United States District Court, Eastern District of Pennsylvania
March 22, 2000
KIMBERLY A. LANE, AND CHARLOTTE E. MCQUEEN, INDIVIDUALLY AND ON BEHALF OF HER TWO MINOR CHILDREN, KAREEM JAMAL AND JAHLEAR HARRIS,
JOHN COLE AND ROSE COLE.
The opinion of the court was delivered by: Waldman, District Judge.
Plaintiffs assert federal claims against defendants under the Fair
Housing Act, 42 U.S.C. § 3601
et seq. Plaintiffs Lane and McQueen
also assert state law claims for intentional infliction of emotional
distress against defendants, and plaintiff Lane asserts state law claims
for assault and battery against defendant John Cole. Presently before the
court is defendants' Motion to Dismiss Plaintiffs' First Amended
Defendants seek dismissal of the Fair Housing Act claims of plaintiff
McQueen and on behalf of Jamal and Harris, and dismissal of the
intentional infliction of emotional distress claims of plaintiffs Lane
and McQueen. Defendants contend that only plaintiff Lane has standing to
maintain a Fair Housing Act claim and that the conduct attributed to
defendants is not sufficiently outrageous to state a claim for
intentional infliction of emotional distress.
In assessing a motion to dismiss, the court assumes to be true all of
the factual allegations in the complaint and the reasonable inferences
therefrom, and views them in the light most favorable to the nonmovants.
See Rocks v. Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). A claim
should be dismissed only if it appears beyond doubt from the face of the
complaint that a plaintiff cannot prove any set of facts which would
entitle her to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73,
104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Robb v. Philadelphia, 733 F.2d 286,
290 (3d Cir. 1984). In their amended complaint, plaintiffs make the
following factual allegations.
In March 1999, plaintiff Lane leased an apartment for an unspecified
period in a building in Philadelphia which was owned and managed by
defendants. The building was all white and the surrounding Port Richmond
neighborhood was virtually all white. Ms. Lane moved in on March 17,
1999. Ms. Lane was visited on "multiple occasions" over the next two
weeks by her friend Charlotte McQueen and Ms. McQueen's two children,
five year old Kareem Jamal and three year old Jahlear Harris. On "some"
of these occasions, Ms. McQueen and her children stayed at the apartment
overnight. They are black.
Defendant Rose Cole telephoned Ms. Lane at work on March 29, 1999 and
asked if her friend Charlotte was black. When Ms. Lane responded
affirmatively, Ms. Cole stated she should "look for somewhere else to
live" as their "neighbors were not tolerant of that." Ms. Cole expressed
fear that the property "would be vandalized by upset neighbors" and that
"someone could get hurt."
On March 30, 1999, Ms. Cole left a letter at Ms. Lane's apartment. The
letter stated that Ms. Lane was being evicted because of "non-payment of
a security deposit" and "the number of occupants in the apartment," and
that she had thirty days to vacate the apartment. At this juncture, the
court assumes to be true plaintiffs' allegation that Ms. Lane had in fact
tendered a security deposit upon leasing the apartment.*fn1
On March 31, 1999, defendant John Cole physically confronted Ms. Lane
in the hallway outside her apartment door. Mr. Cole blocked Ms. Lane's
egress, "violently" shook his arms and threatened to "punch her," to "put
her in the hospital," to "kill her" and to "remove the blacks" from the
apartment if she did not do so. Rose Cole separated her husband from Ms.
Lane. Ms. Cole stated that "a neighbor had complained about there being
blacks in the building" and that "problem were going to continue" until
Ms. Lane and Ms. McQueen's "kind" were gone. I Ms. Lane then retreated
into her apartment, Ms. Cole kicked the front door.
During the confrontation, Ms. McQueen opened the apartment door and
observed Mr. Cole's menacing conduct. Ms. McQueen was afraid that he
would hurt her and the children, and closed the door. The two children
were frightened and cowering inside the apartment.
On April 2, 1999, Ms. Lane began to load her belongings into her car
which she had parked in front of the building. Ms. McQueen and her two
children were sitting in the parked car when Mr. Cole observed the scene
from a nearby patio. He shouted at Ms. Lane that she "better get in the
car and leave or he would come and break her kneecaps" and to get "that
trash" out of here, referring to Ms. McQueen and her children. Ms. Lane
then departed promptly and returned with a police officer on April 5,
1999 to retrieve the rest of her belongings.
As a result of defendants' conduct, Ms. Lane and Ms. McQueen both
continue to experience anger, fear, mental anguish and emotional distress
accompanied by headaches and nightmares.
