Carlotta J. Ross, DiCenso v. Cisneros: An Argument for Recognizing the Sanctity of the Home in Housing Sexual Harassment Cases

Sexual harassment, commonly associated with the workplace or classroom, also frequently occurs in the home. Unlike in employment or academic settings, sexual harassment in housing is a relatively undeveloped area of jurisprudence. Only recently have the courts confronted a steadily increasing demand to address matters of sexual harassment in housing. Notably, every court that has been faced with the question of whether sexual harassment is actionable under Title VIII has answered affirmatively.’ Following this trend, in DiCenso v. Cisneros,  the United States Court of Appeals for the Seventh Circuit held that hostile environment sexual harassment claims are actionable under the Fair Housing Act.’ The court further held, however, under the de novo standard of review, that this particular tenant’s claim “was not sufficiently egregious.” The court relied on Title VII legal theories, as is common in Title VIII cases. That is, the court treated this housing sexual harassment case as the equivalent of an employment sexual harassment case. This comment reflects upon housing sexual harassment jurisprudence and ultimately questions the common practice of applying Title VII law to Title VIII cases.

Recommended Citation: Carlotta J. Ross, DiCenso v. Cisneros: An Argument for Recognizing the Sanctity of the Home in Housing Sexual Harassment Cases, 52 U. Miami L. Rev. 1131 (1998) Available at:

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

Elizabeth A. Honce, Plaintiff-appellant, v. Jose A. Vigil, D/b/a Dorado Investments, Inc., A/k/a Villachaparral Mobile Home Sub-division; Doradoinvestments, Inc., Defendants-appellees

U.S. Court of Appeals for the Tenth Circuit –

Aug. 2, 1993. Rehearing Denied Aug. 25, 1993

Marcia D. Greenberger, National Women’s Law Center, Washington, DC (Richard J. Rubin and Carol Oppenheimer, Santa Fe, NM, with her on the brief) for plaintiff-appellant.

Paul J. Kennedy, Albuquerque, NM, for defendant-appellee.

Before SEYMOUR and KELLY, Circuit Judges, and LEONARD, District Judge.d

PAUL KELLY, Jr., Circuit Judge.

Plaintiff-appellant Elizabeth A. Honce appeals the dismissal of her Fair Housing Act suit. See 42 U.S.C. § 3601 (“Title VIII”). She claims that the court erred in granting judgment as a matter of law for Defendant-appellee Jose A. Vigil on both her Title VIII claims as well as her covenant of quiet enjoyment claim. Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm.


In August 1990, Ms. Honce arranged to rent a lot in Mr. Vigil’s mobile home park. Ms. Honce placed a mobile home on the property in mid-September and moved in at the beginning of October. Mr. Vigil invited Ms. Honce to accompany him socially on three occasions in September, prior to her moving in. He first asked her to attend a religious seminar. She told him that she would try to attend, but did not. He then offered to take Ms. Honce and her young son to the state fair. She told him that she would think about it, but did not go. At their next meeting, he asked her to visit some property with him. She politely declined. Finally, two days before moving in, Mr. Vigil asked, “When can we go out?” She responded that she did not wish to go out with him at any time. He told her that he had only wanted to be friends and did not ask her out again. Both parties testified that Mr. Vigil never used profanity or made sexual advances or remarks.

After Ms. Honce moved in, she and Mr. Vigil had a series of disputes over the property. The first involved a plumbing problem, which Mr. Vigil refused to pay for because he claimed that the problem was not in his line. The next arose over the building of a fence for Ms. Honce’s dog. Mr. Vigil required all tenants with dogs to erect fenced dog-runs. He prohibited the use of cement, and preferred that his own fencing materials be used. When Mr. Vigil sent a laborer over to start work on a fence for Ms. Honce as a favor to her, she stopped the work and informed him that she wanted no favors. Mr. Vigil also provided rocks to be used as stepping stones, which Ms. Honce did not want. These rocks were provided to all tenants.

The primary confrontation occurred on October 24, 1990. Ms. Honce had purchased fencing from Sears and workers began construction of the fence using cement. Mr. Vigil arrived, upset with the situation, and sent the workers away. He was unhappy with the use of cement, as well as Ms. Honce’s failure to seek his consent to build as required by the rental agreement. He also yelled at a worker who was repairing Ms. Honce’s door, although that worker did not leave. Ms. Honce and Mr. Vigil then entered into a shouting match, during which he threatened to evict her. As Mr. Vigil entered his truck to leave, Ms. Honce’s dog ran in front of the vehicle. Mr. Vigil “revved” the engine and Ms. Honce retrieved her dog, fearing that the dog would be hit. After Mr. Vigil departed, Ms. Honce continued shouting and threw the stepping stones into the street. Mr. Vigil then called the animal control department regarding her loose dog. That night, Ms. Honce went to the sheriff’s department for advice and was told that she should be concerned for her safety. She left the next day and moved the trailer out on November 11.

Mr. Vigil testified that he believes there is a “conspiracy” against him, led by his former girlfriend and the sheriff’s department. Relationships with most of his tenants quickly break down because of this conspiracy, and the problems are often with women. He has evicted between ten and twenty-five tenants in the past, both male and female, including his own nephew.

Ms. Honce’s neighbors testified that they had similar problems with Mr. Vigil. Rosa and Russell Haenner stated that he bothered Mrs. Haenner almost daily. They had a dispute over their dog fence, because Mr. Vigil wanted them to use his materials, and an argument over the flagstone walkway, because Mr. Vigil wanted them to use his flagstones. Mr. Vigil also yelled at them and called them names because they didn’t attend a Bible study class with him. Mrs. Haenner insisted that they move out. When they informed Mr. Vigil that they were moving, he issued an eviction notice. They left two weeks after Ms. Honce moved in.

Ms. Honce alleges that Mr. Vigil’s actions amount to sexual discrimination and harassment, which forced her to leave the trailer park. The district court granted judgment as a matter of law for Mr. Vigil, following the conclusion of Plaintiff’s evidence. The court found no disparate treatment in Mr. Vigil’s equally poor treatment of all his tenants, and no evidence of sexual harassment. As for constructive eviction, the court found that the sheriff’s advice, not her landlord’s actions, caused her to vacate.


We review de novo the district court’s directed verdict. Fed. R. Civ. P. 50(a) provides for entry of judgment as a matter of law when there is an “absence of proof” of material issues, viewing the evidence in a light most favorable to the non-moving party. Martin v. Unit Rig & Equip. Co., 715 F.2d 1434, 1438 (10th Cir. 1983). However, a mere scintilla of evidence is insufficient to create a jury question. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). A directed verdict is appropriate if “there can be but one reasonable conclusion as to the verdict.” Id. While the district court may not resolve conflicts in the testimony or weigh the evidence, it may evaluate the evidence at least to the extent of determining whether there is sufficient evidence to support a jury verdict in favor of the Plaintiff. Von Zuckerstein v. Argonne Nat’l Lab., 984 F.2d 1467, 1471 (7th Cir. 1993) (affirming directed verdict for defendant in discrimination case). Following a directed verdict in a discrimination case, the question for the appellate court is “simply whether the evidence … was sufficient to justify a reasonable jury in finding discrimination.” Lowe v. J.B. Hunt Transport, Inc., 963 F.2d 173, 174 (8th Cir. 1992).

The Fair Housing Act prohibits gender-based discrimination in the rental of a dwelling, or in the provision of services in connection with a rental. 42 U.S.C. § 3604(b). Discrimination may occur either by treating one gender less favorably (disparate treatment) or by sexual harassment. This circuit has not yet addressed the issue of sexual discrimination in the context of fair housing under Title VIII. However, we will look to employment discrimination cases for guidance. Morgan v. HUD, 985 F.2d 1451, 1456 n. 4 (10th Cir. 1993); Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 934 (2nd Cir.), aff’d, 488 U.S. 15, 109 S. Ct. 276, 102 L. Ed. 2d 180 (1988).

The district court determined that there was insufficient evidence of disparate treatment because Mr. Vigil was “equally nasty” to all of his tenants. Ms. Honce argues that Mr. Vigil was more hostile to women, pointing to the evidence of his past problems with women and the supposed “conspiracy” against him by law enforcement. She further argues that Mr. Vigil’s testimony of a “conspiracy” at least creates a triable question of fact.

The ultimate question in a disparate treatment case is whether the defendant intentionally discriminated against plaintiff. St. Mary’s v. Hicks, — U.S. —-, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993); Sorensen v. City of Aurora, 984 F.2d 349, 352 (10th Cir. 1993). To survive a directed verdict, plaintiff must establish a prima facie case of discrimination. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986, 108 S. Ct. 2777, 2784, 101 L. Ed. 2d 827 (1988). In the context of employment discrimination, a prima facie case requires proof that the employer, after rejecting plaintiff’s application, continued to seek applicants with qualifications similar to plaintiff’s. Id. Here, the landlord did not refuse to rent to Ms. Honce, nor did he actually evict her. See e.g. United States v. Reece, 457 F. Supp. 43, 48 (D. Mont. 1978) (landlord refused to rent to female tenants). Ms. Honce offers no evidence of a discrepancy in services provided. The landlord offered the same materials for property improvements to Ms. Honce as to her neighbors, and insisted on compliance with the rental agreement. The fact that Mr. Vigil believed that there was a conspiracy against him is not actionable unless he refused to rent to women or to provide women with the same rental services as men. Such was not the case. The Plaintiff has failed to prove a prima facie case of disparate treatment.1

Harassment based on sex is a form of discrimination. Hicks v. Gates Rubber Co., 833 F.2d 1406, 1413 (10th Cir. 1987) (addressing harassment in the workplace). We have previously recognized two distinct categories of sexual harassment: “quid pro quo” harassment and hostile work environment (or housing environment) harassment. Id. “Quid pro quo” harassment occurs when housing benefits are explicitly or implicitly conditioned on sexual favors. See id. at 1414. Ms. Honce admits that Mr. Vigil did not make any sexual requests, explicit or otherwise, that he acted “gentlemanly” during their conversations, and that he even said he just wanted to be friends. She argues, however, that he became unreasonable after she rejected his advances, which forced her to leave.

Few courts have addressed sexual harassment in the context of fair housing. In Shellhammer v. Lewallen, Fair Housing–Fair Lending Rptr. (P-H) p 15,472 at 16,127 (W.D. Ohio), aff’d, 770 F.2d 167 (6th Cir. 1985), the landlord requested that Mrs. Shellhammer pose for nude pictures, and she refused. One month later he offered her money for sex, which she also rejected. Three months later the landlord evicted her. The district court found that the eviction was in response to the tenant’s rejection and awarded damages. (The court rejected plaintiff’s hostile housing environment claim, however.) See also Grieger v. Sheets, No. 87-C-6567, 1989 WL 38707 (N.D. Ill. 1989) (“quid pro quo” claim survived summary judgment where landlord refused to make repairs after tenant rejected his explicit demands for sex).

In Hicks v. Gates, plaintiff complained of receiving sexual remarks and inappropriate touching in the workplace. We found no quid pro quo harassment because there was no evidence that job security was conditioned on granting sexual favors. 833 F.2d at 1414. Likewise, Mr. Vigil made no quid pro quo threat based on sexual favors. Ms. Honce contends, though, that the threat was implicit, and that the landlord’s subsequent actions were in direct response to her rejection. She failed to provide any evidence of a connection, however. She rejected her landlord’s advances prior to moving in to the park. Mr. Vigil did not “retaliate” for the rejection by attempting to stop her from moving in. The disputes which occurred after she moved in involved the plumbing, stepping stones, and dog fence. Mr. Vigil’s positions were justifiable: he would only pay for his part of the sewer line, and the fence violated the rental agreement by the use of cement, and Plaintiff’s failure to give prior notice. See Burrus v. United Tel. Co. of Kansas, Inc., 683 F.2d 339 (10th Cir.), cert. denied, 459 U.S. 1071, 103 S. Ct. 491, 74 L. Ed. 2d 633 (1982) (no causal connection between protected activity and plaintiff’s firing where firing was based on legitimate business reason).

