Vignola v. Kovitz Schifrin Nesbit et al

Filing 43

MEMORANDUM Opinion signed by the Honorable Andrea R. Wood on 11/2/2016. Mailed notice(ef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LILLIAN VIGNOLA,
Plaintiff,
v.
151 NORTH KENILWORTH
CONDOMINIUM ASSOCIATION,
PAMELA PARK, and KOVITZ SHIFRIN
NESBIT, a professional corporation,
Defendants.

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No. 16-cv-00713
Judge Andrea R. Wood

MEMORANDUM OPINION
Plaintiff Lillian Vignola claims that Defendant 151 North Kenilworth Condominium
Association (“Condo Association”) has violated the Fair Housing Amendments Act (“FHAA”),
42 U.S.C. § 3601 et seq., by denying her a reasonable accommodation for her disability that
would allow her to lease her condominium unit while she undergoes treatment at an in-patient
rehabilitation facility. Vignola further claims that the Condo Association’s attorney, Defendant
Pamela Park (of the law firm Kovitz Shifrin Nesbit, which is also named as a Defendant) violated
the FHAA by demanding proof of her disability as a condition of considering her accommodation
request. Lastly, Vignola claims that the Condo Association’s by-laws contain an occupancy limit
that violates the FHAA’s prohibition on familial-status discrimination. Now before the Court is
Vignola’s motion for a preliminary injunction that would require the Condo Association to allow
her requested accommodation. For the reasons stated below, the motion (Dkt. No. 6) is denied.
BACKGROUND
In 2013, at the age of 93, Vignola fell in her condo at 151 North Kenilworth. (Vignola Aff.
¶ 3, Pl. Mot. for Prelim. Inj., Ex. A, Dkt. No. 6-1.) Since the fall, Vignola has suffered from a

mobility-related disability, requiring 24-hour assistance in a rehabilitation facility. (Id. ¶¶ 3–4.)
The goal of Vignola’s treatment is for her to recover so that she can return to her home. (Id. ¶ 5.)
Because Vignola cannot afford both to maintain her home and to pay the costs of the
rehabilitation facility, she has asked that the Condo Association allow her to lease her unit. (Id.
¶¶ 6–7.) The Condo Association thus far has maintained that she cannot lease her home unless she
first lists it for sale for a period of one year. (Id. ¶ 8.) But if Vignola were to list the unit and it
sold, she would not be able to return home when her treatment is complete. (Id. ¶ 9.) She claims
that she would then have lost her home solely because of her disability and her need for disabilityrelated care. (Id.) Vignola asked the Condo Association to grant an exception to the list-beforelease requirement—that is, to allow her to rent her unit without first listing it for sale. (Id. ¶ 11.) In
response, the Condo Association requested proof of her disability. (Id. ¶ 12.) Despite her
compliance with that request, the Condo Association denied, and continues to deny, Vignola’s
request for an accommodation. (Id.)
Vignola now seeks a preliminary injunction enjoining the Condo Association from
continuing to deny the requested accommodation, which she claims is a violation of the FHAA.
She contends that an injunction is necessary to preserve the status quo between the parties and to
prevent her from suffering irreparable harm (i.e., the potential loss of her home). The Condo
Association, on the other hand, argues that its list-before-lease rule is causing harm to Vignola, if
at all, not on account of her disability but because she cannot afford to pay for two residences
simultaneously. The Condo Association further argues that its refusal to waive the requirement is
motivated by its fiduciary duty to treat all unit owners equally, not by any discriminatory animus
toward Vignola’s disability.

