A Citizen, Pro Se

Service Animal Contracts as Direct Evidence of Prima Facie Discrimination

Around August 20 2007, I discovered a HUD ALJ decision that was right on target and supported my contention that requiring all tenants with service animals (and only those tenants) to sign two contracts in addition to the lease was obviously discriminatory. Because my Legal Service attorney was (once again) on a two-week vacation out-of-town, and because the ICRC investigator had convinced me that I must not contact him directly, I sent the memo below to my attorney and CC’d it to the investigator. To the best of my knowledge, this memo did not become part of the case file until December, when I included a copy in my appeals packet to the ICRC Commissioners.

TO: [Anne E’s attorney], Indiana Legal Services Inc.
FROM: ‘Anne E. Citizen’
DATE: August 22 2007

RE: ‘Anne E. Citizen’ vs Henderson Court Apartments
ICRC No: HOha07040187 — DATE FILED: 04/18/07
HUD Fair Housing Act Case No: 05-07-0776-8 — DATE FILED 04/17/07
HUD Section 504 Case No: 05-07-0106-4
HUD Inquiry No: 229400

SUBJECT: Service Animal Contracts as Direct Evidence of Prima Facie Discrimination

I have found a HUD ALJ decision (Sec v Country Manor, 2001) that supports my assertions that the Service Animals contracts required by Henderson Court/SheehanPM are inherently (or “facially”) discriminatory, and that the contracts themselves, as direct evidence of discriminatory acts, are sufficient evidence for a finding of discrimination.

Because this authoritative legal precedent is so important to my case, I am taking the liberty of CC’ing this email to Mr Johnson at ICRC while you are still out of town. When you return, please print this and fax it to Mr. Johnson to insure that it is included in my case file as an addendum to my second Amended Complaint (Aug 9 2007).

In our July 20 phone conversation, you told me that Mr Johnson at ICRC was having difficulty finding a ‘prima facie’ case of discrimination because, to his mind, my case did not meet the standard of proof for ‘disparate treatment’ or ‘disparate impact’. I responded by saying that the Service Animal contracts themselves (and their accompanying letters) are sufficient evidence of discrimination. I re-asserted this position in my July 24 phone call with Mr Johnson and in my second Amended Complaint. My basis for this assertion was simply that of a reasonable person who has read the applicable laws. I was pleased to find that a 2001 HUD ALJ decision provides ample legal precedent to support my position.

The decision in a 2001 HUD ALJ case (Sec v Country Manor) makes it clear that a housing provider’s explicit policy is considered “direct evidence”. When an explicit policy imposes terms and conditions only on one “class” of residents while exempting others, the policy is “facially discriminatory”. Direct evidence of a facially discriminatory policy makes ‘disparate impact’ and ‘disparate treatment’ determinations unnecessary.

The Service Animal contracts required by Henderson Court/SheehanPM are “facially discriminatory” under the definition established in Sec v Country Manor.

To summarize that case: Country Manor is a congregate living facility for the elderly. Some residents purchased motorized wheelchairs. County Manor instituted a policy requiring residents with motorized wheelchairs to purchase liability insurance. One resident (Mrs Grassi) refused to purchase insurance and filed a discrimination claim. The HUD ALJ found the policy discriminatory because it applied only to one “class” of residents, while other classes of residents were exempted.

Ms. Grassi is a member of the class of severely mobility impaired persons who, because of her impairment, must use a motorized wheelchair . . .. Respondents’ explicit policy of requiring operators of motorized wheelchairs to obtain liability insurance applies, on its face, to persons who are severely mobility impaired while exempting non-mobility impaired persons, e.g., those who can walk, and less severely mobility impaired persons, e.g., those who can use self-propelled wheelchairs. Accordingly, Complainants have established that Respondents’ policy directly discriminates against Ms. Grassi.

To re-state my position following the same logic used in Sec v Country Manor: I am a member of the class of disabled residents who require a service animal (please bear in mind that in addition to being ‘reasonable accommodations’, service animals are recognized as ‘auxlilary medical aids’, like wheelchairs.) The Service Animal contracts required by the Respondent apply to one “class” of disabled residents, while other classes are exempt. In my June 17 memo, I stated my position (using the term ‘sub-group’ instead of ‘class’) in a way that echoes the logic found in the Country Manor decision:

‘Residents with service animals’ are, by definition, disabled residents who require the particular reasonable accommodation of a service animal. A tenant (or potential tenant) whose disability requires the specific reasonable accommodation of a service animal is required, as a condition of residency, to sign two contracts in addition to the lease. These additional contracts are not required of able-bodied tenants, or of disabled tenants who do not require service animals. It seems to me inherently discriminatory that a sub-group of disabled tenants is required, as a condition of residency, to sign additional contracts solely because they require a specific reasonable accommodation.

