Smith v. Kittle Property Group, INC.
Filing
56
OPINION AND ORDER: The Court GRANTS Kittle's summary judgment motion on all claims 39 . This order terminates the case. Signed by Judge Damon R Leichty on 1/27/2025. (ash)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
KIONTAY SMITH,
Plaintiff,
v.
CAUSE NO. 3:23cv269 DRL
KITTLE PROPERTY GROUP, INC.,
Defendant.
OPINION AND ORDER
Following her termination from Kittle Property Group, Inc., Kiontay Smith filed a charge
with the Equal Employment Opportunity Commission and then this suit. She alleges that Kittle
discriminated against her by terminating her employment and requiring her to vacate her housing
within seven days. After the court’s motion to dismiss ruling, she maintains claims for race and
sex discrimination under Title VII of the Civil Rights Act and wrongful eviction under the Fair
Housing Act (FHA). Kittle requests summary judgment. The court grants the motion.
BACKGROUND
Kittle Property Group constructs and manages apartment home complexes [40-1 ¶ 3].
Kittle hired Kiontay Smith in February 2021 as a full-time maintenance technician at its
Canterbury House property in Warsaw, Indiana [40-4 Tr. 45-46]. She lived at the property before
working there [id. Tr. 35].
When Ms. Smith began her employment, she signed an addendum to her lease providing
that, “Employees have 7 days to vacate the premises upon termination unless both parties
mutually agree the former employee can continue to reside at the community and they income
qualify to reside there. A new lease is signed with the updated rental rate and employee addendum
removed” [40-8 Tr. 33-34; 40-9]. Employees must sign the addendum to receive a 20 percent
discount on rent, and Ms. Smith received the discount after signing on March 19, 2021 [40-8 Tr.
35-36; 40-9].
In December 2021, while on medical leave, Ms. Smith was involved in two confrontations
with a resident over parking spaces [48-1 ¶ 22, 33-35]. The first happened in early December,
when she returned home from the emergency room to find that her neighbor, a Caucasian female,
had three cars (two of hers and one for a guest) parked in the spaces in front of the building [id.
¶ 19, 22]. Ms. Smith is a bisexual African-American woman [40-4 Tr. 134]. There weren’t any
available parking spaces near the building; and, because Ms. Smith was ill and with her infant, she
wanted to park close to the building [48-1 ¶ 22-24]. She says she knocked on her neighbor’s door
around 8:00 p.m. and asked her to move one of her vehicles, and her neighbor moved a car [id.
¶ 26, 29]. She says no one, including her supervisor, Stephanie Beckel, told her that her behavior
was out of line or that there were no assigned parking spaces [id. ¶ 31-32].
On December 16, Ms. Smith, still sick and again with her child, returned home to the
same neighbor parked in three parking spaces [id. ¶ 33]. She says she went to her neighbor’s
apartment around 8:30 p.m. to ask her to move a car, but her neighbor yelled and cussed at her
[id. ¶ 35-36]. Ms. Smith reports complaining to the office the next day, but she says her supervisor
did not tell her that her behavior was inappropriate or otherwise discipline her [id. ¶ 39-42].
Ms. Smith returned to work from medical leave on December 20, 2021 [id. ¶ 45]. That
morning, Michelle Clevenger, the regional manager, told Ms. Smith that she was terminated and
had her escorted out of the office by two Warsaw police officers [id. ¶ 49, 57; 40-8 Tr. 11]. Ms.
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Smith claims that Ms. Clevenger didn’t explain the firing, only telling her that as a Kittle employee,
she needed to act like one [48-1 ¶ 50]. Ms. Smith was also told that morning that she had seven
days to vacate her apartment; and, when she reached out to human resources about it, they told
her Ms. Clevenger had made the decision [id. ¶ 52, 56]. She and her wife and son had to move
out of their apartment Christmas week [id. ¶ 59].
Kittle tells a different story. The property manager and supervisor, Ms. Beckel, informed
the company that Ms. Smith had been making threats of gun violence to other residents at the
property [40-8 Tr. 29; 40-11 Tr. 38]. The company says Ms. Smith told Ms. Beckel that the
neighbor was “lucky” that Ms. Smith didn’t have the gun she carries because she didn’t know
what would have happened if things had gotten “ugly” [40-2]. The regional director, Ms.
