Linkletter v. W. & S. Fin. Grp., Inc.

• Citation: 851 F.3d 632
• Decision Date: 23 March 2017
• Docket Number: No. 16-3265,16-3265
• Parties: Gayle LINKLETTER, Plaintiff-Appellant, v. WESTERN & SOUTHERN FINANCIAL GROUP, INC.; Kim Chiodi, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

851 F.3d 632

Gayle LINKLETTER, Plaintiff-Appellant,

v.WESTERN & SOUTHERN FINANCIAL GROUP, INC.; Kim Chiodi, Defendants-Appellees.

No. 16-3265

United States Court of Appeals, Sixth Circuit.

Argued: January 24, 2017

Decided and Filed: March 23, 2017

Rehearing En Banc Denied May 16, 2017

ARGUED: Ted L. Wills, Cincinnati, Ohio, for Appellant. Deborah S. Adams, FROST BROWN TODD LLC, Cincinnati, Ohio, for Appellees. ON BRIEF: Ted L. Wills, Cincinnati, Ohio, Jennifer L. Branch, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, for Appellant. Deborah S. Adams, Neal Shah, FROST BROWN TODD LLC, Cincinnati, Ohio, for Appellees.

Before: MERRITT, CLAY, and DONALD, Circuit Judges.

OPINION

MERRITT, Circuit Judge.

In this Fair Housing Act case that was dismissed for failure to state a valid claim, the plaintiff, Gayle Linkletter, signed an online petition supporting a Cincinnati women's shelter, the Anna Louise Inn, after she had accepted a position with the defendant, Western & Southern. Western & Southern rescinded its employment agreement with Linkletter because she signed the petition while the company was engaged in a lengthy real estate dispute with the women's shelter over its location in the neighborhood. Residents of the shelter had previously sued Western & Southern in federal court under the Fair Housing Act, particularly 42 U.S.C. § 3617. As a result of that earlier litigation, Western & Southern reached a settlement with the shelter and purchased the property. After Linkletter's employment contract was rescinded she sued Western & Southern and its employee, Kim Chiodi, under § 3617 and the state analog in the Ohio Civil Rights Act. Section 3617 states in the part relevant to this case as follows:

It shall be unlawful to ... interfere with any person ... on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section 3603, 3604, 3605, or 3606 of this title.

42 U.S.C. § 3617.¹ Specifically, Linkletter claims her petition-signing encouraged the residents of the women's shelter in their rights granted by § 3604, involving discrimination in the rental or sale of housing:

[I]t shall be unlawful ... (a) To refuse to sell or rent ... or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of ... sex.... (b) To discriminate ... in the provision of services or facilities in connection therewith, because of ... sex.... (c) To make, print, or publish ... any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on ... sex.... (d) To represent to any person because of ... sex ... that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.... (e) For profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular ... sex....

42 U.S.C. § 3604(a) –(e).

We conclude that Linkletter presents a plausible claim for relief. Taking the facts in a light most favorable to the non-moving party, Linkletter's petition-signing supporting the shelter fits within the meaning of the phrase "aided or encouraged" and the defendants' rescission of their employment agreement constitutes an "interference" with that encouragement. Accordingly, the district court was in error when it granted the defendants' motion to dismiss, and we reverse the judgment.

I. Background

Western & Southern Financial Group, Inc. is an insurance company located in the Lytle Park neighborhood of Cincinnati, Ohio. Between 1997 and 2006, Linkletter worked as an employee of Western & Southern. The parties ended the first employment relationship amicably. In May 2014, Linkletter's former colleague at Western & Southern contacted her about a job opportunity at the company as a Senior Corporate Communications specialist. After several interviews, Linkletter accepted the position.

On September 8, 2014, before Linkletter began working, Western & Southern's Senior Vice President of Human Resources, Kim Chiodi, called Linkletter to notify her that Western & Southern had rescinded the employment offer. Linkletter claims that Chiodi justified the rescission due to Linkletter having taken "a position that was contrary to Western & Southern." Specifically, Chiodi mentioned Linkletter's support for the Anna Louise Inn.

