United States District Court, N.D. Illinois, Eastern Division
June 16, 2004.
DIANE LINK WALLACE, ANGELA MAPLES, LISA TAYLOR, MARY E. SISTRUNK, PANDORA MEADORS, ANNIE R. SMITH, and NICHELLE HART, on behalf of themselves and all others similarly situated, Plaintiffs,
THE CHICAGO HOUSING AUTHORITY, an Illinois Municipal Corporation, and TERRY PETERSON, in his official capacity as Chief Executive officer of the CHA, Defendants.
The opinion of the court was delivered by: RUBEN CASTILLO, District Judge
MEMORANDUM OPINION AND ORDER
This opinion addresses Plaintiffs Diane Link Wallace, Angela
Maples, Lisa Taylor, Mary E. Sistrunk, Pandora Meadors, Annie R.
Smith, and Nichelle Hart's ("Plaintiffs") Motion to Reconsider
Section I of this Court's December 23, 2003 Memorandum Opinion
and Order. (R. 31-1.) Plaintiffs ask the Court to reconsider only
the portion of our decision that limits Plaintiffs' Fair Housing
Act ("FHA") claims to any acts that occurred within the FHA's
two-year statute of limitations.*fn1 (R. 27, Dec. 23, 2003
Order at 7.) Specifically, Plaintiffs challenge our holding that
"any acts occurring more than two years before the filing of the
initial complaint on January 23, 2003 are time-barred." (Id.)
Plaintiffs argue that we should reconsider our prior order
because: (1) their FHA claims rest on Defendant Chicago Housing
Authority's ("CHA") on-going practices, which under a continuing-violations theory, would
allow acts occurring before the FHA's two-year statute of
limitations to survive; and (2) CHA's practices were not
interrupted by the Relocation Rights Contract. For the reasons
set forth below, we agree with Plaintiffs' first argument but
disagree with the second; we therefore grant Plaintiffs' motion
to reconsider in part and deny it in part. (R. 31-1.)
Whether to grant a motion to reconsider is a matter squarely
within the Court's discretion. Caisse Nationale de Credit
Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir.
1996). Typically, the Court will not reconsider a prior order
unless the movant presents newly discovered evidence, establishes
a manifest error of law or fact, or demonstrates that the Court
has "patently misunderstood" its position. Bank of Waunakee v.
Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir.
1990). In our prior order, however, we indicated that we might
revisit our decision regarding the statute of limitations if
Plaintiffs could establish that they intended to proceed under a
pattern-or-practice theory and that proceeding under that theory
would alter our application of the statute of limitations to
Plaintiffs' claims. (R. 27, Dec. 23, 2003 Order at 7 n. 1.) In
their motion to reconsider, Plaintiffs argue that they can
properly bring a pattern-or-practice theory as private litigants,
and they assert that proceeding under that theory brings acts
that occurred prior to 2001 into the statute of limitations
period under a continuing-violations theory. Therefore, we will
address Plaintiffs' motion to reconsider those issues in full. I. Private Parties May Bring A Pattern-or-Practice Claim Under
The text of the FHA gives private litigants the right to
enforce the FHA in court: "[a]n aggrieved person may commence a
civil action . . . not later than 2 years after the occurrence or
the termination of an alleged discriminatory housing
practice . . ." 42 U.S.C. § 3613(a)(1)(A) (emphasis added).
The FHA also allows the Attorney General to commence a civil
action where "any person or group or persons is engaged in a
pattern or practice" of violating the rights granted under the
FHA. 42 U.S.C. § 3614(a). This section's specific reference
to the Attorney General's authority to prosecute
pattern-or-practice claims does not contradict nor diminish the
ability of "any aggrieved person" to bring such claims under
§ 3613(a)(1)(A). The Supreme Court has held that similar
language in an earlier version of the FHA merely "serves to
describe the suits that the Attorney General may bring, and not
to limit suits that private parties may bring[.]"*fn2
Havens Realty Corp. v. Coleman, 455 U.S. 363, 381 n. 23 (1982).