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DISCUSSION
A preliminary injunction is an extraordinary and drastic remedy that should not be granted
unless the movant carries the burden of persuasion by a clear showing. Mazurek v. Armstrong,
520 U.S. 968, 972 (1997); see also Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of
Am., Inc., 549 F.3d 1079, 1085 (7th Cir. 2008) (“[A] preliminary injunction is an exercise of a
very far-reaching power, never to be indulged in except in a case clearly demanding it.”) (internal
quotation marks omitted). In deciding whether to grant preliminary injunctive relief, a court must,
as a threshold matter, determine whether the moving party has demonstrated: (1) some likelihood
of success on the merits of the underlying claim; (2) the absence of an adequate remedy at law;
and (3) the suffering of irreparable harm if preliminary relief is denied. Abbott Labs. v. Mead
Johnson & Co., 971 F.2d 6, 11 (7th Cir. 1992). If the moving party meets those threshold
requirements, the court then must balance the harm to the non-moving party if preliminary relief
is granted against the harm to the moving party if relief is denied, and also consider the
consequences to the public interest of granting or denying relief. Id. at 11–12. The equitable
balancing analysis employed by the Seventh Circuit involves a “sliding scale” approach,
“weighting harm to a party by the merit of his case.” Cavel Int’l, Inc. v. Madigan, 500 F.3d 544,
547 (7th Cir. 2007).
I.

Likelihood of Success on the Merits

Vignola’s request for a preliminary injunction in this case fails at the first hurdle: she has
not presented evidence sufficient to support a likelihood of a success on the merits of her FHAA
claim.
The FHAA makes it illegal (1) to “discriminate in the sale or rental, or to otherwise make
unavailable or deny, a dwelling to any buyer or renter because of a handicap,” and (2) to

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“discriminate against any person in the terms conditions, or privileges of sale or rental of a
dwelling, or in the provision of services or facilities in connection with such dwelling, because of
a handicap.” 42 U.S.C. §§ 3604(f)(1)-(2). Unlawful discrimination includes “a refusal to make
reasonable accommodations in rules, policies, practices, or services, when such accommodations
may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” 42 U.S.C.
§ 3604(f)(3)(B). To prevail on her reasonable accommodation claim, Vignola must show that the
requested accommodation is reasonable and necessary to afford her an equal opportunity to use
and enjoy her condo unit. See Oconomowoc Residential Programs, Inc. v. City of Milwaukee, 300
F.3d 775, 783 (7th Cir. 2002).
Determining the reasonableness of a requested accommodation requires a highly factspecific inquiry that balances the needs of the parties. Id. at 784. Generally, “[a]n accommodation
is reasonable if it is both efficacious and proportional to the costs to implement it.” Id. (quoting
Vande Zande v. Wis. Dep’t of Admin., 44 F.3d 538, 543 (7th Cir. 1995)). With respect to whether
her requested accommodation is necessary, Vignola must establish that, without it, she will be
denied an equal opportunity to use and enjoy her condo. See Wis. Cmty. Servs., Inc. v. City of
Milwaukee, 465 F.3d 737, 749 (7th Cir. 2006). The term “necessary” is linked to the goal of equal
opportunity, and the Seventh Circuit has made clear that “the ‘equal opportunity’ element limits
the accommodation duty so that not every rule that creates a general inconvenience or expense to
the disabled needs to be modified.” Id. “Instead, the statute requires only accommodations
necessary to ameliorate the effect of the plaintiff’s disability[.]” Id. To enforce this limitation,
courts faced with a potentially discriminatory rule must ask “whether the rule in question, if left
unmodified, hurts ‘handicapped people by reason of their handicap, rather than . . . by virtue of
what they have in common with other people, such as a limited amount of money to spend on

