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MARTHON v. MAPLE GROVE CONDOMINIUM ASS'N

June 22, 2000

JEFFRY D. MARTHON AND MAUREEN E. KILTY, PLAINTIFFS,
V.
MAPLE GROVE CONDOMINIUM ASSOCIATION AND ALPHA PROPERTY MANAGEMENT, INC., DEFENDANTS.



The opinion of the court was delivered by: Shadur, Senior District Judge.

MEMORANDUM OPINION AND ORDER

Jeffry Marthon ("Marthon") and his wife Maureen Kilty ("Kilty") assert two claims against Maple Grove Condominium Association ("Maple Grove") and Alpha Property Management, Inc. ("Alpha") under the Fair Housing Act of 1968 as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. § 3601-3631.*fn1 Their first claim contends that defendants violated Section 3617 by interfering with Marthon's and Kilty's use and enjoyment of their condominium unit through threats, intimidation and other discriminatory actions. Their second claim says that defendants violated Section 3604 by not reasonably accommodating Marthon's Tourette's Syndrome ("Tourette's"). Under Fed.R.Civ.P. ("Rule") 56 plaintiffs have moved for summary judgment as to liability and Alpha has moved for a full summary judgment. All parties have complied with this District Court's LR 56.1(a),*fn2 and both motions are now fully briefed and ready for decision. For the reasons set forth in this memorandum opinion and order, plaintiffs' motion is denied while Alpha's motion is granted in part and denied in part.

Summary Judgment Standards

Familiar Rule 56 principles impose on each movant the burden of establishing the lack of a genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). For that purpose this Court must "read[] the record in the light most favorable to the non-moving party," although it "is not required to draw unreasonable inferences from the evidence" (St. Louis N. Joint Venture v. P & L Enters., Inc., 116 F.3d 262, 265 n. 2 (7th Cir. 1997)). As Pipitone v. United States, 180 F.3d 859, 861 (7th Cir. 1999) has more recently quoted from Roger v. Yellow Freight Sys., Inc., 21 F.3d 146, 149 (7th Cir. 1994):

A genuine issue for trial exists only when a reasonable jury could find for the party opposing the motion based on the record as a whole.

McCoy v. WGN Continental Broad. Co., 957 F.2d 368, 370-71 (7th Cir. 1992) has said that "general standard is applied with added rigor in employment discrimination cases, where intent is inevitably the central issue," and that same logic extends to Housing Act cases where a housing provider is alleged to have acted with discriminatory intent. But neither "the mere existence of some alleged factual dispute between the parties" (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) nor the existence of "some metaphysical doubt as to the material facts" (Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)) will defeat a summary judgment motion.

What follows in the Facts section (and in later factual discussion) is culled from the parties' vast submissions,*fn3 beginning with an introduction to the cast and characters and followed by an account of the events at issue. And as with every summary judgment motion, this Court has accepted each nonmovant's version of any disputed facts where it is arguably supported by the record.

Facts

Since they were married in 1986, Marthon and Kilty have lived together in Unit 309T*fn4 of the Maple Grove Condominiums in Downers Grove, Illinois (P. St. ¶ 2). Maple Grove is responsible for administering its approximately 146 condominium units (id. ¶ 3), for which purpose the management authority is vested in its Board of Managers ("Board") (id. ¶ 5). Since the summer of 1997 Paula Beranek ("Beranek") has been Board President, and the current dispute erupted after she moved from another unit to 409T, directly above plaintiffs' unit (id. ¶ 7a). There are six other Board members, including Margery Schuster ("Schuster"), the sister of Marian Devereux ("Devereux") (id. ¶ 7b-g). Devereux is a 75 year old woman who lives directly below plaintiffs' unit in 209T (id. ¶ 7e).

