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Plaintiffs,
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v.
QUALITY PROPERTIES, INC.,
Defendant.
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STATEMENT OF FACTS
Plaintiffs Adam and Sara Hussain are married with two children and reside
at Sheridan Apartments, a residential dwelling owned and managed by
Defendant. (Compl. 5.) Plaintiffs are U.S. citizens who identify themselves
as Muslim. (Compl. 9.) Plaintiffs contend that Defendant failed to take
reasonable steps in response to discriminatory and harassing conduct based
on religion, which was wholly and exclusively carried out by neighbors at
Sheridan Apartments. (Compl. 2, 14, 15.)
Plaintiffs moved into Sheridan Apartments in February of 2013. (Compl.
8.) Plaintiff Adam Hussain has a beard, and Sara Hussain wears a hijab,
both of which Plaintiffs contend are outward displays of their religion and
make them identifiable to others as Muslim. (Compl. 10, 11.) Plaintiffs
allege that after moving into the apartment managed by Defendant,
cotenants repeatedly harassed them because of Plaintiffs religion. (Compl.
14.) Plaintiffs contend that this harassment was severe and pervasive,
based on religious intolerance on the part of other tenants- none of whom
are identified by name in the Complaint. (Compl. 14.) The alleged
discrimination includes defacement of a flyer with religious slurs, a note
taped onto Plaintffs mailbox, yelling, writing epithets on Plaintiffs car, beer
cans thrown onto Plaintiffs patio, and threats of physical harm. (Compl.
15.)
motion to dismiss, the court assumes all factual allegations in the complaint
are true and construes them in the light most favorable to the plaintiff.
Additionally the court must determine if a claim to relief is plausible on its
face. Heinrich v. Waiting Angels Adoption Servs., Inc., 688 F.3d 393, 403 (6th
Cir. 2012) (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009)) (alteration in
original). Although a complaint need not state detailed factual allegations, it
must contain sufficient factual allegations to raise a reasonable expectation
that discovery will reveal evidence of the elements of the claim. Bell
Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007). The complaint must
provide more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. Id. at 1955.
Section 3404(a) makes it unlawful for a person to refuse to sell or rent
after the making of a bona fide offer, or to refuse to negotiate for the sale or
rental of, or otherwise make unavailable or deny, a dwelling to any person
because of race, color, religion, sex, familial status, or national origin.
Section 3404(b) prohibits discriminat[ion] 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. Section 3617 furthermore makes it
unlawful for a person 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 3604.
Plaintiffs contend that the hostile housing environment they experienced
after renting from Defendant is applicable under the statute, yet Plaintiffs
have failed to state facts alleging a cognizable claim under the sections of
the FHA from their complaint. Plaintiffs allegations, if taken as true, state
claims of religious discrimination which took place after they began
occupying the apartment owned by Defendant, and 3604 fails to address
such post-acquisition claims. Defendant therefore is not required to take
corrective action to prevent alleged discrimination. When interpreting a
statute, courts must look not only at the meaning of the language, but the
statutes context, purpose and policy. Estate of Cowart v. Nicklos Drilling Co.,
112 S. Ct. 2589, 2594 (1992). The statutes pre-acquisition application is
straightforward in that it makes refusing to sell or rent a dwelling based on
discrimination unlawful. As clearly stated by the plain language of 3604(a),
the statute does not regulate conduct following the sale of property and only
addresses conduct leading up to the terms of the sale or rental. SouthSuburban Housing Center v. Greater South Suburban Board of Realtors, 935
F.2d 868, 882 (7th Cir. 1991). Section 3604(b) has led to considerable
debate because of the in connection therewith phrase linked to provision
of services or facilities. Yet a narrow reading, as this court should apply,
would properly link it to services or facilities pertaining to the initial sale or
rental contract.
