Full Brief

SUMMARY

DEFENDANTS’ retaliatory misconduct is the very behavior made unlawful by Section 818 of the Fair Housing Act.

PLAINTIFF complained to DEFENDANTS of discrimination.

And the uncontroverted evidence directly shows that because of her complaints of discrimination, DEFENDANTS threatened, coerced, and intimidated PLAINTIFF, and interfered with her exercise or enjoyment of fair housing rights.

Accordingly, PLAINTIFF is entitled to judgment as a matter of law.

ARGUMENT

PLAINTIFF is entitled to judgment as a matter of law because DEFENDANTS threatened, coerced, intimidated PLAINTIFF—and interfered with her exercise and enjoyment of rights under the Fair Housing Act.

Plaintiff is entitled to summary judgment.

Title VIII of the Civil Rights Act of 1968 safeguards each person’s right to dignity in housing.  To that end, the statute prohibits discrimination creates fair housing rights, declaring that “[i]t is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States.”

Practical realities of life teach, however, that a statute merely professing to endow citizens with the right to live in freedom from discrimination with nothing more would be merely an empty promise: For an anti-discrimination law to be effective, a person must feel free to insist on and enforce those rights.

Recognizing this, Congress included in the original, and retained in the amended statute, an anti-retaliation clause which provides protection from retaliatory mistreatment, stating:

It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section 803, 804, 805, or 806 of this title.

This Anti-Retaliation provision makes clear that to coerce, threaten, or intimidate a person, or to interfere with a person in her exercise, enjoyment, or her helping others exercise their rights—constitutes a separate, and distinct violation of the Fair Housing Act (see Hidden Village, LLC v. City of Lakewood, Ohio (2013) (“Section 3617 nowhere says that it comes into play only when a violation of one of these other sections has also occurred.”)

In other words, retaliatory conduct is unlawful in and of itself.

Section 804, identified in the Anti-Retaliation provision, is an operative clause of the Fair Housing Act prohibiting discrimination in the sale or rental of housing, stating, in part, that:

[I]t shall be 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 race, color, religion, sex, familial status, or national origin.

So, to coerce, threaten, intimidate a person because she exercised, enjoyed, or helped others to exercise or enjoy the right to non-discriminatory treatment in the “terms, conditions, or privileges” or “services or facilities” provided in connection with housing—or to interfere with her exercise or enjoyment of those rights—violates the Anti-Retaliation provision.

In this case, undisputed evidence establishes that DEFENDANTS coerced, intimidated, and threatened PLAINTIFF, and interfered with her rights under the Fair Housing Act—including Section 804.

By this conduct, DEFENDANTS violated the Anti-Retaliation provision; and PLAINTIFF is entitled to judgment as a matter of law.

Defendants coerced, intimidated, and threatened Plaintiff—and interfered with her fair housing rights.

PLAINTIFF is entitled to summary judgment because undisputed evidence directly establishes that DEFENDANTS retaliated against PLAINTIFF because she exercised rights granted and protected by Section 804.

As noted, the FHA broadly prohibits discrimination in housing services and facilities.

In addition to prohibiting disparate treatment in the provision of services and facilities, the statute ensures protection from mistreatment that would silence or chill an individual’s enforcement of her rights, by declaring it unlawful to “coerce, intimidate, threaten, or interfere” with or because of a person’s exercise of fair housing rights. 

The U.S. Department of Housing and Urban Development has made explicit that “[a] broad range of activities” may constitute actionable retaliatory conduct under the ANTI-RETALIATION PROVISION.

And, consistent with HUD’s guidance and Congressional intent, courts have construed the ANTI-RETALIATION PROVISION to reach “all practices which have the effect of interfering with the exercise of rights under the federal fair housing laws.

In this case, DEFENDANTS violated the ANTI-RETALIATION PROVISION by coercing, threatening, intimidating, and interfering because PLAINTIFF complained that DEFENDANTS engaged in discriminatory treatment against her because she is Arab American.Housing Discrimination Against Arab Americans

As expressly acknowledged in FHAA regulation comments, discrimination in and around one’s own home feels inherently more threatening; individuals are more vulnerable where they live—which calls for heightened protection against harassment that reaches them there:

One’s home is a place of privacy, security, and refuge (or should be), and harassment that occurs in or around one’s home can be far more intrusive, violative and threatening than harassment in the more public environment of one’s work place.

The reality remains that in this day and age, now more than ever, one protected class whose rights to safety and security in their homes must zealously be safeguarded are our citizens of Arab or Middle Eastern descent.

