Petition for Writ of Certiorari — Glen St. Andrew Living Community, LLC, et al., Petitioners v. Marsha Wetzel

Supreme Court briefNov 14, 2018

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No. 18-____

IN THE

Supreme Court of the United States

————

GLEN ST. ANDREW LIVING COMMUNITY, LLC, et. al.,

Petitioners,

MARSHA WETZEL,

Respondent.

————

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

————

PETITION FOR A WRIT OF CERTIORARI

————

LISA A. HAUSTEN

Counsel of Record

CLAUSEN MILLER P.C.

10 S. LaSalle St.

16th Floor

Chicago, IL 60603

(312) 855-1010

lhausten@clausen.com

Counsel for Petitioners

November 14, 2018

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

QUESTIONS PRESENTED

This is a case of first impression and national

importance affecting the entire United States housing

industry. It concerns who can be held liable under the

Fair Housing Act (“FHA”), and what kind of conduct is

actionable after a dwelling has been purchased or

leased. In this case, the Seventh Circuit broadly

construed the FHA to eliminate what most courts have

held to be an essential element of a claim under

Sections 3604(b) and 3617—discriminatory intent.

The effect is to dramatically expand the scope of the

FHA and allow a new and unexpected duty to be

imposed on housing providers to guarantee nondiscriminatory living environments, by intervening in

known tenant-on-tenant harassment to end the

unlawful acts of unrelated third parties over whom the

housing provider has little or no control. The newly

created duty lacks discernible limits; landlords can

now be held strictly liable for unlawful conduct by

others that they did not participate in or create.

The questions presented are:

1. By making it unlawful to discriminate because

of a protected trait, did Congress require an

FHA plaintiff to plead and prove discriminatory

intent on the part of the actor sought to be held

liable under Sections 3604(b) and 3617?

2. Whether the scope of the FHA can be expanded

to impose a duty on housing providers to intervene in and end known discrimination committed

by unrelated third-parties after a tenant has

taken occupancy of her dwelling?

(i)

PARTIES TO THE PROCEEDING

Petitioners are Glen St. Andrew Living Community,

LLC, Glen St. Andrew Living Community Real Estate,

LLC, Glen Health & Home Management, Inc., Alyssa

Flavin, Carolyn Driscoll and Sandra Cubas.

Respondent is Marsha Wetzel.

CORPORATE DISCLOSURE STATEMENT

In accordance with United States Supreme Court

Rule 29.6, Petitioners make the following disclosures:

(1) Glen Health & Home Management, Inc. does not

have a parent company and no publicly held company

owns 10% or more of Glen Health & Home

Management, Inc.’s stock.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............................

PARTIES TO THE PROCEEDING ....................

CORPORATE DISCLOSURE STATEMENT .....

TABLE OF AUTHORITIES ................................

OPINIONS BELOW ............................................

JURISDICTION ..................................................

STATUTORY PROVISIONS INVOLVED ..........

INTRODUCTION ................................................

STATEMENT ......................................................

A. Respondent’s Grievances Have Nothing

To Do With Access To Housing ................

B. The District Court Dismissed The Action

For Failure to Plead Discriminatory

Intent And Because the Actions Occurred

After Respondent Began Occupying Her

Apartment .................................................

C. The Court Of Appeals Reinstates

Respondent’s Complaint By Eliminating

The Essential Element of Discriminatory

Intent Thus Allowing The Court To

Create And Impose A New PostAcquisition Duty On Landlords ...............

1. The Court of Appeals Eliminated The

Element Of Discriminatory Intent

Without Analysis Or Precedent ..........

(iii)

TABLE OF CONTENTS—Continued

Page

2. The Court Of Appeals Expands the

Scope of The Statute By Creating A

New Duty For Housing Providers.......

3. The Seventh Circuit Widened The

Circuit Split As To What PostAcquisition Harassment Claims Are

Actionable ............................................

REASONS FOR GRANTING THE WRIT ..........

I. This Court Should Grant Certiorari To

Resolve The Conflict Between The Circuits

Concerning Whether Discriminatory Intent

Is An Essential Element of A Claim

Under Sections 3604(b) and 3617 ............

A. Discriminatory Intent Is Required By

Statute .................................................

B. Discriminatory Intent Serves To

Limit The Scope of The Statute And

Provides The Necessary Causal Link

Between The Offending Conduct And

The Actor To Be Held Liable ...............

C. The Seventh Circuit’s Decision Imposes

Liability Without Discernable Limits

In Contravention Of The FHA ............

D. The Circuits Are Split As To Whether

Discriminatory Intent Is A Required

Element Under Sections 3604(b) and

3617 ......................................................

TABLE OF CONTENTS—Continued

Page

II. This Court Should Grant Certiorari To

Resolve the Circuit Split Concerning

Whether Section 3604(b) Is Limited To

Pre-Sale Harassment Claims ...................

III. The Need For This Court’s Guidance Is

Particularly Acute Given the Tension

Created By HUD’s New Regulation and

the Court Of Appeals’ Decision ................

CONCLUSION ....................................................

APPENDIX

APPENDIX A: OPINION, U.S. Court of

Appeals for the Seventh Circuit (August 27,

2018) ...............................................................

APPENDIX B: MEMORANDUM OPINION,

U.S. District Court for the Northern District

of Illinois (January 18, 2017) .........................

21a

TABLE OF AUTHORITIES

CASES

Page(s)

Austin v. Town of Farmington,

826 F.3d 622 (2d Cir. 2016) ......................

Bank of Am. Corp. v. City of Miami,

197 L. Ed. 2d 678 (2017) ...........................

Bloch v. Frischolz,

587 F.3d 771 (7th Cir. 2009) ....................passim

Britt v. N.Y. City Hous. Auth.,

3 A.D.3d 514 (2004) ..................................

Circuit City Stores, Inc. v. Adams,

532 U.S. 105 (2001) ...................................

Comm. Concerning Cmty. Improvement v.

City of Modesto,

583 F.3d 690 (9th Cir. 2009) ..................... 12, 23

Cox v. City of Dallas,

430 F.3d 734 (5th Cir. 2005) ............... 12, 22, 23

Curtis v. Loether,

415 U.S. 189 (1974) ...................................

Davis v. Monroe Cty. Bd. Of Education,

526 U.S. 629 (1999) ............................. 10, 17, 20

DiCenso v. Cisneros,

96 F.3d 1004 (7th Cir. 1996) ................. 8, 10, 18

Donahue Francis v. Kings Park Manor, Inc.,

No. 15-1823 (2d Cir.).................................

East-Miller v. Lake Cty. Highway Dept.,

421 F.3d 558 (7th Cir. 2005) .....................

Gross v. FBL Fin. Servs.,

557 U.S. 167 (2009) ...................................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Halprin v. Prairie Single Family

Homes of Dearborn Park Ass’n,

388 F.3d 327 (7th Cir. 2004) .....................

Honce v. Vigil,

1 F.3d 1085 (10th Cir. 1993) ..................... 10, 18

Linkletter v. W. & S. Fin. Grp., Inc.,

851 F.3d 632 (6th Cir. 2017) .....................

Meritor Sav. Bank, FSB v. Vinson,

477 U.S. 57 (1986) .....................................

Neudecker v. Boisclair Corp.,

351 F.3d 361 (8th Cir. 2003) .....................

Ohio Civil Rights Comm. v.

Akron Metro Hous. Auth.,

119 Ohio St. 3d 77 (2008) .........................

Rodriguez v. United States,

480 U.S. 522 (1987) ...................................

Smith v. City of Jackson,

544 U.S. 228 (2005) ...................................

Sofarelli v. Pinellas Cty.,

931 F.2d 718 (11th Cir. 1991) ...................

Tex. Dep’t of Hous. & Cmty. Affairs v.

Inclusive Cmtys. Project, Inc.,

135 S. Ct. 2507 (2015) ..............................passim

Trice v. Chicago Housing Authority,

14 Ill. App. 3d 97 (1973) ...........................

Util. Air Regulatory Group v. EPA,

134 S. Ct. 2427 (2014) ...............................

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Wetzel v. Glen St. Andrew Living Cmty., LLC,

901 F.3d 856 (7th Cir. 2018) ....................passim

Wetzel v. Glen St. Andrew Living Cmty., LLC,

No. 16C7598, 2017 U.S. Dist. LEXIS

6437 (N.D. Ill. Jan. 18, 2017) ................... 1, 7, 8

STATUTES AND REGULATIONS

20 U.S.C. § 1681 ...........................................

28 U.S.C. § 1254(1) .......................................

28 U.S.C. § 1331 ...........................................

28 U.S.C. § 1343 ...........................................

28 U.S.C. § 2101(c) .......................................

42 U.S.C. § 3604(a) .......................................

42 U.S.C. § 3604(b) ......................................passim

42 U.S.C. § 3604(f) ........................................

42 U.S.C. § 3613 ...........................................

42 U.S.C. § 3617 ..........................................passim

42 U.S.C. § 3631 ...........................................

24 C.F.R. 100.7(a)(1)(iii) ........................... 7, 24, 25

PETITION FOR A WRIT OF CERTIORARI

Petitioners Glen St. Andrew Living Community,

LLC, Glen St. Andrew Living Community Real Estate,

LLC, Glen Health & Home Management, Inc., Alyssa

Flavin, Carolyn Driscoll and Sandra Cubas (collectively, “Glen St. Andrew”), respectfully petition for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Seventh Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

901 F.3d 856 (7th Cir. 2018). See Pet. App. 1a-20a.

The district court decision granting Petitioners’ motion

to dismiss the FHA claims with prejudice and declining supplemental jurisdiction over state law claims is

available at No. 17C7598, 2017 U.S. Dist. LEXIS 6437

(N.D. Ill. Jan. 18, 2017). See Pet. App. 21a-27a.

JURISDICTION

The Court of Appeals entered its judgment on

August 27, 2018. See Pet. App. 1a. The Petitioners

timely filed this petition for a writ of certiorari on

November 14, 2018. 28 U.S.C. § 2101(c). This Court

has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The Fair Housing Act provides, in relevant part:

As made applicable by section 3603 of this

title and except as exempted by sections

3603(b) and 3607 of this title, it shall be

unlawful—

* * *

(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.

42 U.S.C. § 3604(b).

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 or protected by section 3603,

3604, 3605, or 3606 of this title.

42 U.S.C. § 3617.

INTRODUCTION

The aim of the Fair Housing Act is to ensure

equality in access to housing. It is not a vehicle to

regulate disputes among neighbors or guarantee their

behavior. Yet the Seventh Circuit requires landlords

to do exactly that. The court holds that landlords have

a duty to intervene in known harassment perpetrated

by others over whom they have little or no control or

face liability under the Fair Housing Act.

This newly created duty places the impossible task

of policing communications among tenants on landlords who do not have the means or skill to determine

when speech is protected and when it is actionable,

placing landlords in a trick box. If action is taken

prematurely, landlords may be subject to suit by

evicted tenants that face upheaval and homelessness.

