Elizabeth A. Honce v. Jose A. Vigil, D/B/A Dorado Investments, Inc., A/K/A Villa Chaparral Mobile Home Sub-Division Dorado Investments, Inc.

1 F.3d 1085

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 25, 1993
• Docket: 92-2074
• Status: Published

Opinions

PAUL KELLY, Jr., Circuit Judge.

Plaintiff-appellant Elizabeth A. Honce appeals the dismissal of her Pair Housing Act suit. See 42 U.S.C. § 3601 (“Title VIII”). She claims that the court erred in granting judgment as a matter of law for Defendant-appellee Jose A. Vigil on both her Title VIII claims as well as her covenant of quiet enjoyment claim. Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm..

Background

In August 1990, Ms. Honce arranged to rent a lot in Mr. Vigil’s mobile home park. Ms. Honce placed a mobile home on the property in mid-September and moved in at the beginning of October. Mr. Vigil invited Ms. Honce to accompany him socially on three occasions in September, prior to her moving in. He first asked' her to attend a religious seminar. She told him that she would try to attend, but did not. He then offered to take Ms. Honce and her young son to the state fair. She told him that she would think about it, but did not go. At their next meeting, he asked her to visit some property with him. She politely declined. Finally, two days before moving in, Mr. Vigil asked, “When can we go out?” She responded that she did not wish to go out with him at any time. He told her that he had only wanted to be friends and did not ask her out again. Both parties testified that Mr. Vigil never used profanity or made sexual advances or remarks.

After Ms. Honce moved in, she and Mr. Vigil had a series of disputes over the property. The first involved a plumbing problem, which Mr. Vigil refused to pay for because he claimed that the problem was not in his line. The next arose over the building of a fence for Ms. Honce’s dog. Mr. Vigil required all tenants with dogs to erect fenced dog-runs. He prohibited the use of cement, and preferred that his own fencing materials be used. When Mr. Vigil sent a laborer over to start work on a fence for Ms. Honce as a favor to her, she stopped the work and informed him that she wanted no favors. Mr. Vigil also provided rocks to be used as stepping stones, which Ms. Honce did not want. These rocks were provided to all tenants.

The primary confrontation occurred on October 24, 1990. Ms. Honce had purchased fencing from Sears and workers began construction of the fence using cement. Mr. Vigil arrived, upset with the situation, and sent the workers away. He was unhappy with the use of cement, as well as Ms. Honce’s failure to seek his consent to build as required by the rental agreement. He also yelled at a worker who was repairing Ms. Honce’s door, although that worker did not leave. Ms. Honce and Mr. Vigil then entered into a shouting match, during which he threatened to evict her. As Mr. Vigil entered his truck to leave, Ms. Honce’s dog ran in front of the vehicle. Mr. Vigil “revved” the engine and Ms. Honce retrieved her dog, fearing that the dog would be hit. After Mr. Vigil departed, Ms. Honce continued shouting and threw the stepping stones into the street. Mr. Vigil then called the animal control department regarding her loose dog. That night, Ms. Honce went to the sheriffs department for advice and was told that she should be concerned for her safety. She left the next day and moved the trailer out on November 11.

Mr. Vigil testified that he believes there is a “conspiracy” against him, led by his former girlfriend and the sheriffs department. Relationships with most of his tenants quickly break down because of this conspiracy, and the problems are often with women. He has evicted between ten and twenty-five tenants in the past, both male and female, including his own nephew.

Ms. Honce’s neighbors testified that they had similar problems with Mr. Vigil. Rosa and Russell Haenner stated that he bothered Mrs. Haenner almost daily. They had a dispute over their dog fence, because Mr. Vigil wanted them to use his materials, and an argument over the flagstone walkway, because Mr. Vigil wanted them to use his flagstones. Mr. Vigil also yelled at them and called them names because they didn't attend a Bible study class with him. Mrs. Haenner insisted that they move out. When they informed Mr. Vigil that they were moving, he issued an eviction notice. They left two weeks after Ms. Honce moved in.

Ms. Honce alleges that Mr. Vigil’s actions amount to sexual discrimination and harassment, which forced her to leave the trailer park. The district court granted judgment as a matter of law for Mr. Vigil, following the conclusion of Plaintiffs evidence. The court found no disparate treatment in Mr. Vigil’s equally poor treatment of all his tenants, and no evidence of sexual harassment. As for constructive eviction, the court found that the sheriffs advice, not her landlord’s actions, caused her to vacate.