Western & Southern had been in a controversial real estate dispute with the Anna Louise Inn women's shelter since 2011. See Cooper v. Western & Southern Financial Group, Inc. , 847 F.Supp.2d 1031, 1032–33 (S.D. Ohio 2012). The shelter, whose mission is "to provide women with safe, decent, and affordable housing, without regard to their economic condition, race, or lack of employment," was located in Lytle Park, the same neighborhood as Western & Southern. Id. at 1033. The residents of the shelter accused Western & Southern of violating the Fair Housing Act and the Ohio Civil Rights Act by attempting to illegally pressure them out of the neighborhood. The presence of the shelter interfered with Western & Southern's "master plan for [that] end of town," and the company was frustrated in attempting to buy the land where the shelter stood. In December 2010, the president of the company that controls Western & Southern's real estate holdings sent a letter to Cincinnati's mayor, arguing that the shelter was "not appropriate for the Lytle Park neighborhood" and objecting to "85 low-income permanent housing units for women" and "housing for up to 25 recovering prostitutes."

After the shelter refused to sell, Western & Southern engaged in a campaign to force a sale of the property and get the Anna Louise Inn out of the neighborhood, and the shelter's residents sued. When Western & Southern filed a motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6), the district court denied the motion, stating that the residents had sufficiently pled the elements of a § 3617 claim. Cooper , 847 F.Supp.2d at 1040. In its decision, the district court cited allegations that Western & Southern pursued frivolous appeals of zoning decisions affecting the renovation of the Inn, photographed residents of the shelter without their permission, and falsely accused residents of engaging in criminal activity and other inappropriate behavior. Id. at 1039. The court found that "[t]hese actions could be construed as intimidating, harassing, and threatening to the residents of the Inn.... In addition, plaintiffs allege facts that, if accepted as true, are sufficient to support a finding that Western & Southern has exercised its powers with a discriminatory animus." Id . The parties eventually reached a settlement in which Western & Southern bought the property and removed the shelter from the Lytle Park neighborhood, and the suit was dismissed.

On February 21, 2012, while the dispute between the shelter and Western & Southern was ongoing, Linkletter signed a petition expressing support for the shelter. The petition was titled, "The Anna Louise Inn has my Support!" and the text stated, "I support the mission of the Anna Louise Inn, which has provided safe and affordable housing for women for 102 years in its current location." As a signor, Linkletter also stated that she appreciated "that women in Cincinnati have an option for permanent supportive housing," and that "[the] Anna Louise Inn should remain where it is and continue its mission of providing safe and affordable housing for single women." The Inn posted the petition online with the names of the signors, including Linkletter.

After the termination of her employment contract in 2014, Linkletter sued Western & Southern and its employee, Kim Chiodi. At the district court, Linkletter claimed that the rescission of her contract in response to her supporting the housing rights of the Inn's female residents violated § 3617 of the Fair Housing Act.² Linkletter argued that by rescinding the contract, the defendants interfered with her employment because she encouraged the women of the Anna Louise Inn in the exercise of their rights under §§ 3603–06. Specifically Linkletter claimed she encouraged the rights in § 3604(a) –(e) pertaining to anti-discrimination in the rental or sale of housing. 42 U.S.C. § 3604. The provision Linkletter sued under, Section 3617, protects individuals who "aided or encouraged" the rights protected by § 3604. 42 U.S.C. § 3617.

The defendants moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). The district court granted the motion, finding that Linkletter did not state a claim for relief. Without engaging in a trial or a fact-finding process, the district court agreed with the defendants that Linkletter did not "aid or encourage" the women of the Anna Louise Inn as contemplated by the statute, that the housing rights protected by § 3604 were not at issue, and that the defendants as "non-houser employers" did not fall within the scope of the statute.

The district court also dismissed Linkletter's Ohio Civil Rights Act claims under O.R.C. § 4112.02(H)(12) and O.R.C. § 4112.02(I). The language in O.R.C. § 4112.02(H)(12) is nearly identical to the federal statute, and the district court dismissed the § 4112.02(H)(12) claim for the same reasons it articulated while analyzing the federal Fair Housing Act. The district court's dismissal of Linkletter's claim under O.R.C. § 4112.02(I) appears in a footnote, holding that Linkletter never established she engaged in activity protected under the statute. See Linkletter v. Western & Southern Financial Group, Inc. , No. 1:15-cv-162, 2016 WL 659136 at *n.7 (S.D. Ohio Feb. 18, 2016).

Linkletter now appeals, demanding damages, reinstatement to employment with Western & Southern, and a declaration that Western & Southern utilized an illegal employment screening practice by...