Opinion
5:21-CV-83-M
02-29-2024
RAYMOND EARL MAY, JR. and ANGELA DOLORES MAY, Plaintiffs, v. MARTIN FEIN INTEREST LTD., Defendant.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr. United States Magistrate Judge
This matter is before the court on Defendant Martin Fein Interest Ltd.'s motion for summary judgment, pursuant to Fed.R.Civ.P. 56. [DE-149]. Plaintiffs Raymond and Angela May filed a memorandum in opposition, [DE-158, -159], and the time for further responsive briefing has expired. The matter is referred to the undersigned magistrate judge for a memorandum and recommendation to the district court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. R. 72.3(c)(1), E.D. N.C. For the reasons that follow, it is recommended that the motion for summary judgment be allowed.
Plaintiffs sued "Martin Fein Interest Ltd." but documents submitted by the parties indicate the entity's name is "Martin Fein Interests Ltd." For purposes of this Memorandum and Recommendation, either name refers to Defendant.
I. Statement of the Case
Plaintiffs brought this action against multiple defendants, including Martin Fein Interest Ltd., related to alleged housing discrimination associated with their rental of an apartment at Creekside at Crabtree ("Creekside Apartments'") in Raleigh, North Carolina. [DE-1, -1-1, -1-2]. On frivolity review, Plaintiffs were allowed to proceed with their claims for race and disability discrimination and retaliation under the Fair Housing Act ("FHA"), [DE-12, -16], and the complaint was filed, [DE-13, -13-1]. Over the next year, Plaintiffs attempted to serve the defendants, who filed motions to dismiss for improper service. Plaintiffs agreed to the dismissal of certain defendants, the court ordered the U.S. Marshals Service to effect service, and Plaintiffs were allowed to file an amended complaint. [DE-116, -122].
Plaintiffs filed a redlined amended complaint listing only Martin Fein Interest, Ltd. as a defendant. [DE-118]. Plaintiffs also filed a motion to dismiss all remaining defendants except Martin Fein Interest, Ltd. The court denied the motion to dismiss as moot in light of the filing of Plaintiffs' Amended Complaint naming only Martin Fein Interest, Ltd., which the court accepted as the operative complaint. [DE-129]. Martin Fein Interest, Ltd. then filed a motion to dismiss for failure to state a claim. [DE-130]. The court denied the motion to dismiss, construing Plaintiffs' initial complaint, [DE-13, -13-1], and amended complaint, [DE-118], together as the operative complaint. [DE-144]. Martin Fein Interest, Ltd. then filed an answer, [DE-145], and after discovery concluded filed the instant motion for summary judgment along with a statement of undisputed material facts, affidavit in support, and memorandum in support, [DE-149 to -152]. Plaintiffs filed a response and affidavit in opposition to the summary judgment motion, along with paper exhibits and two flash drives consisting of exhibits., [DE-158 to -161].
Among Plaintiffs' exhibits on the flash drives are several recorded phone calls and conversations. The court notes that under North Carolina law, it is a Class H felony if, "without the consent of at least one party to the communication," a person "[w]illfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication." N.C. Gen. Stat. § 15A-287(a)(1). Defendant has not objected to the admissibility of this evidence.
The exhibits on the flash drives are not numbered and many of the file names do not precisely correspond to those listed in Plaintiffs' Appendix index, [DE-159] at 4-6. Furthermore, Exhibit 88 labeled "Video of Trevor, Martin Fein Interest Ltd. Marketing Manager, Brandi Johnson, and Plaintiff discussing various issues," could not be viewed because it was a shortcut to a file and not an actual video file.
II. Statement of Undisputed Material Facts
Defendant contends that the following material facts are undisputed: (1) Defendant has never owned Creekside Apartments in Raleigh, North Carolina; (2) Crabtree Apartments, LLC owned Creekside Apartments from June 5, 2014 until November 1, 2019; (3) on November 1, 2019, Crabtree Apartments, LLC conveyed Creekside Apartments to Creekside Crabtree Apartments, Inc.; (4) Defendant was property manager of Creekside Apartments from the outset of the Mays' occupancy at Creekside Apartments until November 1, 2019; (5) Defendant has had no ownership interest or management responsibilities for Creekside Apartments since November 1, 2019; (6) neither Crabtree Apartments, LLC nor Defendant ever filed for summary ejectment or filed any other cause of action against Plaintiffs; (7) Plaintiffs entered a lease for Unit 237 at Creekside Apartments on April 30, 2018; (8) Plaintiffs entered leases for Units 441 and 459 on April 26,2019, and Plaintiffs and their daughter moved into those units; and (9) Plaintiffs' daughter has at all material times been over the age of 18. Def.'s Rule 56.1 Statement [DE-150]. The Rule 56.1 statement is supported by the sworn Affidavit of Julie Batche, Defendant's Vice President of Property Management; deeds reflecting the ownership of Creekside Apartments; and copies of Plaintiffs' leases for Units 237, 441, and 459. [DE-151].
Plaintiffs filed a combined response opposing Defendant's motion and statement of unopposed material facts with accompanying exhibits, which fails to comply with the court's Local Rules. Local Civ. R. 56.1 (a)(2) provides that "[t]he memorandum opposing a motion for summary judgment shall be supported by a separate statement including a response to each numbered paragraph in the moving party's statement, in correspondingly numbered paragraphs . . . ." Furthermore, "[e]ach numbered paragraph in the moving party's statement of material facts will be deemed admitted for purposes of the motion unless it is specifically controverted by a correspondingly numbered paragraph in the opposing statement." Id. Plaintiffs' response does not contain a separate statement with correspondingly numbered paragraphs. However, given Plaintiffs' pro se status, the undersigned has endeavored to match Plaintiffs' objections to Defendant's statements of fact and considers the objections on the merits.
