                             UNPUBLISHED ORDER
                        Not to be cited per Circuit Rule 53




           United States Court of Appeals
                            For the Seventh Circuit
                            Chicago, Illinois 60604

                            Submitted August 2, 2006*
                             Decided August 2, 2006

                                      Before

                   Hon. RICHARD D. CUDAHY, Circuit Judge

                   Hon. KENNETH F. RIPPLE, Circuit Judge

                   Hon. DIANE S. SYKES, Circuit Judge

No. 06-1914

DEBORAH WALTON,                              Appeal from the United States District
        Plaintiff-Appellant,                 Court for the Southern District of
                                             Indiana, Indianapolis Division
      v.
                                             No. 1:03-cv-00069-LMJ-WTL
CLAYBRIDGE HOMEOWNERS
ASSOCIATION, INC., et al.,                   Larry J. McKinney,
         Defendants-Appellees.               Chief Judge.

                                    ORDER

      Deborah Walton sued her homeowners’ association and several of her
neighbors, claiming that they violated her rights under the Fair Housing Act, 42
U.S.C. §§ 3601-3631, by harassing her on account of her race. The district court
granted summary judgment for the defendants. We affirm.

     Walton has sparred with the Claybridge Homeowners Association and a
number of neighborhood residents ever since she bought a home in a subdivision


      *
        After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 06-1914                                                                    Page 2

managed by the Association in Carmel, Indiana, in early 2000. Walton’s disputes
with her neighbors and the Association have spawned much federal and state
litigation besides the matter now before us. See Walton v. Rubin & Levin P.C., No.
1:05-cv-01132-LJM-VSS (S.D. Ind. filed Aug. 1, 2005); Walton v. City of Carmel, No.
1:05-cv-0902-RLY-TAB (S.D. Ind. filed June 15, 2005); Walton v. Proffitt, 1:04-cv-
02028-LJM-WTL (S.D. Ind. filed Dec. 14, 2004); Walton v. First Am. Title Ins. Co.,
844 N.E.2d 143 (Ind. App. Ct. 2006); Walton v. Claybridge Homeowners Assoc., Inc.,
792 N.E.2d 104 (Ind. Ct. App. 2003). In the lawsuit underlying this appeal, which
Walton filed in January 2003 with the assistance of counsel, she alleged that the
Association and eleven residents of her predominantly white subdivision have
harassed her since she moved in because she is black. Walton claimed that their
conduct violated § 818 of the Fair Housing Act, see 42 U.S.C. § 3617, which, as
relevant here, makes it unlawful “to coerce, intimidate, threaten, or interfere with
any person in the exercise or enjoyment of” rights protected under the Act. The
defendants initially moved to dismiss Walton’s complaint for failure to state a claim
because, they argued, the Fair Housing Act is concerned with discriminatory
activity intended to thwart home purchases and provides no cause of action under
§ 3617 or any other section for post-acquisition harassment. At that time we had
not spoken about the viability of a claim for post-acquisition discrimination, and the
district court, relying on precedent from outside the circuit, held that § 3617 does
prohibit racial harassment after a home purchase. The court thus denied the
defendants’ motion to dismiss, and the suit proceeded. After discovery the
defendants moved for summary judgment.

       Walton clarified the alleged harassment in her affidavit submitted with her
opposition to the defendants’ motion for summary judgment. The first incident
started with an unsolicited quote for lawn-care services that Walton received in her
mailbox in February or March 2000. She called the company for an explanation,
and the owner told her that the Association wanted to “get rid of her” because she
was a renter. Walton then called defendant Greg Boyd, the president of the
Association, to confront him with this information. According to Walton, Boyd said
that she was “not supposed to be told” what the owner of the lawn-care business
had communicated.

       The next incidents occurred almost a year later, toward the end of 2001, and
involved the Association’s use of certain easements on Walton’s lot. A speed-limit
sign was initially placed near the house of defendant Terri Gregg, who is white, but
when Gregg asked for it to be moved, it was placed on a utility easement located by
Walton’s house. When Walton asked for the sign to be moved, the Association
refused. Walton then moved the sign herself, and the Association sued in state
court to enjoin her from interfering with the sign. Walton, whose residence is at the
entrance of the subdivision, also complained to the Association about the location
and maintenance of a brick wall identifying the subdivision and a decorative
No. 06-1914                                                                    Page 3

wooden fence, both of which sit on her property. The Association told her that the
structures and related landscaping are on its easement and that it had the right to
maintain them. The Association nevertheless hired surveyors to confirm that the
wall and fence were within its easement. According to Walton, when the surveyors
arrived she went outside, and they yelled at her to go back into her house. She
called the police. The dispute led the Association to seek an injunction prohibiting
Walton from interfering with the location and maintenance of the wall and fence.
Walton avers in her affidavit that a white family living across the street has a
corresponding wall and fence on its property but has never been sued by the
Association. Ultimately, the Association won its lawsuit against Walton and
obtained a permanent injunction against her.