This is because since (at least) 2001, expressions of anti-Arab sentiment have escalated to staggering and morally unacceptable levels in this country.  Displays of hostility (overt and covert) against Arab Americans have become commonplace.

In going about their daily lives, many Arab Americans find themselves forced to confront and navigate ignorance, hostility, suspicion, thinly-veiled accusations, offensive comments, and stray remarks hinting at the devastating suggestion that—merely based on their ethnic background, religion, or national origin—they might be a terrorist.  As recognized in HUD-issued guidance, discrimination against Arab Americans is, sadly, a very real issue:

Since the attacks of September 11, 2001, persons who are, or are perceived to be, Muslim or of Middle Eastern or South Asian descent have reported increased discrimination and harassment, sometimes in connection with their housing.

This publication, and others, underscore the tragic reality that in those instances when it occurs, housing discrimination against Arab Americans may often take the form of disparate treatment stemming from accusations, insinuations, or suggestions that the aggrieved person has some connection to terrorism.

In the case at bar, based on [DEFENDANT’S] hostility, poor customer service, and terrorism-related comment PLAINTIFF inferred that a discriminatory practice was occurring and/or was about to occur.

So, PLAINTIFF complained to DEFENDANTS.

This constituted protected activity.

And, the evidence in the record directly establishes that because of PLAINTIFF’s protected activity, DEFENDANTS threatened, coerced, and intimidated PLAINTIFF, and interfered with her rights.

This constituted unlawful retaliation.

1. On April 12, 2016, DEFENDANT threatened, coerced, and intimidated PLAINTIFF because PLAINTIFF complained of discrimination.

Conduct constituting interference, coercion, or intimidation in violation of the ANTI-RETALIATION PROVISION includes (but is not limited to):

Intimidating or threatening any person because that person is engaging in activities designed to make other persons aware of, or encouraging such other persons to exercise, rights granted or protected by this part.

Or:

Retaliating against any person because that person has made a complaint, testified, assisted, or participated in any manner in a proceeding under the Fair Housing Act.

Or:

Retaliating against any person because that person reported a discriminatory housing practice.

In this case, the undisputed evidence in the record shows that PLAINTIFF complained of housing discrimination.

And on April 12, 2016, CMA responded expressly to PLAINTIFF’s complaints of discrimination by making threats of “immediate and corrective action. 

According to CMA’s own testimony, its APRIL 12 email was intended to make PLAINTIFF stop complaining of discrimination.  Moreover, by CMA’s own testimony, if PLAINTIFF had not complained specifically of discrimination, DEFENDANTS would not have treated her as they did.

The evidence in the record directly establishes that CMA threatened PLAINTIFF with “immediate and corrective actionbecause of PLAINTIFF’s complaints of discrimination.

By responding to PLAINTIFF’s protected activity with threats, intimidation, and coercion DEFENDANTS violated the Anti-Retaliation provision.

2. DEFENDANTS interfered with PLAINTIFF in the exercise of her rights by preventing her from presenting her grievances at the April 25 meeting of the board of directors.

Under the Declaration, Bylaws, Rules and Regulations of The Manor House (“Governing Documents”), every occupant has the right to seek resolution by presenting grievances to the Board of Directors.  This provision not only grants the hearing as an enforceable right—but also requires it as a condition precedent to the aggrieved person’s right to sue.

The undisputed evidence in this case shows that PLAINTIFF complied with the Governing Documents, by requesting in writing (on April 15, 2016) to present her grievances to the Board in a meeting set for April 25.

On April 19, CMA acknowledged her request, indicating PLAINTIFF would be permitted to present her grievances at the April 25 meeting.

In the interim, PLAINTIFF continued to complain of discrimination and CMA’s failure to investigate PLAINTIFF’s claims.

And, on April 22, DEFENDANT sent an email to PLAINTIFF stating PLAINTIFF would no longer be permitted to present her grievances at the April 25 meeting because of PLAINTIFF’s complaints of discrimination:

Based on what has transpired in the last few days the board of directors has decided to make Monday􏰀s board meeting an executive session only.

On April 25 (the morning the board meeting was set to take place) DEFENDANTS’ attorney wrote that PLAINTIFF was no longer permitted to attend because PLAINTIFF had requested that the accused person (Maggie Jewell) not be present at PLAINTIFF’s hearing before the Board.