If landlords wait too long, they will be subject to suit

for failing to intervene. Landlords that do intervene

but are unable to control the harasser’s behavior may

nonetheless be subject to suit for failing to stop the

harassment.

A particularly difficult situation arises when a

member of a protected class has a personal dispute

with another tenant and the member of the protected

class repeatedly antagonizes and goads the other tenant

into arguments, some of which degenerate into foul

language and sexual epithets. The landlord can take

no action against the real antagonist because she is a

member of a protected class. At the same time, there

is not sufficient evidence to evict the other tenant who

is drawn into disputes time and again. The landlord

thus may have the appearance of doing nothing when

in fact an investigation of the facts reveals otherwise.

Like the present case, the landlord’s hands are tied,

but the landlord is subject to expensive and protracted

litigation.

If left uncorrected, the decision will have far

reaching effects. A cottage industry will spring forth

that will inundate the federal court system with

complaints alleging all manner of verbal indiscretions

because the prize at the end of the day is attorney’s

fees, not fair housing. Tellingly, Respondent did not

join any of the individuals that committed the harassment, or otherwise seek to directly enjoin their behavior.

To remain viable, landlords will need more insurance to cover baseless lawsuits, making insurance

companies wealthier, but driving the costs of rentals

higher for a segment of society that can least absorb

the increase. The plaintiff and defense bars will benefit from increased litigation, but the judicial system

will suffer with the backlog. In short, the interpretation given the FHA impermissibly extends the reach of

the statute far beyond its intended purpose and stands

to break the back of the statute.

STATEMENT

Respondent Marsha Wetzel, filed a complaint under

Sections 3604(b) and 3617 of the federal Fair Housing

Act against her landlords, the Petitioners. 42 U.S.C.

§§ 3604(b), 3617. Subject matter jurisdiction was

asserted pursuant to 28 U.S.C. §§ 1331, 1343 and 42

U.S.C. §3613.

Although Respondent does not allege that Petitioners

acted, or failed to act, with discriminatory animus, she

nonetheless seeks to hold them liable for failing to

intervene in her arguments with the co-tenants whom

she alleges harassed her on protected grounds.1 The

Seventh Circuit agreed. In order to create a new duty

to intervene, the Court of Appeals eliminates discriminatory intent from Respondent’s disparate-treatment

claim—an element this Court has long held to be an

essential element. Tex. Dep’t of Hous. & Cmty. Affairs

v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2513

(2015). The court further holds a landlord can be held

liable under §3604(b) for harassment that occurs both

before and after occupancy begins. The decision widens

the split in the circuits on both issues necessitating

this Court’s intervention and guidance.

A. Respondent’s Grievances Have Nothing To

Do With Access To Housing.

Respondent’s grievances have nothing to do with her

access to housing. Respondent brought this action

primarily to resolve a personal dispute she was having

with Robert Herr, an elderly male resident in the

independent-living retirement community in which

Respondent leased an apartment. Respondent does not

Respondent also filed a retaliation claim under the same provisions which are not pertinent to the issues under consideration.

allege Petitioners were motivated by discriminatory

intent in renting her the apartment or in providing

services connected with her rental. Rather, she alleges

all of the harassment arose during personal disputes

with her co-tenants. Normally personal disputes

among neighbors would not be actionable in federal

court, but in this case Herr found out Respondent was

a lesbian and began using sex-based language in his

arguments with Respondent.

The issue of whether discrimination based on sexual

orientation constitutes discrimination based on sex for

purposes of Title VIII was not raised in the motion to

dismiss and thus was not before the Seventh Circuit on

appeal. The question before the court was a narrow one—

whether a landlord who has no discriminatory animus

can be held liable for failing to intervene to stop known

tenant-on-tenant harassment on any protected ground.

The facts before the Court of Appeals were also

narrow. It is Petitioners’ position that the vast

majority of allegations are not grounded in reality, but

because the case arises on a motion to dismiss it must

be assumed for purposes of deciding the legal issues

that Herr regularly argued with Respondent and engaged

in sex-based discrimination, and two elderly female

residents subjected Respondent to sexual harassment

on four isolated occasions.2 For purposes of determining

Stripped of their inflammatory verbiage, the complaint (Doc.

1) alleges the following incidents occurred during the period April

2015 and August 2016: April 2015 Herr verbally harassed Respondent

(¶28); July 2015, Herr used a homophobic slur and “rammed”

Respondent’s scooter with his walker tipping her chair off a small

ramp (¶30); continued verbal harassment by Herr (¶32); one of

the females allegedly rammed her wheelchair into the dining

table knocking it onto Respondent (¶33) and spat on Respondent’s

shirt on a separate occasion (¶34); another female made a dispar-

the legal issues the court was thus required to assume

that Respondent was subject to harassment by her cotenants because of her sex and that Petitioners were

aware of the same. Most of the facts, however, serve

only as background rather than the focal point because

Respondent seeks no redress from her co-tenant

harassers, despite the existence of a direct right of

action against them under §3617 for their alleged

unlawful threats and interference with her use and

enjoyment of her apartment.

Instead, Respondent seeks redress from an unrelated

deep-pocket, i.e., Petitioners, but not for any actions

Petitioners took. Rather, Respondent seeks to impose

liability on Petitioners based on one fact—their failure

to intervene in Respondent’s arguments with her cotenants. Importantly, Respondent does not allege that

Petitioners failed to act because of discriminatory animus.

To the contrary, Respondent alleges that when she first

complained about Herr to Petitioners, they took action

and Herr’s harassment decreased for a time, prompting Respondent to send a thank you to Petitioners.

(Doc. 1, ¶29 ). But their actions were not sufficient to

keep Herr’s behavior under control. As time went on,

Respondent alleges Herr continued to harass her, but

Petitioners took no action believing Respondent to be

“a trouble maker who always lies and twists things.”

(Doc. 1, ¶32).

aging statement about Respondent’s sexual orientation (¶33) and

made a homophobic slur on a different occasion (¶35); Herr hit

Respondent’s motorized scooter with his walker and one of the

females reported Respondent had done the hitting (¶36); Respondent was allegedly pushed from behind by an unknown assailant

in the mail room leaving her with a black eye from where she fell

forward on her scooter (¶¶ 44-45, 47); Herr refused to allow Respondent entry into building after Respondent had been smoking (¶59).

It is no accident that Respondent did not allege

Petitioners’ failure to act was motivated by discriminatory intent. After nearly two years of public debate,

24 C.F.R. 100.7(a)(1)(iii) (the “Regulation”), promulgated by the Department of Housing and Urban

Development (“HUD”), was set to take effect the month

after Respondent filed her complaint. The Regulation

impermissibly eliminates the statutory requirement of

discriminatory intent and holds landlords liable under

an even broader standard (used in agency contexts)—

for “failing to take prompt action to correct and end a

discriminatory housing practice by a third-party, where

the person knew or should have known of the discriminatory conduct and had the power to correct it.” 24

C.F.R. 100.7(a)(1)(iii). Respondent relied, inter alia,

on the Regulation in opposing the motion to dismiss.

B. The District Court Dismissed The Action

For Failure to Plead Discriminatory

Intent And Because the Actions Occurred

After Respondent Began Occupying Her

Apartment.

The district court granted Petitioners’ motion to

dismiss. Wetzel v. Glen St. Andrew Living Cmty., LLC,

No. 16C7598, 2017 U.S. Dist. LEXIS 6437 (N.D. Ill.

Jan. 18, 2017). See Pet. App. 21a-27a. Upholding wellestablished precedent, the court ruled that discriminatory intent is an essential element of a §3617 claim.

Id. at *3-4. See Pet. App. 23a-24a. See Bloch v.

Frischolz, 587 F.3d 771, 783 (7th Cir. 2009); EastMiller v. Lake Cty. Highway Dept., 421 F.3d 558, 563

(7th Cir. 2005). Relying on this Court’s decision in

Inclusive Communities, 135 S. Ct. 2507, 2518-19 (2015),

the district court explained that while disparateimpact claims do not require discriminatory intent,

disparate-treatment claims alleged under §3617 do.

Id. at *4. See Pet. App. 24a. Even in claims for hostile

housing, courts require a finding of discriminatory

intent or direct discriminatory conduct by the landlord

or its agents before imposing liability on a landlord.

DiCenso v. Cisneros, 96 F.3d 1004 (7th Cir. 1996)

(apartment owner/manager made sexual advances).

Accord Bloch, 587 F.3d at 783 (condo board applied

rules in discriminatory fashion).

The district court also dismissed Respondent’s

§3604(b) claims on the ground that §3604(b) covers

only harassment claims that interfere with the initial

rental; not claims that occur after a tenant occupies

her apartment, i.e., post-acquisition. Id. at *6-7. See

Pet. App. 25a-26a. The court noted habitability is a

pre-condition of rental, but Respondent did not allege

she had been actually or constructively evicted. Id. To

the contrary, she alleged she continued to reside in her

apartment. Id. at *7. See Pet. App. 26a. Nor was a

contractual connection to Respondent’s lease asserted

that would link the harassment to her initial rental.

None of the rental terms were alleged to be

discriminatory on their face or in application. Rather,

Respondent alleged she experienced discrimination at

the hands of other tenants who were not related to

Petitioners and who had no authority or control over

the terms, conditions or privileges contained in her

rental agreement.3

After dismissing the FHA claims, the court declined to

exercise supplemental jurisdiction over the state law claims

brought under the Illinois Human Rights Act.

C. The Court Of Appeals Reinstates Respondent’s Complaint By Eliminating The Essential Element of Discriminatory Intent Thus

Allowing The Court To Create And Impose

A New Post-Acquisition Duty On Landlords.

The Seventh Circuit reversed. Wetzel v. Glen St.

Andrew Living Cmty., LLC, 901 F.3d 856 (7th Cir.

2018). See Pet. App. 1a-20a. Choosing to interpret the

FHA “more broadly,” the court construed the statute

to reach even those who possess no discriminatory

intent and have not created or engaged in any

discriminatory conduct. Id. at 859. See Pet. App. 2a.

Although the harassment here occurred after Respondent occupied her apartment, and was committed by

unrelated third parties over whom Petitioners had

little control, the court construed the FHA to impose a

new post-acquisition duty on Petitioners to intervene

and stop the known harassment.

1. The Court of Appeals Eliminated

The Element Of Discriminatory Intent

Without Analysis Or Precedent.

The bedrock principle of any disparate-treatment

action is that the party charged must have acted with

discriminatory intent before liability will be imposed.

Inclusive Communities, 135 S. Ct. at 2513. Consistent

therewith, the crux of the district court’s decision was

that the text of the statute and stare decisis require an

FHA plaintiff to plead and prove discriminatory intent

to prevail under Sections 3604(b) and 3617.

