GERALD BRUCE LEE, District Judge.
THIS MATTER is before the Court on Defendants Archstone Pentagon City (f/k/a Pare Vista), et al.'s
The following seven issues are before the Court. First, whether the Court should grant. Defendants' Motion for Summary Judgment on all counts because Ms. Matarese does not have a handicap and, therefore, does not fall within one of the FHA's protected classes. The Court denies Defendants' Motion for Summary Judgment on this basis because Plaintiffs have demonstrated that there is a material dispute of fact as to whether Ms. Matarese's condition rises to the level of handicap as defined in the FHA, such that she would fall within one of the FHA protected classes.
Second, whether the Court should grant Defendants' Motion for Summary Judgment on Plaintiffs' claims that Defendants violated § 3604(f)(1) of the FHA and section 36-96.3(A)(8) of the VFHL (Counts I and II) (collectively "refusal to rent claims") when they decided not to renew Plaintiffs' lease, refused to allow Plaintiffs
Third, whether the Court should grant Defendants' Motion for Summary Judgment on Plaintiffs' claim that the individual Defendants made discriminatory statements with respect to the rental of a dwelling in violation of § 3604(c) of the FHA and section 36-96.3(A)(3) of the VFHL (Counts VII and VIII), where Defendants argue that, if such statements were made, they were not made during the decision making process, and, under the ordinary listener standard, they do not indicate a preference, limitation, or discrimination against Ms. Matarese on the basis of her handicap. The Court grants Defendants' Motion for Summary Judgment on these claims against Defendants Nur and Amilcar Garcia because Plaintiffs have not produced any evidence indicating that these individuals made any statements with respect to the rental of their apartment. The Court denies Defendants' Motion for Summary Judgment on these claims against Defendants McGregor and Mann because Plaintiffs have demonstrated that there is a material dispute of fact as to whether the statements of these Defendants indicate impermissible discrimination in connection with the rental of an apartment to Plaintiffs.
Fourth, whether the Court should grant Defendants' Motion for Summary Judgment on Plaintiffs' unlawful discrimination claims (all Counts) because Plaintiffs failed to demonstrate that Defendants' alleged discriminatory housing actions or practices were motivated by discriminatory intent or had a discriminatory impact. The Court denies Defendants' Motion for Summary Judgment on Plaintiffs' discrimination claims based on a theory of discriminatory intent because there is a dispute of material fact as to whether Defendants' motivation for their actions was discriminatory and whether their legitimate nonbusiness reason was merely a pretext. The Court grants Defendants' Motion for Summary Judgment on Plaintiffs' claims based on a theory of disparate impact because Plaintiffs have not produced any evidence, statistical or otherwise, demonstrating that Defendants had a facially neutral policy that had a disparate impact on a protected class.
Fifth, whether the Court should grant Defendants' Motion for Summary Judgment on Plaintiffs' reasonable accommodation claims (Counts V and VI), where Plaintiffs have not produced expert testimony to demonstrate that the proposed accommodations were reasonable and necessary. The Court grants Defendants' Motion for Summary Judgment on Plaintiffs' reasonable accommodation claims because, without expert testimony on the causation issues, Plaintiffs have not met their burden in establishing that the proposed accommodations were necessary to provide her equal opportunity to housing.
Sixth, whether the Court should grant Defendants' Motion for Summary Judgment on Plaintiffs' negligence claim (Count XI) for Defendants' failure to train their employees in the requirements of the fair housing laws. The Court grants Defendants'
Seventh, whether the Court should grant Defendants' Motion for Summary Judgment as to all claims against all corporate Defendants that were not directly involved in the management, operation, maintenance, and control of Plaintiffs' apartment building. The Court grants Defendants' Motion for Summary Judgment on all of Plaintiffs' claims against APC, Archstone MultiFamily Series Trust I, and Archstone LLC because APC is not a legal entity, and Plaintiffs failed to offer evidence demonstrating that the other two corporate Defendants had any involvement in the operation and control of APC and its employees.
