Fair Housing Center of Metropolitan Detroit v. Jewish Senior Life of Metropolitan Detroit, Inc.
OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IN PART AND DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IN PART 43 . Signed by District Judge Gershwin A. Drain. (TBan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
FAIR HOUSING CENTER OF
Case No. 16-cv-10672
UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN
JEWISH SENIOR LIFE OF
METROPOLITAN DETROIT, INC.,
JAS NON PROFIT HOUSING
CORPORATION VI, and JEWISH
APARTMENT AND SERVICES,
UNITED STATES MAGISTRATE JUDGE
R. STEVEN WHALEN
OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT IN PART AND DENYING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT IN PART 
This consolidated action arises out of alleged housing discrimination. Pending
before the Court is Defendants’ Motion for Summary Judgment . The Parties
have fully briefed the issues and a hearing was held on May 15, 2017. For the reasons
that will follow, the Court GRANTS Defendants’ Motion for Summary Judgment
IN PART and DENIES Defendants’ Motion for Summary Judgment IN PART.
This action is brought by the Fair Housing Center of Metropolitan Detroit
(hereinafter “Plaintiff” or “FHC”). Defendant Jewish Senior Life of Metropolitan
Detroit, Inc. is a non-profit corporation (hereinafter “JSL”). Dkt. No 44, p. 2 (Pg. ID
273). JSL is the sole member of co-Defendants Jewish Apartment and Services, Inc.
(hereinafter “JAS”) and JAS Non Profit Housing Corporation VI. Id. JAS employs
the staff who operate senior housing communities. Id. The community at the center
of this action is the Meer Apartments, staffed by JAS and controlled by JSL. Id.
The factual basis for the racial and national origin claims turns on a series of
tests conducted by the Plaintiff. The factual basis for the religious discrimination
claim turns on a Kosher kitchen and dining facility operated within the Meer
Test # 1 (Frederick Simpson/ Michael Martin)
According to the Plaintiff, on June 4, 2013 at 10:36AM, Frederick Simpson
visited the Meer Apartments. Dkt. No. 48, p. 12 (Pg. ID 1373). Simpson, who is an
African American male, inquired about the availability of a one or two-bedroom
unit, stating that he would like to move in within thirty days. Id. Michael Sorna, a
Meer employee, informed Simpson that there were no vacancies in one or twobedroom units. Id. When Simpson asked for a tour, Mr. Sorna declined, stating that
he had a move-in that precluded a tour at that time. Id.
Meer is a Housing Program pursuant to the Michigan State Housing
Development Authority. Dkt. No. 48, p. 10 (Pg. ID 1391). Accordingly, it is funded
at least in part by public taxpayers dollars and is used for low and moderate income
persons. Id. Hechtman Apartments are located near Meer. Hechtman Apartments are
subsided by the Department of Housing and Urban Development. Id., p. 14 (Pg. ID
1375). Upon leaving Meer, Mr. Sorna encouraged Simpson to apply with Hechtman.
At 2:30PM on the same day, Michael Martin, a Caucasian male, visited the
Meer Apartments. Id. Martin was given a tour and encouraged to move in. Id. Mr.
Sorna showed Martin three apartments. Id. During this time, there was always at
least one vacant one-bedroom apartment. Id., p. 15 (Pg. ID 1376). Martin was never
referred to Hechtman. Id.
Test # 2 Michael Simmons/Tim Daniel
On June 24, 2013, Michael Simmons, an African American male, visited the
Meer Apartments. Id. Simmons informed Marcia Middleton, a Meer administrator,
that he was interested in a two-bedroom unit. Id. Simmons was told that there was a
waiting list for the two-bedroom units, but did not discuss one-bedroom units. Id.
On June 25, 2013, Tim Daniel, a Caucasian male, visited Meer. Id., p. 16 (Pg.
