Taylor et al v. Subsidized Properties I, L.P. et al

Filing 62

MEMORANDUM AND ORDER: Plaintiffs' Motions for Partial Summary Judgment, ECF Nos. 47 , 50 , are DENIED. Defendants' Cross-Motion for Summary Judgment and for Attorneys Fees, ECF No. 52 , is GRANTED as to Count VII, but otherwise DENIED. So Ordered by District Judge William E. Smith on 2/2/2022. (Urizandi, Nissheneyra)

Case 1:17-cv-00117-WES-PAS Document 62 Filed 02/02/22 Page 1 of 23 PageID #: 2217

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
____________________________________
)
TRENDA TAYLOR, and
)
THE RHODE ISLAND COMMISSION
)
FOR HUMAN RIGHTS,
)
)
Plaintiffs,
)
)
v.
)
C.A. No. 17-117 WES
)
NATIONAL INVESTMENTS, LTD.,
)
ET AL.
)
)
Defendants.
)
____________________________________)
MEMORANDUM AND ORDER
WILLIAM E. SMITH, District Judge.
Plaintiff

Trenda

Taylor,

joined

by

the

Rhode

Island

Commission for Human Rights, brings claims under the Fair Housing
Act and related statutes, 1 alleging that Defendants discriminated
against her because of her race, and then retaliated against her
when she complained about that discrimination.
ECF

No.

2.

Before

the

Court

judgment, ECF Nos. 47, 50, 52.

are

Am. Compl. ¶ 1,

cross-motions

for

summary

Specifically, Plaintiff has moved

for partial summary judgment as to liability on her claims of

Specifically, she brings suit under: (1)the Fair Housing
Act (FHA), 42 U.S.C. §§ 3601–3631; (2) the Rhode Island Fair
Housing Practices Act (RIFHPA), R.I. Gen. Laws §§ 34-37-1 to –11
(2021); (3) Title VI of the Civil Rights Act of 1964 (Title VI),
42 U.S.C. §§ 2000d to 2000d-7; and (4) the Rhode Island Civil
Rights Act of 1990 (RICRA), R.I. Gen. Laws §§ 42-112-1 to -2.
1

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retaliation (Counts III and IV) and her claim that Defendants
violated the regulations implementing 42 U.S.C. 1437f (Count VII).
Pl. Mot. Summ. J. 1, ECF No. 47.
They

have

moved

for

summary

Defendants deny any wrongdoing.

judgment

on

all

counts

and

for

Plaintiffs to pay their attorneys’ fees. Defs.’ Mot. Summ. J. 1,
ECF No. 52.
For the reasons explained below, Plaintiffs’ Motions for
Partial Summary Judgment, ECF Nos. 47, 50, are DENIED. Defendants’
Cross-Motion for Summary Judgment and for Attorneys’ Fees, ECF No.
52, is GRANTED as to Count VII, but otherwise DENIED.
I. Background
A. Section 8 Housing Program
Ms. Taylor resides at the Elms Apartments, where her rent is
subsidized through the Federal Project-Based Section 8 Rental
Assistance

Program

(Project-Based

Program).

Pl.’s

Statement

Undisputed Facts (“Pl.’s SUF”) ¶¶ 1, 15-20, ECF No. 48; Defs.’
Statement Further Undisputed Facts (“Defs.’ SFUF”) ¶ 234, ECF No.
51-36.

As a beneficiary of the program, she must pay a designated

percentage of her income or a minimum rent of twenty-five dollars,
whichever is higher.

24 C.F.R. §§ 5.628, 5.630 (2022).

Under a

hardship exemption, her rent can be further reduced to zero. Pl.’s
SUF ¶ 89; 24 C.F.R. § 5.630(b).

The government then supplements

this contribution according to contracts with private property
owners, like the corporate Defendants here, making them recipients
2

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of federal funds for the purposes of Title VI of the Civil Rights
act of 1964.

See Pl.’s SUF ¶¶ 17-21.

---

According

to

both

Plaintiff’s

regulations,

Defendant

operates

Elms,

must

determine

each

year

through

the

contribution

National

lease

and

Investments,
her
a

the
which

required
process

governing
owns

monthly

called

and
rent

Annual

Recertification. Pl.’s SUF ¶¶ 24, 27; Defs.’ SFUF ¶ 234; 24 C.F.R.
§§ 5.657(b), 880.603(c).

Should Plaintiff’s income decrease mid-

year or her family composition change, she is entitled to request
an

Interim

contributions.

