I. STATEMENT OF JURISDICTION. claims arose under the laws of the United States. The Fair Housing Act (FHA)

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1 I. STATEMENT OF JURISDICTION A. District Court Jurisdiction The district court had jurisdiction pursuant to 28 U.S.C in that the claims arose under the laws of the United States. The Fair Housing Act (FHA) confers subject matter jurisdiction in federal court. 42 U.S.C. 3613(a)(1)(A). The court had supplemental jurisdiction over plaintiff s state law negligence claim pursuant to 28 U.S.C because that claim is related to the federal law claims, arose out of a common nucleus of related facts, and is part of the same case or controversy. B. Finality of Judgment and Jurisdiction of this Court The judgment of dismissal signed by the district court (ER 99) 1 is a final appealable judgment. Jurisdiction to review the final judgment is conferred on this Court by 28 U.S.C and 1295(a). C. Relevant Dates The judgment was entered on May 4, (ER 104). The Notice of Appeal was timely filed on May 19, 2005 pursuant to FRAP 4(a)(1)(A). (ER 100). II. ISSUES PRESENTED FOR APPEAL 1. Did the district court err in granting summary judgment against 1 Cites to ER refer to the Excerpts of Record. 1

2 plaintiff, a tenant who was at least the third female tenant sexually assaulted by a male co-tenant at a complex owned and managed by defendants, on the ground that she was not subject to a hostile living environment? 2. Did the district court err in granting summary judgment against plaintiff on her claim that defendants interfered with and intimidated her with regard to the exercise of her rights under the FHA by discouraging her from telling anyone about the assault and by telling her that the other victims had already signed statements denying that their assaults had occurred? 3. Did the district court err in granting summary judgment against plaintiff on her claim that defendants negligently failed to fulfill their duty to use reasonable care to provide safe housing to tenants? III. STATEMENT OF THE CASE A. Nature of the Case Plaintiff-Appellant Vashtiahna Gorman ( plaintiff ) appeals from the judgment of the district court granting summary judgment in favor of defendants on all three of plaintiff s claims in this case. This case involves the sexual harassment of female tenants by a male co-tenant in an apartment complex owned and managed by the defendants. These issues, while relatively common in the employment setting, have been less frequently litigated in the housing context. All 2

3 three of the legal issues on appeal, arising out of the federal Fair Housing Act ( FHA ) and common law negligence, involve whether or not landlords owe a duty to tenants who are being sexually harassed by a co-tenant: (i) to take prompt remedial action to end the harassment; (ii) to not interfere with, coerce, threaten or intimidate a tenant who complains of sexual harassment; and (iii) to use reasonable care to keep an apartment complex safe for tenants. B. Course of the Proceedings Below On June 16, 2004, plaintiff filed a complaint in the United States District Court for the District of Oregon alleging that defendants violated the FHA and were negligent. (ER 1-6). Specifically, plaintiff alleged that defendants failed to take prompt remedial action aimed at ending the sexual harassment of female tenants at their apartment complex. Plaintiff also alleged that defendants interfered with and intimidated her when she complained after being groped by a male cotenant. On December 14, 2004, defendants moved for summary judgment on plaintiff s fair housing claims. (ER 11-12). On March 11, 2005, the Honorable Donald C. Ashmanskas, Magistrate Judge, issued written Findings and Recommendations recommending that defendants motion for summary judgment be granted on all claims, including plaintiff s negligence claim on which 3

4 defendants had not moved for summary judgment. (ER 69-81). On March 25, 2005, plaintiff filed objections to the Magistrate s Findings and Recommendations. (Excerpted at ER 82-93). On April 26, 2005, the Honorable Robert E. Jones, issued an order adopting the Magistrate s Findings and Recommendations in their entirety without further opinion. (ER 96-98). On May 2, 2005, the district court filed a judgment dismissing this action. The judgment was entered on May 4, (ER 99). Plaintiff appeals this judgment. IV. STATEMENT OF FACTS 2 During 2003, at least three female tenants were subjected to unwanted sexual touching and groping by the same male co-tenant at the Crossroads Village Apartments (the Apartments ), a complex in Portland owned and managed by defendants. (ER 53, 56, 59). Plaintiff was the third of these three victims. (ER 52-58, 38-39). Each of the three women immediately told the on-site manager, defendant Reyes, exactly what happened with regard to the assaults. (ER 53, 56, 24). Each of the three moved from the Apartments because of the assaults and defendants response to their complaints. (ER 53-54, 57, 59). The record contains signed declarations from the first two victims regarding the assaults. (ER 52-57). 2 The summary judgment record contains dozens of disputed issues of material fact, many of which the district court improperly resolved in the defendants favor. See Plaintiff s Objections to Findings of Fact. (ER 82-93). 4

