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HCP of Illinois., Inc. v. Farbman Group I, Inc.

United States District Court, N.D. Illinois, Eastern Division

September 10, 2013


Page 944

For HCP of Illinois, Inc., doing business as Housing Choice Partners of Illinois, Plaintiff: Elizabeth Shuman Moore, Chicago Lawyers' Committee for Civil Rights, Chicago, IL; Jessica Marie Jax, Matthew C. Wolfe, Grippo & Elden LLC, Chicago, IL; Laura K McNally, Grippo & Elden, Chicago, IL.

For The Farbman Group I, Inc., also known as NAI Farbman, Defendant: Brian Witus, David W Williams, Kevin B. Hirsch, Michael F. Jacobson, PRO HAC VICE, Jaffe, Raitt, Heuer & Weiss, P.C., Southfield, MI; Howard L. Teplinsky, Beermann Swerdlove LLP, Chicago, IL; Mark Louis Evans, Stefania Pialis, Beermann Pritikin Mirabelli Swerdlove LLP, Chicago, IL.

For 216 JAX LLC, Defendant: Brian Witus, David W Williams, Michael F. Jacobson, PRO HAC VICE, Jaffe, Raitt, Heuer & Weiss, P.C., Southfield, MI; Howard L. Teplinsky, Beermann Swerdlove LLP, Chicago, IL; Mark Louis Evans, Stefania Pialis, Beermann Pritikin Mirabelli Swerdlove LLP, Chicago, IL.


Page 945




The plaintiff, Housing Choice Partners (" HCP" ), is a non-profit organization that helps low income people seeking affordable housing in the Chicago metropolitan area. It was founded in 1995 by metropolitan area fair housing organizations, concerned about the concentrations of poverty and race that had developed in the suburban rent subsidy program (then called Section 8). A significant percentage of its clientele is African-American. The Farbman Group holds itself out as a " leading commercial management and brokerage firm serving a wide variety of individual and institutional clients."

In June 2012, HCP unsuccessfully attempted to rent space in the Farbman Group's property at 216 W. Jackson in Chicago. Believing that Farbman's rejection was racially motivated, HCP filed suit under 42 U.S.C. § § 1981 and 1982, and the Illinois Human Rights Act. Section 1981 prohibits discrimination on the basis of race in the making, performing, and modifying of contracts, while Section1982 prohibits discrimination on the basis of race in the sale or rental of property. Because of their common origin in the Civil Rights Act of 1866 and their common purpose, § 1981 and § 1982 are generally construed in tandem. See Tillman v. Wheaton-Haven Recreation Ass'n, Inc., 410 U.S. 431, 439-40, 93 S.Ct. 1090, 35 L.Ed.2d 403 (1973). Intentional discrimination is a key element of a claim under § § 1981 and 1982, Kim v. Ritter, 493 Fed.Appx. 787, 789 (7th Cir. 2012); Burnell v. Gates Rubber Co., 647 F.3d 704, 708 (7th Cir.2011); Harris v. Warrick County Sheriff's Dep't, 666 F.3d 444, 447 (7th Cir. 2012), and likewise, under the Illinois Human Rights Act. De v. City of Chicago, 912 F.Supp.2d 709, 733 (N.D. Ill.2012).

The Farbman Group and 216 Jax LLC (the " Farbman Group defendants" or " defendants" ) have moved for summary judgment, arguing that HCP cannot succeed in proving " defendants" discriminatory intent. They point to the denial of Andrew Gutman, the Farbman Group's President, that race played any role in his decision not to lease space to HCP at the 216 W. Jackson Street building. Indeed, he insists that he was not even aware that

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HCP's clientele was African-American and that he was utterly indifferent to their race. The defendants also point to other evidence that they say conclusively negates HCP's claim that the defendants were racially animated against HCP and its clientele. The plaintiff, of course, has a profoundly different view of the evidence.