Although Defendant may not be the most rational actor, Title VIII does not make irrational rental policies illegal. See Flasher, 986 F.2d at 1319. Ms. Honce failed to present evidence of a causal connection, and a conclusional allegation is insufficient to create a question of fact. See 1488, Inc. v. Philsec Inv. Corp., 939 F.2d 1281, 1289 (5th Cir. 1991). We agree that no reasonable jury could find quid pro quo harassment here.

Ms. Honce raises the related claim that Mr. Vigil’s harassment created a hostile housing environment. In the employment context an employer violates Title VII by creating a discriminatory work environment, even if the employee loses no tangible job benefits, because the harassment is a barrier to equality in the workplace. Meritor Savings Bank v. Vinson, 477 U.S. 57, 65, 106 S. Ct. 2399, 2404, 91 L. Ed. 2d 49 (1986) (employer forcing plaintiff to engage in sex in the workplace created hostile environment). Applied to housing, a claim is actionable when the offensive behavior unreasonably interferes with use and enjoyment of the premises. The harassment must be “sufficiently severe or pervasive” to alter the conditions of the housing arrangement. See Hicks, 833 F.2d at 1413. It is not sufficient if the harassment is isolated or trivial. Meritor Savings Bank, 477 U.S. at 65, 106 S. Ct. at 2404. ” ‘ [C]asual or isolated manifestations of a discriminatory environment … may not raise a cause of action.’ ” Hicks, 833 F.2d at 1414 (quoting Bundy v. Jackson, 641 F.2d 934, 943 n. 9 (D.C. Cir. 1981)). The offensive acts need not be purely sexual; it is sufficient that they would not have happened but for claimant’s gender. Hicks, 833 F.2d at 1415. Evidence of harassment of other female tenants is relevant to plaintiff’s claim. See id.

In Hicks, we remanded for a determination of whether sexual touching, sexual remarks and threats of violence in the workplace constituted a hostile environment. Hicks, 833 F.2d at 1415. Hostile environment claims usually involve a long-lasting pattern of highly offensive behavior. See e.g. Bundy v. Jackson, 641 F.2d 934. In Shellhammer, the Sixth Circuit affirmed a district court finding that two explicit sexual propositions from a landlord during four months of tenancy did not prove a hostile housing environment because it did not create a “burdensome situation” that would make the tenancy undesirable. Shellhammer v. Lewallen, No. 84-3573, slip op. at 2, 1985 WL 13505 (6th Cir. July 31, 1985). One survey of sexual harassment in housing cites examples of harassment as making sexual remarks to a tenant, requesting sexual favors, and using the pass key to observe the tenant showering. See Regina Cahan, Comment, Home is No Haven: An Analysis of Sexual Harassment in Housing, 1987 Wis. L. Rev. 1061, 1062; see also Grieger v. Sheets, No. 87 C 6567, 1989 WL 38707 (N.D. Ill. Apr. 10, 1989) (landlord threatened to shoot tenant because tenant rejected sexual advances).

The offensive behavior here did not include sexual remarks or requests, physical touching, or threats of violence. Mr. Vigil asked Ms. Honce to accompany him socially on three occasions, all prior to her occupying the premises. The contact between them after that involved arguments over plumbing, stepping stones and a fence. The landlord’s behavior here was eccentric, and probably unwarranted, but was not directed solely at Ms. Honce. Other tenants of both sexes endured similar treatment. Because the conduct was neither sexual nor directed solely at women, it is not actionable under the hostile housing environment theory. See Chamberlin v. 101 Realty, Inc., 915 F.2d 777 (1st Cir. 1990); Scott v. Sears, Roebuck and Co., 798 F.2d 210 (7th Cir. 1986).

To sustain a claim of violation of the covenant of quiet enjoyment, a tenant must show actual or constructive eviction. El Paso Natural Gas Co. v. Kysar Ins. Agency, 98 N.M. 86, 87, 645 P.2d 442, 443 (1982). Constructive eviction occurs when the landlord has substantially deprived the tenant of the beneficial use of the premises, and the tenant vacates, Dennison v. Marlowe, 106 N.M. 433, 437, 744 P.2d 906, 910 (1987), or when the landlord’s actions are meritless, done in malice or bad faith, and so severe as to interfere with the tenant’s peaceful enjoyment of the premises. El Paso Natural Gas Co., 645 P.2d at 444.

The New Mexico Supreme Court has found that three threatening demand letters by the landlord followed by a lawsuit were not sufficient to interfere with the tenant’s peaceful enjoyment of the premises. El Paso Natural Gas Co., 645 P.2d at 444. However, the court did find constructive eviction where the tenant was forced out of the premises because of a fire code violation. Dennison, 744 P.2d at 910. Other courts have held that mere threats by the landlord do not constitute constructive eviction, see United States v. Bedford Assoc., 548 F. Supp. 732, 740-41 (S.D.N.Y. 1982) (threat to condemn building and terminate services), aff’d in relevant part, 713 F.2d 895 (2d Cir. 1983), nor do acts which merely inconvenience the tenant. See Baley & Selover, Inc. v. All Am. Van & Storage, Inc., 97 Nev. 370, 371, 632 P.2d 723, 724 (1981).

Mr. Vigil did not take steps to evict Ms. Honce prior to her moving out. Ms. Honce claims that she was frightened by Vigil’s erratic behavior and moved out for her safety. Her own testimony, though, was that she moved out after speaking with the sheriff’s department and reviewing their files. Past acts of the landlord toward others are not relevant to the current question of whether the landlord acted maliciously toward the plaintiff-tenant. See El Paso Natural Gas Co., 645 P.2d at 444 (question of constructive eviction focuses on malicious acts of landlord aimed at ousting a tenant in rightful possession). The relevant acts are Mr. Vigil’s treatment of the fence situation, the plumbing problem, and his apparent threat to the dog. His response to the plumbing problem was, appropriately, that he would only pay for his portion of the line. As for the fence, he chased off the laborers because the fence was being built with concrete and without prior notice to him, in violation of park policy. His actions were not entirely unjustified, even if erratic. The alleged threat, consisting of returning to his vehicle and “revving” the engine when the dog ran in front of him, is insufficient to create a jury question of constructive eviction. See Bedford Assoc., 548 F. Supp. at 740-41.

Furthermore, even assuming that Defendant’s actions amounted to an interference with the property, the interference was limited to a brief period of time on a single occasion. (The primary dispute between the two parties here lasted for less than one hour.). This does not amount to a material disturbance of possession. See Santillanes v. Property Management Serv., 110 Idaho 588, 593, 716 P.2d 1360, 1365 (1986) (locking tenant out of premises for one hour does not materially disturb possession). A reasonable jury could not have found Mr. Vigil’s actions sufficiently severe and unjustified so as to deprive Ms. Honce of peaceful enjoyment of the premises.


SEYMOUR, Circuit Judge, dissenting.

I must respectfully dissent from the majority’s affirmance of the directed verdict in this case. My examination of the record reveals that, under the standards governing review of directed verdict rulings, Ms. Honce offered sufficient evidence to raise a jury issue on each of her claims. In holding to the contrary, the district court erroneously refused to admit relevant evidence and misperceived the relevance of critical evidence that was admitted. In affirming, the majority selectively and improperly views the record in the light most favorable to Mr. Vigil. In so doing, it both relies on evidence that is irrelevant and disregards relevant evidence supporting Ms. Honce’s claims. Moreover, the majority proceeds under an inaccurate view of the applicable law. Although it articulates the proper test, it appears to evaluate the sexual harassment evidence under a crabbed definition that has been specifically rejected by this court.

My disagreement with the majority begins with my belief that it has not reviewed the record under the standards governing consideration of a motion for directed verdict.

Fed.R.Civ. 50(a), which provides for a motion for a directed verdict, is intended to remove from the jury a case where there is either a “complete absence of proof of an issue or issues material to the cause of action” or where “there are no controverted issues of fact upon which reasonable men could differ.” 5A Moore’s Federal Practice p 50.02, at 50-20 (2d ed. 1982). To ensure that the court’s exercise of discretion does not improperly invade the province of the jury, the court’s discretion to grant a motion for directed verdict is limited in several respects. Most importantly, the court must view the evidence in the light most favorable to the non-moving party. Wylie v. Ford Motor Company, 502 F.2d 1292, 1294 (10th Cir. 1974). Further, the opposing party must be given the “benefit of all inferences which the evidence fairly supports, even though contrary inferences might reasonably be drawn.” New Mexico Savings & Loan Ass’n v. United States Fidelity and Guaranty Co., 454 F.2d 328, 331 (10th Cir. 1972). Moreover, the court is not permitted to consider the credibility of witnesses in reaching its decision, Brady v. Southern Ry. Co., 320 U.S. 476, 479-80 [64 S. Ct. 232, 234-35, 88 L. Ed. 239] (1943); Wright & Miller, Federal Practice and Procedure Sec. 2527, at 560 (1971), nor may a court weigh the evidence or determine where the preponderance of the evidence lies. Wylie v. Ford Motor Company, supra, 502 F.2d at 1294. See Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 700-01 [82 S. Ct. 1404, 1411-12, 8 L. Ed. 2d 777] (1962) (jury weighs contradictory evidence and inferences, draws ultimate conclusion as to facts).

In short, only where “the evidence points all one way”, Wylie v. Ford Motor Company, supra, 502 F.2d at 1294, is a directed verdict appropriate. If there is conflicting evidence or insufficient evidence to warrant a one-way conclusion, a directed verdict is inappropriate. 5A Moore’s Federal Practice p 50.02, supra, at 50-25 to -27. Generally, we have indicated that directed verdicts “should be cautiously and sparingly granted.” Black, Sivalls & Bryson, Inc. v. Keystone Steel Fabrication, Inc., 584 F.2d 946, 951 (10th Cir. 1978) (quoting Wilkin v. Sunbeam Corp., 377 F.2d 344, 347 (10th Cir. 1967)).

Martin v. Unit Rig & Equip. Co., 715 F.2d 1434, 1438 (10th Cir. 1983).

I agree with the majority that our assessment of discrimination claims under the Fair Housing Act, 42 U.S.C. § 3604(b), is guided by cases addressing employment discrimination under Title VII. However, I cannot agree with the majority’s application of that law to this record.

I turn first to the issue of disparate treatment. To raise a jury issue on this claim, Ms. Honce was required to present evidence from which the jury could reasonably infer that Mr. Vigil, as a landlord, treated tenants who were women more harshly than tenants who were men. Although the majority refers to the testimony of Mr. and Mrs. Haenner, it fails to draw the inference from their evidence that is most favorable to Ms. Honce or to recognize that this favorable inference supports Ms. Honce’s assertion of disparate treatment. Mr. and Mrs. Haenner both testified that Mr. Vigil harassed Mrs. Haenner almost daily about tenancy matters while refusing to deal with Mr. Haenner on these problems even when both Mr. and Mrs. Haenner asked him to do so. Aplt.App. at 342-43, 354, 359. Mrs. Haenner told her husband the situation was so unbearable that she was moving out of the trailer park with or without him. Id. at 360. Mr. Haenner refused to leave until he was given this ultimatum. Id. This evidence supports a reasonable inference that Mr. Vigil’s conduct was selectively directed to women rather than men and amounted to constructive eviction.

