USCA4 Appeal: 23-2295 Doc: 80 Filed: 07/15/2025 Pg: 1 of 26
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-2295
GROUP HOME ON GIBSON ISLAND, LLC; ASSISTED LIVING WELL COMPASSIONATE CARE 2, LLC,
Plaintiffs – Appellants,
v.
GIBSON ISLAND CORPORATION,
Defendant – Appellee.
------------------------------
UNITED STATES OF AMERICA,
Amicus Supporting Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore. Lydia Kay Griggsby, District Judge. (1:20-cv-00891-LKG)
Argued: March 14, 2025 Decided: July 15, 2025
Before NIEMEYER, HARRIS, and BERNER, Circuit Judges.
Vacated and remanded by published opinion. Judge Harris wrote the opinion, in which Judge Niemeyer and Judge Berner joined.
ARGUED: Steven M. Klepper, KRAMON & GRAHAM, P.A., Baltimore, Maryland, for Appellants. Stacie Eileen Tobin, VENABLE LLP, Baltimore, Maryland, for USCA4 Appeal: 23-2295 Doc: 80 Filed: 07/15/2025 Pg: 2 of 26
Appellee. Teresa Kwong, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus Curiae. ON BRIEF: Geoffrey H. Genth, Justin A. Redd, KRAMON & GRAHAM, P.A., Baltimore, Maryland; Matthew D. Skipper, Jeffrey A. Kahntroff, SKIPPER LAW, LLC, Crofton, Maryland, for Appellants. Katherine Wright Morrone, VENABLE LLP, Washington, D.C.; Craig D. Roswell, NILES BARTON AND WILMER LLP, Baltimore, Maryland, for Appellee. Kristen Clarke, Assistant Attorney General, Bonnie I. Robin-Vergeer, Appellate Section, Civil Rights Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Damon Y. Smith, General Counsel, Sasha M. Samberg-Champion, Deputy General Counsel for Enforcement and Fair Housing, Joshua R. Gillerman, Ogo O. Orizu, Office of the General Counsel, UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Washington, D.C., for Amicus United States of America.
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PAMELA HARRIS, Circuit Judge:
For years, the Gibson Island Corporation has opposed the efforts of Craig Lussi to
build an assisted living facility on Gibson Island, a waterfront community in Maryland.
Litigation ensued, and discovery produced an extensive record dating back years, with the
parties hotly disputing material facts and the inferences to be drawn from them. We
conclude that a reasonable jury could find that the Corporation violated the federal Fair
Housing Act and Maryland state law by refusing to make a reasonable accommodation to
its land-use restrictions for Lussi’s proposed facility, by retaliating against Lussi for
protected activity, and by discriminating on the basis of disability. We therefore vacate the
district court’s grant of summary judgment to the Corporation.
I.
This case is the culmination of a long-running dispute between two parties: the
Gibson Island Corporation, a homeowners association for a private, gated community on
the Chesapeake Bay in Anne Arundel County, Maryland; and Craig Lussi, a long-time
Gibson Island homeowner who operates three assisted living group homes for seniors with
disabilities in other parts of the County. Although the parties have a longer history, this
suit arose in 2020, when Lussi went forward with a plan to open another group home for
elderly people with disabilities, this one on Gibson Island. Members of the Gibson Island
community immediately expressed their “distress” to the Corporation, J.A. 1779, which
responded with what it called a “360 degree” strategy to block the project, J.A. 1792.
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Part of that strategy was the Corporation’s invocation of a restrictive covenant –
which we, like the district court, will call the “business-purpose covenant” – prohibiting
the use of Gibson Island homes for business purposes without the Corporation’s approval.
What followed was some complicated legal wrangling and negotiations, detailed below.
But in summary, Lussi asked the Corporation to waive the business-purpose covenant as a
reasonable accommodation for his proposed assisted living facility, and the Corporation
refused to do so unless Lussi agreed to four disputed conditions. Lussi would not agree to
what he viewed as unreasonable conditions, negotiations were terminated, and this suit
followed.
To give a sense of the long and contentious relationship between Lussi and the
Corporation, we begin with some factual background. We turn then to the immediate
predicate for this suit, and finally to the district court decision granting summary judgment
to the Corporation.
A.
1.
The bad feelings between Lussi and the Corporation appear to date back at least to
2016, when Lussi first proposed building an assisted living group home on Gibson Island. 1
The Corporation’s then-President responded that “assisted living is a non-starter,” J.A.
1 This case comes to us on the Corporation’s motion for summary judgment and Lussi’s cross-motion for partial summary judgment. We view the facts in the light most favorable to the non-movant with respect to each motion. Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003). Most of the facts presented here are undisputed, unless otherwise noted.