Recertification

to

adjust

her

monthly

rent

Pl.’s SUF ¶¶ 26-27; Defs.’ SFUF ¶ 236; 24 C.F.R.

§ 5.657(c).
B. Ms. Taylor’s Interim Recertification
In 2015, Ms. Taylor’s annual recertification established her
rent to be $129 per month, beginning March 1 of that year.
SUF ¶ 25; Defs.’ SFUF ¶ 235.

Pl.’s

Two months later, she lost her job.

Pl.’s SUF ¶ 28; Defs.’ SFUF 237.

On June 9, 2015, Plaintiff met

with Ms. Heather Paschoal, an employee of National Investments,
and Defendant Leesa McCarthy, property manager of the Elms, to
answer questions and fill out the necessary paperwork for an
interim recertification.
247.

Pl.’s SUF ¶¶ 35-36, 47; Defs.’ SFUF ¶

A dispute arose over Plaintiff’s answer as to how she

intended to pay rent.

Pl.’s SUF ¶¶ 39-51; Defs.’ SFUF ¶¶ 249-250.

Plaintiff recorded her view of the incident on one of the forms,
3

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writing:

“I am currently being harassed while filling out interim

paperwork due to job layoff on May 26 . . . ongoing discrimination
for over a year now.
about

future

rent

twisting my words.”

Leesa McCarthy is harassing questioning me

[payments].

Verbally

Pl.’s SUF ¶ 61.

arguing

with

me

and

Defendants also memorialized

their version this meeting in writing through a “Memo to File”
written by Ms. Paschoal.

Id. ¶ 67.

That memo describes Ms.

Pachoal’s attempt to convince Plaintiff to fill out the form again,
without the written comments, as well as Defendants’ concern that
Ms. Taylor had an undisclosed bank account or other source of
income.

Id. ¶¶ 69-70; Defs.’ Opp’n Pls.’ Mot. Summ. J., Ex. E.,

ECF No. 51-6.

Plaintiff refused the new form and submitted a

notarized copy of the original the next day, comments included.
Pl.’s SUF ¶¶ 70–71.

This conflict was only the beginning, as

various disputes between the parties continued throughout the
summer. 2
C. Annual Recertification and its aftermath
In November 2015, Plaintiff met with Ms. Pashoal again, this
time for her Annual Recertification.

Pl.’s SUF ¶ 100; Defs.’ SFUF

For example, Ms. Taylor filed a restraining order against
Defendant McCarthy in Rhode Island Superior Court, which was
denied. Defs.’ Statement Further Undisputed Facts (“Defs.’ SFUF”)
¶ 254, ECF No. 51-36.
She also filed a request for a hardship
exemption, which Defendants denied. Pl.’s Statement Facts (“Pl.’s
SUF”) ¶¶ 88, 96, ECF No. 48; Defs.’ SFUF ¶¶ 256, 259. In August
2015, Defendants sent Ms. Taylor a “Notice of Proposed Termination
of Tenancy for Nonpayment of Rent.” Pl.’s SUF ¶¶ 93-95.
2

4

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265.

Ms. Tayor’s rent had been neither reduced nor paid since

June.

Pl.’s SUF ¶¶ 34, 109.

At the meeting, she again reiterated

the claims of racial discrimination, both verbally and on the forms
themselves, writing: “Rent was never lowered from May 2015. Lawyer
gave

form.

Discrimination

Discrimination.”

color.

Id. ¶¶ 103-104.

Discrimination.

Color

Ms. Paschoal terminated the

interview, allegedly after Ms. Taylor attempted to pull paperwork
out of her hands while accusing her of color discrimination.
Defs.’ SFUF ¶¶ 270-271.
Four

days

after

the

unsuccessful

Annual

Recertification,

National Investments sent Plaintiff a Notice of Non-compliance
which

gave

her

thirty

days

to

violations, lest she be evicted.
Ex. Q, ECF No. 2-1.

cure

various

purported

lease

Pl.’s SUF ¶¶ 110-111; Am. Compl.

Those listed violations included writing

“irrelevant and inappropriate comments on various HUD-mandated
forms,” problems with the repair and cleanliness of her apartment
revealed by a recent inspection, and an illicitly kept pet cat.
Am. Compl. Ex. Q. On November 18, 2015, National Investments filed
an eviction action based on the November Non-compliance notice and
previous demand letter.

Pl.’s SUF ¶ 112.

On December 4, 2015, Ms. Taylor entered the Elms Apartment’s
management office without an appointment seeking to complete the
paperwork for her Annual Recertification and inquiring as to why
her rent had never been reduced after she lost her job.
5

Id. ¶ 118.

