DocketNumber： Nos. 43003-7-II; 43376-1-II
Judges： Brintnall, Dalton, Johanson, Quinn
Filed Date： 10/15/2013
Status： Precedential
Modified Date： 11/16/2024
¶1 Mary Gossard rented a home from David and Faris Tafoya.
FACTS
¶2 The Tafoyas own property in Thurston County. The property includes the Tafoyas’ home and a rental home. A fence separates the Tafoyas’ property from the rental property. In March 2006, Gossard and the Tafoyas signed a one-year lease.
¶3 David engaged in numerous instances of inappropriate behavior with Gossard during the time she lived in the rental home. The first episode occurred while Gossard was signing the lease: David asked his wife if she would mind if David chased Gossard around the pond on the property. Later, while David was helping Gossard move her piano, he made a comment about women being stupid. David also hugged Gossard and touched her buttocks.
¶4 David made several sexually inappropriate comments to Gossard: When Gossard broke her ankle, David brought her dinner and said, “I’ve seen your pussy.”
¶5 David made several less explicit comments that made Gossard feel uncomfortable. David told Gossard that he thought about her all the time. He also told Gossard that Faris was going through menopause and they were no longer having sex. AR at 365. One night, David called Gossard and told her to come over to his house. Gossard responded that she could not because she was in her bathrobe. David told her she should just come over in her bathrobe. Gossard refused. After Gossard’s friend stayed the night at her house, David made a comment implying that Gossard was a prostitute. Once, David poked her in the stomach and commented that she was “gaining weight and looked like the Pillsbury doughboy.”
¶6 In addition to his comments, David’s behavior made Gossard feel uncomfortable, embarrassed, and afraid. One afternoon, Gossard went to the Tafoyas’ house to ask directions to the post office and David answered the door completely nude. Another afternoon,
[David] invited [Gossard] to see his art in his [recreational vehicle (RV)]. Gossard saw that the paintings were of sexual subjects, including [Faris] in a bikini touching herself and a woman with her legs spread open. [David] pushed .. . Gossard onto the bed and sat down next to her. . . . Gossard left immediately.
AR at 366.
¶8 In May 2006, Gossard filed a complaint with the Commission. On June 13, the Commission notified the Tafoyas that it was investigating Gossard’s complaint. After the Tafoyas were notified of Gossard’s complaint, they treated her differently. David stopped mowing the lawn on the rental property, which he had done before Gossard’s complaint. David threatened to throw rocks at Gossard’s cat, causing Gossard to fear for her cat’s safety. David also took down the chicken wire that had been installed on the fence to prevent Gossard’s cat from running into the roadway. The Tafoyas also contacted Gossard’s ex-husband to obtain information about Gossard to present to the Commission, despite Gossard’s earlier admonishment against contacting her ex-husband.
¶9 The Commission investigated Gossard’s complaint and filed an amended complaint, charging the Tafoyas with engaging in unfair practices in a real estate transaction. Specifically, the Commission alleged the Tafoyas committed unfair practices by
(1) subjecting Gossard to sexual harassment; (2) failing to take action designed to end the sexual harassment; (3) coercing, intimidating, threatening, and interfering with Gossard’s attempts to exercise and enjoy her fair housing rights; (4) coercing, intimidating, threatening, and interfering with*222 Gossard’s attempts to oppose other unfair practices described herein; and (5) aiding and assisting each other in perpetuation of the other unfair practices described herein.
AR at 5. A four-day administrative hearing was held in August 2010.
¶10 Gossard testified to the above facts at the administrative hearing. Some of the Tafoyas’ former tenants testified that David had also engaged in similarly inappropriate behavior during their tenancies. The Tafoyas denied Gossard’s accusations or, alternatively, argued that David’s actions were not “sufficiently severe so as to constitute discrimination by sexual harassment.” AR at 377.
¶11 The ALJ found that Gossard’s testimony was credible and the “Tafoyas’ denials and descriptions of the incidents [we]re not credible.” AR at 377. The ALJ concluded that the Tafoyas engaged in sex discrimination by sexual harassment and Faris aided and abetted David’s sexual harassment of Gossard. The ALJ also concluded that that Tafoyas engaged in retaliatory acts by threatening Gossard’s cat and contacting her ex-husband.
¶12 The ALJ ordered the Tafoyas to cease and desist from engaging in unfair practices by sexually harassing female tenants or retaliating against persons who file discrimination complaints. AR at 390. The ALJ awarded Gossard actual damages in the amount of $3,422.75 and $10,000.00 in compensatory damages for “humiliation and emotional distress,” and imposed a civil penalty of $10,000.00.
