DiCenso v. Cisneros

• Decision Date: 23 September 1996
• Docket Number: No. 95-2940,95-2940
• Citation: 96 F.3d 1004
• Parties: 144 A.L.R. Fed. 793, 65 USLW 2231 Albert DiCENSO, Petitioner, v. Henry G. CISNEROS, Secretary of the United States Department of Housing and Urban Development, and Christina L. Brown, Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1004

96 F.3d 1004

144 A.L.R. Fed. 793, 65 USLW 2231

Albert DiCENSO, Petitioner, v. Henry G. CISNEROS, Secretary of the United States Department

of Housing and Urban Development, and Christina L.

Brown, Respondents.

No. 95-2940.

United States Court of Appeals, Seventh Circuit.

Argued April 18, 1996.

Decided Sept. 23, 1996.

James P. Baker (argued), Springfield, IL, for Petitioner.

Thomas E. Chandler (argued), Jessica Dunsay Silver, Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, Harry L. Carey, Nelson Diaz, Department of Housing and Urban Development, Washington, DC, for Respondent.

Christina L. Brown, Decatur, IL, pro se.

Before BAUER, ESCHBACH, and FLAUM, Circuit Judges.

BAUER, Circuit Judge.

This case raises the question of whether one incident of harassment was sufficiently egregious to create a hostile environment sex discrimination cause of action under the Fair Housing Act, 42 U.S.C. § 3601 et seq. An Administrative Law Judge ("ALJ") thought it was not, but the Housing and Urban Development ("HUD" or "the Department") Secretary's Designee disagreed, and remanded the case to the ALJ for a determination of damages. On remand, the ALJ awarded Christina Brown $5,000 in compensatory damages, assessed a $5,000 civil penalty, and entered injunctive relief. The landlord who committed the harassment now seeks relief from the Secretary's Order. We reverse.

Background

The events of this lawsuit arose in the context of Christina Brown's tenancy at 522 1/2 West Allen Street in Springfield, Illinois. Brown, who at the time was 18 years old, lived in one of the four apartment units with Thomas Andrews and their infant daughter Sara. Beginning in June 1990, they leased the apartment from Albert DiCenso, who owned and managed the building, did most of the cleaning and maintenance, and collected the rents.

Brown and Andrews signed a six-month lease with an option for six more months. During the first few months a family friend stayed with them, and their rent was $300 per month. When the friend moved out in September, DiCenso reduced the rent to $275 per month. At first, Brown and her co-tenants delivered the rent checks to DiCenso's home, but eventually, DiCenso started going to the apartment to collect the payments.

Sometime in mid-October or early November, DiCenso came to Brown's apartment to collect the rent. According to the ALJ's findings, the following exchange took place:

While [Brown] stood at the door, [DiCenso] asked about the rent and simultaneously began caressing her arm and back. He said to her words to the effect that if she could not pay the rent, she could take care of it in other ways. [Brown] slammed the door in his face. [DiCenso] stood outside calling her names--a "bitch" and "whore," and then left.

On January 15, 1991, DiCenso again went to the apartment to collect the monthly rent. While there, he became involved in a confrontation with Andrews and the police were called. DiCenso informed the police that the disagreement was over Andrews' refusal to pay the rent. Brown and Andrews told DiCenso that they would be leaving the apartment within the next ten days. According to the police report, the two parties "both came to the decision of settling the matter in court."

Brown and Andrews did not move out, however, and in late January, DiCenso served them with a five-day notice to quit the premises. On January 31, Brown filed a housing discrimination complaint alleging that DiCenso had harassed her and her boyfriend, and had made sexual advances toward her. ¹ DiCenso denied the allegations, and asserted that he had had problems collecting the December 1990 and January 1991 rent, and that Andrews not only refused to pay the rent, but had threatened to hurt him. DiCenso felt that the discrimination complaint was a "plot" by Brown and Andrews to avoid paying the rent that was due. ²

The Department investigated Brown's complaint and determined that reasonable cause existed to believe that discrimination had occurred. On June 22, 1994 the Department issued a charge against DiCenso for violations of sections 804(b) and 818 of the Fair Housing Act. Section 804(b) prohibits discrimination "against any person in the terms, conditions, or privileges of [the] rental of a dwelling ... because of ... sex." 42 U.S.C. § 3604(b). Section 818 makes it illegal to "coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of ... any right" granted or protected by the Fair Housing Act. 42 U.S.C. § 3617. A HUD ALJ conducted a hearing on October 25, 1994.