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She secretly recorded a portion of the interaction. Id. ¶ 199.

In

the conversation, Defendant Leesa McCarthy made clear she would
not be allowed to complete her paperwork so long as she was
accusing the staff of racial harassment and discrimination, and
eventually convinced Plaintiff to leave on the promise that she
would call her to schedule a later appointment.
14, ECF No. 48-15.
police,

Pl.’s SUF, Ex.

After Plaintiff left, Ms. McCarthy called the

complaining

of

trespass

and

describing

Plaintiff’s

behavior as “volatile and threatening.” Pl.’s SUF, Ex. 15, ECF No.
48-16.

She sought a temporary restraining order which would bar

Plaintiff from the management office.
On

January

19,

2016,

Id.

Plaintiff

filed

a

“housing

discrimination charge” with the Rhode Island Commission for Human
Rights (RICHR).

Pl.’s SUF ¶ 135.

Six months later, RICHR sent a

probable

letter

its

cause

outlining

preliminary

Defendants and seeking evidence from them.

findings

to

Amend. Compl. Ex. W,

ECF No. 2-1. On August 12, 2016 RICHR issued a determination
concluding “the evidence submitted to the Commission supports the
complainant’s allegations that she was treated in a less favorable
manner than similarly-situated white tenants” and that Plaintiff
“is

now

in

danger

of

losing

her

housing

as

a

discrimination and retaliation by the [Defendants].”
Ex. 19 at 7-8, ECF No. 48-20.

result

of

Pl.’s SUF

It also concluded that Defendant

McCarthy’s account of the December 4 incident “is false,” and that
6

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“Ms. McCarthy obtained a no contact order under false pretenses.”
Id. at 7-8.

RICHR joins this suit as a Plaintiff.

Am. Compl. 1.

Defendants first two eviction actions against Plaintiff were
consolidated and prosecuted for three years.
151, 170.

Pl.’s SUF ¶¶ 112,

On August 23, 2018, they were dismissed with prejudice

by the Rhode Island District Court. Id. ¶ 170. Defendants’ appeal
from that decision was dismissed by the Rhode Island Superior Court
on January 4, 2019.

Id. ¶ 173.

On December 21, 2020, Defendants

filed a third eviction action against Plaintiff for non-payment of
rent; it was dismissed with prejudice on February 18, 2021.

Id.

¶¶ 175-176.
II.

LEGAL STANDARD
The Court must grant summary judgment “if the movant shows

that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).

Fed. R. Civ.

An issue is “genuine” for purposes of the summary

judgment standard “if the evidence of record permits a rational
factfinder to resolve it in favor of either party.”

Borges ex

rel. S.M.B.W v. Serrano-Isern, 605 F.3d 1, 4 (1st Cir. 2010).
Similarly, a fact is “material” if its “existence or nonexistence
has the potential to change the outcome of the suit.”

Id. at 5.

The moving party bears the initial burden of informing the
trial court of the basis for its motion for summary judgment and
identifying the portions of the pleadings, depositions, answers to
7

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interrogatories,

admissions,

and

affidavits,

if

any,

that

demonstrate the absence of any genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

The burden

shifts to the nonmoving party, who must, with respect to each issue
on which it would bear the burden of proof at trial, demonstrate
that a trier of fact could reasonably resolve that issue in its
favor.

Id. at 325; DeNovellis v. Shalala, 124 F.3d 298, 306 (1st

Cir. 1997).

On cross-motions the Court performs this analysis in

both directions, asking “whether either of the parties deserves
judgment as a matter of law on facts that are not disputed.” Barnes
v. Fleet Nat’l Bank, N.A., 370 F.3d 164, 170 (1st Cir. 2004)
(quoting Wightman v. Springfield Terminal Ry., 100 F.3d 228, 230
(1st Cir. 1996).
III. DISCUSSION
A. The Discrimination Counts
1. Legal Framework
Ms.

Taylor

asserts

Defendants

discriminated

against

her

because of her race and color when they refused to reduce her rent
during her Interim and Annual Recertifications, and therefore
violated

the

statutes:
(Count

I);

anti-discrimination

protections

of

four

separate

(1) the Fair Housing Act (FHA), 42 U.S.C. §§ 3601-3652
(2) the

Rhode

Island

Fair

Housing

Practices

Act

(RIFHPA), R.I. Gen. Laws §§ 34-37-1 to -11 (2021) (Count II);
(3) Title VI of the Civil Rights Act of 1964 (“Title VI”), 42
8

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U.S.C. §§ 2000d to 2000d-7 (Count V); and (4) the Rhode Island
Civil Rights Act of 1990 (RICRA), R.I. Gen. Laws §§ 42-112-1 to 2

(Count VI).