It is important to note that, in the 2001 case, Country Manor’s explicit policy is recognized as “direct evidence” of discrimination because it imposes ‘terms and conditions’ on a class (sub-group) of disabled residents. The HUD ALJ cites substantial legal precedent to support this position:

Direct Evidence
Direct evidence of discrimination, if it constitutes a preponderance of the evidence as a whole, is sufficient to support a finding of discrimination
.3 See, e.g., Pinchback v. Armistead Homes Corp., 907 F.2d 1447, 1452 (4th Cir. 1990); HUD v. Jerrard, 2A Fair Housing-Fair Lending Rptr. (Aspen) ¶25,005, 25,087 (HUDALJ 1990). A policy that explicitly subjects a protected class to treatment differing from that of non-members of the protected class is facially discriminatory. Bangertner[*] v. Orem City Corp., 46 F.3d 1491, 1500-01 (10th Cir. 1995). To be “explicit,” the language of the policy need not specifically identify the mobility impaired tenants if it is clear from the language that they are targeted by the policy.4 United States v. M. Westland Co., 3 Fair Housing-Fair Lending Rptr. (Aspen) ¶15,941, 15,941.3. (C.D. Cal. 1994).
[*Anne E’s note: case above is spelled ‘Bangerter’ in other sources]

With this well-established body of legal precedent, I believe that I stand on firm legal ground when I say that the Service Animal contracts (and the letters accompanying them) are “direct evidence,” and are sufficient evidence to support a finding of discrimination. There can be no doubt that the Service Animal contracts explicitly subject a “class” of disabled residents to “treatment differing from that of non-members” of that class, and thus are “facially discriminatory”. There can also be no doubt that the imposition of Service Animal contracts on one “class” of disabled residents is an “explicit policy”. In his June 7 letter, the President of SheehanPM (and Management Agent for Henderson Court) states plainly that “. . .we require all residents with service animals to sign both a Service Animal Agreement and a Service Animal Permit . . ..”. These two contracts are imposed, as a matter of explicitly stated policy, only on the members of one “class” of disabled residents, while all other residents are exempt. “A policy that explicitly subjects a protected class to treatment differing from that of non-members of the protected class is facially discriminatory”

In the face of an explicit policy imposing ‘terms and conditions’ on one class of disabled residents, is it necessary to subject this case to other standards of proof for demonstrating ‘prima facie’ discrimination? According to the decision in Sec v Country Manor, direct evidence of a facially discriminatory policy makes ‘disparate impact’ and ‘disparate treatment’ determinations unnecessary:

Unlawful discrimination may also be proved by the McDonnell Douglas three part disparate treatment analysis or by an analysis under the “disparate impact” test. See e.g., Secretary of HUD v. Blackwell, 2 Fair Housing-Fair Lending (Aspen) ¶ 25,001, 25011 (HUD ALJ 1989), aff’d 908 F.2d 864 (11th Cir. 1990); Mountain Side Mobile Estates v. Secretary of HUD, 56 F.3d 1243, 1250 (10th Cir. 1995). The McDonnell Douglas scheme is a recognition that direct proof of unlawful discrimination is often difficult to obtain. It permits a plaintiff to make an initial showing, indirect in nature, that raises a presumption of discrimination. Because I have determined that discrimination exists in this case due to a facially discriminatory policy, I do not address whether or not discrmination [sic] has been proved by these other analytical schemes. See, e.g., Pinchback, 689 F.Supp. at 1452 (“Because she proved purposeful discrimination directly, . . . the McDonnell Douglas method of proof is irrelevant.”). See also Trans World Airlines v. Thurston, 469 U.S. 111 (1985) (“The McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination.”).

Thus the decision in Sec v Country Manor supports my assertions that Henderson Court/SheehanPM’s Service Animal contracts (and their accompanying letters) are “direct evidence” of discrimination, and that those documents are sufficient direct evidence to support a prima facie finding of discrimination.