5 Defendants conducted no investigation and took no corrective action with regard to the complaints. (ER 44-45, 51). The on-site manager did not make any written record of the allegations and did nothing in response to the complaints. (ER 42-45, 51) 3. Defendants never contacted the police and never investigated the complaints. (ER 51). Defendants position on summary judgment was that they owed no duty to investigate or end this harassment. (ER 16). The first victim was assaulted by the perpetrator in March (ER 53). He trapped her inside his apartment against her will and put his hands all over her body, including her breasts and buttocks. (ER 53). She told the on-site manager exactly what happened. (ER 53). Instead of taking action to investigate or stop the harassment, the on-site manager told the first victim that she could not call the police, that it would get messy, that she should not tell anyone, that she was lying, that no one would believe her and that it would harm the perpetrator s wife if she told anyone what happened. (ER 53). The first victim promptly moved because she felt unsafe in her home. (ER 53-54). In September or October of 2003, the perpetrator confronted the second victim in the laundry room of the Apartments 3 The on-site manager claimed in her deposition that she finally made a written report of plaintiff s allegation after plaintiff contacted the police. (ER 42-43, 48). That notice has never been produced by defendants and is not part of the record. Plaintiff asserts for the purposes of this appeal that it does not exist. 5

6 and tried to pull her shirt away from her and put his hand down her shirt. (ER 56). The second victim told the manager about the assault because she felt that it was wrong and that the manager should know that the first victim was not lying. (ER 56, 44). Still, no action was taken to investigate or end the harassment. (ER 44-45, 56-57). The second victim moved because she was no longer comfortable living at the Apartments. (ER 57). Next, on December 16, 2003, plaintiff was assaulted. (ER 39, 59). The perpetrator grabbed her breast and forced her hand onto his crotch. (ER 21 at 20, 22). Following her assault, she immediately told the manager what had happened. (ER 24-25). The manager told plaintiff not to tell anyone, including the police, that no one would believe her and that if she came forward it would harm the perpetrator s family. (ER 25, 28, 38). Plaintiff told the manager repeatedly that she felt unsafe and that she wanted something done about the perpetrator. (ER 24-26). Following the assault, plaintiff became afraid to leave her apartment alone. (ER 27, 38). Two days after the assault, on December 18, 2003, she gave defendants a 30-day written notice saying that she was moving because of inappropriate behavior by male tenant, feel unsafe. (ER 48). During the thirtythree days that she lived at the Apartments following the assault she lived with 6

7 constant fear for her safety. (ER 26-27, 38). She had trouble sleeping and eating, cried a lot and had frequent nightmares. (ER 38). She had a friend escort her to the bus stop when she had to leave her apartment or to her door when she was coming home. (ER 41). Eight days after the assault, on December 24, 2003, she made up her mind to call the police in spite of being warned not to by her manager. (ER 28). She called the manager to get the perpetrator s last name for the police report and the manager refused to give it to her. (ER 59). Plaintiff did speak with the police, but defendants still took no action regarding the allegations. (ER 51, 47-48). In their summary judgment brief, defendants admit that they conducted no investigation and took no steps to end the harassment, claiming that they had no duty to do so. Rather, defendants continued to intimidate plaintiff. Manager told plaintiff that she had informed the perpetrator s adult sons and grandsons that it was plaintiff who had made the police report. (ER 59). This action was meant to intimidate plaintiff, served no investigative purpose, and, in fact, made plaintiff even more afraid. (ER 59). On or about January 18, 2004, plaintiff moved out of the Apartments. Following her move-out, plaintiff spoke with the on-site manager s supervisor, defendant Henniger, and told him that she had left the Apartments because nothing 7

8 had been done about the sexual harassment. (ER 59). The supervisor told plaintiff that she was a liar and that he knew what kind of girl she was. (ER 59). The supervisor told plaintiff that the other girls had already signed statements saying that nothing had happened to them so that it wouldn t do me any good to speak to a lawyer. 4 (ER 59). The supervisor s statement to plaintiff made her feel awful to the point that she cried a lot, discouraged her and made her not want to pursue her claims. (ER 59). Defendants had no policy, protocol or training regarding sexual harassment on their property. (ER 49-50). The on-site manager, defendant Reyes, claims that she told her supervisor, defendant Henniger, about each of the assaults and that he told her each time to do nothing. (ER 44-45, 47). With regard to plaintiff, the third sexual assault relayed by the on-site manager to her supervisor involving the same male tenant, the manager testified she called her supervisor the day after the assault and asked him what to do. (ER 47). He told her, Nothing. There s a lot of complaints against Vashtiahna Gorman. (ER 47 at p. 37). In contrast, the supervisor denies any knowledge of the earlier assaults, claims that he only found 4 The supervisor s threatening statement to plaintiff was not true with regard to the first victim. The second victim was, after she had moved into another property owned and managed by defendants, approached by the manager and pressured to rewrite and sign a statement, written by the manager, saying that the perpetrator was really a good person. (ER 57). 8

9 out about plaintiff s assault twenty days after it happened and that he only found out about the first two victims being assaulted when plaintiff, through her attorneys, sent a demand letter on May 26, (ER 51). As of his deposition on October 11, 2004, the supervisor admitted that defendants had taken no action to investigate any of the claims by the victims. (ER 51). The lease between the parties states that the defendants shall retain control over any and all common areas, tenants will behave in a manner that will not disturb the peaceful enjoyment of others, the landlord can terminate the tenancy for any reason with 30 days written notice and for any outrageous act including illegal activity may issue a 24 hour notice to terminate. (ER at at 6, 9, 12, 15). In addition, the summary judgment record also contains the declaration of Pegge McGuire, Executive Director of the Fair Housing Council of Oregon. (ER 60-62). Ms. McGuire provides uncontradicted expert testimony that a landlord who acted as defendants acted in this case fails to exercise the standard of care that a reasonably prudent housing provider would exercise under the circumstances. (ER 62). The perpetrator voluntarily moved from the complex in September 2004, nine months after his assault on plaintiff, and a year and half after his assault on the first victim. (ER 42). 9

