Before we get started on this week’s blog entry, a couple of other matters to note. First, if you have not already checked it out, the Employment Law blog carnival from last month is worth a read. The Employment Law blog carnival comes out once a month from a different blogger and for those in employment law, it should be mandatory reading every month. There are some great bloggers from both the plaintiff and defense perspectives talking about employment law (including yours truly, though I do not consider myself an employment lawyer exclusively nor do I consider myself plaintiff or defense). Second, there is scarcely an area of the law that the ADA does not bump into, and I will be talking about that at a brown bag webinar being put on by the ABA next week. For those in the Atlanta area, I will essentially be repeating that presentation at the March GPSolo section luncheon.
Today’s case comes from my home Circuit, the 11th. It is actually a Fair Housing Act case, but one with ADA concepts within it. As is my usual practice, I have divided the blog entry into categories: facts; court’s reasoning (subdividing the reasoning into each of the counts alleged by the plaintiffs); and takeaways. The reader is free to focus on any or all of the categories.
Dyan and Karl Hunt have lived in the Reflections apartment complex in West Palm Beach, Florida since November 2006. At the time of the events in question, the property was owned and managed by Aimco (defendant). Karl, who was 21 years old at the time of the events, is a person with Down syndrome with an intellectual disability that causes him to act like a child of seven. On August 13, 2012, the Hunts received from the defendant a notice of required notice to vacate informing them that their 12 month lease was due to expire on November 19, 2012. The notice specifically invited them to renew their lease and mentioned that the defendant would gladly discuss flexible renewal options. On August 30, 2012, Dyan discovered that her son was being used as a maintenance person by the Reflections (the name of the apartment complex), staff and had been cleaning the bathroom for the complex’s clubhouse. The son appeared very upset. Dyan believed that the apartment community manager had chastised her son for stealing toilet paper. Later that day, Dyan called Ms. Jackson who informed her that her son had drawn on a map of the property and when asked what he was doing, had informed her that he was going to sacrifice her and another Reflections employee and then trap all the residents in their apartments and put the property on fire. Dyan advised Ms. Jackson that her son was describing an episode of a Japanese anime television series he watched and did not mean any harm. Ms. Jackson warned her that words like that should not come out in a joking manner. She also told her that the Reflections office staff had called their corporate office because they did not feel safe working at the office and that their legal department was now involved. The next morning, Ms. Jackson and Palm Beach County Sheriff Deputy Josh Kushel appeared at their apartment and asked to speak with the son. The deputy warned the son that if he went in or around the community clubhouse or the office, he would be arrested. 15 minutes after the police left, the mother called Ms. Jackson crying and saying that she and her son were very sorry, and she was looking at finding him a place/organization that would have him for the day while she is at work to avoid any more situations. Corporate ignored her explanation of her son’s activities and motivations and failed to consider her request for a reasonable accommodation. That same day, the defendant decided not to renew her lease based upon their attorney’s instructions. Ms. Jackson posted on their door a seven-day notice of noncompliance with opportunity to cure stating that Dyan had violated the terms of her lease due to her son’s actions. On September 12, 2012, Ms. Jackson posted on their door a notice of nonrenewal, which stated that they would have to be out of their apartment on or before November 19, 2012, the date the current lease expired. In reliance on that, she packed up the apartment and sold some furniture and personal property. She also prepared several background checks for rental applications and hired a rental agent to assist her with the move. Her son became afraid of the police and terrified to leave the apartment, believing he would be arrested, after the warning from the deputy. On October 12, 2012, they filed a complaint with the Palm Beach County Office of Equal Opportunity. On November 29, 2012 before they vacated their apartment, a new management company took over ownership and operation of the apartment complex and, after investigation, determined that the son was not a threat and allowed them to remain in their apartment. Even so, Dyan went ahead and filed a complaint alleging that the defendant violated the Fair Housing Act by denying or making a dwelling unavailable for rental in violation of 42 U.S.C. § 3604(f)(1) and by discriminating in terms and conditions of housing in violation of 42 U.S.C. § 3604(f)(2). An amended and second amended complaint further alleged that the defendant unlawfully failed to reasonably accommodate her son’s disability in violation of 42 U.S.C. § 3604(f)(3). The District Court granted the defendant’s motion to dismiss and the plaintiff appealed to the 11th Circuit.
In holding that the plaintiff had alleged sufficient facts to state a claim on each of their counts pled in their complaint, the court reasoned as follows:
Making Unavailable or Denying a Rental
- In the 11th Circuit, there has not been a case expressly setting forth the elements of a claim alleging making unavailable or denying a rental. Nevertheless, through the court’s reasoning we can divine what the elements of such a claim may now be. First, there must be an adverse action. Second, there must be causation. That is, was the adverse action taken because of a disability. Third, the defendant must have knowledge of the disability. Fourth, the plaintiff were willing and qualified to continue renting the apartment. Finally, the apartment was made unavailable.
