McFadden et al v. Meeker Housing Authority et al

Filing 443

ORDER: 1. Plaintiffs' Motion for Partial Summary Judgment 354 is GRANTED as to liability on Plaintiffs' Claims 1 and 4 against MHA, but otherwise DENIED; 2. Defendants Melinda Parker, Michelle Buckler, Edy George, and Stacie Kincher are entitled to qualified immunity and are therefore TERMINATED as parties--counsel shall update their captions to so reflect; 3. If any party believes this outcome obviates the need to decide any issue in any of the pending motions t o strike or exclude ( 421 , 435 , 436 , 437 , 440 , 441 ), that party shall file a notice stating as much no later than March 1, 2019; 4. Defendants' Motion for Leave to Submit Surreply to Motion for Partial Summary Judgment 382 is DENIED AS MOOT; and 5. This matter REMAINS SET for a Final Trial Preparation Conference on April 10, 2019, at 1:30 PM, and a 5-day jury trial commencing on May 6, 2019, at 8:30 AM, both in Courtroom A801. SO ORDERED by Judge William J. Martinez on 02/15/2019. (wjmlc1)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 16-cv-2304-WJM-GPG
MEGAN MCFADDEN,
LONNIE WHITE, and
ANTONIO “A.J.” WHITE,
Plaintiffs,
v.
MEEKER HOUSING AUTHORITY, a Property Management Company,
MELINDA PARKER,
MICHELLE BUCKLER,
EDY GEORGE, and,
STACIE KINCHER,
Defendants.

ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiff Megan McFadden (“McFadden”) previously resided in the federally
subsidized Karen Court apartment complex in Meeker, Colorado. Plaintiffs Lonnie and
A.J. White (“the Whites”) also previously resided in Karen Court. All Plaintiffs claim that
Defendants discriminated against them in violation of § 504 the Rehabilitation Act of
1973 (“Rehabilitation Act” or “§ 504”), 29 U.S.C. § 794, and the Fair Housing Act
(“FHA”), 42 U.S.C. §§ 3601 et seq., based on Defendants’ policy concerning therapy
pets. McFadden also brings a claim under Colorado state law for wrongful withholding
of her security deposit.
The Defendants are the Meeker Housing Authority (“MHA”), three members of
MHA’s board of directors (Parker, Buckler, and George), and MHA’s executive

director/property manager (Kincher). The Court will refer all defendants collectively as
“Defendants,” and to Parker, Buckler, George, and Kincher collectively as the “Individual
Defendants.”
Before the Court is Plaintiffs’ Motion for Partial Summary Judgment. (ECF
No. 354.) For the reasons explained below, the Court grants summary judgment in
Plaintiffs’ favor as to liability against MHA on Plaintiffs’ Claims 1 and 4. The Court
otherwise denies summary judgment, and grants qualified immunity to the Individual
Defendants.
Also before the Court is Defendants’ Motion for Leave to Submit Surreply to
Motion for Partial Summary Judgment. (ECF No. 382.) Nothing below turns on matters
addressed by the proposed surreply, and so the motion is denied as moot.
I. LEGAL STANDARD
Summary judgment is warranted under Federal Rule of Civil Procedure 56 “if 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); see also Andersen v.
Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986). A fact is “material” if, under the
relevant substantive law, it is essential to proper disposition of the claim. Wright v.
Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001). An issue is “genuine” if
the evidence is such that it might lead a reasonable trier of fact to return a verdict for the
nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
In analyzing a motion for summary judgment, a court must view the evidence and
all reasonable inferences therefrom in the light most favorable to the nonmoving party.
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita

2

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In addition, the
Court must resolve factual ambiguities against the moving party, thus favoring the right
to a trial. See Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
II. THRESHOLD EVIDENTIARY RULINGS
A.

Medical Records
Plaintiffs’ Exhibit 7 (spanning ECF Nos. 354-7 to 354-20) comprises 222 pages of

McFadden’s medical records. Plaintiffs’ Exhibit 13 (spanning ECF Nos. 354-26 to
354-43) comprises 394 pages of A.J. White’s medical records. Sometimes Plaintiffs cite
to specific pages within these exhibits, but on five occasions Plaintiffs cite to one or the
other with a “see generally” signal. (ECF No. 354 at 3–4, 6, ¶¶ 11, 12, 25, 26, 28.)
These “see generally” citations are in support of broad summary claims about
McFadden’s or A.J. White’s medical diagnoses.
Defendants respond that citing generally to exhibits that span hundreds of pages
violates the undersigned’s Revised Practice Standard II.E.2, requiring “precise citations,
including page number or paragraph number” when the cited document “is over one
page in length.” Defendants therefore generally object that Plaintiffs have failed to carry
their burden to support the factual assertions in question. (ECF No. 363 at 3.)
Plaintiffs reply that “it is the volume and completeness of the document that
supports Plaintiffs’ long-standing record of a disability.” (ECF No. 372 at 2.) Plaintiffs
further note that they “highlighted every relevant section in the files, amounting to 352
pages of highlighted records out of approximately 600 pages. Listing 352 separate
page numbers would arguably not aid the Court or Defendants any more so than the
highlights.” (Id.)
Defendants are correct that Plaintiffs’ approach violates the undersigned’s
3

