Plaintiff Marlen Noah commenced this lawsuit against Defendant Isaac Assor, her former landlord, seeking declaratory judgment, injunctive relief, and damages, for unlawful sex discrimination and sexual harassment in violation of the federal Fair Housing Act and the Florida Fair Housing Act, and for intentional infliction of emotion distress. Defendant moved to dismiss the 5-count Complaint for failing to state a claim for relief. For the reasons below, Defendant's Motion to Dismiss is GRANTED IN PART AND DENIED IN PART .
I. BACKGROUND
Plaintiff Marlen Noah rented property from Defendant Isaac Assor from March 2016 through March 2017. In this lawsuit against her former landlord, Plaintiff alleges that over the period of her tenancy Defendant engaged in pervasive sexual harassment in violation of her rights to fair housing as protected by the federal Fair Housing Act,
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the formal sufficiency of the allegations supporting claims for relief. Under Rule 12(b)(6), the Court "may dismiss a claim for 'failure to state a claim upon which relief can be granted.' " Tello v. Royal Caribbean Cruises, Ltd. ,
III. DISCUSSION
The Complaint asserts five claims against Defendant: (1) in Count I, violations of the Fair Housing Act,
A. ALLEGED VIOLATIONS OF THE FEDERAL FAIR HOUSING ACT, 42 U.S.C. SECTIONS 3604(f)(1)-(2), 3617
The federal Fair Housing Act provides for a private right of action to any person who is injured by an unlawful discriminatory housing practice.
Nevertheless, consistent with the overwhelming weight of federal authority, the Court finds Plaintiff's sexual-harassment based sex discrimination claims are actionable under the Fair Housing Act. See United States v. Hurt ,
1.) Count I - 42 U.S.C. Section 3617
Plaintiff asserts in Count I that Defendant's conduct constituted "[i]nterference with the rights of persons in the exercise or enjoyment of, or on account of their having exercised or enjoyed ... based upon sex in the exercise or enjoyment of rights granted or protected by the FHA." (D.E. 1 at ¶ 23(c).) Defendant argues Plaintiff's Section 3617 claim should be dismissed as implausible under Twombly .
(a) "Interference"
Plaintiff must plead factual matter that, if true, demonstrates Defendant interfered with her rights under the Fair Housing Act. Now, "the Eleventh Circuit has not prescribed the precise magnitude of conduct required by § 3617." Dulworth Family L.P. v. 400 LA Peninsula Condo. Ass'n, Inc. , No. 2:11-cv-00584-UA-DNF,
Furthermore, Department of Housing and Urban Development regulations and interpretive case law reveal that actionable harassment arises primarily in two contexts: when behavior towards the tenant (1) constitutes quid pro quo sexual harassment; or (2) creates a hostile housing environment. See
Here, Plaintiff asserts numerous allegations that, if true, plausibly allege unlawful interference on the basis of sex under the Fair Housing Act, under both quid pro quo and hostile environment sexual harassment theories.
i. Quid Pro Quo Sexual Harassment
Beginning with quid pro quo harassment, Plaintiff first alleges that after she rejected Defendant's $ 24,000 per month offer to be his girlfriend by ripping up the check the Defendant presented her, that Defendant "responded by stating that if Plaintiff refused to be his girlfriend, then Plaintiff wouldn't be allowed to renew her lease when it expired." (D.E. 1 at ¶ 16(e).) Plaintiff also alleges that "[o]n another occasion ... Defendant attempted to have sex with Plaintiff but was turned down, [and] Defendant advised that Plaintiff would not get her security deposit back."
ii. Hostile Environment Sexual Harassment
Turning to hostile environment harassment, the Complaint sets forth several allegations detailing various harassing conduct, such as sexual propositions, multiple physical trespasses, stalking related behavior, sexually lewd comments, and repeated expressions of jealousy.
Starting with unwelcome sexual propositions, Plaintiff makes the following allegations:
• "Defendant presented Plaintiff a check for Twenty-Four Thousand Dollars ($ 24,000.00) stating, 'if you will be my girlfriend, you will get this check every month.' ... Defendant responded by stating that if Plaintiff refused to be his girlfriend, then Plaintiff wouldn't be allowed to renew her lease when it expired in March 2017." (D.E. 1 at ¶ 16(e).)
• "On another occasion, Defendant offered Plaintiff Five Thousand Dollars ($ 5,000.00) to have sex with him for one (1) hour." Id. at ¶ 16(g).