Plaintiffs contest Defendant's assertion that it never owned Creekside Apartments. Plaintiffs contend that Defendant is the President and Owner of Westchase Construction, Creekside Apartments is listed in the Westchase Construction portfolio, and Defendant provides third party property management for Creekside Apartments. Pls.' Resp. [DE-159] at 12-13, 29-31. In support, Plaintiffs provided a printout from www.feincommunities.com, touting the construction services of "our affiliate general contractor Westchase Construction, Ltd.," listing Creekside at Crabtree in Raleigh, North Carolina as part of the portfolio, and listing Mr. Martin Fein ("Fein") as the President of Westchase Construction, Pls.' Exs. 15-17 [DE-159-11 to -159-13]; an article from Commercial Property Executive dated June 18, 2014, discussing Defendant's acquisition of land and plans to develop Creekside Apartments, Pls.' Ex. 18 [DE-159-14]; a Harris County Tax Office internet search result listing Defendant's address as "1400 Post Oak Blvd 77056" and listing the address of Fein's residence, Pls.' Ex. 19 [DE-159-15]; a Harris County 2023 Property Tax Statement listing Fein and Defendant as the assessed owners of Fein's residence, Pls.' Ex. 20 [DE-159-16]; a November 1, 2019 North Carolina Special Warranty Deed conveying Creekside Apartments from Crabtree Apartments, LLC to Creekside Crabtree Apartments, Inc. and terminating the September 1, 2016 Management Agreement between Crabtree Apartments, LLC and Defendant, which is executed as follows:
(Image Omitted)
Pls.' Ex. 21 [DE-159-17]; and the September 1, 2016 Management Agreement between Crabtree Apartments, LLC ("Owner"), dba Creekside at Crabtree and Martin Fein Interests, Ltd. ("Agent"), which is executed as follows:
(Image Omitted)
Pls.' Ex. 25 [DE-160-3]. Plaintiffs also contend that Westchase Construction and Defendant share an address and use the same registered agent. Pls.' Resp. [DE-159] at 13; Pls.' Ex. 21[DE-159-18]; Pls.'Ex. 22 [DE-160-1].
The documents submitted by Plaintiffs, at most, arguably demonstrate that Fein had an interest in Westchase Construction and in Crabtree Apartments, LLC as the sole member of its managing member MG CTFP, LLC. However, Plaintiffs have not created a genuine issue of material fact as to whether Martin Fein Interests, Ltd., the sole remaining defendant in this action, owned Creekside Apartments. Defendant submitted a Special Warranty Deed demonstrating that Crabtree Apartments, LLC owned Creekside Apartments from June 5, 2014, until it was conveyed to Creekside Crabtree Apartments, Inc. on November 1, 2019. Def.'s Exs. A & B [DE-151] at 7-18. Both parties agree that Defendant was the property management company for Creekside Apartments from the date of Plaintiffs' occupancy until November 1, 2019. Batche Aff. [DE-151 ] 1 7; Pls.' Ex. 21 [DE-159-17] at 3; Pls.' Ex. 25 [DE-160-2]. But Plaintiffs have submitted no evidence that Martin Fein Interests, Ltd. had an ownership interest at any time in Crabtree Apartments, LLC or Creekside Crabtree Apartments, Inc., the entities who owned Creekside Apartments. Accordingly, Defendant's first five statements of fact are established, to wit: Defendant has never had an ownership interest in Creekside Apartments; Crabtree Apartments, LLC owned Creekside Apartments from June 5, 2014 until November 1, 2019, when it conveyed the apartments to Creekside Crabtree Apartments, Inc.; Defendant was property manager of Creekside Apartments from the outset of the Mays' occupancy until November 1, 2019; and Defendant has had no ownership interest or management responsibilities for Creekside Apartments since November 1, 2019.
Plaintiffs also contest Defendant's assertion that neither Crabtree Apartments, LLC nor Defendant ever filed for summary ejectment or any other cause of action against Plaintiffs. Pls.' Resp. [DE-159] at 31. Plaintiffs contend that Defendant's employees filed summary judgment or summary ejection actions against Plaintiffs. Id. Plaintiffs filed an exhibit regarding litigation brought against them by Creekside Crabtree Apartments, Inc., supported by an affidavit from Meghan Dawes who worked for Bell Partners, Inc., the property management company that succeeded Defendant. Pls.' Ex. 1 [DE-159-1]; see also Pls.' Exs. 29, 30, 49, 60, 61 [DE-160-7, -160-8, -160-23, -161, -161-1] (orders and filings in cases brought by Creekside Crabtree Apartments, Inc. against Plaintiffs). None of this evidence controverts the sworn statement of Batche that neither Crabtree Apartments, LLC nor Defendant ever filed a summary ejectment or other action against Plaintiffs. Batche Aff. [DE-151 ] ¶ 10. Accordingly, Defendant's sixth statement of fact is established.
Plaintiffs do not appear to dispute that they entered a lease for Unit 237 at Creekside Apartments on April 30, 2018, or that they entered leases for Units 441 and 459 on April 26, 2019, and that Plaintiffs and their daughter moved into those units. Accordingly, Defendant's seventh and eighth statements of fact are established.
Finally, Plaintiffs refer to their "adult daughter/stepdaughter" and do not appear to dispute that she was over the age of 18 at all material times, although they do dispute the relevance of her age. Pls.' Resp. [DE-159] at 16, 32. Accordingly, Defendant's ninth statement of fact is established.
