Linkletter v. Western & Southern Financial Group, Inc.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 17a0064p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GAYLE LINKLETTER, ┐

Plaintiff-Appellant, │

│

> No. 16-3265

v. │

│

│

WESTERN & SOUTHERN FINANCIAL GROUP, INC.; KIM │

CHIODI, │

Defendants-Appellees. │

┘

Appeal from the United States District Court for

the Southern District of Ohio at Cincinnati.

No. 1:15-cv-00162—Timothy S. Black, District Judge.

Argued: January 24, 2017

Decided and Filed: March 23, 2017

Before: MERRITT, CLAY, and DONALD, Circuit Judges.

_________________

COUNSEL

ARGUED: Ted L. Wills, Cincinnati, Ohio, for Appellant. Deborah S. Adams, FROST

BROWN TODD LLC, Cincinnati, Ohio, for Appellees. ON BRIEF: Ted L. Wills, Cincinnati,

Ohio, Jennifer L. Branch, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, for

Appellant. Deborah S. Adams, Neal Shah, FROST BROWN TODD LLC, Cincinnati, Ohio, for

Appellees.

_________________

OPINION

_________________

MERRITT, Circuit Judge. In this Fair Housing Act case that was dismissed for failure to

state a valid claim, the plaintiff, Gayle Linkletter, signed an online petition supporting a

No. 16-3265 Linkletter v. Western & Southern Fin., et al. Page 2

Cincinnati women’s shelter, the Anna Louise Inn, after she had accepted a position with the

defendant, Western & Southern. Western & Southern rescinded its employment agreement with

Linkletter because she signed the petition while the company was engaged in a lengthy real

estate dispute with the women’s shelter over its location in the neighborhood. Residents of the

shelter had previously sued Western & Southern in federal court under the Fair Housing Act,

particularly 42 U.S.C. § 3617. As a result of that earlier litigation, Western & Southern reached

a settlement with the shelter and purchased the property. After Linkletter’s employment contract

was rescinded she sued Western & Southern and its employee, Kim Chiodi, under § 3617 and the

state analog in the Ohio Civil Rights Act. Section 3617 states in the part relevant to this case as

follows:

It shall be unlawful to . . . interfere with any person . . . on account of his having

aided or encouraged any other person in the exercise or enjoyment of, any right

granted or protected by section 3603, 3604, 3605, or 3606 of this title.

42 U.S.C. § 3617.1 Specifically, Linkletter claims her petition-signing encouraged the residents

of the women’s shelter in their rights granted by § 3604, involving discrimination in the rental or

sale of housing:

[I]t shall be unlawful . . . (a) To refuse to sell or rent . . . or to refuse to negotiate

for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any

person because of . . . sex . . . . (b) To discriminate . . . in the provision of services

or facilities in connection therewith, because of . . . sex . . . . (c) To make, print, or

publish . . . any notice, statement, or advertisement, with respect to the sale or

rental of a dwelling that indicates any preference, limitation, or discrimination

based on . . . sex . . . . (d) To represent to any person because of . . . sex . . . that

any dwelling is not available for inspection, sale, or rental when such dwelling is

in fact so available . . . . (e) For profit, to induce or attempt to induce any person

to sell or rent any dwelling by representations regarding the entry or prospective

entry into the neighborhood of a person or persons of a particular . . . sex . . . .

42 U.S.C. § 3604(a)–(e).

We conclude that Linkletter presents a plausible claim for relief. Taking the facts in a

light most favorable to the non-moving party, Linkletter’s petition-signing supporting the shelter

1

Section 3617 reads in full: “It shall be 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 by section 3603, 3604,

3605, or 3606 of this title.” 42 U.S.C. § 3617.

No. 16-3265 Linkletter v. Western & Southern Fin., et al. Page 3

fits within the meaning of the phrase “aided or encouraged” and the defendants’ rescission of

their employment agreement constitutes an “interference” with that encouragement.

Accordingly, the district court was in error when it granted the defendants’ motion to dismiss,

and we reverse the judgment.

I. Background

Western & Southern Financial Group, Inc. is an insurance company located in the Lytle

Park neighborhood of Cincinnati, Ohio. Between 1997 and 2006, Linkletter worked as an

employee of Western & Southern. The parties ended the first employment relationship

amicably. In May 2014, Linkletter’s former colleague at Western & Southern contacted her

about a job opportunity at the company as a Senior Corporate Communications specialist. After

several interviews, Linkletter accepted the position.