Moreover, Mr. Vigil himself testified that the problems he had as a landlord primarily involved tenants who were women. The court specifically asked Mr. Vigil: “Do you have the same problem with males in your mobile home subdivision as you do the females?” Id. at 271. Mr. Vigil responded:

On the accusations, normally they’ve been with the women. It’s a routine situation. Somebody gets evicted the plan is to go make a report at the police station and include sex. But they’re not bright enough to even come up with it themselves. I’m the one that told them years ago that that’s what I’m going to be accused of, that someday I was going to be sitting in a court because they can’t get to me through money, through law. The only way they can get to me is through false sexual allegations.

Id. at 271-72. Apparently, Mr. Vigil believed that women tenants were constantly attempting to take advantage of him and his money using sex. Mr. Vigil also believed that at least some of the female tenants with whom he had problems, and Ms. Honce in particular, were dupes of a conspiracy against him by police and sheriff personnel. See id. at 297. Mr. Vigil believed that these women were instructed to make false sexual accusations against him by these conspirators. See id. at 271-73. This evidence also supports an inference that Mr. Vigil was selectively hostile to women.

The majority simply fails to address the weight we must give this evidence when reviewing a directed verdict ruling. Instead, it begins by adopting the trial court’s “finding” that Mr. Vigil was equally nasty to all of his tenants. See maj. op. at 1088. The court may not, of course, usurp the jury’s role and make fact findings on disputed evidence in directing a verdict. Moreover, the evidence I have set out above supports the inference that Mr. Vigil was abusive only to women and that this abuse rose to the level of constructive or actual eviction.

Next the majority holds dispositive its conclusion that Ms. Honce failed to make a prima facie case. However, the majority supports its conclusion with an improper recitation of the record. Thus it concludes that Mr. Vigil treated both sexes equally harshly because he evicted the Haenners after disputes over tenancy matters similar to those he had with Ms. Honce. Mr. Haenner testified, however, that Mr. Vigil did not serve an eviction notice on the Haenners until after Mr. Haenner had informed Mr. Vigil, at his wife’s insistence, that they were moving out. Aplt.App. at 364. The majority also concludes that Mr. Vigil was equally nasty to men and women because he provided the same rental services to both sexes. In so doing, the majority again disregards the standards under which we must view the record in reviewing a directed verdict ruling. We are not at liberty to reweigh conflicting evidence and substitute our judgment for that of the jury. “Further, the opposing party must be given the ‘benefit of all inferences which the evidence fairly supports, even though contrary inferences might reasonably be drawn.’ ” Martin, 715 F.2d at 1438 (quoting New Mexico Sav. & Loan Ass’n v. United States Fidelity & Guaranty Co., 454 F.2d 328, 331 (10th Cir. 1972)). Thus, assuming that an inference favorable to Mr. Vigil might be drawn from his provision of equal rental services to men and women, this inference is not dispositive when, as here, an inference favorable to Ms. Honce can be drawn from evidence that Mr. Vigil’s differing treatment of men and women when providing those rental services resulted in the constructive eviction of women. This same evidence also supports an inference that Mr. Vigil’s “justification” for his actions, see maj. op. at 1089 n. 1, is mere pretext to discriminate against women. Thus, the evidence, and the reasonable inferences drawn therefrom, supports a finding of disparate treatment.

The majority also concludes that a directed verdict was proper on Ms. Honce’s claim of quid pro quo sexual harassment. Again I must disagree. The majority improperly bases its conclusion on a view of the record that favors Mr. Vigil. Ms. Honce’s quid pro quo claim required her to present evidence that Mr. Vigil conditioned the quality of her home environment upon her positive response to his personal overtures. The majority concludes that Ms. Honce failed to establish any connection between her refusals to go out with Mr. Vigil and his commencement of abusive behavior toward her. In support of this conclusion, the majority states that Ms. Honce rejected Mr. Vigil’s advances before she moved in and that Mr. Vigil did not attempt to stop her from moving in.1  However, Mr. Vigil’s own testimony undercuts the majority’s characterization of the situation. Ms. Honce moved the trailer into the park in mid-September and then began moving her belongings in piecemeal after that. Although she did not physically move into the trailer herself until October 1, she had signed a rental agreement in August. Mr. Vigil testified that in his view Ms. Honce had possession upon signing the rental agreement on August 25. He stated that after she signed the agreement, ” [N]obody else could have lived there. The minute I sign, no one can live–I had given her possession. It’s immaterial when she decides to move in. And it’s immaterial when the mobile home moves in.” Aplt.App. at 278-79. Moreover, Mr. Vigil testified that he and Ms. Honce “had a very, very good relationship up until about a week after she moved in.” Id. at 292 (emphasis added). The majority seemingly believes that a single mother of a young child who has just borrowed money to buy a mobile home and has signed a rental agreement for the lot onto which she has moved it somehow is completely free to abandon the lease and leave the premises upon finding the conduct of her new landlord offensive. This inference, adversely drawn by the majority against Ms. Honce, is belied by Mr. Vigil’s insistent testimony that Ms. Honce was in severe financial straits, and by the fact that she ultimately was required to borrow $1,000 from her parents to pay the cost of moving the mobile home. It also defies common sense regarding the economic realities of single working mothers such as Ms. Honce.

In view of our obligation to view the record most favorably to the nonmoving party and to give her the benefit of all reasonable inferences to be drawn from the evidence, in my judgment the record raises a jury issue on whether Mr. Vigil retaliated against Ms. Honce because she refused to go out with him. Ms. Honce testified that Mr. Vigil’s attitude toward her changed abruptly after she made it clear to him at the very end of September that she did not wish to see him socially. See id. at 84-86. She testified that when she next spoke to Mr. Vigil to discuss a plumbing problem and her dog run, he became very upset and hung up the phone. Their relationship continued to deteriorate until the October 24 encounter witnessed by the fence installers at which Mr. Vigil threatened to evict her. See infra at 1096-1097. In the context of retaliation under Title VII, we have held that ” [t]he causal connection may be demonstrated by evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action.” Burrus v. United Tel. Co. of Kansas, Inc., 683 F.2d 339, 343 (10th Cir.) (emphasis added), cert. denied, 459 U.S. 1071, 103 S. Ct. 491, 74 L. Ed. 2d 633 (1982). I believe the jury could reasonably infer from the circumstances here that Mr. Vigil’s conduct, culminating in his eviction threat, was in retaliation for her refusal of his invitations.

Finally, I am particularly troubled by the majority’s treatment of Ms. Honce’s claim that she was the victim of a discriminatory hostile housing environment. This circuit’s law with respect to hostile environment claims is set out in Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987), in which we adopted the District of Columbia Court of Appeals’ definition of sexual harassment.

“We have never held that sexual harassment or other unequal treatment of an employee or group of employees that occurs because of the sex of an employee must, to be illegal under Title VII, take the form of sexual advances or of other instances with clearly sexual overtones. And we decline to do so now. Rather, we hold that any harassment or other unequal treatment of an employee or group of employees that would not occur but for the sex of the employee or employees may, if sufficiently patterned or pervasive, comprises an illegal condition of employment under Title VII.”

Id. at 1415 (emphasis added) (quoting McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); see also Hall v. Gus Construction Co., 842 F.2d 1010 (8th Cir. 1988) (predicate acts underlying a sexual harassment claim need not be clearly sexual in nature); Robson v. Eva’s Super Market, Inc., 538 F. Supp. 857 (N.D. Ohio 1982) (assignment of more onerous tasks to female employee after employee resisted supervisor’s advances is sufficient evidence of sexual harassment to withstand summary judgment); Grieger v. Sheets, 1989 WL 38707 (N.D. Ill. April 10, 1989) (conduct of nonsexual nature can support a sexual harassment claim). We also note that “the requirement for repeated exposure will vary inversely with the severity of the offensiveness of the incidents.” Vermett v. Hough, 627 F. Supp. 587 (W.D. Mich. 1986) (collecting cases). See also Henson v. City of Dundee, 682 F.2d 897, 904 n. 8 (11th Cir. 1982).

The majority’s review of the evidence supports my conclusion that it has again viewed the evidence most favorably to Mr. Vigil. The majority states that ” [t]he offensive behavior here did not include sexual remarks or requests, physical touching, or threats of violence.”2  Maj. op. at 1090. It then concludes there is no evidence of disparate treatment because Mr. Vigil treated women the same as men. Id. Finally, it states that ” [b]ecause the conduct was neither sexual nor directed solely at women, it is not actionable under the hostile housing environment theory.” Id.

The fact that Mr. Vigil’s conduct was not sexual in nature is irrelevant under Hicks so long as that conduct would not have occurred but for Ms. Honce’s gender. Moreover, when the record is evaluated under a standard that gives effect to our holding in Hicks, the evidence I have set out in discussing the disparate treatment claim indisputably supports the inference that Mr. Vigil’s conduct created a hostile environment for women. This evidence indicates that numerous women, including Ms. Honce, Mrs. Haenner, and others to whom Mr. Vigil himself referred, had felt compelled to move out as a result of Mr. Vigil’s behavior or had been evicted by him.3  The majority’s statement that “tenants of both sexes endured similar treatment” from Mr. Vigil, id., is simply without evidentiary support. The record contains specific references to only two male tenants, Mr. Haenner and Mr. Vigil’s nephew. As set out above, Mr. Vigil did not direct any hostile behavior to Mr. Haenner. Although Mr. Vigil was attempting to evict his nephew, the record does not reveal the details of Mr. Vigil’s conduct toward the nephew during this proceeding. In sum, the majority simply fails to recognize that a landlord may violate the Fair Housing Act even when he does provide equal rental services if, in so doing, he creates a hostile environment for women. Because I believe Ms. Honce has raised a jury question with respect to her Fair Housing Act claims, I would reverse the grant of a directed verdict.

I do not disagree with the majority’s discussion of the general law on the covenant of quiet enjoyment but rather with the application of that law to the facts. The covenant of quiet enjoyment gives the lessee “the quiet and peaceable possession and enjoyment of the leased premises.” 49 Am.Jur.2d Landlord and Tenant, Sec. 330 at 344 (1970). “It has been stated that a landlord is under the implied obligation not to disturb or in any way interfere with the leased premises of the tenant’s use and occupancy thereof …” Id. Sec. 336 at 351. Where there is interference with this covenant that is attributable to the landlord, the tenant has been constructively evicted. ” [T]he concept is that, because of some wrongful act or omission by the landlord, the premises become uninhabitable (‘untenantable’) for the intended purposes.” Roger A. Cunningham, William B. Stoebuck, Dale A. Whitman, The Law of Property Sec. 6.33 at 296 (1984). The test for constructive eviction can be stated as ” ‘Should a tenant be expected to continue to occupy the premises under these conditions?’ ” Id. at 297.

During her testimony, Ms. Honce stated on numerous occasions that Mr. Vigil’s actions caused her to fear for her own safety and that of her young son. Aplt.App. at 128, 130, 135-137. She went to the police to ask for help and was advised by the police to move. Id. at 331-332. Captain Crespin of the Sandoval County Sheriff’s Department told Ms. Honce “it would be for her best interests to leave that place as soon as possible,” id. at 331, “because she was probably in danger for herself and her child,” id. at 332. Ms. Honce’s version of the same encounter reveals that Captain Crespin did not casually suggest that she leave her home:

Q. What did Captain Crespin do?

A. He showed me a file that he had in his file cabinet.

Q. And did you look at that file?

A. Yes.

Q. Did you read it over?

A. Yes. The portion that he showed me, yes.

Q. He gave you one particular file?

A. Yes. He gave me a report–one report out of the file.

Q. And you read it over?

A. Yes.

Q. What was your reaction to reading the report?

A. I became very concerned for my safety and the safety also of my child, but just concerned to the point that I became very afraid. I felt that I had come very close to having something violent happen to me, and I was–my feeling at that time was just to try to get out of that trailer park as fast as I could.