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housing.” Id. (quoting Hemisphere Bldg. Co. v. Vill. of Richton Park, 171 F.3d 437, 440 (7th Cir.
1999)) (emphasis in original).
The problem for Vignola is not the requirement that her requested accommodation be
reasonable, which, as noted above, is usually a fact-intensive inquiry. Rather, her primary
obstacle is her inability to show that the requested accommodation is necessary to allow her an
equal opportunity to use her home. The case law applying the above-referenced limitation to
claims similar to Vignola’s—that is, claims seeking modifications or exceptions to policies
limiting access to property that, on their faces, apply equally to everyone seeking access to the
property regardless of whether they are disabled—is simply not on her side. See, e.g., Good
Shepherd Manor Found., Inc. v. City of Momence, 323 F.3d 557, 561 (7th Cir. 2003) (affirming
the district court’s conclusion that, because the service of water is something that is needed by all
people, the city’s failure to provide water to plaintiffs’ property did not hurt plaintiffs’ residents
by reason of their disability); Riggs v. Howard, 234 F.3d 1273 (7th Cir. 2000) (rejecting the
plaintiff’s reasonable accommodation claim because she did not relate her alleged inability to
obtain an affordable apartment to her status as a disabled person).
Vignola faces a difficult, if not insurmountable, task in attempting to show that the
potential loss of her home is due to her disability as opposed to her lack of financial means to
keep her condo while staying at the rehabilitation facility. It is difficult, at this stage, to see how
Vignola will be able to show that her situation is different from any other individual who while
not disabled must live away from his or her primary residence for an undetermined period of time
and cannot afford to maintain two residences. Does the law entitle Vignola to an accommodation
that would not be available to someone transferred temporarily for work or who must move
temporarily to care for a sick relative? Under her view, it seems that it would.

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Vignola attempts to distinguish those situations from her own by arguing that the
temporarily transferred employee or short-term caregiver would still have a place to live if their
condos sold (i.e., wherever they were currently living), whereas Vignola will have nowhere to go
once her treatment is complete. Thus, she contends, it is her disability-necessitated stay in a
rehabilitation facility that would cause the list-before-lease rule to deprive her of her home. But
this effort to distinguish her situation fails for at least two reasons. First, there is no evidence that
Vignola would have nowhere else to live—for instance, with family or in a retirement home—if
her condo sold. Second, there is no basis to assume that, in the examples cited above, the
individuals’ temporary housing would be available indefinitely. Someone who is transferred for
work may be living in temporary corporate housing. And someone who is caring for, and
presumably living with, a sick relative would be without a place to live if the relative sold his or
her home to move into an in-patient facility or nursing home.
There is no indication in the record that, for example, Vignola would not be permitted to
keep her unit empty during her rehabilitation or, once she is released from the rehabilitation
facility, to have in-home care at the condo to enable her to live there. Put simply, if Vignola could
afford both to stay at the rehabilitation facility and to keep her condo without leasing it, there is
no indication that the Condo Association would take any steps to force her to sell. Thus, the listbefore-lease rule harms her because she has a limited amount of money to spend on housing (as
do most people), not because she is disabled. The Seventh Circuit has made clear that in such
cases there is no duty to modify, or make an exception to, the rule at issue.
In an attempt to overcome this obstacle and show a causal connection between the denial
of her requested accommodation and her disability, Vignola asserts that the application of the listbefore-lease rule in her case is a pretext for discrimination. She contends that the requirement is

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illusory—indeed, that no such requirement exists—because it does not appear in the Condo
Association’s by-laws. However, the by-laws do require the Condo Association’s consent before
a unit may be leased. (See Def. Resp. in Opp. to Mot. for Prelim. Inj. Ex. 1-A at 4, Dkt. No. 37-2.)
And the current “Leasing Request Guidelines” clearly state that prior to requesting permission to
lease a unit, the unit must be listed with the Multiple Listing Services (“MLS”) for a minimum of
one year. (Palombi Aff. ¶¶ 3–4 & Ex. C, Def. Resp. in Opp. to Mot. for Prelim. Inj., Exs. 1, 1-C,
Dkt. Nos. 37-1, 37-6.) The affidavit submitted by the Condo Association President states that the
new Leasing Request Guidelines were adopted during a March 12, 2013 Condo Association
meeting, before Vignola’s situation became an issue. (Id. ¶ 5.) Thus, the list-before-lease
requirement does not appear to be merely illusory. Although it does not appear that the Leasing
Request Guidelines would prohibit the Condo Association from making a special hardship
exception for Vignola, the Court cannot say at this stage that it was required to do so.
Vignola further asserts that although the list-before-lease requirement appears in the
Leasing Request Guidelines, they have not been treated as a clearly adopted policy. In support,
she points to an affidavit prepared by one of her sons, in which he states that when he asked the
Condo Association if his mother could lease her unit, he was not notified of the listing
requirement. (D. Vignola Aff. ¶ 3, Pl. Ev. Sub. in Supp. of Mot. for Prelim. Inj., Ex. C, Dkt. No.
33-4.) Instead, he was told that a “no rental” policy was in effect. (Id.) Vignola also claims that
the list-before-lease rule is not applied consistently or uniformly, as other owners in the building
have been permitted to rent their units without first listing them for sale. She again relies on her
son’s affidavit, in which he states that there are renters on the sixth floor (in Unit 6G) of 151
North Kenilworth and that he has seen other renters in the building as well. (Id. ¶¶ 4, 8.) Another
of Vignola’s sons provided in-court testimony to the same effect, although he clarified that the

