06/24/2021
Landlord Beware! Wetzel v. Glen St. Andrew Living Community, LLC, (Thursday 6-24-2021)
In the
United States Court of Appeals
For the Seventh Circuit ____________________
No. 17‐1322
MARSHA WETZEL,
Plaintiff‐Appellant,
v.
GLEN ST. ANDREW LIVING COMMUNITY, LLC, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16 C 7598 — Samuel Der‐Yeghiayan, Judge.
____________________
ARGUED FEBRUARY 6, 2018 — DECIDED AUGUST 27, 2018
____________________
Before WOOD, Chief Judge, and KANNE and HAMILTON,
Circuit Judges.
WOOD, Chief Judge. Within months of her arrival at Glen
St. Andrew Living Community (“St. Andrew”), Marsha Wet‐
zel faced a torrent of physical and verbal abuse from other
residents because she is openly le***an. 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 evic‐
tion.
2 No. 17‐1322
Wetzel 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, be‐
cause it imposes liability only on those who act with discrim‐
inatory 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 cre‐
ates 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 fur‐
ther proceedings.
I
After 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 apart‐
ment, 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 re‐
fraining from “activity that [St. Andrew] determines unrea‐
sonably 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 com‐
pliance with the “Tenant Handbook,” which may “be
No. 17‐1322 3
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 re‐
lated to an alleged violation or breach even if suit has not been
instituted.)
After arriving at St. Andrew, Wetzel spoke openly to staff
and other residents about her s*xual orientation. She was met
with intolerance from many of them. The following is just a
sample of what Wetzel has alleged that she endured. At this
early stage of the litigation, we accept her account as true, rec‐
ognizing that St. Andrew will have the right to contest these
assertions at a trial.
Beginning a few months after Wetzel moved to St. Andrew
and continuing at least until she filed this suit (a 15‐month pe‐
riod), residents repeatedly berated her for being a “f**king
dyke,” “f**king faggot,” and “homos*xual bitch.” One resi‐
dent, Robert Herr, told Wetzel that he reveled in the memory
of the Orlando massacre at the Pulse nightclub, derided Wet‐
zel’s son for being a “homos*xual‐raised faggot,” and threat‐
ened to “rip [Wetzel’s] t**s off.” Herr was the primary, but not
sole, culprit. Elizabeth Rivera told Wetzel that “homos*xuals
will burn in hell.”
There 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
4 No. 17‐1322
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, Wetzel, Herr, and
another resident, Audrey Chase, were together in the elevator
when Herr again hit Wetzel’s scooter with his walker.
Wetzel routinely reported the verbal and physical abuse to
St. Andrew’s staff, including Carolyn Driscoll, Sandra Cubas,
and Alyssa Flavin (the “management defendants”). Wetzel’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 Wetzel not to
worry about the harassment, dismissed the conduct as acci‐
dental, denied Wetzel’s accounts, and branded her a liar. Wet‐
zel’s social worker accompanied her to one meeting about the
harassment; despite that, the managers denounced Wetzel as
dishonest.
Had the 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 exam‐
ple, they relegated Wetzel to a less desirable dining room lo‐
cation 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
No. 17‐1322 5
smoking in her room. When she said that she had been sleep‐
ing, one of them slapped her across the face. One month, Wet‐
zel 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.
In response, Wetzel 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 stayed away from the com‐
mon spaces from which she had been barred by management.
Eventually Wetzel brought this action against the manage‐
ment defendants and the entities that own and operate St. An‐
drew (the “corporate defendants”). Unless the distinction
matters, we refer to the group collectively as defendants or
St. Andrew. She alleged that St. Andrew failed to ensure a
non‐discriminatory living environment and retaliated against
her for complaining about s*x‐based harassment, each in vio‐
lation of the FHA. The complaint included related state
claims.
All of the defendants moved for dismissal, contending
that the FHA does not make a landlord accountable for failing
to stop tenant‐on‐tenant harassment unless the landlord’s in‐
action was animated by discriminatory animus. In the alter‐
native, the defendants argued that Wetzel’s harassment claim
must be dismissed insofar as it relied on 42 U.S.C. § 3604(b)
because that section does not cover post‐acquisition harass‐
ment claims—in other words, harassment claims brought by
a tenant already occupying her home. The defendants also as‐
serted that Wetzel’s retaliation claim failed because it too
lacked an allegation that the defendants were motivated by
6 No. 17‐1322
discriminatory animus. The district court agreed with each of
the defendants’ arguments and dismissed the harassment
claim. It dismissed the retaliation claim without further dis‐
cussion. With the federal claims gone, the court chose to relin‐
quish supplemental jurisdiction over the state claims. Wetzel
appeals the dismissal of her suit.