Id. at 128-29.

After her discussion with the police, she returned home where she spent the night awake and afraid. “Well, I was just very afraid. I didn’t–I just really didn’t sleep. I loaded my gun, and I sat up–I put my son to bed and I sat up and basically watched TV all night.” Id. at 130. During the following two weeks, Ms. Honce stayed with friends as much as possible. Id. at 132-134. She only returned to the trailer when it was a necessity, and then she kept a loaded gun beside her. Id. at 132, 135. When Ms. Honce was able to make arrangements to move her trailer, a police officer came to the trailer park “to see that there was no problem.” Id. at 333. The testimony of Captain Crespin and Ms. Honce raises the inference that the conditions under which Ms. Honce was living, due to Mr. Vigil’s actions, were such that she was constructively evicted.

Ms. Honce also testified that Mr. Vigil threatened to evict her. On October 24, 1990, she was having a fence built so that she could have a dog run as required by Mr. Vigil. Mr. Vigil arrived at her home while the fence was being put in and proceeded to stop the workers because they were using concrete. Ms. Honce asked Mr. Vigil what was going on and he responded, “Well, I’ll just evict you, then. I’ll just evict you.” Id. at 115. Bruce Wheeler, the owner of the fence company, was present during the above exchange. His testimony corroborated Ms. Honce’s testimony that Mr. Vigil threatened to evict her. He testified that Mr. Vigil said to Ms. Honce, ” ‘You’ll be receiving your eviction notice.’ That’s what I heard.” Id. at 372. Mr. Vigil himself admitted that he may have said that. Id. at 277.

Mr. Wheeler also described the abusive nature of Mr. Vigil’s conduct, stating that ” [i]t was very unusual. There’s only been another incident in the whole 14 years that I’ve done fence work that something of this magnitude has happened, you know, neighbors or owner and landlord, things like that.” Aplt.App. at 370. He said that Mr. Vigil “started really raising his voice” to Ms. Honce, id. at 372, and that ” [i]t just surprised the hell out of me. Things like that just don’t happen every day. To me, he didn’t handle the situation professionally. There were other ways he could have handled it in a more humane manner than the way he did.” Id. Finally, Mr. Wheeler testified that he told his helper that “if somebody ever talked to me or he came over and talked to me the way he was talking to Ms. Honce, I’d bust his ass.” Id. at 374.

Ms. Honce contends that she was constructively evicted by Mr. Vigil’s actions which caused her to fear for her safety. When we give Ms. Honce the benefit of all of the evidence and inferences, as we must, there is ample evidence to suggest an interference with her property. When a landlord causes a tenant to fear for her safety to the point where she seeks other quarters and keeps a loaded gun by her side, I believe there is, at least, a jury question regarding constructive eviction. It is for the jury to determine if her fear is reasonable and justified.

The cases cited by the majority do not require that we affirm the district court. The case before us does not involve simple demand letters for eviction, El Paso Natural Gas Co. v. Kysar Ins. Agency, Inc., 98 N.M. 86, 645 P.2d 442 (1982), threats to terminate services, United States v. Bedford Assoc., 548 F. Supp. 732 (S.D.N.Y. 1982), or mere inconveniences to the tenant, Baley & Selover, Inc. v. All Am. Van & Storage, Inc., 97 Nev. 370, 632 P.2d 723 (1981). This case involves extremely bizarre behavior on the part of the landlord, coupled with police reports regarding him, which caused the tenant to fear for her safety.4  The majority notes that Mr. Vigil’s “actions were not entirely unjustified, even if erratic.” Maj. op. at 1091. However, Mr. Vigil’s “justification” is not the issue. Rather, the issue is whether his actions interfered with Ms. Honce’s right to enjoyment of her property.

Finally, the majority contends that the interference with property was “limited to a brief period of time on a single occasion.” Maj. op. at 1091. The majority relies on Santillanes v. Property Management Servs., Inc., 110 Idaho 588, 716 P.2d 1360 (App.1986). There the evidence, which was submitted to the factfinder, demonstrated that the tenant was locked out of his business for one hour prior to opening. Id. at 590, 716 P.2d at 1362. Here the interference lasted two weeks and ultimately drove Ms. Honce away. Aplt.App. at 134. Moreover, it involved threatening conduct by the landlord corroborated by police reports of prior conduct. Surely the majority does not believe a tenant must wait for actual physical violence before a claim for breach of her right to quiet enjoyment of the property arises. Nothing in the New Mexico cases on the covenant of quiet enjoyment persuades me that state law would require as much. I believe a reasonable jury could find that Mr. Vigil’s actions were sufficiently severe and unjustified so as to deprive Ms. Honce of peaceful enjoyment of the premises. I would therefore reverse the district court’s directed verdict on the constructive eviction issue as well.

 dThe Honorable Timothy D. Leonard, United States District Judge for the Western District of Oklahoma, sitting by designation

 1Even assuming that Ms. Honce had met a prima facie case with sufficient evidence of constructive eviction, she would then be required to show proof of pretext if the defendant offers a legitimate, nondiscriminatory reason for the eviction. E.E.O.C. v. Flasher Co., 986 F.2d 1312, 1316 (10th Cir. 1992). Defendant presented evidence that the fence and Plaintiff’s failure to give notice of construction were in violation of the rental agreement; therefore, Defendant’s quarrel regarding the fence was justified. Ms. Honce did not dispute that the fence was in violation of the agreement. In fact her neighbors, a married couple, were evicted (after giving notice) following a similar dispute over fencing and stepping stones, and Mr. Vigil had evicted numerous other tenants of both sexes. So, even assuming a prima facie case of disparate treatment, Ms. Honce lacked evidence of pretext and cannot withstand a directed verdict. See Shapolia v. Los Alamos Nat’l Lab., 992 F.2d 1033 (10th Cir. 1993)

 1In order to make out a quid pro quo claim, Ms. Honce does not need to prove that she was denied the opportunity to move in. A quid pro quo claim may be established by showing that “tangible [housing] benefits are conditioned on [a lessee’s] submission to conduct of a sexual nature and that adverse [housing] consequences result from the [lessee’s] refusal to submit to the conduct.” Hicks v. Gates Rubber Co., 833 F.2d 1406, 1414 (10th Cir. 1987). In an employment context, we did not require the plaintiff in Hicks to prove that she was fired. Rather, a loss of job benefits due to a refusal to submit to sexual advances was enough. Id. Thus, a denial of rental services alone is enough to make a case for quid pro quo sexual harassment

 2I must take issue with the majority’s assertion that Mr. Vigil’s offensive behavior did not include “threats of violence.” Maj. op. at 1090. Ms. Honce described one incident which a jury could easily view as a threat of violence

And at that point, he just was–his whole manner was just real looming, you know, like he was just–just, to me it was threatening that he was just coming in there and trying to intimidate me. And then he–you know, he just told the man, “Stop your work. Pack up and leave. She’s not getting this fence.”

And he got in his truck. And at that point my dog is still standing there and happened to be, like, standing right in front of his truck. And he got in his truck. And, like, just from the look on his face and the fact that he was, like, revving his engine, getting ready to go, I knew–I knew that if I didn’t step in and get my dog, he was just going to run over my dog.

Aplt.App. at 115-16. The police officer with whom Ms. Honce spoke described further incidents of violence. “She claimed that he was insisting that she went out with him, and when she refused, he was coming to the house at all hours of the night and banging on her door, screaming at her obscenities and all types of abusive language; and, therefore, she was very frightened of him.” Id. at 337.

 3The district court clearly erred in refusing to admit Ms. Honce’s proffered evidence showing Mr. Vigil’s treatment of other women tenants. Over Ms. Honce’s objection, the trial court stated several different times that this evidence was not relevant to Ms. Honce’s claim. See Aplt.App. at 244, 248-49, 251, 253, 257-58, 262. This court, however, has specifically held to the contrary. In Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415, 1416 (10th Cir. 1987), we said that “incidents of sexual harassment directed at employees other than the plaintiff can be used as proof of the plaintiff’s claim of a hostile work environment.” We pointed out that because the environment “is an important factor in evaluating the claim,” such evidence could be critical. Id. Accordingly, we stated that evidence tending to show a defendant’s harassment of other women in the plaintiff’s situation “is directly relevant to the question whether he created an environment violative of Title VII.” Id. at 1416 (citation omitted)

 4I am puzzled by the majority’s reference to El Paso Natural Gas Co., 645 P.2d at 444, see maj. op. at 1091, because I find no support in that case for the proposition that past acts of the landlord toward others are not relevant

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

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

Albert Dicenso, Petitioner, v. Henry G. Cisneros, Secretary of the United States Departmentof Housing and Urban Development, and Christina L. Brown, Respondents

US Court of Appeals for the Seventh Circuit

Argued April 18, 1996. Decided Sept. 23, 1996

James P. Baker (argued), Springfield, IL, for Petitioner.

Thomas E. Chandler (argued), Jessica Dunsay Silver, Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, Harry L. Carey, Nelson Diaz, Department of Housing and Urban Development, Washington, DC, for Respondent.

Christina L. Brown, Decatur, IL, pro se.

Before BAUER, ESCHBACH, and FLAUM, Circuit Judges.

BAUER, Circuit Judge.

This case raises the question of whether one incident of harassment was sufficiently egregious to create a hostile environment sex discrimination cause of action under the Fair Housing Act, 42 U.S.C. § 3601 et seq. An Administrative Law Judge (“ALJ”) thought it was not, but the Housing and Urban Development (“HUD” or “the Department”) Secretary’s Designee disagreed, and remanded the case to the ALJ for a determination of damages. On remand, the ALJ awarded Christina Brown $5,000 in compensatory damages, assessed a $5,000 civil penalty, and entered injunctive relief. The landlord who committed the harassment now seeks relief from the Secretary’s Order. We reverse.


The events of this lawsuit arose in the context of Christina Brown’s tenancy at 522 1/2 West Allen Street in Springfield, Illinois. Brown, who at the time was 18 years old, lived in one of the four apartment units with Thomas Andrews and their infant daughter Sara. Beginning in June 1990, they leased the apartment from Albert DiCenso, who owned and managed the building, did most of the cleaning and maintenance, and collected the rents.

Brown and Andrews signed a six-month lease with an option for six more months. During the first few months a family friend stayed with them, and their rent was $300 per month. When the friend moved out in September, DiCenso reduced the rent to $275 per month. At first, Brown and her co-tenants delivered the rent checks to DiCenso’s home, but eventually, DiCenso started going to the apartment to collect the payments.

Sometime in mid-October or early November, DiCenso came to Brown’s apartment to collect the rent. According to the ALJ’s findings, the following exchange took place:

While [Brown] stood at the door, [DiCenso] asked about the rent and simultaneously began caressing her arm and back. He said to her words to the effect that if she could not pay the rent, she could take care of it in other ways. [Brown] slammed the door in his face. [DiCenso] stood outside calling her names–a “bitch” and “whore,” and then left.

On January 15, 1991, DiCenso again went to the apartment to collect the monthly rent. While there, he became involved in a confrontation with Andrews and the police were called. DiCenso informed the police that the disagreement was over Andrews’ refusal to pay the rent. Brown and Andrews told DiCenso that they would be leaving the apartment within the next ten days. According to the police report, the two parties “both came to the decision of settling the matter in court.”