Plaintiffs Linda and Domenic Matarese, a married couple, have rented and lived in Unit 1405 at APC for over 18 years. From 1991 to 2007, their annual lease was routinely renewed. In August 2007, Plaintiffs did not receive a lease renewal invitation letter as they had in previous years. In October 2007, after repeated requests, Plaintiffs' lease was renewed at a 34% increase in rent. In November 2008, Defendants issued Plaintiffs a lease nonrenewal letter, informing them that they would need to vacate the property. Plaintiffs were told that, not only would their lease not be renewed, but they would not be permitted to rent an apartment at a different Archstone location. Although Plaintiffs still reside in the apartment, their lease was converted to a month-to-month tenancy, which Defendants can terminate by providing proper notice.
Ms. Matarese claims that, for many years, she has suffered severely from various handicaps, including chemical sensitivities to paint fumes, tobacco smoke, and mold; chronic fatigue syndrome; and fibromyalgia. Ms. Matarese claims that she reacts immediately when exposed to particular chemicals, and her condition is distinct from the medical condition known as "Multiple Chemical Sensitivities Syndrome" ("MCS"), where a person is sensitive to a variety of unidentified chemicals at low doses. Specifically, she claims to have severe reactions to fresh paint and paint fumes, alleging that exposure to the volatile organic compounds ("VOCs") has a "neurological and respiratory impact" on her. In addition, Ms. Matarese claims to be physically debilitated by exposure to smoke, dust, and mold. Ms. Matarese claims that her reactions when exposed to these chemicals include becoming dizzy, coughing, having trouble breathing, and developing debilitating headaches, sore throats, and respiratory infections. The coughing, sore throats, and other respiratory problems can last for months, affecting her ability to breathe. Due to the reactions she experiences, Ms. Matarese has become extremely afraid of being exposed to such chemicals.
Dr. Jack Williams, an ear, nose, and throat physician, who has treated Ms. Matarese since December 2006, has been designated as Plaintiffs' medical expert. In his affidavit, he states that on multiple occasions Ms. Matarese has developed objective physical symptoms shortly after being exposed to paint, smoke, or mold, including bacterial rhinosinusitis, unusually thick mucus, cough, sore throats, and Candida, and that these respiratory problems
As a result of Ms. Matarese's impairment, she has not spent a night outside her home in approximately 15 years and leaves APC only when necessary. She has sanitized her apartment of potentially offensive chemicals and generally avoids entering other APC apartments other than that of her mother, Ms. Bauman, for whom she serves as primary caretaker.
In "fall 2004, November 2004, and spring 2005," Ms. Matarese informed APC personnel of her chemical sensitivities to paint, smoke, and mold. (Pls.' Opp. Br. 7 ¶ 15.) In addition, when she experienced exposure to such chemicals, she requested various accommodations to address her chemical sensitivities.
In addition to Ms. Matarese's own communications with APC personnel regarding her condition, Ms. Matarese submitted the letters of two doctors, confirming Ms. Matarese's chemical sensitivities and the need to avoid exposing her to the chemicals that trigger her reactions. Specifically, Ms. Matarese submitted the letters of Dr. Alpan and Dr. Williams. Dr. Oral Alpan, an allergist, asthma, and immunology specialist, treated Ms. Matarese in 2007. In his letter, Dr. Alpan informed APC that he has been treating Ms. Matarese for multiple allergies, chemical sensitivities, and respiratory infections and that Ms. Matarese also suffers from chronic fatigue syndrome and fibromyalgia. Accordingly, he asked that APC "avoid exposing Ms. Matarese to paint, chemicals, fumes, dust, mold, and any other substances that would further denigrate her immune system and will have a negative impact on her health and safety." (Pl.'s Br. Ex. 8.)