What is often overlooked in cases such as this is that discriminatory intent seldom can be proved by direct evidence, since there are obviously no witnesses to a person's uncommunicated thoughts. Thus, while objective facts may be proved directly, " the state of a man's mind must be inferred from the things he says or does....[C]ourts and juries every day pass upon knowledge, belief and intent...having before them no more than evidence of their words and conduct, from which, in ordinary human experience, mental condition may be inferred." American Communications Ass'n, C.I.O. v. Douds, 339 U.S. 382, 411, 70 S.Ct. 674, 94 L.Ed. 925 (1950). [1]

The Supreme Court has often acknowledged the utility of circumstantial evidence in discrimination cases. For example, in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105, (2000), the Court recognized that evidence that a defendant's explanation for an employment practice is " unworthy of credence" is " one form of circumstantial evidence that is probative of intentional discrimination." Id. at 147. Cf. Loudermilk v. Best Pallet Co., LLC, 636 F.3d 312, 315 (7th Cir. 2011)(a defendant " who advances a fishy reason takes the risk that disbelief of the reason will support an inference that it is a pretext for discrimination." ); Fischer v. Avanade, Inc., 519 F.3d 393, 407 (7th Cir. 2008); Glass v. Dachel, 2 F.3d 733, 743-44 (7th Cir.1993)(finding defendant's post hoc explanation " too fishy" to allow summary judgment).

The reason for treating circumstantial and direct evidence alike is both clear and deep rooted: experience has taught that circumstantial evidence may be more certain, satisfying and persuasive than direct evidence. Desert Palace, Inc. v. Costa, 539 U.S. 90, 100, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003); Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960); United States v. Persfull, 660 F.3d 286, 294(7th Cir.2011); Branion v. Gramly, 855 F.2d 1256 (7th Cir. 1988)(Easterbrook, J.)(" The evidence was circumstantial, but what circumstances!" ).

In short, since discriminatory intent can seldom be proved with direct evidence, wide evidentiary latitude should be granted to those attempting to prove discriminatory intent. U.S. Postal Service v. Aikens, 460 U.S. 711, 714 n. 3, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983). That caution,

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however, butts up against the inflexible principle that in summary judgment cases, all reasonable inferences are to be drawn in favor of the opponent of the motion.

The plaintiff is indignant at what it perceives to be a blatant case of discrimination. The defendants are incensed at what they deem to be the plaintiff's " slanderous and baseless allegations of race discrimination," which they say have " irreparably tarnished" their reputations. ( Motion for Summary Judgment at 1). In light of the emotional pitch of the parties' presentations, it is appropriate at the outset to stress that this is a summary judgment proceeding and not a trial, and nothing contained in this opinion should to be construed as expressing any view of the merits of the case. What the evidence has shown, however, is that there are genuine issues of material fact requiring a trial where the jury which will have the benefit of an adversarial, evidentiary presentation in which the witnesses will be subject to cross-examination, and the jury can assess their demeanor -- a critical component of any credibility determination. See DW Data, Inc. v. C. Coakley Relocation Systems, Inc., 951 F.Supp.2d 1037, 2013 WL 3196937 (N.D.Ill. 2013)(collecting cases)



Summary Judgment Standards Under Rule 56, Federal Rules of Civil Procedure and Local Rule 56.1


The Federal Rules of Civil Procedure mandate that summary judgment 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). Material facts are facts that " might affect the outcome of the suit" under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute over material facts is genuine if " the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. To determine whether genuine issues of material fact exist, we ask if " 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." Anderson, 477 U.S. at 251-52. See also Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 449 (7th Cir. 2013).

The " party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When considering a motion for summary judgment, " a court may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder." Paz v. Wauconda Healthcare and Rehabilitation Centre, LLC, 464 F.3d 659, 664 (7th Cir.2006). " Courts are required to view the facts and draw reasonable inferences in the light most favorable to the party opposing the [summary judgment] motion." Scott v. Harris, 550 U.S.372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). See also Adeyeye, 721 F.3d at 449; Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394, 397 (7th Cir. 2012). Summary judgment cannot be granted if a genuine issue of material fact exists that would allow a

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reasonable jury to find in favor of the non-moving party. Anderson, 477 U.S. at 249-51; Forrest v. Prine, 620 F.3d 739, 742-43 (7th Cir. 2010).

Because HCP has presented sufficient circumstantial evidence to raise genuine issues of material fact on the question of the motivation underlying the Farbman defendants' refusal to permit HCP to sublease space at 216 W. ...

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