Housing Agency Officers May Be Liable for Retaliation

Facts: An owner who has participated in the Housing Choice Voucher (HCV) program since 2005 claimed that between March and June 2011, he attended local PHA public hearings to voice complaints against the PHA to the public and to the Board of Commissioners. He criticized the PHA for breaching its agreements with HUD by knowingly hiring unqualified and improperly trained inspectors who lacked the required licensing.

According to the owner, due to his public complaints, the PHA’s senior vice president of the HCV program and the deputy director of inspections initiated a series of retaliatory actions against him. On Aug. 10, 2011, the PHA reclassified an inspection of one of his units as a “fail.” This was the first time an inspection of one of his units had been reclassified. When he asked why the inspection had been reclassified, the PHA’s senior vice president told the owner that they would reinspect the unit.

A new inspection of the unit was conducted on Aug. 17, 2011. This time, the inspectors failed 50 items in the unit. This was the largest number of deficiencies for which the owner had ever been cited in an inspection. When the owner contacted the deputy director of inspections to inquire about the list of failed items, he was told that the inspection was a “special inspection.” According to the owner, a “special inspection” of the unit wasn’t allowed under the PHA’s administrative plan because neither the owner nor the resident had requested such an inspection. The PHA didn’t provide the owner with a timely report regarding the failed items so that he could correct any deficiencies. The owner received a copy of the inspection report on Aug. 29, 2011. It indicated that the failed items were emergency repairs, but the owner argued that they didn’t meet the PHA’s criteria for emergency repairs.

On Aug. 24, 2011, the PHA sent a Notice to Vacate to one of the owner’s residents. The PHA didn’t give the notice to the owner until Oct. 28, 2011. The PHA admitted that the untimely notice was a violation of its own policies and procedures. The PHA issued the resident a voucher permitting her to move from the owner’s unit, even though she was still under a lease and had damaged the owner’s property.

On Aug. 31, 2011, the owner received a letter from the senior vice president stating that she had determined that there were concerns as to whether he was meeting his obligations under the HCV program and the HAP contracts. She threatened to abate his rent payments and terminate his HAP contracts. And on Sept. 1, 2011, the owner’s HAP payment for the prior month was deficient by $7,800. The payment was accompanied by no explanation regarding the deficiency. Upon contacting the PHA, the owner received an email stating that the PHA had terminated one of his HAP contracts. In October 2011, the PHA sent five of the owner’s residents notices that the PHA intended to terminate them from the HCV program.

On Jan. 27, 2012, the owner again complained to the PHA that its inspectors weren’t properly licensed. On Jan. 31, 2012, the PHA terminated one of the owner’s residents from the HCV program, without providing her with an administrative hearing, and terminated rent subsidy payments to the owner on her behalf. Another of his residents was terminated from the HCV program without a hearing in February 2012. And in April 2012, the PHA inspected one of the owner’s properties and cited him with a list of failed items that the owner claimed didn’t constitute failed conditions.

The owner sued the officers for violating his First Amendment rights and sought a court order barring unqualified and/or unlicensed inspectors from performing inspections in the future. The officers asked the court to dismiss this claim against them.

Ruling: An Illinois district court denied the officers' request.

Reasoning: To state a valid First Amendment retaliation claim, the owner must allege that: “(1) he engaged in activity protected by the First Amendment; (2) he suffered a deprivation that would likely deter First Amendment activity in the future; and (3) a causal connection [exists] between the two.”

Here, the court concluded that the owner’s statements before the public and the board criticizing the PHA could constitute protected speech, because they were made publicly and could affect the public’s evaluation of the PHA’s performance. Also, a causal connection between his complaints and alleged retaliation could be inferred from the close proximity in time in which they occurred. The allegations support a reasonable inference that the officers knew about the owner’s complaints and were personally involved in the alleged retaliation against the owner. Therefore, the request to dismiss the case was denied and a trial can continue.

• Schlessinger v. The Chicago Housing Authority, June 2013