Clevenger, noted that Ms. Smith made essentially the same gun comment “at least 3 different
times in 3 different ways” [id.]. The neighbor told Ms. Beckel that she heard Ms. Smith tell another
neighbor that she was going to “beat her ass” [id.]. The employee handbook states clearly that
the company “does not allow behavior at any time that threatens, intimidates, bullies, or coerces
another employee, a resident, or a member of the public” [48-12 at KPG000213].
Ms. Beckel reported these incidents to Ms. Clevenger, who informed the regional vicepresident, Telisia Amaning [40-8 Tr. 29; 40-11 Tr. 8; 48-10]. After discussing it with Ms.
Clevenger, Ms. Amaning then recommended termination to senior vice-president Steve Lavery
[40-11 Tr. 58-59]. Mr. Lavery made the final decision to terminate Ms. Smith, and he testified
that no employee at Kittle has ever threatened gun violence against residents without being
dismissed [40-13 ¶ 3-4].
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Ms. Smith denies the threats [48-1 ¶ 43] and alleges the company wrongfully terminated
her based on her race and sex, including sexual orientation, in violation of Title VII and
wrongfully evicted her in violation of the FHA. Kittle argues that no genuine triable issue remains,
and that the company is entitled to judgment as a matter of law.
STANDARD
Summary judgment is warranted when “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The non-moving party must present the court with evidence on which a reasonable jury
could rely to find in her favor. Weaver v. Speedway, LLC, 28 F.4th 816, 820 (7th Cir. 2022). The
court must construe all facts in the light most favorable to the non-moving party, viewing all
reasonable inferences in that party’s favor, Bigger v. Facebook, Inc., 947 F.3d 1043, 1051 (7th Cir.
2020), and avoid “the temptation to decide which party’s version of the facts is more likely true,”
Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003); see also Joll v. Valparaiso Cmty. Schs., 953 F.3d 923,
924-25 (7th Cir. 2020).
In performing its review, the court “is not to sift through the evidence, pondering the
nuances and inconsistencies, and decide whom to believe.” Waldridge v. Am. Hoechst Corp., 24 F.3d
918, 920 (7th Cir. 1994). Instead, the “court has one task and one task only: to decide, based on
the evidence of record, whether there is any material dispute of fact that requires a trial.” Id. The
court must grant summary judgment when no such genuine factual issue—a triable issue—exists
under the law. Luster v. Ill. Dep’t of Corr., 652 F.3d 726, 731 (7th Cir. 2011).
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DISCUSSION
A. Title VII.
Title VII prohibits a qualifying employer from “discharg[ing] any individual . . . because
of such individual’s race [or] . . . sex.” 42 U.S.C. § 2000e-2(a)(1). The law uses a holistic approach
that poses a singular question at summary judgment: whether the evidence would permit a
reasonable factfinder to conclude that Ms. Smith’s sex, including sexual orientation, or race
caused her termination. See Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016). The
court considers the evidence as a whole. Id.
That said, “the well-known and oft-used McDonnell Douglas framework for evaluating
discrimination remains an efficient way to organize, present, and assess evidence in discrimination
cases.” Johnson v. Advoc. Health & Hosps. Corp., 892 F.3d 887, 894 (7th Cir. 2018); see McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). “There is no magic to this test; it is merely one
way of culling the relevant evidence needed to demonstrate whether a reasonable factfinder could
conclude that an employer engaged in an adverse employment action based on the plaintiff’s race
or other proscribed factor.” Johnson, 892 F.3d at 894.
Under the McDonnell Douglas framework, Ms. Smith must demonstrate that (1) she is a
member of a protected class, (2) she met Kittle’s legitimate expectations, (3) she suffered an
adverse employment action despite her reasonable performance, and (4) similarly situated
employees who were not members of her protected class were treated more favorably. See
McDaniel v. Progress Rail Locomotive, Inc., 940 F.3d 360, 368 (7th Cir. 2019) (applying framework
post-Ortiz); see also Cunningham v. Austin, 2025 U.S. App. LEXIS 138, 8 (7th Cir. Jan. 3, 2025)
(proceeding under the McDonnell Douglas framework because the parties did). If she meets her
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burden on each element of her prima facie case, the burden shifts to Kittle “to articulate a
legitimate, nondiscriminatory reason for the adverse employment action;” if Kittle carries that
burden, the burden shifts back to Ms. Smith to present evidence that Kittle’s explanation is
pretextual. McDaniel, 940 F.3d at 368.
