Opinion
No. C 99-04626 CRB
January 16, 2002
JUDGMENT
Having granted the defendants' motions for summary judgment, it is hereby ORDERED that judgment be entered in favor of the defendants and against the plaintiffs, Philip A. Fields and David Shelton.
IT IS SO ORDERED.
PROCEDURAL HISTORY
After the remaining defendants in this case filed summary judgment motions, oral argument was scheduled for November 30, 2001. Plaintiff failed to file opposition. Plaintiff's counsel did, however, appear on November 30. Counsel stated that he had suffered a debilitating flare-up of his repetitive stress injuries and had been unable to file opposition. Despite the fact that the opposition was then three weeks late, The Court agreed to permit still additional time. The Court asked counsel how much time he needed. Counsel stated that he had already completed his research and other preparation and could have opposition on file by Monday, December 10, 2001, a period of time encompassing two weekends. He also agreed to hand-serve defendants. Counsel failed to do either. Plaintiff finally filed opposition on December 11, 2001. Plaintiff's other filings in this case have been similarly untimely
The Court notes that perhaps Mr. Fields was distracted by the four other actions he has initiated which are currently pending before the Northern District of California: Fields v. McClory, No. 00-2987 CW (housing discrimination); Fields v. Golden Gate Bridge Highway Transportation District, No. 01-1509 THE (ADA); Fields v. California State University Hayward, No. 01-3630 BZ (ADA); Fields v. Nourian, No. 01-3694 MJJ (Fair Housing Act).
Despite plaintiff's continued refusal to comply with Court-ordered deadlines (this one suggested by plaintiff), the Court has read and carefully considered the opposition filed, as well as all of the other papers filed by the parties in this action. Pursuant to Civil Local Rule 7-1(b) the Court finds that further oral argument will not be necessary. For the reasons stated below, summary judgment is GRANTED in favor of all defendants.
INTRODUCTION
This case arises from alleged discrimination that plaintiff, Philip A. Fields ("Fields"), experienced while attempting to secure subsidized housing. Plaintiff is an American-Indian male who allegedly suffers from respiratory illness, a spinal injury, and mental illness.
A substantial number of the original causes of action have been dismissed pursuant to two previous orders. The three remaining defendants Berkeley housing Authority ("BHA"), Marin Housing Authority ("MHA"), and Eden Housing, Incorporated ("Eden") have moved for summary judgment on the remaining claims. Those claims are: (1) violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. (3rd cause of action) against BHA, MHA, and Eden; (2) violation of California's Fair Employment and Housing Act ("FEHA") (4th cause of action) against MHA and Eden; (3) violation of the Unruh Act (5th cause of action) against Eden; (4) "retaliation" in violation of the First Amendment (6th cause of action) against BHA and MBA; (5) violation of the Fair Housing Act, 42 U.S.C. § 3604, (7th cause of action) against Eden; and (6) violation of 42 U.S.C. § 1982 (8th cause of action) against Eden.
The relevant factual background is set forth below.
BACKGROUND
In the summer of 1997, Fields attempted to secure Section 8 housing with BHA. Fields filed two complaints with the federal Department of Housing and Urban Development ("HUD"), alleging discrimination based on disability, race, and national origin.
In 1997, Fields moved to the jurisdiction of the MHA where he began to search for Section 8 housing. Apparently, Fields had a portable Section 8 certificate, issued by the Contra Costa Housing Authority, at the time. Fields provided MHA with a letter from his physician explaining that he suffered from a permanent (usability which required that he reside with a "live-in attendant." In response. MHA issued Fields a two-bedroom Section 8 certificate.
On December 3, 1997, MHA received a Request for Lease Approval signed by Fields, requesting an inspection of an apartment located at 1041 3rd Street, Novato, California. MHA had no input in selecting the unit. The lease was executed between Della Investments, which managed the property, and Fields. MHA responded to plaintiff's application by inspecting the rental unit. MHA approved the rental of the second floor apartment. Plaintiff alleges that he sought a ground floor apartment, not a second floor apartment, and that MHA and Bella Investments refused to rent one. Plaintiff complains that climbing the stairs to each the second floor unit aggravated his disability.