10 V. SUMMARY OF ARGUMENT A. The District Court Erred in Granting Summary Judgment Against Plaintiff on her Hostile Environment Claim. The sexual assault on plaintiff and the two prior victims, along with defendants failure to act to end the harassment, created a hostile sexual environment that was severe or pervasive enough to alter plaintiff s housing conditions and cause her to move from her home, as the first two victims had done. When a landlord becomes aware that one tenant is sexually harassing another tenant, the landlord has a duty to take prompt remedial action aimed at ending the harassment and the hostile living environment. In this case, defendants learned about each of the assaults immediately after they happened, took no steps to end the harassment and, in fact, took affirmative action to interfere with and intimidate the three victims in an effort to silence their allegations. B. The District Court Erred in Granting Summary Judgment Against Plaintiff on her Fair Housing Interference Claim. Under Section 3617 of the FHA, a landlord must not interfere with, coerce, threaten or intimidate tenants in the exercise of their rights under the FHA. Plaintiff, when she went to her on-site manager and complained of sexual harassment and then gave a written notice telling defendants that she was moving because she felt unsafe, was exercising her right to live in an environment free 10

11 from sexual harassment. Defendants affirmatively interfered with plaintiff s exercise of her rights by telling her not to tell anyone about the assault, not to call the police, not to contact an attorney, that no one would believe her, that they knew what kind of girl she was and by falsely telling her that the other girls had already signed statements that the assaults hadn t really happened. C. The District Court Erred in Granting Summary Judgment Against Plaintiff on her Negligence Claim. Under Oregon law, landlords owe tenants a duty to take reasonable steps to provide safe housing to their tenants. When a landlord learns that one of their tenants is sexually harassing other tenants, the landlord must act within their authority to end the harassment. Defendants in this case negligently failed to take steps to end the sexual harassing conduct by one of their tenants. VI. ARGUMENT A. The District Court Erred in Granting Summary Judgment Against Plaintiff on her Hostile Environment Claim. 1. Reviewability and Standard of Review The district court granted summary judgment to defendant on plaintiff s hostile environment claim. (ER 73-78, 99). This Court reviews the grant of summary judgment de novo. Harris v. Itzhaki, 183 F.3d 1043, 1050 (9 th Cir. 1999). The Court must determine, viewing the evidence in the light most favorable to the 11

12 nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id. at (quotation and citation omitted). If under any reasonable construction of the evidence and any acceptable theory of law, one would be entitled to prevail, the summary judgment against him cannot be sustained. Id. at Because of the highly fact-specific nature of hostile environment cases, they are particularly illsuited to disposition on summary judgment. See Richardson v. New York State Dep t of Corr., 180 F.3d 426, 438 (2d Cir. 1999). 2. The District Court s Opinion The district court opinion contains three principle errors regarding plaintiff s hostile environment claim. (ER 73-78, 97). First, the court found that as a matter of law, the allegations by plaintiff could not be found by a trier of fact to be severe or pervasive enough to alter her living environment. (ER 76). Second, the court found, despite clear admissions by defendants to the contrary, that defendants actions successfully ended the current harassment and facilitated the investigation of the harassment by the police, which clearly deterred any future harassment. (ER 78). Third, the court stated that it questions whether Congress intended the Act to impose liability on a landlord for discrimination suffered by a tenant at the hands of another tenant. (ER 75). For the following reasons, the district court 12

13 should be reversed. 3. The Conduct was Sufficiently Severe or Pervasive to Alter the Conditions of Plaintiff s Tenancy and to Create an Abusive Living Environment In analyzing claims under Title VIII of the Civil Rights Act (FHA), courts in this circuit look to Title VII case law. Gamble v. City of Escondido, 104 F.3d 300, 304 (9 th Cir. 1997). Courts have specifically analogized sexual harassment claims brought under the FHA to Title VII workplace harassment claims. DiCenso v. Cisneros, 96 F.3d 1004, 1008 (7 th Cir. 1996); Honce v. Vigil, 1 F.3d 1085, 1088 (10 th Cir. 1993). Accordingly, to establish that she was subjected to a hostile living environment, Plaintiff must prove the elements of a hostile work environment as modified for a housing claim: (1) she was subjected to verbal or physical conduct of a sexual nature, (2) this conduct was unwelcome, and (3) this conduct was sufficiently severe or pervasive to alter the use and enjoyment of her home and to create an abusive living environment. See Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9 th Cir. 1995)(setting out elements of hostile work environment). For the purposes of this appeal, the first two elements of this claim are not disputed. Plaintiff testified that she was sexually assaulted and, in direct response to this unwelcome assault, she gave her notice to vacate her home because she felt unsafe. 13

14 (ER 34 at 27; ER 48 at 39). The district court concluded that plaintiff had not produced evidence to satisfy the third element. (ER 76). In determining whether an environment is sufficiently hostile or abusive to violate Title VII, this Court looks at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee s employment. Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, (9 th Cir. 2001). The environment must both subjectively and objectively be perceived as abusive. Fuller at The objective portion of the claim is evaluated using the reasonable woman standard. Ellison v. Brady, 924 F.2d 872, (9 th Cir 1991). Applied to housing, a claim is actionable when the offensive behavior unreasonably interferes with the use and enjoyment of the premises. The harassment must be sufficiently severe or pervasive to alter the conditions of the housing arrangement. Honce, 1 F.3d at 1090 (10 th Cir. 1993) Plaintiff has tendered sufficient evidence to preclude summary judgment on her hostile living environment claim. The perpetrator s sexual assaults on the first two victims and plaintiff were severe. (ER 53, 56, 21 at 22). Unwanted touching of sexual body parts, i.e. sexual assault, constitutes severe conduct. As this Court recently wrote, 14