Discussion

We review de novo the district court’s directed verdict. Fed.R.Civ.P. 50(a) provides for entry of judgment as a matter of law when there is an “absence of proof’ of material issues, viewing the evidence in a light most favorable to the non-moving party. Martin v. Unit Rig & Equip. Co., 715 F.2d 1434, 1438 (10th Cir.1983). However, a mere scintilla of evidence is insufficient to create a jury question. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). A directed verdict is appropriate if “there can be but one reasonable conclusion as to the verdict.” Id. While the district court may not resolve conflicts in the testimony or weigh the evidence, it may evaluate the evidence at least to the extent of determining whether there is sufficient evidence to support a jury verdict in favor of the Plaintiff. Von Zuckerstein v. Argonne Nat’l Lab., 984 F.2d 1467, 1471 (7th Cir.1993) (affirming directed verdict for defendant in discrimination case). Following a directed verdict in a discrimination case, the question for the appellate court is “simply whether the evidence ... was sufficient to justify a reasonable jury in finding discrimination.” Lowe v. J.B. Hunt Transport, Inc., 963 F.2d 173, 174 (8th Cir.1992).

I. The Fair Housing Act

The Fair Housing Act prohibits gender-based discrimination in the rental of a dwelling, or in the provision of services in connection with a rental. 42 U.S.C. § 3604(b). Discrimination may occur either by treating one gender less favorably (disparate treatment) or by sexual harassment. This circuit has not yet addressed the issue of sexual discrimination in the context of fair housing under Title VIII. However, we will look to employment discrimination eases for guidance. Morgan v. HUD, 985 F.2d 1451, 1456 n. 4 (10th Cir.1993); Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 934 (2nd Cir.), aff'd, 488 U.S. 15, 109 S.Ct. 276, 102 L.Ed.2d 180 (1988).

A. Disparate Treatment

The district court determined that there was insufficient evidence of disparate treatment because Mr. Vigil was “equally nasty” to all of his tenants. Ms. Honce argues that Mr. Vigil was more hostile to women, pointing to the evidence of his past problems with women and the supposed “conspiracy” against him by law enforcement. She further argues that Mr. Vigil’s testimony of a “conspiracy” at least creates a triable question of fact.

The ultimate question in a disparate treatment ease is whether the defendant intentionally discriminated against plaintiff. St. Mary’s v. Hicks, — U.S. ——, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Sorensen v. City of Aurora, 984 F.2d 349, 352 (10th Cir. 1993). To survive a directed verdict, plaintiff must establish a prima facie case of discrimination. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986, 108 S.Ct. 2777, 2784, 101 L.Ed.2d 827 (1988). In the context of employment discrimination, a prima facie case requires proof that the employer, after rejecting plaintiffs application, continued to seek applicants with qualifications similar to plaintiffs. Id. Here, the landlord did not refuse to rent to Ms. Honce, nor did he actually evict her. See e.g. United States v. Reece, 457 F.Supp. 43, 48 (D.Mont.1978) (landlord refused to rent to female tenants). Ms. Honce offers no evidence of a discrepancy in services provided. The landlord offered the same materials for property improvements to Ms. Honce as to her neighbors, and insisted on compliance with the rental agreement. The fact that Mr. Vigil believed that there was a conspiracy against him is not actionable unless he refused to rent to women or to provide women with the same rental services as men. Such was not the case. The Plaintiff has failed to prove a prima facie case of disparate treatment.¹

B. Sexual Harassment

Harassment based on sex is a form of discrimination. Hicks v. Gates Rubber Co., 833 F.2d 1406, 1413 (10th Cir.1987) (addressing harassment in the workplace). We have previously recognized two distinct categories of sexual harassment: “quid pro quo” harassment and hostile work environment (or housing environment) harassment. Id. “Quid pro quo” harassment occurs when housing benefits are explicitly or implicitly conditioned on sexual favors. See id. at 1414. Ms. Honce admits that Mr. Vigil did not make any sexual requests, explicit or otherwise, that he acted “gentlemanly” during their conversations, and that he even said he just wanted to be friends. She argues, however, that he became unreasonable after she rejected his advances, which forced her to leave.

Few courts have addressed sexual harassment in the context of fair housing. In Shellhammer v. Lewallen, Fair Housing—Fair Lending Rptr. (P-H) ¶ 15,472 at 16,127 (W.D.Ohio), aff'd, 770 F.2d 167 (6th Cir.1985), the landlord requested that Mrs. Shellham-mer pose for nude pictures, and she refused. One month later he offered her money for sex, which she also rejected. Three months later the landlord evicted her. The district court found that the eviction was in response to the tenant’s rejection and awarded damages. (The court rejected plaintiffs hostile housing environment claim, however.) See also Grieger v. Sheets, No. 87-C-6567, 1989 WL 38707 (N.D.Ill.1989) (“quid pro quo” claim survived summary judgment where landlord refused to make repairs after tenant rejected his explicit demands for sex).