Revised Practice Standards—both II.E.2 and III.E.3. Moreover, Plaintiffs’ assertions do
not appear to be of the kind that could not be supported by citations to particularly
relevant pages, if only as “see, e.g.” citations. On the other hand, with insubstantial
exceptions, Defendants do not dispute the facts for which these “see generally” records
stand, but only their legal significance. (See ECF No. 363 at 4–5, ¶¶ 11, 12, 25, 26, 28.)
The Court does not condone Plaintiffs’ approach of throwing the burden on
Defendants and the Court to search for the highlighted material supporting Plaintiffs’
claims. Under the circumstances, however, the Court finds that the prejudice to
Plaintiffs in striking the offending allegations and thus resolving summary judgment on a
fragmentary record outweighs the inconvenience Plaintiffs wrongly caused to
Defendants and the Court. Accordingly, and soley in the interest of justice, the Court
will overlook Plaintiffs’ violation of the undersigned’s Revised Practice Standards.
B.

Findings by HUD and CHFA
The events precipitating this lawsuit led to investigations by the U.S. Department

of Housing and Urban Development (“HUD”) and the Colorado Housing and Finance
Authority (“CHFA”). Plaintiffs use these entities’ investigatory findings and MHA’s
subsequent remedial measures as evidence against Defendants. (See, e.g., ECF
No. 354 at 12, ¶ 72; id. at 14, ¶ 82; id. at 15–16, ¶¶ 91–94; id. at 19–20, ¶¶ 112, 118,
119, 121.)
As to the investigatory findings, Defendants argue that they are hearsay, cannot
be presented in an admissible form at trial, and are otherwise unduly prejudicial. (ECF
No. 363 at 10, ¶ 72.) See also Fed. R. Civ. P. 56(c)(2) (“A party may object that the
material cited to support or dispute a fact cannot be presented in a form that would be
admissible in evidence.”). Plaintiffs’ reply brief ignores this objection, and the Court
4

otherwise finds it well-founded. Plaintiffs have not provided any basis for admitting the
investigatory findings, and so the Court sustains Defendants’ objection and will not
consider the investigatory findings as part of the summary judgment record.
As to remedial measures, Defendants object under Federal Rule of Evidence
407, which excludes evidence of subsequent remedial measures to prove “culpable
conduct.” (ECF No. 363 at 13, ¶¶ 91–92.) Plaintiffs reply that subsequent remedial
measures “can be introduced for other purposes, including impeachment.” (ECF
No. 372 at 7, ¶ 92.) But Plaintiffs do not demonstrate any impeachment purpose
relevant to summary judgment, and do not otherwise respond to the argument
Defendants make here. Accordingly, the Court again sustains Defendants’ objection,
and will not consider subsequent remedial measures as part of the summary judgment
record.
III. FACTS
A.

Karen Court
MHA is a housing authority organized under the Colorado Housing Authorities

Law, Colo. Rev. Stat. § 29-4-201. (ECF No. 354 at 2, ¶ 2.) MHA operates an
apartment complex commonly known as “Karen Court.” (Id. ¶ 1.) HUD financially
subsidizes MHA. (Id. ¶ 3.) MHA offers Karen Court apartments to qualifying lowincome persons at below market rent, and HUD pays MHA the difference between what
the tenant pays and what the market commands. (Id. ¶ 4.)
Kincher became MHA’s Executive Director in May 2016. (Id. ¶ 5.) As relevant to
this lawsuit, the MHA board of directors comprised Parker, Buckler, and George. (Id.
¶ 6.) The board members are volunteers. (ECF No. 363 at 17, ¶ 1.)

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B.

