (i.e. intentional
discrimination) or (2) disparate impact (i.e. discriminatory
effect). Anast v. Commonwealth Apartments, 956 F.Supp. 792, 800
(N.D. Ill. 1997).

Disparate Treatment

To survive summary judgment on a disparate treatment claim,
Plaintiffs must establish discriminatory intent by presenting
evidence of prejudice: (1) directly, through direct or
circumstantial evidence; or (2) indirectly, through the burden

shifting method of the McDonnell Douglas test. Kormoczy v. U.S.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

RENAULT ROBINSON and
ANNETTE ROBINSON
Plaintiffs,
CASE NO. 01 C 2103
v.
JUDGE WILLIAM J. HIBBLER
PARKSHORE COOPERATIVE;
WOLIN-LEVIN, INC.; and
VICTOR GALETI,
Defendants.

weve v evr v verve

MEMORANDUM AND ORDER

The Court has before it Defendants’ motion for summary
judgment. For the following reasons, Defendants’ motion is
GRANTED.

In Count I, Mr. and Mrs. Renault and Annette Robinson
(“Plaintiffs”) allege the Parkshore Cooperative, Wolin-Levin Inc.
and the Cooperative’s property supervisor (“Defendants”) denied
Plaintiffs possession of the storage closet in their housing
complex because Plaintiffs are African-Americans and instead
granted possession to a white occupant, in violation of the Fair
Housing Act, 42 U.S.C. § 3604. In Count II, Plaintiffs allege
Defendants’ action denied Plaintiffs the same, full, and equal
benefits of white residents of Parkshore Cooperative, in violation
of the Civil Rights Act, 42 U.S.C. § 1982.

Standard of Review
The Court will grant summary judgment on the issues presented

only if no genuine issue of material fact exists and the moving

1