15 Physical sexual assault has routinely been prohibited as sexual harassment under Title VII. A limited sampling of the reported decisions includes Henderson v. Simmons Foods, Inc., 217 F.3d 612, 616 (8 th Cir. 2000)(groping and shoving broom handle in crotch); Schmedding v. Tnemec Co., Inc., 187 F.3d 862, 865 (8 th Cir. 1999)(patting buttocks); Bailey v. Runyon, 167 F.3d 466, 467 (8 th Cir. 1999)(grabbing crotch); Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1067 (10 th Cir. 1998)(putting mouth on breast); Zimmerman v. Cook County Sheriff s Dep t, 96 F.3d 1372, 1374 (8 th Cir. 1996)(grabbing and squeezing testicles and flicking groin); Varner v. Nat l Super Markets, Inc., 94 F.3d 1209, 1211 (8 th Cir. 1996)(grabbing breasts); Wrightson v. Pizza Hut of America, Inc., 99 F.3d 138, 140 (4 th Cir. 1996)(rubbing genitals against buttocks); Waltman v. Int l Paper Co., 875 F.2d 468, 472 (5 th Cir. 1989)(grabbing breasts and directing high pressure hose at crotch); Hall v. Gus Construction Co. Inc., 842 F.2d 1010, 1012 (8 th Cir. 1988)(rubbing thighs and grabbing breasts); Bohen v. City of East Chicago, 799 F.2d 1180, 1182 (7 th Cir. 1986)(pressing hands against crotch); Jones v. Wesco Invs., 846 F.2d 1154, 1155 (8 th Cir. 1984)(touching breasts, pinching and patting buttocks). Rene v. MGM Grand Hotel, 305 F.3d 1061, 1065 (9 th Cir. 2002) cert. denied, 2003 U.S. LEXIS In a fair housing case in this circuit, one court has held, [t]here are few clearer examples of classic sexual harassment than an unpermitted, allegedly intentional sexual touching. Under no circumstances should a woman have to risk further physical jeopardy simply to state a claim for relief under Title VIII. Beliveau v. Caras, 873 F.Supp (C.D. Cal. 1995). The conduct in this case fits squarely into the range of conduct found actionable in the above cases. 15

16 The perpetrator grabbed plaintiff s breast and forced her hand onto his crotch. (ER 21 at 22). Additionally, plaintiff was aware that two other women at the complex had been similarly sexually assaulted by the same male co-tenant and that defendants had neither investigated nor attempted to end the harassment. (ER 39 at 109; ER 47 at 35; ER 19 at 8; 20 at 15). Plaintiff s awareness of the other two assaults added to the hostility of her living environment. Evidence of the harassment of women other than [plaintiff], if part of a pervasive or continuing pattern of conduct, was surely relevant to show the existence of a hostile environment [at plaintiff s workplace] and could have been found probative of the company s notice of that environment. Perry v. Ethan Allen, 115 F.3d 143, 151 (2d Cir. 1997); Honce, 1 F.3d at 1090 ( Evidence of harassment of other female tenants is relevant to plaintiff s claim. ); see also Brooks v. City of San Mateo, 229 F.3d 917, 924 (9 th Cir. 2000). Considering all of the circumstances, a reasonable woman in plaintiff s position would have considered this living environment hostile. Plaintiff had to live in close proximity to the perpetrator for thirty-three days and nights knowing that his assault of her and his prior assaults of at least two other women had gone uninvestigated and unpunished and that defendants disbelieved her and wanted her 16

17 to keep her mouth shut. (ER 27, 38, 39, 44-45, 51). Plaintiff knew from the experiences of the first two victims that defendants would do nothing to stop the harassment, would try to intimidate her, and would support the perpetrator. (ER 39 at 109). Defendants failure to take immediate and effective corrective action allowed the effects of the sexual assaults to permeate plaintiff s living environment and alter it irrevocably. The district court concluded that [t]his isolated incident of inappropriate behavior was not sufficient to render Plaintiff s living environment hostile. (ER 76). This finding is not supported by the factual record which shows that defendants knew of at least three women sexually assaulted by the same male cotenant. (ER 53, 56, 21 at 25; 43 at 15; 44 at 24). But, even if it were, it is well established in this Circuit that a single incident of harassment... can support a claim of hostile work environment because the frequency of the discriminatory conduct is only one factor in the analysis. Little v. Windermere Relocation, Inc., 301 F.3d 958, 967 (9 th Cir 2001) quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)(noting that no single factor is required ). Conduct is actionable if it is either sufficiently severe or pervasive. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). Other circuits have agreed. See, e.g., Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2 nd Cir. 1995)( even a single incident of sexual assault 17