The Fair Housing Act makes it unlawful
(a) To refuse to sell or rent after the making of a
bona fide offer, or to refuse to negotiate for the
sale or rental of, or otherwise make unavailable or
deny, a dwelling to any person because of race,
color, religion, sex, familial status, or national
origin. (b) To 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 therewith, because of race,
color, religion, sex, familial status, or national
See 42 U.S.C. § 3604. The Act also makes it unlawful
to coerce, intimidate, threaten, or interfere with
any person in the exercise or enjoyment of, or on
account of his having exercised or enjoyed, or 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.
See 42 U.S.C. § 3617.
The Act provides that "[a]n aggrieved person may commence a civil
action in an appropriate United States district court." See
42 U.S.C. § 3613 (a)(1)(A). An "aggrieved person" is defined as "any
person who — (1) claims to have been injured by a discriminatory
housing practice; or (2) believes that such person will be injured by a
discriminatory housing practice that is about to occur." See
42 U.S.C. § 3602 (i).
Standing under the Fair Housing Act is not limited by traditional
prudential requirements. Rather, it is subject only to the Article III
requirement of injury in fact.
Any person harmed by a defendant's discriminatory actions, whether or
not he is the object of that discrimination, may sue for any "distinct
and palpable injury" he has suffered. See Havens Realty Corp. v.
Coleman, 455 U.S. 363, 372, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982)(holding
that "tester" with no intention of renting nevertheless had standing to
sue for damages under Fair Housing Act based on misrepresentation made
unlawful under § 804(d) as he suffered injury in "precisely the form
the [Act] was intended to guard against"); Gladstone, Realtors v. Village
of Bellwood, 441 U.S. 91, 109, 111-15, 99 S.Ct. 1601, 60 L.Ed.2d 66
(1979) (white neighborhood residents who were not objects of
discrimination had standing to sue for social and economic injuries
resulting from loss of integrated character of neighborhood due to
discriminatory housing practices); Trafficante v. Metropolitan Life Ins.
Co., 409 U.S. 205, 208, 210-11, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972)
(relying in part on statutory language providing standing to sue to "any
person who claims to be injured by a discriminatory housing practice" to
hold white tenants of apartment complex established injury in fact when
alleging they were denied benefits of association with non-whites as
result of discriminatory rental practices). See also Woods-Drake v.
667 F.2d 1198, 1201-02 (5th Cir. 1982) (white tenants threatened
with eviction for having black guests have standing under Fair Housing
Act); Bills v. Hodges, 628 F.2d 844, 845 & n. 1 (4th Cir. 1980)
(suggesting that absent "Mrs. Murphy" exception, white tenants evicted
because they entertained blacks in their apartment could maintain Fair
Housing Act claim).
In no reported case to date has a court squarely held that a visitor
has or lacks standing to sue under the Fair Housing Act. The court
concludes that a visitor claiming a distinct and palpable injury as a
result of a discriminatory housing practice has standing to sue. If it is
a discriminatory housing practice to condition rental rights on the
exclusion of black guests, it reasonably follows that a black invitee who
is excluded or coerced into leaving because of race has been "aggrieved"
or "injured by a discriminatory housing practice." See United States v. L
& H Land Corp., 407 F. Supp. 576, 580 (S.D.Fla. 1976) (although not
required to address standing as plaintiff was United States, stating that
refusal of landlord to permit tenant to entertain guests because of their
race constitutes discriminatory conduct against both tenant and guests in
violation of Fair Housing Act). All plaintiffs have stated cognizable
Fair Housing Act claims.
To maintain a claim for intentional infliction of emotional distress, a
plaintiff must allege intentional or reckless conduct by a defendant which
is "so outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized society." Hoy v. Angelone, 554 Pa. 134,
720 A.2d 745, 754 (1998). "Where reasonable persons may differ, it is for
the jury to determine whether the conduct is sufficiently extreme and
outrageous so as to result in liability." Motheral v. Burkhart,
400 Pa. Super. 408, 583 A.2d 1180, 1188 (1990).
It is clear that "liability . . . does not extend to mere insults,
threats, annoyances, petty oppressions, or other trivialities." Kazatsky
v. King David Memorial Park, Inc., 515 Pa. 183, 527 A.2d 988, 991 (1987)
(quoting Restatement (Second) of Torts § 46 cmt. d). See also Clark
v. Township of Falls, 890 F.2d 611, 623 (3d Cir. 1989) (reversing verdict
for plaintiff who was defamed, falsely referred for prosecution and
deprived of First Amendment rights); Motheral, 583 A.2d at 1190 (falsely
accusing plaintiff of child molestation not sufficient).
