Grieger v. Sheets

• Decision Date: 21 June 1988
• Docket Number: No. 87 C 6567.,87 C 6567.
• Citation: 689 F. Supp. 835
• Parties: Gina GRIEGER and Ezekiel Carter, Annette Hicks, Sharon Humphres, Regina Parks and Deborah McLien, Plaintiffs, v. Walter SHEETS, Defendant.
• Court: U.S. District Court — Northern District of Illinois

689 F. Supp. 835

Gina GRIEGER and Ezekiel Carter, Annette Hicks, Sharon Humphres, Regina Parks and Deborah McLien, Plaintiffs, v. Walter SHEETS, Defendant.

No. 87 C 6567.

United States District Court, N.D. Illinois, E.D.

June 21, 1988.

F. Willis Caruso, Michael Kalven, Leadership Council for Metropolitan Open Communities, Michael J. Mueller, Elizabeth Shuman-Moore, Keck Mahin & Cate, Chicago, Ill., for plaintiffs.

David A. Axelrod, Kenneth A. Dean, Feiwell Galper & Lasky, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Plaintiffs Gina Grieger and Ezekial Carter have filed this action against defendant Walter Sheets for sexual harassment in alleging violation of Title VIII of the Civil Rights Act of 1968, the Fair Housing Act, 42 U.S.C. § 3601-3631 (West Supp.1988).¹ Currently before the Court is Sheet's motion to dismiss Count I for lack of subject matter jurisdiction, statute of limitations violations and failure to state a claim upon which relief can be granted. Fed.Civ.P. 12(b)(2) and 12(b)(6). For the reasons noted below, we deny the motion.

I.

The following facts are taken from Count I of the complaint.² Count I refers only to plaintiffs Grieger and Carter. Grieger and Carter, who are married with two children, began renting a house in Beach Park, Illinois, that was owned and managed by Sheets on December 1, 1986. At the inception of their rental agreement, Sheets told Grieger that the house needed repairs and that he would perform them after she signed the lease. Approximately two weeks into the tenancy, on December 17, 1986, Sheets demanded "sexual favors" from her and told her that compliance with his demands was a condition to her continued tenancy and to his performance of repairs. Requests for sexual favors were neither solicited nor desired by Grieger. The complaint alleges that these demands are "continuing to the present."

Because Grieger refused Sheets' demands, he has harassed and intimidated Grieger and Carter. This harassment and intimidation has included threatening to shoot Carter, not doing the repairs on the house, damaging Carter and Grieger's property, advising Grieger that the lease would not be renewed and forcing Grieger and Carter to get rid of their dog.

II.

Sheets challenges Count I of the complaint on three grounds. First, he contends that the claim was untimely filed in federal court. Second, that the claim cannot be heard in federal court as plaintiffs have elected an administrative remedy under 42 U.S.C. § 3610. Finally, Sheets contends that Count I should be dismissed in part for failure to state a claim under 42 U.S.C. § 3617.

A.

Sheets first moves to dismiss Count I on the grounds that Grieger and Carter have failed to file their complaint within the applicable statutes of limitation, 42 U.S. C. § 3612(a). That section states that "the rights granted by sections 3603, 3604, 3605 and 3606 of this title may be enforced by civil actions in appropriate United States district courts without regard to the amount in controversy and in appropriate State or local courts of general jurisdiction. A civil action shall be commenced within one hundred and eighty days after the alleged discriminatory housing practice occurred...." 42 U.S.C. § 3612(a).

In this case the complaint alleges "beginning on or about December 17, 1986, and continuing to the present, defendant has demanded sexual favors from plaintiff Gina Grieger and told her that compliance with such demands is a condition to her continued tenancy of the house and to his performance of repairs." (Amended Complaint ¶ 7) (emphasis added). The complaint in this action was filed on July 24, 1987, 216 days after December 17, 1986, the date the alleged harassment began. However, in Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982), the Supreme Court recognized that acts of discrimination can be continuing in nature and that the 180 day limitations period of 42 U.S.C. § 3612(a) is met when a claim is filed within 180 days of the last occurrence of the discriminatory act. Id. at 380-81, 102 S.Ct. at 1125. Because this is a motion to dismiss, we can only dismiss the complaint for failure to file within the limitation period if the facts supporting that defense appear on the face of the complaint. 5 C. Wright & A. Miller, Federal Practice and Procedure § 1357 (1969).³ We find that plaintiffs' allegation that the harassment has continued to the present adequately alleges that the complaint was filed with the limitation period. Accordingly, Sheets' motion to dismiss for failing to comply with the statute of limitations is denied.⁴

B.

