Back in January 2015, you will find this blog entry talking about the survivability of ADA claims and Fair Housing Act (FHA) claims. That case was appealed, and the Third Circuit issued a precedential (published), decision on March 31, 2017. So, here goes. As is usual, the blog is divided into categories and they are: facts (there was very little discussion of the facts in the original blog entry); court’s reasoning with respect to the survival cause of action; court’s reasoning with respect to failure to accommodate; court’s reasoning with respect to interference; and takeaways. Of course, the reader is free to read any or all of the sections.
Two residents of the condominium, Walters and Kromenhoek, suffered from disabilities and each had emotional support animal prescribed for them. Both of them obtained a dog thereby violating the no dogs rule of the condominium Association. That rule prohibited dogs and farm animals subject to a fine specified by the Board of Directors. The rule had no exceptions and the Association had no policy regarding assistance animals, including emotional support animals. The Board of Directors of the Association had the authority to enforce those rules and regulations. Both plaintiffs attempted to request accommodations for an emotional support animal by filing paperwork with the Association’s office manager, which included a doctor’s letter prescribing the emotional support animal and a dog certification. The certification stated that the dog was prescribed and deemed necessary to assist each of the individuals, and that property managers and landlords were required to make reasonable accommodations under the FHA. The Association took no action at that time.
Having dogs in the condominium got some of the residents very upset. One of the residents, a Talkington, wrote about it on his blog about the community. In October 2011, he wrote on the blog that Walters had a dog and claimed to have papers to allow her to have it. He also wrote that he had asked the office manager whether she had Walters paperwork in their files and whether monetary fines had been assessed but had not received an answer. In response to that blog post, another resident, a Felice, posted the first of many inflammatory comments on Talkington’s blog. He wrote that dog owners might be happier in another community rather than be ostracized at this condominium, which would be another fine and progressive fines after that. Walters responded saying that she was required to defend herself not as a violator of any laws but as a person with the disability. She also said that she was mortified that her personal business had been laid out over the Internet without her permission or forewarning. That drew a response from Felice saying that someone who needed an emotional support dog might go off his or her gourd without the dog at his or her side or have a violent reaction. Also, he thought that he might or might not need protection and that the law allowing her to have dogs was a bad law. He also said that Walters has a pet and should be fined. What followed was a flurry of emails among the Board and the plaintiffs.
The board did not grant an accommodation to either of the requesting individuals. Instead, the board voted to fine both individuals for violating the no dogs rule. The fine was $50 per day and put in abeyance pending legal advice. Even after that, both Felice and Talkington continued to lambaste both plaintiffs. In November 2011, Felice wrote that if you couldn’t remove the guilty, you could certainly ostracize them. In December 2011, Talkington wrote a blog post naming and labeling the plaintiffs as known violators and their emotional support animals as illegal neighborhood puppy dogs. Talkington also reported that a neighbor heard one dog barking and Talkington added sarcastically that trained service dogs are specifically trained to not bark unless the owner is in imminent danger. Further, maybe one of the pupps pooped in the owner’s unit and was warning the owner to watch out. Talkington continued saying that such certifications are issued without verifying either the animal’s credentials or the purported disability. He later said that the ridiculous puppy dog diplomas from the puppy mills are out of line and that diploma mills accept stress as a disability without any doctor confirmation. This was echoed by Felice in belligerent terms. Later that winter, Talkington wrote on his blog that the condominium association should go on the offensive and lawyer up to pursue an action against owners who are noncompliant with the policy on service dogs. Felice then described both of the plaintiffs as miscreants, ungracious, selfish, spoiled, brats willing to flaunt the illegal dogs in everyone’s face. Talkington piled on by saying that the two individuals were playground bullies attempting to hang onto their puppies and wrote that it was time for the Association to go on the offensive and file suit in a court of law to force the issue.
All this finally came to a close once a new president of the board came into place. In March 2012, both plaintiffs submitted to the new president of the board a formal request for accommodation and the board granted the request and waived the accrued fines. Even so, Walters and Kromenhoek filed suit.