Plaintiff alleges that MHA employees continually harassed him and his live-in attendant over the course of the next two years. Fields alleges that MHA agents demanded various documentation from him (to verify his eligible status), refused to permit his first live-in attendant's spouse to stay in his apartment, refused to permit his second live-in attendant to join his lease, misplaced or destroyed parts of his MHA file, frequently yelled at him, and subjected him to "abusive behavior."
In June 1998, when a ground floor unit again became available, plaintiff requested permission to move. Bella Investments denied plaintiff's request.
In addition, plaintiff alleges that he was unable to access MHA's offices during this period because the MHA facility is inaccessible to people with disabilities. The office is located at the top of a steep hill.
In 1999, the United States Department of Housing and Urban Development ("HUD") converted its Section 8 certificate system to a voucher system. During the spring, summer and early fall of 1999, HUD permitted housing authorities to phase out the certificate system in favor of vouchers. In accordance with these regulations, BHA stopped offering certificates and began to distribute vouchers in July 1999. MHA stopped issuing certificates on August 1, 1999. By October 1, 1999, every housing authority in the country had shifted from certificates to vouchers. The new voucher system provides less generous rental payments.
On September 17, 1999 Fields requested a transfer Section 8 certificate from MHA. Because Fields had failed to provide verification of the continuing need for a live-in attendant and MHA had transitioned to vouchers, MHA issued a one-bedroom voucher, instead of the two-bedroom certificate Fields requested. After some acrimony, MHA issued a two-bedroom certificate to Fields.
In July 1999, plaintiff attempted to rent a unit in Berkeley, California, from defendant Eden with his two-bedroom transfer certificate. Eden is a non-profit organization that offers subsidized housing in Berkeley. Plaintiff applied for a unit in Eden's Dwight Way Apartments. In early August. plaintiff traveled to Eden's office seeking housing, but was turned away by Eden Housing employees. According to plaintiff, over 50 women, most of whom were African-American, received interviews, but he was denied the chance to interview because of his race, gender and disability.
On September 27, 1999, plaintiff Fields brought his Section 8 certificate to BHA in the hope of moving into subsidized housing in Berkeley. Pursuant to HUD regulations, BHA had stopped accepting certificates and only accepted vouchers. The processing of Fields' application was delayed for four consecutive days. Fields alleges that each of these four days he visited BHA's offices and waited for several hours to meet with an agent about his certificate. BHA's agents refused to meet with plaintiff at any time prior to October 1, 1999.
Finally, on October 1, BHA agents met with plaintiff and offered him a two-bedroom voucher for Berkeley housing. Plaintiff refused, demanding the opportunity to use a certificate instead.
Because of this delay plaintiff was unable to obtain housing with his certificate prior to October 1, 1999. As a result, plaintiff's opportunity to use his certificate had expired. Plaintiff alleges that BHA's actions cost him precious time during which he might have been able to use his certificate to find housing in Berkeley.
Plaintiff currently resides in Section 8 housing in Berkeley under the BHA.
I. Legal Standard
Summary judgment is appropriate when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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). An issue is "genuine" only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party. See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248-49 (1986). A fact is "material" if the fact may affect the outcome of the case. See id. at 248. "In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the non-moving party." Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A principal purpose of the summary judgment procedure is to identify and dispose of factually unsupported claims. See Celotex Corp. v. Cattrett, 477 U.S. 317, 323-24 (1986).
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery, and affidavits which demonstrate the absence of a genuine issue of material fact. See id. at 323. Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. See id. Once the moving party meets this initial burden, the non-moving party must go beyond the pleadings and by its own evidence "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56 (e). The non-moving party must "identify with reasonable particularity the evidence that precludes summary judgment." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995), and noting that it is not a district court's task to "scour the record in search of a genuine issue of triable fact"). If the non-moving party fails to make this showing, the moving party is entitled to judgment as a matter of law. See Celotex, 477 U.S. at 323.
II. Third Cause of Action: Americans with Disabilities Act (BHA, MHA, Eden)
A. Berkeley Housing Authority
In his third cause of action, plaintiff states a claim against BHA for violation of the ADA. Plaintiff's ADA claim is divided into two separate allegations. First, plaintiff alleges that BHA "retaliated" against him. Second, plaintiff charges that BHA violated the ADA by failing to provide a tape recorder to plaintiff during his meetings with BHA agents.
