Edwards et al v. Gene Salter Properties and Salter Construction Inc et al

Filing 56

OPINION AND ORDER denying 46 Plaintiffs' motion for summary judgment; granting 50 Defendants' motion for summary judgment; and dismissing this action with prejudice. Signed by Judge Susan Webber Wright on 12/6/2017. (cmn)(Docket text modified on 12/6/2017 to correct the description of the document filed) (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
ROBYN G. EDWARDS and MIKKI
ADAMS
PLAINTIFFS
V.

GENE SALTER PROPERTIES and
BRITTANY PRINGLE
DEFENDANTS

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CASE NO. 4:15CV00571 SWW

OPINION AND ORDER
Plaintiffs Robyn G. Edwards (“Edwards”) and Mikki Adams (“Adams”),
proceeding pro se and in forma pauperis, bring this action under the Fair Housing Act
(“FHA”) against Gene Salter Properties, Inc. (“Salter Properties”), Salter Construction,
Inc. (“Salter Construction”) and Brittany Pringle (“Pringle”), claiming that Defendants
discriminated against them by denying their applications to rent an apartment. Before the
Court are cross-motions for summary judgment: Plaintiffs’ motion for summary
judgment [ECF No. 46] and Defendants’ response in opposition [ECF Nos. 47, 48, 49]
and Defendants’ motion for summary judgment [ECF Nos. 50, 51, 52].1 After careful
consideration, and for reasons that follow, Plaintiffs’ motion is denied, and Defendants’
motion is granted.

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The time for filing a response to Defendants’ motion has expired, and Plaintiffs have not responded.

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I.
Summary judgment is appropriate when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). As a prerequisite to summary judgment, a moving party
must demonstrate “an absence of evidence to support the non-moving party’s case.”
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has properly
supported its motion for summary judgment, the non-moving party must “do more than
simply show there is some metaphysical doubt as to the material facts.” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)
The non-moving party may not rest on mere allegations or denials of his pleading
but must come forward with ‘specific facts showing a genuine issue for trial. Id. at 587.
“[A] genuine issue of material fact exists if: (1) there is a dispute of fact; (2) the disputed
fact is material to the outcome of the case; and (3) the dispute is genuine, that is, a
reasonable jury could return a verdict for either party.” RSBI Aerospace, Inc. v. Affiliated
FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995).
II.
The following facts are undisputed.2 Salter Properties manages Brentwood
Apartments (“Brentwood”) in Conway, Arkansas, and Pringle worked for the company as

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Local Rule 56.1 provides that any party moving for summary judgment “shall annex to the notice of motion a
separate, short and concise statement of material facts as to which it contends there is no genuine dispute to be
tried.” Local Rule 56.1(a). Likewise, a nonmoving party that opposes the motion, “shall file, in addition to any
response and brief, a separate short and concise statement of the material facts as to which it contends a genuine
dispute exists to be tried.” Local Rule 56.1(b). “All material facts set forth in the statement filed by the moving
party . . . shall be deemed admitted unless controverted by the statement filed by the non-moving party . . . . ” Local
Rule 56.1(c).

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a property manager. Salter Properties’ rental policy requires that rental applicants
demonstrate the ability to pay rent. If an applicant receives income, he or she must list
the amount and source of income and submit one of three forms of documentation: tax
returns, check stubs, or a letter offering employment. If an applicant is unable to provide
such documentation, he or she has the option of obtaining a co-signer or paying a six or
twelve month lease term in advance.
As property manager, Pringle collected rental applications and supporting
documents, and she had no discretion to deviate from her employer’s income verification
policy without permission from an upper-level manager. When Pringle received an
application, her task was to enter the information to a software program that would
process the data and approve or deny the application. Pringle would then communicate
the decision to the applicant.
Adams and Edwards are mother and daughter. In July 2015, Edwards completed
an online rental application for a Brentwood apartment that she and Adams planned to
share. At the time, neither Edwards nor Adams had a job, but Edwards received social
security disability and rental income, and Adams received social security retirement
income. After Pringle received Plaintiffs’ application, she instructed Edwards to send a
copy of her most recent income tax returns to verify her income. Edwards replied that
neither she nor her mother had any “IRS/Tax information to report.” Edwards wrote:
“To verify our income, however, I sent our Social Security Administration