Brown and Andrews did not move out, however, and in late January, DiCenso served them with a five-day notice to quit the premises. On January 31, Brown filed a housing discrimination complaint alleging that DiCenso had harassed her and her boyfriend, and had made sexual advances toward her.1  DiCenso denied the allegations, and asserted that he had had problems collecting the December 1990 and January 1991 rent, and that Andrews not only refused to pay the rent, but had threatened to hurt him. DiCenso felt that the discrimination complaint was a “plot” by Brown and Andrews to avoid paying the rent that was due.2

The Department investigated Brown’s complaint and determined that reasonable cause existed to believe that discrimination had occurred. On June 22, 1994 the Department issued a charge against DiCenso for violations of sections 804(b) and 818 of the Fair Housing Act. Section 804(b) prohibits discrimination “against any person in the terms, conditions, or privileges of [the] rental of a dwelling … because of … sex.” 42 U.S.C. § 3604(b). Section 818 makes it illegal to “coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of … any right” granted or protected by the Fair Housing Act. 42 U.S.C. § 3617. A HUD ALJ conducted a hearing on October 25, 1994.

On March 20, 1995, the ALJ issued a thorough decision, in which she acknowledged that any finding that the alleged acts occurred rested solely on credibility determinations. In making these determinations, the ALJ relied on the witnesses’ demeanor while testifying, their ability and opportunity to observe what happened, their memory, any interest or bias they might have, the consistency of their statements, and the reasonableness of their testimony in light of all of the evidence received. On the whole, the ALJ found Brown more credible than DiCenso. However, the ALJ also found that Brown’s testimony established only one act of sexual harassment by DiCenso–the mid-October incident. On this set of facts, the ALJ concluded that DiCenso’s conduct did not rise to the level of severity required to create a hostile housing environment. Consequently, the ALJ found that Brown had failed to establish a claim of sex discrimination and dismissed the complaint.

The Department, acting on Brown’s behalf, sought review of the ALJ’s order pursuant to 42 U.S.C. § 3612(h). The HUD Secretary’s Designee affirmed the ALJ’s findings of fact, but reached a different conclusion on the issue of whether the single incident amounted to a hostile housing environment for purposes of the Fair Housing Act. Finding for Brown on the issue of liability, the Secretary’s Designee vacated the ALJ’s decision and remanded the case for a determination of damages. The ALJ awarded Brown $5,000 in compensatory damages, assessed a $5,000 civil penalty against DiCenso and entered injunctive relief. This award became final on July 19, 1995. On August 18, 1995, DiCenso filed a petition for review in this court pursuant to 42 U.S.C. § 3612(i).


Before addressing whether DiCenso’s conduct constitutes unlawful discrimination, we first must address the applicable standard of review. Both parties correctly acknowledge that we defer to the ALJ’s findings of fact where they are supported by substantial evidence on the record as a whole. See Chicago Tribune v. NLRB, 79 F.3d 604, 607 (7th Cir. 1996). The issue, then, is whether we also should defer to the Department’s legal conclusions. DiCenso understandably argues that we should review the legal conclusions de novo. In its initial brief, the Department agreed, but at oral argument, we invited the parties to submit supplemental briefs on the issue of whether the Supreme Court’s Chevron decision requires us to defer to HUD’s interpretation of what constitutes a hostile housing environment. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-45, 104 S. Ct. 2778, 2782-83, 81 L. Ed. 2d 694 (1984).

Chevron requires us to defer to the decisions of executive agencies where the agency has a particular expertise in the conflicting policy considerations that underlie a statute, or where the agency previously has considered the matter at issue in a detailed and reasoned fashion. See id. at 865, 104 S. Ct. at 2792-93. Neither of these situations exist here. In Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986), the Supreme Court commented on the deference given to EEOC guidelines defining sexual harassment as a form of sex discrimination. Although those guidelines “constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance,” they are not “controlling upon the courts by reason of their authority.” Meritor, 477 U.S. at 65, 106 S. Ct. at 2404, citing General Electric Co. v. Gilbert, 429 U.S. 125, 141-42, 97 S. Ct. 401, 410-11, 50 L. Ed. 2d 343 (1976). In this case, by contrast, HUD has not even enacted guidelines regarding hostile housing environment sex discrimination. Rather, as the HUD Secretary’s Designee acknowledged, a determination of what constitutes a hostile environment in the housing context requires the same analysis courts have undertaken in the Title VII context. Such a determination does not require deference to an administrative agency.

Despite the concession in its initial brief, the Department now argues that we should subject determinations of whether an incident of harassment is sufficiently egregious to constitute sex discrimination to a clearly erroneous standard. See, e.g., Carr v. Allison Gas Turbine Div., General Motors Corp., 32 F.3d 1007, 1009 (7th Cir. 1994); Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir. 1993); Rennie v. Dalton, 3 F.3d 1100, 1106 (7th Cir. 1993); Daniels v. Essex Group, Inc., 937 F.2d 1264, 1269-70 (7th Cir. 1991). Each of these cases involves claims of hostile environment discrimination in employment. Moreover, all of them also differ from the instant case insofar as they involved challenges to a district court’s findings of fact. In those cases, we held that the existence of harassment in a hostile work environment involved an application of facts to law. Therefore, the clearly erroneous standard governed. See Rodgers, 12 F.3d at 674. In this case, the existence of harassment is not at issue. The sole question is whether the incident of harassment that occurred is sufficient to state a cause of action under the Fair Housing Act. This is purely a question of law which we review de novo. See Daniels, 937 F.2d at 1269.

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (1), allows a cause of action for harassment that creates a hostile or offensive working environment. Meritor, 477 U.S. at 65, 106 S. Ct. at 2404-05. Claims of hostile environment sex discrimination in the housing context have been far less frequent. The first district court to apply the hostile environment cause of action to housing discrimination did so in Shellhammer v. Lewallen, Fair Hous.–Fair Lend. Rep. (P-H) para. 15,742 (W.D. Ohio Nov. 22, 1983), affirmed by 1985 WL 13505 (6th Cir. July 31, 1985). Since Shellhammer, one court of appeals also has recognized sexual harassment as a basis for a Fair Housing Act discrimination claim. See Honce v. Vigil, 1 F.3d 1085 (10th Cir. 1993). Like Shellhammer and Honce, other courts that have found harassment to create an actionable form of housing discrimination also have incorporated Title VII doctrines into their analyses. See Beliveau v. Caras, 873 F. Supp. 1393, 1396-97 (C.D. Cal. 1995); see also New York ex rel. Abrams v. Merlino, 694 F. Supp. 1101 (S.D.N.Y. 1988) (alleging a pattern of race and sex discrimination in the provision of real estate brokerage services).

Like the Tenth Circuit, we recognize a hostile housing environment cause of action, and begin our analysis with the more familiar Title VII standard. For sexual harassment to be actionable in the Title VII context, it must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. Meritor, 477 U.S. at 67, 106 S. Ct. at 2405-06. “Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment–an environment that a reasonable person would find hostile or abusive-is beyond Title VII’s purview.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370, 126 L. Ed. 2d 295 (1993). Applied to the housing context, a claim is actionable “when the offensive behavior unreasonably interferes with use and enjoyment of the premises.” Honce, 1 F.3d at 1090. Whether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances, and factors may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. Harris, 510 U.S. at 23, 114 S. Ct. at 371.

We repeatedly have held that isolated and innocuous incidents do not support a finding of sexual harassment. See, e.g., Koelsch v. Beltone Electronics Corp., 46 F.3d 705, 708 (7th Cir. 1995); Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 444 (7th Cir. 1994). For example, in Saxton v. American Tel. & Tel. Co., 10 F.3d 526 (7th Cir. 1993), the defendant on one occasion put his hand on the plaintiff’s leg and kissed her until she pushed him away. Three weeks later, the defendant lurched at the plaintiff from behind some bushes and unsuccessfully tried to grab her. While these incidents were subjectively unpleasant, the defendant’s conduct was not frequent or severe enough to create a hostile environment. Saxton, 10 F.3d at 534-35. Similarly, in Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333 (7th Cir. 1993), the defendant asked the plaintiff for dates on repeated occasions, placed signs which read “I love you” in her work area, and twice attempted to kiss her. These incidents also were too isolated and insufficiently severe to create a hostile work environment. Weiss, 990 F.2d at 337. Common to all of these examples is an emphasis on the frequency of the offensive behavior. “Though sporadic behavior, if sufficiently abusive, may support a [discrimination] claim, success often requires repetitive misconduct.” Chalmers v. Quaker Oats Co., 61 F.3d 1340, 1345 (7th Cir. 1995).

In this context, the problem with Brown’s complaint is that although DiCenso may have harassed her, he did so only once. Moreover, DiCenso’s conduct, while clearly unwelcome, was much less offensive than other incidents which have not violated Title VII. DiCenso’s comment vaguely invited Brown to exchange sex for rent, and while DiCenso caressed Brown’s arm and back, he did not touch an intimate body part, and did not threaten Brown with any physical harm. There is no question that Brown found DiCenso’s remarks to be subjectively unpleasant, but this alone did not create an objectively hostile environment.

We stress in closing that our decision today should not be read as giving landlords one free chance to harass their tenants. We do not condone DiCenso’s conduct, nor do we hold that a single incident of harassment never will support an actionable claim. See Chalmers, 61 F.3d at 1345; King v. Board of Regents of University of Wisconsin System, 898 F.2d 533, 537 (7th Cir. 1990). Considering the totality of the circumstances in this case, we agree with the ALJ that DiCenso’s conduct was not sufficiently egregious to create an objectively hostile housing environment.


For the foregoing reasons, we grant DiCenso’s petition and reverse the decision of the HUD Secretary Designee.


FLAUM, Circuit Judge, dissenting.

The majority correctly notes that this case raises the purely legal issue of whether a particular incident of harassment was sufficiently egregious to create a hostile housing environment claim under the Fair Housing Act (the “FHA”). The majority reviews this legal issue de novo and concludes that Albert DiCenso’s conduct did not create an objectively hostile environment. Because, in my view, we must defer to HUD’s reasonable interpretation of what constitutes a hostile housing environment, I respectfully dissent from the majority’s decision.

It is well-established that considerable weight should be given to an agency’s construction of a statutory scheme that it has been entrusted to administer. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S. Ct. 2778, 2782-83, 81 L. Ed. 2d 694 (1984). The Supreme Court has held that HUD’s interpretation of the FHA “ordinarily commands considerable deference” since “HUD [is] the federal agency primarily assigned to implement and administer Title VIII.” Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 107, 99 S. Ct. 1601, 1611-12, 60 L. Ed. 2d 66 (1979); see Pfaff v. United States Dep’t of Housing & Urban Dev., 88 F.3d 739, 747 (9th Cir. 1996); Cowherd v. United States Dep’t of Housing & Urban Dev., 827 F.2d 40, 42 (7th Cir. 1987) (finding that Congress vested HUD “with considerable discretion to implement the various and often competing goals of the national housing policy”). The majority recognizes that Chevron calls for deference where an agency has expertise in reconciling conflicting policy considerations that underlie a statute, but posits that, because HUD has not enacted hostile housing environment guidelines, we need not defer to HUD’s construction of the FHA. Yet an agency is free to formulate policy through individual adjudicative proceedings rather than rulemaking. NLRB v. Bell Aerospace Co., 416 U.S. 267, 293-94, 94 S. Ct. 1757, 1771-72, 40 L. Ed. 2d 134 (1974). Thus an agency’s interpretation of the statute that it administers commands deference, irrespective of whether that interpretation emerges as a result of an adjudicative proceeding or a rulemaking process. Pfaff, 88 F.3d at 747; see Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 574, 108 S. Ct. 1392, 1396-97, 99 L. Ed. 2d 645 (1988) (applying Chevron deference in the context of an adjudicative proceeding); Federal Election Comm’n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 31-32, 102 S. Ct. 38, 41-42, 70 L. Ed. 2d 23 (1981) (finding that interpretation developed by agency during adjudication was entitled to deference). The scope of our review of this agency action is therefore clearly limited. We “may not substitute [our] own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” Chevron, 467 U.S. at 844, 104 S. Ct. at 2782.