The Seventh Circuit, however, split with the majority of courts that hold discriminatory intent to be an

essential element of a cause of action under Sections

3604(b) and 3617, and dismissed the element out of

hand. The court simply states that discriminatory

intent is not a required element for a hostile housing

claim under the FHA, citing DiCenso, supra, and Honce

v. Vigil, 1 F.3d 1085, 1090 (10th Cir. 1993). Neither

case, however, sanctions the elimination of discriminatory intent. In each case the landlord committed the

acts of sexual harassment that gave rise to a hostile

housing claim under the FHA.

2. The Court Of Appeals Expands the

Scope of The Statute By Creating A New

Duty For Housing Providers.

In construing the FHA, the court first looked to

Title VII which governs discrimination in employment

and has often been used for interpretative guidance.

Recognizing that there are “salient differences between

Title VII and the FHA,” the court properly refused to

apply the Regulation enacted by HUD that utilizes the

broader standard governing an employer’s liability for

a hostile work environment, i.e., know or should have

known. Wetzel, 901 F.3d at 866. See Pet. App. 15a.

Turning to Title IX, which seeks to eradicate discrimination in education, the Seventh Circuit looked

to this Court’s decision in Davis v. Monroe Cty. Bd. Of

Education, 526 U.S. 629 (1999). In Davis, liability was

imposed on the school board for its decision to remain

“‘deliberately indifferent to known acts of student-onstudent sexual harassment [when] the harasser is

under the school’s disciplinary authority.’” Weztel, 901

F.3d at 864, quoting Davis, 526 U.S. at 646-47. See

Pet. App. 11a. Although the Court of Appeals acknowledges that in Davis this Court “‘emphasized that the

[school receiving federal funding] exercised substantial

control over both the harasser and the premises on

which the misconduct took place,’” the court nevertheless ignores the crucial distinction. Weztel, 901 F.3d at

864, quoting Davis, 526 U.S. at 645. See Pet. App. 11a.

In requiring landlords to intervene in tenant-ontenant harassment, the court holds that “[c]ontrol in

the absolute sense . . . is not required.” Wetzel, 901

F.3d at 865. See Pet. App. 13a. The court reasoned

that landlords can incentivize tenant behavior through

the eviction process or by suspending privileges to

common areas. Id. See Pet. App. 13a-14a.

3. The Seventh Circuit Widened The Circuit Split As To What Post-Acquisition

Harassment Claims Are Actionable.

In dismissing Respondent’s §3604(b) claims, the

district court followed the en banc decision of the

Seventh Circuit in Bloch, supra, because they occurred

post-acquisition, i.e., after Respondent took occupancy,

and there were no allegations that Petitioners provided

their services or facilities in a discriminatory manner.

Rather, it was the tenants that interfered with the nondiscriminatory services provided by Petitioners.

In Bloch, the en banc court acknowledged that

§3604(b) was more narrow than the corresponding

section in Title VII which provides relief from pre and

post-hiring discrimination. Bloch, 587 F.3d at 779,

construing Halprin v. Prairie Single Family Homes of

Dearborn Park Ass’n, 388 F.3d 327, 329 (7th Cir.

2004). The Bloch court held that Halprin “made it

clear that §3604(b) is not broad enough to provide a

blanket ‘privilege’ to be free from all discrimination

from any source . . . As deplorable as it might have

been, the defendants’ alleged conduct in Halprin was

not linked to any of the terms, conditions, or privileges

that accompanied or were related to the plaintiffs’

purchase of their property. But that’s what §3604(b)

requires.” Bloch, 587 F.3d at 780 (Emphasis added).

The court also acknowledged that post-acquisition

conduct that resulted in constructive eviction was

actionable under §3604(b), because habitability is a

condition of sale. Bloch, 587 F.3d at 779. Thus, while

not prohibiting all post-acquisition conduct, the en

banc court in Bloch made clear that §3604(b) only

applied to post-acquisition discrimination claims that

can be linked to the initial sale or rental of property—

the position adopted by the Fifth Circuit in Cox v. City

of Dallas, 430 F.3d 734 (5th Cir. 2005).

The Seventh Circuit in the present case distinguishes Bloch on the ground that Bloch did not provide

an exhaustive set of circumstances that might give

rise to a post-acquisition claim under §3604(b). “[W]e

were addressing the case before us, and so we simply

noted that those were ‘two possibilities for relief in

[the present] case.’” Wetzel, 901 F.3d at 866 (Internal

citations omitted). See Pet. App. 16a-17a. The Seventh

Circuit proceeds to adopt the position of the Ninth

Circuit in Comm. Concerning Cmty. Improvement v. City

of Modesto, 583 F.3d 690 (9th Cir. 2009), which holds

that §3604(b) broadly “‘encompasses conduct that follows

acquisition’” thereby widening the circuit split on the

issue. Wetzel, 901 F.3d at 867. See Pet. App. 16a-17a.

The Court of Appeals further holds that the tenants’

interference constitutes a violation of the rental contract

with Petitioners, not because the tenants had any way

to change or modify the provisions of the contract, but

because Petitioners failed to intervene to stop the

tenant-on-tenant harassment. Id.

REASONS FOR GRANTING THE WRIT

This case satisfies the standard criteria for certiorari:

it presents pure legal issues that are the subject

of well-recognized, entrenched disagreement, and

that are outcome determinative in the case at hand.

Therefore this Court should grant review.

Squarely at issue is who can be held liable under

the FHA, and what kind of post-acquisition conduct is

actionable. It is well-established that discriminatory

intent is required for disparate-treatment claims like

the ones brought by Respondent. It is required by the

text of the provisions of the FHA. It limits the scope

of the statute. And it provides the link between the

injury and the injurious conduct to avoid baseless

lawsuits.

Yet the Seventh Circuit in one fell swoop eliminates

this essential element, which is required by other

circuits, in order to create a new duty for landlords.

Breach of the duty imposes strict liability on landlords

if they fail to intervene and stop harassment by other,

unrelated third parties over whom the landlord has

little or no control.

Without discriminatory intent, fundamental principles of proximate cause are destroyed thereby allowing

landlords, who have not created or engaged in any

discriminatory conduct, to be held financially liable for

the discriminatory acts of unrelated parties.

The duty is broad and encompassing. Holding that

it arises not only under §3617, but also under §3604(b),

widens the split in the circuits as to the reach of

§3604(b) for post-acquisition conduct. The problem is

further complicated because the duty was created without discernable limits, making landlords guarantors of

tenant behavior. In so doing it dramatically expands

the scope of the FHA far beyond what Congress

intended. While the desire to eliminate discrimination

in housing is the primary focus of the FHA, “‘it

frustrates rather than effectuates legislative intent

simplistically to assume that whatever furthers the

statute’s primary objective must be the law.’” Inclusive

Communities, 135 S. Ct. at 2551 (Alito, J., dissenting),

quoting Rodriguez v. United States, 480 U.S. 522, 526

(1987)(per curiam)(original emphasis).

I. This Court Should Grant Certiorari To

Resolve The Conflict Between The Circuits Concerning Whether Discriminatory

Intent Is An Essential Element of A Claim

Under Sections 3604(b) and 3617.

A. Discriminatory Intent Is Required By

Statute.

This Court has frequently observed that “[e]radicating

intentional discrimination was and is the FHA’s

strategy for providing fair housing opportunities for

all.” Inclusive Communities, 135 S. Ct. at 2537, (Alito,

J., dissenting). See Smith v. City of Jackson, 544 U.S.

228, 258 (2005)(O’Connor, J., concurring in judgment)

(“the predominant focus of antidiscrimination law was

on intentional discrimination.”). The text of Sections

3604(b) and 3617 makes clear that the focus of these

sections is to punish intentional discriminatory conduct.

Section 3604(b), aimed at housing providers like

landlords, makes it unlawful “[t]o discriminate 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” a protected trait.

42 U.S.C. §3604(b)(Emphasis added). The words “to

discriminate” indicate the actor must intentionally

engage in the prohibited conduct. There is no reference to passive behavior. Moreover, the intentional

action must be motivated “because of” the person’s

protected characteristic, i.e., the action must be

motivated by discriminatory animus. The focus of

§3604(b) is exclusively on the motivation of the actor

and thus requires intentional discriminatory conduct

by the actor sought to be charged. In so doing, it

imposes liability on landlords that create or participate in a hostile housing environment.

Section 3617 likewise is aimed at purposeful

conduct motivated by discriminatory intent:

It shall be unlawful to coerce, intimidate,

threaten or interfere . . . with any person . . .

on account of his having exercised or enjoyed

. . . any right granted or protected by section

3603, 3604, 3605, or 3606.

42 U.S.C. §3617(Emphasis added). The words “coerce,

intimidate, threaten or interfere” all connote intentional conduct of a threatening nature.4 The phrase

“on account of” is synonymous with the phrase “because

of” and makes clear that the intentional conduct must

be taken because of the protected trait. Gross v. FBL

Fin. Servs., 557 U.S. 167, 176 (2009). Section 3617

imposes liability on anyone that intentionally interferes with the use or enjoyment of a dwelling because

of a protected trait.

Respondent has asserted a disparate-treatment

claim under Sections 3604(b) and 3617. She alleges

Petitioners discriminated against her by failing to

intervene and stop the harassment Respondent allegedly

suffered at the hands of other tenants. Accordingly, to

prevail on her claims under Sections 3604(b) or 3617,

Respondent must plead and prove discriminatory

Because “coerce,” “threaten” and “intimidate” all indicate deliberate conduct involving the use of threats or force, interference

should likewise be construed to mean hinder or impede another

by the use of threats or force under principles of ejusdem generis.

Principles of ejusdem generis instruct that where a general word

follows a series of specific words, the general word is construed to

embrace only subjects similar in nature to the words that precede

it. Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114-115 (2001).

intent or conduct on the part of Petitioners.

Respondent deliberately has not done.

This

B. Discriminatory Intent Serves To Limit

The Scope of The Statute And Provides

The Necessary Causal Link Between

The Offending Conduct And The Actor

To Be Held Liable.

The requirement of intentional discrimination serves

to limit the scope of the statute. This function is

critical because, as numerous courts have observed,

“[n]either the FHA’s text nor its legislative history

indicates an intent to make ‘quarrels between

neighbors . . . a routine basis for federal litigation.’”

Bloch, 587 F.3d at 780 (Internal citation omitted). The

FHA is thus distinguishable from other acts like Title

VII, where the onus is put directly on the employer to

control the work environment over which it exerts

vast control.

The requirement of intentional discrimination also

serves the essential function of providing the necessary causal link between the offending conduct and

the actor to be held liable. As this Court recently

observed in Bank of Am. Corp. v. City of Miami, “the

FHA requires ‘some direct relation between the injury

asserted and the injurious conduct alleged.’” 197 L.

Ed. 2d 678, 690 (2017)(Internal citations omitted).

The purpose of a strong causality requirement is to

“protect[] defendants from being held liable for . . .

disparities they did not create,” and thereby protect

against abusive claims. Inclusive Communities, 135 S.

Ct. at 2523-24.

In a case like the present one, the requirement of

intentional discrimination serves the same purposes.