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1456, and that there was “no interest in the assisted living concept” in the Gibson Island
community, J.A. 1747.
In 2018, Lussi obtained a permit for a proposed group home for the elderly outside
Gibson Island’s borders, but just barely. Many Gibson Island residents opposed that
project, with some allegedly complaining about the prospect of “[d]irty old people’s
diapers,” and others lamenting a predicted “free for all with cars in and out, trash, diapers,
and old people.” J.A. 1753. The parties dispute the role of the Corporation in opposing
that nearby project, with Lussi alleging that the Corporation solicited complaint letters from
community members and helped to orchestrate his expulsion from the Gibson Island Club
– a private country and yacht club – in 2019.
When Lussi tried to buy a property directly from the Corporation in 2019, the
Corporation rejected his bid, citing the parties’ past contentious interactions. According to
the Corporation, it could not accept Lussi’s offer in light of litigation threats and
accusations Lussi had previously leveled against it. Those past “accusations” included
claims by Lussi that the Corporation was violating state and federal law by opposing his
efforts and by perpetuating discrimination against disabled individuals.
2.
That brings us, finally, to 2020, when Lussi was able to purchase a home on Gibson
Island – known as the “Banbury House” – that he planned to use for his assisted living
facility. There is no dispute that the Gibson Island community opposed this project,
sending the Corporation President what he described as “[o]verwhelmingly negative”
messages expressing dismay at this “threat to the Island.” J.A. 1657, 1794. What is
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disputed, and fiercely so, is the reason for this opposition. Some record evidence –
emphasized by Lussi – suggests that the community simply did not want elderly, disabled
people to live among them and have access to Gibson Island’s shared amenities, fearing
that the home’s residents would change “the nature of [the] community.” J.A. 1789. Other
evidence – emphasized by the Corporation – indicates opposition to a group home in an
area zoned for single-family living. And some opposition appears to have been rooted in
a very intense dislike of Lussi himself, who was described in an anonymous letter –
displayed publicly on a post-office bulletin board – as a “pathological narcissist[]” and
“despicable human being,” who has “no respect for other people.” J.A. 1791.
Whatever the reason, as news of Lussi’s purchase spread, the community was quick
to offer the Corporation ideas on how to block the planned renovation of the property.
Emails urged a “rapid, strong, multi-disciplinary, legal and extralegal approach” to Lussi’s
proposed assisted living facility. J.A. 1784. On the legal side, specifically, there were
multiple suggestions that the Corporation leverage “regulatory authorities” and licensing
and permitting restrictions to impede Lussi’s project. One community member, in what
would prove to be a prophetic message, suggested that the Corporation question the
sufficiency of Banbury House’s septic field for use by a group home.
The Corporation was receptive. The Corporation President promised a “360 degree
look at how to block [Lussi]” – even though, he explained, the proposed “group home is
‘by right’ consistent with [the] FHA.” J.A. 1792. The Treasurer agreed that the
Corporation could “insert [itself] aggressively at every point where public input is required
or asked for” as part of a broad strategy to “thwart Lussi’s [regulatory] approvals.” J.A.
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1781. And indeed, the Corporation asked Anne Arundel County to revoke Lussi’s building
permit, alleging, among other deficiencies, that the Banbury House’s septic field was
inadequate for the contemplated group home. The County denied that request, finding no
basis for a revocation. As to the septic system, specifically, the County Health Department
verified that it was adequate for the proposed nine-bed assisted living facility.
The Corporation also turned to Gibson Island’s business-purpose covenant and to
litigation. It sent Lussi a cease-and-desist letter warning him that it viewed his project as
a commercial use that could not be pursued without permission under the business-purpose
covenant, and directed the community gatehouse to deny entry to Lussi’s contractors.
When Lussi did not stop construction, it sued in federal district court, seeking a declaratory
judgment that Lussi could not proceed without its approval. Lussi promptly counter-sued,
alleging that the Corporation’s efforts to block his project violated the Fair Housing Act
(“FHA”). The district court granted declaratory relief to the Corporation, holding that the
business-purpose covenant was enforceable and requiring Lussi to formally request an
exemption before proceeding. Gibson Island Corp. v. Grp. Home on Gibson Island, LLC,
1:20-cv-842-RDB, 2020 WL 3035232, at *7 (D. Md. June 5, 2020). Until Lussi made such
a request, the court said, his FHA claims were premature. Id. at *9.
3.
This case entered its final phase in June 2020, when Lussi, as directed, formally
sought an exemption from the business-purpose covenant. What he was requesting, Lussi
said, was a reasonable accommodation pursuant to federal and state law for his assisted
living facility, without which seniors with disabilities could not live on Gibson Island.