Kittle does not contest that Ms. Smith is a member of a protected class, that she suffered
an adverse employment action, or that, outside of the alleged threat, she met legitimate
employment expectations. Instead, Kittle contends only that Ms. Smith hasn’t identified a
similarly situated coworker outside her protected class that Kittle treated differently. Ms. Smith
argues both that she has comparators and that Kittle’s reason for terminating her was pretextual.
1. Comparators.
For Ms. Smith to make a prima facie case using comparators, she must designate evidence
for a reasonable jury to find that Kittle treated similarly situated employees outside her protected
class more favorably. McDaniel, 940 F.3d at 369 (“As [the plaintiff] has not identified any similarly
situated employees to allow a factfinder to conduct a meaningful comparison, [her] prima facie
case for discrimination fails.”). Similarly situated employees must be “directly comparable” to the
plaintiff in all material respects. Coleman v. Donahoe, 667 F.3d 835, 846 (7th Cir. 2012).
The comparator prong aims “to eliminate other possible explanatory variables, such as
differing roles, performance histories, or decision-making personnel, which helps isolate the
critical independent variable—discriminatory animus.” McDaniel, 940 F.3d at 368 (quotations
omitted). Ms. Smith must show at a minimum that the comparators “(1) dealt with the same
supervisor, (2) were subject to the same standards, and (3) engaged in similar conduct without
such differentiating or mitigating circumstances as would distinguish their conduct or the
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employer’s treatment of them,” id. at 369 (quotations and citation omitted), though this isn’t a
“hard and fast test,” Johnson, 892 F.3d at 895.
“Whether a comparator is similarly situated is typically a question for the fact finder,
unless, of course, the plaintiff has no evidence from which a reasonable fact finder could conclude
that the plaintiff met [her] burden on this issue.” McDaniel, 940 F.3d at 369. The critical question
is whether the plaintiff has shown that she would have kept her job, had she had she not been a
member of the protected class, if “everything else had remained the same.” Nigro v. Ind. Univ.
Health Care. Assocs., 40 F.4th 488, 491 (7th Cir. 2022). The analysis requires a “common sense
examination.” Perez v. Thorntons, Inc., 731 F.3d 699, 704 (7th Cir. 2013).
Ms. Smith advances two arguments. First, she says her replacement was a white male,
which she argues establishes a prima facie case. She cites Echols v. Select Bevs., Inc., 64 F. Supp.2d
807, 813 (S.D. Ind. 1998), for the proposition that she can establish her opening case by pointing
to her replacement as “a person of a different race.” But in Echols, the plaintiff established a prima
facie case by pointing to his replacement and that a similarly situated individual outside the
protected class was treated differently, not just his replacement’s identity. The fact that “one’s
replacement is of another race, sex, or age may help to raise an inference of discrimination, but
it is neither a sufficient nor a necessary condition.” Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159
(7th Cir. 1996). The question is “whether the plaintiff has established a logical reason to believe
that the decision rests on a legally forbidden ground.” Id. Stating her replacement’s identity alone
falls short of satisfying Ms. Smith’s burden.
Second, Ms. Smith points to three comparators. She identifies Scott Flannery, whom she
says was insubordinate and had an allegedly racist bumper sticker on his car; Dwayne Alexander,
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whom she says entered into a resident’s home while she was sleeping; and Michael Loper, whom
she says was insubordinate. Each of these comparators, she says, are Caucasian, heterosexual
men, and none were immediately terminated as she was. Kittle denies that these three men are
similarly situated. The court agrees with Kittle.
First, none of Ms. Smith’s suggested comparators filled the same role under the same
supervisors. Mr. Flannery and Mr. Alexander worked as maintenance supervisors, a different role
than Ms. Smith’s maintenance technician position [54-1 Tr. 55; 54-2 ¶ 5; 54-3 Tr. 28]. Kittle
argues that this is critical difference. The law emphasizes that “supervisors usually make poor
comparators for plaintiffs claiming employment discrimination,” but “usually does not mean
always.” Rodgers v. White, 657 F.3d 511, 517-18 (7th Cir. 2011). Supervisors aren’t good
comparators in cases with promotional disputes or dissimilar job duties, but “when uneven
discipline is the basis for a claim of discrimination, the most-relevant similarities are those
between the employees’ alleged misconduct, performance standards, and disciplining
supervisor.” Id. at 518. When a plaintiff and supervisor are “accused of making similar mistakes,
[are] equally responsible for avoiding those mistakes, and [are] disciplined by the same supervisor,
the plaintiff can make a realistic comparison with h[er] supervisor for purposes of establishing a
prima facie case of discrimination.” Id.