• "On another occasion in which Defendant attempted to have sex with Plaintiff but was turned down, Defendant advised that Plaintiff would not get her security deposit back." Id. at ¶ 16(h).
• "In another text message from Defendant to Plaintiff, Defendant offered Plaintiff a part-time job. When Plaintiff inquired as to the nature of the work, Defendant responded that the job is 'One hour, as my secretary,' ... 'One hour as my masseuse.' " Id. at ¶ 16(r).
Several courts have sustained similar hostile environment sexual harassment claims under the Fair Housing Act. See Krueger ,
The Complaint also alleges two instances of Defendant trespassing into Plaintiff's home without her permission. First, Plaintiff explicitly alleges that one day "after Plaintiff had invited her ex-boyfriend over to the Premises, Defendant opened Plaintiff's door to the Premises (was unlocked,
Next, the Complaint alleges several examples of stalking related behavior by Defendant toward Plaintiff:
• "In an email sent on November 11, 2016, Defendant admitted that he moved in to Unit 702, which he didn't even like, just to be near Plaintiff." (D.E. 1 at ¶ 16(b).)
• "On another occasion, Defendant screamed at Plaintiff that he has hidden cameras set up in the Premises and that he 'sees everything and knows everything.' " Id. at ¶ 16(n).
• "In about November 2016, while Plaintiff was sitting in the Premises talking with a man she had been dating, Defendant came to Plaintiff's Premises and knocked on the door. When Plaintiff opened the door, Defendant saw Plaintiff's friend, Daniel Lawrence, sitting on her couch. As a courtesy, Plaintiff introduced Mr. Lawrence to Defendant by using only his first name of 'Daniel.' Defendant smiled and responded 'Daniel Lawrence.' Plaintiff asked how he knew Daniel's full name and Defendant responded by saying that 'he knows everything.' " Id. at ¶ 16(s).
The Court finds these stalking allegations particularly important in the context of a landlord-tenant relationship involving hostile environment sexual harassment claims. See, e.g., Salisbury ,
The Complaint also alleges Defendant made other sexually lewd comments and engaged in other harassing behavior. Plaintiff alleges Defendant sent her a text message stating he masturbated to her rejecting him, and sent her another text message telling Plaintiff to masturbate because it "keep[s] you in good conditions ... I love you, lol ..." (D.E. 1 at ¶¶ 16(i), (j).) In other paragraphs, Plaintiff alleges additional harassing behavior, such as Defendant "scream[ing] at her for her filing [a] complaint" with the condominium association, "scream[ing] at her" after entering her bedroom uninvited, and Defendant commenting to Plaintiff when she would not address him on her way in and out of her residence. See id. at ¶¶ 11, 13, 16(k). The Complaint is also replete with allegations of Defendant expressing jealousy over Plaintiff's relationships with other men. Plaintiff alleges that in order to make her jealous, Defendant had various women deliver junk mail to her residence or call her, and Defendant would "send Plaintiff pictures of girls which he was dating." Id. at ¶ 16(c). Plaintiff also alleges Defendant questioned her about her male friends on Facebook, and yelled at her and messaged her about men visiting her residence. Id. at ¶¶ 16(d), (k)-(m), (p).
In short, looking at the "totality of the circumstances,"
Lastly, Plaintiff's failure to allege Defendant physically touched or harmed her, or threatened to touch or harm her does not bar her Fair Housing Act claim, because the statutory structure,
Plaintiff must also allege Defendant interfered with her exercise of a right under Sections 3603-3606. Lawrence ,
Moreover, Plaintiff's Section 3617 interference claim is not barred simply because the alleged violations in Counts III and IV concern post-acquisition housing rights. See Revock ,
(c) "Discriminatory Animus"
Finally, Plaintiff must allege factual matter that if true would demonstrate discriminatory animus by Defendant. Lawrence ,
Here, as discussed above, the Complaint sets forth numerous allegations detailing sexually harassing behavior by Defendant. Additionally, Plaintiff alleges: she "belongs to a class of persons whom the FHA protects from unlawful discrimination because of her sex (female)"; that "Defendant was subject, at all times relevant, to the anti-harassment and anti-discrimination provisions of the FHA"; and that in June 2016 "a pervasive pattern of sexual harassment was initiated by Defendant targeted to and upon the person of Plaintiff." (D.E.