ID 1377). Daniel informed Mr. Sorna that he was looking for a one or two-bedroom
unit. Id. Mr. Sorna informed Daniel that there were three one-bedroom units
available, gave him a tour of the complex, and offered to show him a one-bedroom
Test # 3 Ikram Bashi/Yvette Roome
On September 13, 2013 at 3:30PM, Ikram Bashi, a Chaldean-American born
in Iraq, visited the Meer Apartments. Id. Bashi informed a Meer employee that she
was looking for a unit for her father. Id., p. 17 (Pg. ID 1378). The employee informed
Bashi that she did not have time to give her a tour. Id. After requested, the employee
gave Bashi information about Meer, including a business card, and told Bashi to call
for an appointment. Id.
That same day, at 5:15PM, Yvette Roome, an American-born Caucasian
woman, visited Meer Apartments and received a ten-minute tour, including a tour of
a one-bedroom apartment. Id. Without asking, Roome received information about
Meer. Id. According to Roome, she called before she arrived at Meer to let staff
know that she was stuck in traffic. Dkt. No. 44-22, p. 23 (Pg. ID 553). An on-site
security guard told Roome that although the staff was leaving, Roome could still
come in for information. Id. It was this security guard that greeted and gave Roome
a tour. Id.
Test # 4 Victoria Bobbish Ward/Patricia Davis
On October 24, 2013 at 9:16AM, Ward, a Caucasian female, visited the Meer
Apartments. Id. She informed Mr. Sorna that she was looking for housing for her
father. Id. Mr. Sorna informed Ward that there were several one-bedroom apartments
available, and mentioned that there were subsidies available. Id., p. 18 (Pg. ID 1739).
Before leaving, Mr. Sorna referred Ward to Marcia Mittleman for further
information and literature about Meer. Id.
That same day, at 12:05PM, Patricia Davis, a sixty-eight year-old African
American female, visited Meer. Id. She informed Mr. Sorna that she was looking for
housing for her father and asked about both one and two-bedroom apartments. Id.
Mr. Sorna indicated that there were several one-bedroom units available and told
Davis that she would have to phone Marcia Mittleman for a tour of the facility. Id.
There was no mention of subsidies available at Meer. Id. Before leaving, Mr. Sorna
gave Davis literature which included the following statement:
JEWISH SENIOR LIFE IS DEDICATED TO ENHANCING THE
QUALITY OF LIFE FOR OLDER ADULTS OF THE
METROPOLITAN JEWISH COMMUNITY…THE PROGRAMS
AND SERVICES…EMBRACE JEWISH VALUES.
Id., p. 19 (Pg. ID 1380). After leaving, Davis phoned Mittleman and left a message.
Id. However, Mittleman never returned her call. Id.
Test # 5 Chris Mead/Carron Pinkins
On November 21, 2013 at 9:55AM, Chris Mead, a Caucasian male, visited
Meer Apartments. Id. This was his second visit. Id. Ms. Tauber, a Meer
Administrator, greeted Mead and informed him that one-bedroom units were
available. Id., p. 20 (Pg. ID 1381). Ms. Tauber gave Mead a tour, provided him with
literature, and discussed residential opportunities in a private conference room. Id.
Mead left his phone number and was not advised that his personal finances would
be reviewed. Id.
On November 22, 2013 at 12:30PM, Carron Pinkins, an African American
male, visited Meer Apartments. Id. Pinkins stated that he was looking for a one or
two-bedroom apartment. Id. Ms. Tauber gave Pinkins a tour, provided him with
literature, and discussed residential opportunities in a cafeteria. Id., p. 21 (Pg. ID
1382). There was another person in the cafeteria during discussions. Id. During the
conversation, Ms. Tauber informed Pinkins that he would have to supply personal
income information for review. Id. Without any request, Ms. Tauber encouraged
Pinkins to look into Hechtman. Id.
Meer Apartments has a Kosher kitchen and dining room. Included in the rent
of each resident is a charge for one daily dinner meal, which is served in the dining
room. Id., p. 24 (Pg. ID 1385). A rabbi oversees the kitchen and dining room to
ensure that food cooked in the kitchen and brought into the dining room is prepared
in the Kosher tradition. Id.