Further, Dr. Williams, stated in a similar letter to APC that Ms. Matarese has chemical sensitivities and resulting bacterial rhinosinusitis and should not be exposed to fumes and paint chemicals. (Pl.'s Br. Ex. 7.) He later provided a Medical Verification Letter for APC, which confirmed that Ms. Matarese is disabled per the FHA and stated that avoiding exposing Ms. Matarese to paint, chemicals, the fumes and outgassing of paint and other chemicals, tobacco smoke, and mold is necessary and would affirmatively enhance her quality of life and ameliorate the effects of her disability.
Painting and renovations are routine at APC. Whenever there is a turnover in an apartment, the apartment is freshly painted. Many of Plaintiffs' allegations relate to Defendants' painting and renovation of APC from 2007 through 2008, from which
When, in May 2007, APC notified Plaintiffs that personnel needed to enter their unit to paint the interior window frames, Ms. Matarese, who was still recovering from the respiratory infection, provided them with Dr. Alpan's letter, requesting no exposure to paint. Ms. Matarese was told that APC had to paint the unit and had to use VOC paint.
Similarly, APC used oil-based paint inside Ms. Bauman's
Ms. Matarese requested as accommodations that APC use non-VOC paint or that APC remove the windows from her unit and paint them elsewhere. Defendant Mann denied her request, even though he admitted that the windows could be removed and painted elsewhere. Instead, Defendant Mann suggested relocating Plaintiffs to a hotel, but Ms. Matarese refused this offer, explaining that she could not risk being exposed to potentially harmful chemicals in an unfamiliar hotel environment.
On June 5, 2008, Defendant Garcia installed drywall in Plaintiffs' apartment. Defendant Garcia refused Ms. Matarese's request to paint the drywall with non-VOC paint, and Ms. Matarese reacted to the paint immediately, coughing, sneezing, and feeling dizzy. Her cough worsened over the next couple of days, and her condition did not improve until months later.
In the summer of 2008, APC painted in two units close to Plaintiffs' apartment. Ms. Matarese requested accommodations in connection with these projects, but her requests were denied.
According to Plaintiffs, APC continued to deny their requests for accommodations regarding exposure to paint during 2009. However, in a letter dated October 16, 2009, Defendants' counsel in this action stated: "We recognize and acknowledge the disability that you have previously identified. All reasonable requests for accommodations will be granted." (Pls.' Ex. 52.)
In addition to exposure to paint-related chemicals and fumes, Ms. Matarese alleges that she is also sensitive to smoke.
According to Defendants, they received various complaints by other tenants regarding Ms. Matarese's behavior in common areas of APC. For example, Defendants received complaints from tenants that Ms. Matarese would verbally accost them about their smoking. In addition, Defendants explain that there is a documented history of complaints by other tenants regarding Ms. Matarese's behavior in common areas of APC, such as the pool in the building. Further, they received complaints from independent contractors about Ms. Matarese's behavior when the contractors were doing work at the building. Finally, the individual Defendants were often exposed to, or received reports of, violent outbursts from Ms. Matarese, and, throughout the years, they observed objectionable behavior on the part of Ms. Matarese. Plaintiffs maintain that such issues were not documented pursuant to APC protocol in their tenant file that APC maintains for each tenant.
In the summer of 2008, Defendant McGregor advised APC personnel that the non-renewal of Plaintiffs' lease had been approved. On July 22, 2008, Defendant Mann emailed Defendant McGregor about the decision and asked for examples he could use to defend APC's actions. Defendant McGregor then emailed APC personnel, requesting information to "build a case" against Plaintiffs. Some employees responded, citing examples of Ms. Matarese's inappropriate behavior. Plaintiffs contend that the incidents in question all
On August 8, 2008, Defendant McGregor advised Ms. Matarese that she must vacate her unit when the lease expired. He stated, "We are tired of accommodating your sensitivities to paint and cigarette smoke." (Pls.' Statement of Material Facts ¶ 7.) He further explained that she had violated community rules and her lease when she asked building maintenance to inspect her mother's bathroom for mold growth and by interfering with other tenants' right to smoke. Shortly thereafter, Plaintiffs' and Ms. Bauman's units were publicly listed for rental.