In Hicks v. Gates, plaintiff complained of receiving sexual remarks and inappropriate touching in the workplace. We found no quid pro quo harassment because there was no evidence that job security was conditioned on granting sexual favors. 833 F.2d at 1414. Likewise, Mr. Vigil made no quid pro quo threat based on sexual favors. Ms. Honce contends, though, that the threat was implicit, and that the landlord’s subsequent actions were in direct response to her rejection. She failed to provide any evidence of a connection, however. She rejected her landlord’s advances prior to moving in to the park. Mr. Vigil did not “retaliate” for the rejection by attempting to stop her from moving in. The disputes which occurred after she moved in involved the plumbing, stepping stones, and dog fence. Mr. Vigil’s positions were justifiable: he would only pay for his part of the sewer line, and the fence violated the rental agreement by the use of cement, and Plaintiffs failure to give prior notice. See Burrus v. United Tel. Co. of Kansas, Inc., 683 F.2d 339 (10th Cir.), cert. denied, 459 U.S. 1071, 103 S.Ct. 491, 74 L.Ed.2d 633 (1982) (no causal connection between protected activity and plaintiffs firing where firing was based on legitimate business reason).

Although Defendant may not be the most rational actor, Title VIII does not make irrational rental policies illegal. See Flasher, 986 F.2d at 1319. Ms. Honee failed to present evidence of a causal connection, and a conclusional allegation is insufficient to create a question of fact. See 1188, Inc. v. Philsec Inv. Corp., 939 F.2d 1281, 1289 (5th Cir.1991). We agree that no reasonable jury could find quid pro quo harassment here.

C. Hostile Housing Environment

Ms. Honce raises the related claim that Mr. Vigil’s harassment created a hostile housing environment. In the employment context an employer violates Title VII by creating a discriminatory work environment, even if the employee loses no tangible job benefits, because the harassment is a barrier to equality in the workplace. Meritor Savings Bank v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986) (employer forcing plaintiff to engage in sex in the workplace created hostile environment). Applied to housing, a claim is actionable when the offensive behavior unreasonably interferes with use and enjoyment of the premises. The harassment must be “sufficiently severe or pervasive” to alter the conditions of the housing arrangement. See Hicks, 833 F.2d at 1413. It is not sufficient if the harassment is isolated or trivial. Mentor Savings Bank, 477 U.S. at 65, 106 S.Ct. at 2404. “ ‘[C]asual or isolated manifestations of a discriminatory environment ... may not raise a cause of action.’ ” Hicks, 833 F.2d at 1414 (quoting Bundy v. Jackson, 641 F.2d 934, 943 n. 9 (D.C.Cir.1981)). The offensive acts need not be purely sexual; it is sufficient that they would not have happened but for claimant’s gender. Hicks, 833 F.2d at 1415. Evidencé of harassment of other female tenants is relevant to plaintiffs claim. See id.

In Hicks, we remanded for a determination of whether sexual touching, sexual remarks and threats of violence in the workplace constituted a hostile environment. Hicks, 833 F.2d at 1415. Hostile environment claims usually involve a long-lasting pattern of highly offensive behavior. See e.g. Bundy v. Jackson, 641 F.2d 934. In Shell-hammer, the Sixth Circuit affirmed a district court finding that two explicit sexual propositions from a landlord during four months of tenancy did not prove a hostile housing environment because it did not create a “burdensome situation” that would make the tenancy undesirable. Shellhammer v. Lewallen, No. 84-3573, slip op. at 2, 1985 WL 13505 (6th Cir. July 31, 1985). One survey of sexual harassment in housing cites examples of harassment as making sexual remarks to a tenant, requesting sexual favors, and using the pass key to observe the tenant showering. See Regina Cahan, Comment, Home is No Haven: An Analysis of Sexual Harassment in Housing, 1987 Wis.L.Rev. 1061, 1062; see also Grieger v. Sheets, No. 87 C 6567, 1989 WL 38707 (N.D.Ill. Apr. 10, 1989) (landlord threatened to shoot tenant because tenant rejected sexual advances).