18 sufficiently alters the conditions of the victim s employment and clearly creates an abusive work environment for purposes of Title VII liability ); Guess v. Bethlehem Steel Corp., 913 F.2d 463, 464 (7 th Cir. 1990)(holding that single incident of sexual assault impliedly considered to create hostile environment). Courts in other circuits have also specifically found that [a] single instance of sexual harassment may create a hostile housing environment in violation of section 3604(b) of the Fair Housing Amendments Act. Szkoda v. Illinois Human Rights Commission, 706 N.E.2d 962 (Ill 1998), citing DiCenso, 96 F.3d at 1009 and Williams v. Poretsky Mgt., Inc., 955 F.Supp. 490, 498 (D.Md. 1996). This Court has recently addressed a single-incident hostile work environment claim. In Brooks v. City of San Mateo, a woman employee was sexually assaulted by a male co-employee who touched her breast. Brooks is instructive here because of this Court s reasoning and because of the key factual differences with the instant case. The court held that a single, first-time incident of sexual harassment between co-workers will rarely, if ever, give rise to a hostile environment claim because the employer will have had no advance notice and therefore cannot have sanctioned the harassment beforehand. And, if the employer takes appropriate corrective action, it will not have ratified the conduct. 229 F.3d at 924. In Brooks, the employer put the perpetrator on administrative leave the 18

19 next day. The court found that the employer met its duty to take prompt remedial action reasonably calculated to end the harassment. Id. In this case, the assault on plaintiff was not the first incident and defendants took no such appropriate action. Rather their actions and inactions added to the hostility of the environment at the Apartments and served to effectively condone the sexual assaults. The severity of the sexual assaults in this case coupled with defendants failure to take any steps to end the hostile environment created conditions that were severe and pervasive enough to alter plaintiff s use and enjoyment of her housing -- it forced her to flee her home after a month in which she was afraid to go outside alone, lost sleep, had trouble eating, cried a lot, worried about her safety and had frequent nightmares. (ER 27, 38 at 6-7). Not only were plaintiff s living conditions altered by the hostile environment, they were effectively destroyed. 4. Defendants Knew About the Harassment Plaintiff has produced direct evidence that defendants knew about all three of the sexual assaults by the perpetrator. All three women testified that they immediately told the on-site manager exactly what happened with regard to the assaults. (ER 53, 56, 21 at 25). There is a dispute among defendants about whether the on-site manager relayed this information to her supervisor. The on- 19

20 site manager says that she did so promptly on each occasion and that he told her to do nothing. (ER 44-45, 47). The supervisor claims that he was never told about the first two assaults and only found out about plaintiff s assault about twenty days after it occurred. (ER 51, 32 at 14). In either scenario, management knew about these allegations. See Swinton v. Potomac Corp., 270 F.3d 794, (9 th Cir. 2001)(For the purposes of proving that the defendant knew or should have known of the harassment, it is appropriate to impute this knowledge to a defendant employer if a management-level employee of the employer defendant knew or should have known that the harassment was occurring); see also, Ninth Circuit Model Jury Instruction 12.2C. (ER 67-68). Additionally, where there is conflicting testimony in the record relating to when management-level personnel became aware of harassment, this should be a factual question for the jury. Galdamez v. Potter, 415 F.3d 1015, 1026 n. 7 (9 th Cir. 2005). 5. Landlords Have a Duty to Take Prompt Effective Remedial Action Reasonably Calculated to End Harassment Between Co-Tenants if they Knew or Should Have Known About the Harassment The district court agreed that Title VII analysis controls in Title VIII cases, but went on to question whether Congress intended the Act to impose liability on a landlord for discrimination suffered by a tenant at the hands of another tenant. (ER 75). Plaintiff contends that Congress intended such harassment to be 20

21 actionable. The stated policy of the Fair Housing Act is to provide within constitutional limits, for fair housing throughout the United States. 42 U.S.C The FHA must be given a generous construction in order to carry out a policy that Congress considered to be of the highest priority. Trafficant v. Metropolitan Life Ins. Co. 409 U.S. 205, 211 (1972). None of the handful of reported decisions involving sexual harassment under the FHA involve tenant against tenant harassment. However, this Circuit s controlling case law on Title VII makes it clear that such claims are actionable. For the same reasons that sexual harassment between co-workers is actionable under Title VII, sexual harassment between co-tenants is actionable under Title VIII. 5 The fair housing case law that does exist suggests that landlords owe a duty to tenants analogous to that an employer owes employees. At least one circuit court has found that a claim against a landlord for failing to take remedial steps to end harassment between tenants based upon disability is actionable under the Fair Housing Act. Neudecker v. Boisclair Corp., 351 F.3d 361, 365 (8 th Cir. 2003). 5 Some commentators have argued that sexual harassment at home is even more damaging than harassment in the workplace, because there is nowhere for a victim to go to seek refuge from the harassing conduct. See, Regina Cahan, Home is No Haven: An Analysis of Sexual Harassment in Housing, 1987 Wis. L. Rev