III. Legal Standard
Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The party seeking summary judgment bears the initial burden of demonstrating the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has met its burden, the nonmoving party then must affirmatively demonstrate, with specific evidence, that there exists a genuine issue of material fact requiring trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Only disputes between the parties over facts that might affect the outcome of the case properly preclude the entry of summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
"[A]t the summary judgment stage the [court's] function is not [itself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249. In determining whether there is a genuine issue for trial, "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [the non-movant's] favor." Id. at 255 (citation omitted); see also United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) ("On summary judgment the inferences to be drawn from the underlying facts contained in [affidavits, attached exhibits, and depositions] must be viewed in the light most favorable to the party opposing the motion."). Nevertheless, "permissible inferences must still be within the range of reasonable probability, . . . and it is the duty of the court to withdraw the case from the jury when the necessary inference is so tenuous that it rests merely upon speculation and conjecture." Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 241 (4th Cir. 1982) (quotations omitted). Thus, judgment as a matter of law is warranted where "a reasonable jury could reach only one conclusion based on the evidence," or when "the verdict in favor of the non-moving party would necessarily be based on speculation and conjecture." Myrick v. Prime Ins. Syndicate, Inc., 395 F.3d 485, 489 (4th Cir. 2005). By contrast, when "the evidence as a whole is susceptible of more than one reasonable inference, a jury issue is created" and summary judgment should be denied. Id. at 489-90.
Here, Plaintiffs are proceeding pro se. Pleadings drafted by pro se litigants are held to a less stringent standard than those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that writings by pro se complainants are held to "less stringent standards than formal pleadings drafted by lawyers"). The court is charged with liberally construing pleadings filed by pro se litigants to allow for the development of a potentially meritorious claim. See id.; Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994); Gordon v. Leeke, 574 F.2d 1147,1151 (4th Cir. 1978).
IV. Discussion
A. FHA Disability Discrimination
Defendant contends Plaintiffs have failed to establish the essential elements of a claim for disability discrimination under the FHA. Def's Mem. [DE-152] at 2-5.
The FHA makes it unlawful:
To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of-
(A) that person; or
(B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or
(C) any person associated with that person.42 U.S.C. § 3604(f)(2). "[A] plaintiff must furnish either direct evidence of discriminatory intent, ... or proceed under the McDonnell Douglas burden-shifting framework, to prove a claim of disability discrimination under Section 3604(f) of the FHA." Affinity Recovery Ctr., LLC v. Town Commissioners of Sudlersville, No. 23-CV-00714-LKG, 2024 WL 149835, at *6 (D. Md. Jan. 12, 2024) (quoting Letke v. Wells Fargo Home Mortg., Inc., No. RDB-12-3799, 2013 WL 6207836, at *3 (D. Md. Nov. 27, 2013); then citing Martin v. Brondum, 535 Fed.Appx. 242, 244 (4th Cir. 2013)). "A plaintiff seeking to prove disability discrimination under Section 3604(f) must also show: (1) that he is handicapped and (2) that he was either discriminated against because of his handicap or denied a reasonable accommodation necessary to allow him the same use and enjoyment of his dwelling as other non-handicapped persons." Id. at *6 (citation omitted). The FHA defines "handicap" as "(1) a physical or mental impairment which substantially limits one or more of such person's major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment." 42 U.S.C. § 3602.
1. Discrimination Regarding Alexis
Plaintiffs' disabled adult daughter Alexis, who suffers from multiple sclerosis, lived with them at Creekside Apartments, and Plaintiffs contend (1) that Defendant's employee told them Unit 237 was handicapped accessible when it was not, which prevented Alexis from accessing various rooms and other areas in her wheelchair, and (2) that Defendant's employees refused to accept deliveries of Alexis's medical supplies and medications because it was a burden. Pls.' Resp. [DE-159] at 16-17, 20-21, 32-33; Compl. [DE-13-1] ¶ 37, 51-53, 59, 66.
To the extent Plaintiffs attempt to assert claims on behalf of Alexis, they may not do so. Plaintiffs are representing themselves without legal counsel, i.e., proceeding pro se, but they are not permitted to represent others in a. pro se capacity. See Myers v. Louden Cnty. Pub. Schs., 418 F.3d 395, 400 (4th Cir. 2005) ("The right to litigate for oneself. . . does not create a coordinate right to litigate for others.") (citing Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (per curiam)). "The Fourth Circuit has rejected the right of individuals to litigate pro se on behalf of others, even with respect to a non-attorney parent's claims on behalf of their minor children in federal court." Braun on behalf of C.B. v. North Carolina, No. 3:23-MC-7-RJC, 2023 WL 425399, at *2 (W.D. N.C. Jan. 26, 2023) (citing Myers, 418 F.3d at 401). This rule protects children from "well-meaning, but legally untrained" relatives who attempt to litigate on a child's behalf. See Davis v. Rubin, No. 20-CV-6271, 2020 WL 7624833, at *2 (E.D. Pa. Dec. 22, 2020) (dismissing any FHA claims that the pro se plaintiff attempted to bring on behalf of his son for lack of standing); Williams ex rel. E.W. v. Wake Cnty. Pub. Sch. Sys., No. 5:08-CV-92-D, 2008 WL 2491129, at *1 (E.D. N.C. June 20, 2008) (dismissing complaint because the plaintiff was not permitted to litigate pro se on behalf of a minor child) (quoting Myers, 418 F.3d at 401); Verbal v. Krueger, No. 1:09-CV-990, 2010 WL 276644, at *3 (M.D. N.C. Jan. 15, 2010) (dismissing a claim on frivolity review because a pro se plaintiff could not proceed as next friend for her minor child).
Here, Alexis is not a minor, but neither is she a party to this action. Furthermore, to the extent Alexis's disability presents a bar to her pursuing her own claims, Plaintiffs have failed to allege that they are duly appointed representatives for Alexis. Under the Federal Rules, "[a] minor or an incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court must appoint a guardian ad litem-or issue another appropriate order-to protect a minor or incompetent person who is unrepresented in an action." Fed.R.Civ.P. 17(c)(2). However, even if Plaintiffs were Alexis's duly appointed guardians, they could not bring claims on her behalf where they proceed pro se. Accordingly, Defendant should be granted summary judgment on any claims asserted on behalf of Alexis.