III. Legal Standard for Motion for Summary Judgment
Federal Rule of Civil Procedure 56(c) “directs that summary judgment shall
be granted if 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.” Cehrs v. Ne. Ohio Alzheimer’s
Research Ctr., 155 F.3d 775, 779 (6th Cir. 1998) (quotations omitted). The court
must view the facts, and draw reasonable inferences from those facts, in the light
most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). No genuine dispute of material
fact exists where the record “taken as a whole could not lead a rational trier of fact
to find for the non-moving party.” Matsushita Elec. Indus., Co. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Ultimately, the
court evaluates “whether 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, 106 S.Ct. 2505.
IV. Law and Analysis
The Complaint alleges violations of federal fair housing law (42 U.S.C. §
3604), the Civil Rights Act (42 U.S.C. §§ 1981, 1982), and the Elliott-Larsen Civil
Rights Act of Michigan (MICH. COMP. LAWS § 37.2502). Dkt. No. 1, pp. 9–13 (Pg.
“Federal fair housing law prohibits using impermissible criteria such as race,
color, or familial status in real estate transactions.” Mencer v. Princeton Square
Apartments, 228 F.3d 631, 634 (6th Cir. 2000) (citing 42 U.S.C. § 3604(a)). “Other
federal anti-discrimination laws confirm that citizens should enjoy equal rights to
lease property and enter contracts without regard to race or color.” Id. (citing 42
U.S.C. §§ 1981, 1982). Michigan’s Elliott–Larsen Civil Rights Act is analogous to
federal fair housing law. Id. (citing MICH. COMP. LAWS § 37.2502). “In interpreting
Michigan’s fair housing law, we refer to its federal counterpart for guidance.” Id.
Therefore, for all of the violations claimed in this case, 42 U.S.C. § 3604 is an
Within the Sixth Circuit, federal housing discrimination cases are typically
handled under the three-part evidentiary standard first developed in the employment
discrimination context by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Hollis v. Chestnut Bend Homeowners Ass’n, 760 F.3d 531, 538 (6th Cir. 2014)
(holding that the McDonnell Douglas Test requires the plaintiff to establish a prima
facie case of housing discrimination, but warning that the same test is ill-suited for
non-intent-divining claims, such as reasonable-modification claims brought under
“Courts have adapted this test to fair housing claims by requiring the plaintiff
to first establish a prima facie case of discrimination. Then, in response, the
defendant must offer a legitimate nondiscriminatory reason for the housing decision
made. Finally, the plaintiff must show that the proffered reason is a pretext that
masks discrimination.” Id. (citing Selden v. United States Dep’t of Hous. and Urban
Dev., 785 F.2d 152, 160 (6th Cir. 1986)). “At all times the burden of persuasion rests
with the plaintiff.” Hollis, 760 F.3d 531, 538.
The Plaintiff broadly plead housing discrimination in violation 42 U.S.C. §
3604(a)–(d), which prohibits discrimination because of race, religion, or national
origin. Dkt. No. 1, p. 10 (Pg. ID 10). The relevant portions of the federal housing
discrimination statute are as follows:
[I]t shall be unlawful-(a) To refuse to sell or rent after the making of a bona fide offer, or
to refuse to negotiate for the sale or rental of, or otherwise make
unavailable or deny, a dwelling to any person because of race,
color, religion, sex, familial status, or national origin.
(b) To 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 therewith, because of race, color,
religion, sex, familial status, or national origin.
(c) To make, print, or publish, or cause to be made, printed, or
published any notice, statement, or advertisement, with respect to
the sale or rental of a dwelling that indicates any preference,
limitation, or discrimination based on race, color, religion, sex,
handicap, familial status, or national origin, or an intention to make
any such preference, limitation, or discrimination.
(d) To represent to any person because of race, color, religion, sex,
handicap, familial status, or national origin that any dwelling is not
available for inspection, sale, or rental when such dwelling is in fact
42 U.S.C. § 3604(a)–(d).
Defendants argue that the Plaintiff cannot support a case for housing
discrimination on the basis of race, national origin, or religion.