On September 8, 2014, before Linkletter began working, Western & Southern’s Senior

Vice President of Human Resources, Kim Chiodi, called Linkletter to notify her that Western

& Southern had rescinded the employment offer. Linkletter claims that Chiodi justified the

rescission due to Linkletter having taken “a position that was contrary to Western & Southern.”

Specifically, Chiodi mentioned Linkletter’s support for the Anna Louise Inn.

Western & Southern had been in a controversial real estate dispute with the Anna Louise

Inn women’s shelter since 2011. See Cooper v. Western & Southern Financial Group, Inc.,

847 F. Supp. 2d 1031, 1032–33 (S.D. Ohio 2012). The shelter, whose mission is “to provide

women with safe, decent, and affordable housing, without regard to their economic condition,

race, or lack of employment,” was located in Lytle Park, the same neighborhood as Western

& Southern. Id. at 1033. The residents of the shelter accused Western & Southern of violating

the Fair Housing Act and the Ohio Civil Rights Act by attempting to illegally pressure them out

of the neighborhood. The presence of the shelter interfered with Western & Southern’s “master

plan for [that] end of town,” and the company was frustrated in attempting to buy the land where

the shelter stood. In December 2010, the president of the company that controls Western

& Southern’s real estate holdings sent a letter to Cincinnati’s mayor, arguing that the shelter was

No. 16-3265 Linkletter v. Western & Southern Fin., et al. Page 4

“not appropriate for the Lytle Park neighborhood” and objecting to “85 low-income permanent

housing units for women” and “housing for up to 25 recovering prostitutes.”

After the shelter refused to sell, Western & Southern engaged in a campaign to force a

sale of the property and get the Anna Louise Inn out of the neighborhood, and the shelter’s

residents sued. When Western & Southern filed a motion to dismiss the complaint pursuant to

Fed. R. Civ. P. 12(b)(6), the district court denied the motion, stating that the residents had

sufficiently pled the elements of a § 3617 claim. Cooper, 847 F. Supp. 2d at 1040. In its

decision, the district court cited allegations that Western & Southern pursued frivolous appeals of

zoning decisions affecting the renovation of the Inn, photographed residents of the shelter

without their permission, and falsely accused residents of engaging in criminal activity and other

inappropriate behavior. Id. at 1039. The court found that “[t]hese actions could be construed as

intimidating, harassing, and threatening to the residents of the Inn . . . . In addition, plaintiffs

allege facts that, if accepted as true, are sufficient to support a finding that Western & Southern

has exercised its powers with a discriminatory animus.” Id. The parties eventually reached a

settlement in which Western & Southern bought the property and removed the shelter from the

Lytle Park neighborhood, and the suit was dismissed.

On February 21, 2012, while the dispute between the shelter and Western & Southern

was ongoing, Linkletter signed a petition expressing support for the shelter. The petition was

titled, “The Anna Louise Inn has my Support!” and the text stated, “I support the mission of the

Anna Louise Inn, which has provided safe and affordable housing for women for 102 years in its

current location.” As a signor, Linkletter also stated that she appreciated “that women in

Cincinnati have an option for permanent supportive housing,” and that “[the] Anna Louise Inn

should remain where it is and continue its mission of providing safe and affordable housing for

single women.” The Inn posted the petition online with the names of the signors, including

Linkletter.

After the termination of her employment contract in 2014, Linkletter sued Western

& Southern and its employee, Kim Chiodi. At the district court, Linkletter claimed that the

rescission of her contract in response to her supporting the housing rights of the Inn’s female

No. 16-3265 Linkletter v. Western & Southern Fin., et al. Page 5

residents violated § 3617 of the Fair Housing Act.2 Linkletter argued that by rescinding the

contract, the defendants interfered with her employment because she encouraged the women of

the Anna Louise Inn in the exercise of their rights under §§ 3603–06. Specifically Linkletter

claimed she encouraged the rights in § 3604(a)–(e) pertaining to anti-discrimination in the rental

or sale of housing. 42 U.S.C. § 3604. The provision Linkletter sued under, Section 3617,

protects individuals who “aided or encouraged” the rights protected by § 3604. 42 U.S.C.

§ 3617.

The defendants moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). The

district court granted the motion, finding that Linkletter did not state a claim for relief. Without

engaging in a trial or a fact-finding process, the district court agreed with the defendants that

Linkletter did not “aid or encourage” the women of the Anna Louise Inn as contemplated by the

statute, that the housing rights protected by § 3604 were not at issue, and that the defendants as

“non-houser employers” did not fall within the scope of the statute.

The district court also dismissed Linkletter’s Ohio Civil Rights Act claims under O.R.C.

