Opinion
3:21-cv-947-JR (Lead) 3:21-cv-1439-JR (Trailing Case)[1]
07-21-2022
LARRY JOHNSON; MICHELLE HUME Plaintiffs v. GUARDIAN MANAGEMENT; KELLY PAINE; LISA SIMONSON, Defendants MICHELL HUME; LARRY JOHNSONS Plaintiffs, v. THOMAS BARRY BRENNEKE JUNIOR; GUARDIAN MANAGEMENT; GUARDIAN REAL ESTATE SERVIC; UPTOWN TOWER APARTMENTS; KELLY PAINE; LISA SIMONSON Defendants.
Jolie A. Russo United States Magistrate Judge
Pro se plaintiffs Larry Johnson and Michelle Hume filed these Fair Housing Act (“FHA”) actions against defendants Thomas Brenneke, Lisa Simonson, Kelly Paine, Guardian Management, Guardian Real Estate Services, and Uptown Tower Apartments. This Court has previously recommended dismissal of all claims in the 21-947 case along with an entry of judgment and that this action should proceed only as to the tenth claim for relief in the 21-1439 case. Findings & Recommendation (ECF 42). Defendants now seek summary judgment as to the tenth claim for relief. Plaintiffs have not responded. For the reasons stated below, the motion should be granted.
BACKGROUND
Plaintiffs Larry Johnson and Michelle Hume are residents of the Uptown Tower
Apartments in Portland, Oregon. First Amended Complaint (ECF 10) at ¶ 6. Plaintiffs allege the Guardian defendants have information that plaintiffs are persons with known and identifiable disabilities and handicaps as defined by the FHA. 3:21-cv-1439-JR Complaint (ECF 1) at ¶ 7. Plaintiffs further allege they have made repeated requests for accommodation which were denied or ignored and resulted in retaliation against them after plaintiffs filed complaints. Id.
Plaintiffs specifically allege discrimination under the FHA:
Defendants Brenneke et al. have traditionally utilized self-serving non-HUD "unwritten rules" to mismanage the highly tax subsidized Uptown Tower Apartments for arbitrary and capricious control of its elderly and disabled tenants through fear and intimidation by keyed locks and hostile environment harassment and retaliation practices. The "unwritten rules" are not in compliance with local, city, county, state code, statutory and case law and/or federal statutory and case laws or in compliance with the Federal HUD Statutory and Code Rules, Regulations and Guidelines while in the course of corporate business accepting millions of dollars in tax payer funding and subsidies with little if any accountability or responsibility for their discriminatory violations and /or unlawful actions under the cover of multiple limited Lability corporations and frivolous excuses and defenses. One unlawful practice by defendant Brenneke et al. is to restrict and deprive tenant's use and enjoyment of Uptown Tower apartment's HUD designated common areas for unjust enrichment practices and for the use of management staff such as the lobby and basement garages, 7th floor recreation room, kitchen and toilet facility, basement toilet facility, basement computer rooms and misuse of the Uptown Renters Association lobby bulletin board.Id. at ¶ 26.
For the remaining tenth claim for relief, plaintiffs allege their requests to move their monthly rental payments to the eighth of the month due to the timing of their Social Security Disability payments were ignored in retaliation for their legal activities. The Court previously found plaintiffs plausibly alleged their financial condition, impacted by their disability necessitating income assistance through the Social Security Administration, requires an accommodation regarding the payment date of their rent. The Court further found the claim is plausibly read to demonstrate an interference with the plaintiffs' ability to enjoy their dwelling.
Defendants submit uncontroverted evidence demonstrating:
Rent at Uptown Towers is due on the first day of each month. However, a tenant is not charged a late fee so long as their rent is paid before the fifth day of each month. If a tenant pays their rent on either the third or the fourth day of the month, they are not charged a late fee.Declaration of Kelly Paine at ¶ 3 (ECF 45).
On September 8, 2021, [an attorney for defendants] sent a letter to Plaintiff Larry Johnson to respond to his reasonable accommodation request regarding the extension of his rent payment date to the eighth day of each month. The letter explains that Mr. Johnson's accommodation request was denied because, according to his representation that he received his SSDI benefits on the third day of each month, he would be able to pay his rent without incurring a late fee under Guardian Management's existing policy. The letter also informed Plaintiff that, in the spirit of compromise, Guardian Management was willing to permit Mr. Johnson to make his rent payment by the eighth day of each month without incurring a late fee if he signed a confidentiality and non-disclosure agreement.
