Elizabeth A. Honce v. Jose A. Vigil, D/B/A Dorado Investments, Inc., A/K/A Villa Chaparral Mobile Home Sub-Division Dorado Investments, Inc.

SEYMOUR, Circuit Judge,

dissenting.

I must respectfully dissent from the majority’s affirmance of the directed verdict in this case.- My examination of the record reveals that, under the standards governing review of directed verdict rulings, Ms. Honce offered sufficient evidence to raise a jury issue on each of her claims. In holding to the contrary, the district court erroneously refused to admit relevant evidence and misper-ceived the relevance of critical evidence that was admitted. In affirming, the majority selectively and improperly views the record in the light most favorable to Mr. Vigil. In so doing, it both relies on evidence that is irrelevant and disregards relevant evidence supporting Ms. Honce’s claims. Moreover, the majority proceeds under an inaccurate view of the applicable law. Although it articulates the proper test, it appears to evaluate the sexual harassment evidence under a crabbed definition that has been specifically rejected by this court.

*1092My disagreement with the majority begins with my belief that it has not reviewed the record under the standards governing consideration of a motion for directed verdict.

Fed.R.Civ. 50(a), which provides for a motion for a directed verdict, is intended to remove from the jury a case where there is either a “complete absence of proof of an issue or issues material to the cause of action” or where “there are no controverted issues of fact upon which reasonable men could differ.” 5A Moore’s Federal Practice ¶50.02[1], at 50-20 (2d ed. 1982). To ensure that the court’s exercise of discretion does not improperly invade the province of the jury, the court’s discretion to grant a motion for directed verdict is limited in several respects. Most importantly, the court must view the evidence in the light most favorable to the non-moving party. Wylie v. Ford Motor Company, 502 F.2d 1292, 1294 (10th Cir.1974). Further, the opposing party must be given the “benefit of all inferences which the evidence fairly supports, even though contrary inferences might reasonably be drawn.” New Mexico Savings & Loan Ass’n v. United States Fidelity and Guaranty Co., 454 F.2d 328, 331 (10th Cir.1972). Moreover, the court is not permitted to consider the credibility of witnesses in reaching its decision, Brady v. Southern Ry. Co., 320 U.S. 476, 479-80 [64 S.Ct. 232, 234-35, 88 L.Ed. 239] (1943); Wright & Miller, Federal Practice and Procedure § 2527, at 560 (1971), nor may a court weigh the evidence or determine where the preponderance of the evidence lies. Wylie v. Ford Motor Company, supra, 502 F.2d at 1294. See Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 700-01 [82 S.Ct. 1404, 1411-12, 8 L.Ed.2d 777] (1962) (jury weighs contradictory evidence and inferences, draws ultimate conclusion as to facts).
In short, only where “the evidence points all one way”, Wylie v. Ford Motor Company, supra, 502 F.2d at 1294, is a directed verdict appropriate. If there is conflicting evidence or insufficient evidence to warrant a one-way conclusion, a directed verdict is inappropriate. 5A Moore’s Federal Practice ¶ 50.02[1], supra, at 50-25 to -27. Generally, we have indicated that directed verdicts “should be cautiously and sparingly granted.” Black, Sivalls & Bryson, Inc. v. Keystone Steel Fabrication, Inc., 584 F.2d 946, 951 (10th Cir.1978) (quoting Wilkin v. Sunbeam Corp., 377 F.2d 344, 347 (10th Cir.1967)).

Martin v. Unit Rig & Equip. Co., 715 F.2d 1434, 1438 (10th Cir.1983).

I.

I agree with the majority that our assessment of discrimination claims under the Fair Housing Act, 42 U.S.C. § 3604(b), is guided by cases addressing employment discrimination under Title VII. However, I cannot agree with the majority’s application of that law to this record.

A.