On October 6, 2008, Ms. Matarese had a telephone conversation with Defendant Mann during which he told Ms. Matarese that Archstone would not consider renewing her lease. In addition, he told her that he would not transfer Plaintiffs to, or allow them to rent at, another Archstone property, explaining that it would not be a good idea. Instead, he advised Ms. Matarese that "there are a lot of other communities out there, and I think you need to be, be [sic] looking around there and you'll find something that meets your needs I'm sure in the area. There's a lot of competition and that's what would be for the best." (Second Am. Compl. ¶ 115, 63.) Subsequently, Defendant McGregor cautioned certain regional Archstone personnel not to rent to Ms. Matarese and advised them to watch for the use of her maiden name. Further, the operations manager suggested that Ms. Matarese be put on APC's decline list at Saferent, the entity that screens Archstone's applications.
On or about August 12, 2008, Defendants issued a lease nonrenewal letter to Plaintiffs. The letter contained no explanation but informed Plaintiffs that they must vacate the unit by November 11, 2008.
On July 31, 2009, Plaintiffs filed their original Complaint, which was first amended as a matter of right on December 30, 2009. Plaintiffs filed a Second Amended Complaint on March 3, 2010.
In their Second Amended Complaint, Plaintiffs asserted the following claims of discrimination on the basis of handicap: refusal to rent in violation of FHA § 3604(f)(1) and VFHL § 36-96.3(A)(8) (Counts I & II); discrimination in the terms, conditions, and privileges of the rental of a dwelling in violation of FHA § 3604(f)(2) and VFHL § 36-96.3(A)(9) (Counts III & IV); refusal to make reasonable accommodations in rules, policies, practices, and services in violation of FHA § 3604(f)(3)(B) and VFHL § 36-96.3(B) (Counts V & VI); notice and statement of preference, limitation, or discrimination based on handicap in violation of FHA § 3604(c) and VFHL § 36-96.3(A)(3) (Counts VII and VIII); statements intended to coerce, intimidate, threaten, or interfere with Plaintiffs' exercise of enjoyment
Under Federal Rule of Civil Procedure 56, the Court must grant summary judgment if the moving party demonstrates that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
In reviewing a motion for summary judgment, the Court views the facts in a light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine dispute exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505. A "material fact" is a fact that might affect the outcome of a party's case. Id. at 248, 106 S.Ct. 2505; JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.2001). Whether a fact is considered to be "material" is determined by the substantive law, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir.2001). A "genuine" issue concerning a "material" fact arises when the evidence is sufficient to allow a reasonable jury to return a verdict in the nonmoving party's favor. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Rule 56(e) requires the nonmoving party to go beyond the pleadings and by its own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The Court denies Defendants' Motion for Summary Judgment on Plaintiffs' discrimination claims on the ground
In evaluating whether an individual has a disability on summary judgment, the court must look to see whether the individual produced enough evidence from which a reasonable factfinder could conclude that the nature and severity of his impairment significantly affected his ability to perform major life activities as compared to an average member of the general population. Kelly v. Drexel Univ., 94 F.3d 102, 106 (3d Cir.1996); Vailes v. Prince George's County, Maryland, 39 Fed.Appx. 867, 869 (4th Cir.2002) (citation omitted). The factors considered when determining if a plaintiff is substantially limited in the major life activity of breathing are the nature and severity of the impairment, the duration or expected duration of the impairment, and the permanent or long-term impact of the impairment. Bridges v. Reinhard, Civ. No. 3:08cv253, 2008 WL 5412843, at *6 (E.D.Va.2008) (citing 29 C.F.R. § 1630.2(j)(2)). Such a determination is necessarily made on a case-by-case basis, particularly when the alleged impairment is asthma or allergies. Id. The severity of the condition can vary significantly from individual to individual, as well as the nature of the allergen involved and the duration of any episode. Id. As such, it is necessary to examine the particular symptoms alleged by the Plaintiff, the duration of her episodes, the commonality of the allergen involved and the overall impact the allergen has on her ability to breathe. Id.