22 Another court has held that condominium owners, like landlords, are responsible for maintaining the common areas and enforcing the regulations of the association for the benefit of the residents in determining that a homeowner may have an actionable FHA hostile environment claim against a condominium association for the harassment of another homeowner in the association. Reeves v. Carrollsburg Condominium Unit Owners, Assoc., 1997 U.S. Dist. LEXIS 21762, *25 (D.D.C. 1997). In Williams v. Poretsky Mgt., Inc., 955 F.Supp 490 (D.Md, 1996), a court in applying the FHA to a case where the porter of a building sexually groped a tenant, reasoned that [c]onduct is imputable to a landlord, if the landlord knew or should have known of the harassment, and took no effectual action to correct the situation. Id. at 496 (citation omitted). The law in Title VII is clear. Once an employer knows or should know of co-worker harassment, a remedial obligation kicks in. Nichols v. Azteca Restaurant Enterprises, 256 F.3d 864 (9 th Cir. 2001). The difference between those cases and cases where the perpetrator is a manager or supervisor is that the plaintiff must show that management has some level of culpability. Plaintiff must show that the defendant or a member of defendant s management knew or should have known of the harassment and failed to take prompt, effective remedial action reasonably calculated to end the harassment. Ninth Circuit Model Civil Jury 22

23 Instruction 12.2C (ER 67-68); Swinton, 270 F.3d at (9 th Cir. 2001). The reasonableness of such remedial measures depends upon the employer s [or landlord s] ability to stop the harassment and to deter future harassment, as well as the promptness of the response. Galdamez, 415 F.3d 1015 (9th Cir. 2005)(analysis of co-worker against co-worker harassment extends to cases of customer against employee harassment). Whether or not an employer has taken prompt remedial action aimed at ending the harassment is commonly an issue of fact that could be resolved either way. Id. at But, in general, If the employer fails to take corrective action after learning of an employee s sexually harassing conduct, or takes inadequate action that emboldens the harasser to continue his misconduct, the employer can be deemed to have adopted the offending conduct and its results, quite as if they had been authorized affirmatively as the employer s policy. Swenson v. Potter, 271 F.3d 1184, 1192 (9 th Cir. 2001) quoting Faragher v. City of Boca Raton, 524 U.S. 775, 789 (1998). At a minimum, this duty requires a prompt investigation of the allegations along with temporary steps the employer takes to deal with the situation while it determines whether the complaint is justified. Swenson, 271 F.3d at As this Court reasoned in Swenson, The most significant immediate measure an employer can take in response to a sexual harassment complaint is to launch a prompt investigation to determine whether the complaint is justified. An investigation is a key step in the employer s 23

24 response, * * * and can itself be a powerful factor in deterring future harassment. By opening a sexual harassment investigation, the employer puts all employees on notice that it takes such allegations seriously and will not tolerate harassment in the workplace. An investigation is a warning, not by words but by action. Id. at 1193 (citation omitted). While an investigation is required, it is equally clear that, by itself, it is not enough. The investigation must be made in good faith and the employer must then promptly act to take permanent remedial steps once it has completed its investigation. Id. at ; Fuller, 47 F.3d at 1528; Ellison v. Brady, 924 F.2d at 882. For the same policy reasons, this analysis should be applied to housing cases. If a landlord knows that a male tenant is repeatedly sexually assaulting female co-tenants, it has a duty to take prompt remedial action reasonably calculated to stop the harassment. The duty begins with an investigation of the allegations. The response that follows from the investigation will vary from case to case, but must be aimed at promptly ending the harassment. This duty is clearly within a landlord s ability to perform given their power to control the common areas and to evict tenants for threatening other tenants or for interfering with another tenant s quiet enjoyment of the premises. The lease between the parties clearly gave defendants such authority in this case. (ER at 63-24

25 66). The lease states that the defendants shall retain control over any and all common areas, and that tenants will behave in a manner that will not disturb the peaceful enjoyment of others. The landlord can terminate the tenancy for any reason with 30 days written notice and for any outrageous act including illegal activity may issue a 24 hour notice to terminate. (ER at at 6,9,12,15) 6. A landlord cannot sit idly by while an environment that is hostile for women continues on their property simply because they themselves are not committing the sexual assaults. Further, the duty of a landlord to operate its property free from discrimination is nondelegable. Pfiffer v. Proud Parrot Motor Hotel, 648 F.2d 548, 552 (9 th Cir 1980). Defendants argument that they, as landlords, had no duty and no authority to control the behavior of their tenants, is not supported by the law or the factual record in this case. 6. Defendants Failed to Take Prompt Remedial Action Reasonably 6 Even if the lease between the parties had not explicitly given defendants this authority, they would otherwise have had it under Oregon law. ORS allows a landlord to terminate a month-to-month tenancy without cause. ORS allows a landlord to terminate a tenancy for a variety of causes including noncompliance with the rental agreement and outrageous behavior. ORS gives the landlord authority to make use and occupancy rules to promote the safety or welfare of the tenants. ORS (9) requires all tenants to behave in a manner that will not disturb the peaceful enjoyment of the premises by neighbors. 25

26 Calculated to End the Harassment The district court made several inappropriate credibility determinations in finding that the allegations of the first two victims did not warrant investigation (ER 76-77). See Plaintiff s Objections (ER 88-92). The court, in supporting it s conclusion, simply disbelieved the first two victims testimony that they were assaulted and that they told the on-site manager, promptly and in no uncertain terms, that they had been assaulted. (ER 53, 56-57). Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor. Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). Despite this standard, and admissions by defendants that they took no steps to investigate or end the harassment at the Apartments, the District Court found that defendants had responded appropriately to the allegations of sexual assault. The evidence, viewed in the light most favorable to plaintiff, establishes exactly the opposite. The district court s finding that defendants took appropriate steps to end the harassment in this case is particularly puzzling in light of the admissions of the defendants that they did nothing to investigate or end the 26

