A Citizen, Pro Se

Being ‘Regarded’ as having MCS is sufficient proof

[Anne E. here. While re-formatting this document for posting online, I noticed something that had escaped me before. The HUD/DOJ Joint Statement on Reasonable Accommodations Under the Fair Housing Act contains an significant error in its Question 3, “Who qualifies as a person with a disability under the Act?” Question 3 substitutes an ‘and’ where there should be an ‘or’ — which makes a significant difference in legal terms. The correct reading of the Fair Housing Act’s civil rights definition of ‘disability’ (or ‘handicap’) is as follows:

Subsection 802(h) of the Act defines handicap as follows:

(h) Handicap means, with respect to a person —

(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 {except for addictions to controlled substances}

I cut/pasted Question 3 directly from the version of HUD/DOJ 2004 found at http://www.usdoj.gov/crt/housing/jointstatement_ra.htm. In this online version, I’ve corrected HUD/DOJ’s erroneous substitution of ‘and’ for ‘or’ below with strikethrough text.]

STATE OF INDIANA ) IN THE MONROE CIRCUIT COURT
)SS:
COUNTY OF MONROE ) CAUSE NO. 53C00811SC5172

[‘Anne E. Citizen’],
Plaintiff,

vs

SY HENDERSON COURT INVESTORS LP,
Defendant

RESPONSE TO DEFENDANT’S SUBPOENA OF PLAINTIFF’S MEDICAL RECORDS

On Tuesday, November 11, around 3:30pm, Plaintiff (Tenant) received by hand delivery a summons from Defendant’s (Yarco) attorney subpoenaing all relevant medical records. Medical documentation identifying the Tenant as having Multiple Chemical Sensitivity (MCS) has been in Henderson Court’s file on the Tenant since 2003 (see attached copy). This documentation alone is sufficient to identify the Tenant both as disabled (handicapped) under the Fair Housing Acts civil rights definition of disability, and under the standards set forth in HUDs 1992 Directive GME-0009 for verifying MCS as a handicap warranting Reasonable Accommodation under the Fair Housing Act.

In addition to the records already in Yarco’s hands, Yarco’s history of acting on the Tenant’s MCS-related requests for Reasonable Accommodations establishes the Tenant as an individual who has been “regarded [by Yarco and others] as having such an impairment [MCS] ” and who has been “treated by a person [Yarco and others] as having [MCS as] an impairment. Even though Yarco’s actions have been indadequate to meet the Tenant’s disability-related needs, Yarco’s actions establish the Tenant as a person who meets the terms of the FHA’s civil rights definition of disabled.

The Tenant meets the standards of the civil rights definition of ‘disabled’ (handicapped) established by 24 CFR 100.201(FHA) and related laws. No medical documentation is required to prove a tenant’s disability under the civil rights definition, which recognizes person[s] who are regarded as having, or who have a record of having a disability as being disabled for civil rights purposes. Note also that the Tenant [is] on record as disabled under Indiana’s stringent Medicaid standards for several years; a fact which is also on record in Henderson Court’s files on theTenant.

The FHA’s definition of ‘disabled’ for civil rights purposes has been summarized in the HUD/DOJ Joint Statement ‘Reasonable Accommodations Under the Fair Housing Act’ (2004, excerpts attached):

3. Who qualifies as a person with a disability under the Act?
The Act defines a person with a disability to include (1) individuals with a physical or mental impairment that substantially limits one or more major life activities; (2) individuals who are regarded as having such an impairment; and [OR – see note above] (3) individuals with a record of such an impairment. […]

HUD Directive ‘Multiple Chemical Sensitivity Disorder and Envionmental Illness as Handicaps’ (GME-0009, 1992, excerpts attached) established MCS as a handicap suitable for Reasonable Accommodation on the basis of symptoms in response to chemical exposure, and does not require medical documentation of a physiologic basis for recognizing MCS as a handicap. Can the MCS-handicapped person’s personal statements about symptoms be used as a sufficient basis for granting a Reasonable Accommodation? Yes, according to the HUD/DOJ Joint Statement on Reasonable Accommodation (2004):

information verifying that the person meets the Act’s definition of disability can usually be provided by the individual himself or herself (e.g., proof that an individual under 65 years of age receives Supplemental Security Income or Social Security Disability Insurance benefits or a credible statement by the individual). A doctor or other medical professional, a peer support group, a non-medical service agency, or a reliable third party who is in a position to know about the individual’s disability may also provide verification of a disability. In most cases, an individual’s medical records or detailed information about the nature of a person’s disability is not necessary for this inquiry.