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documentation . . . in addition to a copy of the lease agreement between myself and the
tenant who . . . pays $1,000 a month.”3 Pringle responded as follows:
I apologize[;] we aren’t able to qualify you based on income information you
have provided. There are three types of income verification that we are able
to accept: pay stubs, a letter of intent/offer letter, or tax returns. You have
the option to have a qualified guarantor (co-signer) or pay the full lease term
up front. [I]f you are not interested in either option, we wouldn’t be able to
approve the application. Please, let me know if you have any questions.4
Edwards then telephoned Pringle and offered to provide bank statements as proof
of income, but Pringle repeated Salter Properties’ income verification policy. In
deposition, Edwards recalled her reaction: “I just said, okay, fine. There’s nothing else I
can do. And I called to get my $60 back from Pay Lease.”5
On September 14, 2015, Edwards and Adams commenced this FHA
discrimination action pro se, charging that Defendants rejected their rental applications
because Edwards is an individual with a disability. The Court granted Defendants’
motion to dismiss, finding that whether Plaintiffs proceed under a disparate treatment,
disparate impact, or failure to accommodate theory, they failed to state a plausible
discrimination claim. On appeal, the Eighth Circuit agreed that Plaintiffs failed to allege
disparate treatment or disparate impact, but it concluded that Plaintiffs sufficiently
alleged that defendants violated the FHA by failing to make a reasonable accommodation
necessary to afford them the equal opportunity to rent an apartment.

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ECF No. 3, at 6.
ECF No. 3, at 5.
ECF No. 50-4, at 21.

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III.
Plaintiffs’ Motion for Summary Judgment
The FHA makes it unlawful to “discriminate in the sale or rental, or to otherwise
make unavailable or deny, a dwelling to any ... renter because of a handicap.” 42 U.S.C. §
3604(f)(1). Discriminatory conduct prohibited under the FHA includes the “refusal to
make reasonable accommodations in rules, policies, practices, or services, when such
accommodations may be necessary to afford [a handicapped] person equal opportunity to
use and enjoy a dwelling[.]”
42 U.S.C. § 3604(f)(3)(B).
To merit summary adjudication in their favor, Plaintiffs must show that there is no
factual dispute as to any element of their claims, and they bear the initial burden to
inform the Court of the basis for their motion. To succeed with an FHA failure to
accommodate claim, a plaintiff must show among other things that she or her associate is
handicapped within the meaning of the FHA and that the requested accommodation was
reasonable and necessary. See King's Ranch of Jonesboro, Inc. v. City of Jonesboro, No.
3:10CV00096 JLH, 2011 WL 1544697 (E.D. Ark. April 25, 2011)(citing Wisconsin
Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 748 (7th Cir. 2006)(citing 42
U.S.C. § 3604(f)(3)(B)). Here, Plaintiffs offer no more than the complaint allegations to
support their motion, and they argue that it is “obvious” that “some of Defendants’
housing rules and regulations, such as which resulted in this lawsuit, are clearly

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discriminatory and out of compliance with the Fair Housing Act.” 6 Plaintiffs have failed
to make the showing required for summary judgment in their favor.
Defendants’ Motion for Summary Judgment
Defendants seek summary judgment on several grounds. First, they note that
Adams has conceded that she is not handicapped within the meaning of the FHA.
However, the FHA affords a private cause of action to any “aggrieved person,” see 42
U.S.C. § 3613(a)(1)(A), and an “aggrieved person” includes a person such as Adams,
who claims to have been injured by a discriminatory housing practice.
Second, Defendants assert that Plaintiffs are unable to show that the requested
accommodation--that is, granting an exception to Salter Properties’ income-verification
policy--was necessary. 7 The FHA imposes a duty to make “reasonable accommodations
in rules, policies, practices, or services, when such accommodations may be necessary to
afford [a handicapped] person equal opportunity to use and enjoy a dwelling[.]”
42 U.S.C. § 3604(f)(3)(B)(emphasis added). Not every rule or policy that causes
inconvenience or expense to a handicapped person gives rise to a duty to accommodate.
“Instead, the statute requires only accommodations necessary to ameliorate the effect of
the plaintiff’s disability so that she may compete equally with the non-disabled in the

