February 6, 2018
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 16 C 7598 -
Samuel Der-Yeghiayan, Judge.
Wood, Chief Judge, and Kanne and Hamilton, Circuit Judges.
months of her arrival at Glen St. Andrew Living Community
("St. Andrew"), Marsha Wetzel faced a torrent of
physical and verbal abuse from other residents because she is
openly lesbian. Time and again, she implored St. Andrew's
staff to help her. The staff's response was to limit her
use of facilities and build a case for her eviction.
sued St. Andrew, alleging that it failed to provide her with
non-discriminatory housing and that it retaliated against her
because of her complaints, each in violation of the Fair
Housing Act (FHA or Act), 42 U.S.C. §§ 3601-3619.
St. Andrew insists that the Act affords Wetzel no recourse,
because it imposes liability only on those who act with
discriminatory animus, an allegation Wetzel had not expressly
made of any defendant. The district court agreed and
dismissed Wetzel's suit. We read the FHA more broadly.
Not only does it create liability when a landlord
intentionally discriminates against a tenant based on a
protected characteristic; it also creates liability against a
landlord that has actual notice of ten-ant-on-tenant
harassment based on a protected status, yet chooses not to
take any reasonable steps within its control to stop that
harassment. We therefore reverse the district court's
grant of St. Andrew's motion to dismiss and remand for
her partner of 30 years died, Wetzel moved into St. Andrew, a
residential community for older adults; she continues to live
there today. Her tenancy, presumably like that of St.
Andrew's other residents, is governed by a form
Tenant's Agreement ("Agreement"). Beyond a
private apartment, the Agreement guarantees three meals daily
served in a central location, access to a community room, and
use of laundry facilities. It conditions tenancy at St.
Andrew on refraining from "activity that [St. Andrew]
determines unreasonably interferes with the peaceful use and
enjoyment of the community by other tenants" or that is
"a direct threat to the health and safety of other
individuals." It also requires compliance with the
"Tenant Handbook," which may "be amended from
time to time." The Agreement authorizes St. Andrew to
institute eviction proceedings against a tenant in breach,
and if St. Andrew prevails, the breaching tenant must also
reimburse St. Andrew for its attorney's fees. (Indeed,
the Agreement requires reimbursement of St. Andrew's fees
related to an alleged violation or breach even if suit has
not been instituted.)
arriving at St. Andrew, Wetzel spoke openly to staff and
other residents about her sexual orientation. She was met
with intolerance from many of them. The following is just a
sample of what Werzel has alleged that she endured. At this
early stage of the litigation, we accept her account as true,
recognizing that St. Andrew will have the right to contest
these assertions at a trial.
a few months after Werzel moved to St. Andrew and continuing
at least until she filed this suit (a 15-month period),
residents repeatedly berated her for being a "fucking
dyke," "fucking faggot," and "homosexual
bitch." One resident, Robert Herr, told Werzel that he
reveled in the memory of the Orlando massacre at the Pulse
nightclub, derided Wetzel's son for being a
"homosexual-raised faggot," and threatened to
"rip [Werzel's] tits off." Herr was the
primary, but not sole, culprit. Elizabeth Rivera told Werzel
that "homosexuals will burn in hell."
was physical abuse too. Wetzel depends on a motorized
scooter. Herr at one time rammed his walker into Wetzel's
scooter forcefully enough to knock her off a ramp. Rivera
bashed her wheelchair into a dining table that Wetzel
occupied, flipping the table on top of Wetzel. In yet another
incident, Wetzel was struck in the back of the head while
alone in the mailroom; the blow was hard enough to push her
from her scooter, and she suffered a bump on her head and a
black eye. She did not see the assailant, but the person said
"homo" when attacking her. Following this mugging,
Herr taunted Wetzel, rubbing his head and saying
"ouch." Wetzel also had two abusive trips in the
elevator. During the first, Rivera spat on her and hurled
slurs. During the second, Werzel, Herr, and another resident,
Audrey Chase, were together in the elevator when Herr again
hit Werzel's scooter with his walker.
routinely reported the verbal and physical abuse to St.
Andrew's staff, including Carolyn Driscoll, Sandra Cubas,
and Alyssa Flavin (the "management defendants").
Werzel's initial complaints won her a brief respite,
prompting her to draft a thank-you note. But the management
defendants, among whom we need not distinguish for purposes
of this appeal, otherwise were apathetic. They told Werzel
not to worry about the harassment, dismissed the conduct as
accidental, denied Wetzel's accounts, and branded her a
liar. Werzel's social worker accompanied her to one
meeting about the harassment; despite that, the managers
denounced Wetzel as dishonest.
management defendants done nothing but listen, we might have
a more limited case. But they took affirmative steps to
retaliate against Wetzel for her complaints. For example,
they relegated Wetzel to a less desirable dining room
location after she notified them about being trampled by
Rivera. Following other complaints, they barred her from the
lobby except to get coffee and they halted her cleaning
services, thus depriving her of access to areas specifically
protected in the Agreement. They falsely accused Wetzel of
smoking in her room in violation of St. Andrew's policy.
Early one morning, two staff members woke Wetzel up and again
accused her of smoking in her room. When she said that she
had been sleeping, one of them slapped her across the face.
One month, Wetzel did not receive the customary rent-due
notice, though other tenants did. She remembered to pay on
time, but she had to pry a receipt from management.
response, Werzel changed her daily routine. She ate meals in
her room, forgoing those included as part of the Agreement.
She stopped visiting the third floor of St. Andrew, where
Herr lived. She did not use the laundry room at hours when
she might be alone. And she ...