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owner of Unit 6G leases individual rooms in her three-bedroom condo, not the entire unit. He also
testified that when his brother informed members of the Condo Association about the renters in
6G during a Condo Association meeting, all but one of them appeared already to have been aware
of the situation.
The Condo Association has objected to the in-court testimony about what happened at its
meeting as hearsay because the son who testified was merely repeating what he had learned from
his brother who had actually attended the meeting. The Court need not decide whether the
testimony is admissible, however, because even accepted at face value it does not indicate that
Vignola is likely to prevail on her claim. Leasing individual rooms in a condo unit is not the same
as leasing the entire unit. Moreover, the son who testified did not know whether the Condo
Association members actually knew about the 6G renters previously or whether the Condo
Association took any action after finding out. Nor did he know whether the owner of 6G had
listed her condo for sale on the MLS prior to leasing rooms or instead asked for and received an
exception to that requirement. And, perhaps most importantly, there is no evidence establishing
that the owner of 6G is not disabled. In sum, Vignola has presented no evidence (other than mere
speculation) suggesting that other, non-disabled unit owners have been permitted to lease their
condos without first listing them for sale.
Finally, Vignola claims that certain statements made by Defendant Park show that the
Condo Association denied the requested exception because it concluded, based on information
provided by her doctor, that she is unlikely ever to return to her condo. But refusing Vignola a
waiver of the list-before-lease rule because she is unlikely ever to return to her home is not the
same as doing so because of her disability. The fact that her disability is the reason she may be
unable to return home does not make the Condo Association’s decision discriminatory. Vignola

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has presented no evidence from which this Court could conclude that the Condo Association
would act differently if the reason for her perceived inability to return home were something other
than her disability. Again, there is nothing to suggest that the Condo Association would make a
different decision if it concluded that a unit owner who had been transferred for work or one who
had moved to care for a sick relative was unlikely to return home.
For the reasons discussed above, Vignola has failed to show the requisite likelihood of
success on the merits of her reasonable accommodation claim, at least as it is currently pleaded.1
Her motion for a preliminary injunction therefore must be denied. See Abbott Labs., 971 F.2d at
11 (if the moving party fails to meet one of the threshold requirements for a preliminary
injunction, a court’s inquiry is over and the injunction must be denied). In reaching this
conclusion, the Court has kept in mind that Vignola is seeking a mandatory injunction—that is,
one that seeks to compel the non-moving party to take a particular action—which is a type of
relief that the Seventh Circuit has cautioned should be viewed cautiously and issued sparingly.
See Jordan v. Wolke, 593 F.2d 772, 774 (7th Cir. 1978); Graham v. Med. Mutual of Ohio, 130
F.3d 293, 295 (7th Cir. 1997). Vignola argues that the preliminary injunction is necessary to
preserve the status quo, which she characterizes as her ownership of the condo. In fact, Vignola is
seeking to compel a change in the status quo (which is actually Vignola living in the rehabilitation

1
As noted above, Vignola’s complaint asserts two additional claims. The first is a claim against
Defendants Park and Kovitz Shifrin Nesbit for their alleged interference with Vignola’s fair housing rights.
That claim is irrelevant to the instant motion for preliminary relief on Vignola’s reasonable
accommodation claim against the Condo Association. The second is a claim against the Condo Association
for its alleged violation of the FHAA’s prohibition on familial discrimination. Vignola alleges that the bylaws unreasonably limit occupancy to two persons per bedroom and that, if she were to lease her home, she
would be forced to comply with that limit (for instance, by having to turn away a couple with a child that is
interested in renting her one-bedroom unit), thereby violating the FHAA. Vignola is not seeking any form
of injunctive relief on that claim, however, so it need not be addressed for purposes of the present motion.