¶13 The Tafoyas appealed to the Thurston County Superior Court. The superior court reduced Gossard’s damages to $3,114.75 but affirmed the ALJ’s final decision in all other respects. The Tafoyas timely appeal.
ANALYSIS
¶14 The Administrative Procedure Act (APA), chapter 34.05 RCW, governs our review of agency action. The party
¶15 “We apply the APA’s standards directly to the agency record, sitting in the same position as the superior court.” Timberlane Mobile Home Park v. Human Rights Comm’n ex rel. Campbell, 122 Wn. App. 896, 900, 95 P.3d 1288 (2004) (citing Burnham v. Dep’t of Soc. & Health Servs., 115 Wn. App. 435, 438, 63 P.3d 816 (2003)). We review findings of fact for substantial evidence. Timberlane, 122 Wn. App. at 900. “An agency order is supported by substantial evidence if there is ‘a sufficient quantity of evidence to persuade a fair-minded person of the truth or correctness of the order.’ ’’ Hardee v. Dep’t of Soc. & Health Servs., 172 Wn.2d 1, 7, 256 P.3d 339 (2011) (internal quotation marks omitted) (quoting Thurston County v. W. Wash. Growth Mgmt. Hr’gs Bd., 164 Wn.2d 329, 341, 190 P.3d 38 (2008)). We review conclusions of law de novo. Timberlane, 122 Wn. App. at 900.
Unfair Practices in Real Estate Transactions
¶16 The ALJ concluded that the Tafoyas engaged in unfair real estate practices under the WLAD. The Tafoyas appear to argue that the ALJ misinterpreted and misapplied the law because (1) they did not violate the plain language of the statute because they rented the property to Gossard and did not prevent her from using it and (2) David’s conduct was not sufficiently severe or pervasive to be considered sexual harassment. We hold that the ALJ properly concluded that sexual harassment by a landlord toward a tenant is discriminatory conduct that interferes with the terms, conditions, or privileges associated with renting property and David’s conduct constituted sexual harassment in violation of the WLAD.
¶17 RCW 49.60.030 guarantees the right to be free from discrimination because of sex. The right to be free from
¶18 There are no Washington cases that address sexual harassment as an unfair practice in real estate transactions under the WLAD. But there is significant federal authority that (1) establishes sexual harassment as a form of discrimination in housing and (2) provides the legal standard for determining whether sexual harassment has occurred. Similar to the WLAD, the Fair Housing Amendments Act of 1988 (FHAA), 42 U.S.C. §§ 3601-3614a, prohibits discrimination “in the terms, conditions, or privileges of sale or rental of a dwelling” based on sex. 42 U.S.C. § 3604(b). The FHAA also prohibits making a dwelling unavailable because of sex. 42 U.S.C. § 3604(a). “[T]he language of the [FHAA] is ‘broad and inclusive’ and must be given a ‘generous construction.’ ” Samaritan Inns, Inc. v. District of Columbia, 325 U.S. App. D.C. 19, 114 F.3d 1227, 1234 (1997) (quoting Trafficante v. Metro Life Ins. Co., 409 U.S. 205, 209, 212, 93 S. Ct. 364, 34 L. Ed. 2d 415 (1972)). When interpreting Washington law, we may look to the federal case law when a federal antidiscrimination law contains the same protections and mandates the same broad construction. Fahn v. Cowlitz County, 93 Wn.2d 368, 376, 610 P.2d 857, 621 P.2d 1293 (1980).
¶19 The Tafoyas assert that “[t]here is no issue concerning the fact that Gossard obtained possession of the rental
¶20 But the Tafoyas ignore several federal cases that recognize sexual harassment as a form of discrimination in the terms, conditions, or privileges of renting property. United States v. Hurt, 676 F.3d 649, 654 (8th Cir. 2012) (“Sexual harassment is actionable under the FHA[A].”); see also Quigley v. Winter, 598 F.3d 938, 946 (8th Cir. 2010); DiCenso v. Cisneros, 96 F.3d 1004, 1008 (7th Cir. 1996); Honce v. Vigil, 1 F.3d 1085, 1088-90 (10th Cir. 1993). Washington courts have similarly recognized the necessity of construing the WLAD broadly to effect the legislative purpose of the WLAD: to eliminate and prevent discrimination in real estate transactions based on sex. RCW 49.60.010; Blaney, 151 Wn.2d at 214. Indeed, the legislature has explicitly found that “discrimination threatens not only the rights and proper privileges of its inhabitants but menaces the institutions and foundations of a free democratic state.” RCW 49.60.010. Under the Tafoyas’ narrow construction of the WLAD, there would be no claim for discrimination as long as a tenant is not sexually harassed until after she has rented property and resided on it. The Tafoyas would create an absurd result that could not have been intended by the legislature and that clearly defies the mandate to construe the WLAD broadly to prevent discrimination. Dep’t of Ecology v. Tiger Oil Corp., 166 Wn. App. 720, 762, 271 P.3d 331 (2012) (citing Eurick v. Pemco Ins. Co., 108 Wn.2d 338, 341, 738 P.2d 251 (1987)). Accordingly, we reject Tafoyas argument and hold that sexual harassment is an unfair practice in a real estate transaction and is actionable under the WLAD.