It provides the causal link between the injury and the

Petitioners charged and protects Petitioners from

being held liable for discrimination they did not

engage in or create. By eliminating discriminatory

intent, the Seventh Circuit has turned this principle

on its head and broken the causal link required by the

Act. Landlords who have not engaged in any discriminatory conduct can now be held liable for others’

wrongful acts, over whom they have little or no control.

C. The Seventh Circuit’s Decision Imposes

Liability Without Discernable Limits In

Contravention Of The FHA.

The scope of the FHA is also limited by a second

factor. In addition to discriminatory intent, the Court

of Appeals acknowledged that the statute is limited by

the requirement that the harassment be severe or

pervasive before liability will attach. Wetzel, 901 F.3d

at 862. See Pet. App. 7a. Indeed, this concept is

recognized in other anti-discrimination statutes. E.g.,

Davis, 526 U.S. at 650 (liability under Title IX imposed

where sexual harassment is “severe, pervasive, and

objectively offensive”); Meritor Sav. Bank, FSB v.

Vinson, 477 U.S. 57, 67 (1986)(hostile work environment under Title VII requires harassment that is

severe or pervasive). The newly created duty, however, possesses none of these limits. A landlord can be

held liable for failing to intervene in in any known

harassment, regardless of how trivial.

The only limiting factor identified by the court is

whether the landlord has “remedial tools” that can be

used to stop the discriminatory conduct. Wetzel, 901

F.3d at 865 (“We have no quarrel with the idea that

direct liability for inaction makes sense only if defendants had, but failed to deploy, available remedial tools.”).

See Pet. App. 13a. The court identifies eviction, or the

threat of eviction, as the primary remedial tool at the

landlord’s disposal. Id. See Pet. App. 13a-14a. In

theory this option—at least the threat of eviction—is

always available rendering the limit illusory. In short,

the duty imposed by the Court of Appeals is without

limits and subjects landlords to strict liability.

D. The Circuits Are Split As To Whether

Discriminatory Intent Is A Required

Element Under Sections 3604(b) and

3617.

Respondent alleges a disparate-treatment claim

against Petitioners. She alleges Petitioners treated

her in a discriminatory fashion by failing to intervene

to stop the tenant-on-tenant harassment. Respondent

must thus “establish that the [Petitioners] had a discriminatory intent or motive’” as the Second, Sixth and

Eleventh Circuits have held and this Court recently

affirmed in Inclusive Communities, 135 S. Ct. at 2513.

E.g., Linkletter v. W. & S. Fin. Grp., Inc., 851 F.3d 632,

639 (6th Cir. 2017)(“showing of ‘discriminatory animus’

for §3617 claims”); Austin v. Town of Farmington,

826 F.3d 622, 630 (2d Cir. 2016)(“plaintiff must

demonstrate that intentional discrimination motivated defendants’ conduct, at least in part” for §3617);

Sofarelli v. Pinellas Cty., 931 F.2d 718, 723 (11th Cir.

1991) (dismissal where no showing of racial animus).

In the context of a hostile housing environment

specifically, the Tenth Circuit in Honce, supra, permitted a hostile housing claim where the landlord

committed the sexual harassment that interfered with

the tenant’s use and enjoyment of the property. The

landlord’s conduct thus satisfied the element of discriminatory intent. Direct discriminatory conduct was

also present in the Seventh Circuit case of DiCenso,

supra, where, like Honce, the landlord created the

hostile housing environment by propositioning the

tenant. Neither court held discriminatory intent was

unnecessary. Indeed, there was no need to address the

issue since discriminatory conduct by the actor sought

to be held liable was factually alleged in each case.

Though labeled hostile housing, the actions were for

disparate treatment because they sought to hold the

landlord liable for its treatment of the FHA plaintiff.

Standing in opposition is the Eighth, and now the

Seventh Circuit. In Neudecker v. Boisclair Corp., 351

F.3d 361 (8th Cir. 2003), the Eighth Circuit permitted

a hostile disability-harassment environment claim to

proceed under §3604(f) where there were no specific

allegations of discriminatory intent or conduct by the

landlord per se. 42 U.S.C. §3604(f). The harassing

conduct, however, was committed by the children of

the landlord’s management team who were also

tenants in the building. The Eighth Circuit grounded

its decision on concepts borrowed from Title VII

involving the employer-employee relationship. But a

distinguishing feature of Title VII is that liability is

statutorily imposed on the employer and its agents.

No such parallel provision exists under Title VIII.

Rejecting the Eighth Circuit’s approach, the Seventh

Circuit correctly recognized “that there are some potentially important differences between the relationship

that exists between an employer and an employee, in

which one is the agent of the other, and that between

a landlord and a tenant, in which the tenant is largely

independent of the landlord. We thus refrain from

reflexively adopting the Title VII standard and continue our search for comparable situations.” Wetzel,

901 F.3d at 863. See Pet. App. 10a.

In an attempt to justify holding a landlord liable

for the co-tenants’ misconduct, the Seventh Circuit

looks instead to Title IX and this Court’s decision in

Davis. First the court creates a duty (where none had

previously existed), for the landlord to intervene when

made aware of the harassment. Having created the

duty, liability can be imposed for its breach. Namely,

where a landlord knows of the harassment and deliberately choses to ignore it, liability can be imposed for

the landlord’s own negligence. Wetzel, 901 F.3d at 864.

See Pet. App. 11a-12a.

But the Court misapplies Davis. Davis involved a

private right of action for damages against a school

board for student-on-student harassment under Title

IX. 20 U.S.C. § 1681 et seq. The parameters of Title

IX are far different from Title VIII. Title IX prohibits

recipients of federal funding from discriminating on

the basis of protected traits in any educational program or activity and the regulatory scheme “has long

provided funding recipients with notice that they may

be liable for their failure to respond to the discriminatory acts of certain non-agents.” 526 U.S. at 643. In

Davis, limiting parameters existed. The funding

recipient was found liable for its failure to intervene

because it “exercises substantial control over both the

harasser and the context in which the known harassment occurs. Only then can the recipient be said to

‘expose’ its students to harassment or ‘cause’ them to

undergo it ‘under’ the recipient’s programs.” Id. at

645 (Emphasis added).

These essential elements are absent in the landlordtenant context. Landlords, unlike an education funding

recipient or an employer, exercise only limited control

over their tenants. Although a landlord possesses the

power to evict, courts have held the “power of eviction

alone . . . is insufficient to hold a landlord liable for his

tenant’s tortious actions against another.” Ohio Civil

Rights Comm. v. Akron Metro Hous. Auth., 119 Ohio

St. 3d 77, 82 (2008). See also, Britt v. N.Y. City Hous.

Auth., 3 A.D.3d 514 (2004)(control does not arise from

power to evict). Moreover, the incidents in the present

case occurred in Illinois where the law provides that a

landlord is not an insurer against the acts of others,

even when the risk of injury is known. Trice v. Chicago

Housing Authority, 14 Ill. App. 3d 97, 100 (1973).

The statutory requirement of discriminatory intent

confines the scope of the statute and sets limits on

who can be held liable. By eliminating discriminatory

intent, the Seventh and Eighth Circuits have subjected

landlords to strict liability for the discriminatory acts

of unrelated third-parties. In essence, the landlord

becomes the guarantor of discriminatory-free housing.

While discriminatory-free housing is the aim of all,

Congress never intended landlords to be guarantors of

tenant conduct. The structure of the Act demonstrates

that Congress’ intent was to bifurcate responsibility

for eliminating discrimination. Sections 3604(a) and

(b) address discrimination in access to housing.

Section 3617 is aimed at those who discriminate after

occupancy commences. A landlord that obstructs

access to housing can be held liable under §3604. The

same landlord can also be held liable under §3617 for

acts of discrimination during occupancy. But before

liability can be imposed, there must be a showing of

discriminatory intent by the landlord. There is

nothing in the text that allows for shifting liability

from one party to another. The goal is to stop the

harassment by imposing liability directly on the

harasser; not to make landlords the guardians of their

tenants. As this Court held in Curtis v. Loether, the

statute authorizes compensation for discrimination

“caused by the defendant’s wrongful breach.” 415 U.S.

189, 195 (1974)(Emphasis added).

Only this Court can resolve the split in the circuits

and restore the proper interpretation to the statute.

The Court’s ruling, moreover, will be outcome

determinative because Respondent carefully chose

not to make any allegation that Petitioners acted, or

failed to act, because of discriminatory animus.

II. This Court Should Grant Certiorari To

Resolve the Circuit Split Concerning

Whether Section 3604(b) Is Limited To

Pre-Sale Harassment Claims.

Section 3604(b) provides that it shall be unlawful

“[t]o discriminate against any person in the terms,

conditions, or privileges of a sale or rental of a

dwelling, or in the provision of services or facilities in

connection therewith, because of” a protected trait. 42

U.S.C. §3604(b)(Emphasis added). At issue is whether

the reach of §3604(b) is limited to discrimination in the

provision of services in connection with the acquisition

or rental of a dwelling, or whether its reach is broader,

covering discrimination in the provision of services

after occupancy commences.

Taking a textual approach, the Fifth Circuit opined

the statute does not cover post-acquisition/rental

claims. Cox, supra. In Cox, the plaintiffs alleged that

the City of Dallas had “discriminated against them in

the provision of a service—the enforcement of zoning

laws.” 430 F.3d at 745. The Fifth Circuit held that

grammatically, the words “in connection therewith”

must refer to the “sale or rental of a dwelling,” and not

a dwelling generally. Id. (“This reading is grammatically superior and supported by the decisions of many

courts.”). The court explained that “[a]lthough the

FHA is meant to have a broad reach, unmooring the

‘services’ language from the ‘sale or rental’ language

pushes the FHA into a general anti-discrimination

pose, creating rights for any discriminatory act

which impacts property.” Id. at 746. Accordingly, the

court concluded that “services” subject to claims of

discrimination must be “in connection” with the “sale

or rental of a dwelling.” Id. The Fifth Circuit’s

construction is bolstered by the overall structure of the

Act, which provides for post-acquisition discrimination

under §3617. Section 3617 makes it unlawful to

“coerce, intimidate, threaten or interfere . . . with

any person . . . on account of his having exercised or

enjoyed . . . any right granted or protected” by the

FHA. 42 U.S.C. §3617.

The Ninth Circuit has taken the opposite approach,

concluding that §3604(b) reaches both pre and postacquisition discrimination claims. In City of Modesto,

the Ninth Circuit reasoned that “[t]here are few

‘services or facilities’ provided at the moment of sale,

but there are many ‘services or facilities’ provided to

the dwelling associated with the occupancy of the

dwelling. Under this natural reading, the reach of the

statute encompasses claims regarding services or

facilities perceived to be wanting after the owner or

tenant has acquired possession of the dwelling.” 583

F.3d at 713. The Seventh Circuit adopts the position

of the Ninth Circuit in the present case.

Only this Court can resolve the split between the

circuits and accord the FHA its proper interpretation.

