Opinion
NO. 2018-CA-000132-MR
04-12-2019
LEXINGTON-FAYETTE URBAN COUNTY HUMAN RIGHTS COMMISSION, ON BEHALF OF SARAHI RIVERIA APPELLANT v. BRADFORD GREEN, LLC, D/B/A PREAKNESS APARTMENTS APPELLEE
BRIEF FOR APPELLANT: Edward E. Dove Lexington, Kentucky BRIEF FOR APPELLEE: Carroll M. Redford, III Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 17-CI-03505 OPINION
AFFIRMING
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BEFORE: COMBS AND L. THOMPSON, JUDGES; AND HENRY, SPECIAL JUDGE. HENRY, SPECIAL JUDGE: The Lexington-Fayette Urban County Human Rights Commission ("HRC"), on behalf of Sarahi Riveria, appeals from an order of the Fayette Circuit Court granting Bradford Green, LLC's motion to dismiss for failure to state a claim. For the reasons set forth below, we affirm.
Special Judge Michael L. Henry sitting by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
Throughout the record, the names Rivera and Riveria are used interchangeably to refer to the resident. This Court will address her as Riveria, as this is the name used on the notice of appeal. --------
On March 30, 2015, Riveria, who suffers from a physical disability, entered into an agreement with Bradford Green to lease a unit in the Preakness Apartments for the six-month period from April 1, 2015, to September 30, 2015. The lease stated that "[e]ither party may elect not to renew this lease beyond its initial term by giving the other a written notice [thirty] days prior to term expiration date. If no such notice is given, this lease will continue on a month-to-month basis[.]" The lease did not include any provisions regarding parking.
According to Bradford Green, Riveria made frequent complaints against Preakness Apartments and failed to strictly comply with the terms of her lease. In April 2015, Riveria requested that Bradford Green reserve a handicapped parking space in front of her building for her exclusive use. After Bradford Green denied this request, explaining that no tenant at the complex had a reserved space whether disabled or not, Riveria sought the assistance of the Lexington Fair Housing Council. On June 2, 2015, a representative of the Lexington Fair Housing Council sent a letter to the property manager of Preakness Apartments restating Riveria's request. It is undisputed that Bradford Green placed a handicapped parking space in front of Riveria's building the day after receipt of the letter. Although the parking space was directly in front of Riveria's apartment, it was not reserved for her exclusive use.
In August 2015, Riveria received notice from Bradford Green that her lease would not be renewed and she would need to vacate the unit upon its expiration on September 30, 2015. Riveria then filed a claim of discrimination with HRC on September 1, 2015. HRC investigated and issued a determination of probable cause and a charge of housing discrimination. Bradford Green elected to have the claims decided in a civil action before the Fayette Circuit Court in lieu of an administrative proceeding before HRC, as allowed by Kentucky Revised Statutes (KRS) 344.635. HRC's complaint alleged two counts: (1) failure to accommodate Riveria, and (2) retaliation based upon failure to renew Riveria's rental agreement. Bradford Green filed a motion to dismiss for failure to state a claim, which was granted by the circuit court. This appeal followed.
A dismissal for failure to state a claim under Kentucky Rules of Civil Procedure (CR) 12.02(f) is reviewed de novo, and "all reasonable inferences" are to be drawn in favor of the plaintiff. Carruthers v. Edwards, 395 S.W.3d 488, 491 (Ky. App. 2012) (citations omitted). "Since a motion to dismiss for failure to state a claim upon which relief may be granted is a pure question of law, a reviewing court owes no deference to a trial court's determination[.]" Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010) (citation omitted). "The court should not grant the motion unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved in support of his claim." Pari-Mutuel Clerks' Union of Kentucky, Local 541, SEIU, AFL-CIO v. Kentucky Jockey Club, 551 S.W.2d 801, 803 (Ky. 1977).
On appeal, HRC argues the circuit court erred in dismissing its complaint on three grounds. First, HRC argues it sufficiently stated the claim that Bradford Green failed to reasonably accommodate Riveria. Second, HRC argues it sufficiently stated the claim that Bradford Green retaliated against Riveria when it failed to renew her lease. Third, HRC argues that the circuit court improperly dismissed the case without allowing for discovery to be conducted.
First, HRC alleges that Bradford Green discriminated against Riveria when it refused her request for a handicapped parking space to be placed directly in front of her building for her exclusive use. KRS 344.360(11)(b) defines housing discrimination as "refusal to make reasonable accommodations in rules, policies, practices, or services, when the accommodations may be necessary to afford the person equal opportunity to use and enjoy a housing accommodation[.]" There is no Kentucky case law addressing the reasonableness of accommodations for a disabled resident in an action alleging housing discrimination. However, the federal courts have addressed this issue on multiple occasions. Under the Fair Housing Act ("FHA"), housing 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 use and enjoy a dwelling[.]" 42 U.S.C. § 3604(f)(3)(B). Because Kentucky's discrimination statute mirrors the FHA, federal courts' interpretation of the FHA is highly persuasive. See Kentucky Commission on Human Rights v. Commonwealth, 586 S.W.2d 270, 271 (Ky. App. 1979). Furthermore, KRS 344.020(1) states that the purpose of the Kentucky statute is "[t]o provide for execution within the state of the policies embodied in . . . the Fair Housing Act[.]" Thus, "[b]ecause of the similarity, we are guided by federal case law in the course of our review." Kentucky Center for the Arts v. Handley, 827 S.W.2d 697, 699 (Ky. App. 1991) (citation omitted).