¶22 Where there is not an established standard for establishing discrimination in a certain context, we will often rely on the standards from employment discrimination cases. For example, in Fell v. Spokane Transit Authority, 128 Wn.2d 618, 632, 911 P.2d 1319 (1996), our Supreme Court, to ascertain whether there was discrimination against the disabled in places of public accommodation, used the standards for determining whether an employer discriminated against the disabled in the workplace. The ALJ relied on the test for sexual harassment in employment our Supreme Court set out in Glasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 406-07, 693 P.2d 708 (1985). Under Glasgow, the four necessary elements of a sexual harassment claim are (1) the harassment was unwelcome, (2) the harassment was because of sex, (3) the harassment affected the terms and conditions of employment, and (4) the harassment was imputed to the employer. 103 Wn.2d at 406-07. Because Washington’s test for sexual harassment in employment discrimination encompasses the federal requirements for sexual harassment in housing, the ALJ properly applied the Glasgow four-part test to determine whether a tenant has established sexual harassment in housing.
¶23 Using the Glasgow analytical framework, the Commission would have to prove that (1) David’s conduct was
¶24 The Tafoyas characterize David’s conduct as isolated or trivial. We agree with the ALJ that David’s conduct was sufficiently severe to establish sexual harassment. The ALJ’s findings of fact identify at least 14 instances of inappropriate behavior by David, including physical touching and sexually explicit comments. Gossard testified that David’s conduct made her feel embarrassed, uncomfortable, and afraid when she was in her home. David’s conduct was not isolated or trivial. To the contrary, his conduct was a regular occurrence while Gossard lived on the property. David made several sexually explicit comments, including one comment in which he stated that he “made love to [her] several times” and another comment in which he stated he thought about her while he masturbated. AR at 364. David answered the door while naked, and he pushed Gossard onto the bed in an RV filled with his sexually explicit art.
¶25 Although not binding, the Eighth Circuit’s decision in Quigley is factually on point and persuades us. In Quigley, the tenant testified that her landlord
subjected her to unwanted touching on two occasions, made sexually suggestive comments, rubbed his genitals in front of her, placed several middle of the night phone calls to her home, made repeated unannounced visits, and, on one occasion, while [the landlord] lay on [the tenant’s] couch, had to be told to leave her home at least three times before he complied.
598 F.3d at 947. Based on this testimony, the court concluded the tenant “presented sufficient evidence of numer
¶26 Faris argues that she cannot be held liable for David’s conduct because she had very little firsthand knowledge of the situation and did not have very much contact with Gossard. But Faris misunderstands the law. She relies on principles of joint and several tort liability against the marital community to support her argument. But the ALJ did not impose liability on Faris by virtue of the marital community. Instead, Faris is liable for discrimination by virtue of her position as a landlord.
¶27 In the employment context, liability is imputed to the employer when the employer either participates in the harassment or the employer knew or should have known of the harassment and failed to take remedial action. Glasgow, 103 Wn.2d at 407. Here, Gossard told Faris about David’s conduct, but Faris failed to investigate or take any remedial action. To the contrary, Faris accused Gossard of initiating the contact with David and participated in the retaliation by contacting Gossard’s ex-husband. The purpose of imputing liability is to ensure that landlords investigate complaints and take appropriate action to stop harassment. A landlord cannot avoid imputed liability by simply choosing to ignore a tenant’s complaint. We hold
First Amendment
¶28 The Tafoyas also argue that the ALJ erred by concluding that David’s comments were not protected by the First Amendment to the United States Constitution. But it is well established that speech that constitutes harassment is unprotected speech. Accordingly, the ALJ did not err in rejecting this meritless argument.
¶29 In Mills v. Western Washington University, 150 Wn. App. 260, 274, 208 P.3d 13 (2009), rev’d on other grounds, 170 Wn.2d 903, 246 P.3d 1254 (2011), Division One of this court stated:
To be explicit, none of the following behaviors implicate academic freedom in the slightest, or are protected by either the First Amendment or article I, section 5: verbally abusing faculty colleagues with discriminatory and sexual innuendo; harassing, intimidating, demeaning, and insulting students outside of the classroom; [and] verbally abusing staff members and student assistants serving in an administrative capacity.
