East-Miller v. Lake County Highway ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1197
LORRAINE C. EAST-MILLER,
Plaintiff-Appellant,
v.
LAKE COUNTY HIGHWAY DEPARTMENT
and MARCUS MALCZEWSKI,*
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 03 CV 175—Rudy Lozano, Judge.
____________
ARGUED JUNE 7, 2005—DECIDED AUGUST 31, 2005
____________
Before EASTERBROOK, KANNE, and SYKES, Circuit Judges.
KANNE, Circuit Judge. Lorraine C. East-Miller asserts
that Lake County, Indiana, through its highway depart-
ment, discriminated against her in violation of her rights
under the Fair Housing Act (“FHA”), 42 U.S.C. §§ 3601-
3631, and in violation of Indiana tort law. The district court
granted summary judgment in favor of the defendants on
*
The caption used in the district court set out the real parties
in interest: “County of Lake-Lake County Highway Depart-
ment and Marcus Malczewski, in his capacity as Director of
the Lake County Highway Department.” This action was filed
against them and judgment was entered in their favor.
2 No. 05-1197
the FHA claims and dismissed the state law claims without
prejudice. We affirm.
I. Background
In July 1997, East-Miller, together with her husband and
four children, moved into a home in a cul-de-sac of a
subdivision near Crown Point, in Lake County, Indiana.
They were the only African-American family living in the
subdivision. East-Miller alleges that discriminatory acts
against her family began in the winter of 1997.
After a snowstorm in December 1997, East-Miller noticed
that the family’s mailbox was tilted and the wooden post
was chipped. Although East-Miller’s husband tried to
straighten the post two different times, the mailbox fell to
the ground a few days later. Neither East-Miller nor any
member of her family saw the vehicle or person that caused
damage to the mailbox.
The next winter, in 1998, East-Miller noticed that the
mailbox had been hit again and that the flag was missing.
East-Miller also claims that snow plows occasionally
piled snow around her mailbox, causing it to lean. She
alleges that similar incidents occurred in the winter of
1999, although she could remember no details. East-Miller’s
husband testified that their neighbor, Mr. Good, saw a snow
plow strike the Miller family’s mailbox sometime in 1998 or
1999.
After the mailbox was damaged the second time, presum-
ably in 1998, East-Miller complained to the Lake County
highway department and stated her belief that the mailbox
had been struck because of her race. The director of the
highway department, Marcus Malczewksi, ordered an
investigation but found that there was no validity to the
allegation of racial discrimination because the incident was
an accident.
No. 05-1197 3
The next incident occurred on December 12, 2000, when
East-Miller claims to have seen a highway department
truck push snow into her driveway and against the garage
door. She took photographs of the snow piles and the visible
tracks from the plow, but claims to have misplaced them
and was unable to produce them during discovery. East-
Miller says there were one or two more incidents between
December 12, 2000, and the time she filed this complaint in
May 2003, but she acknowledged that the highway depart-
ment tried to stay away from her mailbox by clearing snow
in a different way. She noticed also that a patch of snow
was cleared off in a grassy place in her yard and that there
was a hole next to her mailbox. She attributes these
occurrences to the highway department, but admittedly has
no proof that the county agency was involved.
Finally, East-Miller alleges that on several occasions,
while the highway department trucks were plowing her
street, headlights would shine into her bedroom window.
Neither East-Miller nor her husband were able to show that
the lights were intentionally shined into the house and they
admitted the possibility that the drivers were stopped doing
paperwork or some other legitimate job-related task.
According to highway department policy, if a snow plow
strikes a mailbox, the driver is to call the dispatcher and
report the incident. The damaged mailbox should be
repaired or replaced within a day. East-Miller’s mailbox
was repaired two times by the county and she hired a
contractor to repair the damage four other times. The
repairs sometimes took 2-3 weeks and caused mail service
to be disrupted. Highway department policy prohibits
pushing snow into driveways and headlights should not be
shined into windows.
It is on this factual record that we consider the merits
of the case.
4 No. 05-1197
II. Analysis
We review de novo the district court’s grant of summary
judgment. See Lamers Dairy Inc. v. USDA, 379 F.3d 466,
472 (7th Cir. 2004). Summary judgment is properly granted
when “the pleadings, depositions, answers to interrogato-
ries, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material
fact and the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). We view the facts in the light
most favorable to East-Miller, the nonmoving party. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986). Material facts are those that “might affect
the outcome of the suit” under the applicable substantive
law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
Lake County has the burden of showing that there is no
genuine issue of material fact and that it is entitled to
judgment as a matter of law. However, East-Miller retains
the burden of producing enough evidence to support a
reasonable jury verdict in her favor. See id. at 256. “[A]
party who bears the burden of proof on a particular issue
may not rest on its pleading, but must affirmatively
demonstrate, by specific factual allegations, that there
is a genuine issue of material fact which requires trial.”
Beard v. Whitley County REMC, 840 F.2d 405, 410 (7th Cir.