Alpha is the property manager and acts as an agent for Maple Grove (id. ¶¶ 8-9). Stafford Crossland ("Crossland"), who was hired by Alpha to perform the actual management tasks, works directly with the Board (id. ¶¶ 10, 11). Alpha is not authorized to act on behalf of Maple Grove without instructions from the Board (A.St. ¶ 8), but it can question the legality of the Board's actions (P. St. ¶ 12).

Gilles de la Tourette's Syndrome is an inherited neurological disorder typified by involuntary motor and vocal "tics" (id. ¶ 27). Tourette's is also viewed as a mental disorder by the American Psychiatric Association (id. ¶ 33). Marthon's Tourette's results in involuntary "throat clearing, `hooting' or `barking,' foot stomping, and, recently, rare instances of coprolalia (the vocalization of socially inappropriate words and phrases)" (id. ¶ 32). Marthon also suffers from a sleep-related disorder and tinnitus*fn5 that causes anxiety and insomnia (id. ¶ 37). As a result he has an abnormal sleep cycle (M.St. ¶ 55). Marthon can suppress his motor and vocal tics for only a short period of time before releasing them, and stress exacerbates his condition (P. St. ¶¶ 38-39). Kilty typically sleeps in a different room from Marthon, because Kilty has a snoring problem that awakens Marthon (M.St. ¶ 88).

Maple Grove seeks to dispute whether Marthon is treating his Tourette's appropriately. Marthon says that he "treats his Tourette's and related disorders with regular doctor visits, medication, an exercise regimen, and meditation" (id. ¶ 40). On the other hand, Maple Grove states that "Marthon's medical records contain no indication of any treatment for Tourette [sic] Syndrome" (M.Resp. ¶ 40) and that "conventional medications are readily available which [can] significantly reduce the severity and frequency of" Marthon's motor and vocal tics (M.Resp. ¶¶ 46, 49). Maple Grove adds that Marthon's physician Brian O'Leary "is unaware of any medication used to help curb the effects of Tourette [sic] Syndrome, despite the fact that numerous such medications exist" (M. St. ¶ 80, record citations omitted). In a four-page response to that one sentence, plaintiffs assert among other things that "the medications are of limited efficacy in many patients[,] . . . have significant side effects, and because of the need to help patients feel empowered, the decision to use medications must be made by the patient" (P.M.Resp. ¶ 80). Marthon has evidently taken a minimal amount of medication because of that medication's depressive effects (Dr. O'Leary Dep. 83). There are serious deficiencies in the kind of generalized basis on which Maple Grove attempts to create a genuine issue of material fact in this area — its expert did not take advantage of the opportunity that he was afforded to observe Marthon during his deposition, to enable the expert to relate his views to the facts of Marthon's situation rather than opining in such general terms on Tourette's and its treatment.

Beranek moved into 409T in September 1998, and she has heard noises from 309T on all but one or two nights since that time (Beranek Dep. 88).*fn6 Though there are a few times when she is able to get a good night's sleep (id.), she is typically awakened several times during the night and sometimes does not fall back asleep at all (id. 97-98). Beranek says that the noise can be heard in every room and is louder than the air conditioner in her bedroom (id. 97).*fn7 Initially she did not know the tenants of 309T, but she felt that the noises were caused by Tourette's or schizophrenia (P. St. ¶ 52). Beranek states that she is "angry because I bought a piece of real estate that I cannot live in" (P. St. ¶ 139).

With the knowledge of Maple Grove's counsel, Beranek began documenting the noises emanating from 309T (M.Resp. ¶ 115). Beranek's documentation included references to noises unrelated to Marthon's Tourette's (P. St. ¶ 115). Beranek also recorded noises from 309T with a voice-activated dictaphone (M.Resp. ¶ 117).

Even though nothing by way of complaint — either formal or informal — was ever voiced until Beranek entered the picture as an immediate neighbor of plaintiffs, Devereux has now said that six years earlier (in 1992, when she moved into 209T) she began to hear noises from 309T (M.St. ¶ 17). Those noises included hammering and stomping sounds (id. ¶¶ 24-25). On occasion Devereux' sister Schuster has also slept in 209T, and she has been startled and awakened after hearing noise from 309T (Schuster Dep. 98-99). After several years Devereux began to take sleeping pills in order to fall back to sleep on nights when she was awakened by noises coming from 309T (M.St. ¶ 19).