1. Retaliation Claim
Plaintiff's claims that BHA retaliated against him by delaying the processing of his application and refusing to accept his Section 8 certificate. The alleged retaliation appears to be based upon two complaints that Fields filed with MUD alleging discrimination when he previously attempted to secure Section 8 housing with BHA in 1997.
The Courts have adopted a burden shifting analysis for retaliation claims. To make out a prima facie case for retaliation under the ADA plaintiff must show: 1) that he was engaging in a protected activity, (2) that he suffered an adverse action, and (3) that there was a causal link between the protected activity and the adverse action. See, Trent v. Valley Elec. Ass'n Inc., 41 F.3d 524, 526 (9th Cir. 1994). If plaintiff makes such a showing, the burden shifts to BHA to present legitimate reasons its actions. See Brooks v. San Mateo, 214 F.3d 1082, 1092 (9th Cir. 2000). Once BHA meets this burden, the burden is on Fields to show a triable issue of fact that BHA's stated reasons are pretext and BHA's actions were motivated by discriminatory intent.
Fields has failed to establish even a prima facie case of retaliation. He has presented no evidence that there was any causal connection between the complaints made in 1997 and the actions of BHA in 1999. The significant passage of time alone may be enough to defeat an inference of retaliation. See Rakovich v. Wade 850 F.2d 1180, 1198 (7th Cir. 1988).
Furthermore, the person that allegedly retaliated, Wanda Drouillard, did not work on Mr. Fields' case in 1997, and had no first hand knowledge of his complaints. Furthermore, Ms. Drouillard subsequently processed Fields' successful transfer to BHA housing, further undermining an inference of discriminatory animus.
Even assuming, arguendo, that plaintiff has made out a prima facie case, BHA has legitimate nondiscriminatory reasons for its actions that Fields cannot challenge as pretext. First, BHA, under policies adopted with the approval of HUD, could not accept Fields' certificate. Since July of 1999 its approved policy had been to accept only vouchers. Second, Fields points to absolutely no evidence that the four-day delay was in any way related to his disabled status, his request for accommodation, or his previous complaints. Further, defendant provides evidence that the four-day "delay" was actually shorter than the average processing time.
2. Accommondation: Tape Recorder
Second, plaintiff alleges that BHA refused to provide a tape recorder during its meetings with plaintiff. Plaintiff explains that because of his mental disabilities he cannot take notes and requires certain accommodations. Federal regulations require public entities to "take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others." 28 C.F.R. § 35.160 (a) (1999). Plaintiff argues that defendants' failure to provide a tape recording device violated this provision.
BHA first argues that Fields' never requested a tape recorder. BHA argues that under Rule 36(a) Fields' failure to timely respond to a request for admission amounts to an admission that he never requested a tape recorder. Indeed in his opposition brief, Fields only argues that MHA, not BHA, failed to provide a tape recorder. There is no evidence to support this claim, if indeed plaintiff even intends to pursue it. Summary judgment is therefore granted.
B. Marin Housing Authority
Fields alleges three ADA violations against MHA. First, he complains that MHA failed to provide him with a tape recorder as a means of note-taking during his visits to their facilities. Second, he alleges that the location of MHA's offices, atop a steep hill, prevents individuals with disabilities from gaining equal access to the agency's services. Last, Fields alleges that MHA "retaliated against him."
1. Tape Recorder
In his complaint plaintiff alleges that MHA failed to honor his request for a tape recorder during meetings. MHA and other public entities, need only provide "auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in. and enjoy the benefits of. a service, program, or activity conducted by a public entity." 28 C.F.R. § 35.160 (b)(1).
MHA argues that the fact that Fields sought and obtained Section 8 housing proves that he had an "equal opportunity" to participate in MHA's programs. He had more than an "opportunity," he was actually participating in MHA's programs. He was living in Section 8 housing the entire time he was living within the jurisdiction of the MHA. Fields has pointed to absolutely no evidence showing his communications with MHA were in any way impaired.
