United States District Court, N.D. Illinois, Eastern Division
August 25, 2005.
VIRGIE PORTER, Plaintiff,
ALLSTATE INSURANCE COMPANY, Defendant.
The opinion of the court was delivered by: JOHN GRADY, Senior District Judge
Before the court is the motion of defendant Allstate Insurance
Company for summary judgment. For the following reasons, the
motion is granted.
Plaintiff Virgie Porter, proceeding pro se, alleges that
defendant Allstate Insurance Company ("Allstate") discriminated
against her, based on her gender, in the provision of homeowners'
insurance. The complaint does not cite the federal statute under
which Porter is bringing this action. In our previous memorandum
opinion granting Porter's motion to proceed in forma
pauperis, we held that the complaint states a claim for
violation of Title VIII of the Fair Housing Act, which prohibits
gender discrimination, inter alia, "in the provision of
services or facilities in connection" with the sale or rental of
housing as well as activities that "make unavailable or deny"
housing. 42 U.S.C. § 3604(a), (b). As Allstate concedes, the Seventh Circuit has
interpreted § 3604 as applying to discriminatory denials of
insurance and discriminatory pricing, see NAACP v. American
Family Mut. Ins. Co., 978 F.2d 287, 301 (7th Cir. 1992).
Plaintiff bases her claim on the fact that her insurance
premiums were higher than those of a male Allstate policyholder,
Abb Locke.*fn1 She seeks $5 million. Allstate now moves for
A. Summary Judgment Standards
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 a judgment as a matter of law." Fed.R.Civ.P.
56(c). In considering such a motion, the court construes the
evidence and all inferences that reasonably can be drawn
therefrom in the light most favorable to the nonmoving party.
See Pitasi v. Gartner Group, Inc., 184 F.3d 709, 714 (7th
Cir. 1999). "Summary judgment should be denied if the dispute is `genuine': `if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.'" Talanda v. KFC Nat'l Mgmt. Co.,
140 F.3d 1090, 1095 (7th Cir. 1998) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). The court will enter
summary judgment against a party who does not "come forward with
evidence that would reasonably permit the finder of fact to find
in [its] favor on a material question." McGrath v. Gillis,
44 F.3d 567, 569 (7th Cir. 1995).
Once the moving party has supported its motion for summary
judgment, the "adverse party may not rest upon the mere
allegations or denials of the adverse party's pleading, but the
adverse party's response, by affidavits or as otherwise provided
in [Rule 56], must set forth specific facts showing that there is
a genuine issue for trial." Fed.R.Civ.P. 56(e). Any fact
asserted in the movant's affidavit will be accepted by the court
as true unless the adverse party submits its own affidavits or
other evidence contradicting the assertion. See Curtis v.
Bembenek, 48 F.3d 281, 287 (7th Cir. 1995). If the adverse party
does not respond with evidence complying with Rule 56, "summary
judgment, if appropriate, shall be entered against the adverse
party." Fed.R.Civ.P. 56(e).
A pro se plaintiff is entitled to have her pleadings
construed liberally. See Haines v. Kerner, 404 U.S. 519, 520
(1972). Such plaintiffs are also entitled to a certain amount of
latitude with respect to the technical rigors of summary judgment. See
Kincaid v. Vail, 969 F.2d 594, 598 (7th Cir. 1992). However,
where a pro se plaintiff has not pointed to anything beyond
conclusory statements in the pleadings which would indicate the
existence of a triable issue of fact, she has failed to meet her
burden under Rule 56. See Timms v. Frank, 953 F.2d 281, 285
(7th Cir. 1992) (holding that all pro se litigants are
entitled to notice of the requirements of Rule 56 because failure
to point to evidence beyond the complaint will result in summary
judgment being entered against them).
Here, along with its motion for summary judgment, Allstate
served plaintiff with a "Notice to Pro Se Litigant Opposing
Motion for Summary Judgment," pursuant to Local Rule 56.2, that
informed plaintiff of the requirements of Rule 56.
B. Housing Discrimination
The elements of a discrimination claim under the Fair Housing
Act closely follow the elements of employment discrimination.
See Kormoczy v. Secretary, U.S. Dep't of Housing and Urban
Dev. ex rel. Briggs, 53 F.3d 821, 823 (7th Cir. 1995). Thus,
plaintiff may choose one of two distinct evidentiary paths to
prove that Allstate had a discriminatory intent: (1) directly,
through direct or circumstantial evidence; or (2) indirectly,
through the inferential burden-shifting method known as the
McDonnell Douglas test. See id. at 823-24; Village of
Bellwood v. Dwivedi, 895 F.2d 1521, 1531 (7th Cir. 1990). Because plaintiff offers no direct or
circumstantial evidence of gender discrimination, we proceed to
the second method of proof.
