Former tenant’s retaliation claim survives dismissal

A former tenant’s allegations that the owner and manager of her apartment complex unlawfully evicted her in retaliation for complaining about a stalker survived dismissal after the Eastern District of Virginia found she stated a prima facie case under the Fair Housing Act, or FHA.

The defendants evicted the woman over concerns about future violations, as well as the health and safety of the community, and moved to dismiss her FHA complaint on grounds of claim preclusion and failure to state a claim.

But U.S. District Judge Rossie D. Alston Jr. found the woman had sufficiently stated a claim for retaliatory eviction.

“[C]omplaints of discrimination one month before an adverse action is sufficient to create a jury question for the causation prong of a prima facie case,” the judge said, adding that “the temporal proximity between Plaintiff’s protected activity and Defendant’s adverse action made Plaintiff’s claim of retaliation plausible.”

The decision is Sekel v. CH MF BTH II/Alexandria Old Town LLC (VLW 024-3-053).

Lease violations

Nyah Sekel was a tenant at the Alexan Florence apartments, or AF Apartments, owned by CH MF BTH II/Alexandria Old Town LLC and managed by Bozzuto Management Company.

After moving into AF Apartments, Sekel reported being stalked by an individual she thought was contracted by the defendants to work on the property. She then removed the fire alarm speaker in her unit after claiming the defendants used it as an intercom to whistle at her.

Sekel also added a deadbolt to her door because she believed the defendants were entering her unit unlawfully to harass her. She claimed to have found applications removed from her phone, another hard drive added to her laptop, missing food and random trash left behind.

The defendants notified Sekel that removing the fire alarm speaker and adding the deadbolt violated her lease and gave her 21 days to remedy. Sekel responded two weeks later to explain her noncompliance and show the violations had been remedied.

Despite acknowledging that she had complied, the defendants terminated Sekel’s lease, citing their concerns over lease compliance and the health and safety of the community.

Sekel sued the defendants for violations of the FHA. The defendants moved to dismiss based on claim preclusion and failure to state a claim.

Claim preclusion

According to the 3rd U.S. Circuit Court of Appeals in Papera v. Pennsylvania Quarried Bluestone Co., “when it is uncertain as to what kind of dismissal a court entered, ambiguities in dismissal orders should be construed against claim preclusion,” Alston said.

Similarly, in 2019’s Hately v. Watts, the 4th U.S. Circuit Court of Appeals declined to find issue preclusion when a “‘prior court’s explanation for its grounds for dismissing a prior action is amenable to multiple interpretations ….’”

Here, the record didn’t establish whether Sekel’s first lawsuit against AF Apartments was dismissed on the merits.

“The record only shows that the initial suit was dismissed following a hearing in Alexandria General District Court — it is unclear whether the state court ever reached the merits of the case,” Alston found. Thus, Sekel’s claims were not barred.

Retaliation

A retaliation claim under § 3617 required that Sekel allege engagement in a protected activity of which the defendants were aware and took adverse action against her with a causal connection between the protected activity and the asserted adverse action, Alston said.

“The first three prongs of § 3617 are readily met here because plaintiff engaged in a protected activity when she reported the alleged stalking to Defendants, Defendants were aware of the protected activity, and Defendants evicted Plaintiff,” the judge wrote.

The Fourth Circuit held in Wilcox v. Lyons that “‘two-and-a-half months between the protected activity and the adverse action is sufficiently long so as to weaken significantly the inference of causation between the two evens in the absence of other evidence of retaliation,’ but complaints of discrimination one month before an adverse action is sufficient to create a jury question for the causation prong of a prima facie case,” Alston noted.

Here, the defendants notified Sekel of her potential lease violation one month after she reported the stalking.

“Accordingly, the temporal proximity between Plaintiff’s protected activity and Defendant’s adverse action made Plaintiff’s claim of retaliation plausible,” Alston found.

Thus, Sekel’s retaliation claim survived dismissal.

Denial of housing

A violation of 3604(a) requires allegations that a defendant denied housing or made it unavailable to the plaintiff based on a protected characteristic, Alston explained.

“Although § 3604(a) claims typically involve discrimination that occurs pre-sale or pre-rental, courts have evaluated evictions and constructive evictions under § 3604(a),” he added.

Alston easily found Sekel’s eviction made housing unavailable to her.

“However, Plaintiff has not pleaded sufficient facts to show that she was evicted due to her sex,” the judge wrote. “Plaintiff’s bare assertion that Defendants violated § 3604(a) is insufficient to meet the Rule 8 pleading standard.”

Hostile housing

A hostile housing environment claim under § 3604(b) requires a showing that a plaintiff endured unwelcome harassment based on a protected characteristic, Alston said. The harassment must be severe or pervasive enough to interfere with the terms, conditions or privileges of her residency, or in the provision of services or facilities.

There must also be a basis for imputing liability to the defendant, which Sekel failed to show.

“To impute liability to Defendants, Plaintiff must establish that Defendants are either vicariously or directly liable for the alleged harassment,” the judge wrote.

Ordinary rules of vicarious liability applied to acts of agents or employees in the scope of their authority or employment.

“With respect to direct liability, ‘it makes no difference whether the person whose acts are complained of is an employee, an independent contractor, or for that matter a customer …. [W]hat does matter is how the [defendant] handles the problem,’” Alston said, citing the 7th U.S. Circuit Court of Appeals in Whetzel v. Glen St. Andrew Living Cmty. LLC. “Importantly, ‘[d]irect liability for inaction’ attaches ‘only if defendants had, but failed to deploy, available remedial tools.’”

Both the Wetzel court and the Eastern District of North Carolina in 2022’s Harris v. Vanderburg imputed liability because the harasser was a tenant over whom the defendants had sufficient control and failed to correct the discriminatory conduct.

But here, Sekel’s conclusory allegation that the defendants contracted her stalker to work at AF Apartments was insufficient because she didn’t know the stalker’s identity.

“Likewise because Plaintiff has failed to make more than conclusory allegations that the alleged stalker worked Defendants, this Court cannot determine whether Defendants could have used any incentives or sanctions to correct the harassing conduct,” Alston concluded.