A. Racial Discrimination
According to the Plaintiff, the facts establish a cause of action for racial
discrimination due to the Defendants’ misrepresentations and steering toward
42 U.S.C. § 3604(d) makes it illegal to misrepresent the availability, sale, or
rental of any dwelling on the basis of race. Plaintiff argues that Meer employees
made four representations to two different African-American testers. According to
the Plaintiff, the Defendants’ employees made discriminatory misrepresentations
when: (1) Mr. Sorna told Simpson that he did not have enough time to give him a
tour; (2) Mr. Sorna told Simpson that there was a move-in scheduled that prevented
a tour; (3) Mr. Sorna told Simpson there were no one or two-bedroom units available;
and (4) Ms. Tauber told Pinkins that personal income information was required for
review. Dkt. No. 48, p. 26 (Pg. ID 1387).
While each of these alleged misrepresentations could be a reason for concern,
the third misrepresentation is the most relevant, as it directly concerns the
availability a dwelling. See 42 U.S.C. § 3604(d). In Simpson’s deposition, he states
that on June 4, 2013 he visited Meer Apartments looking for one or two-bedroom
units for rent in about thirty days. Dkt. No. 44-13, p. 7 (Pg. ID 437). According to
Simpson, the Meer agent (Mr. Sorna) indicated that “there were none available, none
available for six months on the two-bedroom, and maybe one-bedroom would be
available after 30 days.” Id. Despite Mr. Simpson’s deposition testimony,
“Defendants and Mr. Sorna unequivocally admit that a one bedroom unit was
available to show that day and throughout 2013.” Dkt. No. 44, pp. 17–18 (Pg. ID
289). Based on the plain language of § 3604(d), Plaintiff has made out a prima facie
case of housing discrimination based on race because the evidence in the light most
favorable to the Plaintiff demonstrates an alleged misrepresentation of housing
availability that only an African-American renter encountered. See Fair Hous. Ctr.
of Washtenaw Cty., Inc. v. Town & Country Apartments, No. 07-10262, 2009 WL
497402, at *6 (E.D. Mich. Feb. 26, 2009), as amended (Feb. 27, 2009)
(“[M]isrepresentations alone based on race regarding availability of units are
sufficient to establish an FHA violation.”) (citing Havens Realty Corp. v. Coleman,
455 U.S. 436, 374 (1982)).
Having established a prima facie case of discrimination by circumstantial
evidence, the presumption of unlawful discrimination arises, but can be rebutted by
producing evidence that the action was taken for a legitimate non-discriminatory
reason. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36
L.Ed.2d 668 (1973); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101
S.Ct. 1089, 67 L.Ed.2d 207 (1981).
The Defendants argue against any presumption of discrimination by attacking
the credibility of the record, rejecting the test as incomplete, and asking the Court to
consider the interaction from Mr. Sorna’s perspective. Dkt. No. 44, pp. 18–21 (Pg.
ID 289–92). The Defendants fail to meet their burden of production.
Defendants argue that “there is no credible record of Mr. Simpson asking if
there was a one bedroom unit available on that day…Mr. Simpson’s report only
establishes that he told Mr. Sorna he was interested in a one or two-bedroom unit in
about 30 days.” Id., p. 18 (Pg. ID 289). This argument misses two critical points.
First, Mr. Simpson’s report is supplemented with his deposition testimony. Even if
there is no written record of Mr. Simpson asking if there was a one or two-bedroom
available on that specific day, according to Mr. Simpson’s deposition, Mr. Sorna
claimed that there were no bedroom available within 30 days. Dkt. No. 44-13, p. 7
(Pg. ID 437). Second, questioning Mr. Simpson’s credibility at this stage is
improper. CenTra, Inc. v. Estrin, 538 F.3d 402, 412 (6th Cir. 2008) (“In reviewing
a summary judgment motion, credibility judgments and weighing of the evidence
are prohibited…It is an error for the district court to resolve credibility issues against
the nonmovant…any direct evidence offered by the plaintiff in response to a
summary judgment motion must be accepted as true.’ ”).