In the current case, the Secretary of HUD has taken the position that DiCenso’s conduct was sufficiently severe as to create a claim for hostile housing environment under the FHA. Section 804(b) of the FHA prohibits gender-based discrimination in the sale or rental of a dwelling, or in the “provision of services” in connection with such sale or rental. 42 U.S.C. § 3604(b). The Secretary, consistently with the approach adopted by the majority, believes that a hostile housing environment claim is actionable “when the offensive behavior unreasonably interferes with use and enjoyment of the premises.” Honce v. Vigil, 1 F.3d 1085, 1090 (10th Cir. 1993). The Secretary concludes that DiCenso’s offensive conduct was sufficiently severe to satisfy this test, despite the fact that the conduct only occurred once. DiCenso’s unwelcome caressing of Brown, combined with his offer of “sex for rent” and his hurling of gender-oriented epithets after Brown’s rejection of his offer, certainly provides the Secretary with ample support for this conclusion. Although the majority may very well be correct in stating that DiCenso’s conduct would not be sufficient to give rise to a claim for sexual harassment under our Title VII precedent, the majority provides no basis for doubting the reasonableness of the Secretary’s interpretation of the FHA. In conclusion it is my judgment that the Secretary’s interpretation of the FHA is a reasonable one and is therefore entitled to deference.

 1In addition to the aforementioned incident, Brown’s complaint alleged other incidents of purported harassment as well as unauthorized entries into the apartment. However, the mid-October exchange is the only incident for which the ALJ found DiCenso responsible. The ALJ heard the evidence, and observed the demeanor and testimony of the witnesses. Moreover, the Secretary’s Designee accepted the ALJ’s findings of fact. Accordingly, we will consider only the mid-October exchange in determining whether Brown has stated an actionable claim

 2DiCenso also filed suit against Brown and Andrews in the Circuit Court of Sangamon County to collect the unpaid January 1991 rent. After an evidentiary hearing, the court entered judgment in favor of DiCenso in the sum of $275.00 plus court costs

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

Beliveau v. Caras, 873 F. Supp. 1393 (C.D. Cal. 1995)

Linda BELIVEAU, Plaintiff,
Chris CARAS, James Rickell, and Does 1 through 25, inclusive, Defendants.

No. CV 94-5398 RAP (CTx).

United States District Court, C.D. California.

January 6, 1995.*1394 Angela M. Brown, Bodkin, McCarthy, Sargent & Smith, Los Angeles, CA.

Sue Ann Howard, Baumberger & Howard, Lancaster, CA.


PAEZ, District Judge.

On October 17, 1994, the Court heard defendants Chris Caras’ and James Rickell’s motion for partial dismissal of plaintiff’s First Amended Complaint. After fully considering the moving, opposition, and reply papers, exhibits submitted in connection with the request to take judicial notice, authorities, and counsel’s oral arguments, the Court denies the motion with respect to the First, Seventh, and Eighth Causes of Action, and grants the motion without leave to amend the Second, Third, Sixth, Ninth, Tenth, and Eleventh Causes of Action.



Plaintiff Linda Beliveau (“Beliveau”) filed an action in Los Angeles Superior Court on *1395 February 24, 1994 against defendants Chris Caras, James Rickell, and Does 1 through 25 for sex discrimination in defendants’ “operation of their apartment complex in violation of the California Fair Employment and Housing Act (Government Code §§ 12940 et seq).” She asserted causes of action for housing discrimination, negligent hiring, negligent supervision, sexual assault, intentional infliction of emotional distress, and negligent infliction of emotional distress.

Defendants demurred to the complaint. On June 16, 1994, the Superior Court sustained the demurrer without leave to amend on the causes of action for housing discrimination, sexual assault (against Caras), intentional infliction of emotional distress (against Caras), and negligent infliction of emotional distress (against Caras). Leave to amend was granted with respect to the negligent hiring and negligent supervision causes of action.

On July 5, 1994, plaintiff filed a First Amended Complaint (“FAC”) alleging the following causes of action: (1) discrimination in housing (42 U.S.C. § 3604 et seq.); (2) negligent hiring (unamended); (3) negligent supervision (unamended); (4) sexual battery (against Rickell) (5) intentional infliction of emotional distress (against Rickell); (6) negligent infliction of emotional distress (against all defendants and without court permission); (7) violation of the Ralph Civil Rights Act (Civ.C. § 51.7); (8) violation of the Unruh Act (Civ.C. § 51); (9) breach of the covenant of good faith and fair dealing; (10) breach of the covenant of quiet enjoyment (Civ.C. § 1927); and (11) intentional nuisance (Civ.C. § 3479). Pursuant to Federal Rule of Evidence 201, the Court hereby takes judicial notice of the pleadings and records in the Los Angeles Superior Court.

Defendants removed the case to federal court on August 9, 1994 based on the federal claim for discrimination in housing. Defendants Caras and Rickell moved to dismiss the First, Second, Third, and Sixth through Eleventh Causes of Action.



The following facts, which the Court must accept as true for purposes of the instant motion, are alleged in the First Amended Complaint (“FAC”).

Plaintiff rents an apartment in Redondo Beach. Defendant Chris Caras owns and operates the building; defendant James Rickell is the resident manager.

In about July/August 1993, Beliveau noticed that Rickell was staring at her while she was laying out by the apartment pool in her bathing suit. During that same time period, Rickell “began making off-color, flirtatious and unwelcome remarks to Beliveau.” FAC, ¶ 10. Also during this time frame, Rickell “went to Plaintiff’s apartment to repair a water leak in her shower, when he thereafter called her into the bathroom, proceeded to put his arm around her, told her she was an attractive woman, he would like to keep her company any time, and made a remark about her breasts, referring to them as `headlights.'” Id., ¶ 11, Beliveau pushed him away, and he “grabbed her breast, and, after being pushed away again, grabbed her buttock as she walked away from him.” Id., ¶ 12.



A. Standard on Motion to Dismiss

The purpose of a Rule 12(b) (6) motion is to test the “legal sufficiency of the claim or claims stated in the complaint.” Schwarzer, Tashima and Wagstaffe, California Practice Guide: Federal Civil Procedure Before Trial (“Fed.Civ.Proc.“), § 9:187 (1994), citing Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957); De La Cruz v. Tormey, 582 F.2d 45 (9th Cir. 1978), cert. denied, 441 U.S. 965, 99 S. Ct. 2416, 60 L. Ed. 2d 1072 (1979). The motion is disfavored; “dismissal is proper only in `extraordinary’ cases.” Fed. Civ.Proc., § 9:210, citing United States v. Redwood City, 640 F.2d 963 (9th Cir.1981).

In evaluating the motion, the Court looks only to the face of the complaint to determine whether there are defects. Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1483 (9th Cir. 1991); see also Fed.Civ.Proc., § 9:211. The *1396 complaint is construed in the light most favorable to the plaintiff. Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir.1980); Fed.Civ. Proc., § 9:213. In addition, “the court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them.” Fed.Civ.Proc., § 9:215 (emphasis in original), citing NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986). In short, the “test is whether the facts, as alleged, support any valid claim entitling the plaintiff to relief,” regardless of whether plaintiff erroneously used the wrong legal theory. Fed.Civ.Proc., § 9:227 (emphasis in original); Haddock v. Board of Dental Examiners of California, 777 F.2d 462, 464 (9th Cir.1985).

B. Federal Housing Discrimination Claim

Title VIII or the Housing Rights Act of 1968, the Fair Housing Act, 42 U.S.C. §§ 3601-3619, prohibits, among other things, sexual discrimination in housing. 42 U.S.C. § 3604(b) provides in relevant part:

[I]t 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.

The application of sexual harassment doctrine to cases under Title VIII is relatively new. The first district court to find sexual harassment to constitute impermissible housing discrimination did so in Shellhammer v. Lewallen, Fair Hous. Fair Lend. Rep. (P-H) ¶ 15,472 (W.D.Ohio Nov. 22, 1983). In that case, a landlord requested that plaintiff pose for nude photographs and engage in sexual intercourse with him. Plaintiff refused, and, as the Shellhammers alleged, this prompted the landlord to commence eviction proceedings on the pretext of their purported nonpayment of rent.

The court reviewed the arguments for and against allowing a housing discrimination claim to be based on sexual harassment. The court noted that, in the employment context, other courts had not found the absence of express authorization in the text or legislative history of Title VII to justify rejecting such claims. Moreover, both Title VII and Title VIII were “designed to eradicate the effects of bias and prejudice. Their purposes are, clearly, the same; only their field of operation differs.” Indeed, as the Chief Judge of that district had explained, “The [Fair Housing] Act … is to be construed generously to ensure the prompt and effective elimination of all traces of discrimination within the housing field.” Id., p. 16,128, quoting United States v. City of Parma, 494 F. Supp. 1049, 1053 (N.D. Ohio 1980), aff’d, 661 F.2d 562 (6th Cir.1981). The district judge in Shellhammer concluded that, “[i]n view of the policy of broad interpretation of the Fair Housing Act, the statute’s remedial purposes, and the absence of any persuasive reason in support of the defendant’s contentions that sexual harassment is not actionable under the Act,” it was “entirely appropriate to incorporate this doctrine into the fair housing area.” Id.

The judge then explained that in the housing area, “sexual harassment would consist of either creating an `offensive environment,’ or conditioning tenancy or continued tenancy, upon sexual consideration.” Id. The court found the latter form of sexual harassment to be present.

Since Shellhammer, additional courts have agreed that sexual harassment is an actionable form of housing discrimination. In New York ex rel. Abrams v. Merlino, 694 F. Supp. 1101 (S.D.N.Y.1988), the state and four individual female plaintiffs, two of whom were African-American, sued a real estate broker and three real estate salespersons for an alleged pattern and practice of race and sex discrimination in providing real estate brokerage services. Plaintiffs alleged that, among other things, defendant Merlino “subject[ed] his female customers to unwanted physical touching and to suggestive sexual comments and propositions.” 694 F. Supp. at 1102. Judge Goettel noted his reluctance at the motion to dismiss stage to find that a claim for sexual harassment could not be stated, and denied the motion to dismiss. Id. at 1104.

More recently, in Honce v. Vigil, 1 F.3d 1085 (10th Cir.1993), the Tenth Circuit recognized sexual harassment as a basis for a Fair *1397 Housing Act discrimination claim. The court noted that employment discrimination cases provided helpful guidance. 1 F.3d at 1088. The court explained:

Applied to housing, a claim is actionable when the offensive behavior unreasonably interferes with use and enjoyment of the premises. The harassment must be `sufficiently severe or pervasive’ to alter the conditions of the housing arrangement … It is not sufficient if the harassment is isolated or trivial…. `”[C]asual or isolated manifestations of a discriminatory environment … may not raise a cause of action.”‘ … The offensive acts need not be purely sexual; it is sufficient that they would not have happened but for claimant’s gender.