A.J. & Lonnie White
A.J. White (“A.J.”) began receiving mental health treatment in 2006, at age 10,

due to suicidal ideations. (ECF No. 354 at 6, ¶¶ 26–27.) Healthcare professionals have
since diagnosed him with, among other things, cyclothymic disorder, dysthymic
disorder, major depressive disorder, anxiety, and ADHD. (Id. ¶ 25.) He has been
prescribed many medications to manage these conditions. (Id. ¶ 28.)
A.J. moved to Meeker “in or around early 2014.” (Id. at 8, ¶ 42.) He and his
father, Lonnie White (“Lonnie”), moved into Karen Court in approximately February
2014, and received an FHA housing subsidy. (Id. at 3, ¶¶ 9–10; ECF No. 355-3 at 1.) 1
A.J. began attending high school in Meeker and had an individualized education plan
(“IEP”) up through his graduation in June 2016. (ECF No. 354 at 8, ¶ 44.) The IEP
diagnosed him with a “serious emotional disability.” (Id.) But he attended school
regularly, was able to learn and concentrate, and maintained a 3.0 GPA through
graduation. (ECF No. 363 at 19, ¶¶ 17–19.) He also worked part-time while in high
school at a gas station and responsibly carried out his duties. (Id. at 19–20, ¶¶ 20–21.)
Much of this lawsuit centers around A.J.’s cats and their effect on him. A.J. first
got a cat in March 2014, the month after he moved into Karen Court. (ECF No. 354
at 7, ¶ 34.) He got a second cat at some point not specified in the record. He claims
that his cats help to manage his depression and anxiety by giving him purpose and
otherwise making him feel happy. (Id. at 7–8, ¶¶ 34–40.) A.J. still continues to report
depression and problems with concentration. (Id. at 8, ¶ 41.) But he has worked at the

1

Although this lawsuit focuses on disability discrimination, Lonnie does not claim any
disability. Rather, he sues as a person associated with another who has a disability (A.J.), and
who has been affected by the alleged disability discrimination. See 42 U.S.C. § 3604(f)(2).

6

gas station full time since graduating from high school, and has been a competent
employee, earning at least two raises. (ECF No. 363 at 20, ¶ 22.) He regularly
interacts with customers and other employees as part of his job. (Id. ¶ 23.) He has
never missed work because of depression, anxiety, or ADHD. (Id. ¶ 24.) He has only
missed work for a two-week Hyatt Hotel Denver internship in 2016, which he completed
successfully despite being apart from his cats. (Id.) A.J. handles his own personal
hygiene, laundry, grocery shopping, cooking, transportation, and finances. (Id. ¶ 25.)
C.

McFadden
McFadden moved into Karen Court in approximately December 2015 and also

received an FHA housing subsidy. (Id. at 3, ¶ 9; ECF No. 363 at 17, ¶ 4.) Before and
since moving into Karen Court, McFadden’s healthcare professionals diagnosed her
with, among other things, chronic dysthymic disorder, major depressive disorder, posttraumatic stress disorder, and anxiety. (ECF No. 354 at 3, ¶ 11.) She suffers four to
five panic attacks per month. (Id. at 5, ¶ 21.) She has been prescribed various antidepressant and anti-anxiety drugs. (Id. at 4, ¶ 12.)
McFadden has a dog, Chewy, who can sense her anxiety and will then actively
distract her. (Id. at 5, ¶ 22.) Chewy also provides McFadden something external to
focus on when mired in negative thoughts and emotions. (Id. ¶ 24.)
McFadden attributes her stress and depression to familial and financial problems.
(ECF No. 363 at 18, ¶¶ 11–12.) Her depression only “occasionally” affects her such
that she does not attend to personal hygiene. (Id. ¶ 9.) She usually takes care of her
own personal hygiene, laundry, and cooking. (Id. ¶ 7.) She cares for her children and
babysits others’ children. (Id. ¶¶ 7–8.) She sometimes has trouble falling asleep, but
then sleeps soundly 6–8 hours per night and uses no medication to assist her sleep.
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(Id. ¶ 10.)
D.

Disputes Over MHA’s Pet Policies
1.

Changes to the Pet Policy

Before June 15, 2016, Karen Court permitted tenants to keep therapy animals.
(ECF No. 354 at 9, ¶ 48.) On June 15, however, the MHA board discussed whether to
change the policy. (ECF No. 354-51 at 2.) 2 The board was motivated, at least in part,
by observations from the previous month of a dog chained behind one of the apartment
buildings, and of tenants failing to clean up animal excrement on the complex grounds.
(ECF No. 363 at 20–21, ¶¶ 26–31.) Defendants also claim that the board was
motivated by an incident in which one of McFadden’s daughters was bitten by another
tenant’s therapy dog. (Id. ¶¶ 27, 31.) But Defendants represent that the dog bite
occurred “about June 16” (id. ¶ 27) and Plaintiffs claim that it happened on June 16
(ECF No. 372 at 4, ¶ 49)—a day after the board meeting. Regardless, the board voted
at the June 15 meeting to tighten the therapeutic animal policy, including a requirement
that the animal “be documented by a MD - MHA will not accept letters from
psychologists, psychotherapists, or therapist[s], etcetera[.]” (ECF No. 354-51 at 2
(underscoring in original).)
Defendants claim that the board drafted several pet policies for review by an
outside attorney, and generally relied on advice of counsel in this endeavor, including
advice that MHA could charge a pet deposit. (ECF No. 363 at 21, ¶¶ 32–34.) Plaintiffs
generally dispute this, claiming that discovery in this lawsuit yielded no documents
showing that the board’s counsel received any draft pet policies or provided any advice.
2

Unless otherwise specified, all dates in the remainder of this Part III.D refer to the year

2016.