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It took the “Accommodations Committee,” newly appointed by the Corporation, six
months to respond with a recommendation. When it did, it adopted a suggestion from the
Corporation President – to which he later admitted – that it could block Lussi’s project by
saying it would be unduly burdensome to work with Lussi. “[E]ntering into an
accommodation agreement with [Lussi] would lead to frequent future interactions and
disputes with [him], potentially including additional litigation,” the Committee advised,
“and thus would impose substantial administrative and financial burdens on the
Corporation.” J.A. 492. To mitigate those burdens, the Committee recommended that the
Corporation make any approval of Lussi’s exemption contingent on satisfaction of a
lengthy list of conditions.
Months of negotiations followed. Eventually, the parties reached agreement on all
but four conditions, now at issue in this appeal. One condition – which we will call the
“septic condition” – related to the property itself, and would have required Lussi to obtain
an annual septic certification and install a special meter to allow for daily septic monitoring.
The other three related to the parties’ professional relationship: a “dispute-resolution
condition,” subjecting all disputes to arbitration; an “arbitration-escrow condition,”
requiring each party to put $100,000 into escrow to cover potential arbitration fees and
damages; and a “guarantor condition,” requiring business LLCs associated with Lussi’s
other assisted living facilities to guarantee Lussi’s compliance with the parties’ agreement.
The Corporation refused to approve the group home if Lussi would not agree to these
conditions, and Lussi refused to agree. In April 2021, the Board decided it would not
negotiate further and withdrew from all discussions.
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B.
Two weeks later, Lussi – formally, two LLCs he had established to finance and
manage his proposed facility 2 – filed the operative complaint in this case, alleging that the
Corporation had violated the federal Fair Housing Act and Maryland’s fair housing laws
by refusing to grant a reasonable accommodation for his group home, by retaliating against
Lussi’s effort to provide such housing, and by discriminating on the basis of disability. The
Corporation moved for summary judgment, and Lussi cross-moved for partial summary
judgment on his reasonable accommodation claims.
The district court granted summary judgment to the Corporation on all claims. Grp.
Home on Gibson Island, LLC v. Gibson Island Corp., No. 20-cv-891-LKG, 2023 WL
8004886, at *18 (D. Md. Nov. 16, 2023). The court began with the reasonable
accommodation claims. 3 To prevail, the court explained, Lussi would have to show that
his proposed accommodation – an exemption from the business-purpose covenant – was
reasonable, and also that it was “necessary” to afford disabled persons “equal opportunity
to use and enjoy housing.” Id. at *10 (internal citation and quotation marks omitted). In
finding that Lussi could not satisfy the necessity element, however, the district court
analyzed not the proposed exemption itself but instead the four disputed conditions,
2 Lussi used Group Home on Gibson Island, LLC, to finance and purchase the property, and he created Assisted Living Well Compassionate Care 2, LLC, to manage the group home’s operations. Those entities were the plaintiffs before the district court on Lussi’s claims and are the appellants before us now. 3 On this and Lussi’s other claims, the district court considered the FHA and parallel state-law provisions together, consistent with the parties’ briefing.
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concluding that removal of those conditions was not “necessary” to afford equal housing
opportunities. Id. at *11–14.
As for Lussi’s retaliation and discrimination claims, the district court found that the
undisputed facts foreclosed relief as a matter of law. There was no record evidence, the
court held, from which it could be inferred that the Corporation opposed Lussi’s group
home for disabled people because its residents would be disabled, or that the Corporation’s
efforts to block Lussi’s project constituted retaliation for his long-standing efforts to bring
an assisted living facility to Gibson Island. Id. at *14–17. 4
The Lussi LLCs timely appealed.
II.
We review de novo a district court’s disposition of cross-motions for summary
judgment. Billard v. Charlotte Catholic High Sch., 101 F.4th 316, 324 (4th Cir. 2024).
We examine each motion separately, viewing the facts and inferences in the light most
favorable to the non-moving party. If a reasonable jury could return a verdict for the non-
movant, then a genuine factual dispute exists, and summary judgment is improper. Evans
v. Techs. Applications & Serv. Co., 80 F.3d 954, 958 (4th Cir. 1996).
4 The district court also denied Lussi’s motion for leave to file a second amended complaint, and it denied as moot both the Corporation’s motion in the alternative to strike certain allegations and its motion to file a reply in support. Group Home, 2023 WL 8004886, at *17. None of these issues were appealed.
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In cases where state of mind is decisive – as with Lussi’s discrimination and
retaliation claims – courts must take “special care” to reserve for a jury the resolution of
any genuine dispute about the motivation for a party’s actions. Ballinger v. North Carolina
Agric. Extension Serv., 815 F.2d 1001, 1005 (4th Cir. 1987). And in all cases, the bottom-
line question is “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 v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986).