On March 20, 1995, the ALJ issued a thorough decision, in which she acknowledged that any finding that the alleged acts occurred rested solely on credibility determinations. In making these determinations, the ALJ relied on the witnesses' demeanor while testifying, their ability and opportunity to observe what happened, their memory, any interest or bias they might have, the consistency of their statements, and the reasonableness of their testimony in light of all of the evidence received. On the whole, the ALJ found Brown more credible than DiCenso. However, the ALJ also found that Brown's testimony established only one act of sexual harassment by DiCenso--the mid-October incident. On this set of facts, the ALJ concluded that DiCenso's conduct did not rise to the level of severity required to create a hostile housing environment. Consequently, the ALJ found that Brown had failed to establish a claim of sex discrimination and dismissed the complaint.

The Department, acting on Brown's behalf, sought review of the ALJ's order pursuant to 42 U.S.C. § 3612(h). The HUD Secretary's Designee affirmed the ALJ's findings of fact, but reached a different conclusion on the issue of whether the single incident amounted to a hostile housing environment for purposes of the Fair Housing Act. Finding for Brown on the issue of liability, the Secretary's Designee vacated the ALJ's decision and remanded the case for a determination of damages. The ALJ awarded Brown $5,000 in compensatory damages, assessed a $5,000 civil penalty against DiCenso and entered injunctive relief. This award became final on July 19, 1995. On August 18, 1995, DiCenso filed a petition for review in this court pursuant to 42 U.S.C. § 3612(i).

Analysis

A. Standard of Review

Before addressing whether DiCenso's conduct constitutes unlawful discrimination, we first must address the applicable standard of review. Both parties correctly acknowledge that we defer to the ALJ's findings of fact where they are supported by substantial evidence on the record as a whole. See Chicago Tribune v. NLRB, 79 F.3d 604, 607 (7th Cir.1996). The issue, then, is whether we also should defer to the Department's legal conclusions. DiCenso understandably argues that we should review the legal conclusions de novo. In its initial brief, the Department agreed, but at oral argument, we invited the parties to submit supplemental briefs on the issue of whether the Supreme Court's Chevron decision requires us to defer to HUD's interpretation of what constitutes a hostile housing environment. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-45, 104 S.Ct. 2778, 2782-83, 81 L.Ed.2d 694 (1984).

Chevron requires us to defer to the decisions of executive agencies where the agency has a particular expertise in the conflicting policy considerations that underlie a statute, or where the agency previously has considered the matter at issue in a detailed and reasoned fashion. See id. at 865, 104 S.Ct. at 2792-93. Neither of these situations exist here. In Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), the Supreme Court commented on the deference given to EEOC guidelines defining sexual harassment as a form of sex discrimination. Although those guidelines "constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance," they are not "controlling upon the courts by reason of their authority." Meritor, 477 U.S. at 65, 106 S.Ct. at 2404, citing General Electric Co. v. Gilbert, 429 U.S. 125, 141-42, 97 S.Ct. 401, 410-11, 50 L.Ed.2d 343 (1976). In this case, by contrast, HUD has not even enacted guidelines regarding hostile housing environment sex discrimination. Rather, as the HUD Secretary's Designee acknowledged, a determination of what constitutes a hostile environment in the housing context requires the same analysis courts have undertaken in the Title VII context. Such a determination does not require deference to an administrative agency.

Despite the concession in its initial brief, the Department now argues that we should subject determinations of whether an incident of harassment is sufficiently egregious to constitute sex discrimination to a clearly erroneous standard. See, e.g., Carr v. Allison Gas Turbine Div., General Motors Corp., 32 F.3d 1007, 1009 (7th Cir.1994); Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir.1993); Rennie v. Dalton, 3 F.3d 1100, 1106 (7th Cir.1993); Daniels v. Essex Group, Inc., 937 F.2d 1264, 1269-70 (7th Cir.1991). Each of these cases involves claims of hostile environment discrimination in employment. Moreover, all of them also differ from the instant case insofar as they involved challenges to a district court's findings of fact. In those cases, we held that the existence of harassment in a hostile work environment involved an application of facts to law. Therefore, the clearly erroneous standard governed. See Rodgers, 12 F.3d at 674. In this case, the existence of harassment is not at issue. The sole question is whether the incident of harassment that occurred is sufficient to state a cause of action under the Fair Housing Act. This is purely a question of law which we review de novo. See Daniels, 937 F.2d at 1269.

B. Hostile Environment Sex Discrimination

Title VII of the Civil...