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(ECF No. 372 at 9, ¶ 32; id. at 25.)
It is undisputed, however, that Kincher drafted a new pet policy on June 16 to
reflect the board-approved change. (ECF No. 354 at 9, ¶ 50.) The policy required all
animals to be “registered” with MHA, and also required a deposit. (Id.) Plaintiffs assert
that, before drafting this policy, Kincher reviewed online sources and talked to other
housing authorities in Colorado, all of which informed her that a pet deposit was
impermissible for assistance animals. (ECF No. 372 at 10, ¶ 33.) Plaintiffs further
assert that, around the same time, someone from MHA called a local medical center
and asked doctors to be cautious in writing companion animal recommendation letters.
(ECF No. 354 at 9, ¶ 51.) Defendants counter that the available evidence shows, at
most, that someone from a different MHA-managed apartment complex called a
particular doctor in the summer of 2015, not 2016. (ECF No. 363 at 7, ¶ 51.)
2.

First Violation Notices

On July 11, Kincher distributed the new pet policy to all tenants. (ECF No. 354
at 9, ¶ 52.) The next day, she posted violation notices on McFadden’s and the Whites’
doors. (Id. ¶ 53.) In McFadden’s case, Kincher deemed her in violation not only for
Chewy, but also for a pet ferret. (ECF No. 372 at 10, ¶ 36.)
The MHA board held a monthly meeting on July 20, which Lonnie White
attended. (ECF No. 354 at 12, ¶ 73.) He expressed “concern” about the new pet policy
and the $300 nonrefundable deposit. (ECF No. 354-51 at 3.) The board “listened to his
concern and said they would discuss and make [a] decision.” (Id.) They then moved on
to other business items, but “[d]iscussion moved back to the pet policy” towards the end
of the meeting, apparently after Lonnie White had left. (Id. at 4.) A motion carried to
formally approve the $300 nonrefundable deposit for therapeutic pets. (Id.) The next
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day, Kincher informed the Whites of the board’s decision. (ECF No. 354 at 13, ¶ 74.)
3.

Additional Violation Notices

On July 22, Kincher again posted violation notices on McFadden’s and the
Whites’ doors. (ECF No. 354 at 10, ¶ 55; id. at 13, ¶ 75.) The next day, McFadden
e-mailed Kincher what appears to be a scanned image of a filled-out form letter
announcing that she has “a disability as defined by the fair housing laws” and that she
uses her dog as “an emotional service animal to assist [her] with the functional
limitations related to [her] disability,” and requesting “an accommodation for [her]
disability,” namely, waiver of the no-pet policy and the deposit. (ECF No. 354-57 at 3.)
The document also announces that “a [verifying] letter from [her] doctor or other medical
professional” is attached (id.), although it is not clear if such a letter was actually
attached.
On July 25, McFadden secretly recorded a conversation between herself and
Kincher. (See ECF No. 354-59 (transcript); ECF No. 363 at 7, ¶ 57.) In that
conversation, McFadden announced that she was “officially submitting my request for a
reasonable accommodation,” including a supporting letter from someone not identified
in the transcript. (ECF No. 354-59 at 4.) Plaintiffs claim that the letter was from
Catherine Eliasen, a licensed social worker. (ECF No. 354 at 10, ¶ 59.)
On July 26, the MHA board held a special meeting “to discuss the reasonable
accommodation request regarding Megan McFadden.” (ECF No. 354-51 at 5.) “It was
decided to waive the no-pet policy for her companion animal,” assuming she could “[g]et
a letter from a psychiatrist” and pay the $300 security deposit within thirty days. (Id.)
Nothing in the record indicated whether anyone informed McFadden of the board’s
decision.
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4.