§ 4112.02(H)(12) and O.R.C. § 4112.02(I). The language in O.R.C. § 4112.02(H)(12) is nearly

identical to the federal statute, and the district court dismissed the § 4112.02(H)(12) claim for the

same reasons it articulated while analyzing the federal Fair Housing Act. The district court’s

dismissal of Linkletter’s claim under O.R.C. § 4112.02(I) appears in a footnote, holding that

Linkletter never established she engaged in activity protected under the statute. See Linkletter v.

Western & Southern Financial Group, Inc., No. 1:15-cv-162, 2016 WL 659136 at *n.7 (S.D.

Ohio Feb. 18, 2016).

Linkletter now appeals, demanding damages, reinstatement to employment with Western

& Southern, and a declaration that Western & Southern utilized an illegal employment screening

practice by disqualifying potential employees that advocate for the Fair Housing Act and the

Ohio Civil Rights Act.

2

At the district court and in her brief, Linkletter highlights more than just her petition-signing as evidence

of her “public support” for the Anna Louise women. Linkletter believes that the § 3617 analysis should include her

annual financial contributions to the Inn and an incident when she thanked a man on the street who was holding a

sign in support of the Inn. There is no specific allegation that the defendants were aware of these actions, even

accepting the facts pled in a light most favorable to the plaintiff. Since Linkletter fails to explain why these other

actions should be included in the analysis, they will not be considered.

No. 16-3265 Linkletter v. Western & Southern Fin., et al. Page 6

II. Standard of Review

We review a district court’s grant of a motion to dismiss de novo. Winget v. JP Morgan

Chase Bank, N.A., 537 F.3d 565, 572 (6th Cir. 2008). When reviewing the decision to grant a

Fed. R. Civ. P. 12(b)(6) motion, we accept the facts in the light most favorable to the non-

moving party, taking all well-pleaded factual allegations as true. Gunasekera v. Irwin, 551 F.3d

461, 466 (6th Cir. 2009). The plaintiff must plead sufficient facts to state a claim to relief that is

plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A plausible

claim “pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

III. Fair Housing Act

The purpose of the Fair Housing Act is “to provide, within constitutional limitations, for

fair housing throughout the United States.” 42 U.S.C. § 3601. To that end, the Act prohibits

discrimination against “any person because of race, color, religion, sex, familial status, or

national origin” in the rental or sale of housing. 42 U.S.C. § 3604(a). In keeping with the law’s

overarching purpose, 42 U.S.C. § 3617 protects plaintiffs who “aided or encouraged” the

housing rights enumerated in the statute. Id. Essentially, § 3617 allows a plaintiff to step into

the shoes of the victims of certain types of housing discrimination when the plaintiff faces

retribution for providing encouragement to the victims. As part of a remedial statute, the

language of § 3617 should be broadly interpreted and applied with the Fair Housing Act’s

purpose in mind. See Mich. Prot. and Advocacy Serv., Inc. v. Babin, 18 F.3d 337, 347 (6th Cir.

1994); see also Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 209 (1972), abrogated on

other grounds by Thompson v. N. Am. Stainless, LP, 562 U.S. 170 (2011). (“The language of the

Act is broad and inclusive.”).

“The plain meaning of legislation should be conclusive, except in the ‘rare cases [in

which] the literal application of a statute will produce a result demonstrably at odds with the

intentions of the drafters.’” United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242 (1989)

(quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)). Linkletter claims that

by signing a petition she “encouraged” women to pursue their right to be free from sex

No. 16-3265 Linkletter v. Western & Southern Fin., et al. Page 7

discrimination in the rental or sale of housing under § 3604, and that the defendants illegally

retaliated by “interfering” with her employment. She does not accuse them of discriminating

against her or illegally interfering with her housing rights. Rather, she claims that the defendants

interfered with her employment because she aided or encouraged women in the exercise of their

housing rights under § 3604.

A. “Interfere with”

The rescission of an employment contract can qualify as “interference” within the

meaning of the statute. See Walker v. City of Lakewood, 272 F.3d 1114, 1128–30 (9th Cir. 2001)

(explaining that interference refers to “hampering an activity or process” including frustrating the

renewal of employment contracts). The complaint states that Linkletter and Western & Southern

reached an employment agreement. After Linkletter accepted the job, Western & Southern’s

employee Chiodi terminated that employment agreement. It would be an understatement to say

that the defendants’ actions “hampered” Linkletter’s employment process. See id.

The defendants’ interference left Linkletter with a distinct and palpable injury. See Havens

Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982).