The Court’s ruling, moreover, will be outcome determinative because the harassment for which Respondent

seeks redress occurred approximately five months after

she took occupancy and does not involve the provision

of services by Petitioners. Rather, Respondent alleges

that her co-tenants harassed her by interfering with

her use and enjoyment of the common areas of the

retirement facility. Respondent’s claim should properly

be brought under Section 3617 against her co-tenants.

III. The Need For This Court’s Guidance Is

Particularly Acute Given the Tension

Created By HUD’s New Regulation and the

Court Of Appeals’ Decision.

While the statutory interpretation of any federal

statute is important, the FHA is of particular national

significance because Congress has chosen the FHA as

the primary vehicle to help eradicate discrimination in

our nation’s housing. As such, the scope and contours

of the Act are of particular importance on a national

level to achieve uniformity in housing decisions.

The present case presents novel issues that this

Court has not yet addressed, but on which the lower

courts are in need of guidance because the issues are

continuing and affect far more than the individual

litigants in this case. By way of example, a similar

suit is pending in the Second Circuit. Donahue

Francis v. Kings Park Manor, Inc., No. 15-1823 (2d

Cir.). If left uncorrected, the Seventh Circuit’s decision will open the gates to a flood of litigation. The

need for definitive and speedy guidance is especially

critical for landlords since the Court of Appeals’

decision imposes a new duty on housing providers the

contours of which are ill-defined.

Adding to the confusion is the Department of Housing

and Urban Development’s (“HUD”) new regulation

that had been subject to public debate for nearly two

years and became final approximately one month after

Respondent filed suit, and upon which Respondent

relied in part below. 24 C.F.R. 100.7(a)(1)(iii). The

Regulation “mirrors the scope of employee liability

under Title VII for employee-on-employee harassment,”

and imposes liability where the housing provider knew

or should have known of the harassment. Wetzel, 901

F.3d at 866. See Pet. App. 15a. The Seventh Circuit,

however, refused to apply the overbroad Regulation

because of “salient differences between Title VII and

the FHA.” Id. Noting that while it might be possible

to overcome the differences between the two statutes,

“more analysis than HUD was able to offer is necessary before we can take that step. It is enough for

present purposes to say that nothing in the HUD rule

stands in the way of recognizing Wetzel’s theory.” Id.

The court thus side-stepped the new Regulation, leaving its validity in question, but not making the law under

which housing providers must operate any more clear.

The Court of Appeals effectively modified the

Regulation for HUD, imposing liability on housing

providers for failing to intervene in known tenant-ontenant harassment. But neither a court nor an

administrative agency may “rewrite clear statutory

terms to suit its own sense of how the statute should

operate.” Util. Air Regulatory Group v. EPA, 134 S.

Ct. 2427, 2446 (2014). Courts and housing providers

across the county will be faced with trying to figure out

whether to apply the HUD Regulation or the Seventh

Circuit’s court-made modification. The state of the law

should not be left in flux. This Court needs to provide

guidance as to the correct interpretation of the FHA

before the housing market becomes embroiled in

unreasonable and unfounded litigation.

This case is particularly well positioned to allow the

Court to focus exclusively on the legal issues at hand

because it is undisputed that the alleged tenant-ontenant harassment occurred post-sale and the Petitioners

did not act with discriminatory animus.

Petitioners submit that the individuals engaged in

the harassing conduct must answer for their misdeeds,

not unrelated parties. That is the intent of the FHA

and it is manifest in its text. Section 3631, moreover,

imposes penalties of fine and imprisonment for acts of

willful discrimination under §3617. 42 U.S.C. §3631.

A landlord that does not create or engage in any

discriminatory conduct should not serve time or be

held financially responsible for tenants or their invitees

over whom the landlord may little or no control.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

LISA A. HAUSTEN

Counsel of Record

CLAUSEN MILLER P.C.

10 S. LaSalle St.

16th Floor

Chicago, IL 60603

(312) 855-1010

lhausten@clausen.com

Counsel for Petitioners

November 14, 2018

APPENDIX

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

————

No. 17-1322

————

MARSHA WETZEL,

Plaintiff-Appellant,

GLEN ST. ANDREW LIVING COMMUNITY, LLC, et al.,

Defendants-Appellees.

————

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 16 C 7598 — Samuel Der-Yeghiayan, Judge.

————

ARGUED FEBRUARY 6, 2018 —

DECIDED AUGUST 27, 2018

————

Before WOOD, Chief Judge, and KANNE and HAMILTON,

Circuit Judges.

WOOD, Chief Judge. Within months of her arrival at

Glen St. Andrew Living Community (“St. Andrew”),

Marsha Wetzel faced a torrent of physical and verbal

abuse from other residents because she is openly lesbian.

Time and again, she implored St. Andrew’s staff to

help her. The staff’s response was to limit her use of

facilities and build a case for her eviction.

Wetzel sued St. Andrew, alleging that it failed to

provide her with non-discriminatory housing and that

it retaliated against her because of her complaints,

each in violation of the Fair Housing Act (FHA or Act),

42 U.S.C. §§ 3601–3619. St. Andrew insists that the

Act affords Wetzel no recourse, because it imposes

liability only on those who act with discriminatory

animus, an allegation Wetzel had not expressly made

of any defendant. The district court agreed and dismissed Wetzel’s suit. We read the FHA more broadly.

Not only does it create liability when a landlord

intentionally discriminates against a tenant based on

a protected characteristic; it also creates liability

against a landlord that has actual notice of tenant-ontenant harassment based on a protected status, yet

chooses not to take any reasonable steps within its

control to stop that harassment. We therefore reverse

the district court’s grant of St. Andrew’s motion to

dismiss and remand for further proceedings.

After her partner of 30 years died, Wetzel moved

into St. Andrew, a residential community for older

adults; she continues to live there today. Her tenancy,

presumably like that of St. Andrew’s other residents,

is governed by a form Tenant’s Agreement (“Agreement”).

Beyond a private apartment, the Agreement guarantees three meals daily served in a central location,

access to a community room, and use of laundry facilities. It conditions tenancy at St. Andrew on refraining

from “activity that [St. Andrew] determines unreasonably interferes with the peaceful use and enjoyment of

the community by other tenants” or that is “a direct

threat to the health and safety of other individuals.” It

also requires compliance with the “Tenant Handbook,”

which may “be amended from time to time.” The

Agreement authorizes St. Andrew to institute eviction

proceedings against a tenant in breach, and if St.

Andrew prevails, the breaching tenant must also

reimburse St. Andrew for its attorney’s fees. (Indeed,

the Agreement requires reimbursement of St. Andrew’s

fees related to an alleged violation or breach even if

suit has not been instituted.)

After arriving at St. Andrew, Wetzel spoke openly to

staff and other residents about her sexual orientation.

She was met with intolerance from many of them. The

following is just a sample of what Wetzel has alleged

that she endured. At this early stage of the litigation,

we accept her account as true, recognizing that St.

Andrew will have the right to contest these assertions

at a trial.

Beginning a few months after Wetzel moved to St.

Andrew and continuing at least until she filed this

suit (a 15-month period), residents repeatedly berated

her for being a “fucking dyke,” “fucking faggot,” and

“homosexual bitch.” One resident, Robert Herr, told

Wetzel that he reveled in the memory of the Orlando

massacre at the Pulse nightclub, derided Wetzel’s son

for being a “homosexual-raised faggot,” and threatened to “rip [Wetzel’s] tits off.” Herr was the primary,

but not sole, culprit. Elizabeth Rivera told Wetzel that

“homosexuals will burn in hell.”

There was physical abuse too. Wetzel depends on a

motorized scooter. Herr at one time rammed his

walker into Wetzel’s scooter forcefully enough to knock

her off a ramp. Rivera bashed her wheelchair into a

dining table that Wetzel occupied, flipping the table on

top of Wetzel. In yet another incident, Wetzel was

struck in the back of the head while alone in the

mailroom; the blow was hard enough to push her from

her scooter, and she suffered a bump on her head and

a black eye. She did not see the assailant, but the

person said “homo” when attacking her. Following this

mugging, Herr taunted Wetzel, rubbing his head and

saying “ouch.” Wetzel also had two abusive trips in the

elevator. During the first, Rivera spat on her and

hurled slurs. During the second, Wetzel, Herr, and

another resident, Audrey Chase, were together in the

elevator when Herr again hit Wetzel’s scooter with his

walker.

Wetzel routinely reported the verbal and physical

abuse to St. Andrew’s staff, including Carolyn Driscoll,

Sandra Cubas, and Alyssa Flavin (the “management

defendants”). Wetzel’s initial complaints won her a brief

respite, prompting her to draft a thank-you note. But

the management defendants, among whom we need

not distinguish for purposes of this appeal, otherwise

were apathetic. They told Wetzel not to worry about

the harassment, dismissed the conduct as accidental,

denied Wetzel’s accounts, and branded her a liar.

Wetzel’s social worker accompanied her to one meeting

about the harassment; despite that, the managers

denounced Wetzel as dishonest.

Had the management defendants done nothing but

listen, we might have a more limited case. But they

took affirmative steps to retaliate against Wetzel for

her complaints. For example, they relegated Wetzel to

a less desirable dining room location after she notified

them about being trampled by Rivera. Following other

complaints, they barred her from the lobby except to

get coffee and they halted her cleaning services, thus

depriving her of access to areas specifically protected

in the Agreement. They falsely accused Wetzel of

smoking in her room in violation of St. Andrew’s

policy. Early one morning, two staff members woke

Wetzel up and again accused her of smoking in her

room. When she said that she had been sleeping, one

of them slapped her across the face. One month,

Wetzel did not receive the customary rent-due notice,

though other tenants did. She remembered to pay on

time, but she had to pry a receipt from management.

In response, Wetzel changed her daily routine. She

ate meals in her room, forgoing those included as part

of the Agreement. She stopped visiting the third floor

of St. Andrew, where Herr lived. She did not use the

laundry room at hours when she might be alone. And

she stayed away from the common spaces from which

she had been barred by management.

Eventually Wetzel brought this action against the

management defendants and the entities that own

and operate St. Andrew (the “corporate defendants”).

Unless the distinction matters, we refer to the group

collectively as defendants or St. Andrew. She alleged

that St. Andrew failed to ensure a non-discriminatory

living environment and retaliated against her for

complaining about sex-based harassment, each in

violation of the FHA. The complaint included related

state claims.

All of the defendants moved for dismissal, contending that the FHA does not make a landlord accountable

for failing to stop tenant-on-tenant harassment unless

the landlord’s inaction was animated by discriminatory animus. In the alternative, the defendants argued

that Wetzel’s harassment claim must be dismissed

insofar as it relied on 42 U.S.C. § 3604(b) because that

section does not cover post-acquisition harassment

claims—in other words, harassment claims brought by

a tenant already occupying her home. The defendants

also asserted that Wetzel’s retaliation claim failed

because it too lacked an allegation that the defendants

were motivated by discriminatory animus. The district

court agreed with each of the defendants’ arguments

and dismissed the harassment claim. It dismissed the

retaliation claim without further discussion. With the

federal claims gone, the court chose to relinquish

supplemental jurisdiction over the state claims.