We conclude that the record here is not sufficiently “one-sided” for either party to
prevail on summary judgment. We agree with Lussi, as explained below, that the district
court committed a legal error in reviewing his reasonable accommodation claim. But once
that is cleared away, we are left with a dispute over the “reasonableness” of Lussi’s
proposed exemption from the business-purpose covenant, and that is a fact-specific inquiry
properly resolved by a jury. Specifically, it is for a jury to determine whether, as the
Corporation argues, an exemption for Lussi’s project would be unduly burdensome and
thus “unreasonable” if approved without the four disputed conditions – or whether, as Lussi
maintains, those conditions are themselves unreasonable. Unresolved questions about the
legitimacy and purpose of the Corporation’s conditions also bear directly on Lussi’s
retaliation and discrimination claims, making those claims, too, unsuitable for summary
judgment. Accordingly, we vacate the district court’s entry of judgment to Gibson Island
Corporation and remand for further proceedings.
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We start with Lussi’s failure to accommodate claims. The parties agree on the
basics. Both the Fair Housing Act and Maryland law make it unlawful to “refus[e] to make
reasonable accommodations in rules, policies, practices, or services, when such
accommodations may be necessary to afford [an individual with a disability] equal
opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B); 5 accord Md. Code,
State Gov’t § 20-706(b)(4). This means that communities like Gibson Island cannot
enforce their generally applicable housing policies “in a manner that denies people with
disabilities access to housing on par with that of those who are not disabled.” Hovsons,
Inc. v. Township of Brick, 89 F.3d 1096, 1104 (3rd Cir. 1996) (internal quotation marks
and citation omitted). Instead, they may be required to make exceptions to accommodate
the needs of people with disabilities – including exceptions for group homes that otherwise
would be barred by zoning regulations or covenants like Gibson Island’s. Oconomowoc
Residential Prog. v. City of Milwaukee, 300 F.3d 775, 782 (7th Cir. 2002) (“Congress
explicitly intended for the FHAA to apply to zoning ordinances and other laws that would
restrict the placement of group homes.” (citing H.R. Rep. No. 100-711, at 24 (1988))).
Under the FHA, the plaintiff bears the burden of showing that a proposed
accommodation is “reasonable” and also “necessary” to afford disabled persons an equal
opportunity for housing. Bryant Woods Inn, Inc. v. Howard County, 124 F.3d 597, 603–
5 The FHA was expanded to include disability discrimination by the Fair Housing Amendments Act of 1988. See Pub. L. No. 100-430, 102 Stat. 1619 (1988). Like the parties and the district court, we refer throughout simply to the FHA.
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04 (4th Cir. 1997). An accommodation is “necessary” if there is a “direct linkage” between
the proposed accommodation and the provision of equal housing opportunities. Id. at 604.
An accommodation’s “reasonableness” turns on a number of context-specific factors,
including the “extent to which the accommodation would undermine the legitimate
purposes and effects of existing zoning regulations and the benefits [it] would provide” to
individuals with disabilities, whether there are alternatives that would produce the same
benefits “more efficiently,” and the costs of the accommodation. Id.
The district court reached only the necessity element, granting summary judgment
to the Corporation on Lussi’s reasonable accommodation claims because Lussi could not
show the required “direct linkage” between his proposed group home and the provision of
an equal housing opportunity for people with disabilities. Group Home, 2023 WL
8004886, at *11–14. That was so, the district court reasoned, because the evidentiary
record established that removal of the four disputed conditions on approval of Lussi’s
project was not “necessary” to allow for the use of the proposed group home by future
residents with disabilities. Id. at *11. For instance, the district court found, Lussi’s
compliance with the proposed septic condition – annual certifications and daily monitoring
– would in no way compromise the enjoyment of his property by a disabled resident,
making removal of the condition “unnecessary” as a matter of law.
The problem with this analysis is that the district court was asking the wrong
question. What matters under the necessity prong is whether a proposed accommodation
is necessary to provide equal housing opportunities. See 42 U.S.C. § 3604(f)(3)(B)
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(prohibiting the refusal to make reasonable accommodations when “such accommodations
may be necessary to afford [disabled persons] equal [housing] opportunity” (emphasis
added)). So here, the question is whether the accommodation actually requested by Lussi
– an exception to the business-purpose covenant for his proposed group home – was
“necessary” to provide prospective residents an equal opportunity to use and enjoy their
housing of choice. See Bryant Woods, 124 F.3d at 604 (analyzing whether requested
accommodation to expand group home was “necessary” in light of other opportunities for
disabled persons to live in same area). By asking instead whether removal of the
Corporation’s proposed conditions was “necessary,” the district court erred.