Fields has also testified that MHA refused to allow him to use his own tape recorder. Specifically. Fields states he was threatened with arrest if he did not stop using the tape recorder he brought to MHA offices. Supplemental Declaration of Fields, ¶ 46. But this allegation does not change the fact there is no evidence before the Court that plaintiff's communication with MHA or his participation in MHA program were in any way impaired.
2. Retaliation
Fields claims that MHA retaliated against him by: 1) issuing a Section 8 voucher instead of a certificate, 2) requiring him to submit verification of his disability, 3) requiring his live-in attendant to submit certain verifying documents, 4) failing to give him a downstairs apartment, and 5) not preventing his eviction by Bella Investments.
The same analysis employed above applies here. To make out a prima facie case for retaliation under the ADA plaintiff must show: 1) that he was engaging in a protected activity, (2) that he suffered an adverse action, and (3) that there was a causal link between the protected activity and the adverse action. See, Trent v. Valley Elec. Ass'n Inc., 41 F.3d 524, 526 (9th Cir. 1994).
Again, Fields has failed to establish a prima facie case. First, it is not even clear what protected conduct Fields argues lie engaged in. He makes references to both the formal HUD complaints lie made against BHA (not MHA), and the requests he made to MHA for a downstairs apartment and regarding his live-in attendant.
Even if Fields engaged in protected conduct, lie has utterly failed to demonstrate any causal connection between the "adverse actions" summarized above and any actions he may have taken previously. Similarly Fields is unable to rebut the MHA's legitimate nondiscriminatory reasons for those actions.
The first three actions were dictated by MHA's Administrative Plan which was adopted pursuant to federal regulations and with the approval of HUD. No evidence indicates otherwise. Fields has pointed to no evidence that anyone was issued a Section 8 certificate during the period in question. Nor is there any evidence that anyone was ever exempted from the verification procedures. With regard to the final two allegedly adverse actions, the uncontroverted evidence shows that MHA had no control over, or responsibility for, the decisions regarding which apartment Fields occupied and his subsequent eviction. Fields only offers conclusory, unsupported allegations to the contrary.
MHA did eventually issue Fields a certificate instead of a voucher. This appears to have been in contravention of their approved policy of issuing only vouchers at the time. (Local agencies were permitted, but not required, to phase out the certificate system at this time.) But this evidence in no way supports an inference that the initial decision to issue a voucher was discriminatory — it was in accord with a federally approved policy. This evidence supports the inference that MHA took extraordinary steps. inconsistent with their approved policies, to satisfy Fields.
In short, Fields has failed to raise a triable issue of fact as to whether the allegedly adverse actions were motivated by discriminatory intent.
3. Location of Facilities
Plaintiff alleges that the location of MHA's facility, atop a steep hill and a significant distance from bus stations, violates the ADA. The ADA prohibits public entities from selecting sites that effectively exclude disabled individuals from the entities' programs. See Anderson v. Pennsylvania Department of Public Welfare, 1 F. Supp.2d 456 (E.D. Pa. 1998); 28 C.F.R. § 35.130 (b)(4) (1999). Therefore, plaintiff argues, MHA's inaccessible facility violates the law.
To prove that MHA has violated Title II of the ADA, plaintiff must show: (1) he is a "qualified" individual with a disability; (2) he was denied services or otherwise discriminated against; and (3) such discrimination was motivated by plaintiff's disability. See Weinreich v. Los Angeles County Metropolitan Transp. Authority, 114 F.3d 976, 978 (9th Cir. 1997).
Defendant does not contest the fact that Fields is a qualified individual. Fields has failed to establish the second part of the prima facie case. The facts developed in this case show that Fields was not denied any services based on the location of the facility. Fields was participating in MHA's Section 8 program. Fields points to no evidence that he was in any way denied any of MHA's services. However, Fields has argued that he was otherwise discriminated against. because as a result of the location of the facility his opportunity to benefit from the services provided by MHA was "not equal to that afforded others." 28 C.F.R. § 35.130(b)(1)(ii). Answering this question requires an examination of whether MHA provided sufficient access to its programs for individuals with mobility impairments.