I turn first to the issue of disparate treatment. To raise a jury issue on this claim, Ms. Honce was required to present evidence from which the jury could reasonably infer that Mr. Vigil, as a landlord, treated tenants who were women more harshly than tenants who were men. Although the majority refers to the testimony of Mr. and Mrs. Haen-ner, it fails to draw the inference from their evidence that is most favorable to Ms. Honce or to recognize that this favorable inference supports Ms. Honce’s assertion of disparate treatment. Mr. and Mrs. Haenner both testified that Mr. Vigil harassed Mrs. Haenner almost daily about tenancy matters while refusing to deal with Mr. Haenner on these problems even when both Mr. and Mrs. Haenner asked him to do so. Aplt.App. at 342-43, 354, 359. Mrs. Haenner told her husband the situation was so unbearable that she was moving out of the trailer park with or without him. Id. at 360. Mr. Haenner refused to leave until he was given this ultimatum. Id. This evidence supports a reasonable inference that Mr. Vigil’s conduct was selectively directed to women rather than men and amounted to constructive eviction.

Moreover, Mr. Vigil himself testified that the problems he had as a landlord primarily involved tenants who were women. The court specifically asked Mr. Vigil: “Do you *1093have the same problem with males in your mobile home subdivision as you do the females?” Id. at 271. Mr. Vigil responded:

On the accusations, normally they’ve been with the women. It’s a routine situation. Somebody gets evicted the plan is to go make a report at the police station and include sex. But they’re not bright enough to even come up with it themselves. I’m the one that told them years ago that that’s what I’m going to be accused of, that someday I was going to be sitting in a court because they can’t get to me through money, through law. The only way they can get to me is through false sexual allegations.

Id. at 271-72. Apparently, Mr. Vigil believed that women tenants were constantly attempting to take advantage of him and his money using sex. Mr. Vigil also believed that at least some of the female tenants with whom he had problems, and Ms. Honce in particular, were dupes of a conspiracy against him by police and sheriff personnel. See id. at 297. Mr. Vigil believed that these women were instructed to make false sexual accusations against him by these conspirators. See id. at 271-73. This evidence also supports an inference that Mr. Vigil was selectively hostile to women.

The majority simply fails to address the weight we must give this evidence when reviewing a directed verdict ruling. Instead, it begins by adopting the trial court’s “finding” that Mr. Vigil was equally nasty to all of his tenants. See maj. op. at 1088. The court may not, of course, usurp the jury’s role and make fact findings on disputed evidence in directing a verdict. Moreover, the evidence I have set out above supports the inference that Mr. Vigil was abusive only to women and that this abuse rose to the level of constructive or actual eviction.

Next the majority holds dispositive its conclusion that Ms. Honce failed to make a prima facie case. However, the majority supports its conclusion with an improper recitation of the record. Thus it concludes that Mr. Vigil treated both sexes equally harshly because he evicted the Haenners after disputes over tenancy matters similar to those he had with Ms. Honce. Mr. Haenner testified, however, that Mr. Vigil did not serve an eviction notice on the Haenners until after Mr. Haenner had informed Mr. Vigil, at his wife’s insistence, that they were moving out. Aplt.App. at 364. The majority also concludes that Mr. Vigil was equally nasty to men and women because he provided the same rental services to both sexes. In so doing, the majority again disregards the standards under which we must view the record in reviewing a directed verdict ruling. We are not at liberty to reweigh conflicting evidence and substitute our judgment for that of the jury. “Further, the opposing party must be given the ‘benefit of all inferences which the evidence fairly supports, even though contrary inferences might reasonably be drawn.’” Martin, 715 F.2d at 1438 (quoting New Mexico Sav. & Loan Ass’n v. United States Fidelity & Guaranty Co., 454 F.2d 328, 331 (10th Cir.1972)). Thus, assuming that an inference favorable to Mr. Vigil might be drawn from his provision of equal rental services to men and women, this inference is not dispositive when, as here, an inference favorable to Ms. Honce can be drawn from evidence that Mr. Vigil’s differing treatment of men and women when providing those rental services resulted in the constructive eviction of women. This same evidence also supports an inference that Mr. Vigil’s “justification” for his actions, see maj. op. at 1089 n. 1, is mere pretext to discriminate against women. Thus, the evidence, and the reasonable inferences drawn therefrom, supports a finding of disparate treatment.

B.