27 harassment. Defendant Reyes testified that she was repeatedly told by her supervisor to do nothing in response to these complaints. (ER 44-45). Henniger denies knowing about any of the assaults until twenty days after plaintiff was assaulted and admitted at his deposition on October 11, 2004, nineteen months after Reyes was told of the first assault, that no action was taken to investigate the allegations against the perpetrator at any time. (ER 51). The defendants in this case argued not that they had taken prompt remedial action to end the harassment, but rather that they had no duty to do so. (ER 16). The district court, nonetheless, found that the defendants somehow successfully ended the current harassment and facilitated the investigation of the harassment by the police, which clearly deterred any future harassment. (ER 78). This finding simply is not supported by the record. Nonetheless, the district court s incorrect finding that the harassment was successfully ended should not have ended its inquiry. In determining whether a landlord s response to the harassment is sufficient to absolve it from liability, the fact that the harassment stops is only a test for measuring the efficacy of a remedy, not a way of excusing the obligation of a remedy. Fuller, 47 F.3d at [W]hen the employer undertakes no remedy, or where the remedy does not end the harassment and deter future harassment, liability attaches for both the past 27

28 harassment and any future harassment. Nichols, 256 F.3d at Inaction constitutes a ratification of past harassment, even if such harassment independently ceases. McGinest v. GTE Services Corp., 360 F.3d 1103, 1121 (9 th Cir. 2004). In McGinest, this Court held, in a case involving racist graffiti in a workplace bathroom, GTE took no action to send a message that such graffiti was intolerable. * * * GTE could have heavily emphasized to all employees that serious punishment would result if the perpetrators of this or future incidents were caught, underlining the fact that such behavior was neither tolerated or condoned. Id. at 1121, n.14. On the record before this Court, defendants did none of the things they were required by law to do. Further, defendants response to the three sexual assault allegations was worse than undertaking no remedy. They affirmatively discouraged the victims from telling anyone about the harassment. (ER 53, 59). Defendants subsequent actions and inactions reinforced rather than remediated the harassment. In plaintiff s own words, what happened with Jose was horrible and everything, but what they did to me was worse. They made me feel it was my fault, that I was a horrible person because I was trying to stand up for myself and other people. That s what, for me, what most of this is about, because women are supposed to be able to stand up for ourselves. It was a wrong thing to happen and for me to have to move and feel horrible and unsafe. If they didn t know how to 28

29 handle it, they should ve asked how to handle it or something. What they did is worse than what he did. He s like, a creep and a pervert. They re covering for him. Now he thinks it s okay because nothing happened to him. (ER 39). If defendants had taken even minimally appropriate steps, plaintiff quite likely would never have been assaulted. If they had addressed the harassment after her assault, she would not have had to suffer the hostile environment at the Apartments for thirty three days and would not have, along with the other two known victims, had to leave her home. Plaintiff has raised genuine issues of material fact as to whether defendants actions, or inactions, subsequent to the three sexual assaults were prompt effective remedial actions reasonably calculated to end the harassment. 7. The Sexual Assaults in this Case Constitute Discrimination Based Upon Sex While not addressed by the district court, plaintiff has presented sufficient evidence that the hostile environment at the Apartments was based upon sex. There is nothing in the record to suggest that men were subject to a hostile environment. The perpetrator grabbed or attempted to grab the breasts of Vasseli, Moran and plaintiff, a sexual body part unique to women. (ER 53, 56, 21 at 22). Such harassment grabbing, poking, rubbing or mouthing areas of the body 29

30 linked to sexuality is inescapably because of sex. Rene, 305 F.3d at 1066 (9 th Cir. 2002). A male tenant who serially gropes female co-tenants creates a sexually hostile living environment. A landlord s failure to take actions reasonably calculated to end that harassment constitutes sex discrimination under the Fair Housing Act. B. The District Court Erred in Granting Summary Judgment Against Plaintiff on her Fair Housing Interference Claim. 1. Reviewability and Standard of Review The district court granted summary judgment to defendants on plaintiffs 3617 interference claim. (ER 78-80, 99). This Court reviews the grant of summary judgment de novo. Harris v. Itzhaki, 183 F.3d 1043, 1050 (9 th Cir. 1999). 2. Genuine Issues of Material Fact Remain As to Whether Defendants Coerced, Intimidated or Threatened Plaintiff In the Enjoyment or Exercise of Her Rights Under the Fair Housing Act 42 U.S.C provides: It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of any right granted or protected by... this title. To establish a claim under 3617, plaintiff must demonstrate that (1) she engaged in activity protected under the Fair Housing Act, (2) that the defendants subjected plaintiff to an adverse action in the form of 30