1988) (emphasis in original). “[T]he mere existence of some
alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue
of material fact.” Anderson, 477 U.S. at 247-48 (emphasis in
original).
East-Miller’s claim arises under § 3617 of the FHA, which
provides:
It shall be unlawful to coerce, intimidate, threaten, or
No. 05-1197 5
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.
42 U.S.C. § 3617. Sections 3603-3606 prohibit discrimina-
tion in the sale or rental of property and are not at issue in
this case. East-Miller alleges only that the highway depart-
ment violated § 3617 when the snow plow drivers interfered
with her enjoyment of her property, post-purchase.
This court recently suggested that § 3617 can be violated
even if §§ 3603-3606 are not implicated. See Halprin v.
Prairie Single Family Homes of Dearborn Park Ass’n, 388
F.3d 327, 330 (7th Cir. 2004). The holding in Halprin was
based on 24 C.F.R § 100.400(c)(2), which interprets the FHA
and forbids “[t]hreatening, intimidating or interfering with
persons in their enjoyment of a dwelling because of the
race, color, religion, sex, handicap, familial status, or
national origin of such persons, or of visitors or associates
of such persons.” Because interference with the “enjoyment
of a dwelling” can take place at any time, this regulation
extends the protections of the FHA to post-purchase
discrimination.1
East-Miller parses the language of the statute and finds
that there must be three different situations when § 3617
will apply; it is “unlawful to coerce, intimidate, threaten, or
interfere with any person”: (1) “in the exercise or enjoyment
of” any right protected by §§ 3603-3606, (2) on account of
1
Halprin left open the question of whether this regulation
was valid, stating that “the regulation may stray too far from
section 3617. . . .” Halprin, 388 F.3d at 330. In Halprin, as here,
neither party questioned the validity of the regulation “and so its
possible invalidity has been forfeited[.]” Id.6 No. 05-1197
her “having exercised or enjoyed” such a right, or (3) on
account of her “having aided or encouraged any other
person in the exercise or enjoyment of” such a right. She
alleges that she fits into the second category because she
had the right to move into a house in an all-white neighbor-
hood and, because she “exercised or enjoyed” this right, the
highway department interfered with her. She further
explains, “there is no need to show a racial animus in §
3617 cases challenging actions that are directed at someone,
like the plaintiff here, because she exercised her right
under the FHA to move into a house and live in an all-white
neighborhood.”
This court has not explicitly delineated what a plain-
tiff must show in order to present a prima facie case of
discrimination under § 3617. East-Miller argues that she
should only be required to show “(1) that she is in a pro-
tected class; (2) that she owned, or leased, a dwelling and
was living in it; and (3) that she was threatened, intimi-
dated or interfered with in the enjoyment of her house.” She
contends that she need not present proof of intentional
discrimination or racial animus to avoid summary judg-
ment. We disagree and find that the district court’s assess-
ment of the proper elements of a prima facie case are more
in line with existing caselaw and common sense.
Judge Lozano found that in order to prevail on a § 3617
claim, the plaintiff must show that “(1) [s]he is a protected
individual under the FHA[ ], (2) [s]he was engaged in the
exercise or enjoyment of [her] fair housing rights . . ., (3)
Defendants were motivated in part by an intent to discrimi-
nate, or their conduct produced a disparate impact, and (4)
Defendants coerced, threatened, intimidated, or interfered
with Plaintiff on account of [her] protected activity under
the FHA[ ].” A number of district courts have, appropriately
we believe, adopted such an approach. See Grubbs v. Hous.
Auth. of Joliet, No. 91 C 6454, 1997 WL 281297, at *25
(N.D. Ill. May 20, 1997) (citing People Helpers Found. v.
No. 05-1197 7
City of Richmond, 789 F. Supp. 725, 732 (E.D. Va. 1992)).
We hold that a showing of intentional discrimination is an
essential element of a § 3617 claim. Cf. Halprin, 388 F.3d
at 330 (requiring “a pattern of harassment, invidiously
motivated”); see also Walton v. Claybridge Homeowners
Assoc., Inc., No. 1:03-CV-69-LJM-WTL, 2004 WL 192106, at
*8 (S.D. Ind. Jan. 22, 2004) (stating that the plaintiff “will
have to provide sufficient evidence that the conduct was
racially-motivated to survive at summary judgment”);
Marthon v. Maple Grove Condo. Assoc., 101 F. Supp. 2d
1041, 1050 (N.D. Ill. 2000).
East-Miller has met the first two elements of her prima
facie case: she is African-American and she exercised her
fair housing rights by purchasing a house in a white
neighborhood. In order to prove the third element, inten-
tional discrimination, East-Miller “may establish that [the
Lake County highway department] had a discriminatory
intent either directly, through direct or circumstantial
evidence, or indirectly, through the inferential burden
shifting method known as the McDonnell Douglas test.”
