A divided federal appeals panel will allow a Black Indiana couple to continue a racial discrimination lawsuit against their neighbors and homeowners association, saying that, while the couple never was forced from their home, nor was their use of their property impaired, they can still press forward with their federal fair housing law discrimination claims.
U.S. District Judge Matthew Brookman, of the Southern District of Indiana, granted summary judgment to the Homeowners’ Association at the Preserve at Bridgewater and two officers, Edward and Kathryn Mamaril, prompting an appeal from Tonca and Terence Watters, who made several allegations of discriminatory behavior and racist language in and around their subdivision in Kokomo, Indiana.
The U.S. Seventh Circuit Court of Appeals issued a 2-1 ruling on the appeal Sept. 12. Judge Candace Jackson-Akiwumi wrote the majority opinion, with Judge Frank Easterbrook concurring. Judge Amy St. Eve dissented.
The majority opinion details the Watterses history since buying two subdivision lots on June 2013, building a home and taking occupancy in December 2015, at which time they were the only Black couple in the Preserve. The problems date to “the very beginning,” Jackson-Akiwumi wrote, explaining Kate Mamaril was HOA president when the Watterses bought the lot and Ed Mamaril took over in the summer of 2015, a position he still holds.
When construction began, according to court documents, Ed Mamarial told the Watterses “they were not welcome, called them ‘assholes,’ asked why ‘you people’ moved here, told them he had them investigated, and suggested they live ‘somewhere else.’ ” Tonca Watters accused Kate Mamaril of using obscenities and racial slurs when addressing her and her grandchildren at her home and a nearby Cracker Barrel restaurant.
The Watterses also alleged discriminatory conduct on the part of the HOA with regards to being given permission to build a privacy fence, saying they should’ve been granted an exemption because Terence Watters has post-traumatic stress disorder stemming from his military service, during which he was trapped in a cave with a dog. He also alleges a terminal lung condition exacerbating his reactivity to dogs. They said a white resident was able to construct a fence in the subdivision.
“The HOA and the Mamarils do not dispute that Kate’s repeated, flagrant use of racial epithets establishes discriminatory intent,” Jackson-Akiwumi wrote. However, the parties differed over the existence of legal injury, with defendants making “the incredible claim" that the Watterses’ FHA race discrimination claim should fail because “they continue to re-side in the Preserve to this day.”
Although the conduct didn’t force the family from its home, the majority reasons, “a reasonable factfinder” could find the repeated harassment interfered with the enjoyment of their property. Jackson-Akiwumi further said the Watterses aren’t “trying to use federal law to police general decorum in the neighborhood” but alleged a sufficient pattern discriminatory conduct that they at least ought to be able to present to a jury.
However, she continued, the allegations don’t include evidence the Mamarils were acting on behalf of the HOA, a necessary element of a successful claim under the Fair Housing Act. The allegations they do make work against them in this regard, as the couple alleged disparate treatment with respect to rules about pets, pool construction, HOA guideline distribution, mailbox placement and paint colors, “but the record is either silent or directly contradicts them on each of these issues.”
Regarding the fence, the majority said the allegations don’t adequately match Americans with Disabilities Act requirements to show the HOA had sufficient knowledge of the PTSD and lung condition when denying variance requests.
In her dissent, St. Eve said she agreed with the summary judgment finding because the complaint lacked “a nexus between discriminatory treatment and an adverse housing action.”
Kate Mamaril denied using the derogatory language, but St. Eve said plaintiffs “are entitled to the benefit of conflicting evidence on summary judgment” and called the language “unquestionably odious in every respect.” Still, she differed with the majority on whether the alleged conduct was sufficiently linked to the abrogation of federal frights.
“Simply because Kathryn at one point occupied a position of authority within the HOA does not, without more, perpetually imbue her actions or words with the weight of that stature once she stepped down from her position,” St. Eve wrote. “Moreover, the only two instances the Watterses offer of Kathryn using racial epithets are separated by approximately 14 months, a significant temporal lapse. Isolated acts of harassment without the requisite nexus cannot sustain” this complaint past summary judgment.
St. Eve further rejected a connection between Ed Mamaril’s use of the phrase “you people” and the racial slur his wife used — “nor can the majority furnish any legal support for this imaginative position” — and said it was the majority, not the plaintiffs, who suggested a harassment pattern can constitute “attempted constructive eviction.”
Whereas the majority accused the Mamarils of trying to slice the allegations by considering them in isolation, St. Eve said their ruling essentially does the opposite by taking three loosely connected instances to establish a pattern to bolster the majority position.