The Denver-based federal appeals court concluded on Monday that Littleton’s housing authority could not be held liable for a maintenance worker’s alleged rape of a tenant, as the worker’s employment did not provide any special access to the victim.

A three-judge panel of the U.S. Court of Appeals for the 10th Circuit acknowledged that neither the U.S. Supreme Court nor any other federal appeals court has decided when employers may be automatically held liable under the Fair Housing Act for their employees’ actions. Relying heavily on state court decisions that warned against employer liability in all circumstances, the panel determined two conditions could trigger liability: an employee’s use of their job-related authority or their job-related access to harm someone.

“The key to this special privilege rule is that the privilege or access must be ‘unique’ and not available to the public writ large,” wrote Judge Richard E.N. Federico in the July 27 opinion. “This means the mere presence of some sort of authority or special privilege is not enough on its own to trigger the exception. The employee needs to actually use and be aided by that authority or privilege.”

Katherine Trujillo lived at Amity Plaza, which the city of Littleton owned and operated through its housing authority. Frank Martinez was a maintenance worker Trujillo first encountered in March 2021 when he fixed her sink. The two had additional contacts on personal issues for the next two months. Trujillo alleged that on May 3, 2021, Martinez entered her unlocked apartment and raped her.

Although Colorado Politics does not ordinarily name alleged victims of sexual assault, Trujillo sued under her full name and did not seek anonymity in court. Martinez, who police did not charge, testified in his deposition that he had a consensual sexual encounter with Trujillo.

Trujillo alleged the housing authority and Martinez were liable for unlawful sexual discrimination under the Fair Housing Act. Under federal regulations, landlords can be liable directly for failing to address discriminatory practices that they know or should know about. They can also be vicariously liable for an employee’s actions that fall within the scope of employment, regardless of the employer’s knowledge.

The U.S. Department of Justice initially submitted an unusual statement in support of Trujillo’s lawsuit, arguing that the housing authority defendants would be vicariously liable for Martinez’s actions if Trujillo’s allegations were true, based on his status as an agent of his employer.

After the parties exchanged evidence, then-U.S. District Court Senior Judge Christine M. Arguello sided with the housing authority defendants. She concluded they could not be directly liable for any discrimination, as Amity Plaza did not know about any improper behavior Martinez exhibited toward Trujillo until she reported a sexual assault.

In evaluating whether the defendants were vicariously liable for Martinez’s alleged rape, Arguello analyzed the “aided-by-agency” theory. The Supreme Court recognized in a 1998 decision that an employer can be automatically liable for an employee’s wrongful acts, but there must be “something more than the employment relation itself.”

“On May 3, 2021, Mr. Martinez did not have a work order for her apartment, he did not use a work order as a pretext to visit her or gain access to her apartment, and he did not use his work keys to enter her apartment, because Ms. Trujillo left the door unlocked,” Arguello wrote. “There is no evidence that Ms. Trujillo felt pressured to engage with Mr. Martinez on May 3, 2021, because he was working that day and wearing a uniform.”

Therefore, she concluded there was “no evidence that Mr. Martinez’s contact with Ms. Trujillo on May 3, 2021, was under the guise of his employment, directed by the Housing Defendants, or aided by the existence of his employment with Housing Defendants.”

Shortly afterward, Arguello issued a second order acknowledging she mistakenly resolved the case in Martinez’s favor, when he had not moved to end the litigation and she had not given Trujillo a chance to argue against it. But Arguello noted that her reasoning inevitably led to the conclusion that Martinez had not violated the Fair Housing Act, either.

Trujillo appealed, arguing Arguello had taken too narrow a view of Martinez’s employment relationship and the access it provided to his victim.

“Anybody had access to this apartment. She had it unlocked,” said Senior Judge David M. Ebel during oral arguments to the 10th Circuit panel. “So, I just don’t see any nexus to his work status and the access that led to the rape.”

“Here, it would seem to me that access to the apartment is key,” added Federico. “If we’re gonna draw a line on access, it makes me a little uncomfortable to say whether the door is unlocked or not. But how can we draw a line as to where access then facilitates this conduct?”

Judge Allison H. Eid asked the housing authority’s lawyer whether the totality of circumstances suggested the Supreme Court’s standard of “something more” was satisfied.

“I think they’re arguing you gave the person a master key, a uniform, and superior access to whatever. Isn’t that enough?” she wondered.

Ultimately, the panel relied on a collection of state supreme court decisions to conclude that an employer’s vicarious liability for an employee’s actions hinges on an employee’s “significant authority” over their victim or their “special privilege or access” to the victim.

“As a maintenance worker, Martinez did not control Trujillo’s lease or rent. Nor does the record suggest that Martinez could have coerced Trujillo by withholding maintenance services,” wrote Federico. “Martinez did possess a special privilege and access not available to the public at large: a master key. The problem for Trujillo’s claims is that there is no evidence Martinez used that master key the day he allegedly raped Trujillo.”

Because neither condition applied, the panel agreed the housing authority defendants were not liable for Martinez’s alleged actions.

The case is Trujillo v. Amity Plaza, LLC.