It should be noted that Country Manor, like the Respondent in my case, attempted to justify its discriminatory policy by claiming that it was seeking to protect its property and other residents from potential damages, liability, and health/safety risks. These arguments were found to lack merit. Because these issues would be most properly raised as part of the Respondent’s defense (rather than during investigational fact-finding), I am including relevant excerpts from the HUD ALJ decision below, rather than incorporating them here. Since Mr Johnson has been most persistent in raising questions of damages and liability during the investigation, I’m sure the excerpts from the Country Manor case will offer substantial responses to his concerns.

Below you will find a link to the full text of Sec v County Manor (20-page pdf) from the HUD website’s FHEO/ALJ section. I have also included the excerpts (with page numbers) which form the basis of my reasoning in this memo. My notes below are in [ ] square brackets.

************
Sec. v Country Manor
HUDALJ 05-98-1649-8 Sept 20 2001

http://www.hud.gov/offices/oalj/cases/fha/pdf/countrymanor.dec.pdf

[pdf pg 2]
. . . the Charge alleges that Respondents discriminated against Ms. Grassi in the terms and conditions of rental by requiring her to purchase liability insurance as a condition of continuing to operate a motorized wheelchair at Country Manor, thereby violating Section 804(f) of the Act. . . ..

[pdf pg 9 — Country Manor’s policy is considered direct evidence of discrimination, because it imposes ‘terms and conditions’ on a class (sub-group) of disabled residents]
Direct Evidence
Direct evidence of discrimination, if it constitutes a preponderance of the evidence as a whole, is sufficient to support a finding of discrimination.
3 See, e.g., Pinchback v. Armistead Homes Corp., 907 F.2d 1447, 1452 (4th Cir. 1990); HUD v. Jerrard, 2A Fair Housing-Fair Lending Rptr. (Aspen) ¶25,005, 25,087 (HUDALJ 1990). A policy that explicitly subjects a protected class to treatment differing from that of non-members of the protected class is facially discriminatory. Bangertner[*] v. Orem City Corp., 46 F.3d 1491, 1500-01 (10th Cir. 1995). To be “explicit,” the language of the policy need not specifically identify the mobility impaired tenants if it is clear from the language that they are targeted by the policy.4 United States v. M. Westland Co., 3 Fair Housing-Fair Lending Rptr. (Aspen) ¶15,941, 15,941.3. (C.D. Cal. 1994).
[*Anne E.’s note: case above is spelled ‘Bangerter’ in other sources]

[footnotes 3&4 pg 9 — direct evidence of a facially discriminatory policy makes ‘disparate impact’ and ‘disparate treatment’ determinations unnecessary]
Unlawful discrimination may also be proved by the McDonnell Douglas three part disparate treatment analysis or by an analysis under the “disparate impact” test. See e.g., Secretary of HUD v. Blackwell, 2 Fair Housing-Fair Lending (Aspen) ¶ 25,001, 25011 (HUD ALJ 1989), aff’d 908 F.2d 864 (11th Cir. 1990); Mountain Side Mobile Estates v. Secretary of HUD, 56 F.3d 1243, 1250 (10th Cir. 1995). The McDonnell Douglas scheme is a recognition that direct proof of unlawful discrimination is often difficult to obtain. It permits a plaintiff to make an initial showing, indirect in nature, that raises a presumption of discrimination. Because I have determined that discrimination exists in this case due to a facially discriminatory policy, I do not address whether or not discrmination has been proved by these other analytical schemes. See, e.g., Pinchback, 689 F.Supp. at 1452 (“Because she proved purposeful discrimination directly, . . . the McDonnell Douglas method of proof is irrelevant.”). See also Trans World Airlines v. Thurston, 469 U.S. 111 (1985) (“The McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination.”). 4The discriminatory intent need not be “hostile.” The discriminatory intent can also result from a paternalistic, “we know best,” attitude resulting from stereotyping of the handicapped and/or elderly. See U.S. v. Scott, 788 F. Supp. 1555, 1562 (D. Kan. 1992).