Here, there is a dispute of material fact as to whether Ms. Matarese's impairment substantially limits her breathing.
Here, again, there is a dispute of material fact as to whether Ms. Matarese has a record of impairment or handicap. She notified APC personnel on multiple occasions of her impairment and the difficulty she experiences in breathing when exposed to certain chemicals. In addition, she provided Defendants with two physicians' letters regarding her condition, along with a Medical Verification Form from Dr. Williams. Accordingly, based on this evidence, there is a dispute of material fact as to whether, with these materials and information, Ms. Matarese had a record of a handicap, such that she would fall within the FHA protected class.
Finally, there is a genuine issue of material fact as to whether Ms. Matarese was regarded as disabled. An individual is "regarded as" disabled if a covered entity "mistakenly believes that [the] person has a physical impairment that substantially limits one or more major life activities" or "mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities." Adams v. Rice, 531 F.3d 936 (D.C.C.2008); see Rohan v. Networks Presentations LLC, 375 F.3d 266 (4th Cir.2004) (citation and internal quotation marks omitted) ("A person is regarded as disabled if a covered entity mistakenly believes that the person's actual, nonlimiting impairment substantially limits one or more major life activities."). According to Plaintiffs, Defendant Mann acknowledged Ms. Matarese's chemical sensitivities. In addition, at times, Defendants acquiesced to Plaintiffs' various requests for accommodations. Defendants contend that the reason for providing such accommodations was that, as a general practice, they always tried to accommodate the requests of their tenants. They maintain that such accommodation was not intended to indicate that they regarded Ms. Matarese as handicapped. Whether the reason for Defendants' responses was that they acknowledged her disability that warranted accommodations
The Court denies Defendants' Motion for Summary Judgment on Plaintiffs' refusal to rent claims because (1) Defendants have failed to establish as a matter of law that the nonrenewal of Plaintiffs' lease, the conversion of the lease to a month-to-month tenancy, and the refusal to rent at other Archstone locations, do not constitute violations of § 3604(f)(1) of the FHA or section 36-96.3(A)(8) of the VFHL; and (2) there is a dispute of material fact as to whether Defendants discriminated against Plaintiffs on the basis of Ms. Matarese's handicap in connection with these actions. Under 42 U.S.C. § 3604(f)(1), it is unlawful to discriminate in the rental, or otherwise make unavailable or deny, a dwelling to a renter because of a handicap of the renter, or a person residing in the dwelling after it is rented. 42 U.S.C. § 3604(f)(1).
First, the Court is not persuaded by Defendants' argument that Plaintiffs' claims fail as a matter of law because Plaintiffs were not refused a rental in the inchoate stages of rental but rather, their lease was converted to a month-to-month tenancy, and they continue to reside in the apartment. The statute prohibits discrimination in the rental of an apartment, or otherwise making unavailable or denying a dwelling, on the basis of a handicap. The nonrenewal of a lease falls within the plain meaning of these terms. Defendants have not cited to any case that supports their argument that § 3604(f)(1) is not violated in the nonrenewal of a lease and is violated only when discrimination occurs in the initial decision to grant or deny a lease. Rather, in the cases upon which Defendants rely, § 3604(a) is the section at issue, and this Court has already stated at the hearing on Defendants' Motion to Dismiss that the cases interpreting § 3604(a) are inapplicable.