Defendants, but not Plaintiff, have moved for

summary judgment on each of these counts.

They contend that there

is no genuine dispute of material fact as to whether their actions
were discriminatory.
18, ECF No. 54.

Defs.’ Mem. Supp. Mot. Summ. J. 3-10, 17–

The Court disagrees.

The FHA makes it illegal to “[t]o discriminate against any
person in the terms, conditions, or privileges of sale or rental
of a dwelling, or in the provision of services or facilities in
connection
familial

therewith,

status,

or

because

of

national

race,

origin.”

color,
42

religion,

U.S.C.

§

sex,

3604(b).

Similarly, the RIFHPA prohibits an owner of property or their agent
to “directly or indirectly, discriminate against any individual
because of his or her race [or] color . . . in the terms,
conditions, or privileges of the sale, rental, or lease of any
housing

accommodation

or

in

the

services in connection with it.”

furnishing

of

facilities

or

R.I. Gen.Laws § 34-37-4(a).

Title VI is broader, providing that “[n]o person in the United
States shall, on the ground of race, color, or national origin, be
excluded from participation in, be denied the benefits of, or be
subjected

to

discrimination

under

9

any

program

or

activity

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receiving Federal financial assistance.” 3 42 U.S.C. § 2000d. RICRA
is similarly sweeping, prohibiting discrimination on the basis of
race and color in transactions involving real property and granting
to

all

people

the

“full

and

equal

benefit

of

all

laws

and

proceedings for the security of persons and property.” 4
Both Rhode Island Statutes are interpreted and construed with
reference to their federal counterparts.

Colman v. Faucher, 128

F. Supp. 3d 487, 491 n.8 (D.R.I. 2015) (“The Rhode Island Supreme
Court analyzes [RICRA] claims using substantive federal law from
analogous causes of action.”); Town of Cumberland v. Susa, No. PC
01-3726, 2007 WL 4357113 (R.I. Super. Ct. Nov. 2, 2007) (citing
Newport Shipyard, Inc. v. R.I. Comm'n for Hum. Rts., 484 A.2d 893,
897–98 (R.I. 1984)) (construing RIFHPA by considering federal
interpretations

of

discrimination

based

the
on

FHA).

Specifically,

indirect

evidence,

all

for

claims

four

of

statutes

The parties do not dispute that the corporate defendants
here receive federal funding through the Project-Based Section 8
Program. Pl.’s SUF ¶ 17.
4 In relevant part, section 42-112-1(a) provides:
All persons within the state, regardless of race, color,
religion, sex, disability, age, or country of ancestral
origin, have, except as is otherwise provided or
permitted by law, the same rights to make and enforce
contracts, to inherit, purchase, to lease, sell, hold,
and convey real and personal property, to sue, be
parties, give evidence, and to the full and equal benefit
of all laws and proceedings for the security of persons
and property, and are subject to like punishment, pains,
penalties, taxes, licenses, and exactions of every kind,
and to no other.
R.I. Gen.Laws § 42-112-1(a).
3

10

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utilize the familiar three-step burden-shifting framework that
originated in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973).

See Caron v. City of Pawtucket, 307 F. Supp. 2d 364, 369

(D.R.I. 2004) (citing Neithamer v. Brenneman Prop. Servs., Inc.,
81 F. Supp. 2d 1, 3–4 (D.D.C. 1999)) (FHA); R.I. Comm'n for Hum.
Rts. v. Graul, 120 F. Supp. 3d 110, 118 n.10, 123–24 (D.R.I. 2015)
(RIFHPA); Freeman v. Fahey, 374 F.3d 663, 666 (8th Cir. 2004)
(Title VI); DeCamp v. Dollar Tree Stores, Inc., 875 A.2d 13, 25
(R.I. 2005) (RICRA).
Because Ms. Taylor brings indirect evidence of disparate
treatment, the inquiry for Counts I, II, V, and VI distills to a
single, three-step test.

At the first step of the inquiry,

Plaintiff has the burden to establish a prima facie case of
discrimination.

McDonnell Douglas Corp., 411 U.S. at 802–03.

To

do so, she must show she was “rejected under circumstances which
give rise to an inference of unlawful discrimination.”