- Court said that each of these elements were satisfied by the facts alleged. In particular, the plaintiffs pled: the son had Down syndrome, an intellectual disability causing him to act like a seven-year-old child and have difficulty making himself understood; the defendants had actual knowledge that the son had an intellectual disability since he had obvious behavioral characteristics and could be observed behaving like a seven-year-old child by for example listening to children’s music, such as Disney sing-alongs, and Pokémon songs on his headphones in the public areas of the complex; the defendant treated the son differently solely because of his disability and did not want him residing at the apartment complex even though the mother described to Ms. Jackson how the son’s disability could cause misunderstandings, discussions ignored by Ms. Jackson by her continuing the eviction process; they were willing and qualified to continue renting the apartment. After all, they had lived in the apartment complex for almost 6 years before receiving the notice of nonrenewal. They had also prior to the incident received notice that the defendants would gladly discuss flexible renewal options or renew the lease for 12 months; and they prepared for eviction by packing up their apartment, selling the furniture and housewares, and paying for background checks and a rental agent to assist them in finding another apartment. The court also noted that there was no indication in the complaint or its attached exhibits that the defendant ever reconsidered that decision or gave the plaintiff permission to remain in the apartment. Instead, the defendant made the apartment unavailable to them throughout its ownership and operation of the complex with the apartment only becoming available to them again because the complex was sold and the new owners permitted them to remain.
- Just because the plaintiff were able to remain in their apartment that does not alter the prior discriminatory conduct.
- The Fair Housing Act protects renters not only from eviction, but also from discriminatory actions leading to eviction but for an intervening cause.
Discriminating in the Terms, Conditions or Privileges of a Rental
- Sufficient facts were alleged to support this claim. In particular, the plaintiff pled: defendant mistreated the son by yelling at him, making him do maintenance work around the complex, and barring him from the community rooms and office; forced the son to clean bathrooms and collect garbage; and he was prohibited from entering the community room, the full area, and the office. Accordingly, sufficient facts were alleged to show that the defendant placed conditions on the son that were not imposed on other residents and restricted access to facilities in the complex that were open to other residents.
- The argument that the defendant cannot be liable because the police and not them instructed the son to stay out of the community room does not fly because a private entity may not use the police as a front for discrimination. Further, it was an employee of the defendant that called the police and accompanied the police to the apartment. Finally, the son was discouraged from using common areas at the apartment complex because the defendant escalated the situation to a law-enforcement matter.
- The direct threat argument per 42 U.S.C. § 3604(f)(9) is not an argument that will work at the motion to dismiss stage since it is an affirmative defense.
Failure to Reasonably Accommodate
- The elements of a prima facie case under 42 U.S.C. § 3604(f)(3) are: 1) the plaintiff is a person with a disability within the meaning of the Fair Housing Act or is a person associated with that individual; 2) the plaintiff requested a reasonable accommodation for the disability; 3) the requested accommodation was necessary to afford the plaintiff an opportunity to use and enjoy the dwelling; and 4) the defendant refused to make the accommodation.
- While the 11th Circuit has yet to determine precisely what form the request for reasonable accommodation must take, it did note that U.S. Court of Appeals have used various formulations with respect to what constitutes a reasonable accommodation request under title I of the ADA, which, as readers of this blog know, has reasonable accommodation requirements for employees with disabilities. In the Third Circuit, what matters is not formulations about the manner of the request, but that the employer has notice of the employee’s disability and wishes to be accommodated. In the 10th Circuit, a plaintiff need not use magic words to express a request for accommodation. That is, a plaintiff can be said to have made a request for accommodation when the defendant has enough information to know of both the disability and the desire for an accommodation.
- The 11th Circuit opts to follow the 3rd Circuit and says that circumstances must be at least sufficient to cause a reasonable housing provider to make appropriate inquiries about the possible need for an accommodation.
- By alleging that the mother communicated she was attempting to make arrangements for the express purpose of avoiding future conflict as a result of her son’s disability, the court concludes that there was sufficient facts showing that she sought an accommodation in the form of an exception to the defendant’s apparent policy or practices of not renewing the leases of tenant who make threats.
- The requested accommodation was necessary to eliminate the possibility that her son would make perceived threats or engage in other behaviors that frighten or disturb the staff of the apartment complex. Therefore, it was necessary to afford the plaintiff’s an opportunity to continue to use and enjoy the apartment, but such an accommodation was refused. Further, the defendant disregarded the mother’s plea that her son was not a direct threat and ignored her attempt to suggest alternative short of eviction.
- In the 11th circuit, we now have a good idea as to what a prima facie case is for making unavailable or denying a rental under 42 U.S.C. §3604(f)(1).
- Since the Fair Housing act, uses the term “because,” rather than “on the basis of,” causation under the Fair Housing Act, at least in the 11th Circuit if not everywhere, is sole cause.
- The court’s statement that a private entity may not use the police as a front for discrimination has wide-ranging application outside of this context. It isn’t unusual for places of public accommodations to call the police to kick out a person with a disability from a place of public accommodation as we have seen in this blog entry. This particular statement means that where a place of public accommodation wrongfully kicks out a person with a disability from the place of public accommodation and the police supports that decision, the place of public accommodation will not be shielded from liability.
- Wherever a statute contain the term “reasonable accommodation,” it is entirely possible that a court will look to title I of the ADA to help determine what it means. Same arguably goes for, “direct threat.”
- The question not answered is once the Corporation turned it over to legal, why didn’t legal go through the direct threat analysis as seen in the ADA (of course, we don’t know if this actually occurred, but from the facts of the case, it would seem that it did not), for example? After all, when the new owner came in, a determination was made that the son was not a threat, which makes you wonder if he ever would’ve been a direct threat in the first place with a thorough investigation.
- The court’s discussion about what it takes for a reasonable accommodation request to be made also has implications beyond the Fair Housing Act. Since the court is relying on title I of the ADA cases, it is a fair assumption that when it comes to reasonable accommodation request from employees, the court will adopt the same standard. While the court doesn’t use the term magic words, in my opinion, the formulation they do use amounts to the same thing.