Bloch v. Frischholz

• Decision Date: 13 November 2009
• Docket Number: No. 06-3376.,06-3376.
• Citation: 587 F.3d 771
• Parties: Lynne BLOCH, Helen Bloch and Nathan Bloch, Plaintiffs-Appellants, v. Edward FRISCHHOLZ and Shoreline Towers Condominium Association, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

587 F.3d 771

Lynne BLOCH, Helen Bloch and Nathan Bloch, Plaintiffs-Appellants, v. Edward FRISCHHOLZ and Shoreline Towers Condominium Association, Defendants-Appellees.

No. 06-3376.

United States Court of Appeals, Seventh Circuit.

Argued May 13, 2009.

Decided November 13, 2009.

F. Willis Caruso, Attorney, James C. Whiteside, Attorney, John Marshall Law School Fair Housing Legal Clinic, Chicago, IL, Gary S. Feinerman, Attorney (argued), Sidley Austin, Chicago, IL, for Plaintiffs-Appellants.

David C. Hartwell, Attorney (argued), Penland & Hartwell, Chicago, IL, for Defendants-Appellees.

Stanley J. Adelman, Attorney, DLA Piper US LLP, Chicago, IL, for Decalogue Society of Lawyers, Amicus Curiae.

April J. Anderson, Attorney, Steven H. Rosenbaum, Attorney (argued), Dept. of Justice Civil Rights Div., Appellate Section, Washington, DC, for United States of American, Amicus Curiae.

Before EASTERBROOK, Chief Judge, and BAUER, POSNER, KANNE, WOOD, EVANS, SYKES, and TINDER, Circuit Judges.^*

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 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.¹ The scroll is called a mezuzah (or in the plural form, mezuzot or mezuzoh). Though small in size, the mezuzah is a central 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.²

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 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 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 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 re-election 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]."³ He was well aware of Lynne's fidelity to Judaic religious practices.

As for the Board, it rejected a formal proposal by the Blochs to change the Rules. The Association went on to warn 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.⁴ 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 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.)

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., 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...