Caron, 307

F. Supp. 2d at 369 (quoting Tex. Dep't of Cmty. Affs. v. Burdine,
450 U.S. 248, 253 (1981)). This inference can be raised by showing:
(a) proof of membership in a protected group, (b) eligibility for
a housing-related benefit, (c) denial of that benefit, and (d) the
conferring of the benefit to someone outside the protected class.
See Graul, 120 F. Supp. 3d at 123 (citing Alexander v. Riga, 208
F.3d 419, 430 (3d Cir. 2000)); see also Kosereis v. Rhode Island,
331 F.3d 207, 214 (1st Cir. 2003).
11

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At the second step of the analysis, the burden shifts to
Defendants to demonstrate a legitimate, non-discriminatory reason
for their decisions.
03.

McDonnell Douglas Corp., 411 U.S. at 802–

If they come forward with a race-neutral reason, Ms. Taylor

bears the burden at the final step to demonstrate that Defendants’
proffered reason is pretext or unworthy of credence.

Id. at 804.

For this third step, at summary judgment, “[a]ll a [party] has to
do is raise a genuine issue of fact as to whether discrimination
motivated the adverse . . . action.” Dominguez-Cruz v. Suttle
Caribe, Inc., 202 F.3d 424, 433 (1st Cir. 2000) (quoting Olivera
v. Nestle Puerto Rico, Inc., 922 F.2d 43, 50 (1st Cir. 1990)).
2. Plaintiff’s Claims of Discrimination
Plaintiff has made her prima facia showing of disparate
treatment.
class.

It is undisputed that she is a member of a protected

It is clear she was facially eligible for, but denied, an

interim reassessment and potential reduction of her rent.

Most

importantly, she brings evidence that two otherwise similarly
situated white women received interim or annual recertifications
without incident, despite having left multiple questions blank on
the relevant forms.

Pl.’s SUF ¶¶ 74-83; Pl.’s SUF Ex. 7, 8, ECF

Nos. 48-8, 48-9.
In response, Defendants point to their legal obligations to
verify Ms. Taylor’s income, and her reciprocal obligations to
provide the requested information as facially non-discriminatory
12

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reasons for failing to process her recertification paperwork.
Defs.’ Mem. Supp. Mot. Summ. J. 5-6.
As the burden shifts back to Ms. Taylor, the Court finds she
has shown there is clearly a genuine dispute of material fact as
to the Defendants’ real reasons for their actions.

Where blank

answers in the recertification paperwork of two similarly situated
white women did not prevent Defendants from processing and granting
their rental recertifications, questions remain as to whether
their proffered race-neutral reasons are genuine.

Those questions

are paradigmatic questions of material fact for a jury. Defendants
Motion for Summary Judgment as to Count I, II, V, and VI is
therefore DENIED.
B. The Retaliation Counts
1. Legal Framework
The FHA does not just prohibit discrimination.

It also bars

retaliation, making it “unlawful to coerce, intimidate, threaten,
or interfere with any person” because they exercised their rights
under the FHA.

42 U.S.C. § 3617.

The anti-retaliation provisions

of RIFHPA mirror the language of the FHA precisely, but also add
that “[n]o owner under this chapter or any agent of these shall
discriminate in any manner against any individual because he or
she has opposed any practice forbidden by this chapter.”
Gen. Laws § 34-37-5.1.

13

R.I.

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“[T]he

McDonnell

Douglas

burden-shifting

rules

apply

claims of retaliation pursuant to [§ 3617 of the FHA].”

to

Reg'l

Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d
35, 54 (2d Cir. 2002) (“RECAP”); see also Walker v. City of
Lakewood, 272 F.3d 1114, 1128 (9th Cir. 2001); Reyes v. Fairfield
Props., 661 F. Supp. 2d 249, 265–66 (E.D.N.Y. 2009).

Therefore,

if Ms. Taylor makes a prima facie case of retaliation, Defendants
must respond with a legitimate, non-retaliatory justification for
their actions.
267.

Walker, 272 F.3d at 1128; Reyes, 661 F. Supp. at

Plaintiff must then make a showing that Defendants’ reasons

are pretextual.