II
A
As we recognized in Bloch v. Frischholz, 587 F.3d 771
(7th Cir. 2009) (en banc), the protections afforded by the Fair
Housing Act do not evaporate once a person takes possession
of her house, condominium, or apartment. The question be‐
fore us, while an important one, is thus narrow: does the Act
cover the particular kinds of post‐acquisition discrimination
that Wetzel suffered?
Under 42 U.S.C. § 3604(b), it is unlawful “[t]o 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 race, color, reli‐
gion, s*x, familial status, or national origin.” In addition, the
Act makes it unlawful “to coerce, intimidate, threaten, or in‐
terfere with any person in the exercise or enjoyment of … any
right granted or protected by section … 3604 … of this title.”
42 U.S.C. § 3617. Among other things, these sections prohibit
discriminatory harassment that unreasonably interferes with
the use and enjoyment of a home—by another name, a hostile
housing environment. Krueger v. Cuomo, 115 F.3d 487, 491
(7th Cir. 1997); DiCenso v. Cisneros, 96 F.3d 1004, 1008 (7th Cir.
1996); see also Bloch, 587 F.3d at 781 (recognizing that the pro‐
tections under sections 3604(b) and 3617 may be coextensive).
No. 17‐1322 7
A hostile‐housing‐environment claim requires a plaintiff
to show that: (1) she endured unwelcome harassment based
on a protected characteristic; (2) the harassment was severe or
pervasive enough to interfere with the terms, conditions,
or privileges of her residency, or in the provision of services
or facilities; and (3) that there is a basis for imputing liability
to the defendant. See DiCenso, 96 F.3d at 1008; see also
Alamo v. Bliss, 864 F.3d 541, 549 (7th Cir. 2017) (listing
elements of a Title VII hostile‐workplace claim); Honce v. Vigil,
1 F.3d 1085, 1090 (10th Cir. 1993) (adopting elements of a
Title VII hostile‐workplace claim for the FHA).
B
St. Andrew agrees that our ruling in Hively v. Ivy Tech
Community College of Indiana, 853 F.3d 339 (7th Cir. 2017)
(en banc), holding that discrimination based on s*xual
orientation qualifies as discrimination based on s*x under
Title VII, applies with equal force under the FHA. We
therefore move directly to the second element of the case:
whether the harassment from which Wetzel suffered was
severe or pervasive enough to interfere with her enjoyment of
her dwelling. Harassment is severe or pervasive if it
objectively interferes with the enjoyment of the premises or
inhibits the privileges of rental. DiCenso, 96 F.3d at 1008. That
standard requires us to consider the totality of the
circumstances, including the frequency of the discriminatory
conduct, its severity, and whether it is physically threatening
or humiliating rather than merely offensive. Alamo, 864 F.3d
at 549–50. There is no “magic number of instances” that must
be endured before an environment becomes so hostile that the
occupant’s right to enjoyment of her home has been violated.
Id. at 550. While isolated minor affronts are not enough,
8 No. 17‐1322
DiCenso, 96 F.3d at 1008, either a small number of “severe
episode[s]” or a “relentless pattern of lesser harassment” may
suffice, Alamo, 864 F.3d at 550 (quoting Cerros v. Steel Techs.,
Inc., 398 F.3d 994, 951 (7th Cir. 2005)).
Though it need be only one or the other, 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. The defendants
dismiss this litany of abuse as no more than ordinary “squab‐
bles” and “bickering” between “irascible,” “crotchety senior
resident[s].” A jury would be entitled to see the story other‐
wise. (We confess to having trouble seeing the act of throwing
an elderly person out of a motorized scooter as one of the or‐
dinary problems of life in a senior facility.) Wetzel has pre‐
sented far more than “a simple quarrel between two neigh‐
bors or [an] isolated act of harassment.” See Halprin v. Prairie
Single Family Homes of Dearborn Park Ass’n, 388 F.3d 327, 330
(7th Cir. 2004).
C
That takes us to the main event: Is there a basis to impute
liability to St. Andrew for the hostile housing environment?
This question is new to our circuit. Our response begins, as it
must, with the text of the statute. Duncan v. Walker, 533 U.S.
167, 172 (2001). Again, 42 U.S.C. § 3604(b) makes it unlawful
“[t]o discriminate … because of … s*x,” and 42 U.S.C. § 3617
forbids a housing provider to “interfere with any person in
the exercise or enjoyment of … any right granted or protected
by section … 3604 … of this title.” The focus on the actor ra‐
ther than the benefitted class, St. Andrew deduces, confines
the world of possible defendants under these section