Tenant’s status as a Medicaid recipient establishes her as ‘disabled’ under item (1) above, but does not necessarily establish Multiple Chemical Sensitivity (MCS) as a disabling condition. However, Tenant can demonstrate (1) that both the previous and the current Landlords have ‘regarded [her] has having’ MCS as a disabling condition, and (2) that Tenant has ‘a record of such an impairment’ (MCS).

Previous Landlord’s actions re: MCS-related Reasonable Accommodations — In the Tenant’s eight years as a tenant, the Landlord granted some MCS-related Reasonable Accommodations and refused other similar requests. The Landlord has acted upon the following MCS-related requests for Reasonable Accommodations:

**2000 (at Tenant’s move-in) — In the summer of 2000, Henderson Court’s Manager contacted the Tenant (who had applied for residence) to tell her that an apartment was available and would be ready for move-in as soon as the apartment was cleaned and painted. Tenant, who had informed Manager of Tenant’s MCS during the application process, asked the Manager not to paint or clean the apartment because the fumes from the paint and cleaning materials would make the Tenant very sick and would make the apartment unusable and unsafe for her. Manager complied with the request and did not clean or paint the apartment prior to Tenant’s move-in. This action constitutes a Reasonable Accommodation to the Tenant’s MCS.

**2004-2005 Replacing Air Conditioning Unit — In December 2004, the Tenant’s furnace failed and the Tenant was forced to call in the City of Bloomington’s Office of Housing and Urban Development (HAND) to oversee the replacement of the combined furnace/air conditioning unit (HVAC). The installation of the furnace involved no dangerous chemicals and proceeded without incident. However, a full installation of the HVAC unit would involve connecting PVC pipes for the air conditioning portion of the HVAC unit. Connecting the PVC pipes would require the use of a PVC cement (adhesive). The toxicological information on the OSHA-required Material Safetly Data Sheet for the PVC cement stated that the product can cause Central Nervous System (CNS) depression leading to narcosis and unconsciousness, as well as damage to the kidneys. liver and lungs when the product is inhaled or absorbed through the skin. At the Tenant’s request, the HAND representative negotiated a MCS-related Reasonable Accommodation with the Landlord, which included (1) that the Landlord’s maintenance crew would pre-glue all PVC parts in the maintenance shop and allow the cement to cure completely before introducing the PVC parts into the Tenant’s apartment, and (2) that connecting the air conditioner would be deferred until the following spring, so the Tenant could open windows and allow better ventilation. In 2005, when connecting the air conditioning unit, the Landlord’s maintenance crew devised an additional Reasonable Accommodation when they used mechanical means (rubber hose connected with a clamp) to connect the air conditioner’s condensation outflow to the drain. These Reasonable Accommodations were successful and allowed the connection of the Air Conditioning unit without exposing the Tenant to toxic fumes from the PVC cement. (see attached pictures)

**Ongoing – pest control — Landlord has a monthly pest-control service that comes into all apartments once a month. Tenant asked that her apartment be excluded from the application of pesticides due to MCS. Manager instructed Tenant to put a sign on her door instructing the pest-control service not to enter her apartment. Tenant complied, and for several years has had a prominent sign on her door stating that she has Multiple Chemical Sensitivity and instructing the pest-control service not to enter. The Landlord has allowed the Tenant to be excluded from the pest-control service, which constitutes a Reasonable Accommodation to the Tenant’s MCS.

