Wetzel v. Glen St. Andrew Living Community, LLC

901 F.3d 856 (2018)

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Nature of the Case

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Facts

P moved into D, a residential community for older adults; she continues to live there today. Her tenancy is governed by a form Tenant's Agreement (Agreement). P has 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 D 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.' D has the power to institute eviction proceedings against a tenant in breach, and if D prevails, the breaching tenant must also reimburse D for its attorney's fees. P spoke openly to staff and other residents about her sexual orientation as a lesbian. Residents repeatedly berated her for being a 'fucking dyke,' 'fucking faggot,' and 'homosexual bitch.' One resident, Robert Herr, told P that he reveled in the memory of the Orlando massacre at the Pulse nightclub, derided P's son for being a 'homosexual-raised faggot,' and threatened to 'rip P's tits off.' Herr was the primary, but not sole, culprit. Elizabeth Rivera told P that 'homosexuals will burn in hell.' Herr at one time rammed his walker into P's scooter forcefully enough to knock her off a ramp. Rivera bashed her wheelchair into a dining table that P occupied, flipping the table on top of P. P 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 P, rubbing his head and saying 'ouch.' P also had two abusive trips in the elevator. Rivera spat on her and hurled slurs. P, Herr, and another resident, Audrey Chase, were together in the elevator when Herr again hit P's scooter with his walker. P routinely reported verbal and physical abuse to D's staff. They told P not to worry about the harassment, dismissed the conduct as accidental, denied P's accounts, and branded her a liar. P's social worker accompanied her to one meeting about the harassment; despite that, the managers denounced P as dishonest. D relegated P to a less desirable dining room location. 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 P of smoking in her room in violation of policy. Early one morning, two staff members woke P 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. P ate meals in her room, forgoing those included as part of the Agreement. She stopped visiting the third floor where Herr lived. She did not use the laundry room at hours when she might be alone. P stayed away from the common spaces from which she had been barred by management. P brought this action against Ds. Ds 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 inaction was animated by discriminatory animus. The district court agreed and dismissed the harassment and retaliation claims. P appealed.