Before moving further, a few points are worth noting. First, the original suit at the District Court level included ADA claims against the Board, which the District Court referenced in its decision. However, between that decision and the Circuit Court decision, plaintiffs conceded the ADA claims (the court doesn’t say why, but perhaps it is due to the fact that the FHA and the ADA do not deal with assistance animals in the same way; the FHA is far broader). Second, while the case was pending in the District Court, Walters committed suicide. So, as mentioned in the original blog entry, the District Court held that Walters claim did not survive and denied Kromenhoek’s claim on the merits. Third, the original president of the board, Harcourt, and Felice also died during the pendency of the litigation. Finally, the lawsuits had reasonable accommodation claims and interference claims under the FHA as their cause of action.
Court’s Reasoning Regarding Survival of Cause of Action
The appellate court reversed the District Court’s grant of summary judgment against Walters executrix. It also, on the merits of the summary judgment motions, reversed in part and vacated in part. In doing that, it reasoned as follows:
- The FHA is silent as to survival of claims.
- 42 U.S.C. §1988(a) provides that where certain federal laws are deficient, the federal courts may apply common-law as modified and changed by the constitutions and statutes of the State provided that the state law is consistent with the Constitution and laws of the United States.
- 42 U.S.C. §1988(a) on its face only applies to certain statutes bound within three titles of the revised statutes, namely titles 13, 24, and 70. The FHA was enacted almost a century after those statutes and was never codified in title 13, 24, or 70. Therefore, 42 U.S.C. §1988(a) by its plain meaning does not apply to the FHA.
- Legislative history of that provision shows that §1988(a) has always applied to designated statutes only and not to any statute that could be labeled a civil rights law.
- 1988(a) was intended to do nothing more than explain the source of law applicable in actions brought to enforce the substantive provisions of that act, which later became 42 U.S.C. §§1981-83.
- Since 1874, Congress had never amended, save for editorial changes, the phrase, “this title [the judiciary], and of title ‘civil rights,’ and of title’crimes.’” Therefore, §1988(a) only applies to those laws codified within those three titles of the revised statutes of 1874, which does not include the FHA.
- The Supreme Court has in general rejected linkage between the reconstruction era civil rights acts and other federal statutes by emphasizing the independence of the remedial scheme established by the reconstruction era acts.
- Since the FHA is a federal statute, whether a claim survives the death of a party is a question of federal law.
- Since Congress has not provided statutory guidance, resolution of the survival issue depends upon federal common law.
- One area where courts consistently apply a uniform rule federal common law is when it comes to survival of federal claims, including such laws as: Vaccine Act; ERISA; Forfeiture Claims; Freedom Of Information Act; False Claims Act; ADEA; Labor-Management Reporting and Disclosure Act Of 1959; and Truth In Lending Act.
- When it comes to FHA claims surviving the death of a party, a uniform federal common law rule is appropriate to fulfill the overall purposes of the statute as the federal interests at stake to provide fair housing throughout the United States warrants displacement of state law on the narrow issue of survival of claims.
- Since federal courts do not have the creative power vested in Congress, the court elected to follow the weight of authority saying that under federal common law rule, remedial claims survive but not penal ones.
- The FHA is certainly remedial and was intended by Congress to have broad remedial intent.
Court’s Reasoning with Respect to Failure to Accommodate
- Discrimination under the FHA includes, per 42 U.S.C. §3604(f)(2), a refusal to make reasonable accommodations and rules, policies, practices, or services, when those accommodations are necessary to afford an individual equal opportunity to use and enjoy a dwelling.
- To determine whether an accommodation is reasonable, the court looks to whether the requested accommodation was reasonable and necessary to afford a person with a disability (the FHA uses the term handicapped), an equal opportunity to use and enjoy housing.
- A reasonable accommodation under the FHA includes the use of an emotional support animal in a person’s own home despite the existence of a rule, policy or law prohibiting such an animal.
- A refusal to provide a reasonable accommodation under the FHA may be either actual or constructive.
- An undue delay in granting a reasonable accommodation may amount to a refusal.
- A refusal occurs when the resident with a disability is first denied a reasonable accommodation regardless of the remedies granted in subsequent proceedings. For a housing provider’s action to be deemed a refusal under the FHA, that provider must first have a prior opportunity to accommodate. That is, the provider has to have an idea of the accommodation sought by the plaintiff prior to the provider incurring liability for refusing it.
- Material issues of fact exist with respect to whether Cowpet’s action constituted a refusal. In particular, it isn’t clear from a series of emails whether the plaintiffs were asking the Board to not review their paperwork or whether they were just asking the board to respect the privacy of their medical information. If it was just a matter of respecting the privacy of information, then the Board would have had an opportunity to accommodate.