More Policy Changes and Further Notices

On July 27, Kincher served McFadden with a 30-day notice to vacate. (ECF
No. 354 at 11, ¶ 63.) Defendants claim this was prompted by pets McFadden kept
other than Chewy, including the ferret. (ECF No. 363 at 9, ¶ 63.) Also on July 27, MHA
issued a revised companion animal policy requiring “[a] letter from a licensed
psychiatrist qualified to attest to the need for the companion animal,” and allowing only
one therapy animal per authorized resident. (ECF No. 354-62 at 2.) Plaintiffs assert
that the board was aware when it made this decision that A.J. claimed more than one
therapy animal. (ECF No. 354 at 13, ¶ 76.) The next day, Kincher posted a third
violation notice on the Whites’ door. (Id. ¶ 77.)
On August 5, McFadden sent Kincher an e-mail asking that she rescind the
notice to vacate and approve her accommodation request. (ECF No. 354-57 at 5.)
That same day, Kincher posted a fourth violation notice on the Whites’ door. (ECF
No. 354 at 13, ¶ 78.)
On August 12, Kincher sent a letter stating that MHA was denying McFadden’s
accommodation request because “Meeker Housing Authority never received any
information regarding [Chewy’s status as] a companion animal until two [violation]
notices were given. Regarding your third and final infraction, you were written up for a
ferret that is clearly not in the lease agreement.” (Id. at 12, ¶ 67; ECF No. 354-57 at 6.)
On August 16, Kincher served the Whites with a thirty-day notice to vacate.
(ECF No. 354 at 13, ¶ 79.) The reasons given in that notice are: “Pet policy violation
and you no longer qualify due to the age of your son and he has graduated school—
[a]lso you have not reported your income to the Housing Authority.” (ECF No. 354-58
at 6.) At her deposition in this case, Kincher testified that “the eviction process was for”
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the “pet violation,” and not anything else at that time—specifically, not A.J.’s age. (ECF
No. 354-2 at 24.)
On August 17, the Whites provided MHA with “another letter from A.J. White’s
therapist Catherine Eliasen,” i.e., the same therapist that was apparently working with
McFadden. (ECF No. 354 at 14, ¶ 81.) The letter stated that A.J. “is dealing with a
chronic mental illness” which creates “increased difficulty coping with stress, and
calming himself when agitated.” (ECF No. 354-65 at 1.) “It is helpful when dealing with
the symptoms,” the letter continued, “for him to have his cats in his home. The
companionship and comfort that emotional support animals provide is soundly
supported in research, and thus I am recommending that [he] continue to have his
emotional support animals.” (Id.)
On August 18, McFadden responded to Kincher’s August 12 letter about the
ferret and Chewy, explaining that the ferret was temporary (and now gone, apparently)
and that she needed Chewy, as documented by paperwork she had already submitted.
(ECF No. 354-57 at 7.) On August 22, Kincher wrote to McFadden that the MHA board
had reviewed her response but it “stands by [its] decision of eviction, and the violations
still apply.” (Id. at 8.) On August 24 and 25, McFadden and Kincher exchanged e-mails
about the date by which McFadden must vacate, and Kincher announced that the MHA
board would permit her to stay until September 1, 2016 “if [she was] to find a new home
for [her] dog in the process.” (Id. at 9.)
On August 27, Lonnie sent Kincher an e-mail reattaching copies of A.J.’s medical
provider statements in support of his disability, and asking for reconsideration of the
eviction. (ECF No. 354 at 14, ¶ 82.) On August 29, Kincher wrote back, asserting that

12

“there is nothing in your file that stated that your son was disabled. You gave me a
letter from your therapist but we would need a letter from a medical doctor to consider a
diagnosis (per HUD).” (ECF No. 354-58 at 8.) Kincher also provided more explanation
about one of the other asserted violations in the notice to vacate—income verification—
and concluded, “your lack of information does not dismiss the eviction process. Please
understand this has nothing to do with your pets.” (Id.) It is unclear whether Kincher’s
last sentence meant to convey that the eviction had nothing to do with the pet violations,
or only that failure to provide income verification was a basis for eviction independent of
the pet violations. This is all the more confusing given her deposition testimony, noted
above, that the only basis for the eviction was A.J.’s cats.
On September 7, the Whites e-mailed MHA another accommodation request,
concluding with “[w]e need our home and my son needs his animals!” (Id. at 9.)
Kincher responded later that same day that MHA was simply enforcing “the rules that
you signed when you moved into Karen Court. Please be moved out on or before the
15th.” (Id.)
5.

McFadden Moves Out

The next day, September 8, McFadden moved out of Karen Court. (ECF No.
354 at 12, ¶ 72.) MHA did not file eviction proceedings (ECF No. 372 at 11, ¶ 41), but it
recorded the move-out on its paperwork as both a “tenant initiated” move and “an
eviction for other than non-payment of rent” (ECF No. 355-6 (capitalization normalized)).
Defendants say that, sometime before McFadden’s move-out, MHA “ultimately
approved [her] request to keep her dog without paying a deposit.” (ECF No. 363 at 22,
¶ 37.) In support, they cite Kincher’s deposition in this case, where she states that an
approval decision came sometime “after August 26.” (ECF No. 363-4 at 10.) But the
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cited excerpts say nothing about waiving the deposit, and in fact the transcript continues
with a discussion about the $300 deposit as if it was not waived:
Q.
When you granted the request for Ms. McFadden to
keep her companion animal, did you notify Ms. McFadden
that she would have to pay a $300 nonrefundable pet
deposit?
A.