On September 11, 2021, [the attorney] received an email from Mr. Johnson in which, among other things, Mr. Johnson expressed that he was unwilling to agree to the confidentiality and non-disclosure agreement.Declaration of Sean McKean at ¶ 3 (ECF 46).
Defendants were concerned that publicity of the agreement would lead to other tenants seeking unnecessary rent extensions.
Defendants further demonstrate that plaintiff Hume never made a request for extension of the rent payment due date. Declaration of Kelly Paine at ¶ 7 (ECF 45).
DISCUSSION
Construing plaintiffs' complaint liberally, they allege a claim for reasonable accommodation and retaliation under the FHA.
A. Reasonable Accommodation
FHA discrimination 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 enjoy the dwelling.” 42 U.S.C. § 3604(f)(3)(B). To establish a prima facie case for failure to make a reasonable accommodation, the plaintiff must show that: (1) he or she suffers from a “handicap” as defined by 42 U.S.C. § 3602(h); (2) the defendants knew or should reasonably be expected to know of the plaintiff's handicap; (3) the accommodation of the handicap “may be necessary” to afford the plaintiff an equal opportunity to use and enjoy the dwelling; (4) the accommodation is reasonable; and (5) the defendants refused to make such accommodation. DuBois v. Ass'n of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir. 2006).
The record demonstrates that plaintiff Johnson received his social security payments on the third of the month. Email Request for Accommodation dated September 3, 2021 containing attachment of letter request dated August 31, 2021 (ECF 45-1, 45-2). Accordingly, the requested accommodation was not necessary to afford plaintiff an equal opportunity to enjoy the dwelling the same as nonhandicapped person because he received his disability benefit in time to make his rental payment without incurring any late fee. Moreover, defendants did not refuse to make the accommodation.
The record also demonstrates that plaintiff Hume did not make an accommodation request. Defendants cannot be held liable for a failure to accommodate a request that is not made. Cf. Gaston v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1364 (11th Cir. 1999) (The initial burden of requesting an accommodation is on the employee to establish a claim of discrimination under the Rehabilitation Act). Moreover, plaintiff Hume alleges she also received her disability benefit on the third day of the month. 3:21-cv-1439-JR Complaint (ECF 1) at ¶ 62. Thus, no accommodation was necessary to allow her to enjoy the dwelling to the same extent as a nonhandicapped person.
B. Retaliation
A prima facie showing of FHA retaliation requires the plaintiffs to prove: (1) he or she was engaged in protected activity; (2) he or she suffered an adverse action in the form of coercion, intimidation, threats, or interference; and (3) there was a causal link between the two. DuBois, 453 F.3d at 1180.
The record establishes defendants were unaware of the existence of plaintiff Hume's request for accommodation. Accordingly, to the extent such a request is protected activity, no reasonable factfinder could conclude the failure to extend the rental payment due date to the Eighth was caused by the request. Moreover, because plaintiff Hume could make the rental payment without incurring a late fee, she suffered no adverse interference with her ability to enjoy the apartment.
Similarly, plaintiff Johnson cannot establish an adverse action or a causal link. Even if defendants' conditional accommodation could be considered an adverse action, defendants' uncontroverted belief that the accommodation was unnecessary prevents a reasonable factfinder from finding a retaliatory intent. Cf, Munoz v. Mabus, 630 F.3d 856, 865 (9th Cir. 2010) (In a Title VII retaliation action, plaintiff bears the ultimate burden of showing defendant's stated reasons to be merely pretextual, once defendant has given legitimate, non-retaliatory grounds for its actions, and merely denying the credibility of the employer's proffered reasons is insufficient). Accordingly, defendants' motion for summary judgment should be granted.
RECOMMENDATION
For the reasons stated above, the motions for summary judgment (ECF 43 in case No. 3:21-cv-1439-JR, ECF 44 in Case No. 3:21-947-JR) should be granted. As such, a judgment should be entered in favor of defendants in both actions and the cases dismissed.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.