Invidious discrimination is not alone sufficient to support an
intentional infliction of emotional distress claim. See Andrews v. City
of Philadelphia, 895 F.2d 1469, 1487 (3d Cir. 1990) (sexual harassment
insufficient); Coney v. Pepsi Cola Bottling Co., 1997 WL 299434, *1
(E.D.Pa. May 29, 1997) ("highly provocative racial slurs and other
discriminatory incidents do not amount to actionable outrageous
conduct"); Equal Employment Opportunity Comm'n. v. Chestnut Hill Hosp.,
874 F. Supp. 92, 96 (E.D.Pa. 1995) (racial discrimination in employment
decision insufficient to sustain claim); Nichols v. Acme Markets, Inc.,
712 F. Supp. 488, 494-95 (E.D.Pa. 1989) (same), aff'd, 902 F.2d 1561 (3d
Cir. 1990); Hoy, 720 A.2d at 754-55 (sexual harassment including sexual
propositions insufficient to sustain claim).
The ejection of a tenant from her home with threats of violence in
retaliation for her refusal to accede to racial discrimination is another
matter. The court concludes that such conduct, if proven, is sufficiently
outrageous and extreme to sustain an intentional infliction of emotional
distress claim. See Silver v. Mendel, 894 F.2d 598, 606 & n. 18 (3d Cir.
1990)(allegation that defendants threatened plaintiff with physical
injury and destruction of business to extort money from him sufficient to
state emotional distress claim), cert. denied, 496 U.S. 926, 110 S.Ct.
2620, 110 L.Ed.2d 641 (1990); Williams v. Guzzardi, 875 F.2d 46, 52 (3d
Cir. 1989); (eviction of tenant by landlord who tricked tenant into
giving up his keys and gave him no opportunity to remove
his belongings which were thrown into the street sufficient to sustain
intentional infliction claim); Pryor v. Mercy Cath. Med. Center,
1999 WL 956376, *3 (E.D.Pa. Oct. 19, 1999) denying motion to dismiss
intentional infliction of emotional distress claim where plaintiff alleged
sexual harassment including physical force and retaliation); Regan v.
Township of Lower Merion, 36 F. Supp.2d 245, 251 (E.D.Pa. 1999)
(upholding claim where plaintiff suffered retaliation for complaining about
sexual harassment including sexually offensive comments and inappropriate
touching); McLaughlin v. Rose Tree Media Sch. Dist.,
1 F. Supp.2d 476, 483 (E.D.Pa. 1998) (upholding claim where
plaintiff alleged sexual harassment including assault and threats of
retaliation); Hides v. CertainTeed Corp., 1995 WL 458786, *4
(E.D.Pa. July 26, 1995) (allegation that defendant fabricated reason to
fire plaintiff and coerced him into signing false confession of criminal
activity); Bowersox v. P.H. Glatfelter Co., 677 F. Supp. 307,
311 (M.D.Pa. 1988) (sexual harassment plus retaliation sufficient).
The conduct to which plaintiff Lane was allegedly subjected is
sufficiently outrageous and extreme to support an intentional infliction
of emotional distress claim. Given the stringent standard for
outrageousness employed by the courts in assessing intentional infliction
claims under Pennsylvania law, the question is closer as to plaintiff
McQueen. However offensive, the alleged insults directed at Ms. McQueen
or shouted in her presence are alone insufficient to state a claim. It
can reasonably be inferred from the complaint that Ms. McQueen also was
placed in fear for her safety and that of her young children. Whether the
conduct of either defendant was sufficiently extreme and atrocious as to
Ms. McQueen is better answered at the summary judgment stage when the
court can more precisely ascertain the extent to which she may have
witnessed the offending conduct and to which each defendant may have been
aware of her presence. See Johnson v. Caparelli, 425 Pa. Super. 404, 625
A.2d 668, 671 (1993), alloc. denied, 538 Pa. 635, 647 A.2d 511 (1994).*fn2
To maintain a claim for intentional infliction of emotional distress, a
plaintiff must also allege that she has suffered "severe" emotional
distress resulting from the defendant's conduct. Severe emotional
distress includes "fright, horror, grief, shame, humiliation,
embarrassment, anger, chagrin, disappointment, worry and nausea." See
Restatement (Second) of Torts § 46, cmt. j; Kazatsky, 527 A.2d at 996
(Larsen, J., concurring). Such emotional distress must also be
accompanied by some physical manifestation. See Corbett v. Morgenstern,
934 F. Supp. 680, 684-85 (E.D.Pa. 1996) (symptoms of severe depression,
nightmares, anxiety and ongoing mental or physical harm are sufficient).
Plaintiffs' allegations that they continue to suffer "fear, anxiety,
stress, anger, headaches, nightmares, humiliation, embarrassment,
emotional distress [and] mental anguish" are sufficient to raise an
inference of severe emotional distress.
The court cannot conclude beyond doubt from plaintiffs' pleadings that
they will be unable to prove any set of facts which would entitle them to
relief on the claims they have asserted. Accordingly, defendants' motion
will be denied.