Second, the Court finds that there is a material dispute of fact as to whether Defendants discriminated against Plaintiffs on the basis of Ms. Matarese's handicap in their decision not to renew Plaintiffs' lease, their conversion of the lease to a month-to-month tenancy, and their refusal to allow Plaintiffs to rent at any other Archstone property. Defendants argue that their decision was based on a valid, nondiscriminatory reason. In support of this position, they cite to the history of problems and complaints that they have had with Plaintiffs over the course of their tenancy. However, Plaintiffs have offered evidence to demonstrate that there is a material dispute of fact as to whether that reason is
Section 3604(c) of the FHA makes it unlawful to make a statement with respect to the rental of a dwelling that indicates any preference, limitation, or discrimination based on handicap. 42 U.S.C. § 3604(c). Borrowing from Title VII discrimination cases, courts have held that a statement of discrimination is made "with respect to the sale or rental of a dwelling" only if it is related to the decision of whether or not to sell or rent the property; a stray remark wholly unrelated to the decisional process is not actionable under § 3604(c). See Campbell v. Robb, 162 Fed. Appx. 460, 467 (6th Cir.2006) (reviewing statements in the context of racial discrimination) (citations and quotations omitted).
To determine whether a statement indicates impermissible discrimination, an "ordinary listener" standard is used. See White v. U.S. Dept. of Housing and Development, 475 F.3d 898, 906 (7th Cir.2007) (applying standard to discrimination claim based on familial status). Under this objective standard, the court must determine whether the alleged statement would suggest to an "ordinary listener" that a person with the protected status is preferred or disfavored for the housing in question. See id. The ordinary listener "is neither the most suspicious nor the most insensitive of our citizenry." Id. (quotation and citations omitted).
Applying this standard, the Court denies summary judgment on Plaintiffs' 42 U.S.C. § 3604(c) and Virginia Code section 36-96.3(A)(3) claims against Defendants McGregor and Mann because there is a material dispute of fact as to whether the statements they made with respect to the rental of Plaintiffs' apartment indicated that Plaintiff was disfavored for the housing in question based on her handicap. Specifically, when Defendant McGregor informed Ms. Matarese of the decision of nonrenewal, he expressly stated that the decision was made with the express authorization of Mann, and they were "tired of accommodating Ms. Matarese's sensitivities to paint and cigarette smoke." Under the ordinary listener standard, a factfinder could find that McGregor's statement, made with the authorization of Mann, indicated that Plaintiff was disfavored for the apartment based on her handicap. Further,
However, the Court grants Defendants' Motion for Summary Judgment on these claims against Nur and Garcia because Plaintiffs have not offered any evidence that these individual Defendants made statements with respect to the rental of Plaintiffs' apartment. With the absence of proof on all of the requisite statutory elements, Plaintiffs' claims against these Defendants must fail.
Therefore, the Court (1) denies Defendants' Motion for Summary Judgment on these claims against McGregor and Mann because there is a material dispute of fact as to whether their statements indicate impermissible discrimination in connection to the rental of an apartment to Plaintiffs, and (2) grants Defendants' Motion for Summary Judgment on these claims against Nur and Garcia because there is no evidence that they made discriminatory statements in connection with the rental of housing.
To prove a prima facie case of discrimination under the FHA, a plaintiff must demonstrate that the housing action or practice being challenged was motivated by a discriminatory purpose or had a discriminatory impact. Betsey v. Turtle Creek Assocs., 736 F.2d 983, 986 (4th Cir. 1984).
The Court denies Defendants' Motion for Summary Judgment on Plaintiffs' claims that are based on the theory of discriminatory purpose or intent because there is a material dispute of fact as to whether Defendants' nondiscriminatory reason was a pretext for their decision of nonrenewal of their lease. For intentional discrimination claims, plaintiffs must show that the discriminatory animus was a motivating factor, but they do not have to show that it was the primary or dominant purpose. Smith & Lee Assocs., Inc. v. City of Taylor, 102 F.3d 781, 790 (6th Cir.1996). Once the plaintiff shows that the action was based, at least in part, on discriminatory animus, the burden shifts to defendants to show a legitimate nondiscriminatory reason for their actions, McDonnell Douglas v. Green, 411 U.S. 792, 802-805, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If defendants are able to make a prima facie showing of a legitimate, nondiscriminatory reason, the burden returns to plaintiff to demonstrate that the reason was a pretext. See id.