This is a case focused on conduct resulting in termination, so the initial difference in job
titles isn’t as persuasive as it might otherwise be; instead, the court looks beyond titles to the
mistakes and ultimate supervisors. The comparators don’t withstand this more detailed
examination. Kittle doesn’t provide evidence that Mr. Flannery didn’t have the same ultimate
supervisors as Ms. Smith, but Mr. Alexander and Mr. Loper didn’t. Mr. Alexander’s misconduct
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occurred before Ms. Clevenger and Ms. Amaning, two key figures in Ms. Smith’s dismissal, were
in management, and neither even knew Mr. Alexander [54-3 Tr. 28; 54-4 Tr. 34]. Mr. Lavery, Ms.
Clevenger, and Ms. Amaning didn’t have the same titles when Mr. Loper’s employment ended
either [40-11 Tr. 12; 40-12 Tr. 7], although Mr. Loper was working as a maintenance tech like
Ms. Smith [48-2 ¶ 8]. Ultimately, none of Ms. Smith’s comparators served in the same role and
had the same supervisors, so initially all the comparators are incongruous on some level.
The most significant difference between Ms. Smith and these comparators, however, isn’t
their roles or their supervisors, but whether they were “engaged in similar conduct without []
differentiating or mitigating circumstances.” McDaniel, 940 F.3d at 369. Her claim fails if none
of her comparators were “engaged in conduct of comparable seriousness.” Nigro, 40 F.4th at 491
(quoting Reives v. Ill. State Police, 29 F.4th 887, 892 (7th Cir. 2022)). The court must ask whether a
reasonable jury, on this record, could look at these comparators’ conduct and find it similar to
what Kittle believes Ms. Smith did here. While maintaining her denial that she ever made threats,
Ms. Smith admits that Ms. Clevenger reported that she had made threats of gun violence to a
resident to the regional vice president [47 ¶ 26], and she points to no evidence suggesting that
Mr. Lavery, the ultimate decisionmaker, would have had reason to believe that information was
false [id. ¶ 38]. She also makes no arguments and provides no evidence to indicate that Ms.
Amaning or Ms. Clevenger would have known or believed the report to be false. That leaves the
undisputed conclusion that the decisionmakers had information, whether ultimately true or not,
that Ms. Smith had threatened a resident with a gun.
A reasonable jury could not look to Ms. Smith’s suggested comparators and find them to
have engaged in similar conduct while receiving more favorable treatment, not forgetting the
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employee handbook’s statement that the company “does not allow behavior at any time that
threatens, intimidates, bullies, or coerces another employee, a resident, or a member of the
public” [48-12 at KPG000213]. See Nigro, 40 F.4th at 491-92 (employee who fails this prong has
“no way to isolate the critical independent variable—discriminatory animus”). First, Ms. Smith
points to Mr. Flannery, whom she says was “insubordinate” and had a “racist bumper sticker on
his truck” [50 at 11-12]. Ms. Clevenger, the supervisor, directed Mr. Flannery to cover the bumper
sticker at work, but she didn’t address any of the other concerns [48-3 ¶ 10-12]. Management
undoubtedly handled the problems differently, but no reasonable jury could conclude that
insubordination and an inappropriate bumper sticker mirrored a threat of gun violence; those are
not a “comparable set of failings.” Rodgers, 657 F.3d at 520; see also Jones v. Union Pac. R.R., 302
F.3d 735, 745 (7th Cir. 2002) (altercation with fellow employee and insubordination was an
“unusable comparison”).