       The last major incident occurred in the fall of 2002 when the Association
hired workers to put down mulch in the neighborhood. When they approached
Walton’s property there was an altercation, and she ordered them to leave. The
altercation was witnessed by a landscaper working in Walton’s yard, and by
defendant Mary Louise Spellmeyer, an Association board member who happened to
be there. The landscaper testified by affidavit that, as he was leaving, Spellmeyer
walked by him and said, “There is more than one way to lynch a nigger.”

       These three sets of incidents spread over the course of around 30 months are
the focus of Walton’s harassment claim. The other neighborhood residents named
as defendants—Tolliver, Corydon, Bartley, Van Tassel, Carriger, Freeman, Gould,
and Sullivan—are named only in the caption of Walton’s complaint and are not
again mentioned in any of her submissions. And though Walton listed other
grievances, few of them implicate the Association or any other defendants. Walton
says, for example, that trash was constantly left in her yard and mailbox. One
night she heard a noise and looked out her window to see Gregg picking up wet
newspapers from the street and throwing them in Walton’s yard. Another time a
neighbor not named in this lawsuit called the police on Walton when someone
dumped mulch on the street near her property. The police were called to her house
on other occasions, but Walton does not know who made the calls. She also avers
that the Association stopped sending her newsletters because they mentioned the
ongoing litigation between her and the Association, and she blames the Association
for the removal of her trash cans.

       At summary judgment the defendants renewed their argument that § 3617
(through 42 U.S.C. § 3613(a), the provision creating a private cause of action) does
not provide for a claim of post-acquisition discrimination. By this point we had
addressed the scope of § 3617, and we held that it literally provided a cause of
action only for plaintiffs who complain about discrimination in acquiring, rather
than simply enjoying, property. See Halprin v. Prairie Single Family Homes of
Dearborn Park Assoc., 388 F.3d 327, 328-30 (7th Cir. 2004). We noted, however,
No. 06-1914                                                                   Page 4

that the Department of Housing and Urban Development had issued a regulation
interpreting § 3617 to include post-acquisition discrimination as within the range of
conduct prohibited by the Fair Housing Act. Id. at 330. That regulation forbids
“threatening, intimidating or interfering with persons in their enjoyment of a
dwelling because of the race, color, religion, sex, handicap, familial status, or
national origin of such persons.” 24 C.F.R. § 100.400(c)(2). In two cases we have
observed that the regulation may be invalid insofar as it strays from what is
expressly covered by § 3617, but in neither instance did we explore the issue
because the defendants in both cases waived it. See Halprin, 388 F.3d at 330; East-
Miller v. Lake County Highway Dep’t, 421 F.3d 558, 562 n.1 (7th Cir. 2005). Picking
up on our observation, the defendants argued in the district court that
§ 100.400(c)(2) impermissibly expands the scope of § 3617 by purporting to cover
post-acquisition discrimination. The district court disagreed but granted summary
judgment anyway because Walton had failed to provide a genuine issue of material
fact for trial.

        Walton argues on appeal that there is a genuine issue of material fact about
whether the defendants violated her rights under the Fair Housing Act. The
defendants, like those in Halprin and East-Miller, have waived any challenge to the
validity of § 100.400(c)(2) on appeal by not raising it. Hentosh v. Herman M. Finch
Univ. of Health Scis./Chi. Med. Sch., 167 F.3d 1170, 1173 (7th Cir. 1999). Instead
they contend that Walton has failed to identify any specific shortcoming in the
district court’s analysis and thus has waived any objection to the adverse decision
at summary judgment. With respect to Tolliver, Corydon, Bartley, Van Tassel,
Carriger, Freeman, Gould, and Sullivan, the problem is more a failure of proof than
waiver. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986) (noting
that plaintiff must offer affirmative evidence to defeat summary judgment); Tri-Gen
Inc. v. Int’l Union of Operating Eng’rs, Local 150, AFL-CIO, 433 F.3d 1024, 1038
(7th Cir. 2006) (same). Walton offered no evidence concerning these defendants,
and so their dismissal at summary judgment was a foregone conclusion, as is the
outcome of this appeal with respect to them. But Walton did present evidence as to
Boyd, Gregg, Spellmeyer, and the Association, and as to these defendants Walton
has said enough in her brief, which she filed pro se, to have preserved her argument
for appeal. Cf. Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001).