Wetzel appeals the dismissal of her suit.

As we recognized in Bloch v. Frischholz, 587 F.3d

771 (7th Cir. 2009) (en banc), the protections afforded

by the Fair Housing Act do not evaporate once a

person takes possession of her house, condominium, or

apartment. The question before us, while an important

one, is thus narrow: does the Act cover the particular

kinds of post-acquisition discrimination that Wetzel

suffered?

Under 42 U.S.C. § 3604(b), it is unlawful “[t]o 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.” In addition, the Act makes

it unlawful “to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment

of . . . any right granted or protected by section . . .

3604 . . . of this title.” 42 U.S.C. § 3617. Among other

things, these sections prohibit discriminatory harassment that unreasonably interferes with the use and

enjoyment of a home—by another name, a hostile

housing environment. Krueger v. Cuomo, 115 F.3d

487, 491 (7th Cir. 1997); DiCenso v. Cisneros, 96 F.3d

1004, 1008 (7th Cir. 1996); see also Bloch, 587 F.3d at

781 (recognizing that the protections under sections

3604(b) and 3617 may be coextensive).

A hostile-housing-environment claim requires a

plaintiff to show that: (1) she endured unwelcome

harassment based on a protected characteristic; (2) the

harassment was severe or pervasive enough to interfere with the terms, conditions, or privileges of her

residency, or in the provision of services or facilities;

and (3) that there is a basis for imputing liability to

the defendant. See DiCenso, 96 F.3d at 1008; see also

Alamo v. Bliss, 864 F.3d 541, 549 (7th Cir. 2017)

(listing elements of a Title VII hostile-workplace claim);

Honce v. Vigil, 1 F.3d 1085, 1090 (10th Cir. 1993)

(adopting elements of a Title VII hostile-workplace

claim for the FHA).

St. Andrew agrees that our ruling in Hively v. Ivy

Tech Community College of Indiana, 853 F.3d 339 (7th

Cir. 2017) (en banc), holding that discrimination based

on sexual orientation qualięes as discrimination based

on sex under Title VII, applies with equal force under

the FHA. We therefore move directly to the second

element of the case: whether the harassment from

which Wetzel suffered was severe or pervasive enough

to interfere with her enjoyment of her dwelling.

Harassment is severe or pervasive if it objectively

interferes with the enjoyment of the premises or

inhibits the privileges of rental. DiCenso, 96 F.3d at

1008. That standard requires us to consider the

totality of the circumstances, including the frequency

of the discriminatory conduct, its severity, and whether

it is physically threatening or humiliating rather than

merely offensive. Alamo, 864 F.3d at 549–50. There is

no “magic number of instances” that must be endured

before an environment becomes so hostile that the

occupant’s right to enjoyment of her home has been

violated. Id. at 550. While isolated minor affronts are

not enough, DiCenso, 96 F.3d at 1008, either a small

number of “severe episode[s]” or a “relentless pattern

of lesser harassment” may suffice, Alamo, 864 F.3d at

550 (quoting Cerros v. Steel Techs., Inc., 398 F.3d 994,

951 (7th Cir. 2005)).

Though it need be only one or the other, the

harassment Wetzel describes plausibly can be viewed

as both severe and pervasive. For 15 months, she was

bombarded with threats, slurs, derisive comments

about her family, taunts about a deadly massacre,

physical violence, and spit. The defendants dismiss

this litany of abuse as no more than ordinary “squabbles” and “bickering” between “irascible,” “crotchety

senior resident[s].” A jury would be entitled to see the

story otherwise. (We confess to having trouble seeing

the act of throwing an elderly person out of a motorized scooter as one of the ordinary problems of life in a

senior facility.) Wetzel has presented far more than “a

simple quarrel between two neighbors or [an] isolated

act of harassment.” See Halprin v. Prairie Single

Family Homes of Dearborn Park Ass’n, 388 F.3d 327,

330 (7th Cir. 2004).

That takes us to the main event: Is there a basis to

impute liability to St. Andrew for the hostile housing

environment? This question is new to our circuit.

Our response begins, as it must, with the text of the

statute. Duncan v. Walker, 533 U.S. 167, 172 (2001).

Again, 42 U.S.C. § 3604(b) makes it unlawful “[t]o

discriminate . . . because of . . . sex,” and 42 U.S.C.

§ 3617 forbids a housing provider to “interfere with

any person in the exercise or enjoyment of . . . any right

granted or protected by section . . . 3604 . . . of this

title.” The focus on the actor rather than the benefitted

class, St. Andrew deduces, confines the world of

possible defendants under these sections to those

accused of carrying discriminatory animus. But St.

Andrew relies on language defining the substantive

contours of an FHA action to ascertain a landlord’s

potential liability for actionable abuse—in other words,

it is looking at what is prohibited, not who is subject

to those prohibitions. As the Supreme Court’s cases in

analogous areas demonstrate, the questions are different. See Davis v. Monroe Cnty. Bd. of Educ., 526 U.S.

629, 639 (1999) (distinguishing the scope of behavior

proscribed under Title IX from availability of private

suit); Faragher v. City of Boca Raton, 524 U.S. 775,

788–89 (1998) (separating the analysis of the substantive contours of a forbidden hostile environment

claim under Title VII from the rules for determining

employer liability); Meritor Sav. Bank, FSB v. Vinson,

477 U.S. 57, 72 (1986) (telling lower courts to look to

common-law principles for guidance on employer liability under Title VII). True, a sex-harassment claim

under the FHA demands sex-based discrimination,

but Wetzel has alleged such discrimination. On its

face, the Act does not address who may be liable when

sex-based discrimination occurs or under what circumstances. Cf. Burlington Indus., Inc. v. Ellerth, 524 U.S.

742, 754–55 (1998) (considering proper vicarious liability standard for an employer for purposes of Title VII).

Because the text of the FHA does not spell out a test

for landlord liability, we look to analogous anti-discrimination statutes for guidance. One natural point

of reference is Title VII, which governs discrimination

in employment. It and the FHA have been described

as “functional equivalent[s]” to be “given like construction and application.” Kyles v. J.K. Guardian Sec. Servs.,

Inc., 222 F.3d 289, 295 (7th Cir. 2000); see also Texas

Dep’t of Hous. & Cmty. Affairs v. Inclusive

Communities Project, Inc., 135 S. Ct. 2507, 2516 (2015)

10a

(comparing section 3604(a) of the FHA to Title VII);

Bloch, 587 F.3d at 779 (noting that section 3604(b)

mirrors Title VII). The Supreme Court’s interpretation

of Title VII’s parallel section is illuminating. That

section makes it unlawful “to discriminate against any

individual . . . because of . . . sex.” 42 U.S.C. § 2000e2(a)(1). Under operative language in Title VII identical

to that of the 42 U.S.C. § 3604(b), an employer may be

liable under some circumstances when its own

negligence is a cause of prohibited harassment.

Burlington Indus., 524 U.S. at 758–59. Indeed, “when

Congress uses the same language in two statutes

having similar purposes, particularly when one is

enacted shortly after the other, it is appropriate to

presume that Congress intended that text to have the

same meaning in both statutes.” Smith v. City of

Jackson, 544 U.S. 228, 233 (2005). The FHA followed

Title VII by four years. See Civil Rights Act of 1964 §

703; Civil Rights Act of 1968 § 804. St. Andrew

provides no reason why the FHA requires in all

instances

that

the

defendant

acted

with

discriminatory animus when an identically worded

statute has not been read in such a manner. As a

textual matter, we see none.

We recognize, however, that there are some potentially important differences between the relationship

that exists between an employer and an employee, in

which one is the agent of the other, and that between

a landlord and a tenant, in which the tenant is largely

independent of the landlord. We thus refrain from

reflexively adopting the Title VII standard and continue our search for comparable situations.

That takes us to Title IX of the Education

Amendments of 1972, 20 U.S.C. §§ 1681–1688. Like

the FHA and Title VII, Title IX aims to eradicate sex-

11a

based discrimination from a sector of society—

education. The Supreme Court has held that Title IX

supports a private right of action on the part of a

person who experiences sex discrimination in an

education program or activity receiving federal financial aid. Cannon v. Univ. of Chicago, 441 U.S. 677,

688–89 (1979). In Davis v. Monroe County Board of

Education, the Court confronted the question whether

a school district’s “failure to respond to student-onstudent harassment in its schools can support a private

suit for money damages.” 526 U.S. at 639. Because

Title IX was enacted pursuant to the Spending Clause,

private damages were available against a funding

recipient only if it had adequate notice of its potential

liability. Id. at 640. Applying that limiting principle,

the Court held that the district could be held accountable only for its own misconduct. Id. But that is just

what the Davis plaintiff was trying to do. As the Court

put it, “petitioner attempts to hold the Board liable for

its own decision to remain idle in the face of known

student-on-student harassment in its schools.” Id. at

641. Indeed, the district itself subjected the plaintiff to

discrimination by remaining “deliberately indifferent

to known acts of student-on-student sexual harassment [when] the harasser is under the school’s

disciplinary authority.” Id. at 646–47. It emphasized

that the recipient of funds exercised substantial

control over both the harasser and the premises on

which the misconduct took place. Id. at 645.

Much of what the Court said in Davis can be applied

readily to the housing situation. In Davis, the fund

recipient’s own misconduct subjected the student to

actionable sex-based harassment. Here, we need look

only to the management defendants themselves, asking

whether they had actual knowledge of the severe

harassment Wetzel was enduring and whether they

12a

were deliberately indifferent to it. If so, they subjected

Wetzel to conduct that the FHA forbids. (We say

nothing about the situation in a setting that more

closely resembles custodial care, such as a skilled

nursing facility, or an assisted living environment, or

a hospital. Any of those are different enough that they

should be saved for another day.) Wetzel may be in

unchartered territory, but the Supreme Court’s interpretation of analogous anti-discrimination statutes

satisfies us that her claim against St. Andrew is covered by the Act.

St. Andrew offers several reasons why, in its view,

we should not adopt the analysis we have just laid out.

We respond to the most important points. It argues

that there is no agency or custodial relationship between

a landlord and tenant, and from that it reasons that

a landlord has no duty to protect its tenants from

discriminatory harassment. But we have not gone that

far: we have said only that the duty not to discriminate

in housing conditions encompasses the duty not to

permit known harassment on protected grounds. The

landlord does have responsibility over the common

areas of the building, which is where the majority of

Wetzel’s harassment took place. And the incidents

within her apartment occurred precisely because the

landlord was exercising a right to enter. More broadly,

St. Andrew has a statutory duty not to discriminate.

As the Supreme Court said, the FHA “defines a new

legal duty, and authorizes the courts to compensate a

plaintiff for the injury caused by the defendant’s

wrongful breach.” Curtis v. Loether, 415 U.S. 189, 195

(1974). The same is true of an action under Title VII

or Title IX. See Dunn v. Washington, 429 F.3d 689, 691

(7th Cir. 2005); Davis, 526 U.S. at 643.