Walker, 272 F.3d at 1128; Reyes, 661 F. Supp. 2d

at 267.
Under both statutes, a plaintiff seeking to establish a prima
facie case of retaliation must show that:

(1) the plaintiff

engaged in protected activity; (2) defendants took an adverse
action; and (3) there was a causal link between the two. 5

Wetzel

While not raised by the parties, there appears to be an open
question in the First Circuit as to whether a fourth element –
proof of discriminatory animus based on a protected class – is
required to impose liability under 42 U.S.C. §3617.
In an
unpublished judgment, the First Circuit noted that it has never
addressed the question, and assumed without deciding that the
district court erred in requiring the discriminatory animus
element.
Lath v. Vallee, No. 18-2092, 2019 WL 10745175, at *1
(1st Cir. Sept. 11, 2019) (citing Wetzel v. Glen St. Andrew Living
Cmty., LLC, 901 F.3d 856, 868 (7th Cir. 2018), cert. denied, 139
S. Ct. 1249 (2019)). The Seventh Circuit decision cited in Lath,
(Wetzel) concluded that the anti-retaliation provisions of the FHA
should be interpreted in line with a number of other civil rights
acts which do not require discriminatory animus to drive the
5

14

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v. Glen St. Andrew Living Cmty., LLC, 901 F.3d 856, 868 (7th Cir.
2018); Walker, 272 F.3d at 1128; Susa, 2007 WL 4357113 (construing
RIFHPA to mirror FHA).
As a preliminary matter, the Court concludes that given the
broad remedial goals of the statute, Ms. Taylor’s verbal and
written complaints of discrimination were protected conduct within
the meaning of the FHA.

See RECAP, 294 F.3d at 54 (protected

conduct includes “‘oppos[ition to] an[] act or practice made
unlawful’

by

the

applicable

anti-discrimination

statutes.”)

(quoting 42 U.S.C. § 12203(a)) (citing Cruz v. Coach Stores, Inc.,
202 F.3d 560, 566 (2d Cir. 2000)); see also Neudecker v. Boisclair
Corp., 351 F.3d 361, 363–64 (8th Cir. 2003) (informal complaints
to management treated as protected activity under FHA); Whiting v.
Albek, No. ED CV 19-1542-DMG, 2020 WL 7382777, at *6 (C.D. Cal.
Oct.

30,

2020)

(same);

24

C.F.R.

§

100.400(6)(unlawful

to

retaliation. Wetzel, 901 F.3d at 868 (“Like all anti-retaliation
provisions, it provides protections not because of who people are,
but because of what they do.”); see also San Pedro Hotel Co. v.
City of Los Angeles, 159 F.3d 470, 477 (9th Cir. 1998).
Regulations by the Department of Housing and Urban Development
also support not including the discriminatory animus element here.
Those regulations require a causal connection to a protected
characteristic like race or gender for coercion and threat claims,
but not for retaliation. See 24 C.F.R. § 100.400 (2022). In light
of the reasoning in Wetzel, the First Circuit’s statement in Lath,
the HUD regulations, and the remedial aims of the statute, the
Court concludes it is appropriate to require only the first three
elements for Ms. Taylor’s claims of retaliation.
But see S.
Middlesex Opportunity Council, Inc. v. Town of Framingham, 752 F.
Supp. 2d 85, 95 (D. Mass. 2010).
15

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“[r]etaliat[e] against any person because that person reported a
discriminatory housing practice to a housing provider or other
authority.”).
For the causation element, there is an open question whether
“but-for” causation is required in a FHA retaliation claim, or
whether a plaintiff must merely show that “a causal connection
exists

between

the

protected

activity

and

the

adverse

action, i.e., that a retaliatory motive played a part in the
adverse . . . action.”

RECAP, 294 F.3d at 54.

The uncertainty

arises because in University of Texas Southwestern Medical Center
v. Nassar, the Supreme Court held that “Title VII retaliation
claims require proof that the desire to retaliate was the but-for
cause of the challenged employment action” rather than merely “a
motivating factor.”

570 U.S. 338, 352 (2013) (citing Gross v. FBL

Fin. Servs., Inc., 557 U.S. 167, 176 (2009)). While neither Nassar
nor Gross construe the FHA, it is hard to see how or why their
reasoning would not apply, given the “on account of” language in
§ 3617 of the FHA:
The words “because of” mean “by reason of: on account
of.” Thus, the ordinary meaning of the ADEA's
requirement that an employer took adverse action
“because of” age is that age was the “reason” that the
employer decided to act. To establish a disparatetreatment claim under the plain language of the ADEA,
therefore, a plaintiff must prove that age was the “butfor” cause of the employer's adverse decision.

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Gross, 557 U.S. at 176 (citations omitted) (quoting 1 Webster’s
Third New International Dictionary 194 (1966).

The clear majority

of courts to have considered the question after Nassar have reached
the same conclusion the Court does here, that retaliation claims
under the FHA require a showing of but-for causation.