This is not just semantics. Under the district court’s logic, a community would be
free to impose all kinds of burdensome conditions on accommodation approvals even if
they have no relationship to the needs of future residents with disabilities, because
removing such conditions – say, a condition that a group home’s windows be washed daily
– would not be “necessary” for enjoyment of the facility by a disabled resident. See Brief
for the United States as Amicus Curiae at 25. Indeed, the district court found that Lussi
was unable to prevail on the “necessary” element precisely because the conditions the
Corporation sought to impose did nothing to address the needs of potential disabled
residents and were not intended to enhance their housing experience. See, e.g., Group
Home, 2023 WL 8004886, at *14 (explaining that removal of the arbitration-escrow
condition requiring Lussi to deposit $100,000 is not “necessary” because the condition
“does not supplant the rights of the Banbury [House’s] potential disabled residents”). That
turns the FHA’s “necessity” analysis upside down.
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When we ask the right question – whether an exemption from Gibson Island’s
business-purpose covenant is “necessary” to provide Lussi’s prospective residents with
equal housing opportunity – the record in this case admits of only one answer. The
Corporation does not dispute that some elderly individuals with disabilities cannot live in
a residential setting without disability-related services and support, like those that would
be offered by Lussi’s group home. See Oconomowoc, 300 F.3d at 787. Nor does the
Corporation dispute that it cannot simply offer as an alternative that Lussi and his
prospective residents find themselves a different neighborhood to enjoy. Bryant Woods,
124 F.3d at 605 (analyzing necessity of accommodation to opportunity to reside in
particular area). 6 And, crucially, there is no record evidence even suggesting that elderly,
disabled persons who need assistance might be able to find somewhere else on Gibson
Island to live. Cf. Bryant Woods, 124 F.3d at 605 (finding accommodation to expand size
of assisted living facility unnecessary where record established that 30 other group homes
with significant vacancies were operating in same county). Instead, as one resident put it,
Gibson Island’s elderly residents were expected to “move elsewhere, if necessary,” so as
to “preserve the nature of [the] community.” J.A. 1789. Under these circumstances, the
necessity inquiry is straightforward: The requested exemption from the business-purpose
covenant is “necessary” because without it, Lussi will not be able to operate what would
6 Indeed, before the district court, the Corporation admitted colorfully and with candor that it would be engaging in classic “NIMBYism” if it offered, as an alternative, the prospect of a group home outside Gibson Island.
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be the only facility that would allow elderly and disabled people an equal opportunity to
enjoy the housing of their choice.
That leaves the question of “reasonableness,” which the district court did not
address. 7 This is the step in the analysis at which the disputed conditions become critical.
While it did not move for summary judgment on this point, the Corporation argues it could
show at trial that without the four disputed conditions, a Lussi-operated group home would
impose an undue burden on the community. Lussi, on the other hand, urges us to find, as
a matter of law, that the Corporation’s conditions are unnecessary and that his requested
accommodation is “reasonable.”
Whether a proposed accommodation is “reasonable” is a highly fact- and context-
specific inquiry. See Scoggins v. Lee’s Crossing Homeowners Ass’n, 718 F.3d 262, 272
(4th Cir. 2013). Even in the ordinary case, the “reasonableness” determination involves a
weighing of multiple factors: the benefits an accommodation would provide disabled
persons, the burdens – including financial and administrative burdens – that would be
imposed on a community by non-enforcement of its standard housing policies, and the
7 The Corporation argues that we can skip the reasonableness question because it never actually denied Lussi’s accommodation request. We disagree. It is undisputed that the Corporation refused to approve Lussi’s accommodation – an exception from the business-purpose covenant – as proposed. Instead, it repeatedly insisted that it would not approve that request, and would consider only a different exception, one that came encumbered with the disputed conditions. It is hornbook law that a counter-offer is a rejection, not an acceptance, see 17A Am. Jur. 2d Contracts § 64, and the Corporation cannot prevail on its argument that it never denied Lussi’s accommodation request at all.
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availability of alternatives that would bring the same benefits as the proposed
accommodation more efficiently. Id. at 272–73; Bryant Woods, 124 F.3d at 604. And in
this case, it also requires an assessment of Lussi’s claim that the disputed conditions are
wholly unnecessary to minimize burdens on the community and render the accommodation
request reasonable.