The FHA does, however, grant standing to an "aggrieved person" who is associated with a person who suffered discriminatory conduct. See 42 U.S.C. §§ 3604(f), 3613(a)(1)(A). Standing under the FHA is broad, limited only by the Article III requirement to demonstrate an injury in fact. See United States v. Bankert, 186 F.Supp.2d 623, 627 (E.D. N.C. 2000) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 376 (1982)). "A plaintiff need not be the victim of the complained discrimination; however, the plaintiff must have suffered some 'distinct and palpable injury' from the discriminatory conduct." Myers v. Highlands at Vista Ridge Homeowners Ass 'n, Inc., No. 6:20-CV-00562-MK, 2022 WL 4452414, at *9 (D. Or. Sept. 8, 2022), adopted by 2022 WL 4447495 (D. Or. Sept. 23, 2022).
Plaintiffs alleged that Defendant's employees' refusal to sign for Alexis's packages required Plaintiffs to drive two hours to pick up Alexis's medical supplies from the provider. Compl. [DE-13-1] ¶¶ 51-53. Plaintiffs provided a voicemail from the medical supply company regarding two months of orders for Alexis, asking whether Plaintiffs would pick up the orders or if there was possibly a family member or friend that could receive the packages. Pls.' Flash Drive, Ex. 51. Thus, Plaintiffs have demonstrated a distinct injury from Defendant's alleged refusal to sign for Alexis's packages. See Fair Hous. Just. Ctr., Inc. v. Cuomo, No. 18-CV-3196 (VSB), 2019 WL 4805550, at *10 (S.D.N.Y. Sept. 30, 2019) (finding "John Doe's allegations that he was distressed that his sister was in a nursing home and that he had been aiding her attempts to return to Village Housing, including travel to visit her" were sufficient to allege financial and emotional injuries for purposes of standing). It is less clear that Plaintiffs have alleged the requisite "distinct and palpable injury" related to the allegation that Defendant's employee told them that Unit 237 was handicapped accessible when it was not, which prevented Alexis from accessing various rooms and other areas in her wheelchair. However, even assuming Plaintiffs have standing, they have not established the essential elements for a disability discrimination claim.
While Plaintiffs contend that they requested a handicapped accessible apartment and that Defendant's employee told them Unit 237 was handicapped accessible when it was not, Plaintiffs also alleged in their complaint that they were shown Unit 237 prior to leasing it. Compl. [DE-13-1] ¶ 36. This fatally undermines Plaintiffs' assertion that they were deceived regarding whether Unit 237 was handicapped accessible. The deficiencies about which Plaintiffs complain, e.g., that there was a bathtub rather than a shower, the height of countertops and the door peephole, and the size of door openings, would have been readily apparent to Plaintiffs when they viewed the apartment. Thus, no reasonable jury could find for Plaintiffs on this claim.
As for the allegation that Defendant's employees refused to accept deliveries of Alexis's medical supplies and medications, Plaintiffs have failed to provide sufficient evidence to proceed to a jury on this claim. First, William Hubbard allegedly made a statement in June 2020 that staff signing for and taking control of Alexis's medical deliveries was an administrative burden. Compl. [DE-13-1] ¶ 87. However, Defendant's property management agreement was terminated on November 1, 2019, and Hubbard was employed by Bell Partners, Inc., not Defendant. Pls.' Ex. 21 [DE-159-17]; Compl. [DE-13-1] | 13; Batche Aff. [DE-151] ¶ 14. Thus, to the extent this could be considered direct evidence of disability discrimination, it is not attributable to Defendant.
As for instances where Defendant's employees were alleged to have not signed for or mishandled Alexis's packages, Plaintiffs' evidence is insufficient to demonstrate disability discrimination under the McDonnell Douglas burden-shifting framework. See Johns v. Stillwell, No. CIV.A. 3:07-CV-00063, 2009 WL 1408517, at *3 (W.D. Va. May 20, 2009) ("The three steps of the McDonnell Douglas test are as follows: (1) a plaintiff must first prove a prima facie case of discrimination by a preponderance of the evidence; (2) a defendants[] then has the opportunity to present a legitimate, non-discriminatory reason for the action; (3) if defendants present a legitimate, nondiscriminatory reason, the burden shifts back to the plaintiff, who must proffer evidence that the legitimate non-discriminatory reason proffered was merely a pretext for discrimination.").
Plaintiffs alleged that on July 7, 2018, an employee signed for Alexis's pain medication, but when Angela May asked if the package had arrived, the employee stated that it had not and that she had not signed for any deliveries that day. Compl. [DE-13-1]¶44. The package was found after the pharmacy tracked the package, and on July 10, 2018, Angela May received a call from another employee stating that the medication had just arrived. Id. Plaintiffs alleged that the first employee signed for the package and attempted to steal it, and Alexis suffered in extreme pain for three days before receiving the package. Id. Plaintiffs presented no evidence to support their conjecture that an employee attempted to steal Alexis's medication. Furthermore, Batche stated in her affidavit that the package was addressed to Alexis Lucas, the package was not immediately associated with Plaintiffs because their name was not on the package, and when it was determined the package was intended for Plaintiffs' unit it was delivered unopened. [DE-151 ] ¶ 17. Defendant has provided a legitimate non-discriminatory reason for the late delivery of the package, and Plaintiffs have provided no evidence that Defendant's reason was false and a pretext for discrimination.