Thus, a private litigant may properly bring a pattern-or-practice
claim under the FHA. Id.
II. Plaintiffs' Pattern-or-Practice Theory
In their motion to reconsider, Plaintiffs assert that their
disparate impact, perpetuation of segregation, and racial
steering claims are all necessarily grounded in a theory that CHA
had a pattern or practice of violating the FHA. (R. 31-1, Mot. to
Reconsider at 3.) Plaintiffs clarify that unlike their § 1983
claims, which stem solely from CHA's alleged on-going failure to provide adequate relocation services, their claims under the FHA
also arise from CHA's alleged practices of racial steering and
wrongfully displacing Plaintiffs from their homes. (Id. at
2-3.) Plaintiffs argue that this distinction impacts our prior
holding regarding the application of the statute of limitations
to their claims because the Supreme Court's decision in Havens,
rather than National Railroad Passenger Corporation v. Morgan,
536 U.S. 101 (2002), applies to their FHA claims. (Id. at 1-2.)
A. Both Havens and Morgan Inform Our Analysis of
Plaintiffs' Pattern-or-Practice Claims Under The FHA
Upon reconsideration, we find that both Havens and Morgan
inform our analysis of whether acts that occurred prior to the
two-year limitations period are actionable as part of an alleged
pattern or practice of conduct in violation of the FHA. In
Morgan, the Supreme Court considered whether a plaintiff suing
under Title VII of the Civil Rights Act of 1964, as amended by
42 U.S.C. § 2000e, may bring claims based on events that fall
outside of that statute's limitations period. 536 U.S. at 104-05.
The Court focused on the text of Title VII, which states that a
suit must be filed "within one hundred and eighty days after the
alleged unlawful employment practice occurred." Id. at 109
(emphasis in original) (quoting 42 U.S.C. § 2000e-5(e)(1)). Based
on that language, the Court held that Title VII precludes claims
for discrete acts of discrimination that occur outside of the
limitations period, and that, for purposes of a hostile work
environment claim, acts that occur prior to the limitations
period are actionable as long as an act constituting part of the
hostile work environment occurs within the limitations period.
Id. at 113-14, 116-18. The Court made this distinction between
hostile work environment claims and discrete discriminatory acts
because it found that the "very nature [of hostile work environment claims] involves repeated conduct." Id. at 115. In
other words, because a hostile work environment claim necessarily
involves "a series of separate acts that collectively constitute
one" unlawful practice, the court may consider the entire time
period of that practice as long as an act contributing to the
claim occurred within the limitations period. Id. at 117.
In Havens, the Supreme Court specifically addressed the FHA's
statute of limitations. There, the Supreme Court held that a
pattern-or-practice theory may revive otherwise stale acts if
these acts are part of a "continuing violation" of the FHA. 455
U.S. at 380-81. Under the continuing-violations theory, the Court
held that claims challenging "an unlawful practice" under the FHA
are timely as long as the "last asserted occurrence of that
practice" falls within the limitations period. Id. at 380-81.
Thus, an allegation of a continuing violation under the FHA is
treated differently than an allegation of a discrete act of
discrimination for statute-of-limitations purposes. Id.
The FHA's statute of limitations was amended in 1988, and now
states consistent with the Havens holding that an aggrieved
party's claims are timely if they are filed "not later than 2
years after the occurrence or the termination of an alleged
discriminatory housing practice[.]" 42 U.S.C. § 3613(a) (emphasis
added). Congress, by adding language to clarify that a party may
bring a claim within two years after the end of an allegedly
on-going discriminatory housing practice, clarified its intent to
allow parties to recover for earlier acts under the FHA that
constitute part of an on-going pattern or practice. See H.R.