Here, Plaintiffs met their initial burden by producing evidence that discriminatory animus was a motivating factor in their actions in connection with Ms. Matarese's use and enjoyment of her housing. For example, they offered evidence that Defendants refused to respond to Plaintiffs' accommodation requests, responded negatively to Ms. Matarese's requests, and Defendant McGregor, when informing Ms. Matarese of the nonrenewal decision, told her that APC was tired of accommodating her chemical sensitivities.
The Court grants Defendants' Motion for Summary Judgment on Plaintiffs' claims that are based on the theory of disparate impact. A disparate-impact claim challenges a facially neutral policy that actually or predictably results in discrimination. Reinhart v. Lincoln County, 482 F.3d 1225, 1229 (10th Cir.2007) (internal quotation marks and citation omitted). The plaintiff need not show that the policy was formulated with discriminatory intent. Id. To establish a prima facie case of disparate impact discrimination, plaintiffs must show that a specific policy caused a significant disparate effect on a protected group. To do this, they must identify the problematic neutral practice at issue and adduce statistical evidence demonstrating the disparate impact caused by the practice. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988). In making this showing, plaintiffs are required to prove only that a given policy had a discriminatory impact on them as individuals. Betsey, 736 F.2d at 987. Thus, to determine whether plaintiffs have met their burden, "[t]he correct inquiry is whether the policy in question had a disproportionate impact on the minorities in the total group to which the policy was applied." Id.
Here, the Court grants Defendants' Motion for Summary Judgment on the basis of disparate impact because Plaintiffs failed to meet their burden in identifying that a facially neutral policy caused a disparate impact on members of the protected group to which Ms. Matarese belongs. Plaintiffs attempt to meet their burden by arguing that the neutral policy of routine maintenance and the use of VOC paint have a disparate impact on individuals with chemical sensitivities, as demonstrated by the consequences from which Ms. Matarese has suffered. However, by offering evidence of the alleged effects of a neutral policy on one individual, with no evidence of the application of this policy on others, Plaintiffs have failed to demonstrate that the policy produced a disparate impact on members of a protected class with her handicap.
The Court grants Defendants' Motion for Summary Judgment on Plaintiffs' reasonable accommodation claims because Plaintiffs failed to meet their burden and demonstrate that the proposed accommodations were necessary. Discrimination in the rental of a dwelling and the terms, conditions, privileges, and provision of services and facilities includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." 42 U.S.C. § 3604(f)(3)(B). Thus, under this provision, the FHA requires an accommodation for a person with a handicap if the accommodation is (1) reasonable and (2) necessary to (3) afford the handicapped person equal opportunity to use and enjoy the housing. See 42 U.S.C. § 3604(f)(3); Bryant Woods Inn, Inc. v. Howard County, MD., 124 F.3d 597 (4th Cir.1997). The plaintiff bears the burden of proving each of these elements by a preponderance of the evidence. Id.
First, in order for an accommodation to be reasonable it must be both efficacious and proportional to the costs to implement it. Wisconsin Community Services, Inc. v. City of Milwaukee, 465 F.3d 737, 749 (7th Cir.2006). In determining whether the reasonableness inquiry has been met, a court may weigh the costs and benefits and consider the existence of alternatives to accomplish the benefits more efficiently. Bryant Woods Inn, Inc., 124 F.3d at 604. In measuring the effects of the accommodation, the court may consider its functional and administrative aspects, as well as its costs. Id. After all, reasonable accommodations do not require accommodations that impose undue financial and administrative burdens. Id.