See, e.g.,

Campos v. HMK Mortg., LLC, 458 F. Supp. 3d 517, 532 (N.D. Tex.
2020) (“[I]f the Supreme Court or Fifth Circuit were to weigh the
issue, this Court believes they would hold as the Supreme Court
did in Nassar: the Federal Housing Act retaliation statute requires
but-for causation.”). 6
2. Specific Claims of Retaliation
Ms. Taylor claims Defendants violated the anti-retaliation
provisions of the FHA and RIFHPA by taking three adverse actions
against her because of her complaints of racial discrimination:
(1) refusing to process her recertification paperwork; (2) calling
the police on her and seeking a temporary restraining order that
would bar her from the management office; and (3) issuing a noncompliance notice, filing an eviction based on that notice, and

See also In re Council of Unit Owners of 100 Harborview
Drive Condo., 580 B.R. 135, 163–64 (Bankr. D. Md. 2018); Brown v.
Harris Cty. Hous. Auth., No. CV H-15-2847, 2018 WL 3080880, at *12
(S.D. Tex. Jan. 11, 2018), report and recommendation adopted, No.
CV H-15-2847, 2018 WL 1250445 (S.D. Tex. Mar. 12, 2018); Stokes v.
Benham, No. 3:14-CV-536-JAG, 2015 WL 4139274, at *7 (E.D. Va. July
8, 2015), aff'd, 626 F. App'x 431 (4th Cir. 2015) (per curium);
but see Whiting v. Albek, No. ED CV 19-1542-DMG (SHKx), 2020 WL
7382777, at *7 n.7 (C.D. Cal. Oct. 30, 2020).
6

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prosecuting that eviction for 3 years.
No. 57.

Pl.’s Reply Mem. 2, ECF

There is no question that if undertaken for a retaliatory

purpose, each of these could constitute an adverse action for the
purposes of the statute.

Therefore, in each potential instance of

retaliation, the analysis properly focuses on the third prong of
Ms. Taylor’s Prima Facie case – causation.
Defendants proffer a number of non-retaliatory reasons for
their actions. They reiterate their concern that Ms. Tayor’s forms
lacked information needed for them to verify her income as required
by regulation.

Defs.’ Mem. Opp’n Mot. Summ. J. 3 (“Defs.’ SJ

Opp’n”), ECF No. 51-38. For the Annual Recertification on November
5, they also claim that Ms. Taylor brought a “guest;” would not
sign

a

form

authorizing

Defendants

to

discuss

financial

information in front of this guest; and finally attempted to pull
the paperwork out of Ms. Paschoal’s hands in frustration, all of
which caused them to terminate the interview.
Supp. Mot. Summ. J. 11.

See Defs.’ Mem.

With respect to calling the police and

seeking a TRO, they claim Ms. Taylor’s demeanor and behavior was
so concerning they feared for their safety. Defs.’ SJ Opp’n 4. For
the eviction, they point to the other reasons listed in the notice,
the unsanitary conditions of her apartment, her illicit pet, and
her overall refusal to cooperate in the recertification processes.
Id.

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In response, Ms. Taylor asserts these reasons are all pretext,
pointing to Defendants’ own documentation to support her position
that complaints of racial discrimination were the actual driving
cause of Defendants’ decisions.

For example, after the annual

recertification meeting on November 5, 2015, Defendant McCarthy
wrote:
Heather [Paschoal] told Trenda [Taylor] that it is
inappropriate to write defamatory comments on our
recertification paperwork and that I would need for her
to resign another rent collection policy without any
written comments. . . . Heather informed Trenda that if
Trenda was not going to be cooperative and sign paperwork
without negative comments then Heather would not be
finishing the interview with Trenda.
Def.s’ Statement Undisputed Facts Ex. J, at 3, ECF No. 53-10.
Those

“defamatory”

or

racial discrimination.

“negative

comments”

were

complaints

of

Similarly, Ms. Taylor’s secret recording

of her unannounced visit to the management’s office on December 4,
includes the following exchange:
Trenda Taylor: I can’t get an appointment, because
what?
Lessa
McCarthy:
You’re
accusing
my
staff
discriminating against them (sic) and harassing them
regards to that discrimination, and I am not going
tolerate it. I am just not.

of
of
in
to

Pl.’s SUF Ex. 14 at 3.
This evidence flies in the face of the non-retaliatory reasons
given by Defendants for the actions they took against Ms. Taylor.
It establishes, at the very least, that there is a genuine dispute
of material fact as to whether Defendants acted for the reasons
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they provided or in retaliation for Ms. Taylor’s repeated claims
of discrimination.

Here too, the question is for the jury.