Rep. No. 100-711, at 33, reprinted in 1988 U.S.C.A.A.N. 2173,
The amended text of the FHA coupled with the Supreme Court's
holding in Havens demonstrates that where a plaintiff properly
alleges a pattern of conduct that violates the FHA, acts that occur prior to the limitations period are actionable as
long as they are part of the alleged pattern. The Morgan
decision does not contradict this finding; rather, it recognizes
that prior acts may be timely under the continuing-violations
theory where the asserted claim necessarily arises from a pattern
of unlawful conduct. 536 U.S. at 117. Thus, we now turn to
whether Plaintiffs have properly alleged that CHA engaged in a
pattern or practice of violating the FHA.
B. Plaintiffs' A Pattern-Or-Practice Allegations
A pattern-or-practice claim "necessarily involves a number of
discriminatory acts, not a particular one from which the time for
bringing suit may be measured." United States v. City of Parma,
Ohio, 661 F.2d 562, 573 (6th Cir. 1981). Thus, "[i]n a suit
claiming that the defendant engaged in a continuous course of
conduct that causes damages . . . a plaintiff can recover for
damages that preceded the limitations period if they stem from a
persistent process of illegal discrimination." Tyus v. Urban
Search Mgmt., 102 F.3d 256, 265 (7th Cir. 1996). To establish a
continuing course of conduct under a pattern-or-practice theory,
Plaintiffs must show that the character of CHA's actions "was not
apparent when they were committed but became so when viewed in
light of the later acts." Moskowitz v. Trs. of Purdue Univ.,
5 F.3d 279, 282 (7th Cir. 1993).
Plaintiffs' motion to reconsider indicates that their disparate
impact, perpetuation of segregation, and racial steering claims
under the FHA all necessarily spring from a pattern of events
that began in 1995 and extended into the limitations period. (R.
31-1, Mot. for Reconsideration at 10.) We will address each of
these claim categories in more detail below. 1. Disparate Impact
Counts VIII, IX, and X of Plaintiffs' First Amended Complaint
allege that CHA's practices of failing to maintain public housing
facilities and its "closure, demolition, and relocation policies"
had a disparate impact on African Americans, female-headed
households, and families with children. (R. 14, First Am. Compl.
¶¶ 262-73.) Plaintiffs allege that acts prior to 2001 should be
included in their disparate impact claims under a
continuing-violations theory because these claims were
discoverable only after they learned that CHA had a pattern or
practice of dislocating other similarly-situated inhabitants of
public housing. (R. 31-1, Mot. for Reconsideration at 10-11;R.
34, Reply at 3-5.)
Plaintiffs can establish a prima facie disparate impact case
under the FHA simply by showing that Defendants' actions had
discriminatory effects upon a protected class. Metro. Housing
Dev. Corp. v. Vill. of Arlington Heights, 558 F.2d 1283, 1289-90
(7th Cir. 1977); Snyder v. Barry Realty, Inc., 953 F. Supp. 217,
219 (N.D. Ill. 1996). The question in any disparate impact
claim under the FHA is "whether a policy, procedure, or practice
specifically identified by the plaintiff has a significantly
greater discriminatory impact on members of a protected class."
Simms v. First Gibralter Bank, 83 F.3d 1546, 1555 (5th Cir.
1996). Acts that occurred before the limitations period may be
brought into a timely disparate impact claim where at least one
violation included in the pattern of discriminatory conduct
occurred during the limitations period. See Vill. of Bellwood v.
Dwivedi, 895 F.2d 1521, 1528 (7th Cir. 1990).
As we noted in our earlier opinion, Plaintiffs' disparate
impact claim cannot rest on a series of discrete occurrences.
See Morgan, 536 U.S. at 115. However, Plaintiffs have clarified
that they intend to proceed on their FHA claims under a
pattern-or-practice theory. After reviewing the First Amended Complaint with this in mind, we
believe at this stage that Plaintiffs have adequately alleged
that their disparate impact claims are founded on a continued
pattern or practice that extends into the limitations
period.*fn3 Therefore, we find that Plaintiffs' claims that
CHA's practices disparately impacted Plaintiffs in violation of
the FHA properly includes acts that occurred prior to January 23,
2001.*fn4 See, e.g., Havens, 455 U.S. at 381.
