Honce v. Vigil, 92-2074

Citation1 F.3d 1085
Decision Date02 August 1993
Docket NumberNo. 92-2074,92-2074
CourtU.S. Court of Appeals — Tenth Circuit
PartiesElizabeth A. HONCE, Plaintiff-Appellant, v. Jose A. VIGIL, d/b/a Dorado Investments, Inc., a/k/a Villa Chaparral Mobile Home Sub-Division; Dorado Investments, Inc., Defendants-Appellees.

Marcia D. Greenberger, National Women's Law Center, Washington, DC (Richard J. Rubin and Carol Oppenheimer, Santa Fe, NM, with her on the brief) for plaintiff-appellant.

Paul J. Kennedy, Albuquerque, NM, for defendant-appellee.

Before SEYMOUR and KELLY, Circuit Judges, and LEONARD, District Judge. d

PAUL KELLY, Jr., Circuit Judge.

Plaintiff-appellant Elizabeth A. Honce appeals the dismissal of her Fair Housing Act suit. See 42 U.S.C. Sec. 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. Sec. 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 sheriff's 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 sheriff's 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 Plaintiff's 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 sheriff's 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. Sec. 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 cases 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 case 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 plaintiff's application, continued to seek applicants with qualifications similar to plaintiff's. 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.

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