Id. at 1090 (citations omitted). The court found defendant’s conduct, which escalated from asking her out to threats of eviction, to be “eccentric, and probably unwarranted,” but because his behavior was not sexual or directed only at women, it was not actionable. Id.

In sum, it is beyond question that sexual harassment is a form of discrimination. Moreover, as the above cases make clear, the purposes underlying Titles VII and VIII are sufficiently similar so as to support discrimination claims based on sexual harassment regardless of context. Indeed, it is the behavior that the law seeks to eradicate. The basic principles thus apply as strongly in the housing situation as in the workplace.[1] At this point, then, it is appropriate to turn to this circuit for guidance on the applicable standards in sexual harassment cases.

The Ninth Circuit set forth the parameters of sexual harassment claims in employment in Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991). There, an Internal Revenue Service agent became the object of another agent’s affections. He wrote her notes, asked her for dates, and otherwise made the working environment extremely uncomfortable for her with his unsolicited attention. 924 F.2d at 873-75. After attempting to resolve the problem through administrative proceedings, Ellison finally sued. The district court granted summary judgment for the government on the ground that plaintiff had “failed to state a prima facie case of sexual harassment due to a hostile working environment.” Plaintiff appealed. Id. at 875.

The Ninth Circuit reversed. The court noted first that “the required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct.” Id., quoting King v. Board of Regents of University of Wisconsin System, 898 F.2d 533, 537 (7th Cir.1990) (“[a]lthough a single act can be enough, … generally, repeated incidents create a stronger claim of hostile environment, with the strength of the claim depending on the number of incidents and the intensity of each incident.”)

The court explained that harassment should be analyzed from the victim’s perspective. Women’s viewpoints differ widely, the court acknowledged. But certain realities persist. Notably, women remain disproportionately vulnerable to rape and sexual assault, which can and often does shape women’s interpretations of words or behavior of a sexual nature, particularly if unsolicited or occurring in an inappropriate context. Id. at 879. Such differences in experience and perception are a regrettable function of the society we live in, not an inevitability grounded in biology.

Regardless of the source, though, the net result of the disparate experiences of women and men concerning harassment, as the Ninth Circuit recognized, is that a single standard perpetuates inequalities: “a sex-blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women.” Id. at 879. *1398 The goal is a level playing field and “a gender-conscious examination of sexual harassment enables women to participate in the workplace on an equal footing with men.” Id. The court added: “By acknowledging and not trivializing the effects of sexual harassment on reasonable women, courts can work towards ensuring that neither men nor women will have to `run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living.'” Id. at 879-80, quoting Henson v. Dundee, 682 F.2d 897, 902 (11th Cir.1982).[2]

Applying the reasonable woman standard to the facts, the Ninth Circuit did not find Ellison’s reaction to be hyper-sensitive:

We believe that a reasonable woman could have had a similar reaction. After receiving the first bizarre note from Gray, a person she barely knew, Ellison asked a co-worker to tell Gray to leave her alone. Despite her request, Gray sent her a long, passionate, disturbing letter. He told her he had been “watching” and “experiencing” her; he made repeated references to sex; he said he would write again. Ellison had no way of knowing what Gray would do next.

Id. Despite the lack of evidence of any malicious intent on Gray’s part, the court refused to regard Gray as a “modern-day Cyrano de Bergerac wishing no more than to woo Ellison with his words.” Id.

In the instant case, plaintiff has alleged several incidents in which defendant Rickell made “off-color, flirtatious and unwelcome remarks.” In addition, she has alleged an incident of offensive touching, which, if proved, would constitute a sexual battery under California Civil Code § 1708.5.[3]Any such touching would support a sexual harassment claim under the federal Fair Housing Act. Particularly where, as here, the alleged battery was committed (1) in plaintiff’s own home, where she should feel (and be) less vulnerable, and (2) by one whose very role was to provide that safe environment, defendants’ contention that plaintiff has failed to allege “conduct that was so severe or pervasive to `alter the conditions’ of plaintiff’s housing environment” and has failed to “allege an `abusive’ housing environment” resulting from defendants’ conduct is not well-taken. There are few clearer examples of classic sexual harassment than an unpermitted, allegedly intentional, sexual touching. Under no circumstances should a woman have to risk further physical jeopardy simply to state a claim for relief under Title VIII. Plaintiff has adequately alleged the requisite offensive housing environment. The motion to dismiss this claim is denied.[4]

C. Other Claims

1. Claims Subject to Court Ruling on Demurrer

Before this case was removed, defendants demurred successfully to the causes of action for negligent hiring, negligent supervision, and negligent infliction of emotional distress. Plaintiff was given leave to amend the first two, but did not do so. The court did not give plaintiff leave to amend the negligent infliction cause of action as to the property owner, defendant Caras.

On removal, the state court’s rulings stand, unless or until modified by a federal court. Fed.Civ.Proc., § 2:1018, citing Salveson v. Western States Bankcard Ass’n, 525 F. Supp. 566 (N.D.Cal.1981). Thus, Caras is hereby dismissed (again) from the sixth cause of action for negligent infliction of emotional distress.

*1399 As for the other two claims, the court granted the demurrers on the grounds stated in the papers, specifically, failure to state a cognizable duty owed to plaintiff. At oral argument on October 17, 1994, plaintiff’s counsel agreed that the motion to dismiss these claims should also be granted.

2. Ralph Civil Rights Act

Plaintiff’s Seventh Cause of Action asserted a violation of the Ralph Civil Rights Act of 1976, Civil Code § 51.7, which provides in relevant part:

All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of their race, color, religion, ancestry, national origin, political affiliation, sex, or position in a labor dispute. The identification in this subdivision of particular bases of discrimination is illustrative rather than restrictive.

Defendants have challenged the claim with respect to Caras, arguing that only the actual harasser is potentially liable for any violation. Defendants relied on a series of cases in which courts have declined to apply the doctrine of respondeat superior to hold school district employers liable for the sexual torts of their employees.

It is, of course, well-established under California law, which controls on this claim, that the doctrine of respondeat superior may support a finding of employer liability for “torts committed by an employee within the scope of employment.” Mary M. v. City of Los Angeles, 54 Cal. 3d 202, 208, 285 Cal. Rptr. 99, 814 P.2d 1341 (1991), citing Perez v. Van Groningen & Sons, Inc., 41 Cal. 3d 962, 967, 227 Cal. Rptr. 106, 719 P.2d 676 (1986). The California Supreme Court affirmed the rationale for the doctrine as “based on `”a deeply rooted sentiment”‘ that it would be unjust for an enterprise to disclaim responsibility for injuries occurring in the course of its characteristic activities.” Id. at 208, 285 Cal. Rptr. 99, 814 P.2d 1341 (citations omitted).

In Mary M., the California Supreme Court stated again that for respondeat superior to apply, plaintiff had to “prove that the employee’s tortious conduct was committed within the scope of employment.” Id. at 209, 285 Cal. Rptr. 99, 814 P.2d 1341. That is, courts should inquire as to whether the risk may be fairly regarded “`as typical of or broadly incidental’ to the enterprise undertaken by the employer.” Id. (citations omitted). Even conduct that “violates an employee’s official duties or disregards the employer’s express orders may nonetheless be within the scope of employment.” Id. Tortious acts that do not benefit the employer or that are willful or malicious in nature may still be within the scope of employment. Id. Moreover, “[t]he doctrine of respondeat superior applies to public and private employers alike.” Id.

The California Supreme Court reiterated that courts must also consider three policy objectives in determining whether the doctrine of respondeat superior applies in a particular case. First, courts must evaluate whether imposing liability “may prevent recurrence of the tortious conduct” by “`creating a strong incentive for vigilance by those in a position “to guard substantially against the evil to be prevented.”‘” Id. at 214, 285 Cal. Rptr. 99, 814 P.2d 1341 (citation omitted). Second, courts consider whether imposing liability will “give greater assurance of compensation to the victim.” Id. at 215, 285 Cal. Rptr. 99, 814 P.2d 1341. And third, courts are to determine whether it is appropriate to “spread[] the risk of loss among the beneficiaries of the enterprise[.]” Id. at 216, 285 Cal. Rptr. 99, 814 P.2d 1341.

Whether certain conduct, such as the unwanted touching and allegedly offensive remarks here, occurs within the scope of employment is ordinarily a question of fact, unless the facts are undisputed. Farmers Insurance Group v. County of Santa Clara, 26 Cal. App. 4th 1154, 31 Cal. Rptr. 2d 874, 878 (1994). The Court cannot make factual determinations on a motion to dismiss; rather, the inquiry is whether the facts as alleged are sufficient to state a claim.

In the instant case, plaintiff has alleged that defendant Rickell was the resident manager and was employed by defendant Caras. Plaintiff further alleged that “each of *1400 the Defendants herein was, at all times relevant to this action, the agent, employee, representing partner, or joint venturer of the remaining Defendants and was acting within the course and scope of that relationship.” FAC, ¶ 6 (emphasis added). Moreover, the occasion for Rickell’s presence in plaintiff’s apartment was to repair a leaky shower faucet, that is, to perform one of his duties as resident manager. FAC, ¶ 11. It is thus reasonable to infer from the facts that Rickell was on the premises, that is, in the bathroom of Ms. Beliveau’s unit, on a job-related task.

There is little question that courts have demonstrated ambivalence concerning the proper characterization of an employee’s behavior when he allegedly commits a sexual battery or rape while “on duty.” The California Supreme Court found the City of Los Angeles to be liable when one of its police officers raped a woman after he took her home when she performed poorly on a field sobriety test. Mary M. v. City of Los Angeles, supra, 54 Cal. 3d at 214, 285 Cal. Rptr. 99, 814 P.2d 1341. The Supreme Court concluded in that case that the determination to impose liability on an employer required the court to decide whether doing so would achieve the three policy objectives. In Mary M., the Court emphasized that police officers’ duties included use of force when the occasion merited it. The Court found sexual assault to be “broadly incidental to the enterprise of law enforcement,” recognizing implicitly that rape is an act of force and violence, not sex. Id. at 218, 285 Cal. Rptr. 99, 814 P.2d 1341. As a result, imposing liability on the City of Los Angeles was consistent with the policy objectives of the respondeat superior doctrine.

Decisions following Mary M., however, have not made it possible to articulate a bright line rule on when respondeat superior ought to apply. For example, in Debbie Reynolds Professional Rehearsal Studios v. Superior Court, 25 Cal. App. 4th 222, 30 Cal. Rptr. 2d 514 (1994), the Court of Appeal determined that the defendant dance studio could not be held vicariously liable for the alleged batteries and molestation that one of the dance instructors committed against plaintiff: “His wrongful conduct was so divorced from his duties and work that, as a matter of law, it was outside the scope of his employment. He was hired to teach dance, not to molest, abuse, or threaten minors. Sexual abuse simply is not typical of or broadly incident to the enterprise undertaken by petitioner.” Id. at 227, 30 Cal. Rptr. 2d 514. The court further found that the abuse was not foreseeable, which made it unfair to require the employer to bear the cost of the loss. Id. at 227-28, 30 Cal. Rptr. 2d 514. The court’s decision comported with the school district-employee line of cases, leaving Mary M. to support an exception for sexual assaults by police officers to the “rule” of no respondeat superior liability.