The Court emphasizes that at this stage, Plaintiff's allegations are the ones given weight. Defendant will surely have his chance to present evidence at summary judgment or trial in support of his defenses. For now, taking Plaintiff's quid pro quo and hostile environment sexual harassment allegations as true, as the Court must, the Court finds Plaintiff has plausibly alleged a Section 3617 interference claim. Therefore, Defendant's Motion to Dismiss this claim is DENIED .
2.) Count I - 42 U.S.C. Sections 3604(f)(1)-(2)
Plaintiff also asserts in Count I that Defendant violated 42 U.S.C. Sections 3604(f)(1)-(2), which makes it unlawful to discriminate in renting a dwelling, or in the provision of services or facilities in connection with a dwelling, "because of a handicap." Defendant correctly argues Plaintiff's claims under Sections 3604(f)(1)-(2) should be dismissed because Plaintiff "does not allege that she is disabled." (D.E. 7 at 5.) Indeed, Plaintiff acknowledges "that some sections of the [Fair Housing Act] were not properly identified and cited to by Plaintiff in her Complaint." (D.E. 8 at 3.) Plaintiff asserts she intended to allege violations of 42 U.S.C. Sections 3604(b) - (c), and thus asks the Court for leave "to file an amended complaint to cure the issues."
B. ALLEGED VIOLATIONS OF THE FLORIDA FAIR HOUSING ACT
Plaintiff brings three Counts alleging Florida Fair Housing Act violations: in Count II,
1.) Count II - Fla. Stat. Section 760.37
In Count II, Plaintiff alleges Defendant violated Florida Statute Section 760.37. Like its federal counterpart, Section 760.37 makes it "unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise of, or on account of her or his having exercised, or on account of her or his having aided or encouraged any other person in the exercise of any right granted under" certain sections of the Florida Fair Housing Act.
Because Section 760.37 is identical to Section 3617, the Court finds Plaintiff states a plausible interference claim under Section 760.37 for the same reasons discussed above. The Court also rejects Defendant's arguments to the contrary for the same reasons his Section 3617 arguments fail: Defendant misconstrues Plaintiff's interference claim in Count II as a retaliation claim. See supra n.2. As Plaintiff makes clear, she "has not made any such claims that Defendant took retaliatory and adverse action against Plaintiff for filing her claim." (D.E. 8 at 5.) Accordingly, Defendant's Motion to Dismiss Count II is therefore DENIED .
2.) Count III - Fla. Stat. Section 760.23(3)
In Count III, Plaintiff asserts Defendant violated Florida Statute Section 760.23(3), which makes it unlawful to "make, print, or publish ... any notice, statement, or advertisement with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on ... sex ... or an intention to make any such preference, limitation, or discrimination." To state a claim under Section 760.23(3), Plaintiff must allege factual matter showing: (1) Defendant made a statement; (2) the statement was made with respect to the rental of a dwelling; and (3) the statement indicated a preference, limitation, or discrimination on the basis of a protected class. Hous. Opportunities Project for Excellence, Inc. v. Wedgewood Condo. Ass'n, Inc. , No. 12-60172-CIV,
Plaintiff alleges Defendant sent her text messages and e-mails that "confirmed the intent or expressed preference or limitation based on Plaintiff being in a protected class, as a female." (D.E. 1 at 11.) Plaintiff further alleges Defendant orally told her "that if Plaintiff refused to be his girlfriend, then Plaintiff wouldn't be allowed to renew her lease when it expired in March 2017." Id. at ¶ 16(e). Defendant argues Count III should be dismissed because Plaintiff fails to plead factual matter showing any statements were made "with respect to the rental of a dwelling." As explained below, Plaintiff adequately states a Section 760.23(3) claim.
First, oral statements are actionable under Section 3604(c). See Richards ,
Second, the Court disagrees with Defendant's argument that the alleged statements were "unrelated to the decisional process to rent the property to Plaintiff." (D.E. 9 at 5 (emphasis in original).) By its terms, the alleged communication-"that if Plaintiff refused to be his girlfriend, then Plaintiff wouldn't be allowed to renew her lease when it expired" (D.E. 1 at ¶ 16(e) )-could not be more directly related to the decisional process about whether to renew Plaintiff's lease in the future (i.e. "with respect to the rental of [the] dwelling"). As alleged, Defendant's statement imposed a condition-that Plaintiff be Defendant's girlfriend-upon Plaintiff renewing her lease on the dwelling she rented from Defendant at the time of the alleged statement. This conclusion is buttressed by several other alleged instances of Defendant's sexually harassing behavior toward Plaintiff (some of which were directly rebuffed by Plaintiff), which are all sewn together by Plaintiff's allegation that "Defendant folio wed-through with his threat to not renew Plaintiff's lease agreement when it became expired in March 2017." (Id. at ¶ 17.) Taken as true, the reasonable inference is that Defendant declined renewing the lease because Plaintiff would not have sexual relations or enter into a relationship with Defendant.