Second, Ms. Smith points to Mr. Alexander. She accuses Mr. Alexander of entering the
home of another resident while she was sleeping. Ms. Smith doesn’t point to any record evidence
about Mr. Alexander. 1 Instead, she merely asserts that he was placed on a paid suspension while
the company conducted a full investigation before terminating him in her brief. Ms. Smith doesn’t
have to prove discrimination at this stage, and the court takes all inferences in the light most
favorable to her, but without any evidence at all regarding Mr. Alexander, a reasonable jury has
no basis to evaluate whether he is an appropriately similar comparator, much less to conclude
that he is one. See Barbera v. Pearson Educ., Inc., 906 F.3d 621, 631 (7th Cir. 2018) (plaintiff needed
1 The only mention of Mr. Alexander is that he was present in a meeting to discuss Mr. Loper’s performance issues
[48-2 ¶ 10]. The company acknowledged that Mr. Alexander was discharged for cause, but that is the only
information the court has found on the record [48-14 at 3].
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to present evidence of discrimination); see also McCann v. Badger Mining Corp., 965 F.3d 578, 592
(7th Cir. 2020) (plaintiffs must present affirmative evidence to defeat summary judgment).
Third, Ms. Smith targets Mr. Loper, who “excessively used his phone while he was
supposed to be working,” didn’t work when he was supposed to, and yelled and threw keys at a
supervisor during a meeting [48-2 ¶ 9-10]. Once again, no reasonable jury could find this
comparable to a threat of gun violence. See Rodgers, 657 F.3d at 517. Mr. Loper’s job performance
and respect for supervisors left much to be desired on this record, but it doesn’t present the kind
of immediate concern as a threat of violence. This is not conduct of comparable seriousness. See
Coleman, 667 F.3d at 850-51 (threats of violence similar); Neal v. Ind. Gaming Co., L.P., 2009 U.S.
Dist. LEXIS 121630, 27-28 (S.D. Ind. Dec. 31, 2009) (threat of violence different from
disciplinary records).
Ms. Smith cannot point to any other employees who made threats of gun violence and
were allowed to remain employed [47 ¶ 36] to contradict Mr. Lavery’s assertion that Kittle has
never treated anyone accused of making a threat of gun violence differently [40-13 ¶ 4]. And she
doesn’t designate any evidence of comparable conduct being treated differently. She cannot
establish a prima facie case of discrimination based on comparator analysis.
2. Pretext.
Nor can she establish for a reasonable jury that Kittle’s reason for firing her—reported
threats of gun violence—was pretextual. When analyzing pretext, “[t]he question is not whether
the employer’s stated reason was inaccurate or unfair, but whether the employer honestly believed
the reasons it has offered to explain the discharge.” Perez, 731 F.3d at 708. The “question is never
whether the employer was mistaken, cruel, unethical, out of his head, or downright irrational in
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taking the action for the stated reason, but simply whether the stated reason was his reason: not
a good reason, but the true reason.” Forrester v. Rauland-Borg Corp., 453 F.3d 416, 418 (7th Cir.
2006) (emphasis omitted). Pretext requires a “deliberate falsehood,” but an “honest mistake,
however dumb, is not” pretextual. Id. at 419. The court doesn’t look to the factual basis of the
employer’s belief; instead, the “only concern in reviewing an employer’s reasons for termination
is the honesty of the employer’s beliefs.” Id. (quoting Balderston v. Fairbanks Morse Engine Div., 328
F.3d 309, 323 (7th Cir. 2003)).
In short, if the decisionmaker believed, rightly or wrongly, that Ms. Smith made threats of
gun violence, the reason wasn’t pretextual. Naik v. Boehringer Ingelheim Pharms., 627 F.3d 596, 601
(7th Cir. 2010). The pretext analysis “focuses only on what the decisionmaker, and not anyone
else, sincerely believed.” Little v. Ill. Dep’t of Revenue, 369 F.3d 1007, 1015 (7th Cir. 2004). Ms.
Smith bears the burden of providing evidence of pretext. Hague v. Thompson Distrib. Co., 436 F.3d
816, 824 (7th Cir. 2006); accord Cunningham, 2025 U.S. App. LEXIS 138 at 11. It is a “high
evidentiary bar.” Riley v. Elkhart Cmty. Sch., 829 F.3d 886, 894 (7th Cir. 2016).
Ms. Smith first disputes the underlying reason for termination—the fact that she made a
threat—not whether decisionmakers at Kittle actually believed it. She invites the court to evaluate
the case based on a showing that Kittle’s reason was “unworthy of credence,” citing Gordon v.