On January 14, 1987, Grieger filed a complaint with the Department of Housing and Urban Development's ("HUD") regional office in Chicago. She charged Sheets with threatening to evict her and stop repairs if she did not go to bed with him once a month. HUD forwarded the complaint to Sheets with a standard cover letter asking for a response and explaining HUD's role in reaching an amicable settlement to the charge.

Sheets contends that Grieger's filing of this administrative claim with HUD is an election of remedies that precludes federal court jurisdiction under 42 U.S.C. § 3612(a).⁵ Sheets contends that when a complaint is filed with HUD pursuant to 42 U.S.C. § 3610(a),⁶ another section, 3610(d), then prohibits an action from being "brought in any United States district court if the person aggrieved has a judicial remedy under a State or local fair housing law which provides rights and remedies for alleged discriminatory housing practices which are substantially equivalent to the rights and remedies provided in this title. 42 U.S.C. § 3610(d).⁷ Sheets concludes that because Illinois has a fair housing law Grieger is bound by her election of remedies and must proceed in state court.⁸

Initially, we observe that the Supreme Court has held that § 3610 and § 3612 are separate and independent enforcement mechanisms. There is no requirement that plaintiffs first must pursue the administrative remedy set out in § 3610 before bringing a civil action under § 3612. Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 103-04, 99 S.Ct. 1601, 1609-10, 60 L.Ed.2d 66 (1979). The question Sheets raises is that, although Grieger could have foregone the administrative path set out in § 3610 and filed directly under § 3612, was her decision to initiate the administrative remedies in § 3610, an election of remedies which now precludes an independent civil suit under § 3612? We do not think so.

First, the only authority Sheets cites in support of his position supports the position of Grieger. In Stingley v. City of Lincoln Park, 429 F.Supp. 1379 (E.D.Mich. 1977), the court sua sponte raised the issue of whether it had jurisdiction to hear plaintiff's housing discrimination complaint. The court noted that, because plaintiff "elected" to proceed under § 3610, she could not file a lawsuit in federal court upon the conclusion of the administrative process because she had a judicial remedy under Michigan law. Id. at 1390. Accordingly, the court concluded that it did not have jurisdiction to hear her complaint under § 3610 because she had to go to state court. The court next, however, considered plaintiff's argument that the federal court could still retain jurisdiction but only under § 3612. The court correctly observed, as Gladstone eventually concluded, that "Title VIII appears to provide an alternate course of action for aggrieved parties, and that is they may institute civil actions in the United States District Courts without regard to first filing administrative complaints. Section 3612 of the Act provides that an action may be commenced in an appropriate United States District Court within one hundred and eighty (180) days after the alleged discriminatory housing practice occurred." Id. In concluding that the plaintiff's cause, however, was still not saved by § 3612, the court found that plaintiff had missed the 180-day deadline under § 3612 when she filed her complaint. "The alleged discriminatory housing practice in this case occurred on June 7, 1973. Litigation was not commenced until September 18, 1974, a period of time considerably in excess of the one hundred and eighty (180) day provision in the statute." Id. The court further concluded that plaintiff could not save her case by trying to find a continuing violation.

Thus, contrary to Sheet's position, the court rejected plaintiff's attempt to file under § 3612 only because she missed the 180-day statute of limitations, not because she had previously filed under § 3610. Nor could the court's discussion of the 180-day limitation in § 3612 appear to be an "alternate" holding. There is no language in the opinion which would so indicate such as "even if plaintiff were not precluded from filing under § 3612 because of her election to pursue the administrative remedies in § 3610, we would still reject her claim as untimely, because it was filed over 180 days after the alleged discriminatory practice occurred." Because of the absence of such alternate language, we conclude that Stingley actually supports Grieger's position because the Court in Stingley did not need to address the issue of plaintiff's failure to file within 180 days under § 3612 if she was precluded from filing in the first place because she had already pursued administrative remedies under § 3610.

We are also persuaded in our conclusion that § 3612 and § 3610 provide "dual" contemporaneous remedies by the Gladstone court's affirmative citation to Johnson v. Decker, 333 F.Supp. 88, 90-92 (N.D.Cal.1971) (cited at Gladstone, 441 U.S. at 108, 99 S.Ct. at 1612). Johnson considered and rejected the precise argument Sheets sets forth today. The court in Johnson concluded that § 3612 and § 3610 are dual remedies, and the initiation of the administrative procedure under § 3610 does not prevent a contemporaneous filing of a...