As suggested in the preceding paragraph, P.M.Resp. ¶ 20 seeks to undermine Devereux' account by noting that she "did not complain to the Board . . . about the noise. . . . until after President Beranek moved" into 409T (P.M.Resp. ¶ 20). Indeed, during the dozen years from 1986 until August 1998 nobody made any formal complaint to Maple Grove or Alpha, either oral or written, related to Marthon's noise (P. St. ¶¶ 82-85). Devereux does say that soon after she moved in she knocked on the door of 309T to discuss the noise problem, but nobody answered (Devereux Dep. 13). Devereux says that she tried to tolerate the noise for seven years (M.St. ¶ 20) and was "afraid" to complain because she perceived Marthon as being "mentally unbalanced" (P.M.Resp. ¶ 28).*fn8 Devereux also asserts that the sounds have "escalated over the years" (Devereux Dep. 54). After Beranek raised the Marthon issue, Devereux did complain, assertedly because "it just got me down so bad I couldn't stand it anymore and I reached my limit" (Devereux Dep. 54).*fn9 Devereux says she is "extremely mentally irritated and physically exhausted by the noise" (Devereux Aff. ¶ 7).*fn10

Dr. Daniel Wynn, who is Board-certified in the treatment of sleep disorders,*fn11 examined both Devereux and Beranek and concluded that Devereux suffers from chronic insomnia and severe anxiety (M.St. ¶¶ 42-44) and that Beranek suffers from severe insomnia and a significant mood disturbance, including a recurrence of depression (id. ¶¶ 64-65). In both cases Dr. Wynn says that those health problems are the "direct result" of noises coming from 309T (id. ¶¶ 44, 65). Thus he recommends that Devereux and Beranek change their present living situations if their health is to be improved (id. ¶¶ 45, 66). Plaintiffs take issue with most of Dr. Wynn's conclusions (P.M.Resp. ¶¶ 43-45, 64-66).

On September 28, 1998 Beranek left a note on plaintiffs' door, stating in part (M.Resp. ¶ 89):

[E]very night since I moved in, between 3:00 a.m. and 4:00 a.m., noise from the room below me is so loud that it has awakened me. I am exhausted from the move and need a good night's sleep. I would greatly appreciate if you could be more quiet during the nighttime hours.

Kilty responded to the letter on October 1 and attributed the noise complaint to a severe cough that she had at the time (P. St. ¶¶ 90-91). But Beranek replied that same day with another note, saying in part (M.Resp. ¶ 95):

Perhaps my last note was unclear. I am asking that the strange vocal sounds and the falling sounds of heavy objects be stopped immediately, especially between the hours of 10:00 p.m. and 6:00 a.m. when most people are trying to rest. If the noise does not stop after this letter, I will seek outside intervention to resolve this problem.

True to her word, when the noises continued Beranek took the issue up with the Board (Bucki Dep. 33), and an informal meeting was held between Kilty and the Board (Crossland Dep. 12, P. St. ¶¶ 96-97). At that point Kilty told Beranek and Crossland that her husband had Tourette's (M.St. ¶¶ 82, 84-85).*fn12 Kilty says she was told that fines were a possibility if the noise continued, and Crossland was unable to refute that (Crossland Dep. 33-34). Beranek believed that Kilty would work on the problem, based on Kilty's comment that "everyone should have a good night's sleep" (P.M.Resp. ¶ 86).

Then on at least several occasions*fn13 beginning around November 1998, the previously quiescent Devereux banged on her ceiling with a broom handle in asserted response to Marthon's tics and noisemaking (P. St. ¶ 104).*fn14 On January 19, 1999 Devereux left ...


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