There was [sic] some stipulations on that.

(Id.) The word “stipulations” echoes the board meeting minutes from July 26, where the
decision to grant McFadden’s accommodation request was made “[w]ith the stipulations
of [McFadden] bringing in the correct paperwork [i.e., a letter from a psychiatrist].” (ECF
No. 354-51 at 5.) This suggests that Kincher misremembered the MHA board’s July 26
decision as something that happened on or after August 26.
McFadden claims she is still owed a $50 deposit paid on move-in. The parties
dispute whether she ever paid a move-in deposit. Plaintiffs point to McFadden’s Karen
Court file, which contains a HUD form titled “Owner’s Certification of Compliance with
HUD's Tenant Eligibility and Rent Procedures.” (ECF No. 354-74.) The document
includes what appears to be disclosure of rent and other charges, and a “50” appears
on the line for “Security Deposit.” (Id.) But the form contains no signatures, despite
signature blocks for “Head of Household” and “Owner/Agent.” (Id.) The form also
appears to be some sort of documentation for a transfer from one apartment to another
in June 2016, well after McFadden moved into Karen Court. (Id.) Defendants, for their
part, deny that McFadden paid any deposit, whether $50 or otherwise. (ECF No. 363
at 14, ¶¶ 99–100.)
6.

The Whites Obtain Preliminary Relief from this Court

As for the Whites, they filed this lawsuit on September 13 (ECF No. 1) and

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received from this Court a temporary restraining order against eviction on September 15
(ECF No. 15). For reasons not relevant to recount here, the TRO was eventually
converted into an All Writs Act injunction. (See ECF No. 57.)
E.

The Whites’ Eventual Departure
The Whites moved from Karen Court in October 2017 because they found an

apartment with lower rent. (ECF No. 363 at 23, ¶ 47.) They claim they were forced to
seek lower rent because MHA was making unsubstantiated income recertification
demands and inflating the Whites’ rent based on supposed failures to meet those
demands. (ECF No. 354 at 19–20, ¶¶ 115–20.)
IV. ANALYSIS
A.

Qualified Immunity
Plaintiffs assert their FHA and § 504 claims against all Defendants, meaning they

seek to hold the Individual Defendants (the MHA board members and Kincher)
personally liable, not just MHA itself. 3 Plaintiffs also allege that the Individual
Defendants are “‘persons’ under 42 U.S.C. § 1983 . . . acting under color of state law.”
(ECF No. 237 ¶¶ 280, 282, 336, 338.) In other words, they allege that the Individual
Defendants acted as government officials in depriving Plaintiffs of a right secured by the
Constitution or a federal statute. See 42 U.S.C. § 1983.
Defendants deny that they are government officials. (See ECF No. 253 ¶¶ 282,
338.) But assuming they are government officials, they argue for qualified immunity
(see ECF No. 363 at 35–38), which “shield[s] [them] from liability for civil damages

3

As to their § 504 claims, Plaintiffs do not move for summary judgment on the Individual
Defendants’ liability (see ECF No. 354 at 1 n.1, 22 n.10), but neither do Plaintiffs abandon those
claims as to the Individual Defendants.

15

insofar as their conduct d[id] not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982).
Plaintiffs respond that this argument contradicts the Individual Defendants’ denial
throughout this lawsuit that they are government officials. (ECF No. 372 at 26.) But
Plaintiffs have not abandoned or disavowed their explicit allegations that the Individual
Defendants acted under color of state law when they took the actions at issue in this
lawsuit. 4 The Individual Defendants are thus entitled to presume that Plaintiffs plan to
go to trial with the intent on proving the government-official allegations. 5 And in that
light, the Individual Defendants may properly argue for qualified immunity.
“Qualified immunity shields federal and state officials from money damages
unless a plaintiff pleads facts showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was clearly established at the time of the
challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (internal quotation
marks omitted). “The judges of the district courts . . . [may] exercise their sound
discretion in deciding which of the two prongs of the qualified immunity analysis should
be addressed first in light of the circumstances in the particular case at hand.” Pearson
v. Callahan, 555 U.S. 223, 236 (2009). “A right is clearly established in this circuit when
4

Plaintiffs’ response to Defendants’ proposed surreply confirms that they are not
abandoning their government-official allegations. (ECF No. 390 ¶ 3.) Plaintiffs further argue
that “[a] party asserting that a fact is genuinely disputed must support the assertion with
evidence, not allegations.” (Id.) But the only dispute in this context is whether the Individual
Defendants are government officials. Defendants are not asking the Court to find that a dispute
exists. Rather, they are presenting one of the most common forms of argument in the law:
“Assuming the facts are as the other side represents, we still win because . . . .”
5

The Final Pretrial Order, developed and entered several months after the close of
summary judgment briefing, continues to assert the relevant claims. (ECF No. 406 at 9, 10.)