The majority also concludes that a directed verdict was proper on Ms. Honce’s claim of quid pro quo sexual harassment. Again I must disagree. The majority improperly bases its conclusion on a view of the record that favors Mr. Vigil. Ms. Honce’s quid pro quo claim required her to present evidence that Mr. Vigil conditioned the quality of her home environment upon her positive response to his personal overtures. The majority concludes that Ms. Honce failed to establish any connection between her refusals to go out with Mr. Vigil and his com*1094mencement of abusive behavior toward her. In support of this conclusion, the majority states that Ms. Honce rejected Mr. Vigil’s advances before she moved in and that Mr. Vigil did not attempt to stop her from moving in.1 However, Mr. Vigil’s own testimony undercuts the majority’s characterization of the situation. Ms. Honce moved the trailer into the park in mid-September and then began moving her belongings in piecemeal after that. Although she did not physically move into the trailer herself until October 1, she had signed a rental agreement in August. Mr. Vigil testified that in his view Ms. Honce had possession upon signing the rental agreement on August 25. He stated that after she signed the agreement, “[Njobody else could have lived there. The minute I sign, no one can live — I had given her possession. It’s immaterial when she decides to move in. And it’s immaterial when the mobile home moves in.” Aplt.App. at 278-79. Moreover, Mr. Vigil testified that he and Ms. Honce “had a very, very good relationship up until about a week after she moved in.” Id. at 292 (emphasis added). The majority seemingly believes that a single mother of a young child who has just borrowed money to buy a mobile home and has signed a rental agreement for the lot onto which she has moved it somehow is completely free to abandon the lease and leave the premises upon finding the conduct of her new landlord offensive. This inference, adversely drawn by the majority against Ms. Honce, is belied by Mr. Vigil’s insistent testimony that Ms. Honce was in severe financial straits, and by the fact that she ultimately was required to borrow $1,000 from her parents to pay the cost of moving the mobile home. It also defies common sense regarding the economic realities of single working mothers such as Ms. Honce.

In view of our obligation to view the record most favorably to the nonmoving party and to give her the benefit of all reasonable infer-enees to be drawn from the evidence, in my judgment the record raises a jury issue on whether Mr. Vigil retaliated against Ms. Honce because she refused to go out with him. Ms. Honce testified that Mr. Vigil’s attitude toward her changed abruptly after she made it clear to him at the very end of September that she did not wish to see him socially. See id. at 84-86. She testified that when she next spoke to Mr. Vigil to discuss a plumbing problem and her dog run, he became very upset and hung up the phone. Their relationship continued to deteriorate until the October 24 encounter witnessed by the fence installers at which Mr. Vigil threatened to evict her. See infra at 1096-1097. In the context of retaliation under Title VII, we have held that “[t]he causal connection may be demonstrated by evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action." Burrus v. United Tel. Co. of Kansas, Inc., 683 F.2d 339, 343 (10th Cir.) (emphasis added), cert. denied, 459 U.S. 1071, 103 S.Ct. 491, 74 L.Ed.2d 633 (1982). I believe the jury could reasonably infer from the circumstances here that Mr. Vigil’s conduct, culminating in his eviction threat, was in retaliation for her refusal of his invitations.

C.

Finally, I am particularly troubled by the majority’s treatment of Ms. Honce’s claim that she was the victim of a discriminatory hostile housing environment. This circuit’s law with respect to hostile environment claims is set out in Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir.1987), in which we adopted the District of Columbia Court of Appeals’ definition of sexual harassment.

“We have never held that sexual harassment or other unequal treatment of an employee or group of employees that occurs because of the sex of an employee *1095must, to be illegal under Title VII, take the form of sexual advances or of other instances with clearly sexual overtones. And we decline to do so now. Rather, we hold that any harassment or other unequal treatment of an employee or group of employees that would not occur but for the sex of the employee or employees may, if sufficiently patterned or pervasive, comprises an illegal condition of employment under Title VII.”