MHA argues that it has made its programs and services accessible pursuant to 28 C.F.R. § 35.150 (a). That regulations states that:
A public entity may comply with the requirements of this section through such means as redesign of equipment, reassignment of services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery of services at alternate accessible sites, alteration of existing facilities and construction of new facilities, use of accessible rolling stock or other conveyances, or any other methods that result in making its services, programs, or activities readily accessible to and usable by individuals with disabilities.28 C.F.R. § 35.150 (b)(1). In this regard, MHA operated an alternative site, had provisions for home visits, and would transact business by mail or telephone where possible.
Despite this stated policy Fields claims that MHA agreed to an offsite meeting only once, and that the meeting was canceled by Whisper Smith from MHA. Supplemental Declaration of Fields ¶ 41. Fields claims that other requests to meet offsite were denied. Id. ¶ 42. According to Fields, as a result of the denials he was "forced to make the long arduous climb up the steep hills to [the MHA] offices to turn in paperwork and suffered severe pain and muscle spasms." Id. MHA claims it has no record of Fields making any such requests.
Fields offers no explanation for why he chose to deliver the "paperwork" personally when he could have mailed it. Further, the evidence shows that Fields routinely appeared at the MHA facility, often without an appointment. While Fields claims to have requested offsite meetings, he has provided no evidence of when he requested those meetings, or with whom. Nor has he provided any evidence that he was unable to transact business with MHA by mail or over the telephone, as provided for by MHA's policies.
This cause of action is also asserted by plaintiff Shelton. But Shelton has provided no evidence whatsoever that he was a "qualified" individual and therefore cannot make out a prima facie case. Shelton applied for the Shelter Plus Care Program but was rejected twice because he failed to satisfy the objective eligibility requirements of that program. He was not homeless when he submitted his first application, and his medical condition did not qualify when applied a second time.
C. Eden
Plaintiff states his claim under Title II of the ADA. Eden, however, is not a public entity as defined in Title II. See 42 U.S.C. § 12131 (1). Furthermore, Eden is not subject to Title III of the ADA because Title III specifically excludes "[f]acilities that are covered or expressly exempted from coverage under the Fair Housing Act of 1968." 28 C.F.R. § 36.104. Eden and Dwight way are subject to the Fair Housing Act.
III. Fourth Cause of Action: Violation of Fair Employment and Housing Act (MHA, Eden)
A. Marin Housing Authority
Plaintiff's fourth cause of action alleges a violation of California's Fair Employment and Housing Act, Cal. Gov't Code §§ 12940 et seq. Plaintiff alleges the same facts underlying his ADA claim.
Plaintiff's FEHA claim fails for several reasons. First, FEHA does not explicitly demand that public entities provide accommodations to members of the public. While Title II of the ADA contains such a provision, FEHA does not incorporate Title II of the ADA. While plaintiff argues that Title II is impliedly incorporated by FEHA, he provides no legal support for that proposition.
While California Government Code § 11135 extends the protections and prohibitions Title II to state-funded programs and activities, plaintiff has not alleged a claim under section 11135. Considering that plaintiff has been given three prior opportunities to amend his complaint, no leave to amend shall be granted at this time to plead a claim under section 11135. Moreover, even if leave to amend were proper, it is far from clear that section 11135 even permits private enforcement actions in federal or state court. Compare Arriaga v. Loma Linda Univ., 10 Cal.App.4th 1556 (1992), with Greater Los Angeles Council on Deafness v. Zolin, 812 F.2d 1103 (9th Cir. 1987).
To the extent that plaintiff's FEHA claim is premised on MHA's failure to provide him with a downstairs apartment (as opposed to the upstairs one he occupied), the claim also fails as a matter of law. The facts as presented to this Court establish that MHA had no control over, influence with, or participation in the selection of the apartment that Fields rented from Bella Investments, or any terms and conditions of their agreement.
B. Eden Housing
Plaintiff's FEHA claim against Eden alleges the same underlying facts as the Fair Housing Act claim analyzed below. These claims are analyzed under the same framework. See County of Alameda v. Fair Employment Housing Com., 153 Cal.App.3d 504 (Cal.Ct.App. 1984) (stating that FEHA and Title VII employ same standard); Gamble v. City of Escondido, 104 F.3d 300, 304 (9th Cir. 1997) (stating that Title VII and Federal Housing Act employ same standard). Therefore, as summarized below, summary judgment is GRANTED in favor of Eden Investments.