The offensive behavior here did not include sexual remarks or requests, physical touching, or threats of violence. Mr. Vigil asked Ms. Honee to accompany him socially on three occasions, all prior to her occupying the premises. The contact between them after that involved arguments over plumbing, stepping stones and a fence. The landlord’s behavior here was eccentric, and probably unwarranted, but was not directed solely at Ms. Honce. Other tenants of both sexes endured similar treatment. Because the conduct was neither sexual nor directed solely at women, it is not actionable under the hostile housing environment theory. See Chamberlin v. 101 Realty, Inc., 915 F.2d 777 (1st Cir.1990); Scott v. Sears, Roebuck and Co., 798 F.2d 210 (7th Cir.1986).

II. The Covenant of Quiet Enjoyment

To sustain a claim of violation of the covenant of quiet enjoyment, a tenant must show actual or constructive eviction. El Paso Natural Gas Co. v. Kysar Ins. Agency, 98 N.M. 86, 87, 645 P.2d 442, 443 (1982). Constructive eviction occurs when the landlord has substantially deprived the tenant of the beneficial use of the premises, and the tenant vacates, Dennison v. Marlowe, 106 N.M. 433, 437, 744 P.2d 906, 910 (1987), or when the landlord’s actions are meritless, done in malice or bad faith, and so severe as to interfere with the tenant’s peaceful enjoyment of the premises. El Paso Natural Gas Co., 645 P.2d at 444.

The New Mexico Supreme Court has found that three threatening demand letters by the landlord followed by a lawsuit were not sufficient to interfere with the tenant’s peaceful enjoyment of the premises. El Paso Natural Gas Co., 645 P.2d at 444. However, the court did find constructive eviction where the tenant was forced out of the premises because of a fire code violation. Dennison, 744 P.2d at 910. Other courts have held that mere threats by the landlord do not constitute constructive eviction, see United States v. Bedford Assoc., 548 F.Supp. 732, 740-41 (S.D.N.Y.1982) (threat to condemn building and terminate services), aff'd in relevant part, 713 F.2d 895 (2d Cir.1983), nor do acts which merely inconvenience the tenant. See Baley & Selover, Inc. v. All Am. Van & Storage, Inc., 97 Nev. 370, 371, 632 P.2d 723, 724 (1981).

Mr. Vigil did not take steps to evict Ms. Honce prior to her moving out. Ms. Honce claims that she was frightened by Vigil’s erratic behavior and moved out for her safety. Her own testimony, though, was that she moved out after speaking with the sheriffs department and reviewing their files. Past acts of the landlord toward others are not relevant to the current question of whether the landlord acted maliciously toward the plaintiff-tenant. See El Paso Nahiral Gas Co., 645 P.2d at 444 (question of constructive eviction focuses on malicious acts of landlord aimed at ousting a tenant in rightful possession). The relevant acts are Mr. Vigil’s treatment of the fence situation, the plumbing problem, and his apparent threat to the dog. His response to the plumbing problem was, appropriately, that he would only pay for his portion of the line. As for the fence, he chased off the laborers because the fence was being built with concrete and without prior notice to him, in violation of park policy. His actions were not entirely unjustified, even if erratic. The alleged threat, consisting of returning to his vehicle and “revving” the engine when the dog ran in front of him, is insufficient to create a jury question of constructive eviction. See Bedford Assoc., 548 F.Supp. at 740-41.

Furthermore, even assuming that Defendant’s actions amounted to an interference with the property, the interference was limited to a brief period of time on a single occasion. (The primary dispute between the two parties here lasted for less than one hour.). This does not amount to a material disturbance of possession. See Santulones v. Property Management Serv., 110 Idaho 588, 593, 716 P.2d 1360, 1365 (1986) (locking tenant out of premises for one hour does not materially disturb possession). A reasonable jury could not have found Mr. Vigil’s actions sufficiently severe and unjustified so as to deprive Ms. Honce of peaceful enjoyment of the premises.

AFFIRMED.

1 . Even assuming that Ms. Honce had met a prima facie case with sufficient evidence of constructive eviction, she would then be required to show proof of pretext if the defendant offers a legitimate, nondiscriminatory reason for the eviction. E.E.O.C. v. Flasher Co., 986 F.2d 1312, 1316 (10th Cir. 1992). Defendant presented evidence that the fence and Plaintiff's failure to give notice of construction were in violation of the rental agreement; therefore, Defendant's quarrel regarding the fence was justified. Ms. Honce did not dispute that the fence was in violation of the agreement. In fact her neighbors, a married couple, were evicted (after 'giving notice) following a similar dispute over fencing and stepping stones, and Mr. Vigil had evicted numerous other tenants of both sexes. So, even assuming a pri-ma facie case of disparate treatment, Ms. Honce lacked evidence of pretext and cannot withstand a directed verdict. See Shapolia v. Los Alamos Nat'l Lab., 992 F.2d 1033 (10th Cir.1993).