16

a Supreme Court or Tenth Circuit decision is on point, or if the clearly established
weight of authority from other courts shows that the right must be as the plaintiff
maintains.” Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014) (internal quotation
marks omitted). The plaintiff bears the burden of demonstrating that the law was clearly
established at the relevant time. Lybrook v. Members of Farmington Mun. Sch. Bd. of
Educ., 232 F.3d 1334, 1337 (10th Cir. 2000).
Plaintiffs argue that, assuming the Individual Defendants may raise qualified
immunity, the statutory right in question was clearly established in 2016. (ECF No. 372
at 26–30.) Plaintiffs concede that there is no on point Supreme Court or Tenth Circuit
precedent, but argue based on what they believe to be a clearly established weight of
authority from other courts that there is a “right to live with an assistance animal” as a
disability accommodation. (Id. at 27.)
The Court finds “assistance animal” is too broad. “The Supreme Court has
cautioned [lower] courts not to define clearly established law at a high level of
generality, but to focus on whether the violative nature of particular conduct is clearly
established.” Perea v. Baca, 817 F.3d 1198, 1204 (10th Cir. 2016) (internal quotation
marks and citations omitted). This “does not demand an absurd level of specificity,”
Estate of Walter v. Corr. Healthcare Cos., Inc., 323 F. Supp. 3d 1199, 1213 (D. Colo.
2018), but Plaintiffs’ “assistance animal” formulation is plainly engineered at allowing
Plaintiffs to claim cases about hearing and seeing-eye dogs as part of the weight of
relevant authority from other courts. The Court sees a meaningful distinction between
service animals (dogs, usually, that perform tasks their owners cannot) and therapy
pets, whose role is to provide the companionship that pets normally provide. Although

17

the Court need not rule as much in this context, the right to a service animal as a
reasonable accommodation is likely clearly established. But the notion of a therapy pet
as a reasonable accommodation is a more recent development. 6
Plaintiffs cite only one circuit-level decision specifically confirming that a therapy
pet may be a reasonable accommodation under the FHA. See Castillo Condo. Ass’n v.
U.S. Dep’t of Hous. & Urban Dev., 821 F.3d 92, 98 (1st Cir. [May 2,] 2016) (“the
Association’s refusal to allow Giménez to keep an emotional support dog in his
condominium unit as a reasonable accommodation for his disability [anxiety and
depression] was unlawful”). 7 Beyond that, Plaintiffs cite sub-regulatory HUD guidance
from 2013 that specifies emotional support animals as something that may need to be
reasonably accommodated under the FHA and § 504, despite recent amendments to
ADA-implementing regulations that narrowed the definition of “service animal” to
exclude emotional support animals. (ECF No. 354-85.) Plaintiffs also cite two HUD
6

Plaintiffs point to a HUD regulation promulgated in 2008 for the proposition that HUD at
that time “explicitly determin[ed] that the FHA applies to support and therapy animals, not just
service animals.” (ECF No. 372 at 29 n.9.) Plaintiffs exaggerate. First, the regulation was in
the context of pet policies in housing projects specifically designed to serve “the elderly or
persons with disabilities.” 24 C.F.R. § 5.300. As far as the record reveals, that does not
encompass Karen Court, and Plaintiffs do not explain why a reasonable MHA board member
would have reason to pay attention to such regulations. Second, the regulation itself says that
general pet policies in housing projects for the elderly or disabled do not apply “against animals
that are necessary as a reasonable accommodation to assist, support, or provide service to
persons with disabilities.” Id. § 5.303(a). The scope of “assist, support, or provide service to” is
ambiguous and it is only upon reading the Federal Register commentary that one learns that
HUD had in mind, among other things, “providing emotional support to persons who have a
disability related need for such support.” 73 Fed. Reg. 63834 (Oct. 27, 2008). Plaintiffs cite no
authority that Federal Register commentary can clearly establish federal statutory rights.
7

Plaintiffs cite a number of extra-circuit district court cases in the same vein, but district
court cases do not generate clearly established law. Woodward v. City of Worland, 977 F.2d
1392, 1397 (10th Cir. 1992) (“a district court decision will not ordinarily clearly establish the law
even of its own circuit” (citation and internal quotation marks omitted)). In any event, all of these
cases are from 2011 or later, confirming the recent development of the notion of a therapy pet
as a reasonable accommodation. (See ECF No. 372 at 27–28.)