Next, the Defendants argue that the “Court should reject [Mr. Simpson’s] test
as unreliably incomplete because Mr. Simpson denied Mr. Sorna a fair opportunity
to complete his sales presentation.” Dkt. No. 44, p. 20 (Pg. ID 291). This argument,
again misses the point. “Credibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury functions, not those
of a judge, whether he is ruling on a motion for summary judgment or for a directed
verdict. The evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor.” Anderson, 477 U.S. 242, 255 (1986). In this
case, by asking the Court to discount Simpson’s testimony, the Defendants are in
essence asking the Court the weigh his testimony, draw inferences from the
completeness or inconsistencies in his testimony, and ultimately reject Simpson’s
narrative. Pursuant to Anderson, those actions are reserved for a jury, not a judge.
Therefore, rejecting Mr. Simpson’s test would be improper and premature at this
Later, the Defendants urge the Court to “consider this from Mr. Sorna’s
perspective.” Dkt. No. 44, p. 21 (Pg. ID 292). Although Mr. Sorna does not
remember the interaction with Mr. Simpson, the Defendants want the Court to accept
some “plausible explanations.” Id., p. 21–22 (Pg. ID 292–93). According to the
Defendants, “if Mr. Simpson was asking [Mr. Sorna] whether he could be physically
moved into a unit within 30 days of application, Mr. Sorna would have responded
that it normally takes about thirty days, sometimes shorter, sometimes longer, to
complete the processing of an application.” Id.
Their arguments fail for two reasons. Asking the Court to consider this from
Mr. Sorna’s perspective is inconsistent with the legal standard for a motion for
summary judgment. See Anderson, 477 U.S. 242, 255 (1986) (holding that for at the
summary judgment stage, the court must view the facts, and draw reasonable
inferences from those facts, in the light most favorable to the non-moving party.).
Next, the Defendants’ post hoc explanations are based on speculation. Speculation
is not evidence that may be used to compel summary judgment. Gooden v. City of
Memphis Police Dep’t, 67 F. App’x 893, 895 (6th Cir. 2003).
Therefore, because the Defendants have failed to rebut the presumption of
discrimination, granting summary judgment on the issue of racial discrimination is
B. National Origin Discrimination
Plaintiff’s allegations of national origin discrimination involve only Ikram
Bashi, who did not receive a tour of Meer apartments. Minutes later, an Americanborn white woman was given a tour, even after the office was officially closed.
Plaintiff does not explicitly state under which subpart of § 3604 it brings its
national origin claim. However, as best as the Court can tell, only § 3604(a) is
applicable here.1 Nevertheless, Plaintiff cannot establish a prima facie case of
According to the Plaintiff, Ms. Bashi was denied a tour. 42 U.S.C. § 3604(b)
prohibits discrimination in the terms of a sale/rental agreement, which was not
reached in this instance. 42 U.S.C. § 3604(c) references prints and publishing, which
national original discrimination based on Ms. Bashi’s experience with Meer. Section
3604(a) requires a “refusal to negotiate” or to otherwise “make unavailable or deny”
a rental or dwelling. Even if the Court assumes that a tour is an opportunity to
negotiate and that Ms. Bashi’s national origin was immediately apparent from her
appearance, the facts here do not rise to the level of a refusal or a denial to rent/buy
a dwelling based on national origin.
Here, Meer’s receptionist told Ms. Bashi that she did not have time to show
her a unit. Dkt. No. 44-15, p. 7–8 (Pg. ID 456–57). Instead, the receptionist gave
Ms. Bashi housing materials, and a business card, then told Ms. Bashi to call back
and set up an appointment. Id. Ms. Bashi never called to set up an appointment. Id.