IV. Fifth Cause of Action: Unruh Act (Eden)
The Unruh Act claim mirrors an ADA claim. See Cal. Civ. Code § 51(f) ("A violation of the right of any individual under the Americans with Disabilities Act of 1990 shall also constitute a violation of this section [the Unruh Act]."); Muller v. Automobile Club of So. Cal., 61 Cal.App.4th 431, 442-43 (1998) (noting that the California legislature amended the Unruh Act to conform it with the ADA). Accordingly, for the reasons set forth above summary judgment is GRANTED on this claim.
V. Sixth Cause of Action: First Amendment Retaliation (BHA, MHA)
Plaintiff alleges that BHA and MHA punished him in retaliation for engaging in activities protected by the First Amendment. Plaintiff alleges that during his interactions with BHA and MHA he wrote letters, filed complaints, and took "other communicative action." He alleges that his later mistreatment was in retaliation for exercising his rights.
The framework for analyzing a First Amendment retaliation claim is essentially the same as that for a ADA retaliation claim set forth above. In order to state a prima facie case of retaliation under the First Amendment, plaintiff must allege that (1) he engaged in a protected activity; (2) he suffered adverse action; and (3) there was a causal link between the protected activity and the adverse action. See Miller v. Fairchild, 797 F.2d 727, 731 (9th Cir. 1986).
Defendants argue that plaintiff cannot satisfy the first element of the prima facie case because his speech was not constitutionally protected. To determine if speech is protected, courts generally apply the test announced by the Supreme Court in Connick v. Myers, 461 U.S. 138 (1983), which requires that the asserted speech touch upon a matter of public concern. Whether speech addressed a matter of public concern is determined by the content, form and context of a given statement, as revealed by the whole record. See id. at 147-48; see also Landstrom v. Illinois Dept. of Children and Family Services, 892 F.2d 670, 679 (7th Cir. 1990) (applying Connick test outside of the employment context).
The Connick court held that when the government punishes a public employee for speaking not as a citizen upon matters of public concern, but instead upon matters only of private interest, absent the most unusual circumstances, the employee will not find relief in federal court. See Connick, 461 U.S. at 147. A key inquiry in the Connick analysis is the plaintiff's motive in making the speech. See Landstrom, 892 F.2d at 679. In defining public concern, the Ninth Circuit has stated that speech does not involve a public concern when it is clear that such speech deals with individual "disputes and grievances and that the information would be of no relevance to the public's evaluation of the performance of governmental agencies." Havekost v. U.S. Dept. of the Navy, 925 F.2d 316, 318 (9th Cir. 1991). One critical inquiry is whether the plaintiff spoke in order to bring wrongdoing to light or merely to further some purely private interest. See id.
Defendants argue that plaintiff's alleged speech is purely private, was not widely disseminated, and did not touch on an area of public concern. As noted above, whether speech is a matter of public concern depends on the manner of the speech, the content of the speech and the intent of the speaker.
In this case, Fields disseminated the speech only to employees of the relevant agencies. The complaints against BHA alleged that he was "treated different[ly] than other `clients' of BHA." The complaints against MHA assert that its facilities were physically inaccessible and therefore precluded him from socializing' and "making friends." The substance of both of these complaints is clearly personal in nature. The only evidence that Fields' speech was protected is his deposition statement that with regard to BHA and the Dwight Way housing units: "I wanted to get David, the journalist man, involved to run a story about it."
While the Court has significant doubt that plaintiff's activities were protected by the First Amendment, the Court does not need to resolve the issue because plaintiff has failed to establish the third element of the prima facie case.
Fields cannot establish the causal connection between his speech and the alleged adverse action required. As stated above, the actions of both BHA and MHA were in accord with policies adopted with the specific approval of HUD. Fields has provided no evidence that suggests the actions of BHA and MHA were motivated by anything other than conformity with these stated and approved policies.