Id. at 1415 (emphasis added) (quoting McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C.Cir.1985)); see also Hall v. Gus Construction Co., 842 F.2d 1010 (8th Cir.1988) (predicate acts underlying a sexual harassment claim need not be clearly sexual in nature); Robson v. Eva’s Super Market, Inc., 538 F.Supp. 857 (N.D.Ohio 1982) (assignment of more onerous tasks to female employee after employee resisted supervisor’s advances is sufficient evidence of sexual harassment to withstand summary judgment); Grieger v. Sheets, 1989 WL 38707 (N.D.Ill. April 10, 1989) (conduct of nonsexual nature can support a sexual harassment claim). We also note that “the requirement for repeated exposure will vary inversely with the severity of the offensiveness of the incidents.” Vermett v. Hough, 627 F.Supp. 587 (W.D.Mich.1986) (collecting cases). See also Henson v. City of Dundee, 682 F.2d 897, 904 n. 8 (11th Cir.1982).

The majority’s review of the evidence supports my conclusion that it has again viewed the evidence most favorably to Mr. Vigil. The majority states that “[t]he offensive behavior here did not include sexual remarks or requests, physical touching, or threats of violence.” 2 Maj'. op. at 1090. It then concludes there is no evidence of disparate treatment because Mr. Vigil treated women the same as men. Id. Finally, it states that “[bjecause the conduct was neither sexual nor directed solely at women, it is not actionable under the hostile housing environment theory.” Id.

The fact that Mr. Vigil’s conduct was not sexual in nature is irrelevant under Hicks so long as that conduct would not have occurred but for Ms. Honce’s gender. Moreover, when the record is evaluated under a standard that gives effect to our holding in Hicks, the evidence I have set out in discussing the disparate treatment claim indisputably supports the inference that Mr. Vigil’s conduct created a hostile environment for women.- This evidence indicates, that numerous women, including Ms. Honce, Mrs. Haen-ner, and others to whom Mr. Vigil, himself referred, had felt compelled to move out as a result of Mr. Vigil’s behavior or had been evicted by him.3 The majority’s statement *1096that “tenants of both sexes endured similar treatment” from Mr. Vigil, id., is simply without evidentiary support. The record contains specific references to only two male tenants, Mr. Haenner and Mr. Vigil’s nephew. As set out above, Mr. Vigil did not direct any hostile behavior to Mr. Haenner. Although Mr. Vigil was attempting to evict his nephew, the record does not reveal the details of Mr. Vigil’s conduct toward the nephew during this proceeding. In sum, the majority simply fails to recognize that a landlord may violate the Fair Housing Act even when he does provide equal rental services if, in so doing, he creates a hostile environment for women. Because I believe Ms. Honce has raised a jury question with respect to her Fair Housing Act claims, I would reverse the grant of a directed verdict.

II.

I do not disagree with the majority’s discussion of the general law on the covenant of quiet enjoyment but rather with the application of that law to the facts. The covenant of quiet enjoyment gives the lessee “the quiet and peaceable possession and enjoyment of the leased premises.” 49 Am.Jur.2d Landlord and Tenant, § 330 at 344 (1970). “It has been stated that a landlord is under the implied obligation not to disturb or in any way interfere with the leased premises of the tenant’s use and occupancy thereof ...” Id. § 336 at 351. Where there is interference with this covenant that is attributable to the landlord, the tenant has been constructively evicted. “[T]he concept is that, because of some wrongful act or omission by the landlord, the premises become uninhabitable (‘un-tenantable’) for the intended purposes.” Roger A. Cunningham, William B. Stoebuck, Dale A. Whitman, The Law of Property § 6.33 at 296 (1984). The test for constructive eviction can be stated as “ ‘Should a tenant be expected to continue to occupy the premises under these conditions?’ ” Id. at 297.