United Airlines, Inc., 246 F.3d 878, 888 (7th Cir. 2001), but this was explicitly rejected as a test in
Forrester, 453 F.3d at 418-19 (saying this would “tacitly effect a fundamental change in settled
law”). The court won’t use a long-rejected test to evaluate whether Ms. Smith actually made the
threat here (nor on this record could the reason be called unworthy of any credence). The court’s
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only job is determining whether she has designated evidence for a reasonable jury to conclude
that the decisionmakers at Kittle did not believe that she had threatened a resident.
Ms. Smith next argues that the reason for discharging her was pretextual because Kittle
treated individuals outside her protected class more favorably and that Kittle gave shifting reasons
for terminating her. She claims that she has “presented specific evidence” of pretext, but the
court struggles to see what her brief claims, and she provides no assistance. The court has already
determined that Ms. Smith hasn’t presented the court with any similarly situated individuals who
were treated differently after comparable behavior, and Ms. Smith gives the court no reason to
reconsider that analysis.
Ms. Smith correctly notes that a jury could “reasonably infer pretext from an employer’s
shifting or inconsistent explanations for the challenged employment decision.” Appelbaum v.
Milwaukee Metro. Sewerage Dist., 340 F.3d 573, 579 (7th Cir. 2003). The problem for Ms. Smith here
is that Kittle has maintained throughout the litigation that it terminated her employment due to
reports that she had threatened another resident. This directly contrasts with Appelbaum, where
the defendant cited performance initially before saying at trial that it played “zero role” in the
plaintiff’s termination. Id. Had Kittle initially claimed to terminate Ms. Smith for performance
and then pivoted to its concern about a threat, perhaps the analysis might change, but Ms. Smith
doesn’t point to any evidence that Kittle changed its position during the litigation or after her
termination. She notes that months before her termination, Ms. Clevenger wanted to fire her for
not being a good worker, but she wasn’t fired then. She was fired for threats of gun violence [408 Tr. 29]. No reasonable jury could conclude that Ms. Clevenger’s statement from months earlier
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was truly the reason for firing rather than the reported threat, particularly when the ultimate
decision was made by someone much higher up in the company.
Ms. Smith also argues that Kittle has wavered on who the ultimate decisionmaker was.
She claims the company initially said that Ms. Amaning, Ms. Clevenger, and Mr. Lavery all made
the decision in its EEOC position statement, before claiming in its interrogatory answers that
only Ms. Amaning and Ms. Clevenger made the decision, and to now saying Mr. Lavery made
the decision. Kittle clarifies that all three had roles in the process, that Ms. Clevenger and Ms.
Amaning made recommendations to terminate, and Mr. Lavery made the final decision [40-12
Tr. 16-17]. Nothing strikes as so inconsistent that a reasonable jury could find this to be evidence
that the reason behind her termination was pretextual. In fact, Mr. Lavery testified that he didn’t
even know Ms. Smith’s race or sexual orientation when he made the decision to terminate her,
undermining any idea of pretext [id. Tr. 26]. Ms. Smith doesn’t provide any evidence for a jury to
doubt that the decisionmakers believed that she had threatened a resident. She hasn’t met her
“high evidentiary bar.” Riley, 829 F.3d at 894.
Ms. Smith has not established a prima facie case of discrimination, nor has she pointed to
anything that would allow a reasonable jury to conclude that Kittle’s reason for firing her was
pretextual. The court likewise has examined this record holistically to determine whether the
record would “permit a reasonable factfinder to conclude that [her] race, ethnicity, sex, religion,
or other proscribed factor caused the discharge.” Ortiz, 834 F.3d at 765. Nothing tends to overlay
a legitimate decision to terminate someone for reports of threatened gun violence with a
discriminatory intent, or demonstrate to a reasonable jury that the company treated Ms. Smith
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differently based on such reports as compared to others who were a different race, gender, or
sexual orientation. The court must grant summary judgment for Kittle on her Title VII claims.
B. Fair Housing Act (FHA).
Ms. Smith brings multiple claims under the FHA, which Congress passed so that “no one
is denied the right to live where they choose for discriminatory reasons.” Bloch v. Frischolz, 587
F.3d 771, 776 (7th Cir. 2009). She cites both 42 U.S.C. § 3604(a) and § 3604(b), and then also
§ 3167. Although the parties debate whether Ms. Smith pleaded a § 3167 claim, the court assumes
she has properly pleaded it because her claim fails on the merits.