Plaintiffs also alleged that on August 21, 2018, they received an email from Creekside Apartments stating they would no longer be signing for packages, and as a result, Alexis's medical supplies were not delivered in September and October; on December 3, 2018 they received another email stating that deliveries "will be placed in the Lux[o]r One box or the packages will be placed in their office and the owner will be notified," which Plaintiffs claim was the initial way Creekside Apartments handled packages; on March 9, 2019, an employee gave the UPS driver a key fob to enter the building in order to deliver a package, which was contrary to policy, but the package was not delivered, and when Raymond May attempted to pick up the package at the UPS facility without Alexis present the UPS manager called 911; and on August 6, 2019, Plaintiffs received a message from Alexis's medical supply company regarding where to send future shipments due to Creekside Apartments staff refusing to sign for the packages. Compl. [DE-13-1] at ¶¶ 51-53, 56, 59, 66. The emails Plaintiffs reference do not appear in the record, and Plaintiffs have not provided any evidence that the mail policy or refusal to sign for Alexis's packages was in any way related to her disability. Other evidence provided by Plaintiffs, specifically a Determination letter from the North Carolina Human Resources Commission following an investigation of claims that Plaintiffs suffered discriminatory treatment at Creekside Apartments, indicates that Defendant generally experienced problems with its package delivery system and that there was documentation of Defendant receiving multiple tenant complaints about the delivery and receipt of packages. Pls.' Ex. [DE-160-18] at 11. Plaintiffs have not submitted evidence from which a reasonable jury could find that Defendant's employees refused to sign for Alexis's packages because of her disability. Accordingly, the court should grant Defendant summary judgment on this claim.
2.Discrimination Regarding Raymond May
As for Plaintiffs' claim that Defendant's employee placed an insufficient funds notice on Plaintiffs' door knowing that Raymond May had a heart condition, Compl. [DE-13-1] ¶ 45, Plaintiffs have asserted no evidence from which a reasonable jury could find that the placement of the notice was motivated by or had a discriminatory impact related to May's heart condition. See Thomas v. Nationstar Mortg., LLC, No. 5:17-CV-120, 2018 WL 991541, at *4 (N.D. W.Va. Feb. 20, 2018) ("To prove a prima facie case of discrimination under the FHA, the [plaintiffs must] demonstrate that the housing action or practice being challenged was either motivated by a discriminatory purpose or had a discriminatory impact.") (citing Greengael, LC v. Bd. of Supervisors of Culpeper Cnty., Va., 313 Fed.Appx. 577, 581 (4th Cir. 2008)). Accordingly, the court should grant Defendant summary judgment on this claim.
B. FHA Race Discrimination
Defendant contends that Plaintiffs have failed to establish the essential elements of a claim for race discrimination under the FHA. Def.'s Mem. [DE-152] at 5-7.
Section 804 of the FHA makes it unlawful "to discriminate against any person in the terms, conditions or privileges of. . . rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin." 42 U.S.C. § 3604(b). To prove a claim under the FHA, Plaintiffs must demonstrate that the housing action or practice being challenged was either motivated by a discriminatory purpose or had a discriminatory impact. See Reyes v. Waples Mobile Home Park Ltd. P 'ship, 903 F.3d 415, 421 (4th Cir. 2018) ("an FHA claim can proceed under either a disparate-treatment or a disparate-impact theory of liability, and a plaintiff is not required to elect which theory the claim relies upon at pretrial, trial, or appellate stages."); Betsey v. Turtle CreekAssocs., 736 F.2d 983, 986 (4th Cir. 1984); Young v. Lake Royal Prop. Owners Ass'n, No. 5:19-CV-483-FL, 2020 WL 6692985, at *4 (E.D. N.C. Sept. 21, 2020) ("To proceed on a claim under 42 U.S.C. § 3604(b), a plaintiff may show either direct evidence of discrimination or may show discrimination through the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)"), adopted by 2020 WL 6693226 (E.D. N.C. Nov. 12, 2020).
For corporate defendants, "it is well established that the [Fair Housing] Act provides for vicarious liability," and "traditional vicarious liability rules ordinarily make principals or employers vicariously liable for acts of their agents or employees in the scope of their authority or employment." Meyer v. Holley, 537 U.S. 280, 285 (2003); see also United States v. Cochran, 79 F.Supp.3d 578, 584 (E.D. N.C. 2015) ("a theory of vicarious liability ... is a straightforward, well-established, avenue of relief in a Fair Housing Act case"). Additionally, "compliance with the . . . FHA ... is 'nondelegable' in that an owner cannot 'insulate himself from liability for . . . discrimination in regard to living premises owned by him and managed for his benefit merely by relinquishing the responsibility for preventing such discrimination to another party.'" Equal Rts. Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 602 (4th Cir. 2010) (quoting Walker v. Crigler, 976 F.2d 900, 904 (4th Cir. 1992)).
Plaintiffs argue that Defendant's employees engaged in a pattern of racially discriminatory conduct. Pls.' Mem. [DE-159] at 10-11. Plaintiffs assert in their brief that Karry Allen worked under Defendant until she left Creekside Apartments in the summer of 2022, Bell Partners, Inc. became the new management company around November 2019, William Hubbard was employed by Bell Partners, Inc. and worked at Creekside Apartments while it was owned and under the control of Defendant from approximately March 2018, and Defendant did nothing to stop its employees from discriminating against Plaintiffs. Id. at 15-16. Plaintiffs point to evidence that staff placed late rent notices on Plaintiffs' apartment door and left Alexis's continence medical supplies outside Plaintiffs' door with intent to "degrade, harass, demean, intimidate and humiliate" Plaintiffs, staff refused to sign for and mismanaged Plaintiffs' deliveries, Karry Allen increased Plaintiffs' rent in the eighth month of their lease, Plaintiffs were required to pay rent with certified funds and other tenants were not, staff did not honor a special rate offered by the leasing agent, staff called the police when Raymond May attempted to retrieve his belongings from the grilling area after he was locked out, staff displayed racist behaviors in photographs, and Defendant's summary ejection/eviction proceeding against Plaintiffs was racially motivated and based on a fraudulent lease and ledger. Id. at 19-28, 32-33.