During her testimony, Ms. Honce stated on numerous occasions that Mr. Vigil’s actions caused her to fear for her own safety and that of her young son. Aplt.App. at 128, 130, 135-137. She went to the police to ask for help and was advised by the police to move. Id. at 331-332. Captain Crespin of the Sandoval County Sheriffs Department told Ms. Honce “it would be for her best interests to leave that place as soon as possible,” id. at 331, “because she was probably in danger for herself and her child,” id. at 332. Ms. Honce’s version of the same encounter reveals that Captain Crespin did not casually suggest that she leave her home:

Q. What did Captain Crespin do?
A. He showed me a file that he had in his file cabinet.
Q. And did you look at that file?
A. Yes.
Q. Did you read it over?
A. Yes. The portion that he showed me, yes.
Q. He gave you one particular file?
A. Yes. He gave me a report — one-report out of the file.
Q. And you read it over?
A. Yes.
Q. What was your reaction to reading the report?
A. I became very concerned for my safety and the safety also of my child, but just concerned to the point that I became very afraid. I felt that I had come very close to having something violent happen to me, and I was — my feeling at that time was just to try to get out of that trailer park as fast as I could.

Id. at 128-29.

After her discussion with the police, she returned home where she spent the night awake and afraid. “Well, I was just very afraid. I didn’t — I just really didn’t sleep. I loaded my gun, and I sat up — I put my son to bed and I sat up and basically watched TV all night.” Id. at 130. During the following two weeks, Ms. Honce stayed with friends as much as possible. Id. at 132-134. She only returned to the trailer when it was a necessity, and then she kept a loaded gun beside her. Id. at 132, 135. When Ms. Honce was able to make arrangements to move her trailer, a police officer came to the trailer park “to see that there was no problem.” Id. at 333. The testimony of Captain Crespin and *1097Ms. Honce raises the inference that the conditions under which Ms. Honce was living, due to Mr. Vigil’s actions, were such that she was constructively evicted.

Ms. Honce also testified that Mr. Vigil threatened to evict her. On October 24, 1990, she was having a fence built so that she could have a dog ran as required by Mr. Vigil. Mr. Vigil arrived at her home while the fence was being put in and proceeded to stop the workers because they were using-concrete. Ms. Honce asked Mr. Vigil what was going on and he responded, “Well, I’ll just evict you, then. I’ll just evict you.” Id. at 115. Bruce Wheeler, the owner of the fence company, was present during the above exchange. His testimony corroborated Ms. Honce’s testimony that Mr. Vigil threatened to evict her. He testified that Mr. Vigil said to Ms. Honce, “‘You’ll be receiving your eviction notice.’ That’s what I heard.” Id. at 372. Mr. Vigil himself admitted that he may have said that. Id. at 277.

Mr. Wheeler also described the abusive nature of Mr. Vigil’s conduct, stating that “[i]t was very unusual. There’s only been another incident in the whole 14 years that I’ve done fence work that something of this magnitude has happened, you know, neighbors or owner and landlord, things like that.” Aplt.App. at 370. He said that Mr. Vigil “started really raising his voice” to Ms. Honce, id. at 372, and that “[i]t just surprised the hell out of me. Things like that just don’t happen every day. To me, he didn’t handle the situation professionally. There were other ways he could have handled it in a more humane manner than the way he did.” Id. Finally, Mr. Wheeler testified that he told his helper that “if somebody ever talked to me or he came over and talked to me the way he was talking to Ms. Honce, I’d bust his ass.” Id. at 374.

Ms. Honce contends that she was constructively evicted by Mr. Vigil’s actions which caused her to fear for her safety. When we give Ms. Honce the benefit of all of the evidence and inferences, as we must, there is ample evidence to suggest an interference with her property. When a landlord causes a tenant to fear for her safety to the point where she seeks other quarters and keeps a loaded gun by her side, I believe there is, at least, a jury question regarding constructive eviction. It is for the jury to determine if her fear is reasonable and justified.

The cases cited by the majority do not require that we affirm the district court. The case before us does not involve simple demand letters for eviction, El Paso Natural Gas Co. v. Kysar Ins. Agency, Inc., 98 N.M. 86, 645 P.2d 442 (1982), threats to terminate services, United States v. Bedford Assoc., 548 F.Supp. 732 (S.D.N.Y.1982), or mere inconveniences to the tenant, Baley & Selover, Inc. v. All Am. Van & Storage, Inc., 97 Nev. 370, 632 P.2d 723 (1981). This case involves extremely bizarre behavior on the part of the landlord, coupled with police reports regarding him, which caused the tenant to fear for her safety.4 The majority notes that Mr. Vigil’s “actions were not entirely unjustified, even if erratic.” Maj. op. at 1091. However, Mr. Vigil’s “justification” is not the issue. Rather, the issue is whether his actions interfered with Ms. Honce’s right to enjoyment of her property.