Next, Defendant argues Plaintiff fails to state a claim because his statements "occurred after Defendant already rented the property to Plaintiff." (D.E. 9 at 5 (emphasis in original).) Defendant suggests the Florida Fair Housing Act only protects against discriminatory statements prior to a sale or rental. But this argument has already been rejected because, unlike a sale, a " 'rental' contemplates an ongoing relationship." Richards ,
In Richards v. Bono , the district court astutely observed "[i]t would be anomalous to say ... that a landlord is prohibited from refusing to rent a dwelling on the basis of sex ... but would not be prohibited from raising the rent mid-tenancy because of the sex of the tenant."
Third, as discussed above, Plaintiff's allegations of several instances of sexually harassing conduct by Defendant are sufficient to plead discriminatory animus. See supra Sec. III.A.1.c. And these allegations are cap-stoned by the allegation Defendant followed through with his threat not to renew Plaintiff's lease upon expiration.
Finally, Defendant argues "it is implausible that Plaintiff wished to remain in this allegedly 'hostile environment' for another year" and that the implausibility of Plaintiff's claim is highlighted by Plaintiff's failure "to even allege that she attempted to renew the lease but was refused." (D.E. 9 at 5.) This argument is amiss. The plausibility standard applies to the elements of a claim-that is, Plaintiff must plead "sufficient factual matter" to make her Section 760.23(3) claim "plausible on its face." Iqbal ,
3.) Count IV - Fla. Stat. Section 760.23(2)
Plaintiff's next claim is that Defendant violated Florida Statute Section 760.23(2), which makes it unlawful 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 ... sex." To state a claim under Section 760.23(2), Plaintiff must plead facts showing that: (1) Plaintiff is a member of a protected class; (2) the Defendant was aware of it; (3) Plaintiff was ready, willing, and able to rent the apartment; and (4) Defendant refused to allow her to do so. See Woolington ,
Like his Count III argument, Defendant argues Count IV should be dismissed because Plaintiff did not plead "the required element of her claims that she was 'ready, willing and able' to renew her lease." (D.E. 7 at 4.) This time, Defendant is correct.
Without directing the Court to a specific supporting allegation in the Complaint, Plaintiff argues she "was indeed qualified, ready, willing, and able to continue occupancy and renew the lease at the time that Defendant advised Plaintiff that he would not renew Plaintiff's lease due to the reasons alleged in the Complaint." (D.E. 8 at 4.) Reviewing the Complaint, the Court finds no allegation that Plaintiff was "ready, willing, and able" to continue occupancy when the lease expired. Plaintiff alleges she "was current on rent at th[e] time" Defendant verbally informed her that he "wanted Plaintiff to vacate the Premises once the lease expired." (D.E. 1 at ¶¶ 44-45.) But capacity to renew a lease (i.e. "able") is not the same as expressing intent (i.e. "ready" and "willing") to continue occupancy. Moreover, Plaintiff "cannot amend [her] complaint in a response to [Defendant's] motion to dismiss." See Tsavaris v. Pfizer, Inc. , No. 1:15-cv-21826-KMM,
Accordingly, because Plaintiff fails to plead the "ready, willing, and able" element of her Section 760.23(2) claim, Defendant's motion to dismiss Count IV is
C. COUNT V - COMMON LAW INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Finally, Plaintiff claims Defendant intentionally inflicted severe emotional distress upon her. To state such a claim under Florida law, Plaintiff must allege: (1) Defendant engaged in intentional or reckless conduct; (2) the conduct was "outrageous"; (3) the conduct caused emotional distress; and (4) the emotional distress was severe. See Hart v. United States ,
Defendant argues Count V should be dismissed because "the 'outrageous conduct' alleged by Plaintiff falls woefully short of the extremely high standard used to assess claims for intentional infliction of emotional distress." (D.E. 7 at 9.) Plaintiff responds-without citation to authority-that "a jury could reasonably rule that Defendant acted with outrageous conduct" and "[s]uch a determination ... is to be made by the trier of [fact] after hearing the evidence on Count V." (D.E. 8 at 5-6.) Plaintiff is incorrect. What constitutes "outrageous" conduct is a question of law for the court to resolve-not a question of fact for a jury. See Hamon v. Casa Casuarina, LLC , No. 10-20457-CIV-MORENO,
In Metro. Life Ins. Co. , the Florida Supreme Court adopted the Restatement
Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the action, and leave him to exclaim, "Outrageous!"