Federal courts have held "an accommodation should not extend a preference to handicapped residents relative to other residents, as opposed to affording them equal opportunity." Hubbard v. Samson Management Corp., 994 F. Supp. 187, 190 (S.D.N.Y. 1998) (quoting United States v. California Mobile Home Park Mgmt. Co., 29 F.3d 1413, 1418 (9th Cir. 1994)). The FHA and Kentucky law require only those accommodations that allow a handicapped tenant "an equal opportunity to use and enjoy a dwelling." 42 U.S.C. § 3604(f)(3)(B); see also KRS 344.360(11)(b). Furthermore, federal courts have held the FHA does not require landlords to reserve a particular spot for that resident's exclusive use. Hubbard, 994 F. Supp. at 191 (citing Jankowski Lee & Assoc. v. Cisneros, 91 F.3d 891, 896 (7th Cir. 1996)).
In this matter the parties agree that, after receipt of the letter from the Lexington Fair Housing Council, Bradford Green provided Riveria with a handicapped parking space directly in front of her apartment building, but the parking space was not reserved for Riveria's exclusive use. However, landlords are not required to reserve a parking spot for a handicapped resident in order to reasonably accommodate her. Bradford Green's provision of a handicapped parking spot in front of Riveria's apartment is sufficient to afford her equal opportunity to use and enjoy her apartment. Because Bradford Green provided a reasonable accommodation for Riveria, the circuit court's dismissal of HRC's claim was proper.
For its second issue on appeal, HRC alleges that Bradford Green retaliated against Riveria by failing to renew her lease. Again, there is no Kentucky case law regarding retaliation in housing discrimination cases, but because of the similarity of the state and federal housing statutes, federal court interpretations are persuasive. Handley, 827 S.W.2d at 699 (citation omitted). Federal courts have held "[r]etaliation claims brought pursuant to [the FHA] are analyzed under the same standards that are applied to retaliation claims brought under Title VII and other employment discrimination statutes." Texas v. Crest Asset Management, Inc., 85 F. Supp. 2d 722, 733 (S.D. Tex. 2000). Under Kentucky case law, for a retaliation claim in employment discrimination, a plaintiff "must show that 1) she engaged in a protected activity, 2) she was disadvantaged by an act of her employer, and 3) there was a causal connection between the activity engaged in and the employer's act." Handley, 827 S.W.2d at 701.
Refusal to make reasonable accommodations to afford handicapped residents "equal opportunity to use and enjoy" a dwelling is unlawful discrimination under both Kentucky and federal law. KRS 344.360(11)(b); 42 U.S.C. § 3604(f)(3)(B). In employment discrimination cases, protected activities include an employee's "oppos[ition] to any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter." 42 U.S.C. § 12203(a) (1990). Furthermore, "[p]rotected activities [under the FHA] include the request for a reasonable accommodation for handicapped persons." Chavez v. Aber, 122 F. Supp. 3d 581, 600 (W.D. Tex. 2015) (citations omitted). Here, Riveria requested a reserved handicapped space in front of her building and, after Bradford Green denied her request, she complained to the Lexington Fair Housing Council, which intervened on her behalf. Riveria's actions qualify as protected activities for the purposes of establishing a claim for retaliation.
"Adverse actions" within the meaning of 42 U.S.C. § 3617 include intimidation, threats, or interference with any individual's exercise or enjoyment of a right, including a right to nondiscriminatory housing practices. In the context of employment discrimination, this Court has acknowledged that the definition of adverse action is "quite broad" and includes "any action which well might have dissuaded a reasonable worker from making or supporting a charge of discrimination[.]'" Walker v. Commonwealth, 503 S.W.3d 165, 177 (Ky. App. 2016) (citing Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 2415, 165 L. Ed. 2d 345 (2006)). Riveria and the HRC claim that Bradford Green took an adverse action against her by denying her request for a reserved handicapped parking spot adjacent to her apartment. They then claim that Bradford Green retaliated against Riveria by declining to renew her six-month lease. Bradford Green is not required by law to furnish Riveria or any other tenant a reserved parking spot, whether or not it is a handicapped spot. She can hardly make a showing that she has been disadvantaged by Bradford Green's declining to take an action not required by the law. Nor has she shown that Bradford Green retaliated against her by declining to renew her lease. The lease contract clearly stated when it was executed by both parties that the lease could be terminated by either party's giving thirty days' notice prior to the end of the term. Riveria and HRC suspect but have not shown that Bradford Green's termination of the lease is retaliatory. We have been directed to no statute or case requiring a finding that failure to renew a lease at the expiration of its stated term without more establishes a prima facie case of retaliation. The decision of the circuit court is supported by our holding in McBrearty v. Kentucky Community and Technical College System, 262 S.W.3d 205, 212-213 (Ky. App. 2008). While Riveria engaged in protected activities, there was no showing that there was a causal connection between those activities and the refusal to renew the lease. Therefore, retaliation cannot be proven as a matter of law.
Finally, HRC argues that dismissal of its complaint was improper because it had no opportunity to conduct discovery in this matter. Because no issue of material fact exists in this case, dismissal prior to discovery is proper.
For the foregoing reasons, we affirm the order of the Fayette Circuit Court dismissing the case herein.
ALL CONCUR. BRIEF FOR APPELLANT: Edward E. Dove
Lexington, Kentucky BRIEF FOR APPELLEE: Carroll M. Redford, III
Lexington, Kentucky