[pg 10 — explicit policy = ‘terms and conditions’ imposed on a class (sub-group) of disabled residents, while not imposed on others, directly discriminates against that class]
Ms. Grassi is a member of the class of severely mobility impaired persons who, because of her impairment, must use a motorized wheelchair for the purpose of walking, a major life activity. Respondents’ explicit policy of requiring operators of motorized wheelchairs to obtain liability insurance applies, on its face, to persons who are severely mobility impaired while exempting non-mobility impaired persons, e.g., those who can walk, and less severely mobility impaired persons, e.g., those who can use self-propelled wheelchairs.5 Accordingly, Complainants have established that Respondents’ policy directly discriminates against Ms. Grassi.

[pg 11]
Respondents’ Attempted Justification
Because Respondents’ policy discriminates against persons with disabilities, Respondents must articulate a legitimate justification for their policy to overcome the case against them. Bangertner, 46 F.3d at 1501; U.S. v. Badgett, 976 F.2d 1179 (9th Cir. 1992). In making that showing, Respondents must establish that there is a compelling business necessity for the policy and that they have used the “least restrictive means” to achieve that end. Fair Housing Counsel v. Ayres, 3 Fair Housing-Fair Lending (Aspen) ¶ 15,931 (C.D. Cal. 1994).

Respondents attempt to justify their policy of requiring Ms. Grassi to obtain liability insurance for her motorized wheelchair on the theory that they have an obligation to protect residents’ health and safety. They argue that the policy promotes the health and safety of the residents . . .. . . . These justifications lack merit.

[footnote 6, pg 11]
Respondents also initially contended that they were attempting to limit their own liability in the event of an accident. Tr. pp. 161-62. However, their own insurance agent Mr. Mahowald, testified that Respondents could not be held liable in the case where a resident was injured by another resident in a motorized wheelchair incident barring their own negligence. Tr. p. 298. Accordingly, I conclude that the circumstances under which Respondents could be held liable due to an accident involving motorized wheelchairs are too remote to provide a legitimate business justification.

[pg 12]
Second, Respondents have not established an empirical basis to conclude that operators of motorized wheelchairs pose a substantial risk of harm to themselves or others. Respondents implemented the policy without obtaining data suggesting that the operators of motorized wheelchairs posed the type of risk that required a special solution. . . . Respondents obtained no statistical analyses that might have established the probability of accidents resulting from motorized wheelchair use, for example. They did not consult experts or the managers of similar facilities to learn if these appliances really pose a safety problem.

[pg 12]
Third, the implementation of the policy without supporting data reflects an underlying assumption that motorized wheelchair operators, as a class, pose a unique risk to the safety and health of other tenants. This amounts to improper stereotyping, a practice that has been rejected in several fair housing cases. See, e.g., HUD v. Cloclasure, 2A Fair Housing-Fair Lending (Aspen) ¶ 25,134, 26,109 (HUD ALJ 1998) (it [pg 13] cannot be inferred from past damage caused by children that the children of future tenants will also cause damage).Improper stereotyping of persons with disabilities is reflected by Congress’ intention to prohibit actions based upon overprotective assumptions. As the House Judiciary Committee noted, the [Fair Housing] Act “repudiates the use of stereotypes and ignorance, and mandates that persons with handicaps be considered as individuals. Generalized perceptions about disabilities and unfounded speculations about threats to safety are specifically rejected as grounds to justify exclusion.” H.R. Rep. No. 711, 100th Cong., 2d Sess. 18 (1988). Legitimate safety and health considerations are a proper concern for a housing provider. However, any remedies must take into account the needs and abilities of individual tenants:

Restrictions based on public safety cannot be based on blanket stereotypes about the handicapped, but must be tailored to particularized concerns about individual residents. . . . Any special requirements placed on housing for the handicapped based on concerns for the protection for the disabled themselves or the community must be individualiz[ed]. . . and must have a necessary correlation to the actual abilities of the persons upon whom it is imposed.

Bangertner, supra at 1503-04 (internal citations omitted).

[footnote pg 14]
10These postulated alternatives [to the electric wheelchairs – EM] also violate the underlying premise of the Act, which is to enable disabled persons to function with autonomy and dignity as much as possible. “The Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self sufficiency for such individuals.” Americans with Disabilities Act (ADA), 42 U.S.C. § 1210(a)(8). . . .. . . . because the policy discriminates against a class of persons with disabilities, it cannot be validated by the presence or absence of alternatives or accommodations.

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