When looking at the statute as a whole and determining meaning from its
context, there are other clear indications that the sections of the FHA cited
by Plaintiffs do not apply post-occupancy. A nearly identical prohibition to
3604(a) which deals with handicap discrimination is contained in 3604(f)
(1). This later amendment to the statute also contains the language a
person residing in or intending to reside in that dwelling after it is so sold,
rented, or made available in 3604(f)(1)(B), indicating that unlike 3604(b)
it clearly applies to post occupancy requirements. No such amendment as
yet has been added to 3604, and an amendment would be a proper way to
deal with a post-acquisition claim for reasons of administrability. Section
3604's remaining subsections deal, respectively, with discriminatory ads,
notices, and statements; misrepresentations of availability; "blockbusting";
and handicap discrimination. Id. 3604(c). Section 3605 outlaws
discriminatory home financing and other residential real estate-related
transactions, while 3606 bans discrimination in brokerage organizations
and related services. Allowing post-acquisition claims is clearly in conflict
with the overall statutory scheme. To construe that it applies to an ongoing
transaction and continues to give rights during a tenants rental occupancy,
this court will be taking a perilous step of sliding down a slippery slope of
future claims never intended by the legislature when the statute was
enacted. The Fair Housing Act contains no hint either in its language or its
legislative history of a concern with anything but access to housing. Halprin
v. Prairie Single Family Homes of Dearborn Park Assn, 388 F.3d 327, 331 (7th
Cir. 2004). Allowing Plaintiffs claims to continue would be taking the FHA far
led to a split in circuit courts over this largely unresolved issue. Many courts
continue to apply the FHA to pre-acquisition claims only, and have held that
allegations after the initial sale or rental of a dwelling are not cognizable.
Bloch v. Frischholz, 587 F.3d 771 (7th Cir. 2009). Adding to this debate is the
rule that the FHA is to be given a generous construction. Trafficante v.
Metro. Life Ins. Co., 93 S. Ct. 364, 368 (1972). Some courts have allowed
narrowly applying post-acquisition claims and refused to apply 3604(b)
unless the situation amounted to constructive eviction. Cox v. City of
Dallas, Tex., 430 F.3d 734 (5th Cir. 2005), Halprin, 388 F.3d 327 at 331.
These courts have focused on availability, a step closer to post acquisition
claims. Habitability in these decisions is still considered outside the FHAs
scope. Cox, 430 F.3d at 741. The case before this court concerns an issue of
habitability, since Plaintiffs still reside at Defendants apartment and the
situation has never amounted to constructive eviction.
Although the Sixth Circuit has yet to directly address post-acquisition
claims, the Seventh Circuit has held that although rights of enjoyment are
granted in 3604, there is no claim cognizable for post-sale harassment.
Bloch, 587 F.3d at 782. Bloch concerned a Jewish family alleging religious
discrimination, attributable to a hallway rule enacted so that they were not
allowed to keep a mezuzot outside their door as required by their faith.
Citing Halprin, it was noted that religiously motivated harassment of owners
or tenants does not violate the Fair Housing Act or its regulations. Id. at
563. Since the rights of the statute pertain to acquisition, short of redlining
natural reading of the statute would encompass claims after a tenant has
acquired possession of a dwelling. Id.
continue under the FHA, these courts have ignored the overall context of the
statute.
Controversy also exists as to whether a 3617 claim can stand on its own
or whether a sufficient nexus between 3617 and 3604 must exist.
Michigan Protection & Advocacy Serv. v. Babin, 18 F.3d 337, 346 (6th Cir.
1994). Many courts have held, however, that a 3617 applies only to
conduct that implicates the availability of housing rather than merely
habitability. AHF Cmty. Dev., LLC v. City of Dallas, 633 F. Supp. 2d 287, 303
(N.D. Tex. 2009). To allow for a 3617 claim to exist, independently without
a 3604 violation, ignores the statutes textual language. Reule v.
Sherwood Valley I Council of Co-owners, Inc., 235 Fed.Appx. 227, 22728 (5th
Cir.2007) (per curiam). Reulet cited Cox and Halprin to conclude that the
plaintiff's claims under both 3604 and 3617 must fail because they go to
the habitability of her condominium and not the availability of housing, Id.
Similarly, in McZeal v. Ocwen Financial Corp., 252 F.3d 1355 (5th Cir.2001)
(per curiam) (unpublished table decision), the Fifth Circuit stated: [b]ecause
his 3605 claim fails, [plaintiff's] claim under 3617 must also fail, Id. In a
recent case, the Sixth Circuit has also addressed if whether a 3617 claim
can stand on its own without other underlying claims. Hidden Vill., LLC v.