Second, for an accommodation to be necessary to afford an equal opportunity, there must be a demonstration of a direct linkage between the proposed accommodation and the equal opportunity to be provided to the person with a handicap. Id. This requirement is essentially a causation requirement. Id. If the proposed accommodation does not provide direct amelioration of a disability's effect, it does not qualify as necessary. Id.
Third, the requirement that an accommodation afford an equal opportunity "mandates not only the level of benefit that must be sought by a reasonable accommodation but also provides a limitation on what is required." Id. In other words, the "equal opportunity" element limits the accommodation duty such that not every practice that creates a general inconvenience or burden on the person with a handicap needs to be modified. Wisconsin Community Services, Inc., 465 F.3d at 749. The FHA does not require accommodations that provide an increased benefit or greater opportunity to persons with handicaps above those provided to a person without a handicap with respect to matters unrelated to the handicap. Bryant Woods Inn, Inc., 124 F.3d at 604.
Here, Plaintiffs' reasonable accommodation claims fail because Plaintiffs have not met their burden of showing that the proposed accommodations are necessary to afford Ms. Matarese an equal opportunity in housing. Specifically, Plaintiffs have failed to demonstrate a direct linkage between the proposed accommodation and the equal opportunity to which a person
The Court grants Defendants' Motion for Summary Judgment on Plaintiffs' negligence claim as a matter of law. In their brief in opposition to Defendants' Motion for Summary Judgment, Plaintiffs clarify that their negligence claim is for Defendants' failure to train APC employees on FHA reasonable accommodations. As both parties acknowledge in their briefs, a claim of negligence requires the existence of a duty, breach of that duty, and an injury caused by the breach. However, Plaintiffs have not provided any authority stating that there is a common law duty to train employees on FHA reasonable accommodations.
The Court grants Defendants' Motion for Summary Judgment against the corporate
Second, the Court grants Defendants' Motion for Summary Judgment as to Defendants Archstone MultiFamily Series I Trust and Archstone LLC because Plaintiffs have failed to offer any evidence demonstrating that these Defendants took active ownership interest in or operated the building in which Plaintiffs reside and where the alleged discrimination occurred. In support of their position that these entities are liable for the allegations at issue, Plaintiffs quote the FHA provision that prohibits any person or other entity, whose business includes engaging in residential real-estate transactions, from discriminating against any person on the basis of handicap. See 42 U.S.C. § 3605(a). Plaintiffs also cite to cases in support of the position that liability extends to owners and operators of culpable entities. However, Plaintiffs' cases are materially distinguishable from the present circumstances because none of the cases imposed liability on a corporate entity that had no direct role in the operations and that merely served as a holding company for ownership interests. Plaintiffs have failed to provide any evidence demonstrating the involvement of these corporate Defendants in the operation of APC, and evidence of the mere holding of ownership interests in APC is insufficient to impose liability on these corporate Defendants.
Therefore, Defendants' Motion for Summary Judgment is granted in part and denied in part.
For the foregoing reasons, it is hereby
ORDERED that Defendants' Motion is GRANTED in part and DENIED in part.
The Court GRANTS Defendants' Motion as to all Defendants on counts V, VI, and XI. Further, the Court GRANTS Defendants' Motion on all counts on the basis of disparate impact but DENIES Defendants' Motion on all counts on the basis of discriminatory intent. By this ruling, Defendant Nur is effectively dismissed as a party to this case because the Court's Orders of March 22, 2010; May 19, 2010; and July 26th, 2010 disposed of all other Counts asserted against Defendant Nur.
The Court also GRANTS Defendants' Motion on counts VII and VIII as to Defendant Amilcar Garcia and DENIES Defendants' Motion on these counts as to all other remaining Defendants.
Finally, the Court GRANTS Defendants' Motion as to Archstone Pentagon City (f/k/a Pare Vista), Archstone MultiFamily
The Clerk is directed to forward a copy of this Order to counsel of record.