The undisputed evidence directly establishes that DEFENDANTS interfered with PLAINTIFF in the exercise of her rights by preventing PLAINTIFF from accessing the April 25 meeting and relocating the meeting to an undisclosed location because of PLAINTIFF’S complaints of discrimination.

In so doing, DEFENDANTS violated the ANTI-RETALIATION CLAUSE.

3. DEFENDANTS threatened, intimidated, and coerced PLAINTIFF in their April 26, 2016 and May 6, 2016 letters because PLAINTIFF exercised her righs non-discriminatory treatment in housing services.

When DEFENDANTS, in their April 12 “CEASE ALL CONTACT” EMAIL barred PLAINTIFF from communicating with the managing agent for PLAINTIFF’s dwelling, DEFENDANTS engaged in a discriminatory housing practice: DEFENDANTS denied or limited services/facilities in connection with the dwelling based “on [PLAINTIFF’S] response to harassment.

Notwithstanding DEFENDANTS’ illegitimate attempt to strip PLAINTIFF of her rights, PLAINTIFF exercised her right to fair housing under Section 3604 by continuing to communicate with DEFENDANTS as all residents were entitled to.

On April 26, 2016 and May 6, 2016, because PLAINTIFF exercised her rights to fair housing, DEFENDANTS directly and unequivocally intimidated, coerced, and threatened PLAINTIFF.

Excerpts of those letters illustrate DEFENDANTS’ coercion, threats, and intimidation:

If, however, [PLAINTIFF] continues to harass CMA by email and voice mail, CMA may determine that she has created a hostile work environment and may terminate the contract.

If this occurs, the Association will investigate all legal remedies available to it.

If the Owners are aware of [PLAINTIFF’S] abusive behavior and her creation of a hostile work environment, they may also be found liable for violations of federal law.

[PLAINTIFF] should also retract false statements that she has published on social media sites regarding Ms. Jewell, CMA and its employees. 

If any further such conduct occurs, please be advised that CMA will IMMEDIATELY PURSUE LEGAL ACTION, INCLUDING ANY AND ALL DAMAGES THAT[PLAINTIFF’S] IMPROPER CONDUCT HAS CAUSED.

Based on the undisputed evidence in the record, by sending their April 26 and May 6 letters because PLAINTIFF exercised her rights to Fair Housing, DEFENDANTS threatened, coerced, and intimidated PLAINTIFF in violation of the ANTI-RETALIATION PROVISION.

4. DEFENDANTS fined PLAINTIFF because she complained of discrimination.

On May 8, 2016, PLAINTIFF reported unauthorized entry into her unit.  Because of this complaint, DEFENDANTS fined her.

Since unauthorized entry into one’s home may constitute discrimination under the FHA, PLAINTIFF’s complaint was protected activity.

The undisputed evidence in the record establishes that DEFENDANTS violated ANTI-RETALIATION PROVISIONS by fining PLAINTIFF for protected activity.

5. DEFENDANTS threatened, intimidated, coerced, and interfered in the May 23, 2016 letter because PLAINTIFF complained of discriminatory treatment.

In response to PLAINTIFF’s complaint of unauthorized entry into her unit, DEFENDANTS sent a 6-page letter from legal counsel in which DEFENDANTS demanded that PLAINTIFF “stop alleging in writing, on social media and verbally that CMA or anyone else on behalf of the Association entered her unit,” assessed a fine against her, and threatened additional fines if PLAINTIFF made:

Any future accusations, false statements or actions that create a hostile work environment.

Additionally, DEFENDANTS threatened additional adverse action if PLAINTIFF failed to comply with DEFENDANTS’ imposition of a discriminatory limitation/on her access to housing services:

To avoid fines, additional costs and further legal action by CMA against any of you, I strongly recommend [PLAINTIFF] run any issue by you, the Owners, before he calls the after-hours emergency telephone line.

DEFENDANTS’ May 23, 2016 letter—sent to PLAINTIFF because she engaged in protected activity by complaining of unauthorized entry into her unit and because she assisted others in the exercise/enforcement of their rights by sharing her experience online—constituted intimidation, threats, coercion, and interference.

By sending the threatening, intimidating, and coercive letter, DEFENDANTS plainly and palpably violated the ANTI-RETALIATION PROVISIONS.

CONCLUSION

The undisputed evidence directly establishes that DEFENDANTS threatened, coerced, intimidated and interfered in violation of the Fair Housing Act because of PLAINTIFF’s protected activity.

PLAINTIFF is therefore entitled to judgment as a matter of law, and summary judgment is appropriate.

Respectfully submitted