1. Direct Evidence
An FHA violation may be established through direct evidence of discrimination. See Martin v. Brondum, 535 Fed.Appx. 242, 244 (4th Cir. 2013). "Direct evidence includes 'conduct or statements that both (1) reflect directly the alleged discriminatory attitude, and (2) bear directly on the contested [housing] decision.'" Harris v. Vanderburg, 584 F.Supp.3d 82, 91-92 (E.D. N.C. 2022) (quoting Martin, 535 Fed.Appx. at 244).
Plaintiffs submitted pictures of individuals who worked at Creekside Apartments, specifically, Hubbard, Pridemore, Allen, and Dawes, which they claim depict racist behavior. Compl. [DE-118] at 4-5; Pls.' Exs. 78-88 [DE-161-6 to -161-16]. As an initial matter, it is not apparent that some of this material is racially charged. For example, the only picture purporting to show Allen is of her face next to that of a German Shepherd dog, which is patently innocuous. Pls.' Ex. 78 [DE-161-6]. On the other hand, a picture purporting to show Pridemore, a white woman, wearing Black face and African clothing is offensive and arguably suggestive of a discriminatory attitude. Pls.' Ex. 88 [DE-161-16]. Even assuming some of these photographs depict racially offensive conduct, Pridemore, Hubbard, and Dawes were not employed by Defendant.
Plaintiffs alleged that Pridemore, Hubbard, and Dawes worked for Bell Partners, Inc.,Compl. [DE-13-1] ¶¶ 13, 89; Compl. [DE-118] at 4, who is no longer a defendant in this matter. See Jan. 24, 2023 Mem. & Rec. [DE-116] at 5-6 (recommending Bell Partners Inc., Invesco Ltd., William Hubbard, Karry Allen, and Meghan Dawes be dismissed from the case without prejudice where the parties agreed dismissal was appropriate), adopted by Feb. 9, 2023 Order [DE-122] (dismissing Bell Partners, Hubbard, Allen, and Dawes); see also Batche Aff [DE-151] at If 14. As explained above, Defendant preceded Bell Partners as the property management company for Creekside Apartments, Pls.' Ex. 21 [DE-159-17] (Nov. 1, 2019 termination of Defendant's management agreement), so there is no vicarious liability to Defendant for the alleged bad acts of Bell Partners' employees. Accordingly, Plaintiffs have failed to produce direct evidence from which a reasonable jury could find race discrimination by Defendant.
Allen may have worked for both Defendant and Bell Partners, Compl. [DE-13-1] ¶ 14, but there is no direct evidence of discrimination on the part of Allen.
2. McDonnell Douglas Burden Shifting
An FHA violation may also be established using the McDonnell Douglas burden-shifting framework. See Martin, 535 Fed.Appx. at 244 (citing McDonnell Douglas Corp. ,411 U.S. at 802).
To establish a prima facie case of discrimination, a plaintiff must show that: '"[s]he is a member of a protected class and that [s]he was treated differently than other tenants because of h[er] membership in that class.'" Roberson v. Graziano, No. WDQ-09-3038, 2010 WL 2106466, at *2 (D. Md. May 21, 2010), aff'd, 411 Fed.Appx. 583 (4th Cir. 2011). If the plaintiff clears that bar, '"the burden shifts to [the] defendant[ ] to show a legitimate nondiscriminatory reason for [its] actions.'" Boardley v. Household Fin. Corp. III, 39 F.Supp.3d 689, 709 (D. Md. 2014) (quoting Letke v. Wells Fargo Home Mortg., Inc., No. RDB 12-3799, 2013 WL 6207836, at *3 (D. Md. Nov. 27, 2013)). "Ultimately, 'the burden returns to [the] plaintiff to demonstrate that the reason was a pretext.'" Id. (quoting Letke, 2013 WL 6207836, at *3). To meet this burden to present evidence of pretext, a plaintiff must demonstrate both that the defendant's proffered legitimate, nondiscriminatory reason was false, and that discrimination was, in fact, the real reason for the defendant's action. See Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243, 252 (4th Cir. 2015) (quoting Jiminez v. Mary Washington Coll., 57 F.3d 369, 378 (4th Cir. 1995)).Williams v. Arora Hills Homeowners Ass 'n Inc., No. CV DKC 19-3370, 2021 WL 2226199, at *6 (D. Md. June 2, 2021).
As indirect or circumstantial evidence of discrimination, Plaintiffs claim that staff placed late rent notices on Plaintiffs' apartment door, staff refused to sign for and mishandled Plaintiffs' deliveries, Allen increased Plaintiffs' rent in the eighth month of their lease, Plaintiffs were required to pay rent with certified funds and other tenants were not, staff did not honor a special rate offered by the leasing agent, and staff called the police when Raymond May attempted to retrieve his belongings from the grilling area after he was locked out. Pls.' Resp. [DE-159] at 19-26, 28, 33. While discriminatory terms or conditions in a sale or rental or discrimination in the provision of services or facilities, such as garbage collection or maintenance repairs, are prohibited under § 3604(b), see Harris, 584 F.Supp.3d at 98, Plaintiffs have not presented any evidence that they were treated differently than other tenants because of their race or that the alleged wrongful actions were motivated by a discriminatory purpose. See Wadley v. Park at Landmark, LP, 264 Fed.Appx. 279, 281 (4th Cir. 2008) ("To prove a prima facie case of discrimination under the FHA, Wadley must demonstrate that either the housing action or practice being challenged was motivated by a discriminatory purpose or had a discriminatory impact.") (citing Betsey, 736 F.2d at 986); Reeves v. Hampton Forest Apartments, No. CV 6:16-715-HMH-KFM, 2017 WL 326020, at *5 (D.S.C. Jan. 5, 2017) (finding defendant was entitled to summary judgment where the plaintiff presented no evidence that there was any discriminatory intent behind the defendant's actions other than the plaintiffs bare, conclusory assertions), adopted by 2017 WL 282397 (D.S.C. Jan. 23, 2017), aff'd as modified sub nom. Reeves v. Hampton Forest Apts, 689 Fed.Appx. 768 (4th Cir. 2017). Furthermore, Defendant has provided evidence of legitimate non-discriminatory reasons for the allegedly discriminatory actions, and Plaintiffs have provided no evidence that Defendant's reasons were false and a pretext for discrimination.