**Other MCS-related Reasonable Accommodation requests ignored — Although Landlord has known of Tenant’s MCS since 2000 (before tenant began her residency), Landlord has ignored repeated requests to the effect that (1) no chemical products be introduce[d] into her apartment or the shared stairwell and (2) that Tenant be notified in advance when painting or other maintenance involving chemicals is to be conducted in the stairwell or the other three apartments that share the unventilated stairwell. Landlord has exposed Tenant to solvents and other toxic chemicals (1) in December 2001, when Landlord had solvent-containing caulk applied under Tenant’s kitchen and bathroom sinks without the Tenant’s knowledge or consent, resulting in months of illness (involving kidneys, liver, and brain) for the Tenant; (2) In December 2004-January2005, when Landlord painted the stairwell (two coats, about a week apart) and re-tiled the stairwell, introducing solvents including Naptha, a toxin identified by the National Institutes of Health as toxic to the liver and the Central Nervous System (CNS); (3) On various occasions, Landlord has painted other apartments in the stairwell without notifying Tenant. On all the occasions under this heading, Tenant has suffered severe and lasting symptoms consistent with solvent exposure.

2008 — Yarco Respresentatives’ Actions Acknowledge Tenant’s MCS as handicap requiring Reasonable Accommodations

June 24: After filing a HUD civil right complaint with HUD’s Chicago hub (Region V), Tenant received an email from HUD/Chicago representative Farrah Tunk stating that Yarco owner Clifton (Cliff) Cohn “has assured me that he and his staff recognize your needs and will do everything in their power to assist you”. and asking Tenant to discuss with her “how best Mgmt. can ensure that the updates/renovations to the common areas/exterior of your building do not adversely affect you.” In her 6/24 email, HUD representative Tunk (working closely with her superiors Meade and McGough) created a record in which she represents Yarco owner Clifton Cohn as already recognizing the Tenant’s MCS as a handicapping condition requiring Reasonable Accommodation. Since Owner/Landlord already regards [Tenant] as handicapped by MCS, no further proof of handicapped status is required to support this request for Reasonable Accommodation.

June 28: Henderson Court’s Maintenance Supervisor (with a co-worker) replaced Tenant’s kitchen faucet. Supervisor introduced a container of Plumber’s Putty into Tenant’s apartment, intending to use the putty to seal the faucet. Tenant explained her MCS and expressed concern that solvents in the putty could harm her. Supervisor accommodated Tenant’s need for a Reasonable Accommodation by deciding to not use the putty.

October 9: Yarco Representative Stuart Hall informed Tenant that renovations in her building would begin “in 2 or 3 weeks” and provided Tenant with a draft copy of ‘Building #1 Renovation Protocol’, which outlined several measures Yarco was planning to use to minimize Tenant’s exposure to dust and particulate matter during renovations. This document is an attempt at finding a working Reasonable Accommodation to Tenant’s MCS, but it is inadequate because it does not address airborne solvent fumes. At Hall’s request, Tenant met with him and Henderson Court Manager Stephanie Royer from around 12:20 to 1:20pm. During this meeting, Hall repeatedly acknowledged Tenant’s MCS and asked Tenant to suggest ideas for accommodations that would protect her from solvent exposure, while maintaining Yarco’s position that it “can’t accept a compromise of the construction schedule.” Pressed by Hunt for suggestions, Tenant brought up the possibility that Yarco could move her (permanently) to an apartment which had been renovated early in the process. Before 3pm, Tenant provided Hunt with citations from HUD Handbook 4350.3 supporting her suggestion, and with copies of (1) her medical documentation, already in Yarco’s files, (2) HUD’s 1992 Directive on MCS and Reasonable Accommodaton, and (3) the HUD/DOJ 2004 Joint Statement on Reasonable Accommodatons under the Fair Housing Act. Late in the afternoon, Hunt raised the question of verfying her MCS, and the Tenant wrote an email to Hunt that evening in which she (1) clarified her revised request for a Reasonable Accommodation, based on their conversation, and (2) demonstrated, based on authoritative sources, that her MCS was already suffciently verfied for civil rights purposes.