13a

We need not address St. Andrew’s arguments about

vicarious liability, because it is irrelevant here to the

management defendants’ possible liability. (The Supreme

Court has held already that the Act imposes vicarious

liability on a corporation, but not upon its officers or

owners. See Meyer v. Holley, 537 U.S. 280, 285–86

(2003).) The management defendants’ liability, if any

after a full trial, would be direct—the result of standing pat as Wetzel reported the barrage of harassment.

Because liability is direct, “it makes no difference

whether the person whose acts are complained of is

an employee, an independent contractor, or for that

matter a customer . . . . The genesis of inequality

matters not; what does matter is how the employer

handles the problem.” Dunn, 429 F.3d at 691. A school

district’s liability under Title IX is the same. Davis,

526 U.S. at 640–43.

St. Andrew complains that it would be unfair to hold

it liable for actions that it was incapable of addressing,

but we are doing no such thing. We have no quarrel

with the idea that direct liability for inaction makes

sense only if defendants had, but failed to deploy,

available remedial tools. Id. at 644; Dunn, 429 F.3d at

691. St. Andrew protests that it can only minimally

affect the conduct of its tenants because tenants

expect to live free from a landlord’s interference.

Control in the absolute sense, however, is not

required for liability. Liability attaches because a

party has “an arsenal of incentives and sanctions . . .

that can be applied to affect conduct” but fails to use

them. Id. St. Andrew brushes aside the many tools for

remedying harassment that it has pursuant to the

Agreement. For example, the Agreement allows St.

Andrew to evict any tenant who “engages in acts or

omissions that constitute a direct threat to the health

14a

and safety of other individuals” or who “engage[s] in

any activity that [St. Andrew] determines unreasonably interferes with the peaceful use and enjoyment of

the community by other tenants.” The mere reminder

that eviction (along with liability for attorneys’ fees)

was a possibility might have deterred some of the

bad behavior. St. Andrew also could have updated the

Tenant Handbook to clarify the anti-harassment and

anti-abuse provisions. With respect to the common

areas, St. Andrew could have suspended privileges for

tenants who failed to abide by the anti-harassment

policies, instead of taking a blame-the-victim approach.

If liability is possible here, St. Andrew warns, then

landlords may just renounce control of the premises

altogether. But unless the rental unit is a detached,

single-family dwelling, such total abandonment is not

a practical possibility. St. Andrew itself had a common

living area, a common dining area, common laundry

facilities, and hallways. It is hard to believe that a

total disclaimer of liability would be in its own best

interest. In addition, contract law is not the exclusive

source of a landlord’s duties or powers. Property law

governs landlord-tenant relations as well. A landlord

typically must provide its tenants a residence that is

free from “interfer[ence] with a permissible use of

the leased property by the tenant.” RESTATEMENT

(SECOND) OF PROP.: LAND. & TEN. § 6.1. The obligation

is breached even if a third party causes the interference, so long as the disturbance was “performed on

property in which the landlord has an interest” and

the “conduct could be legally controlled by [the landlord].” Id. § 6.1 cmt. d. Inherent powers spring from

that obligation. Cf. id. § 6.1 cmt. d, illus. 10–11

(illustrating that a landlord breaches its obligation to

a tenant if the landlord fails to act after learning that

conduct performed on the owned property interferes

15a

with the tenant’s permissible use of the leased

property). And if need be, there is always the right of

exclusion, which is “[o]ne of the main rights attaching

to property.” Byrd v. United States, 138 S. Ct. 1518,

1527 (2018) (citing 2 W. Blackstone, Commentaries on

the Laws of England, ch. 1). The same kinds of steps

we already mentioned could have been justified as a

matter of property law.

Seeking a broader ruling, Wetzel points to a rule

interpreting the FHA that the U.S. Department of

Housing and Urban Affairs (HUD) published in 2016.

The HUD rule interprets the FHA to make a landlord

directly liable for failing to “take prompt action to

correct and end a discriminatory housing practice by a

third party” if the landlord “knew or should have known

of the discriminatory conduct and had the power to

correct it.” 24 C.F.R. § 100.7(a)(1)(iii). HUD’s rule mirrors the scope of employee liability under Title VII for

employee-on-employee harassment. We have no need,

however, to rely on this rule. As we noted earlier, there

are salient differences between Title VII and the FHA.

In the end, it is possible that they could be overcome,

but more analysis than HUD was able to offer is

necessary before we can take that step. It is enough for

present purposes to say that nothing in the HUD rule

stands in the way of recognizing Wetzel’s theory.

It is important, too, to recognize that the facts

Wetzel has presented (which we must accept at this

stage) go far beyond mere rudeness, all the way to

direct physical violence. This case is thus not, as St.

Andrew would have it, one about good manners.

Courts around the country have policed that line for

years in the context of Title VII, for which they have

ensured that the standard is “sufficiently demanding

to ensure that Title VII does not become a general

16a

civility code,” and “filter[s] out complaints attacking

the ordinary tribulations of the workplace, such as

the sporadic use of abusive language, gender-related

jokes, and occasional teasing.” Faragher, 524 U.S. at

788 (citations omitted). We have no reason not to

expect the same discipline here.

III

In the alternative, St. Andrew urges that Wetzel’s

section 3604(b) claim falls outside the scope of postacquisition actions available under that section of

the FHA. Our treatment of this argument might have

little effect on the outcome of this case, because Wetzel’s

harassment claim invokes the protections of both

section 3604(b) and section 3617. And a claim alleging

a post-acquisition pattern of harassment can proceed

under section 3617 even if there is no route for relief

under section 3604. Halprin, 388 F.3d at 330. St.

Andrew nonetheless maintains that Wetzel’s section

3604(b) claim is unavailable post-acquisition.

In Bloch, the en banc court took a careful look at the

availability of post-acquisition claims under section

3604(b). 587 F.3d at 779–81. We identified two situations in which such a claim could proceed: (1) when

discriminatory conduct constructively evicts a resident,

and (2) when occupancy is governed by discriminatory

terms (in that case, a condo association rule that

prohibited hanging mezuzot and thus discriminated

against Jews). Id. at 779–80. As to the first situation,

we reasoned that habitation is a “privilege of sale.” Id.

As to the second, the Bloch family’s adherence to the

discriminatory rule was a “condition of sale.” Id. St.

Andrew reads Bloch as identifying the exclusive set of

post-acquisition claims that would be possible under

section 3604(b). But we said no such thing. Instead, as

courts do, we were addressing the case before us, and

17a

so we simply noted that those were “two possibilities

for relief in [the present] case.” Id. at 779. St. Andrew’s

argument also ignores that section 3604(b) protects

not only against discrimination in the “terms, conditions, or privileges of sale or rental,” but also

discrimination “in the provision of services or facilities

in connection therewith.” As the Ninth Circuit has

recognized, the latter language most naturally encompasses conduct that follows acquisition. Comm.

Concerning Cmty. Improvement v. City of Modesto, 583

F.3d 690, 713 (9th Cir. 2009). Few “services or

facilities” are provided prior to the point of sale or

rental; far more attach to a resident’s occupancy. Id.

In this case, Wetzel has alleged that while the

management defendants sat on their hands, residents’

harassment confined her to her room for prolonged

stretches. Regular harassment also impeded her from

eating the meals she had paid for at the dining hall,

visiting the lobby and other common spaces, and

obtaining access to the laundry room. These were

concrete violations of the Agreement, which guarantees “three-well balanced meals per day to be served

in a central location,” a community room, and available laundry facilities. At a minimum then, Wetzel has

a cognizable post-acquisition claim because discrimination affected the provision of services and facilities

connected to her rental.

Beyond that, the discrimination diminished the

privileges of Wetzel’s rental. Though she has not been

constructively evicted from her apartment, occupancy

of the unit is not the only privilege of rental. Use of

the totality of the rented premises is another. See

RESTATEMENT (SECOND) OF PROP.: LAND. & TEN. § 4.3;

A. JAMES CASNER ET AL., 1 AMERICAN LAW OF PROPERTY

§ 3.49 (1952). So too is the covenant of quiet enjoyment.

18a

See City of Modesto, 583 F.3d at 713; CASNER, supra,

§ 3.47.

Contrary to St. Andrew’s assertion, this case is

unlike Halprin. There, the Halprin family sued its

homeowners’ association because the association’s president incessantly harassed them because they were

Jewish. Halprin, 388 F.3d at 328. The Halprin opinion

took a limited approach to post-acquisition claims under

section 3604(b), and so it had no reason to reach the

question whether the harassment was connected to a

term, condition, or privilege, or the provision of services,

related to homeownership. In Bloch, however, the en

banc court distinguished Halprin as a case in which

the homeowners’ association had no contractual relationship to the Halprin family. Bloch, 587 F.3d at 780.

St. Andrew tries to use Halprin by noting that there

was no contractual relationship between Wetzel and

any other tenant. True enough, but that is not the relevant comparator. It is between Wetzel and St. Andrew,

and that relationship was governed by the Agreement

and the Tenant Handbook. Nothing in Halprin supports

the dismissal of Wetzel’s case at this time.

Wetzel separately alleged that after she complained

about the harassment, the management defendants

restricted her access to facilities and common spaces,

downgraded her dining seat, halted her cleaning

services, and attempted to build a case for her eviction.

In doing so, she says, they retaliated against her in

violation of 42 U.S.C. § 3617. St. Andrew offers several

reasons to affirm the district court’s dismissal of this

claim. It argues that the alleged retaliatory conduct

was not adverse action; if it was adverse, it was not

causally related to Wetzel’s complaints; and there is

no allegation of discriminatory animus. St. Andrew

19a

conceded at oral argument that it argued in the district

court only that Wetzel’s retaliation claim lacked an

allegation of discriminatory animus. We thus limit our

remark to that argument. Fednav Int’l Ltd. v. Cont’l

Ins. Co., 624 F.3d 834, 841 (7th Cir. 2010).

To prove retaliation, a plaintiff must show that:

(1) she engaged in protected activity; (2) she suffered

an adverse action; and (3) there was a causal connection between the two. See, e.g., Owens v. Old Wisconsin

Sausage Co., Inc., 870 F.3d 662, 668 (7th Cir. 2017)

(elements of a Title VII retaliation claim); Boston v.

U.S. Steel Corp., 816 F.3d 455, 464 (7th Cir. 2016)

(same for ADEA); Milligan v. Bd. of Trs. of S. Ill.

Univ., 686 F.3d 378, 388 (7th Cir. 2012) (same for Title

IX). Proof of discriminatory animus is not on the list.

We have said that a claim under section 3617 requires

showing intentional discrimination only when considering an interference claim. See Bloch, 587 F.3d at 783;

East-Miller v. Lake Cnty. Highway Dep’t, 421 F.3d

558, 562–63 (7th Cir. 2005); see also Halprin, 388 F.3d

at 330–31 (recognizing that section 3617 creates different types of claims).