As with the assertion that Defendant's handling of Alexis's packages was discriminatory, Plaintiffs have failed to substantiate with any evidence their assertion that the handling of their packages was motivated by race discrimination. See supra S IV A. 1.
Defendant has presented evidence that Plaintiffs were required to pay rent by certified funds due to their credit history and that payment by certified funds is authorized by the lease terms. Batche Aff. [DE-151] ¶ 11-13; Def.'s Ex. C [DE-151] at 19 § 1(E)(1). Plaintiffs' conclusory statement that the certified funds requirement was racially motivated, Pls.' Resp. [DE- 159] at 21,24, is insufficient to counter Defendant's legitimate justification for requiring payment by certified funds, i.e., Plaintiffs' credit history. See Wadley, 264 Fed.Appx. at 281 (finding that plaintiffs "self-serving, unsubstantiated statements" in opposition to proffered evidence was "insufficient to stave off summary judgment") (citing Williams v. Cerberonics, Inc., 871 F.2d 452, 455 (4th Cir. 1989)). As for the late rent notices, Defendant provided evidence demonstrating that Plaintiffs' lease specifically provides that notices may be placed on their door. See Def.'s Ex. C [DE-151] at 20, 38 §§ 1(M), D(1) (providing for "written notice to home" by, among other options, "posting," and delivery by "posting the notice on the front door of the Home"). Plaintiffs cited evidence, a June 6, 2018 Late Notice stating that $2,332.82 was past due, Pls.' Resp. [DE-159] at 19, 21; Pls.' Ex. 41 [DE-160-19], fails to support their claim that notices were placed after payments were made on time.
Exhibits 54 and 57 referenced by Plaintiffs are not in the paper record, and these exhibits on the flash drive are not related to this issue.
With respect to the claim that Defendant increased their rent and failed to honor rent concessions, Batche explained that Plaintiffs were granted both monthly and one-time rent concessions, as well as a waiver of the application and administrative fee, as a courtesy. Batche Aff. [DE-151 ] TJI19, 23. Plaintiffs claim that Allen changed their rent in the eighth month of their leases for apartments 441 and 459. Pls.' Resp. [DE-159] at 20. Plaintiffs executed the leases for those apartments in April 2019, and Defendant was no longer the property management company eight months later in December 2019, when Allen allegedly changed their rent. Pls.' Ex. 21 [DE-159-17] (Nov. 1, 2019 termination of Defendant's management agreement). Accordingly, Defendant is not liable for this alleged conduct.
Plaintiffs reference Exhibit 57 in support of their assertions that they were promised a special law enforcement rate and other concessions that were not honored. Pls. Resp. [DE-151] at 22-24. However, Exhibit 57 is not among Plaintiffs' paper exhibits, and Exhibit 57 on Plaintiffs' flash drive is not related to this assertion. The undersigned has considered the following of Plaintiffs' flash drive exhibits: an October 1, 2019 recording labeled "karry trying to take concessions, mis quoting rent, to take concessions from 441 and 459 oct. 2019"; an October 13, 2019 recording labeled "Trevor 8 5 19 ref apartment 237 fees"; and an October 21, 2019 recording labeled "oct rent trevor." Even viewing this evidence in the light most favorable to Plaintiffs, these exhibits do not support the assertion that Plaintiffs were denied concessions or that their rental rate was misquoted. The other flash drive exhibits that appear arguably related to rent or concessions are dated after Defendant was no longer the property management company.
The exhibit labeled "Kerri and lynn attempt to take away monthly concession, asking us to pay 15$ or about $" is a duplicate of this exhibit.
As for the incident where staff called the police when Raymond May attempted to retrieve his belongings from the grilling area after he locked himself out, Batche stated that "police were called as a precaution because Mr. May had indicated he was going to kick down the door to get his belongings, including a gun." Batche Aff [DE-151] ¶ 26; Def's Ex. G [DE-151] at 100 (Aug. 21, 2018 email from Katie Nelson (Creekside Apartments Property Manager) to Raymond May).
Plaintiffs attempt to create a question of material fact by stating as follows:
Plaintiff went back to his apartment and decided to wait until the next day to retrieve his property. At no time was Plaintiff argumentative or threatening. While sitting inside apartment 237 Plaintiff heard a knock at the door. There were never threats involve. There was no property damage. No threatening behavior. Plaintiff did not kick the doors. The door and walls entering the pool area is all glass. It is not a crime to have a gun. There was no reason to call the Police, the report list Plaintiff as a suspicious person. Plaintiff was racially profiled by Katie Nelson and Maintenance.Pls.' Resp. [DE-159] ¶ 56 (errors in the original). Batche did not assert that there was property damage or that Raymond May kicked the door or walls, and Raymond May did not deny that a gun was present. Id. Rather, Defendant's evidence indicated that there was a legitimate concern to call police as a precaution after it was reported that a resident was threatening to kick the door in to retrieve his belongings, including a gun. Batche Aff. [DE-151] ¶ 26; Def.'s Ex. G [DE-151] at 100. Plaintiffs' statement is insufficient to counter Defendant's legitimate, non-discriminatory reason for calling the police and does not demonstrate that Defendant's reason was false and a pretext for discrimination.
