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CAVALIERI-CONWAY v. L. BUTTERMAN & ASSOCS.

January 28, 1998

JOAN CAVALIERI-CONWAY, Plaintiff,
v.
L. BUTTERMAN & ASSOCIATES, and individually L. Butterman, owner, Robert Underwood and Delores Underwood, managers, Defendants.



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, SR., District Judge:

 Before the court are cross motions for summary judgment. For the following reasons, Defendants' motion is granted and Plaintiff's motion is denied.

 I. BACKGROUND

 As a preliminary matter, the undisputed facts for this opinion are taken from the court's reconciliation of the parties' Local Rule 12(M) and 12(N) statements. See Brasic v. Heinemann's Inc., 121 F.3d 281, 284 (7th Cir. 1997)(discussing Local Rule 12(M) and 12(N)); Huff v. Uarco, 122 F.3d 374, 382-83 (7th Cir. 1997) (same). In addition, to the extent that they are consistent with these statements, the facts from the court's prior opinion in this action are also adopted. See Cavalieri-Conway v. L. Butterman & Assocs., 1997 U.S. Dist. LEXIS 2976, No. 96-5631, 1997 WL 126987, at *1-2 (N.D. Ill. March 11, 1997). The court notes that, unlike most pro-se litigants, Plaintiff has attempted to comply with the Local Rules; however, her efforts are not satisfactory. Reluctantly, the court will not strictly apply the Local Rules to Plaintiff's detriment, i.e., deem Defendants' Rule 12(M) statements admitted, see Smith v. Severn, 129 F.3d 419, 425-26 (7th Cir. 1997), because it is not clear whether she was given adequate notice of the harsh consequences for non-compliance. See Timms v. M. Frank, 953 F.2d 281, 285 (7th Cir. 1992) (Pro-se plaintiffs are entitled to notice that "any factual assertion in the movant's affidavits will be taken as true unless the nonmovant contradicts the movant with counter-affidavits or other documentary evidence."); Cabrera v. Peters, 23 F.3d 410 (Table), 1994 WL 164528, at *2 (7th Cir. 1994); Prentice v. Information Resources, 1997 U.S. Dist. LEXIS 3781, No. 96-3819, 1997 WL 159112, at *1 (N.D. Ill. March 27, 1997); Davis v. Flagstar Companies, Inc., 1997 U.S. Dist. LEXIS 18290, No. 95-5582, 1997 WL 725429, at *4 n.6 (N.D. Ill. Nov. 10, 1997); but see Dillard v. Washington, 1997 U.S. Dist. LEXIS 7741, No. 95-6282, 1997 WL 305312, at *1 (N.D. Ill. May 29, 1997) (stating that pro-se status is no excuse for non-compliance because "the Local Rules apply to everyone, and litigants . . . must undertake sufficient investigation to ensure that they comply with the procedural and substantive requirements of the Northern District of Illinois").

 In March 1996, Butterman notified Cavalieri-Conway that he would not renew her lease at the expiration of its term on April 30, 1996. Upon her lease's expiration, however, Cavalieri-Conway refused to vacate the apartment. On May 11, 1996, Butterman brought an action in state court for possession. Cavalieri-Conway then counterclaimed, alleging retaliatory eviction in violation of the City of Chicago Municipal Code.

 The parties reached a settlement on July 8, 1996. Under that agreement, Cavalieri-Conway was to pay L. Butterman & Associates $ 380 on or before September 1, 1996, and was to vacate the premises on or before October 1, 1996. That $ 380 was the only rent that Cavalieri-Conway was required to pay from the expiration of her lease on April 30, 1996, until her agreed-upon departure on October 1, 1996. Cavalieri-Conway did not vacate the apartment on October 1, 1996. Consequently, on November 13, 1996, the Cook County Sheriff's Department forcibly evicted her.

 Although their agreement contained a paragraph stating that the parties desired to fully settle all claims to avoid litigation, Cavalieri-Conway filed a pro-se complaint in federal court against Defendants on September 5, 1996. Cavalieri-Conway claims that Defendants made the settlement to avoid civil rights liability (Am. Compl. at 3) *fn1" and that she only agreed to it because she was distracted by other litigation to which she was involved *fn2" (Pl.'s Br. in Supp. at 14a). She states that the instant case:

 
is a belated lengthy legal battle in which Lewis Butterman allows to endure to keep the Plaintiff in an environment of economic persecution . . . . This is a series of unlawful transactions and [Defendants] acted to further the goals of 'covert Darwinism' and male superiority through surveillance and control imposed by Robert and Delores Underwood and Lewis Butterman through the granting of an option to renew the lease as reward, or in due time, punishment by vacating the unit of the eviction process.

 (Am. Compl. at 11.)

 As amended, *fn3" Cavalieri-Conway's complaint alleges: 1) Sexual discrimination and harassment in violation of the Fair Housing Act, 42 U.S.C. § 3604; 2) Retaliation in violation of the Fair Housing Act, 42 U.S.C. § 3617; 3) Age discrimination in violation of the Illinois Human Rights Act, 775 ILCS 5/1-101 et seq; 4) Intentional infliction of emotional distress; and 5) Intentional interference with business or economic relationships.

 In addition to her complaint in federal court, Cavalieri-Conway filed complaints with two government agencies. In September 1996, Cavalieri-Conway filed a complaint with HUD that accused Defendants of sexual discrimination. On December 12, 1996, HUD issued a Determination of No Reasonable Cause, dismissing the complaint. On January 2, 1997, Cavalieri-Conway filed a complaint with the State of Illinois Department of Human Rights ("IDHR") that accused Defendants of sexual and age discrimination. Cavalieri-Conway eventually withdrew her allegations of sexual discrimination before the IDHR submitted a ruling. However, with respect to her age discrimination claim, the IDHR concluded that there was a lack of substantial evidence to support her allegations.