VI. Seventh Cause of Action: Fair Housing Act (Eden)
Plaintiff next states a cause of action against Eden for violation of the Fair Housing Act ("FHA"), 42 U.S.C. § 3604. The FHA makes it unlawful (1) to deny a dwelling to any person because of race, color, sex, religion, disability, national origin or familial status; (2) to discriminate against any person in the terms, privileges or conditions of rental of a dwelling on one of those bases, or (3) to coerce, intimidate, threaten or interfere with the rights of any person in the exercise or enjoyment of rights under the Act. See Harris v. Itzhaki, 183 F.3d 1043, 1052 (9th Cir. 1999).
The factual basis of the claim is that Eden discriminated against him on the basis of his gender (male), his race ("someone other than African-American"), and his disability. The discrimination took the form of failing to offer Fields an interview for housing in the Dwight Way apartments.
In analyzing claims under Title VIII, the Fair Housing Act, courts apply the three-part test developed for Title VII employment discrimination claims. See Gamble v. City of Escondido, 104 F.3d 300, 304 (9th Cir. 1997). Under this three-part test, plaintiff must first establish a prima facie case. The burden then shifts to defendant to articulate a legitimate nondiscriminatory reason for its actions. If defendant articulates such a reason, the presumption of discrimination disappears and the plaintiff has the burden of proving that the articulated reason is pretextual and raising a triable inference that the true motivation for the challenged action was discriminatory. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
To establish a prima facie case, plaintiff must show that: 1) he was a member of a protected class, 2) he applied for and was qualified for an interview for the Dwight Way apartments, 3) he was denied an interview for the apartments, 4) a similarly situated person was interviewed or other circumstantial evidence of discriminatory motive in refusing to interview plaintiff for an apartment. See Gamble, 104 F.3d at 305.
The dispositive issue is the fourth element of the prima facie case. No similarly situated applicants were interviewed by Eden. The only circumstantial evidence of discrimination Fields alleges is statements by Aleta Carpenter-Dwyer (an Eden employee). Fields alleges that Carpenter-Dwyer stated that Dwight Way was "a house of women, something to that effect." He also alleges that Carpenter-Dwyer said Dwight Way was "a house for black women."
This evidence does not establish a prima facie case. The undisputed evidence is that men were interviewed and men were housed in Dwight Way during the initial selection process. Furthermore Carpenter-Dwyer played no role in determining who would be interviewed. Nor is there any evidence that lie was denied an interview because he was non-African-American. Only four of the original fifteen residents of Dwight Way were African-American. Nor was plaintiff discriminated against on the basis of disability. The wheelchair preference for Dwight Way residents was perfectly legitimate.
Assuming that this evidence suffices to establish a prima facie case, the burden would shift to the defendant to articulate a legitimate nondiscriminatory reason for its actions. In their moving papers Eden Investments sets forth in detail the process for granting interviews — which was the only way to receive housing in Dwight Way.
Dwight Way consists of 16 units. One unit was set aside for a resident manager. Two unites were set aside for people living with HIV or AIDS. One unit was set aside for a person with a severe visual or hearing impairment. In his opposition brief Fields argues that his "auditory hallucinations" entitled him to one of these units. He argues that the questionnaire did not ask about auditory impairments and that the Eden Housing staff is still under the mistaken impression that he does not have an auditory impairment. As an initial matter it is not clear that "auditory hallucinations" are a hearing impairment, and Fields has presented no evidence that lie has any difficulty hearing. In any event, the woman that received the unit, who is identified as M.P., had both a local preference and a significantly lower lottery number: 67.
Interviews for the remaining twelve unites were allocated according to a random lottery and a system of preferences. The HUD approved selection plan gave preference to those applicants using wheelchairs because the units were specifically designed for such use. Fields claims that this preference effectively penalized him for not using a wheelchair. As the plan prepared by Eden stated: "The project was designed for applicants with physical disabilities who require the special design features of the units." Simpich Decl. Ex. 23 (emphasis in original). These features include clear space under counters and other work spaces for a wheelchairs, wider doors, and thermostats installed at a seated level. He claims that the apartments were specifically designed for all mobility impaired individuals. He provides absolutely no evidence supporting this conclusory allegation, and the Court refuses to find fault in a preference for wheelchair users. There was a further preference for residents of the city of Berkeley.