Metro. Life Ins. Co. ,
Here, there is no doubt the alleged sexually harassing conduct, if true, is more than inappropriate and offensive. But even when taking all Plaintiff's allegations as true and considering them in the light most favorable to Plaintiff, under Florida law, the conduct alleged does not rise to one of the "extremely rare circumstances" where intentional infliction of emotional distress claims are upheld.
Moreover, Plaintiff does not provide the Court with a single authority sustaining an intentional infliction of emotional distress claim under similar facts. Indeed, Plaintiffs sparse response does not explain why or how her allegations sufficiently state an intentional infliction of emotional distress claim. Nor does Plaintiff's response attempt to distinguish or rebut authorities Defendant proffers in support of dismissal. Accordingly, the Court finds Plaintiff's allegations do not meet the "extremely high standard" to state an intentional infliction of emotional distress claim under Florida law. Casado ,
IV. CONCLUSION
For the foregoing reasons, it is
ADJUDGED that Defendant's Motion to Dismiss is GRANTED IN PART AND DENIED IN PART as follows:
(1) Defendant's Motion to Dismiss is DENIED as to Count I ( § 3617 claim only), and Counts II and III;
(2) Defendant's Motion to Dismiss is GRANTED as to Count I ( §§ 3604(f)(1)-(2) claims only), Count IV, and Count V. Count I ( §§ 3604(f)(1)-(2) ) and Count V are DISMISSED WITH PREJUDICE. Count IV is DISMISSED WITHOUT PREJUDICE;
(3) Furthermore, Plaintiff's requests for leave to amend her Complaint to add claims under §§ 3604(b) - (c) and to "more specifically plead" Count IV are GRANTED ;
(4) Plaintiff must file an amended complaint, if she elects to do so, no later than March 22, 2019; and
(5) Should Plaintiff file an amended complaint, Defendant must answer or respond to the amended complaint no later than fourteen (14) days after receiving service of the amended complaint.
DONE AND ORDERED in Chambers at Miami, Florida, this 8th of March 2019.
Notes
The Department of Housing and Urban Development, the agency tasked with enforcing the Fair Housing Act, also agrees. See U.S. Department of Housing and Urban Development , Questions and Answers on Sexual Harassment Under The Fair Housing Act (November 17, 2008), available at https://www.hud.gov/sites/documents/QANDASEXUALHARASSMENT.PDF.
Defendant also argues Plaintiff's Section 3617 claim should be dismissed for two additional reasons: (1) "a retaliation claim cannot stand where a plaintiff is allegedly subjected to adverse action before she exercises her rights under the FHA" (D.E. 7 at 7 (emphasis in original) ); and (2) Plaintiff fails to plead "the required element of her claim[ ] that she was 'ready, willing and able' to renew her lease,"
"[I]n the absence of a violation of [S]ections 3603-3606," the standard changes such that "the discriminatory conduct must be pervasive and severe enough to be considered as threatening or violent." Lawrence ,
The Court agrees with the Chevron deference analysis conducted by the district court in Koch ,
Because Congress expressly required a showing of force or threat of force in the criminal provision of the Fair Housing Act (
See
At least two federal Courts of Appeals agree. See, e.g., Walker v. City of Lakewood ,
Moreover, the Court is granting Plaintiff leave to amend the Complaint to add claims under Sections 3604(b) -(c), in order to correct an inadvertent pleading error. See supra Sec. III. A.2.
The relevant corresponding provisions are:
Dismissing Plaintiff's Section 760.23(2) claim for failing to plead Plaintiff was "ready, willing, and able" is not inconsistent with rejecting Defendant's argument that Plaintiff's Section 760.23(3) claim should be dismissed on the same grounds. Section 760.23(2) targets narrower and different behavior than Section 760.23(3) : the former targets only the discriminatory nature of the "terms" and "conditions" of the transaction to sell or rent a dwelling, while the latter targets broader conduct, namely, discriminatory "notice[s], statement[s], or advertisement[s]" made in the management of selling or renting a dwelling. Compare