 Each party now moves for summary judgment on Cavalieri-Conway's remaining complaint in federal court. Defendants argue that Cavalieri-Conway has provided no evidence in support of her allegations and that she "has escalated common landlord/tenant concerns into full scale federal litigation." (Defs'. Mem. in Supp. at 12.) The court notes that though Cavalieri-Conway has filed her own motion for summary judgment, it is a rehash of her opposition to Defendants' motion. In other words, although she requests judgment as a matter of law, Cavalieri-Conway continues to assert that genuine issues of fact exist, and thus her case should go to a jury. Therefore, Cavalieri-Conway's motion is denied outright.

 II. DISCUSSION

 A. Standard for Summary Judgment

 Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "An issue of fact is genuine only 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Smith v. Severn, 129 F.3d 419, 426 (7th Cir. 1997) (quoting Newell v. Westinghouse Elec. Corp., 36 F.3d 576, 578 (7th Cir. 1994)) (citation omitted). "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 When considering all the evidence presented in a motion for summary judgment, a court cannot make credibility determinations. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The court must "view the record and all reasonable inferences drawn from the record in the light most favorable to the non-moving party." Sample v. Aldi, Inc., 61 F.3d 544, 546 (7th Cir. 1995). "If the non-moving party bears the burden of proof on an issue, that party may not rest on the pleadings and must instead show that there is a genuine issue of material fact." Id. at 547. "[A] party will be successful in opposing summary judgment only when they present definite, competent evidence to rebut the motion." Severn, 129 F.3d at 427 (citations and internal quotation marks omitted). The non-moving party, therefore, will not survive summary judgment with merely a scintilla of evidence supporting its position. Essex v. United Parcel Serv. Inc., 111 F.3d 1304, 1308 (7th Cir. 1997). "The question is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Severn, 129 F.3d at 427. Accordingly, "if the evidence presented by the parties is subject to conflicting interpretations, or if reasonable minds could differ as to its significance," summary judgment must not be granted. O'Connor v. Chicago Trans. Auth., 985 F.2d 1362, 1366 (7th Cir. 1993).

 B. The Fair Housing Act

 1. Sexual Discrimination

 Cavalieri-Conway alleges that Defendants' refusal to negotiate a new lease and make repairs resulted from sexual discrimination in violation of § 3604 of the Fair Housing Act ("the FHA").

 In relevant part, the FHA makes it unlawful:

 
(a) to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling because of race, color, religion, sex, familial status, or national origin;
 
(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.

 42 U.S.C. § 3604 (1994).

 There are two theories of discrimination by which plaintiffs may proceed under the FHA: (1) disparate treatment; and (2) disparate impact. Phillips v. Hunter Trails Community Assoc., 685 F.2d 184, 189-90 (7th Cir. 1982); Simms v. First Gibraltar Bank, 83 F.3d 1546, 1555 (5th Cir. 1996); Doe v. City of Butler, 892 F.2d 315, 323 (3rd Cir. 1989). Here, the court construes Cavalieri-Conway's amended complaint as alleging only disparate treatment, i.e., intentional discrimination. (Am. Compl. at 5, 16); see also Hispanics United of DuPage v. Village of Addison, 988 F. Supp. 1130, 1997 U.S. Dist. LEXIS 21920, Nos. 94-6075, 95-3926, 1997 WL 790516, at *19 (N.D. Ill. Dec. 22, 1997) ("whether a particular case warrants relief under [the FHA] in the absence of intent is a matter committed to the court's discretion, based on assessing the facts before it.") (citing Metropolitan Housing Devel. Corp. v. Village of Arlington Heights, 558 F.2d 1283, 1289-90 (7th Cir. 1977)); United States v. Branella, 972 F. Supp. 294, 298 (D. N.J. 1997) ("In the absence of any representation that Plaintiff seeks recovery based on the disparate impact theory, the court must conclude that only an intentional discrimination claim could lie . . . .").

 The elements of an action alleging housing discrimination parallel the elements for an action alleging employment discrimination under Title VII. See Kormoczy v. Secretary, U.S. Dept. of H.U.D., 53 F.3d 821, 823-24 (7th Cir. 1995) (applying Title VII analysis to housing discrimination claim based on familial status); Gamble v. City of Escondido, 104 F.3d 300, 304 (9th Cir. 1997) (applying Title VII analysis to housing discrimination based on disability); Dahlstrom v. Dept. of Corrections, 1995 U.S. Dist. LEXIS 13806, No. 92-5454, 1995 WL 562050, at *7 (N.D. Ill. Sept. 21, 1995) (applying Title VII analysis to sexual discrimination claim under the FHA).

 Thus, to survive summary judgment on a disparate treatment claim, Cavalieri-Conway may establish that Defendants "had discriminatory intent either directly, through direct or circumstantial evidence, or indirectly, through the inferential burden-shifting method known as the McDonnell Douglas test." Kormoczy, 53 F.3d at 823-24; but see Hamilton v. Svatik, 779 F.2d 383, 387 (stating that § 3604 does not require proof of discriminatory intent). *fn4" "These two methods are distinct evidentiary paths." 53 F.3d at 824. Because it is unclear under which method Cavalieri-Conway relies upon, the court will apply both approaches. See, e.g., Huff v. Uarco, ...


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