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ECF No. 46, at 3.
Consistent with the plain language of the FHA, Plaintiffs must show that the requested accommodation was both
reasonable and necessary. See King's Ranch of Jonesboro, Inc. v. City of Jonesboro, No. 3:10CV00096 JLH, 2011
WL 1544697, at *4–5 (E.D. Ark. Apr. 25, 2011)(citing Developmental Servs. of NE v. City of Lincoln, 504
F.Supp.2d 714, 723 (D. Neb.2007)(quoting Peebles v. Potter, 354 F.3d 761, 768 (8th Cir.2004)). Defendants do not
contend that Plaintiffs are unable to show that the requested accommodation was reasonable, and in remanding this
case, the Eighth Circuit explained, “Plaintiffs may be able to show that the requested accommodation was
reasonable, even if the inability to comply with defendants’ policy for documenting income was not caused by
Edwards’s handicap.” Edwards v. Gene Salter Properties, No. 16-2179, 671 F. App'x 407, 408 (8th Cir.
2016)(citing US Airways, Inc.v. Barnett, 535 U.S. 391, 398 (2002)).
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housing market.” Wisconsin Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 749
(7th Cir. 2006). Put another way, an accommodation is necessary only if there is a causal
connection between the handicap and the requested accommodation. See Peebles v.
Potter, 354 F.3d 761, 768 (8th Cir. 2004)(citing U.S. Airways, Inc. v. Barnett, 535 U.S.
391, 401–02, 122 S. Ct. 1516, 1523 (2002); see also King’s Ranch, 2011 WL 1544697, at
*4-6.
A person has a “handicap” under the FHA if she has a physical or mental
impairment that substantially limits one or more of her major life activities. See 42
U.S.C. 3602(h). In this case, it is difficult to assess whether the requested
accommodation would ameliorate the effect of Edward’s handicap because Plaintiffs
offer no information about Edwards’s specific impairment and its effect a major life
activity. Edwards’s receipt of social security disability benefits is relevant to whether she
is substantially limited in the major life activity of working, but it is not conclusive. See
Jobst v. Camelot Village Ass'n, Inc., 94 Fed. Appx. 356, 357 (7th Cir. 2004).
Even assuming that Edwards has a physical or mental impairment that
substantially limits the major life activity of working, Plaintiffs do not argue and present
no evidence to show that the requested modification of Salter-Properties’ incomeverification policy would have mitigated the effects of Edwards’s handicap and achieved
the goal of providing her equal opportunity in the housing market. Defendants note that
Edwards’s testimony indicates that she refused to consider the option of obtaining a

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cosigner, which would have negated the need for an accommodation.8 In deposition,
when asked about the co-signer option, Edwards testified:
Why—why [we have gone] to several other places and applied and [were]
never . . . required to have a co-signer. . . . Why should we have to jump
through hoops[?] When can’t they look and see, you know, okay, you know,
these—this is your—these are your previous landlords. And we’ll call them.
We’ll see.
To be honest with you, I don’t know anybody, I mean, not personally that I
would want to consider or call to ask them, him or her to be a co-signer for
me. I don’t know anybody really who could ever qualify for that.
My son makes really good money. He works for . . . a governmental
contractor. He makes good money. But, unfortunately, his credit is not such
that he can co-sign for me. And he’s probably one of the only people that I
would even consider asking. Asking people to co-sign is - - that’s a lot of
responsibility. And I wouldn’t do it.
So when I saw that, I said, okay, fine. I don’t know anybody—that’s not an
option for me. As well as paying all the rent up front for a year. That’s not
an option. So that’s why I just said, okay, you know, Robyn, move on. Get
your 60 bucks back. Find another place to live.9
Plaintiffs offer no arguments or evidence indicating that Edwards’s handicap
prevented her from complying with Salter Properties’ income-verification policy.
Accordingly, the Court finds no issues for trial as to whether a modification of the policy
was necessary to afford Edwards an equal opportunity to use and enjoy a Brentwood
apartment, and Defendants are entitled to summary judgment.

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In a related argument, Defendants argue that “Edwards’s request for an exception to providing tax returns was not
related to her purported handicap; instead it was due to her failure to file tax returns.” ECF No. 51, at 16. However.
Edwards’s rental income was only a portion of the income she reported on her rental application, and Defendants do
not claim that a tax return reporting the rental income would have satisfied Salter Properties’ income verification
policy.
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ECF No. 50-4, at 24-25.