(Emphasis added.) Here, David’s speech can be characterized as discriminatory, sexually explicit or sexual innuendo, and harassing. Under Mills, this type of speech is not protected speech. As the Commission correctly points out, the case law governing harassing and discriminatory speech is clear that David’s comments are not protected speech.
¶30 Finally, the Tafoyas argue that the ALJ’s findings regarding Gossard’s emotional distress are not supported by substantial evidence. Specifically, the Tafoyas argue that the ALJ cannot award damages for emotional distress without the testimony of a licensed medical professional. But the Tafoyas rely on cases regarding the sufficiency of the evidence supporting tort claims for negligent infliction of emotional distress, which are inapplicable to sexual harassment claims. We reject the Tafoyas’ argument and hold that the ALJ properly awarded damages authorized by the WLAD.
¶31 RCW 49.60.225(1) authorizes the ALJ to award any damages “for such relief suffered by the aggrieved person” and damages authorized by the FHAA. Federal courts have held that “emotional distress caused by housing discrimination is a compensable injury under the [FHAA].” United States v. Balistrieri, 981 F.2d 916, 931 (7th Cir. 1992) (citing Seaton v. Sky Realty Co., 491 F.2d 634, 636-38 (7th Cir. 1974)). But emotional distress will not be presumed; the plaintiff must prove that the discrimination caused actual emotional distress. Balistrieri, 981 F.2d at 931 (citing Carey v. Piphus, 435 U.S. 247, 263-64, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978)). If the plaintiff’s testimony “ ‘reasonably and sufficiently’ ” explains the emotional distress, the plaintiff’s testimony is sufficient to support the award of damages. Balistrieri, 981 F.2d at 931-32 (internal quotation marks omitted) (quoting Biggs v. Village of Dupo, 892 F.2d 1298, 1304 (7th Cir. 1990)). Similarly, we have held that “[a] discrimination plaintiff may seek monetary compensation for ‘actual damages,’ including distress and mental anguish caused by discrimination, and may prove such damages through nonexpert testimony.” Negron v. Snoqualmie Valley Hosp., 86 Wn. App. 579, 588, 936 P.2d 55 (1997) (footnote omitted) (quoting former RCW 49.60.030(2) (1995) and citing Delahunty v. Cahoon, 66 Wn. App. 829, 842, 832 P.2d 1378 (1992)).
¶33 In sum, the Tafoyas’ arguments regarding the substantive nature of the claims are untenable. We hold that as a matter of law, sexual harassment is an actionable claim under the WLAD when the sexual harassment interferes with the terms, conditions, and privileges of a rental agreement by preventing the use and enjoyment of property. The proper standard for evaluating a claim for sexual harassment is the standard our Supreme Court articulated for sexual harassment in employment in Glasgow. The ALJ did not misinterpret or misapply the law when she concluded that the Tafoyas violated the WLAD by discriminating against Gossard based on her sex. And, because liability may be imputed to a landlord who fails to take reasonable investigative and/or remedial action after receiving a harassment complaint, the ALJ did not err by imposing liabil
¶34 We affirm the ALJ’s decision and remand for further proceedings consistent with this opinion.
Judge Jeanette Dalton is serving as a judge pro tempore of the Court of Appeals under CAR 21(c).
David and Faris Tafoya, collectively, are referred to as “the Tafoyas.” When referred to individually, David’s and Faris’s first names are used for clarity; we intend no disrespect.
Gossard owns a cat.
At the time she rented the property, Gossard told the Tafoyas that she had a protection order against her ex-husband because he was abusive. She specifically asked the Tafoyas not to “disclose any information to anyone about [her] living situation, as [she] wanted to keep it private due to the fact that [she] knew that [her] ex-husband could find out and possibly hurt [her].” Admin. Report of Proceedings at 51.
We also note that Faris is directly liable for her retaliatory conduct, specifically, her direct participation in contacting Gossard’s ex-husband.
The Tafoyas base their argument on cases addressing criminal statutes meant to punish speech — speech categorized as fighting words. David’s speech is not categorized as fighting words; therefore, the cases cited by the Tafoyas are inapplicable.
“Subjugate” means “to bring or hold under strict control or into a subordinate position.” Webster’s Third New International Dictionary 2276 (1969).
We note that the superior court order modified the amount of actual damages awarded in the ALJ’s order. However, the parties do not challenge either the amount of damages in the ALJ’s order or the superior court’s order modifying the amount of actual damages. We do not consider the trial court’s action on administrative appeal. Postema v. Pollution Control Hr’gs Bd., 142 Wn.2d 68, 77, 11 P.3d 726 (2000). Accordingly, we affirm the ALJ’s opinion in its entirety, including the original amount of actual damages awarded by the ALJ.