Under the McDonnell Douglas approach, a plaintiff first has
the burden of proving a prima facie case of discrimination.
See Brummett v. Sinclair Broad. Group, Inc., 414 F.3d 686,
692 (7th Cir. 2005). For purposes of this motion, we will assume
that plaintiff has done so, although it is highly
doubtful.*fn2 (The only evidence plaintiff submits is her
affidavit, in which she states in relevant part merely that her
homeowners' insurance premium in 2002 was $1,027.00, while Mr.
Locke's was $558.00, and that Mr. Locke had greater coverage.) If
a prima facie case is established, the burden of proof shifts
to the defendant to articulate a legitimate, non-discriminatory
reason for its actions. If the defendant does so, the plaintiff
must then show that the defendant's proffered reasons are a
pretext for discrimination. See id.
Allstate submits the affidavit of M. Charles Parsons, a Senior
Actuary at Allstate, who explains how Allstate used certain
actuarial "rating factors" in setting insurance premiums for
plaintiff and Mr. Locke. Mr. Parsons states as follows. In
November 1998, plaintiff first obtained homeowners' insurance
through Allstate for her home at 9128 S. Dobson Avenue in
Chicago, ZIP Code 60619. In March 2001, Mr. Locke first obtained
homeowners' insurance through Allstate for his home at 9304 S.
Laflin Street in Chicago, ZIP Code 60620.
In September 2002, Allstate informed plaintiff that her annual
premium would increase from $651.00 to $1,302.00 effective
November 2002, the beginning of the policy year. This premium was
for $204,391.00 in coverage with a $500.00 deductible. To reduce
the premium, plaintiff reduced the coverage to $156,870.00 and
informed Allstate about an electrical renovation to her home.
Plaintiff's premium then was reduced to $1,027.00. Mr. Locke's
annual premium for his policy year beginning in March 2002 was
$558.00 for $160,004.00 of coverage with a $500.00 deductible.
Mr. Parsons states that plaintiff's premium was higher than
that of Mr. Locke for a number of reasons. First, the policies
were written through different companies with different rating
criteria. Plaintiff's policy was written through Allstate
Insurance Company, and Mr. Locke's policy was written through
Allstate Indemnity Company. Plaintiff's and Mr. Locke's houses
were in different ZIP Codes, which placed them in different
territories for rating purposes. Mr. Locke received a ten percent
"Age 55 & Retired" discount to which plaintiff was not entitled.
There were two rate increases that affected plaintiff's premium
but not Mr. Locke's because of the different anniversary dates of
their policies. Finally, and most significantly, their claims
history was different. Mr. Locke made no claims during the relevant
period and received a fifteen percent claim-free discount.
Plaintiff, on the other hand, submitted a claim in July 2002,
which rendered the base rate of her premium subject to a fifty
percent surcharge. Mr. Parsons also states that gender played no
role in the determination of plaintiff's or Mr. Locke's insurance
Attached to Mr. Parsons's affidavit are detailed explanations
of the rate calculations for plaintiff's and Mr. Locke's premiums
for the relevant policy year. Attached to those calculations are
portions of the applicable rules and rating criteria as set forth
in Allstate's Homeowners Manual.
Plaintiff's response to Allstate's motion falls far short of
showing that there is a genuine issue for trial. Plaintiff voices
her disagreement with much of Allstate's brief and repeatedly
argues that Allstate's statements of material fact are false.
However, plaintiff fails to cite any evidence indicating that the
reasons Allstate proffers for the price difference actuarial,
risk-based factors are pretextual. Instead, plaintiff merely
responds with conclusory denials and her personal opinions
regarding Allstate's rating criteria, such as the statement "I
don't think that one claim would have caused Plaintiff[`s]
ins[urance] to increase by 50%." (Plaintiff's Reply in Opposition
at 5.) Plaintiff also sets forth a jumbled mass of irrelevant
allegations regarding Allstate's purported wrongs against Mr.
Locke (which plaintiff has no standing to raise) and includes
unnecessary, inflammatory language comparing Allstate's actions
Plaintiff has failed to demonstrate that Allstate's reliance on
actuarial factors was a pretext for gender discrimination in the
pricing of homeowners' insurance. Accordingly, Allstate's motion
for summary judgment will be granted.
Defendant Allstate Insurance Company's motion for summary
judgment is granted.
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