Albert DICENSO, Petitioner, v. Henry G. CISNEROS, Secretary of the United States Department of Housing and Urban Development, and Christina L. Brown, Respondents.
No. 95-2940
United States Court of Appeals, Seventh Circuit
September 23, 1996
96 F.3d 1004
When design defect issues are combined with failure-to-warn issues, litigants often fail to expend the same energy litigating the warning issue as they expend on the design defect issue. This case fits that all-too-familiar pattern. Nevertheless, upon examination of the record, we believe that the district court properly granted summary judgment to the defendant. We believe that the undisputed facts of record show that Oshkosh complied with “reasonably precise specifications” imposed on it by the Marine Corps with respect to the warnings on the MK-48 and that the contractor provided those warnings required by the government. In this respect, Oshkosh invites us to the affidavit of Danny J. Lanzdorf, Oshkosh‘s Chief Engineer for the MK-48. Paragraph 2 of his affidavit provides that “[h]undreds of plans, drawings and specifications were submitted to the U.S. Marine Corps, but the [drawings] attached [to the affidavit] are representative of those reviewed and approved.” R.40, Ex.B, at 12. The drawings attached to the affidavit show several different views of the MK-48 and depict the locations of warnings and component parts such as the exhaust system, mufflers and the fuel tank. With respect to the final element of the government contractor defense, we note our earlier8 conclusion that Oshkosh did not fail to warn the Marine Corps of any dangers in the use of the MK-48 that were known to Oshkosh but not to the Marine Corps. Under these circumstances, the district court properly entered summary judgment to Oshkosh on the plaintiffs’ failure-to-warn claims.
Conclusion
Accordingly, the judgment of the district court is affirmed.
AFFIRMED.
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.
Background
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
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.”
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
The Department, acting on Brown‘s behalf, sought review of the ALJ‘s order pursuant to
Analysis
A. Standard of Review
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 appli-
B. Hostile Environment Sex Discrimination
Title VII of the Civil Rights Act of 1964,
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
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.
Conclusion
For the foregoing reasons, we grant DiCenso‘s petition and reverse the decision of the HUD Secretary‘s Designee.
REVERSED.
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 prohib-
Axel HERRERA, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Lonnie GREEN, Petitioner-Appellant, v. Augustus SCOTT, Warden, Lincoln Correctional Center, Respondent-Appellee.
Nos. 96-1778, 96-2254
United States Court of Appeals, Seventh Circuit
September 23, 1996