Section 3604(a) makes it unlawful for an entity “[t]o refuse to…rent…or otherwise make
unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status,
or national origin.” 42 U.S.C. § 3604(a). It applies even after someone has acquired the property
and covers discriminatory evictions. Watters v. Homeowners’ Ass’n, 48 F.4th 779, 785 (7th Cir. 2022).
Section 3604(b) makes it unlawful for an entity “[t]o discriminate against any person in the terms,
conditions, or privileges of sale or rental of a dwelling…because of race, color, religion, sex,
familial status, or national origin.” 42 U.S.C. § 3604(b). These sections “prohibit discriminatory
evictions.” Bloch, 587 F.3d at 782.
Ms. Smith also cites § 3167, which “reaches a broader range of post-acquisition conduct,”
including “coercion, intimidation, threats, and interference.” Id. To prevail on this particular
claim, she must show that “(1) she is a protected individual under the FHA, (2) she was engaged
in the exercise or enjoyment of her fair housing rights, (3) the defendants coerced, threatened,
intimidated, or interfered with the plaintiff on account of her protected activity under the FHA,
and (4) the defendants were motivated by an intent to discriminate.” Bloch, 587 F.3d at 783.
15
The debated prerequisite to her claims is whether a reasonable jury could find that Kittle
was motivated by an intent to discriminate. The law treats the FHA analysis much the same as
Title VII. See Watters, 48 F.4th at 788 (citing cases). She can establish a discriminatory intent
“through the inferential burden shifting method known as the McDonnell Douglas test.” Kormoczy
v. Sec’y, United States Dep’t of Hous. & Urban Dev., 53 F.3d 821, 823-24 (7th Cir. 1995). 2 “[O]nce
the plaintiff demonstrates disparate treatment…a defendant must prove by a preponderance of
the evidence that it would have made the same decision absent the impermissible factor.” Id. at
824. Prophylactically, the court also considers the record holistically to see whether a reasonable
factfinder could find that Kittle acted with discriminatory intent.
Kittle concedes that Ms. Smith belongs to two protected classes and experienced an
adverse action (her eviction), but it argues that, like her Title VII claim, she cannot point to any
similarly situated individuals outside her protected class that Kittle treated differently. Both FHA
provisions require Ms. Smith to provide evidence demonstrating discriminatory intent. Bloch, 587
F.3d at 784; see also Latimore v. Citibank Fed. Sav. Bank, 151 F.3d 712, 715 (7th Cir. 1998). The
McDonnell Douglas test allows her to do this by pointing to similarly situated individuals who were
treated differently. Kormoczy, 53 F.3d at 823-24.
Ms. Smith relies on comparators to argue that under McDonnell Douglas she has shown
discrimination and that Kittle provided only a pretextual reason for evicting her. 3 She points to
834 F.3d at 765, established that courts should not bifurcate the evidence into indirect
and direct buckets, the court proceeds under McDonnell Douglas without dividing the evidence the way Ortiz forbids.
See Watters, 48 F.4th at 789 (applying the analysis in the FHA context).
2 Understanding that Ortiz,
3 Ms. Smith’s brief simply concludes, without more explanation, that all three individuals were terminated, but only
Ms. Smith was told to vacate the premises within seven days, “[t]hus the reason for evicting Ms. Smith is pretext.”
This is not an argument that Kittle’s reason was pretextual, but merely a conclusion drawing on her view of the
comparator analysis, so the court won’t restate its prior pretextual analysis beyond analyzing the comparators.
16
two Kittle employees (Michael Loper and Josh Neal) who were also residents—both of whom
she claims are male, Caucasian, and heterosexual. From the beginning, even Ms. Smith recognizes
one key difference between her and these individuals: Mr. Loper and Mr. Neal both resigned, 4
whereas she was terminated. Nevertheless, Ms. Smith names these two as FHA comparators, and
she says both were allowed to stay in their residences, though Kittle’s policy should have resulted
in their evictions within the seven-day lease agreement period.