Of the remaining twelve units, nine were assigned to wheelchair users. The three remaining units were assigned to residents of Berkeley: a white woman, a white man, and an African-American man. Their lottery numbers were 6, 10, and 11, respectively. Eden Investments did not interview anyone who did not use a wheelchair or have a local reference. In the lottery, Fields drew the number 67 of 85. He did not use a wheelchair and he was not a resident of Berkeley.
Plaintiff states in his opposition brief that these individuals had no physical disability. However, apartments were only available to disabled, and plaintiff offers no evidence to support this conclusory allegation.
Fields has no evidence to suggest that the initial selection process did not occur as outlined above. Carpenter-Dwyer, who allegedly made the statements referenced above, played no role in the selection process. Statistical evidence offers no support either. of the fifteen available units, five are occupied by men, a percentage that roughly correlates with the percentage of applications received (29 of 85 from men). Fields allegations of discrimination in favor of African-Americans are undermined by the fact that a majority of the tenants are not African-American. (Four of the original 15 tenants were African American.) Indeed, upon investigating a complaint filed by Fields, HUD issued a "Determination of No Reasonable Cause," which stated that Dwight Way was occupied by "diverse mixture" of tenants. In short, the evidence suggests that Eden applied its MUD approved initial selection process in a fair and nondiscriminatory manner.
The only evidence that Fields does provide relates to the residential mix at Dwight Way now. First, this is irrelevant to the initial selection process. Second, even if Fields is alleging a claim of continuing discrimination, none of this evidence shows that a single similarly situated individual currently resides in Dwight Way. That evidence consists of a declaration by Elizabeth Campos, a Dwight Way resident, which states:
During the month of October, 1999, Harold Dees told me that I could move into the Eden Apartments with the understanding that I would not be a witness in any case involving Philip Fields. I said nothing in response to his statement. It is my belief that my silence is the reason that I became a tenant at Dwight Way Apartments.
Declaration of William Simpich, Exhibit 5 ¶ 5. Campos also states that she knows a current resident, Kimberly Cartwright, had lottery number 82. She identifies five residents by name that appear to have no physical disabilities. She says that only five units have wheelchair-bound residents. None of this evidence is inconsistent with the selection process put forward by defendant; it does not create an inference of discrimination. Indeed, if the Campos declaration raises any inference at all inconsistent with the stated selection process, it is that Fields was not offered an apartment because of litigation fears. But even this inference fails because Fields have provided no evidence that a similarly situated individual is now, or was ever, housed in Dwight Way.
Other evidence put forward is inadmissible hearsay. For example, Campos states that James Richardson, a resident, told her that he never participated in the lottery, and that a social worker secured an apartment for him.
VII. Eight Cause of Action: 42 U.S.C. § 1982 (Eden)
Plaintiff states a claim under section 1982 of the Civil Rights Act of 1866. Section 1982 entitles all citizens of the United States to the same right as is enjoyed by white citizens "to inherit, purchase, lease, hold, sell, and convey real and personal property." 42 U.S.C. § 1982. In order to state a claim under section 1982, plaintiff must allege racial discrimination. See West Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1527 (9th Cir. 1990).
A Title VII framework is used to analyze a section 1982 claim. See Phiffer v. Proud Parrot Motor Hotel, Inc., 648 F.2d 548, 551 (9th Cir. 1980). For the reasons stated above, with regard to Title VII claim, summary judgment is GRANTED.
VIII. Defendant Resources for Community Development (RCD)
Plaintiff names RCD as a defendant under a theory of vicarious liability for the acts of Eden Investments. Fields alleges that RCD is the owner of the Dwight Way Apartments, which were managed by its agent — Eden Housing. Because the only theory upon which RCD can be liable is one of vicarious liability, summary judgment is granted in favor of RCD also.
IX. Other Defendants
At oral argument, there was some confusion regarding whether Bella Investments and the City of Berkeley were defendants in the case. Plaintiff stated that they were not.
CONCLUSION
For the reasons discussed above, summary judgment is GRANTED in favor of all defendants.
IT IS SO ORDERED.