The Department of Housing and Urban Development has also interpreted the Fair

Housing Act in a manner consistent with the proposition that “interference” can refer to

employment disputes. It is illegal to “[t]hreaten[] an employee or agent with dismissal or an

adverse employment action, or [to] tak[e] such adverse employment action, for any effort to

assist a person seeking access to the sale or rental of a dwelling or seeking access to any

residential real estate-related transaction, because of the . . . sex . . . of that person . . . .”

24 C.F.R. § 100.400(c)(3).

Moreover, the language “interfere with” should be broadly interpreted to reach all

practices which have the effect of interfering with housing rights. See Babin, 18 F.3d at 347

(citing United States v. Am. Inst. of Real Estate Appraisers, 442 F. Supp. 1072, 1079 (N.D. Ill.

1977)). Therefore the scope of the statute extends to employers who cancel contracts in

retaliation for Fair Housing Act advocacy. See Walker, 272 F.3d at 1126. As the interference

alleged in the present case fits this description, it appears to be covered by the statute.

No. 16-3265 Linkletter v. Western & Southern Fin., et al. Page 8

B. “Aided or Encouraged”

To qualify for a § 3617 claim, a defendant’s “interference” must still be in retaliation for

a plaintiff having “aided or encouraged” another’s enjoyment of the housing rights protected by

§§ 3603–06. 42 U.S.C. § 3617. Linkletter’s action, signing a petition, is seemingly innocuous.

However the language and timing of the petition demonstrate that it existed to encourage the

women to remain in their residence in opposition to the alleged discrimination by Western

& Southern. The defendants point out that the petition did not specifically mention Western

& Southern. But while the petition did not explicitly mention the dispute with Western

& Southern, the context suggests that the litigation with Western & Southern was the basis for

the petition. The petition supported keeping the shelter at the “current location” in “Lytle Park,”

and that “[the] Anna Louise Inn should remain where it is and continue its mission of providing

safe and affordable housing for single women.” For purposes of analyzing the defendants’

motion to dismiss, the court should assume that Linkletter signed the petition to “encourage” the

women in their dispute with Western & Southern.

The district court noted that this act of encouragement by Linkletter is minor

comparatively speaking. See Linkletter, 2016 WL 659136 at *5. However, the defendants fail to

explain why a petition-signing is not encouragement beyond vague assertions that the action

lacks “concreteness” or “directness.” The allegations in the complaint show that the action was

concrete and important enough to alert Linkletter’s future employer to her public support, and

result in her termination. If the encouragement is sufficiently concrete to lead to an individual’s

firing, it is sufficiently concrete to state a plausible claim.

Looking to the “structure, history, and purpose” of the statute, Abramski v. United States,

134 S. Ct. 2259, 2267 (2014), section 3617 was meant to protect assistance and advocacy for

Fair Housing Act rights. A plain-meaning understanding of the word “encouraged” clearly

covers the act of signing a petition advocating support for a women’s shelter. Therefore,

interpreting “encouraged” to include Linkletter’s action is in keeping with both the plain

meaning of the word and the overall purpose of the Fair Housing Act. See Ron Pair Enters.,

Inc., 489 U.S. at 241–42.

No. 16-3265 Linkletter v. Western & Southern Fin., et al. Page 9

C. Nexus to 42 U.S.C. § 3604

Section 3617 requires a nexus with the rights protected by §§ 3603–06, without requiring

an actual violation of the underlying provisions. See Hidden Village, LLC v. City of Lakewood,

Ohio, 734 F.3d 519, 528 (6th Cir. 2013). In the present case, Linkletter claims her signing the

petition implicated the rights of women against discrimination in the rental or sale of housing

under § 3604. The litigation between the women’s shelter and Western & Southern is well

documented in the Cooper case, which described the housing dispute that motivated Linkletter’s

petition-signing. 847 F. Supp. 2d at 1039–40. Just as the female residents of the Anna Louise

Inn in the Cooper case stated a plausible § 3617 claim for relief based on their own § 3604

rights, so too Linkletter states a plausible claim for relief in facing retaliation for encouraging

those rights. See id. at 1040 (finding the shelter’s residents had “alleged facts from which the

Court may plausibly infer that Western & Southern is in a position directly to disrupt [the

residents’] federally-protected rights to reside at the Inn . . . and that Western & Southern ha[d]

exercised its powers with a discriminatory animus.”).

The defendants argue that even if they fired Linkletter because she signed the petition,

Western & Southern’s motivation in the underlying dispute with the women’s shelter was

motivated by economics rather than by sex discrimination. In the past the Sixth Circuit has

required a showing of “discriminatory animus” for § 3617 claims. See Babin, 18 F.3d at 347.