Finally, the majority contends that the interference with property was “limited to a brief period of time on a single occasion.” Maj. op. at 1091. The majority relies on Santillanes v. Property Management Servs., Inc., 110 Idaho 588, 716 P.2d 1360 (App.1986). There the evidence, which was submitted to the factfinder, demonstrated that the tenant was locked out of his business for one hour prior to opening. Id. at 590, 716 P.2d at 1362. Here the interference lasted two weeks and ultimately drove Ms. Honce away. Aplt.App. at 134. Moreover, it involved threatening conduct by the landlord corroborated by police reports of prior conduct. Surely the majority does not believe a tenant must wait for actual physical violence before a claim for breach of her right to quiet enjoyment of the property arises. Nothing in the New Mexico cases on the covenant of quiet enjoyment persuades me that state law *1098would require as much. I believe a reasonable jury could find that Mr. Vigil’s actions were sufficiently severe and unjustified so as to deprive Ms. Honce of peaceful enjoyment of the premises. I would therefore reverse the district court’s directed verdict on the constructive eviction issue as well.

. In order to make out a quid pro quo claim, Ms. Honce docs not need to prove that she was denied the opportunity to move in. A quid pro quo claim may be established by showing that "tangible [housing] benefits are conditioned on [a lessee’s] submission to conduct of a sexual nature and that adverse [housing] consequences result from the [lessee's] refusal to submit to the conduct.” Hicks v. Gates Rubber Co., 833 F.2d 1406, 1414 (10th Cir.1987). In an employment context, we did not require the plaintiff in Hicks to prove that she was fired. Rather, a loss of job benefits due to a refusal to submit to sexual advances was enough. Id. Thus, a denial of rental services alone is enough to make a case for quid pro quo sexual harassment.

. I must take issue with the majority’s assertion that Mr. Vigil’s offensive behavior did not include "threats of violence." Maj. op. at 1090. Ms. Honce described one incident which a jury could easily view as a threat of violence.

And at that point, he just was — his whole manner was just real looming, you know, like he was just — just, to me it was threatening that he was just coming in there and trying to intimidate me. And then he — you know, he just told the man, "Stop your work. Pack up and leave. She's not getting this fence.”
And he got in his truck. And at that point my dog is still standing there and happened to be, like, standing right in front of his truck. And he got in his truck. And, like, just from the look on his face and the fact that he was, like, revving his engine, getting ready to go, I knew — I knew that if I didn’t step in and get my dog, he was just going to run over my dog.

Aplt.App. at 115-16. The police officer with whom Ms. Honce spoke described further incidents of violence. "She claimed that he was insisting that she went out with him, and when she refused, he was coming to the house at all hours of the night and banging on her door, screaming at her obscenities and all types of abusive language; and, therefore, she was very frightened of him." Id. at 337.

. The district court clearly erred in refusing to admit Ms. Honce’s proffered evidence showing Mr. Vigil’s treatment of other women tenants. Over Ms. Honce’s objection, the trial court stated several different times that this evidence was not relevant to Ms. Honce’s claim. See Aplt.App. at 244, 248-49, 251, 253, 257-58, 262. This court, however, has specifically held to the contrary. In Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415, 1416 (10th Cir.1987), we said that "incidents of sexual harassment directed at employees other than the plaintiff can be used as proof of the plaintiff's claim of a hostile work environment.” We pointed out that because the environment “is an important factor in evaluating the claim,” such evidence could be critical. Id. Accordingly, we stated that evidence tending to show a defendant’s harassment of other women in the plaintiff’s situation "is directly relevant to the question whether he created an environment violative of Title VII.” Id. at 1416 (citation omitted).

. I am puzzled by the majority's reference to El Paso Natural Gas Co., 645 P.2d at 444, see maj. op. at 1091, because I find no support in that case for the proposition that past acts of the landlord toward others are not relevant.