Echemendia v. Gene B. Glick Management Corp. ( 2008 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 6, 2008*
Decided February 6, 2008
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 07-1902
Appeal from the United States District
TERESA C. ECHEMENDIA, Court for the Northern District of
Plaintiff-Appellant, Indiana, Fort Wayne Division
v. No. 1:05-CV-53
GENE B. GLICK Roger B. Cosbey,
MANAGEMENT CORP., et al., Magistrate Judge.
Defendants-Appellees.
ORDER
In this successive appeal, we review the district court’s grant of summary
judgment to the defendants. Because the plaintiff had an adequate opportunity for
discovery, and there is no material evidence to support her numerous claims, we
affirm.
From 1990 through 2005, Teresa Echemendia, a disabled Hispanic woman,
lived in an apartment building managed by Gene B. Glick Management (“Glick”).
*
This successive appeal has been submitted to the original panel under
Operating Procedure 6(b). After an examination of the briefs and the record, we have
concluded that oral argument is unnecessary. Thus, the appeal is submitted on the
briefs and the record. See FED. R. APP. P. 34(a)(2).
No. 07-1902 Page 2
She received Section 8 rent subsidies from the Department of Housing and Urban
Development (“HUD”). While receiving those subsidies, Echemendia compiled a
long list of complaints about Glick that she now views as discrimination. She
claims, for example, that: Glick failed to maintain her unit; Glick entered and
searched her apartment; Glick employees used the handicapped-only parking space;
Glick failed to control parties, drug use, and underage drinking in the apartment
complex; Glick requested that she acknowledge pet regulations and provide a record
of her divorce along with her other HUD paperwork; Glick did not prevent second-
hand smoke (to which she is allergic) from entering her unit; Glick encouraged
mobility-impaired tenants to apply for housing but did not mention other types of
disabilities; employees treated her in a “nasty” way when she raised concerns; and
other like topics.
In February 2005, her dissatisfaction culminated in this lawsuit. She
targeted Glick employees Cindy Bane, Sharon Hankins, Kolleen Scott, and Desiree
Elett, as well as Glick itself and several of its apartment complexes. She alleged
that the defendants had discriminated against her on the basis of her ethnicity and
disability, and retaliated against her for her complaints. Her claims fell under the
Fair Housing Act, 42 U.S.C. §§ 3604, 3617, Section 504 of the Rehabilitation Act, 29
U.S.C. § 794, the Fourth Amendment, the Civil Rights Act prohibition against
conspiracy, 42 U.S.C. § 1985, Executive Orders 11063, 12892, and 13217, dealing
with HUD administration, and state-law contract, privacy, and fair-housing claims.
The district court dismissed some additional claims before summary judgment, and
Echemendia’s brief does not argue against their dismissal, so we will not address
them further.
Each year Echemendia was required to complete re-certification forms to
continue receiving Section 8 benefits for the following year. After she filed suit in
2005, her deadline for re-certification for 2006 neared. But Echemendia never
completed the required paperwork, despite receiving several notices from Glick to
do so and despite successfully doing so in the past. As a result, her HUD benefits
were discontinued, and she became responsible for the full market value of her rent.
When she could not pay, Glick evicted her.
Echemendia sought two preliminary injunctions. Her first request sought to
prevent Glick from terminating her Section 8 benefits, and her second motion
sought to reinstate her subsidy. The district court denied both requests. After she
appealed only the denial of the second request, we affirmed the district court,
reasoning that she demonstrated no likelihood of success on her claims that Glick’s
actions were discriminatory or retaliatory. See Echemendia v. Gene B. Glick Mgmt.
Corp., No. 06-1799, 2006 WL 2787171 (7th Cir. Sept. 28, 2006).
No. 07-1902 Page 3
The defendants moved for summary judgment shortly after discovery closed
on July 14, 2006. They submitted affidavits and accompanying documents
asserting that they never treated Echemendia differently than other tenants. They
attested that: they requested only those materials from her that were the standard
practice for the apartment complex; they inspected Echemendia’s apartment and
requested information about her divorce only to comply with HUD requirements for
receipt of her benefits; they offered to put a filter in her unit to help remove second-
hand smoke, but she refused; they began ticketing cars parked in the handicapped-
parking space after she called attention to them; they reprimanded unruly tenants;
and they evicted her only because of her failure to re-certify her eligibility for HUD
benefits and pay rent.
Echemendia filed three motions to reopen discovery and postpone
consideration of summary judgment. She filed her first motion in September 2006
in which she requested additional discovery, contending that she needed it to
answer the motion for summary judgment. She sought information about her
contractual rights against the defendants; audits of tenant housing files; training,
education, and employment histories of defendants; any notices from Glick to HUD
that it was evicting Echemendia; and any other evidence supporting her complaint.
The district court treated this motion under Federal Rule of Civil Procedure 56(f)
and stayed proceedings temporarily until defendants produced the audits of the
housing files and any notices they provided to HUD, or until they certified that
these records did not exist. It noted that Echemendia had timely requested these
items during the discovery period. The district court denied the remainder of
Echemendia’s requests because she could have pursued them during discovery, and
because she did not explain her claim of their possible relevance to the defendant’s
summary judgment motion.
Echmendia filed her second discovery-related motion in October 2006,
seeking to compel answers to interrogatories and document requests that she had
served during discovery. The district court treated the motion under Federal Rule
of Civil Procedure 37 rather than Rule 56(f) because Echemendia never attested
that she needed the discovery to answer the pending motion for summary judgment.
