Halprin v. Prairie Homes of Dearborn Park

• Decision Date: 04 November 2004
• Docket Number: No. 02-2975.,02-2975.
• Citation: 388 F.3d 327
• Parties: Robyn HALPRIN and Rick Halprin, Plaintiffs-Appellants, v. THE PRAIRIE SINGLE FAMILY HOMES OF DEARBORN PARK ASSOCIATION, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

388 F.3d 327

Robyn HALPRIN and Rick Halprin, Plaintiffs-Appellants, v. THE PRAIRIE SINGLE FAMILY HOMES OF DEARBORN PARK ASSOCIATION, et al., Defendants-Appellees.

No. 02-2975.

United States Court of Appeals, Seventh Circuit.

Argued September 27, 2004.

Decided November 4, 2004.

Appeal from the United States District Court for the Northern District of Illinois, James H. Alesia, J Thomas Peters (argued), Murphy, Peters & Davis, Chicago, IL, for Plaintiffs-Appellants.

Diana M. Kenney (argued), Dvorak & Orum, Chicago, IL, for Defendants-Appellees.

Before POSNER, KANNE, and WILLIAMS, Circuit Judges.

POSNER, Circuit Judge.

The district court dismissed this suit under the Fair Housing Act, 42 U.S.C. §§ 3601 et seq., for failure to state a claim, specifically under sections 3604 and 3617; there are also state law claims, but as is usual the district judge relinquished jurisdiction over them when he dismissed the federal claims before trial. The plaintiffs are a couple who own a home in a suburban subdivision. The principal defendant is the homeowners' association that manages the subdivision and provides various services to the homeowners. The other defendants, with the exception of a corporation (and its president) that also provides services and is alleged to have acted in cahoots with the association in harassing the plaintiffs, are members of the association; that is, they are the plaintiffs' neighbors.

The complaint—our only source of facts, because the suit was dismissed for failure to state a claim—alleges the following: One of the plaintiffs is Jewish. The president of the association wrote "H-town property" on a wall of the plaintiffs' property, "H-town" being short for "Hymie Town," and he further vandalized the property by damaging trees and plants and cutting down strings of holiday lights. When the plaintiffs posted flyers offering a reward for identifying the vandal, the president destroyed or removed the flyers. To further thwart the plaintiffs' efforts to investigate the vandalizing of their property, the association destroyed minutes of its board meetings and erased a tape recording of a meeting at which the president had threatened to "make an example" of the plaintiffs. The defendants applied chemicals to the plaintiffs' yard against the plaintiffs' wishes and with adverse effects on their health and peace of mind and adopted rules restricting the plaintiffs' lawful use of their property. The entire campaign of harassment was caused or at least influenced by the religion of the Jewish plaintiff. Of course we do not vouch for any of these allegations, but for purposes of this appeal we must assume that they are true.

A section of the Fair Housing Act 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." 42 U.S.C. § 3617. The only one of the enumerated sections that is possibly relevant here is section 3604, which makes it unlawful "(a) To 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," or "(b) To 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." The language indicates concern with activities, such as red-lining, that prevent people from acquiring property. Oconomowoc Residential Programs, Inc. v. City of Milwaukee, 300 F.3d 775 (7th Cir.2002); NAACP v. American Family Mutual Ins. Co., 978 F.2d 287 (7th Cir.1992); Mitchell v. Shane, 350 F.3d 39 (2d Cir.2003); Hamad v. Woodcrest Condominium Ass'n, 328 F.3d 224, 229-31 (6th Cir.2003); San Pedro Hotel Co. v. City of Los Angeles, 159 F.3d 470 (9th Cir.1998); Hogar Agua y Vida en el Desierto, Inc. v. Suarez-Medina, 36 F.3d 177 (1st Cir.1994). Our plaintiffs, however, are complaining not about being prevented from acquiring property but about being harassed by other property owners. So it is difficult to see how they can have been interfered with in the enjoyment of any right conferred on them by section 3604.

As a purely semantic matter the statutory language might be stretched far enough to reach a case of "constructive eviction," which is one way to describe the present case (more precisely, "attempted constructive eviction"). If you burn down someone's house you make it "unavailable" to him, and "privileges of sale or rental" might conceivably be thought to include the privilege of inhabiting the premises. Acts of post-sale discrimination have been litigated successfully under the Act in two reported cases, Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972); Krueger v. Cuomo, 115 F.3d 487 (7th Cir.1997), but in neither was the Act's applicability to such discrimination discussed—apparently the issue hadn't been raised. In several other cases the Act has been held to forbid harassment amounting to constructive eviction by analogy to "constructive discharge," a form of discrimination recognized in Title VII cases. DiCenso v. Cisneros, 96 F.3d 1004, 1008 (7th Cir.1996); Neudecker v. Boisclair Corp., 351 F.3d 361, 364-65 (8th Cir.2003) (per curiam); Honce v. Vigil, 1 F.3d 1085, 1090 (10th Cir.1993). But in none of these cases did the court consider the difference in language between the two statutes. None of the five cases contains a considered holding on the scope of the Fair Housing Act in general or its application to a case like the present one in particular.

Title VII protects the job holder as well as the job applicant, so an employer who resorts to harassment to force an employee to quit is engaged in job discrimination within the meaning of the Act. See, e.g., Herrnreiter v. Chicago Housing Authority, 315 F.3d 742, 744-45 (7th Cir.2002). The Fair Housing Act contains no hint either in its language or its legislative history of a concern with anything but access to housing. Bernard Schwartz, Statutory History of the United States: Civil Rights Part II 1709-17, 1742-51, 1762, 1769 (1970); Hearings before the Subcomm. on Housing & Urban Affairs of the S. Comm. on Banking & Currency on S. 1358, S. 2114, and S. 2280, 90th Cong., 1st Sess. (1967), passim; 114 Cong. Rec. S2274 (daily ed. Feb. 6, 1968) (statement of Sen. Mondale). Behind the Act lay the widespread practice of refusing to sell or rent homes in desirable residential areas to members of minority groups. Since the focus was on their exclusion, the problem of how they were treated when they were included, that is, when they were allowed to own or rent homes in such areas, was not at the forefront of congressional thinking. That problem—the problem not of exclusion but of expulsion—would become acute only when the law forced unwanted associations that might provoke efforts at harassment, and so it would tend not to arise until the Act was enacted and enforced. There is nothing to suggest that Congre...