Indeed, if we were to read the FHA’s anti-retaliation

provision to require that a plaintiff allege discriminatory animus, it would be an anomaly. The FHA’s

anti-retaliation provision 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, . . . any right granted or

protected by section 3603, 3604, 3605, or 3606 of

this title.” 42 U.S.C. § 3617. Like all anti-retaliation

provisions, it provides protections not because of

who people are, but because of what they do. See

Burlington Northern & Santa Fe Ry. Co. v. White, 548

U.S. 53, 63 (2006).

20a

The district court’s judgment is REVERSED and the

case is REMANDED for further proceedings consistent

with this opinion. We also instruct the district court to

reinstate the state-law claims that were dismissed for

want of jurisdiction.

21a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

[Filed: 01/18/17]

————

No. 16 C 7598

————

MARSHA WETZEL,

Plaintiff,

GLEN ST. ANDREW LIVING COMMUNITY, LLC, et al.,

Defendants.

————

MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge

This matter is before the court on Defendants

Glen St. Andrew Living Community, LLC’s (GSALC),

Defendant Glen St. Andrew Living Community Real

Estate, LLC’s, Defendant Glen Health & Home Management, Inc.’s, Defendant Alyssa Flavin’s (Flavin),

Defendant Carolyn Driscoll’s (Driscoll), and Defendant

Sandra Cubas’ (Cubas) motion to dismiss. For the

reasons stated below, Defendants’ motion to dismiss is

granted.

BACKGROUND

Marsha Wetzel (Wetzel) alleges that she moved to

GSALC in November 2014. Wetzel alleges that she

signed a tenant agreement with GSALC on November

26, 2014 to rent an apartment and in exchange for her

rental payment, GSALC would provide a private room,

22a

bathroom, utilities, maintenance, laundry facilities,

three meals a day, access to community rooms and

other necessities. Wetzel alleges that over fifteen

months, she was subjected to a severe and pervasive

pattern of discrimination, threats, harassment, and

intimidation because of her gender and sexual orientation. Wetzel includes in her complaint claims brought

under the Fair Housing Act (FHA) for alleged violations of 42 U.S.C. § 3617 (Section 3617) and 42 U.S.C.

§ 3604 (Section 3604) (Count I), and claims brought

under the Illinois Human Rights Act, 775 ILCS 5/3102, 5/3-105.1 (Count II). Defendants move to dismiss

all claims.

LEGAL STANDARD

In ruling on a motion to dismiss brought pursuant

to Federal Rule of Civil Procedure 12(b)(6) (Rule

12(b)(6)), the court must draw all reasonable inferences that favor the plaintiff, construe the allegations

of the complaint in the light most favorable to the

plaintiff, and accept as true all well-pleaded facts and

allegations in the complaint. Appert v. Morgan Stanley

Dean Witter, Inc., 673 F.3d 609, 622 (7th Cir. 2012);

Thompson v. Ill. Dep’t of Prof’l Regulation, 300 F.3d

750, 753 (7th Cir. 2002). A plaintiff is required to

include allegations in the complaint that “plausibly

suggest that the plaintiff has a right to relief, raising

that possibility above a ‘speculative level’” and “if they

do not, the plaintiff pleads itself out of court.” E.E.O.C.

v. Concentra Health Services, Inc., 496 F.3d 773, 776

(7th Cir. 2007)(quoting in part Bell Atlantic Corp. v.

Twombly, 127 S.Ct. 1955, 1965 (2007)); see also Morgan

Stanley Dean Witter, Inc., 673 F.3d at 622 (stating that

“[t]o survive a motion to dismiss, the complaint must

contain sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face,” and

23a

that “[a] claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable

for the misconduct alleged”)(quoting Ashcroft v. Iqbal,

556 U.S. 662 (2009))(internal quotations omitted).

DISCUSSION

I. Section 3617 Claims

A. Discriminatory Intent.

Defendants argue that Wetzel’s FHA Section 3617

claim should be dismissed because Wetzel has failed

to plead any intentional discrimination on the part

of the Defendants. The FHA prohibits “interfer[ing]

with any person in the exercise or enjoyment of, or on

account of [her] having exercised or enjoyed, . . . any

right granted or protected by Section 3603, 3604, 3605,

or 3606 of this title.” 42 U.S.C. § 3617. The Seventh

Circuit has established that in order to prevail on

a Section 3617 claim, the plaintiff must show that

“(1) she is a protected individual under the FHA,

(2) she was engaged in the exercise or enjoyment of

her fair housing rights, (3) the defendants coerced,

threatened, intimidated, or interfered with the plaintiff on account of her protected activity under the FHA,

and (4) the defendants were motivated by an intent to

discriminate.” Bloch v. Frischholz, 587 F.3d 771, 783

(7th Cir. 2009). The Seventh Circuit has stated that “a

showing of intentional discrimination is an essential

element of a § 3617 claim.” East-Miller v. Lake County

Highway Dept., 421 F.3d 558, 563 (7th Cir. 2005).

A plaintiff must show that the defendants “had a

discriminatory intent either directly, through direct

or circumstantial evidence, or indirectly, through the

inferential burden shifting method known as the

McDonnell Douglas test.” Kormoczy v. Sec’y, U.S. Dep’t

24a

of Hous. & Urban Dev., 53 F.3d 821, 823-24 (7th Cir.

1995).

Wetzel argues that she is not required to allege

discriminatory intent and cites to Texas Dep’t. of Hous.

& Cmty. Affairs v. Inclusive Communities Project,

Inc., 135 S. Ct. 2507 (2015). However, in Inclusive

Communities Project, the Supreme Court found that

discriminatory intent is not required to be plead in

cases alleging disparate-impact under the FHA. Id. at

2518-19. In contrast, a “plaintiff must establish that

the defendant had a discriminatory intent or motive”

when pleading a disparate-treatment case. Id. at 2513.

In the instant action, Wetzel alleges a claim of

disparate-treatment under the FHA. Thus, Wetzel is

required to plead facts alleging discriminatory intent

by Defendants.

Defendants argue that Plaintiff has failed to allege

any discriminatory motive or intent to discriminate on

the part of Defendants due to her sexual orientation

and/or gender. Defendants contend that Wetzel’s complaints relate to discriminatory actions by other tenants,

for which the Defendants cannot be held liable. Wetzel

alleges that she was verbally harassed by tenants.

Wetzel also alleges that she was physically harassed

by other tenants due to her sexual orientation and

gender. Wetzel alleges that she complained about the

tenant’s harassment to Defendants and that the harassment did not end. On April 24, 2016, Wetzel alleges

that she was awoken at 5:00 am and was physically

confronted by Defendants’ employees after they accused

her of smoking in the room. Wetzel alleges that she

called the police and filed a police report in regards to

the incident. Wetzel argues that Defendants actions

and failure to intervene constitute an implicit ratification of the other tenants’ discrimination.

25a

Wetzel does not allege any discriminatory motive or

intent to discriminate on the part of the Defendants.

Wetzel does not allege any facts that suggest any

actions taken against her by Defendants that were

based on her gender or sexual orientation. Wetzel fails

to cite any discriminatory animus, motive, or intent.

Thus, Wetzel has fails to allege facts that plausibly

suggest a right to pursue relief under Section 3617.

Wetzel argues that holding landlords liable for

tenant-on-tenant discrimination where the landlord

was aware of the discrimination is consistent with the

underlying purpose of the FHA. However, Wetzel fails

to cite controlling precedent establishing this legal

standard and the Seventh Circuit precedent indicates

that intent to discriminate should be pled. See Bloch,

587 F.3d at 771. Therefore, Defendants’ motion to

dismiss the Section 3617 claims is granted. To the

extent Wetzel references conduct by Defendants after

she complained, the court notes that Wetzel has not

pled a retaliation claim.

II. Section 3604(b) Claims

Defendants argue that Wetzel has failed to state a

claim under Section 3604(b). Section 3604(b) makes it

unlawful “[t]o 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.” 42 U.S.C.

§ 3604(b). Depriving an individual of “the right to

inhabit the premises. . .by making the premises uninhabitable violates Section 3604(b).” Bloch, 587 F.3d at

779. In post-acquisition cases, Section 3604(b) may

apply to bring a claim of constructive eviction. See

Bloch, 587 F.3d at 779 (7th Cir. 2009)(stating that

constructive eviction is an option for post-acquisition

26a

cases under Section 3604). In order “[t]o establish a

claim for constructive eviction, a tenant need not move

out the minute the landlord’s conduct begins to render

the dwelling uninhabitable.” Bloch, 587 F.3d at 778.

However, “it is well-understood that constructive eviction requires surrender of possession by the tenant.”

Id. Also, “[i]f the tenant fails to vacate within a

reasonable time, she waives her claim for constructive

eviction.” Id. Wetzel contends that post-acquisition

claims may be alleged under the FHA. Defendants do

not dispute that contention. However, Defendants

argue that Wetzel’s allegations fail to contain sufficient facts stating a plausible cause of action under

Section 3604. Wetzel alleges that she continues to

reside at GSALC. Wetzel also fails to allege GSALC is

uninhabitable, and, as stated above, does not allege

that Defendants acted as they did due to her sexual

orientation or gender. Accordingly, Wetzel has failed

to state facts that plausibly suggest a right to pursue

relief under Section 3604(b). Therefore, Defendants’

motion to dismiss the Section 3604 claims is granted.

III. Remaining State Law Claims

Having resolved the federal claims in this case, the

court must determine whether to continue to exercise

supplemental jurisdiction over the remaining state

law claims. Once the federal claims in an action no

longer remain, a federal court has discretion to decline

to exercise supplemental jurisdiction over any remaining state law claims. See Wright v. Associated Ins.

Cos., 29 F.3d 1244, 1251-52 (7th Cir. 1994)(stating

that “the general rule is that, when all federal-law

claims are dismissed before trial,” the pendent claims

should be left to the state courts). The Seventh Circuit

has indicated that there is no “‘presumption’ in favor

of relinquishing supplemental jurisdiction. . . .”

27a

Williams Electronics Games, Inc. v. Garrity, 479 F.3d

904, 906-07 (7th Cir. 2007). The Seventh Circuit has

stated that, In exercising its discretion, the court should

consider a number of factors, including “the nature of

the state law claims at issue, their ease of resolution,

and the actual, and avoidable, expenditure of judicial

resources. . . .” Timm v. Mead Corp., 32 F.3d 273, 277

(7th Cir. 1994). The court has considered all of the

pertinent factors and, as a matter of discretion, the

court declines to exercise supplemental jurisdiction

over the remaining state law claims brought under the

IHRA. Such claims are therefore dismissed without

prejudice.

CONCLUSION

For the foregoing reasons, Defendants’ motion to

dismiss is granted.

/s/ Samuel Der-Yeghiayan

Samuel Der-Yeghiayan

United States District Court Judge

Dated: January 18, 2017

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.