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facility and separately maintaining her currently-uninhabited condo): she is seeking to turn her
owner-occupied unit into a rental unit.
II.

II.

Remaining Preliminary Injunction Factors

The Seventh Circuit has advised that when a district court decides that the moving party
has not satisfied one of the threshold requirements, the court should nonetheless conduct at least a
cursory examination of each preliminary injunction consideration, including the balance of harms.
See Girl Scouts of Manitou Council, Inc., 549 F.3d at 1087. The two remaining threshold
requirements—irreparable harm and lack of an adequate remedy at law—tend to merge. See Kreg
Therapeutics, Inc. v. VitalGo, Inc., No. 11-cv-6771, 2011 WL 5325545, at *5 (N.D. Ill. Nov. 3,
2011) (citing Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 386 (7th Cir. 1984)). That
is because as “[a]n injury is ‘irreparable’ when it is of such a nature that the injured party cannot
be adequately compensated in damages or when damages cannot be measured by any pecuniary
standard.” Id. (citing Meridian Mut. Ins. Co. v. Meridian Ins. Group, Inc., 128 F.3d 1111, 1120
(7th Cir. 1997)). Vignola has a strong case that the potential loss of her home constitutes
irreparable harm for which there is no adequate remedy at law. Indeed, the Seventh Circuit has
held that “a given piece of property is considered to be unique, and its loss is always an
irreparable injury.” United Church of the Med. Ctr. v. Med. Ctr. Comm'n, 689 F.2d 693, 701 (7th
Cir. 1982). At least one court in this District has taken that to mean that “there can be no adequate
remedy at law for loss of a home.” In re Ameriquest Mortgage Co., No. 05-cv-7097, 2006 WL
1525661, at *5 (N.D. Ill. May 30, 2006). This Court is inclined to agree, particularly when the
plaintiff has resided at his or her home for over 20 years, as is the case here.
Turning to the balance of harms analysis, the Court must weigh the irreparable harm that
Vignola would endure without the protection of the preliminary injunction against any irreparable

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harm the Condo Association would suffer if the Court were to grant the requested relief. See Girl
Scouts of Manitou Council, Inc., 549 F.3d at 1086 (citing Abbott Labs., 971 F.2d at 11-12). In
doing so, the Court uses a sliding scale approach: the more likely Vignola is to succeed on her
underlying claim, the less heavily the balance of harms must weigh in her favor; the less likely
she is to succeed, the more heavily the balance of harms must weigh in her favor. See id. The
Court has little doubt that whatever harm the Condo Association would suffer from granting an
exception to the list-before-lease rule and allowing Vignola to rent her unit pales in comparison to
the loss of one’s home.2 This is particularly true given that there has been no representation that
Vignola is delinquent in her obligations to the Condo Association. But no matter how heavily the
balance of harms may weigh in her favor, Vignola has failed to show a likelihood of success on
the merits, and that dooms her preliminary injunction motion.
CONCLUSION
For the reasons stated above, Vignola’s motion for a preliminary injunction (Dkt. No. 6) is
denied.

ENTERED:

Dated: November 2, 2016

__________________________
Andrea R. Wood
United States District Judge

2
The Condo Association argues that Vignola’s harm is not the potential loss of her home but instead the
inability to lease her unit and the financial difficulties she faces as a result. Even accepting that position,
the Condo Association’s claimed harm—potentially having to make exceptions to the rules for everyone—
is speculative and does not outweigh the hardship of Vignola’s financial situation.

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