Less than six months later, however, another division of the same district court of appeal appears to have confused the issue somewhat. In Morin v. Henry Mayo Newhall Memorial Hospital, 29 Cal. App. 4th 473, 34 Cal. Rptr. 2d 535 (1994), the court denied a hospital’s motion for summary judgment. The hospital had contended that respondeat superior could not apply to render it liable for the sexual battery committed by its ultrasound technician on a pregnant patient. The court relied on Mary M., but, for obvious reasons, did not analogize the police officer’s and ultrasound technician’s respective abilities to use force in the scope of their employment. Rather, the court of appeal stressed the similarities in the “indicia of authority” each employee possessed, which led the plaintiffs in each case to trust the wrongdoer. The court of appeal explained that, as in Mary M., abuse of the type that actually occurred was foreseeable and justified imposing the resulting costs on the hospital. The court of appeal then attempted to distinguish the authority and position of trust that a teacher possessed from that reposed in the ultrasound technician so as to support the decision to apply the respondeat superior doctrine. Id. at 479-81, 34 Cal. Rptr. 2d at 539.

As the above examples demonstrate, the line-drawing in the subset of respondeat superior cases involving sexual assaults and batteries is highly fact-specific. As discussed, plaintiff here has plainly alleged facts *1401 from which the Court may infer that defendant Rickell was acting within the scope of his employment when he purportedly committed the acts of sexual battery. He occupied a position of trust which allowed him to gain access to plaintiff’s home. Whether, as the resident manager, his duties were more akin to those of a police officer or an ultrasound technician, thus supporting application of respondeat superior, or whether he was more like a teacher, which might allow the building owner, defendant Caras, to escape liability, requires the Court to make (necessarily) artificial distinctions. The Court declines to do so at this stage of the proceedings. Plaintiff has alleged facts adequate to state a claim under the Ralph Civil Rights Act,[5] and the motion to dismiss this cause of action is denied.

3. Unruh Civil Rights Act

The Unruh Civil Rights Act, Civil Code § 51, provides in relevant part:

All persons within the jurisdiction of this state are free and equal, and no matter what their sex, color, religion, ancestry, national origin, or disability are entitled to the full and equal accommodations, advantages, privileges, or services in all business establishments of ever kind whatsoever.

The Unruh Civil Rights Act is to be liberally construed. Lambert v. Mandel’s of Cal., 156 Cal. App. 2d Supp. 855, 856, 319 P.2d 469, 470 (1958); Crowell v. Isaacs, 235 Cal. App. 2d 755, 757, 45 Cal. Rptr. 566, 567 (1965); Winchell v. English, 62 Cal. App. 3d 125, 128, 133 Cal. Rptr. 20, 21 (1976). Those engaged in sale or rental of real property are covered by the Act. 58 Ops.Atty.Gen. 608 (August 21, 1975).

Defendants contend that Civil Code § 51 does not by its term prohibit sexual harassment. Defendants rely on Harris v. Capital Growth Investors XIV, 52 Cal. 3d 1142, 278 Cal. Rptr. 614, 805 P.2d 873 (1991). Although the California Supreme Court did decide in Harris that economic discrimination and sex discrimination based on disparate impact were not cognizable under the Unruh Act, the Court nonetheless described the liberal construction of Civ.C. § 51 at considerable length. It may well be the case that the California Supreme Court will not, ultimately, allow sexual harassment claims under the Unruh Act. But it has not precluded these claims yet, and both the policy of liberal construction and the plain language of the provision should permit plaintiff to go forward. The motion to dismiss on this claim is denied.

4. Breach of the Covenant of Good Faith and Fair Dealing

The Second Restatement of Contracts, quoted in 1 B. Witkin, Summary of California Law, “Contracts” (9th ed. 1987) § 744, provides that “[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” Plaintiff did not contest defendants’ argument that plaintiff has no contract with Rickell and that Caras is not alleged to have done anything to breach the rental agreement. Def. Mot., pp. 19-20. As plaintiff has not even alleged a breach of contract claim in the FAC, she would seem to be missing a key element of her breach of implied covenant claim, whether pled in contract or tort. In any event, at oral argument, plaintiff’s counsel consented to dismissal of this claim.

5. Breach of the Covenant of Quiet Enjoyment

As Professor Witkin has explained, “[i]n every lease, there is an implied covenant by the lessor of quiet enjoyment and possession during the term.” 4 B. Witkin, Summary of *1402 California Law, “Real Property” (9th ed. 1987), § 573 (emphasis in original); Civ.C. § 1927.[6] Witkin added that the “covenant is a warranty by the lessor against his own acts, not against those of strangers.” Id. (emphasis in original; citations omitted). The covenant is breached by eviction actual or constructive. Id.

Here, plaintiff has alleged that she “continues to be, a resident of … the `RENTAL PREMISES[.]'” FAC, ¶ 2. As a result, she cannot state a claim for breach of the implied covenant of quiet enjoyment based on either actual or constructive eviction. This claim is therefore dismissed.

6. Intentional Nuisance

Nuisance is defined in the Civil Code as follows:

§ 3479. Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.

Quoting the Second Restatement of Torts, Witkin stated: “[Private nuisance] covers the invasion of the private interest in the use and enjoyment of land. In its origin it was purely tortious in character, and it has remained so. It is always a tort against land, and the plaintiff’s action must always be founded upon his interest in the land.” 11 B. Witkin, Summary of California Law, “Equity” (9th ed. 1990), § 122 (emphasis added). A single act can constitute a nuisance. Id., § 123 (citation omitted).

Assuming that plaintiff’s tenancy is an interest in land sufficient to confer standing for purposes of a nuisance claim (see Jones v. Kelly, 208 Cal. 251, 255 (1929)), it nevertheless does not appear that she has stated a nuisance claim based on Rickell’s conduct. In the case plaintiff cites, Stoiber v. Honeychuck, 101 Cal. App. 3d 903, 162 Cal. Rptr. 194 (1980), the court allowed a tenant to state a nuisance claim for the dilapidated and unsafe conditions of the rented premises. Plaintiff challenged the landlord’s and his agents’ failure to make repairs.

Here, though, the “nuisance” is Rickell’s alleged sexual battery, not his failure to make repairs. True, the incident occurred while he was in the apartment to repair the shower. This appears to be incidental, for nuisance purposes, to the harm plaintiff allegedly suffered. It is his unwelcome comments and offensive touching, combined with the fact he was the apartment manager, not his failure to make necessary repairs in her unit, that is the gravamen of her complaint. The motion to dismiss is also granted on this claim.



For the reasons set forth above IT IS HEREBY ORDERED that defendants’ motion to dismiss with respect to the First, Seventh, and Eighth Causes of Action is denied. The motion regarding the Second, Third, Sixth, Ninth, Tenth, and Eleventh Causes of Action is granted without leave to amend.


[1] One commentator has suggested that sexual harassment in the home is in some respects more oppressive: “When sexual harassment occurs at work, at that moment or at the end of the work day, the woman may remove herself from the offensive environment. She will choose whether to resign from her position based on economic and personal considerations. In contrast, when the harassment occurs in a woman’s home, it is a complete invasion in her life. Ideally, home is the haven from the troubles of the day. When home is not a safe place, a woman may feel distressed and, often, immobile.” Comment, “Home is No Haven: An Analysis of Sexual Harassment in Housing.” 1987 Wis.L.Rev. 1061, 1073 (Dec.1987).

[2] The court recognized that the “reasonable victim standard” would “classif[y] conduct as unlawful sexual harassment even when harassers do not realize that their conduct creates a hostile working environment.” Id. at 880. The burden, then, would be on employers to “educate and sensitize their workforce[.]” Id.

[3] Civ.C. § 1708.5(a) (1) provides that “A person commits a sexual battery who does any of the following: (1) Acts with the intent to cause a harmful or offensive contact with the intimate part of another, and a sexually offensive contact with that person directly or indirectly results.” Both “buttock” and “breast of a female” are “intimate parts” within the meaning of the statute. § 1708.5(d).

[4] The Court notes that, effective January 1, 1995, new California Civil Code § 51.9 will specifically authorize a cause of action for sexual harassment by, among others, a tenant against a landlord or property manager.

[5] The doctrine of respondeat superior also applies in the context of Federal Housing Act claims. Chicago v. Matchmaker Real Estate Sales Center, 982 F.2d 1086, 1096 (7th Cir.1992). Regardless of whether the principal authorized or prohibited the agent’s acts, the principal may still be liable if the acts were within the scope of the agent’s apparent authority. Moreover, “[a] principal cannot free itself of liability by delegating to an agent the duty not to discriminate.” Id. (citation omitted). As the Sixth Circuit added, “Federal courts have routinely applied these principles in fair housing cases and held principals liable for the discriminatory acts of their agents.” Id.

[6] Civil Code § 1927 provides: “An agreement to let upon hire binds the letter to secure to the hirer the quiet possession of the thing hired during the term of the hiring, against all persons lawfully claiming the same.”

Beliveau v. Caras, 873 F.Supp. 1393 (C.D. Cal. 1995)


Robert G. Schwemm & Rigel C. Oliveri, A New Look at Sexual Harassment under the Fair Housing Act: The Forgotten Role of §3604(c)

Sexual harassment in housing is a significant national problem. Although less visible than the comparable problem in employment, sexual harassment in housing may be as prevalent and probably more devastating to its victims.  Nevertheless, relatively little attention has been paid to this issue or to the law that should govern it. Indeed, the law of sexual harassment in housing developed well after and in virtual lock -step with the law of sexual harassment in employment. Thus, courts have simply interpreted the Fair Housing Act (FHA) to prohibit sexual harassment to the same degree-and only to the same degree-as it is prohibited in employment by Title VII of the 1964 Civil Rights Act.  This is inappropriate. It is true that the FHA contains a “terms and conditions” provision that parallels the one in Title VII that has been the key to sexual harassment law in employment.  But the FHA also contains an additional provision-§ 3604(c)-that bans sexually discriminatory statements in a way that goes well beyond its Title VII counterpart. The availability of § 3604(c) as an additional weapon in the arsenal against sexual harassment in housing-and its lack of use by courts and litigants is the subject of this Article.

Recommended Citation:  Robert G. Schwemm & Rigel C. Oliveri, A New Look at Sexual Harassment under the Fair Housing Act: The Forgotten Role of § 3604(c), 2002 Wis. L. Rev. 771 (2002).

Griff Tester, An Intersectional Analysis of Sexual Harassment in Housing

Rigel C. Oliveri, Sexual Harassment of Low-Income Women in Housing: Pilot Study Results


In recent months, high-profile and influential figures in media, government, and entertainment have been brought down by credible allegations that they have engaged in sexual misconduct. These revelations have sparked an important national discussion about the prevalence of sexual harassment in American society and the ways in which powerful people can use their positions both to exploit their vulnerable targets and to escape the consequences of their actions.

The conversation is a necessary starting point, but the focus on high-status workplaces overlooks other contexts in which sexual harassment occurs. This Article focuses on one overlooked, significant national problem: the sexual harassment and exploitation of low-income women by their landlords. Many published cases have dealt with the phenomenon, and the Department of Justice (“DOJ”) has filed many complaints against alleged harassers. Good academic articles in legal and social science literature also exist that discuss the subject from a largely theoretical perspective.4 But something crucial is missing: data. Unlike sexual harassment in the workplace, which has been exhaustively studied by academics of every stripe, there have been no reliable empirical studies about the nature and prevalence of sexual harassment in housing.

Department of Justice Sexual Harassment in Housing Initiative

Department of Justice Sexual Harassment in Housing Initiative is an effort to combat sexual harassment in housing led by the Civil Rights Division of the Department of Justice. The goal of the Initiative is to address sexual harassment by landlords, property managers, maintenance workers, loan officers or other people who have control over housing. If you or someone you know has been sexually harassed by someone connected to housing, contact us to tell us about this experience.