Kittle responds that these are not true comparators. The court agrees. Ms. Smith cannot
point to any other examples of employees threatening gun violence, and she doesn’t even provide
the court with any examples of individuals Kittle terminated. This is a key missing piece from
Ms. Smith’s case—she must provide evidence for a reasonable jury to find that her comparators
“engaged in similar conduct without such differentiating or mitigating circumstances as would
distinguish their conduct or the employer’s treatment of them.” McDaniel, 940 F.3d at 369. Mr.
Neal gave his two weeks’ notice and failed to complete the two weeks [48-2 ¶ 12-13]. Mr. Loper
yelled expletives and threw his keys at a supervisor before not putting in his two weeks [id. ¶ 1011]. Neither were eligible for rehire, and neither signed a new lease agreement after their
employment ended [id. ¶ 11, 13, 14]. Ms. Smith argues that because the company chose not to
apply the lease addendum requiring Mr. Neal or Mr. Loper to vacate within seven days, she has
established Kittle’s discriminatory intent.
Ms. Smith jumps to the result—whether they were allowed to stay past the seven-day
mark—without considering the conduct. Improper resignation protocol and insubordination are
4 The employee handbook deems employees terminated when they resign or fail to report to work for three
consecutive days [48-12 at KPG000206], so Ms. Smith is correct that these employees were technically terminated.
The court highlights resignation only as a distinguishing factor from being fired for inappropriate conduct.
17
markedly different from threats of gun violence; and, whether Ms. Smith actually made the threats
or not, the company received reports that she had made those threats three different ways [4012 Tr. 17; 48-13]. And Ms. Smith points to no evidence suggesting that the decisionmakers
doubted the reports.
Kittle also argues that Mr. Loper and Mr. Neal both dealt with different decisionmakers
than Ms. Smith. McDaniel, 940 F.3d at 369. Ms. Smith denies this, and she suggests the company
has no decisionmakers. The provision in the employee lease, which Ms. Smith signed, says
employees “have 7 days to vacate the premises upon termination, unless both parties mutually
agree the former employee can continue to reside at the community and they income qualify to
reside there” [48-4 at KPG000109]. This addendum presupposes mutual agreement. There is no
dispute the company used the provision to evict Ms. Smith following her termination. After all,
the human resources director, Alysia Coulmont, sent Ms. Smith the “Notice to Vacate” on
December 27, 2021 [48-9]. The real dispute is over whether the circumstances are comparable.
Kittle explains that Mr. Neal isn’t an adequate comparator for eviction because he lived
in a qualified tax unit not governed by a standard lease agreement, so the company couldn’t
require him to vacate [54-2 ¶ 8]. This makes him differently situated than Ms. Smith because the
provision the company used to terminate Ms. Smith’s lease didn’t apply—the company didn’t
choose not to use the provision; it didn’t have the option. That leaves Mr. Loper as the only
employee with the same addendum. Ms. Amaning, the decisionmaker for Ms. Smith’s eviction,
didn’t allow exceptions to the policy, so Ms. Smith was told to vacate [49-3 Tr. 24]. She was not
the regional vice-president when Mr. Loper resigned in 2020, so her practice of not allowing
exceptions wasn’t in place, and a different regional vice-president may have approached the policy
18
differently [40-11 Tr. 12]. 5 Different supervisors, and thus different practices, particularly when
it rests on both parties reaching an agreement, make Mr. Loper a dissimilar comparator, even
beyond the different conduct here. McDaniel, 940 F.3d at 369.
Kittle provides a legitimate reason for evicting Ms. Smith. Even examining the record
holistically, she doesn’t point to any evidence for a reasonable jury to find discriminatory motive
or intent in action, whether in the decision to evict or not to reach mutual agreement about
continued residency. She hasn’t met her burden to establish discrimination under the FHA, so
the court grants summary judgment for Kittle on these claims too.
CONCLUSION
Accordingly, the court GRANTS Kittle’s summary judgment motion on all claims [39].
This order terminates the case.
SO ORDERED.
s/ Damon R. Leichty
Judge, United States District Court
January 27, 2025
5 Ms. Amaning was the regional vice-president overseeing Ms. Smith’s region (Region 2, encompassing CHA-
Warsaw LLP) between mid-2021 and early 2023 [40-11 Tr. 12]. Mr. Loper resigned in 2020 [40-12 Tr. 21].
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