Moreover, the court found that Echemendia’s second discovery motion would fail
under Rule 56(f) because (1) she could have but did not seek these materials in first
Rule 56(f) motion; (2) she did not explain why her requests were relevant to the
summary judgment motion; and (3) she untimely filed her motion two months after
the defendants moved for summary judgment.
By December 2006 Glick produced the tenant housing files for Echemendia
and other tenants, and certified that it possessed no copies of notices sent to HUD
about Echemendia. Echemendia responded with her third motion to compel,
arguing that defendants did not respond in full to the court’s order to produce her
No. 07-1902 Page 4
requested documents. The court disagreed, pointing out that Echemendia offered
no evidence that the defendants were withholding any responsive documents. The
district court then granted Echemendia additional time to answer the motion for
summary judgment. She never responded to the motion, however, and the court
issued judgment for the defendants in March 2007.
We first consider the district court’s discovery rulings. We review the district
court’s decision to deny reopening discovery and production of documents for abuse
of discretion. See Winters v. Fru-Con Inc., 498 F.3d 734, 743 (7th Cir. 2007). It was
not unreasonable for the court to deny Echemendia’s requests for new documents.
First, as the district court found (and Echemendia has offered no evidence to the
contrary), she could have pursued these materials during discovery but did not for
her own lack of diligence. See Grayson v. O’Neill, 308 F.3d 808, 816 (7th Cir. 2002).
Second, she did not show the court, and has not shown us, how they would have
been probative of her discrimination, retaliation, or unlawful search claims.
Because they would not have aided her response to the summary judgment motion,
it was not an abuse of discretion to refuse their production. See Waterloo Furniture
Components, Ltd. v. Haworth, Inc., 467 F.3d 641, 648 (7th Cir. 2006); Grundstad v.
Ritt, 166 F.3d 867, 873 (7th Cir. 1999).
Turning to the summary judgment ruling itself, we note that Echemendia
forfeited her claims on appeal by failing to respond to the motion for summary
judgment. See Lorillard Tobacco Co. v. A & E Oil Inc., 503 F.3d 588, 593 (7th Cir.
2007). On this basis alone, we may affirm the district court. See Ocean Atlantic
Dev. Corp. v. Aurora Christian Schs., Inc., 322 F.3d 983, 1005 (7th Cir. 2003). But
even a review of the record and of the district court’s detailed 30-page opinion
reveals that there is no evidence that creates a dispute of material fact.
A party who bears the burden of proof must affirmatively demonstrate that
there is a genuine issue of material fact for trial. East-Miller v. Lake County
Highway Dep’t, 421 F.3d 558, 561-62 (7th Cir. 2005). But Echemendia’s lack of any
direct or indirect evidence of discrimination or retaliation cuts across all of her
claims. She never provides evidence that draws together her diverse accounts of
difficulties or disagreements with tenants and staff of her apartment complex into
acts targeted at her on the basis of her race or disability, or in retaliation for having
made complaints.
An intent to discriminate is an essential element of both her discrimination
and retaliation claims under the Fair Housing Act. See White v. United States Dep’t
of Hous. and Urban Dev., 475 F.3d 898, 907 (7th Cir. 2007) (retaliation under the
Fair Housing Act); East-Miller, 421 F.3d at 563-64 (same); Oconomowoc Residential
Programs v. City of Milwaukee, 300 F.3d 775, 782-83 (7th Cir. 2002) (discrimination
under the Fair Housing Act). The defendants have offered non-discriminatory and
No. 07-1902 Page 5
non-retaliatory reasons for their actions. Echemendia has adduced no evidence that
these reasons are pretextual, nor has she shown any failure to accommodate her
disability. Her lack of evidence that she was treated differently than similarly
situated tenants also defeats her claim under the Rehabilitation Act. See Bd. of
Educ. of Twp. High Sch. Dist. No. 211 v. Ross, 486 F.3d 267, 278 (7th Cir. 2007);
Grzan v. Charter Hosp. of Northwest Indiana, 104 F.3d 116, 120-21 (7th Cir. 1997).
Likewise, the lack of evidence of discriminatory intent dooms her § 1985 conspiracy-
to-discriminate claim. See Keri v. Bd. of Trs. of Purdue Univ., 458 F.3d 620, 642
(7th Cir. 2006); Brokaw v. Mercer County, 235 F.3d 1000, 1024 (7th Cir. 2000).
Finally, Executive Orders 11063, 12892, and 13217 are also unavailing. Even if
they impress some duty upon the defendants, and Echemendia has a right to
enforce them, they are targeted at the prevention of discrimination, and as we have
said there is no evidence of this.
As to Echemendia’s Fourth Amendment claims, she argues that Glick’s
employees unconstitutionally entered her apartment during an inspection. Even if
we assumed that the defendants were government actors inspecting her apartment,
the evidence shows that they entered only because HUD regulations required an
annual inspection, and she had agreed to this in her lease and her application for
HUD funds. Their entry would have been a consensual encounter, see United States
v. Bell, 500 F.3d 609, 612-13 (7th Cir. 2007), which would not violate the Fourth
Amendment.
Finally, after the court resolved all of Echemendia’s federal claims, it did not
abuse its discretion when it declined to retain supplemental jurisdiction over her
purely state-law claims. See Sanchez & Daniels v. Koresko, 503 F.3d 610, 614-15
(7th Cir. 2007); Ross ex rel. Ross v. Bd. of Educ. of Twp. High Schs. Dist. 211, 486
F.3d 279, 285 (7th Cir. 2007).
The decision of the district court is AFFIRMED.