Kormoczy v. Sec’y, U.S. Dep’t of Hous. & Urban Dev., 53
F.3d 821, 823-24 (7th Cir. 1995). There is also a question as
to whether the conduct East-Miller alleges, even viewed in
the light most favorable to her, “rose to the level of coercion,
intimidation or interference that § 3617 was designed to
address.” Walton, 2004 WL 192106, at *5.
The district court found that East-Miller failed to show
that the highway department’s alleged actions were dis-
criminatory. We agree that she provided no direct evidence
of intentional discrimination. See, e.g., Kormoczy, 53 F.3d at
824 (“Direct evidence is that which can be interpreted as an
acknowledgment of the defendant’s discriminatory intent.”).
The highway department did not acknowledge discrimina-
tory intent in its dealings with East-Miller; in fact, there is
no evidence that the drivers who allegedly damaged East-
Miller’s mailbox even knew that she was African-American.
8 No. 05-1197
Also, unlike cross-burning or name-calling, one cannot infer
race discrimination from the substance of the alleged
actions—damaging the mailbox four or five times in a six-
year period, pushing snow into the driveway, and head-
lights shining in windows are not methods traditionally
used to force minority families out of predominantly white
neighborhoods.2
East-Miller also attempted to prove discrimination
through the indirect burden-shifting method set out in
McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-03
(1973). However, she failed to “construct[ ] a convincing
mosaic of circumstantial evidence that allows a jury to infer
intentional discrimination[.]” Grimm v. Alro Steel Corp.,
410 F.3d 383, 385 (7th Cir. 2005) (internal quotations and
ciations omitted). East-Miller’s argument goes as follows:
(1) she is African-American; (2) the other families in her
neighborhood are not; (3) her mailbox was damaged by
snow plows on several occasions, snow was pushed into her
driveway, and headlights shined in her window; (4) none of
these things happened to her neighbors; (5) therefore, it
must be true that the highway department discriminated
against her in violation of the FHA because she is African-
American. She further explains, “[g]overnment actors who
engage in acts of intimidation and interference, while they
are supposed to be providing services such as snow removal
from the streets, send a very clear message to members of
the only African-American family in the subdivision that
they are not wanted, particularly when that message is not
2
Of course, cross-burning and racial slurs are not necessary for
an actionable FHA claim; “there are other, less violent but
still effective, methods by which a person can be driven from his
home and thus ‘interfered’ with in his enjoyment of it.” Halprin,
388 F.3d at 330 (collecting authority). We mention cross-burning
here only to give an example of an action that might be inter-
preted as direct evidence of intentional race discrimination.
No. 05-1197 9
sent to the white families.”
East-Miller does not provide enough circumstantial
evidence to allow a jury to infer intentional discrimination.
She claims that she saw a highway department plow push
snow into her driveway and that it was a similar vehicle
that shined its headlights into her home. Her husband
said that a neighbor saw a highway department truck run
into her mailbox one time. She attributes the other inci-
dents to the highway department, but admittedly has no
proof that the county agency did the damage. Although at
least two Lake County highway department employees had
face-to-face meetings with the family—East-Miller met with
an investigator and her husband confronted one driver—she
did not prove that those who damaged her mailbox even
knew the family’s race. It is true that there is no good
explanation for pushing snow into the driveway, but there
is also no good reason to infer that it was done because of
East-Miller’s race. Inferring race discrimination from these
minor incidents, most of which may not have even involved
the highway department and could easily have been
accidental, requires a huge inferential leap that we will not
take. These incidents may have inconvenienced East-Miller,
but she did not “present evidence from which a jury might
return a verdict in [her] favor.” See Anderson, 477 U.S. at
256. East-Miller did not offer evidence showing intentional
discrimination, therefore she cannot prove a violation of her
fair housing rights under § 3617. Summary judgment was
properly granted to Lake County and Malczewski.
Even if East-Miller had adequately shown a genuine issue
of material fact regarding intentional race discrimination,
she would have also had to show that “the conduct alleged
in the complaint amounts to ‘threatening, intimidating or
interfering’ within the meaning of the statute and the
regulation.” Halprin, 388 F.3d at 330. We question whether
the actions here were frequent and severe enough to give
rise to an FHA claim, but need not discuss this issue
10 No. 05-1197
further in light of our resolution of the case.
The district court properly dismissed East-Miller’s state
law tort claims without prejudice because the federal claims
were dismissed on summary judgment. See 28 U.S.C. §
1367(c); see also Groce v. Eli Lilly & Co., 193 F.3d 496, 501
(7th Cir. 1999) (“[I]t is the well-established law of this
circuit that the usual practice is to dismiss without preju-
dice state supplemental claims whenever all federal claims
have been dismissed prior to trial.”).
III. Conclusion
For the reasons explained above, we AFFIRM the grant of
summary judgment in favor of the County of Lake-
Lake County Highway Department and Marcus Malczew-
ski. We also AFFIRM the dismissal without prejudice of
the state law tort claims.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-31-05