Curto v. A Country Place Condominium Association, Inc., 042219 FED3, 18-1212
|Opinion Judge:||AMBRO, CIRCUIT JUDGE|
|Party Name:||MARIE CURTO; DIANA LUSARDI; STEVE LUSARDI, Appellants v. A COUNTRY PLACE CONDOMINIUM ASSOCIATION, INC.; ABC CORP. 1 TO 10; JOHN DOE 1 TO 10|
|Attorney:||Lenora M. Lapidus Sandra S. Park, American Civil Liberties Union, Jeanne LoCicero Liza F. Weisberg Edward Barocas American Civil Liberties Union of New Jersey Foundation, Daniel Mach Heather L. Weaver American Civil Liberties Union, Jose D. Roman Powell & Roman Counsel for Appellants Angela Maion...|
|Judge Panel:||Before: AMBRO, BIBAS, and FUENTES, Circuit Judges FUENTES, Circuit Judge, concurring.|
|Case Date:||April 22, 2019|
|Court:||United States Courts of Appeals, Court of Appeals for the Third Circuit|
Argued March 5, 2019
Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 3-16-cv-05928) District Judge: Honorable Brian R. Martinotti
Lenora M. Lapidus Sandra S. Park, American Civil Liberties Union, Jeanne LoCicero Liza F. Weisberg Edward Barocas American Civil Liberties Union of New Jersey Foundation, Daniel Mach Heather L. Weaver American Civil Liberties Union, Jose D. Roman Powell & Roman Counsel for Appellants
Angela Maione Costigan (Argued) Costigan & Costigan, LLC Counsel for Appellee
Lila Miller Sasha M. Samberg-Champion Relman Dane & Colfax PLLC, Amicus Appellant National Fair Housing Alliance Kevin T. Snider Pacific Justice Institute, David J. Hallstrom United Kingdom Amicus Appellee Pacific Justice Institute
Before: AMBRO, BIBAS, and FUENTES, Circuit Judges
AMBRO, CIRCUIT JUDGE
Marie Curto wanted to swim with her family after work. Steve Lusardi wanted to swim with his wife, who had disabilities after a series of strokes and needed pool therapy to recover. But they lived at A Country Place, and its Condominium Association had adopted rules segregating use of the communal pool by sex. By 2016 over two-thirds of all swimming hours throughout the week were sex-segregated. After they were fined for violating this policy, Curto and the Lusardis sued, alleging violations of the federal Fair Housing Act (sometimes referred to as the "FHA"), 42 U.S.C. §§ 3601 et seq., and New Jersey state law.
The District Court granted summary judgment to the Condominium Association because, in its words, "the gender-segregated schedule applies to men and women equally." Curto v. A Country Place Condominium Assoc., 2018 WL 638749, at *4 (D.N.J. 2018). We disagree. On the facts before us, the pool schedule discriminates against women in violation of the FHA. We need not determine whether sex-segregated swimming hours necessarily violate the FHA, or whether a sufficiently limited and more even-handed schedule might be justifiable, because the schedule actually adopted by the Condominium Association is plainly unequal in its allotment of favorable swimming times. Thus we reverse.
A Country Place Condominium Association, Inc. is a "55 and over" age-restricted condominium association located in Lakewood, New Jersey. Lakewood has a large and growing Orthodox Jewish population, and so does A Country Place; by 2016, when the events in this litigation took place, approximately two-thirds of its residents were Orthodox.
One of the amenities at A Country Place is its community pool, which reopened in 2011 after being closed for renovations. It is maintained using funds from the $215 monthly maintenance fee paid by each of the community residents. After the pool reopened, the Condominium Association adopted rules for pool use creating certain hours when only members of a single sex were allowed to swim. This was done to accommodate the Orthodox principle of tznius, or modesty, according to which it is improper for men and women to see each other in a state of undress-including bathing attire. This principle-according to Fagye Engleman, the Association's representative in this litigation-means that the Orthodox residents cannot comfortably swim at a time when members of the opposite sex might be present at the pool.
Prior to 2016 the schedules provided for only a handful of sex-segregated swimming hours throughout the week, but as the Orthodox membership at A Country Place increased, the Association increased the number of sex-segregated hours. Thus in 2016 the Association's Board of Directors adopted a new schedule with greatly increased segregated swimming hours:
Under this schedule, a total of 31.75 hours each week were defined as "men's swim," when women were prohibited from using the pool; 34.25 hours were defined as "women's swim," when men were prohibited. Only 25 hours were open to people of all genders. Excluding Saturday, which was left open for mixed-gender swimming because Orthodox residents would not go swimming on the Jewish Sabbath, only 12 hours during the other six days of the week were available for integrated swimming. Of note, a large majority of the hours in the evening were set aside for men, including the period from 6:45 p.m. onward every day of the week (except Saturday) and the entire period from 4:00 p.m. onward on Friday. As for Friday afternoons, Engleman testified this was done because women are at home preparing for the Sabbath during that time.
After the controversy with the plaintiffs began, the Association adopted a modified schedule:
The only significant change was expanding the "adult residents only" period of "ladies' swim." Only the 6:00 to 6:45 p.m. period on Sunday, which went from "ladies' swim" to "men's swim," was allocated to a different gender than under the initial 2016 schedule. Thus this revised schedule provided for 56 hours of segregated hours (32.5 hours for men and 33.5 hours for women), along with the same 12 hours of integrated swimming Sunday through Friday.
Plaintiff Marie Curto owns a unit at A Country Place, and stated in the complaint that one of the reasons she chose to live there was to go swimming with her family. Plaintiffs Steve and Diana Lusardi are a married couple who also own a unit in the residential facility. They stated in the complaint that one reason they moved back to the residential facility (where they had lived previously) was to use the pool together. Diana Lusardi suffered two strokes in 2013, which resulted in physical disabilities, and she wished to engage in pool therapy with her husband.
On June 15, 2016, a resident at A Country Place notified the Board that Curto had been swimming during a men's swim period. The next day the Board...
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