October 16 or 17: Yarco’s general contractor for the renovations (Mel Jamison) showed Tenant another apartment at Henderson Court, saying that it had been renovated in July, and telling her that although he was not authorized to negotiate regarding the Tenant’s October 9 request for relocation as a Reasonable Accommodation, he could pass his suggestions to his superiors (Yarco’s Cliff Cohn and Stuart Hunt), and that they would be open to his suggestions. Tenant later learned that renovations in the suggested apartment were still ongoing and would expose her to the construction chemicals that she must avoid.

October 21: Four Yarco representatives (Royer, Krestchmer, T. Hunt, and Jamison) hand-delivered a contract (Relocation Agreement, based on the 10/16 conversation with Jamison) to the Tenant, with the expectation that she would sign it immediately. Upon reviewing the contract, the Tenant recoginzed [sic] several problems with its terms (insuffcient time to relocate, insuffcient protection from chemical exposure, etc.) The Tenant emailed Yarco’s Stuart Hunt (Oct 22) with some initial concerns abuot [sic] the contract and stated that she was glad to have a document on which to base further discussions so that an agreement on her requested Reasonable Accommodation could be found. On October 23, in a phone call, Hunt stted [sic: stated] categorically that the Relocation Agreement was non-negotiable, even though it failed to meet the Tenant’s disability-related needs, and that the Tenant could either take it or leave it. (See discussion in HUD/DOJ 2004 on the need for discussion (‘the interactive process’) in reaching a Reasonable Accommodation that meets the disabled tenant’s needs.)

October 30: At around noon, Yarco employee Royer hand-delivered a letter from Yarco owner Cliff Cohn, in which Cohn gave the Tenant an ultimatum: either sign the inadequate Relocation Agreement before 5pm October 31, or Yarco would begin renovations without offering her any protection other than the inadequate Protocol.

November 5 – ongoing: Renovations began in Henderson Courts Building #1 on November 5. As predicted, solvent fumes are seeping into the Tenant’s apartment, causing the predicted headaches, nausea, and loss of cognitive function that are symptoms of multiple-organ damage caused by solvents (see National Institute on Drug Abuse information, submitted with filing.) In keeping with the Protocol, Yarco employee Taylor Hunt has been assigned to tape the Tenant into her apartment, sealing the door with plastic while work is being done in the apartment across the hall.

The Tenant’s status as an MCS-handicapped person is well-established and was already known to the Landlord by the time of her January and June 2008 requests for MCS-related Reasonable Accommodations. According to Item 17 of the HUD/DOJ Joint Statement (2004), no further information about the Tenant’s disability is necessary, since the Tenant’s MCS is already known to the Landlord.

The Tenant’s MCS was known to and acted upon by the Landlord prior to her tenancy and for some requests during her tenancy. The Landlord has had medical documentation from a reliable source regarding the Tenant’s MCS in its files since 2003. The Tenant’s medical records in the Landlord’s file establish the Tenant as an individual “with a record of such an [MCS] impairment,” thus meeting the terms of the FHA’s civil rights definition of ‘disabled’.

Yarco’s history of acting on the Tenant’s MCS-related requests for Reasonable Accommodations establishes the Tenant as an individual who has been “regarded as having such an impairment” and who has been “treated by a person [Yarco and others] as having [MCS as] an impairment[‘]. Yarco’s actions establish the Tenant as a person who meets the second term of the FHA’s civil rights definition of disabled.

Thus Yarco’s own past and current actions, along with the documentation already in the Landlord’s possession, have established the Tenant as a person recognized by Yarco (and others) as being disabled by, and warranting Reasonable Accommodations for, Multiple Chemical Sensivity. Yarco’s request for the Tenants medical records is a distraction from the issues before the Court in this request for an Emergency Possessory Order.

Submitted in good faith under penalties for perjury by:

_______________________________ ________________
[‘Anne E. Citizen’] Date

 

 

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