The Plaintiff’s arguments overstate the evidence in the record. Ms. Bashi was not
refused or denied a tour. Rather, Ms. Bashi was asked to reschedule and failed to
follow up. Without more, such as a pattern of avoidance or rescheduling, these facts
do not establish a prima facie violation of § 3604(a). Indeed, even the Plaintiff admits
that the test for national origin discrimination was inconclusive for discrimination.
Dkt. No. 44-2, p. 8 (Pg. ID 312). According to Margaret Brown, a representative of
were not involved regarding Ms. Bashi. 42 U.S.C. § 3604(d) involves a
misrepresentation, which also does not seem applicable here. Only § 3604(a) is
arguably applicable, because a tour could involve refusal to negotiate or general
denials of the rent or sale of a dwelling.
the Plaintiff, Ms. Bashi’s September 13th test must be viewed as inconclusive for
any national origin discrimination. Id.
Therefore, Plaintiff fails to establish a prima facie case of housing
discrimination based on national origin.
C. Religious Discrimination
Lastly, Defendants argue that Plaintiff cannot support a case for housing
discrimination based on religion. Again, the Plaintiff does not explicitly state under
which subpart of § 3604 it brings its religion claim. However, as best as the Court
can tell, only § 3604(b) is applicable here.2 Nevertheless, Defendants’ argument is
well-taken. The Plaintiff fails to support a case for housing discrimination based on
At the center of this issue is the Kosher kitchen. According to the Plaintiff,
conditioning the use of the on-site dining room to observe and accept Jewish dietary
law violates fair housing. Dkt. No. 48, p. 31 (Pg. ID 1392). Plaintiff argues that it is
religious discrimination that residents—whose rental fees pay for the dining room
and for a daily dinner meal—are forced to eat Kosher food and cannot bring nonKosher dishes into the dining room.
The kitchen does not involve refusal to negotiate or general denials of a dwelling,
prints or publishing; nor does it involve a misrepresentation. Therefore, 42 U.S.C §§
3604(a), 3604(c), and 3604(d), respectively, do not apply. Only § 3604(b) is
arguably applicable, because the kitchen can be construed as one of the terms or
privileges of rental at Meer.
Plaintiff’s argument is unpersuasive. This appears to be an issue of first
impression as the Plaintiff is unable to support its argument with any analogous case
Section 3604(b) makes it unlawful to discriminate “against any person in the
terms, conditions, or privileges of sale or rental…because of religion.” 42 U.S.C. §
3604(b) (emphasis added). The Kosher kitchen discriminates against certain food.
However, based on the plain language of § 3604(b), it cannot be said that the Kosher
kitchen directly discriminates against any person, as the federal housing laws
It seems that the Plaintiff is alleging a species of disparate treatment based on
religion. “[T]o establish a prima facie case of disparate treatment predicated upon
42 U.S.C. § 3604(b) the plaintiffs must make a modest showing that a member of a
statutorily protected class was not offered the same terms, conditions or privileges
of rental of a dwelling or not provided the same services or facilities in connection
therewith made available to others under circumstances giving rise to a reasonable
inference of prohibited discrimination.” United States v. Fountainbleau Apartments
L.P., 566 F. Supp. 2d 726, 733 (E.D. Tenn. 2008) (quoting Khalil v. Farash Corp.,
452 F. Supp. 2d 203, 208 (W.D.N.Y. 2006)). In this case, the Plaintiff offers no
evidence that non-Jewish residents are treated any differently that Jewish residents.
On the contrary, non-Jewish residents are treated the same as Jewish residents with
respect to the Kosher kitchen and dining room.
Therefore, Plaintiff has not established a prima facie case of housing
discrimination based on religion.
For the preceding reasons, Defendants’ Motion for Summary Judgment 
is GRANTED IN PART and DENIED IN PART. With respect to Plaintiff’s
claims of racial discrimination, summary judgment is DENIED. With respect to
Plaintiff’s claims of national origin and religious discrimination, summary judgment
Dated: May 16, 2017
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge
I hereby certify that a copy of the foregoing document was mailed to the attorneys
of record on this date, May 16, 2017, by electronic and/or ordinary mail.
Case Manager, (313) 234-5213
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