For

Counts III and IV, Defendants’ Motion for Summary Judgment is
DENIED, and Plaintiffs’ Motion for Partial Summary Judgment is
likewise DENIED.
C. Count VII: Regulatory Infractions
Ms. Taylor asserts that by failing to recertify her rent or
grant her a hardship exemption, Defendants violated 42 U.S.C.
§ 1437f

and

several

associated

implement the Section 8 Program.
J. 29-34, ECF No. 49.

regulations

which

create

and

See Pl.’s Mem. Supp. Mot. Summ.

Because there is no express cause of action

in 42 U.S.C. 1437f or its regulations, Plaintiffs can only prevail
if the Court concludes the statute creates an implied cause of
action.

See Reyes-Garay v. Integrand Assur. Co., 818 F. Supp. 2d

414, 429–30 (D.P.R. 2011) (“We join a long line of courts that
have all determined that the Housing Act does not expressly grant
a private right of action. . .”); Kirby v. Richmond Redev. & Hous.
Auth., No. 3:04cv791, 2005 WL 5864797, at *7 (E.D. Va. Sept. 28,
2005).
In determining whether an implied cause of action exists,
Courts apply the four-factor test established in Cort v. Ash, 422
U.S. 66, 78 (1975), 7 with a special emphasis on attempting to
The four-part test asks the following questions:
(1) Is
this plaintiff a member of the class for whose “especial” benefit
7

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discern congressional intent.
174,

189

(1988)

(Scalia,

See Thompson v. Thompson, 484 U.S.
J.,

concurring)

(after

Cort,

congressional intent developed into determinative factor).

The

Court remains mindful of the fact that “[t]he Supreme Court has
come to view the implication of private remedies in regulatory
statutes with increasing disfavor.” Hallwood Realty Partners, LP
v. Gotham Partners, 286 F.3d 613, 618 (2d Cir. 2002).
presumption

against

creating

an

implied

cause

of

action

The
is

especially difficult to overcome in cases like this one, where the
phrasing and text of the regulation or statute focuses on what the
person or entity receiving federal funds must do, as opposed to
the rights created for the beneficiary.

See Gonzaga Univ. v. Doe,

536 U.S. 273, 287 (2002) (“Statutes that focus on the person
regulated

rather

than

the

individuals

protected

create

no

implication of an intent to confer rights on a particular class of
persons.”) (quoting Alexander v. Sandoval, 532 U.S. 275, 289
(2001); see also 24 C.F.R. §§ 5.630, 5.657(c) (regulating “owners”
and “responsible entities”).

the statute was passed?; (2) Is there any evidence of legislative
intent, either explicit or implicit, to create or deny a private
remedy?; (3) Is it consistent with the legislative scheme to imply
a private remedy?; (4) Is the cause of action one traditionally
relegated to state law so that implying a federal right of action
would be inappropriate? Cort v. Ash, 422 U.S. 66, 78 (1975).
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With these principles in mind, the Court joins many others in
holding that “[t]here exists no implied right of action under
Section 1437f of the Housing Act.” Reyes-Garay,818 F. Supp. at
430; see also Banks v. Dallas Hous. Auth., 271 F.3d 605, 609–11
(5th Cir.2001); Hill v. Richardson, 7 F.3d 656, 658 (7th Cir.
1993); but see Knapp v. Eagle Prop. Mgmt. Corp., 54 F.3d 1272,
1277 (7th Cir. 1995)(finding implied cause of action to enforce
§ 1437f(t), but not the rest of § 1437f).
Therefore, Defendants’ Motion for Summary Judgment as to
Count VII must be GRANTED.
D. Attorney’s Fees
Defendants’ Motion for Attorneys’ Fees pursuant to 42 U.S.C.
§ 3613(c)(2) is meritless and must be DENIED.

IV.

CONCLUSION

Because there is a genuine dispute of material fact as to whether
Defendants’

stated

reasons

for

their

actions

are

real

or

pretextual, summary judgment is DENIED to the Defendants on Counts
I-VI, and to Plaintiffs on Counts III and IV.

There is no implied

private right of action to enforce 42 U.S.C § 1437f and its
accompanying

regulations,

so

summary

22

judgment

is

GRANTED

to

Case 1:17-cv-00117-WES-PAS Document 62 Filed 02/02/22 Page 23 of 23 PageID #: 2239

Defendants on Count VII.

Defendants Motion for Attorneys’ Fees is

DENIED.
IT IS SO ORDERED.

William E. Smith
District Judge
Date: February 2, 2022

23