Discriminatory animus requires plaintiffs “to put forth ‘some evidence of discriminatory effect or

intent on the [defendant’s] part.’” to survive summary judgment. Campbell v. Robb, 162 F.

App’x 460, 474 (6th Cir. 2006) (citing Babin, 18 F.3d at 347) (emphasis added).

Western & Southern’s actions against the shelter as alleged in the complaint only affected

one class of people—women. The defendants assert that the motivation for attempting to

remove the shelter from the neighborhood was “economic,” not “sex,” and that financial motives

exclude the case from the type of sex discrimination forbidden by the Fair Housing Act. But a

violation of the Fair Housing Act can be shown either by proof of discriminatory animus or by

proof of disparate impact or effect. See Inclusive Cmtys. Project, Inc. v. Tex. Dept. of Hous. and

Cmty. Affairs, 747 F.3d 275, 280 (5th Cir. 2014). The existence of economic (or religious or

moral) motivations does not protect the defendants from housing discrimination claims when

No. 16-3265 Linkletter v. Western & Southern Fin., et al. Page 10

their actions had a clear discriminatory effect. Economic motivation does not cleanse

discrimination. The facts alleged by Linkletter, and detailed in the underlying Cooper case, are

sufficient to state a valid claim that Western & Southern discriminated against the women of the

shelter. See 847 F. Supp. 2d at 1039–40.

There is also no requirement in § 3617 that the defendant-employer here operate the

housing facility at issue to violate the statute. See Farmer v. City of Cincinnati, No. 1:04-CV-

080, 2006 WL 3762131 at *8 (S.D. Ohio Dec. 21, 2006) (Fair Housing Act claims can go

forward against non-housers where they, “though not owners or agents, are in a position directly

to deny a member of a protected group housing rights.” (quoting Babin, 18 F.3d at 344)).

Section 3617 requires only that the plaintiff “encourage” a housing right protected by § 3604 and

face retaliatory “interference” for the encouragement. See Hidden Village, LLC, 734 F.3d at

528–29 (“[Defendant] threatened [plaintiff] because [plaintiff] had encouraged [victim] to

protect himself against discrimination relating to housing. The statute requires no more.”).

According to the complaint in the present case, the defendants sought to remove housing

designated for a protected class from the neighborhood. As a non-houser that has allegedly

denied housing rights to women, Western & Southern falls within the scope of the Fair Housing

Act.

Taking the complaint in the light most favorable to the plaintiff, we do not agree with the

district court that the petition-signing did not sufficiently implicate opposition to housing

discrimination. A factfinder could conclude that through the campaign against the shelter,

Western & Southern interfered with housing rights under § 3604, and that Linkletter encouraged

those same rights under § 3617. Accordingly, Linkletter states a plausible claim for relief under

the Fair Housing Act, and her claim should not have been dismissed.

IV. Ohio Civil Rights Act

Linkletter also appeals the district court dismissal of her state claims. O.R.C.

§ 4112.02(H)(12); O.R.C. § 4112.02(I). The Ohio Civil Rights Act contains a provision that

mirrors the federal Fair Housing Act, making it unlawful to “[c]oerce, intimidate, threaten, or

interfere with any person . . . on account of that person’s having exercised or enjoyed or having

No. 16-3265 Linkletter v. Western & Southern Fin., et al. Page 11

aided or encouraged any other person in the exercise or enjoyment of, any right granted or

protected by division (H) of this section[.]”3 O.R.C. § 4112.02(H)(12). The statute also contains

a provision that specifically outlaws retaliation for opposition to unlawful discrimination.4

O.R.C. § 4112.02(I). On appeal, neither Linkletter nor the defendants distinguish arguments on

the federal claim from the state claims. In granting the motion to dismiss, the district court cited

Ohio Civil Rights Comm’n v. Harlett for the proposition that “[w]hen interpreting O.R.C.

Chapter 4112, Ohio courts have looked to analogous federal statutes and case law for guidance.”

724 N.E.2d 1242, 1244 (Ohio Ct. App. 1999). Consequently, the dismissal of Linkletter’s state

claims is reversed in accordance with the reversal of her federal Fair Housing Act claim.

The judgment of the district court is REVERSED, and we REMAND the case for

further proceedings.

3

The subsections of division (H) in O.R.C. § 4112.02 generally involve discrimination in the rental or sale

of housing.

4

O.R.C. § 4112.02(I) makes it an unlawful “[f]or any person to discriminate in any manner against any

other person because that person has opposed any unlawful discriminatory practice defined in [§ 4112.02].”