City of Lakewood, Ohio, 734 F.3d 519 (6th Cir. 2013). Hidden Village
concerned housing advocates who had aided tenants in exercising their
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1.
cotenant harassment is even further outside the scope of what courts have
determined to be a landlords liability under the FHA. Not a single allegation
from Plaintiffs complaint states a claim of harassment by Defendant; the
facts all pertain to actions from neighbors, none of whom are identified by
name in the complaint. Plaintiff, in essence, wants Defendant to control the
actions and to be liable for the behavior of unnamed parties.
Cases that have analyzed if a landlord could be liable for the
discriminatory actions of third parties have employed an agency-principle
approach, and have attempted to find parallels between Title VII workplace
discrimination and landlord-tenant relationships. Reeves v. Carrollsburg
Condo. Unit Owners Ass'n, 1997 U.S. Dist. LEXIS 21762, at *1 (D.D.C. Dec.
18, 1997). The rules for workplace harassment are also well established in
the courts. Meritor Sav. Bank v. Vinson, 106 S.Ct. 2399 (1986). Title VII
makes it an unlawful employment practice for an employer . . . to
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's race,
color, religion, sex, or national origin. 42 U.S.C. 2000e-2(a)(1) (2014). This
language is admittedly similar to 3604(b). Both statutes were passed
during the civil rights era of significant racial tension, and both were passed
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Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998), Faragher v. Boca Raton, 118
S.Ct. 2275 (1998)). The court noted that [t]he power of eviction alone is
insufficient to hold a landlord liable for his tenant's tortious actions against
another tenant. Id. at 420. In the instant case before this court, eviction is
not even within the Defendants power, since the cotenants who have
allegedly engaged in religious discrimination against Plaintiffs are unknown
by name.
There are further reasons that a vicarious liability theory is improper in this
context. To prevail on a Title VII claim, the employee must show (1)
unwelcome conduct, (2) based on membership of a protected class, (3)
sufficiently pervasive or severe so as to create a hostile environment, (4)
some basis for imputing liability to [the employer]. Matvia v. Bald Head
Island Mgmt., Inc., 259 F.3d 261, 266 (4th Cir. 2001). The problem lies in the
fourth element, and what constitutes some basis. An employees conduct
and actions are directly observed and controlled by a superior through daily
interaction. An employees behavior can therefore have direct, immediate
consequences. A tenant is seen intermittently, and a landlord cannot
possibly be expected to have the same control. The cotenants who harassed
Plaintiffs were engaging in personal activity outside the contractual
relationship between tenants and Defendant. Imputing liability to Defendant
is an irrational expectation, and Plaintiffs have ignored the possibility of more
readily available remedies. There are no indications that Plaintiffs have
called police as the result of personal physical threats, nor have they filed
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this claim against the parties who are actually responsible for the harassing
conduct. If Plaintiffs claims prevail, this court will make Defendant the
insurers of cotenant actions.
Very few courts have addressed landlord liability for cotenant actions.
Neudecker v. Boisclair concerned a man with OCD who was harassed by his
neighbors. 351 F.3d 361, 362 (8th Cir. 2003). The property manager had
released his medical information to other tenants in the building, prompting
the harassment. The manager also threatened to evict him for complaining.
Id. at 364. Neudecker concerned some affirmative actions taken by the
landlord, and not just their inaction with regard to discrimination by
cotenants. Id. In Bradley v. Carydle Enterprises, the plaintiff was an African
American woman who had been subjected to racial epithets by her neighbor.
The apartment complex had attempted to evict them both. 707 F. Supp.
217, 219 (E.D. Va. 1989). Ultimately the court decided that the landlord had
violated the plaintiffs right to quietly enjoy her lease in violation of 3617.
Id. at 233. There were many indications that the harassment was two-sided;
the plaintiff had played loud music, and the two tenants had engaged in a
long standing dispute. Id. at 219.
drafters of the FHA did not intend for common quarrels to become the basis
for routine litigation. Halprin, 388 F.3d 327, at 329. For the courts to impose
liability onto a landlord for personal disputes between neighbors is a perilous
step towards opening the floodgates of litigation. Establishing such
precedent would be contrary to public policy and the purpose of the FHA,
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since it will further drive up costs to those who need affordable housing the
most- the habitants of rental dwellings. It is also unfair to impute liability for
the harassment of third parties onto landlords, when there are other, more
established remedies available by law.
CONCLUSION
For all of the foregoing reasons, Defendant respectfully requests that
Plaintiff's Complaint be dismissed in its entirety and with prejudice.
Catherine J. Villanueva
Attorney for Quality Properties, Inc.
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