Against this standard and on the evidentiary record before us, we conclude that there
are material factual disputes that preclude summary judgment. Take, for instance, the
septic condition. The district court found that “the undisputed material facts” showed
conclusively that the septic condition addressed the Corporation’s genuine “environmental
concerns.” Group Home, 2023 WL 8004886, at *12. We cannot agree. Included in the
record is evidence that those seeking to block Lussi’s project almost immediately focused
on Banbury House’s septic system as a way to generate regulatory obstacles. There is
testimony from an expert with 40 years of experience with assisted living group homes that
he has never heard of a similar daily monitoring requirement. Id. at *13 n.4. And there is
the undisputed fact that when the Corporation asked the County to withdraw its permit for
the Banbury House renovations, the County refused and reaffirmed that the property’s
septic system was entirely adequate for the proposed nine-bed group house. It is of course
possible that the Corporation insisted on annual and daily septic reports in a good-faith
effort to address environmental concerns. But it is also possible, we think, that a reasonable
jury might find to the contrary, and conclude that the actual purpose of the septic condition
was to burden Lussi’s project and make it more expensive for him to go forward. That is
a question for a jury to resolve.
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So too with the conditions related to the parties’ professional relationship – the
dispute-resolution, arbitration-escrow, and guarantor conditions. 8 The Corporation argues
that allowing the group home to go forward without these conditions would be unduly
burdensome and costly because of the risk that Lussi will initiate expensive litigation
against it in connection with his project. A reasonable jury could well agree, based on
record evidence documenting a long-standing contentious and litigious relationship
between the parties. But at the same time, it is not self-evident, on this record, that the
Corporation would be left unduly exposed if it adopted Lussi’s requested accommodation
as presented – without, say, mandatory arbitration for all claims and a required escrow
deposit of $100,000 – or that any litigation-related burden imposed on the Corporation
would outweigh the equal-housing benefits provided by Lussi’s project. See Scoggins, 718
F.3d at 273. That, too, is a question appropriately left to a jury. And given the full course
of the parties’ dealings, a jury might also question whether these conditions reflect an
honest assessment of litigation risk or are part of the Corporation’s “360 degree” strategy
to “block” the proposed group home. J.A. 1792; see also J.A. 1673–74 (testimony of
Corporation President that he may have suggested to the Accommodations Committee that
it characterize working with Lussi as unduly burdensome).
8 The United States Department of Justice, amicus curiae in this case, contends that two of the Corporation’s conditions related to the parties’ professional relationship – the dispute-resolution and arbitration-escrow provisions – are unreasonable because they contradict rights secured by the FHA. See Brief for the United States as Amicus Curiae at 26–27. Because the parties have not briefed this argument, we will not address it here.
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Accordingly, as to Lussi’s federal and state law reasonable accommodation claims, 9
we agree with the district court that Lussi is not entitled to summary judgment, but hold
that the district court erred in granting summary judgment to the Corporation. When it
comes to the “reasonableness” of Lussi’s proposed accommodation, this case presents a
jury question.
Lussi’s retaliation and discrimination claims also present jury questions. As we
have explained, the Corporation’s reasons for insisting on the disputed conditions are
central to the reasonable accommodation inquiry. But the same questions are also relevant
to Lussi’s remaining claims, with Lussi alleging that the disputed conditions are nothing
more than pretexts for unlawful retaliation and discrimination. We conclude that these
overlapping inquiries, too, must be undertaken by a jury.
We begin with retaliation. The FHA makes it unlawful to “coerce, intimidate,
threaten, or interfere with any person in the exercise or enjoyment of, or on account of his
having exercised or enjoyed, or on account of his having aided or encouraged any other
person in the exercise or enjoyment of, any right granted or protected by” the FHA. 42
9 Although Maryland fair housing law largely mirrors the FHA, there is a difference with respect to the party that bears the ultimate burden to prove the “reasonableness” of the accommodation. Compare Bd. of Dir. of Cameron Grove Condo., II v. Maryland Comm’n on Hum. Rels., 63 A.3d 1064, 1075 (Md. 2013) (shifting the burden of persuasion to the defendants after the plaintiff proves a prima facie case), with Bryant Woods, 124 F.3d at 604 (plaintiff bears the burden of persuasion). That difference does not affect our analysis here, but we note the two different standards that will apply on remand.
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U.S.C. § 3617. Maryland law prohibits the same set of retaliatory behaviors. Md. Code,
State Gov’t § 20-708; see also Hall v. Greystar Mgt. Services, L.P., 28 F. Supp. 3d 490,
498 (D. Md. 2014). The parties agree that to prevail, Lussi must show an “adverse action”
with a causal link to his advocacy of accommodations for disabled persons, and they agree
that an action is sufficiently “adverse” if it could dissuade a reasonable person from the
exercise of their rights. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006); Group Home, 2023 WL 8004886, at *16.