2. Perpetuation of Segregation
Count V of the First Amended Complaint alleges that the
Defendants' practices "have and will continue to have the effect
of segregating Plaintiffs, and of perpetuating residential
housing segregation in the City of Chicago" in violation of the
FHA. (R. 14, First Am. Compl. ¶ 253.) Plaintiffs argue that
Defendants' practices, which by their very nature cannot be
discerned from a single plaintiff's experience, similarly support
their perpetuation of segregation claims. (R. 31-1, Mot. for
Reconsideration at 11-12.)
Conduct that "perpetuates segregation and thereby prevents
interracial association . . . will be considered invidious under
the Fair Housing Act independently of the extent to which it
produces a disparate effect on different racial groups."
Arlington Heights, 558 F.2d at 1290. Although perpetuation of
segregation claims can occasionally rest on a single incident, we
agree with Plaintiffs that their complaint alleges a pattern of
discriminatory conduct sufficient to support acts occurring prior
to the FHA's two-year statute of limitations. Therefore, we now
hold that Plaintiffs are not limited by the statute of
limitations and accordingly may bring under Count V acts that
occurred prior to January 23, 2001.
3. Racial Steering
Count VI alleges that Defendants violated the FHA by
"intentionally steer[ing] Plaintiffs to predominately
African-American neighborhoods." (R. 14, First Am. Compl. ¶ 255.)
As with disparate impact and perpetuation of segregation claims,
racial steering often is discerned only after the defendants have
engaged in a pattern of conduct.
As the Supreme Court held in Havens, a racial steering claim
is timely where an alleged continuing policy and practice of
unlawful racial steering extends into the limitations period.
Havens, 455 U.S. at 381. Here, Plaintiffs have alleged that
Defendants engaged in a pattern or practice of conduct that
amounts to racial steering. (R. 14, First Am. Compl. ¶¶ 254-56.)
These allegations are sufficient to bring pre-2001 acts that are
part of the same pattern or practice into the limitations period.
Havens, 455 U.S. at 381. Thus, we will permit Plaintiffs to
bring claims of racial steering for acts occurring prior to
January 23, 2001.
III. The Relocation Rights Contract
Plaintiffs also urge us to reconsider our holding that the
October 1999 Relocation Rights Contract interrupted any alleged
continuing violations of the FHA or § 1983. We decline to do so.
In our prior order we stated that "even were we to accept a
continuing violations theory . . . we would hold that it would
start running, at the earliest, from October 1, 1999," the
effective date of the Relocation Rights Contract. (R. 27, Dec.
23, 2003 Order at 7.) We did not invite further comment regarding the Relocation Rights Contract's impact
on the alleged continuing violations. Nor have Plaintiffs brought
forth in their motion for reconsideration any evidence of the
Court's misapprehension, any newly discovered evidence, or any
manifest error of law or fact. See Bank of Waunakee, 906 F.2d
at 1191. Plaintiffs have demonstrated no reason to amend our
prior holding that the Relocation Rights Contract comprises an
intervening event that interrupts the alleged patterns or
practices. (R. 27, Dec. 23, 2003 Order at 7.) As a result, we
deny their motion for reconsideration as it pertains to the
interruptive effect of the Relocation Rights Contract and
reaffirm that any acts that occurred prior to October 1, 1999 may
not be considered as part of CHA's alleged pattern or practice of
For the foregoing reasons, we grant in part and deny in part
Plaintiffs' motion for reconsideration. (R. 31-1.) For the
purposes of Counts V, VI, VIII, IX, and X, we hold that any acts
that occurred after October 1, 1999 that comprise part of an
alleged pattern or practice of FHA violations are actionable.