31 coercion, intimidation, threats or interference, and (3) that there was a causal connection between this adverse action and plaintiff s protected activity. Walker v. City of Lakewood, 272 F.3d 1114, 1128 (9 th Cir. 2001), cert. denied, 535 US 1017 (2002)); See also San Pedro Hotel Co. v. City of Los Angeles, 159 F.3d 470, 477 (9 th Cir. 1998). This Court has defined interference as the act of meddling in or hampering an activity or process. Walker, 272 F.3d at 1129 (9 th Cir. 2001)(quoting Webster s Third New Int l Dict.). The addition of the word interfere to the words coerce, intimidate, and threaten indicates that Congress sought to reach a relatively broad range of conduct. As this Court has explained, the use of the word interference by Congress in 3617, in particular, has been broadly applied to reach all practices which have the effect of interfering with the exercise of rights under the federal fair housing laws. Walker, 272 F.3d at 1129, citing United States v. Hayward, 36 F.3d 832, 835 (9 th Cir. 1994). Plaintiff was engaging in a right protected by the Fair Housing Act when she complained to defendants that she had been sexually assaulted, that she felt unsafe, and that she wanted defendants to do something about it. 42 U.S.C is implicated by a landlord s response to such an exercise of rights. As long as a landlord does not interfere with, threaten, coerce or intimidate a tenant following 31

32 such an exercise of fair housing rights, 3617 is not implicated. Had the defendants in this case simply done nothing in response to plaintiff s complaint, plaintiff would only have a hostile sexual environment claim, not an interference claim. This makes sense as a policy matter. Section 3617 is designed to prohibit conduct that discourages the reporting of fair housing allegations. When a landlord interferes with a tenant making a fair housing complaint, it chills that protected conduct. Such interfering conduct thwarts the Congressional purpose to provide within constitutional limits, for fair housing throughout the United States. 42 U.S.C Section 3617 is clearly implicated in this case. Through a series of statements and actions that rose to the level of intimidation, defendants interfered with plaintiff s right to engage in activity protected under the FHA in an effort to keep her quiet about the harassment at the Apartments. When plaintiff reported the incident to the on-site manager, the manager warned her not to go to the police, told plaintiff not to tell anyone what had happened to her and said that if she did tell anyone it would hurt or break up the perpetrator s family. (ER 38, at 25, 26). Additionally, the manager told plaintiff that nobody would believe her if she told anyone about what had happened. (ER 38). Following her complaint of 32

33 sexual assault, plaintiff s relationship with the on-site manager changed from friendly to one that was no longer civil. (ER 24-25). Plaintiff testified that the change in the manager s attitude toward her was like Dr. Jekyll and Mr. Hyde. (ER 39). When plaintiff asked her for the last name of the perpetrator in order to make a police report, the manager refused to provide it to her. (ER 59). Later, once plaintiff had filed a police report, the manager told the perpetrator s adult sons and grandsons about plaintiff s report. (ER 59). This report was intended to intimidate plaintiff and served no investigative function. (ER 59). Because of the manager s actions, plaintiff felt threatened and became increasingly afraid of retaliation at the Apartments. (ER 38, 59). This conduct can only be described as intimidation. When plaintiff told the on-site manager s supervisor, defendant Henniger, that she had been forced to move because nothing had been done about the perpetrator at the apartment complex, he responded by telling plaintiff that she was a liar, that no one would believe someone like her and that he knew what kind of girl she was. (ER 59). He then told plaintiff that her report did not matter because the other girls had already signed papers saying that nothing had happened to them, and that it wouldn t do plaintiff any good to speak to a lawyer. (ER 59). While certainly interference, this conduct also constitutes intimidation. 33

34 This misleading and intimidating statement by defendant Henniger made plaintiff upset to the point that she cried a lot, discouraged her, and made her feel like not pursuing her fair housing rights. (ER 59). 7 Rather than take steps to stop further harassment or assault at the apartment complex, the only steps defendants took were meant to discourage plaintiff, intimidate her and interfere with her exercise of her rights. Similar interference by defendants was effective enough to dissuade both prior victims from asserting their rights under the FHA. Instead, both simply moved out of the apartment complex. (ER 53-54, 57). The district court found that defendants actions in response to plaintiff s complaints of sexual harassment, while possibly hurtful, did not amount to adverse or retaliatory actions under 42 U.S.C (ER 79). The court also incorrectly found that the defendants advised plaintiff to report the incident to the police. (ER 79, at 30, 31). Finally, the court concluded that defendants actions were not retaliatory under any stretch of the imagination. (ER 79). In reaching these 7 In reality, both prior victims had not repudiated their sexual assault allegations against the perpetrator. The second victim signed a statement generated by the on-site manager stating that the perpetrator was a good person after being pressured by defendant Reyes. (ER 57). The first victim has never repudiated the abuse. 34

35 conclusions, the district court omitted several essential disputed facts contained in the record material to the interference claim, construed facts in the favor of the defendants rather than the plaintiff, found facts not in the record and misinterpreted the legal standard set forth under a 3617 claim. (ER 92-93). The district court referred repeatedly to retaliation, a word not found in 3617 of the Fair Housing Act. Section 3617 makes it unlawful for defendants to coerce, intimidate, threaten, or interfere. While defendants actions in this case could certainly be viewed as retaliatory, under 3617, it is unlawful for a landlord to merely interfere with a tenant s exercise or enjoyment of a right protected by the Act. Plaintiff exercised her right to complain about a sexually hostile environment. Defendants interfered with that exercise by telling her to keep her mouth shut, that she was a liar, that no one would believe her, that she would harm the perpetrator s family and that it would do no good to contact an attorney because prior victims had signed statements stating that nothing had happened to them. (ER 38, 59). Plaintiff has produced sufficient evidence for a reasonable juror to decide that the defendants interfered with and intimidated her with regard to her exercise and enjoyment of fair housing rights. There are genuine issues of material fact as to whether defendants engaged in actions prohibited by