The district court held that Lussi had failed to provide any evidence that he suffered
an “adverse action.” Group Home, 2023 WL 8004886, at *16. But the court failed to give
due weight, in this part of its analysis, to the adverseness of the actions it recognized
elsewhere: the Corporation’s efforts to have the permit for Lussi’s project revoked and to
otherwise delay the opening of the group home. And it did not address Lussi’s allegation
that the Corporation’s refusal to grant his accommodation request was itself an adverse
action, taken in retaliation for his years-long effort to provide equal housing opportunities
in or near Gibson Island for elderly people with disabilities. There is no real dispute that
these actions rise to the level of “adverse” under the relevant standard. 10
Instead, the district court appears to have rested its grant of summary judgment to
the Corporation on a finding that Lussi cannot show that these alleged adverse actions were
retaliatory in nature, taken in response to Lussi’s protected advocacy for the housing rights
10 The Corporation does suggest, in a footnote to its brief, that the Lussi LLCs did not plead this theory of retaliation in their complaint and thus forfeited the issue. We disagree and find that the issue was adequately presented.
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of people with disabilities. Group Home, 2023 WL 8004886, at *16 (“[T]he evidence
simply does not show that the delay in opening [Lussi’s] group home is due to retaliation
for [Lussi] having engaged in any FHA-protected activity.”); see also id. (finding the
Corporation’s effort to have Lussi’s permit withdrawn was “legitimately aimed at securing
Mr. Lussi’s compliance” with the business-purpose covenant). Here again, we disagree
with the district court’s characterization of the evidentiary record.
Properly viewed in the light most favorable to Lussi as the non-movant, and drawing
all reasonable inferences in his favor, we conclude that this record would allow a jury to
find that the Corporation sought to block Lussi’s latest proposal because of Lussi’s
advocacy for FHA-protected housing on or near Gibson Island. As we have explained
already, a jury could credit, but also could question, the Corporation’s stated rationales for
refusing to approve Lussi’s project without the four disputed conditions. And importantly,
the Corporation’s own rationale for many of its conditions – that dealing with Lussi is
administratively and financially burdensome because of his history of litigation threats and
accusations against the Corporation – could be understood as implicating protected
activity. To be sure, a jury might vindicate the Corporation’s view of Lussi as a bad-faith
actor who is so antagonistic and difficult to deal with that these precautionary conditions –
the dispute-resolution and arbitration-escrow conditions, for instance – were well justified.
But it also could conclude that the Corporation found Lussi so difficult to deal with
precisely because of his willingness to zealously advocate and litigate for FHA-protected
rights. See, e.g., J.A. 1872–75 (Corporation citing Lussi’s threats of FHA litigation and
allegations of discrimination as reasons for declining to allow him to buy property for
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proposed group home). 11 This is a fine line, to be sure, and on this record, we think it is
properly drawn by a jury.
We also disagree with the district court that the alleged “numerous acts of personal
retaliation” against Lussi and his family – defaming the family by way of signs and letters
posted in the neighborhood, for instance, or expelling Mr. Lussi and threatening to expel
Mrs. Lussi from the Gibson Island Club – may not be considered as part of the retaliation
inquiry. The district court appears to have dispensed with these allegations on the sole
ground that the plaintiffs in this case – the Lussi LLCs – cannot rely on actions taken
against Lussi and his family in their personal capacities. Group Home, 2023 WL 8004886,
at *16. Neither the district court nor the Corporation has pointed us to authority for this
proposition, and we have found none. Instead, the Supreme Court has deemed it “obvious,”
in a similar context, that a reasonable person might be dissuaded from engaging in
protected activity by a threat to someone closely related. See Thompson v. North American
Stainless, LP, 562 U.S. 170, 173 (2011). The district court erred to the extent it held that
conduct targeting Lussi – the sole owner and operator of the plaintiff LLCs – along with
his family could not, as a matter of law, constitute “adverse actions” that might dissuade
11 Indeed, some of the statements of Lussi’s opponents could be read as themselves characterizing opposition to Lussi and his group home as opposition to the FHA. See, e.g., J.A. 1782 (Corporation President pledging to “do our best to defend deeds and agreement v FHA”).
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his LLCs from going forward with activity protected by the FHA. Whether that is what
happened here, of course, is a different question, and one that should be resolved by a jury.
Finally, we come to Lussi’s discrimination claim. The Fair Housing Act prohibits
discrimination in the provision of housing based on the disability of the person who resides
in or intends to reside in a dwelling. 42 U.S.C § 3604(f)(1)–(2). Maryland law follows the
FHA. Md. Code, State Gov’t § 20-706(b)(1)–(2); see also Wallace H. Campbell & Co.,
Inc. v. Maryland Comm’n on Hum. Rel., 33 A.3d 1042, 1052 (Md. Ct. Spec. App. 2011).
The parties agree that to prove his claim of intentional discrimination based on disability,
Lussi may rely on direct or circumstantial evidence. See Group Home, 2023 WL 8004886,
at *14–15. Circumstantial evidence includes, as relevant here, evidence that the
Corporation’s stated rationales for opposing Lussi’s project are “unworthy of credence”
and pretextual. See Texas Dep’t. of Cmty. Affs. v. Burdine, 450 U.S. 248, 256 (1981).