       We review the district court’s grant of summary judgment de novo. East-
Miller, 421 F.3d at 561. To prevail under § 3617 Walton must show that: (1) she is
a protected individual under the Fair Housing Act; (2) she was engaged in the
exercise or enjoyment of her housing rights; (3) the defendants were motivated in
part by an intent to discriminate; and (4) the defendants coerced, threatened,
intimidated, or interfered with her on account of her activity protected under the
Act. Id. at 562-63. Since no one disputes that Walton has met the first two
elements, she begins her argument by focusing on the third.
No. 06-1914                                                                    Page 5

       But Walton failed to present any direct evidence from which a jury could
conclude that Boyd, Gregg, or the Association engaged in intentional
discrimination. We have recently emphasized that a party wishing to avoid
summary judgment must present some evidence from which a jury could rationally
infer that the events complained of are motivated by intentional discrimination.
See id. at 564. No evidence suggests that the quote from the lawn-care service or
Boyd’s response to it were motivated by racial discrimination. In fact, Walton
herself understood that Boyd “wanted to get rid of her” because he thought she was
a renter rather than a homeowner. Nothing in the record even alludes to a racial
motivation for the Association’s legal action against her; again, she admitted that
the impetus for the legal action was her interference with the Association’s
easements. No evidence was offered to show that Gregg threw wet newspapers in
Walton’s yard because of her race, or that intentional discrimination lay behind the
Association’s decisions not to send her a newsletter or to have her trash cans
removed. And Walton cannot even say who was responsible for the “numerous
occasions” that police were called to her house, or for leaving trash in her yard and
mailbox.

        The direct method, though, is not the only way to prove intentional
discrimination under the Fair Housing Act; a party can use the indirect, burden-
shifting method articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-03 (1973). East-Miller, 421 F.3d at 563 (citing Kormoczy v. Sec’y, U.S. Dep't of
Hous. and Urban Dev. ex rel. Briggs, 53 F.3d 821, 823-24 (7th Cir. 1995)). Walton
invokes that method here by offering evidence that the Association pursued legal
action against her but not against her white neighbors. To create an inference of
discrimination under McDonnell Douglas, Walton had to show that her white
neighbors were similarly situated and treated more favorably. See Ballance v. City
of Springfield, 424 F.3d 614, 617 (7th Cir. 2005) (articulating similarly situated
requirement in Title VII context). This she has not done. The Association sued
Walton over the wall and fence, but the reason is obvious: the defendants offered
uncontradicted evidence that Walton interfered with the Association’s easements by
attempting to dismantle the wall and preventing the Association from maintaining
the fence. There is nothing in the record, however, even hinting that Walton’s
neighbors interfered with the Association’s easements on their lot, so they are not
similarly situated. See Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th
Cir. 2000) (providing that “similarly situated” means that individuals “engaged in
similar conduct without such differentiating or mitigating circumstances as would
distinguish their conduct”). Without such evidence we cannot infer that pursuing
legal action against her was discriminatory. See Goodwin v. Bd. of Trs. of Univ. of
Ill., 442 F.3d 611, 618 (7th Cir. 2006) (refusing to infer intentional discrimination
from treatment of employees who were not similarly situated to plaintiff).
No. 06-1914                                                                  Page 6

       We are left with Spellmeyer’s purported comment that “there is more than
one way to lynch a nigger.” Spellmeyer denies making the statement, but, again,
the procedural posture of this case requires us to construe disputed facts in
Walton’s favor. Walton argues that the phrase is so offensive that it is inherently
coercive or intimidating, especially when coupled with Spellmeyer’s position on the
Association’s board. The defendants call the remark a stray one and argue that the
statement does not rise to the level of coercion, interference, or intimidation
necessary to sustain a claim under § 3617. We noted in East-Miller that racial slurs
can create an inference of race discrimination. 421 F.3d at 563. But we have also
emphasized that, in determining whether conduct violates § 3617, there is a
difference between a pattern of and an isolated act of harassment. Halprin, 388
F.3d at 330. In Halprin we held the plaintiff’s complaint sufficient to survive a
motion to dismiss because the allegations that the homeowners’ association waged a
campaign of harassment against the plaintiff on account of his religion presented
the type of pattern that could violate § 3617. Id. In another case, however, we held
that a landlord’s sexual proposition coupled with caressing his tenant was a single
act of harassment that could not create a hostile housing environment. Dicenso v.
Cisneros, 96 F.3d 1004, 1008-09 (7th Cir. 1996). As in Dicenso, Walton cannot
prevail at trial on Spellmeyer’s remark alone. Although Walton attempts to connect
Spellmeyer’s remark to the actions of the Association by noting her board
membership, we have held that a stray remark must have “some nexus” to the
challenged action. See Scaife v. Cook County, 446 F.3d 735, 741 (7th Cir. 2006).
The remark here is simply too attenuated from any of the Association’s actions.

       In Halprin we anticipated a case like Walton’s, and we recognized that an
isolated racial or religious slur made in the context of a neighborhood quarrel does
not a federal discrimination case create. 388 F.3d at 330. Accordingly, we AFFIRM
the grant of summary judgment for the defendants.
