Appeals panel: Retirement home liable under federal housing law for residents' harassment of lesbian resident

By Scott Holland | Aug 30, 2018

A federal appeals panel has ruled an independent and assisted living facility can be held liable for a harassment suffered by a lesbian resident at the hands of other residents, because of her sexuality.

On Aug. 27, a three-judge panel of the U.S. Seventh Circuit Court of Appeals ruled in favor of plaintiff Marsha Wetzel in her dispute with Niles-based Glen Saint Andrew Living Community.

Seventh Circuit Chief Judge Diane Wood and circuit judges Michael Kanne and David Hamilton heard arguments Feb. 6 in the case. Wood wrote the opinion, with Kanne and Hamilton concurring.

In Wetzel’s complaint, she alleged widespread physical and verbal abuse from other residents, because she is a lesbian, and said employees ignored her requests for help, instead limiting her use of facilities and building a case for her eviction. She said the facility violated the Fair Housing Act by failing to provide nondiscriminatory housing and retaliated against her for her complaints. U.S. District Judge Samuel Der-Yeghiayan had dismissed Wetzel’s complaint, finding she didn’t demonstrate any defendant acted with discriminatory animus.

Ellen Wheeler   Foley & Lardner

The panel’s opinion detailed the alleged incidents of physical and verbal abuse from fellow residents and a largely apathetic response from staff, with Wood noting St. Andrew would have the chance to contest Wetzel’s allegations at a trial. Incidents included on in which a male resident praised the mass shooting at the Pulse nightclub in Orlando, and also rammed his walker into Wetzel’s scooter, knocking her off a ramp.

Wood also wrote the main question on appeal is whether the FHA covers the type of discrimination Wetzel alleged even though the timeline began after she took possession of the living space, and specifically “whether the harassment from which Wetzel suffered was severe or pervasive enough to interfere with her enjoyment of her dwelling.”

The panel said isolated, minor incidents are not enough to establish actionable discrimination, meaning a plaintiff must allege either a few major episodes or a persistent harassing climate.

“The harassment Wetzel describes plausibly can be viewed as both severe and pervasive. For 15 months, she was bombarded with threats, slurs, derisive comments about her family, taunts about a deadly massacre, physical violence and spit,” Wood wrote. “The defendants dismiss this litany of abuse as no more than ordinary ‘squabbles’ and ‘bickering’ between ‘irascible,’ ‘crotchety senior resident(s).’ A jury would be entitled to see the story otherwise.”

As the FHA doesn’t elucidate a test for landlord liability, Wood explained, the panel turned to Title IX’s support for a private right of action based on sex discrimination, and also that an institution can be held liable when it has substantial control over both the people committing the harassment and the place where the conduct occurred. As such, the panel needed only to consider if St. Andrew management were aware of the harassment “and whether they were deliberately indifferent to it.”

Much of the conduct Wetzel alleged from other residents took place in common areas, and confrontations with staff in her apartment can be connected to a landlord’s right to enter. And while St. Andrew said it shouldn’t be held liable for actions it couldn’t address, the panel said the facility ignored the tools its tenant agreement provides to remedy the conduct Wetzel alleged, such as suspending common space privileges for the tenants harassing Wetzel or threatening them with eviction.

The panel also said St. Andrew’s position on a need for a discriminatory animus allegation to bolster Wetzel’s retaliation complaint is incorrect, and that the FHA specifically protects people in Wetzel’s position.

With Der-Yeghiayan’s ruling reversed, the panel remanded the case for further proceedings and order the judge to reinstate state law claims dismissed based on jurisdictional issues.

Wetzel has been represented by attorneys Karen Lee Loewy and Kyle A. Palazzolo, of the Lambda Legal Defense And Education Fund, of Chicago and New York, and Ellen M. Wheeler, and other attorneys with the firm of Foley & Lardner, of Chicago.

Glen Saint Andrew has been represented by attorney James H. Ryan, and others with the firm of Gordon Rees Scully Mansukhani LLP, of Chicago.

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Organizations in this Story

Ellen M. Wheeler Foley & Lardner LLP Gordon Rees Scully Mansukhani, LLP Lambda Legal Defense U.S. Court of Appeals for the Seventh Circuit U.S. District Court for the Northern District of Illinois

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