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Third, Defendants maintain that Plaintiffs failed to engage in a good-faith,
interactive process to determine whether a reasonable accommodation was necessary or
possible. Under the Americans with Disabilities Act (“ADA”), an employer’s obligation
to provide a reasonable accommodation is determined through an “‘informal, interactive
process between the employer and the employee, identifying the limitations arising from
the disability and potential reasonable accommodations that could overcome those
limitations.’” Ballard v. Rubin, 284 F.3d 957, 960 (8th Cir. 2002)(quoting Fjellestad v.
Pizza Hut of Am., Inc., 188 F.3d 944, 951 (8th Cir.1999) (quoting 29 C.F.R. § 1630.2(o)
(3)). An employer’s failure to engage in the interactive process, which is triggered by an
employee’s affirmative request for accommodation, is evidence of bad faith. However,
an employer is not responsible for failing to provide a reasonable accommodation where
the employee impedes the interactive process by failing to cooperate. See Kratzer v.
Rockwell Collins, Inc., 398 F.3d 1040, 1045 (8th Cir. 2005)(finding employer not
responsible for failing to provide reasonable accommodation where employee refused to
provide updated information about her restrictions after she agreed to do so).
Here, Defendants argue that they are entitled to judgment as a matter of law
because Plaintiffs “did not even begin to participate in a good-faith interactive process
with Salter Properties . . . .”10 The Court disagrees. Assuming that the FHA requires the
parties to engage in the interactive process, an open question in this Circuit, the record is

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ECF No. 51, at 18.

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void of evidence that Plaintiffs impeded Defendants’ ability to engage in an interactive
process.
Fourth, Pringle asserts that she is entitled to judgment as a matter of law because
she had only a ministerial role in carrying out Salter Properties’ income-verification
policy and she had no discretion to grant exceptions. The Court agrees. In light of the
undisputed facts regarding Pringle’s involvement in the application process, there are no
issues for trial regarding Pringle’s liability.
Fifth, Salter Construction asserts that it is entitled to judgment as a matter of law
because it had no personal involvement in any issues before the Court. Salter
Construction correctly notes that the complaint is void of allegations concerning conduct
on its part, and the company has submitted evidence showing that it is an entity separate
from Salter Properties and has no involvement in property management.11 The Court
finds no genuine issues regarding any possible liability on the part of Salter Construction.
Sixth, in addition to seeking summary judgment on the merits, Pringle seeks
dismissal for insufficient process and insufficient service of process.1 A pro se plaintiff
proceeding in forma pauperis bears the responsibility to provide a proper address for
service of the summons and complaint. See Lee v. Armontrout, 991 F.2d 487, 489 (8th
Cir. 1993). Accordingly, by order entered October 5, 2015, the Court informed Plaintiffs
that they shouldered the responsibility to provide an address for service for each

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ECF No. 50-1 (Brent Salter Dec.).
Motions for dismissal under Federal Rule of Civil Procedure 12(b)(5) concern the proper procedure for serving the
summons and complaint and challenge the mode or lack of delivery of the summons and complaint, and motions for
dismissal under Rule 12(b)(4) challenge the content of the summons.
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defendant. Subsequently, Plaintiffs filed a motion for service and provided Brentwood
Apartments as Pringle’s mailing address, and the Court directed the United States
Marshal to serve Pringle at the address provided.
By affidavit, Pringle reports that copies of the summons and complaint were
mailed to the Brentwood Apartments after her employment with Salter Properties ended
and that the attempted service did not satisfy Rule 4 of the Federal Rules of Civil
Procedure. The undisputed record shows that Pringle was never served a copy of the
complaint and summons as required under Rule 4.12 However, given Plaintiffs’ pro se
status,13 if the Court had denied Defendants’ motion for summary judgment, it would
have afforded Plaintiffs an opportunity to show good cause for the failure to timely serve
Pringle, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. Accordingly, the
Court declines to dismiss the claims against Pringle on the basis of insufficient service of
process.
IV.
For the reasons stated, Plaintiffs’ motion for summary judgment [ECF No. 46] is
DENIED, and Defendants’ motion for summary judgment [ECF No. 50] is GRANTED.

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Federal Rule of Civil Procedure 4(e) provides that service of process on an individual must be made by
following state law for service of process or by delivering the summons and complaint to the individual or her agent
for service personally or by leaving the papers at the individual’s dwelling with someone of suitable age. Arkansas
allows for service of process “by any form of mail addressed to the person to be served with a return receipt
requested and delivery restricted to the addressee of the agent of the addressee.” Ark. R. Civ. P. 4(d)(8)(A)(i).
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Because Plaintiffs proceed in this case pro se and in form pauperis, the Court directed the United States Marshal
to serve Pringle a copy of the complaint and summons at the address provided by Plaintiffs. , but it was Plaintiffs’
obligation to provide the proper address for service, and they failed to do so.

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Pursuant to the judgment entered together with this order, this action is DISMISSED
WITH PREJUDICE.
IT IS SO ORDERED THIS 6TH DAY OF DECEMBER, 2017.

/s/ Susan Webber Wright
UNITED STATES DISTRICT JUDGE

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