Finally, Plaintiffs' claim that Defendant filed discriminatory summary ejectment or other actions against them, [DE-159] at 18, 24-25, cannot withstand the motion for summary judgment where the uncontroverted evidence establishes that the summary ejectment or other actions were not filed against Plaintiffs by Defendant. See Pls.' Ex. 1 [DE-159-1]; see also Pls.' Exs. 29, 30, 49, 60, 61 [DE-160-7, -160-8, -160-23, -161, -161-1] (orders and filings in cases brought by Creekside Crabtree Apartments, Inc. against Plaintiffs); Batche Aff. [DE-151]¶10.
Plaintiffs' supplemental redlined amended complaint largely relates to this state court litigation, which does not involve Defendant. [DE-118].
Accordingly, Plaintiffs have failed to produce evidence from which a reasonable jury could find that Defendant discriminated against Plaintiffs on the basis of race, and the court should grant Defendant summary judgment on this claim.
C. Retaliation in Violation of the FHA
Defendant contends that Plaintiffs have failed to establish the essential elements of a claim for retaliation under the FHA. Def.'s Mem. [DE-152] at 7-8.
To demonstrate a retaliation claim, a plaintiff must show "that (1) she was engaged in protected activity; (2) [the defendant] was aware of that activity; (3) [the defendant] took adverse action against her; and (4) a causal connection existed between the protected activity and the asserted adverse action." Harris, 584 F.Supp. at 100 (quoting Hall v. Greystar Mgmt. Srvs., L.P., 637 Fed.Appx. 93, 97-98 (4th Cir. 2016)). "Protected activity includes any 'action taken to protest or oppose statutorily prohibited discrimination' or 'the exercise or enjoyment of rights under 42 U.S.C. § 3604 to equal services and conditions of housing.'" Tigress Sydney Acute McDaniel v. VTT Mgmt, Inc., No. 3:16-CV-00826-RJC-DSC, 2018 WL 4494985, at *3 (W.D. N.C. Sept. 18, 2018) (quoting Matarese v. Archstone Pentagon City, 795 F.Supp.2d 402, 442 (E.D. Va. 2011), aff'd in part, vacated in part, 468 Fed.Appx. 283 (4th Cir. 2012)), aff'd, 748 Fed.Appx. 563 (4th Cir. 2019).
Defendant does not dispute that Plaintiffs engaged in protected activity or that Defendant was aware of it. Plaintiffs alleged that on June 20, 2019, they filed a complaint with the State of North Carolina Office of Administrative Hearing Civil Rights Division Human Relation Commission ("HUD"). Compl. [DE-13-1] at 21; see Hall, 637 Fed.Appx. at 98 ("Hall did allege that she engaged in protected activity when she filed a HUD complaint"); Matarese, 795 F.Supp.2d at 443 (finding that filing discrimination complaints with administrative agencies was a protected activity). Plaintiffs also alleged that Defendant was aware of that activity through its employees' participation in the HUD investigation. Compl. [DE-13-1] at 10.
Defendant, however, disputes that it took an adverse action against Plaintiffs because of their protected activity. Def.'s Mem. [DE-152] at 8. Plaintiffs alleged that after they filed the HUD complaint, they were advised that they had not been paying the correct amounts of rent for Units 441 and 459 and that a promised rent concession was not honored. Compl. [DE-13-1 ] at 21.
As discussed above, the evidence provided by Plaintiffs does not support that their rental rate was changed and that concessions were not honored. Plaintiffs also contend that the summary ejection and other actions against them were retaliatory, Pls.' Resp. [DE-159] at 24-25, but their evidence demonstrates that Defendant did not file any summary ejection or other action against Plaintiffs. See Pls.' Ex. 1 [DE-159-1]; see also Pls.' Exs. 29, 30, 49, 60, 61 [DE-160-7, -160-8, -160-23, -161, -161-1] (orders and filings in cases brought by Creekside Crabtree Apartments, Inc. against Plaintiffs); Batche Aff. [DE-151] ¶ 10. Finally, Plaintiffs contend that Defendant's employees failed to give Alexis proper documents so that she could get financial assistance and would only give an email stating the rent amount when they knew the agencies only accept summary ejection or eviction documents. Pls.' Resp. [DE-159] at 26-27. Plaintiffs reference Exhibit 67 in support of this contention, but there is no such exhibit in the paper file and Exhibit 67 on the flash drive is not relevant to this issue. To the extent Plaintiffs can rely on an alleged retaliation against Alexis, a non-party, Plaintiffs have presented no evidence to support their contention that Alexis was denied proper documentation or that any denial was causally connected to the filing of the HUD complaint. Accordingly, Plaintiffs have failed to produce evidence from which a reasonable jury could find Defendant retaliated against Plaintiffs, and the court should grant Defendant summary judgment on this claim.
V. Conclusion
For the reasons stated herein, it is recommended that Defendant's motion for summary judgment be allowed.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on the parties. You shall have until Thursday, March 14, 2024, to file written objections to the Memorandum and Recommendation. Any response to an objection shall be fined by no later than Monday, March 25, 2024. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C.
If you do not file written objections to the Memorandum and Recommendation (M&R) by the foregoing deadline, you will be giving up the right to review of the M&R by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the M&R without such review. In addition, your failure to file written objections by the foregoing deadline will bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the M&R. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).