This is a common thread I now see from time to time.  A discrimination case is pending (and it is likely about to be dismissed or already has been dismissed).  The plaintiff, disappointed with the progress and/or disposition of the case, then amends his or her complaint (or files a second complaint) – this one alleging retaliation.  Under our Fair Housing Act (FHA), filing complaints is protected activity and management must not retaliate against an applicant, resident, or former resident because he or she has filed a prior discrimination complaint.

I have no issue with that statement of the law.  The fact pattern that often comes up, however, is that once a resident claims retaliation – many times the resident believes he or she is now bulletproof and that the rules no longer apply.  That is, of course, not the case.  Everyone must still comport their behavior to what is required of all residents.

An extreme example of what can happen in retaliation cases was just reported by the U.S. Court of Appeals for the Seventh Circuit last month in an employment case.  In Benes v. A.B. Data, Ltd., No. 13-1166 (7th Cir. July 26, 2013) a then current employee filed a sex discrimination claim against his employer.  During an agency mediation of the claim, the employee became dissatisfied with the progress of the action, left the room the mediator had assigned to him, burst into the room in which his employer was sitting and stated that the employer could “take your proposal and shove it [in a particular place] and fire me and I’ll see you in court.”   Not surprisingly, management fired the employee.  And then the employee filed a retaliation claim.  Acting with dispatch, the appellate court noted that the plaintiff’s “hotheadedness” warranted his termination and that the law does not create a privilege to misbehave.

Similarly, in our FHA world, a resident with a retaliation complaint still must follow and is subject to the rules as are all residents.  Our challenge as property management, however, is to ensure our records and files prove that we are treating all residents the same such that we can affirmatively show whatever action has been taken against the complaining resident has nothing whatsoever to do with his or her prior complaint.  It can require us to jump through a few extra hoops, but retaliation is another example where having our files appropriately documented and updated can make all the difference.  And it will make my job as your lawyer smoother.

Just A Thought.