- Material issues of fact also exists with respect to whether the original Cowpet Board President, Harcourt, actually reviewed the paperwork on file in the Association’s office as the office manager and the Board treasurer had opposite memories of what happened.
Court’s Reasoning with Respect to Interference
- The FHA, 42 U.S.C. §3617, makes it unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercise or enjoyed any right granted or protected by the FHA.
- For an interference claim, a substantive violation of the FHA is not required, and a claim can arise before or after the plaintiff requires housing.
- To prove interference, plaintiff has to show: 1) the plaintiff exercise or enjoyed any right granted or protected under the FHA; 2) the defendant’s conduct constituted interference; and 3) a causal connection existed between the exercise or enjoyment of the right and the defendant’s conduct.
- Interference is not defined by either the FHA or its implementing regulations. Accordingly, the word must be understood by its ordinary meaning.
- The court relied on cases from the Ninth Circuit saying that interference for purposes of §3617, means the act of meddling in or hampering an activity or process. Also, that interference is broadly applied to reach all practices having the effect of interfering with the exercise of rights under federal fair housing laws.
- Interference under §3617 may (emphasis mine) consist of harassment if it is sufficiently severe or pervasive so as to create a hostile environment.
- Such a view is consistent with the Department of Housing and Urban Development, as after oral argument, the Department of Housing and Urban Development issued a regulation allowing hostile environment harassment claims because of handicap. In particular, that regulation provides that harassment can be written, verbal, or other conduct and does not require any physical contact. Further, a single incident of harassment because of handicap constitute a discriminatory housing practice if that incident is sufficiently severe to create a hostile environment.
- Harassment intruding upon the well-being, tranquility, and privacy of the home is considered particularly invasive.
- Material issues of disputed fact exist with respect to the interference claims. In particular, if the plaintiff barred the Association from reviewing the accommodation request, then no interference occurred. However, if there was not such a ban, then the Association did interfere with the rights by failing to review the request for reasonable accommodation of their disabilities.
- Genuine issues of material fact exist over the inferences that can be reasonably drawn from Felice’s blog posts. That is, a reasonable jury could find that Felice’s harassment was sufficiently severe or pervasive so as to interfere with the plaintiff’s fair housing rights. They could also find that there was a causal connection that the harassing conduct was the result of the plaintiff’s exercise of their FHA rights.
- Genuine issues of material fact also exists as to whether Talkington interfered with the plaintiff’s fair housing rights when he wrote on his blog all the things that he did. In particular, a reasonable jury could find that his conduct constituted harassment sufficiently severe or pervasive so as to interfere with the plaintiff’s fair housing rights. They also could reasonably find a causal connection between his conduct and the exercise of the plaintiffs fair housing rights.
- The ADA has a far narrower treatment of dogs than the federal housing act. The ADA is focused on recognition and response, as discussed in this blog entry, and not on emotional support. The FHA also allows other animals besides dogs.
- Certification of service dogs is a real problem due to the certification mills. The ADA and the FHA differ here with the FHA going further than the ADA when it allows the owner to take reasonable steps to verify the need for an emotional support animal.
- If a person exercises his rights and that results in social media blowback, that blowback may be interference under the FHA.
- Interference includes hostile environment, but that is not the only thing it includes. The dictionary definition of interference is far broader than just hostile environment.
- Training training training. Also, have a policy for dealing with the situation of when a resident request a service dog or an emotional support animal.
- If you are going to fine someone for having a dog, get legal advice first before doing so. I can only begin to imagine the total costs of legal fees incurred by the defendant here and that is before any fee shifting.
- One wonders if either plaintiff could have had a claim for intentional infliction of emotional distress.
- People with mental health conditions (such as generalized anxiety disorder, depression, etc.), face the real deal that goes beyond just stress. Often times, that can be managed with medication or without, but regardless, a different kettle of fish than stress.
- No reason why the discussion about whether FHA claims survive and the discussion about interference would not equally apply to the ADA since the law’s remedial purposes are similar and the interference statutory provisions are virtually identical.
- The ADA case law on interference is very scarce, and this case could be of great help, especially to plaintiff’s, when it comes to assessing whether interference claims exist.
- Interference causation is quite broad. The question is whether there was an exercise of rights followed by an adverse reaction to that exercise.