We cannot agree with the district court that there is “no evidence,” direct or
circumstantial, from which a reasonable jury could find discriminatory intent behind the
Corporation’s refusal to approve what would be Gibson Island’s first and only assisted
living facility for disabled people. See Group Home, 2023 WL 8004886, at *15. First, as
we held in connection with the reasonableness inquiry, while a jury could credit, say, the
Corporation’s professed environmental concerns about Banbury House’s septic system, it
also could find that rationale for denying Lussi’s requested accommodation to be
“unworthy of credence,” raising an inference that its true purpose may be discriminatory.
Burdine, 450 U.S. at 256. There are genuine disputes, described more fully above, as to
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whether the Corporation sought to impose the contested conditions for its stated
nondiscriminatory reasons – sincere concerns about Lussi’s combative and litigious
attitude and the environmental implications of a group house – or whether they were
imposed because the community did not want disabled, elderly people to live among them,
as Lussi claims.
Moreover, there is evidence in the record from which a jury could infer that the
Corporation and the community harbored hostility to the provision of equal housing rights
to disabled persons, or trafficked in stereotypes about the difficulties that would be posed
by disabled elderly residents. The Corporation President, for instance, responded to what
can only be described as an outpouring of community hostility to Lussi’s proposed group
home by promising the Corporation would “do [its] best to defend deeds and agreement[s]
v FHA,” J.A. 1782, “taking a 360 degree look at how to block [Lussi], even if the group
home is ‘by right’ consistent with FHA,” J.A. 1792. The district court dismissed those
statements entirely, reasoning that the then-President’s term was over before negotiations
with Lussi concluded. Group Home, 2023 WL 8004886, at *15 & n.6. But that overlooks
evidence linking the Corporation’s early strategizing to the path ultimately followed by the
Corporation – including the then-President’s admission that he may have been the one to
suggest to the Accommodations Committee that it block Lussi’s project by claiming that
working with Lussi would be unduly burdensome. What weight to give evidence of the
then-President’s attitude toward the FHA and people with disabilities, we think, is a matter
for the jury to decide.
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As for the community, a jury might infer that at least some vocal members believed
that having disabled persons take up residence was simply “inappropriate” for their
neighborhood and would disrupt the “nature of [the] community,” or that it would be
“offensive” if residents of an assisted-living facility had “access to everything on the
island[.]” J.A. 1658–59, 1786, 1831. Others – going back to Lussi’s earlier efforts to
provide a group home for elderly disabled residents – worried about “[d]irty old people’s
diapers,” J.A. 1753, consistent with the later focus on Banbury House’s septic system. And
there is evidence in the record from which a jury could find that the Corporation acted in
response to these community views, so that they may be attributed to the Corporation for
these purposes. See A Helping Hand, LLC v. Baltimore County, 515 F.3d 356, 366 (4th
Cir. 2008); see also, e.g., J.A. 1781 (Corporation Treasurer suggesting that community
opposition could be mobilized against regulatory approvals).
The Corporation argues, and the district court agreed, see Group Home, 2023 WL
8004886, at *15, that most of these statements, from the Corporation as well as the
community, do not expressly “reference the disabilities of the Banbury [House’s] potential
residents,” id., so that it would “require[] inferences to find any discriminatory motive,”
Brief of Appellee at 45. But making inferences is what juries are for, and on this record,
we think there is evidence from which a reasonable jury could infer a discriminatory motive
for the Corporation’s refusal to approve Lussi’s proposed group home.
* * *
We of course express no view as to the proper resolution of this long-running
dispute. As we said at the start, while the opposition of the Gibson Island community and
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Corporation to Lussi’s project is clear, the reason for that opposition is not. There is
evidence to support the Corporation’s position that it sought only to safeguard Gibson
Island’s sensitive environment and to preserve responsibly its financial and legal interests
when faced with a persistent, belligerent, and litigious adversary. And there is evidence to
support Lussi’s position that the Corporation’s stated rationales for conditioning approval
of his project on the disputed conditions were pretextual, and that its actual purpose was
retaliatory and discriminatory. The only thing we hold today is that on the sprawling record
before us, there are two sides to this story, not one, making summary judgment
inappropriate. See Liberty Lobby, 477 U.S. at 251–52.
Accordingly, we vacate the district court’s grant of summary judgment to the
Corporation on Lussi’s federal and state retaliation and discrimination claims, and remand
so that a jury may assess the evidence, draw the appropriate inferences, and bring this
matter to a close.
III.
For the foregoing reasons, we vacate the district court’s entry of summary judgment
to Gibson Island Corporation and remand for proceedings consistent with this opinion.
VACATED AND REMANDED