18

administrative law judge decisions sustaining a charge of discrimination against housing
providers that denied emotional support animals as a reasonable accommodation.
Sec’y ex rel. Archibald v. Riverbay Corp., 2012 WL 1655364, at *1 (May 7, 2012); Sec’y
ex rel. Evan v. Dutra, 1996 WL 657690, at *1 (Nov. 12, 1996). Assuming these
authorities “count” in the clearly established law analysis, 8 they do not amount to a
“weight of authority from other courts show[ing] that the right must be as the plaintiff
maintains.” Thomas, 765 F.3d at 1194.
The Court accordingly finds that Plaintiffs have failed to carry their burden to
overcome Defendants’ assertion of qualified immunity. The Individual Defendants will
be dismissed. 9
B.

Discrimination: Failure to Reasonably Accommodate
Plaintiffs move for summary judgment as to liability, leaving only a question of

damages for trial, as to Claims 1 and 4 of their second amended complaint. Those
claims are, respectively, discrimination under the FHA and discrimination under § 504.
1.

Elements

As to persons with a “handicap” (now more commonly known as a “disability”),
the FHA makes it unlawful to “refus[e] to make reasonable accommodations in rules,
policies, practices, or services, when such accommodations may be necessary to afford

8

Cf. Green v. Post, 574 F.3d 1294, 1310 n.10 (10th Cir. 2009) (“[i]n determining whether
the law was clearly established,” courts in the Tenth Circuit “may not rely upon unpublished
decisions”).
9

The Individual Defendants did not affirmatively move for summary judgment on
qualified immunity, but instead raised it for the first time—in the entire litigation—in their
response brief. But Plaintiffs took up the challenge without arguing waiver, and with no caveats
about factual issues that might need a trial to resolve. In these unique circumstances, and
considering that qualified immunity shifts the burden to Plaintiffs, the Court finds that dismissing
the Individual Defendants is appropriate, despite the procedural posture.

19

such person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B).
To state a claim of discrimination under the FHA for failure to
accommodate, a plaintiff must show: (1) that the plaintiff or
his associate is handicapped as defined by the FHA; (2) that
the defendant knew or reasonably should have known of the
claimed handicap; (3) that accommodation of the handicap
may be necessary to afford the handicapped person an
equal opportunity to use and enjoy the dwelling; (4) that the
accommodation is reasonable; and (5) that defendants
refused to make such accommodation.
Arnal v. Aspen View Condo. Ass’n, Inc., 226 F. Supp. 3d 1177, 1183 (D. Colo. 2016).
Under Rehabilitation Act § 504, “[n]o otherwise qualified individual with a
disability in the United States . . . shall, solely by reason of her or his disability, be
excluded from the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial assistance.”
29 U.S.C. § 794. “A prima facie case under § 504 consists of proof that (1) plaintiff is
[disabled] under the Act; (2) he is ‘otherwise qualified’ to participate in the program;
(3) the program receives federal financial assistance; and (4) the program discriminates
against plaintiff.” Hollonbeck v. U.S. Olympic Comm., 513 F.3d 1191, 1194 (10th Cir.
2008). 10
The parties do not dispute that the middle two elements of the § 504 claim
(“otherwise qualified” and federal financial assistance) are satisfied. In addition, MHA
does not dispute Plaintiffs’ position that proof of the second through fifth elements of an
FHA reasonable accommodation claim amounts to proof of the fourth element of a
10

If the plaintiff wishes to recover compensatory damages, he or she must additionally
prove that the “discrimination was intentional.” Barber ex rel. Barber v. Colo. Dep’t of Revenue,
562 F.3d 1222, 1228 (10th Cir. 2009). “Intentional discrimination does not require a showing of
personal ill will or animosity toward the disabled person; rather, intentional discrimination can be
inferred from a defendant’s deliberate indifference to the strong likelihood that pursuit of its
questioned policies will likely result in a violation of federally protected rights.” Id. at 1228–29
(internal quotation marks omitted).

20

§ 504 claim. Accordingly, for present purposes, the Court will analyze only the
elements of the FHA claim, except where noted.
2.

Handicap/Disability
a.

FHA vs. § 504 Definitions

Under the FHA, a “handicap” is “(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.”
42 U.S.C. § 3602(h).
As used in this definition:
(a) Physical or mental impairment includes:
(1) Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of
the following body systems: Neurological; musculoskeletal;
special sense organs; respiratory, including speech organs;
cardiovascular; reproductive; digestive; genito-urinary; hemic
and lymphatic; skin; and endocrine; or
(2) Any mental or psychological disorder, such as
mental retardation, organic brain syndrome, emotional or
mental illness, and specific learning disabilities. The term
physical or mental impairment includes, but is not limited to,
such diseases and conditions as orthopedic, visual, speech
and hearing impairments, cerebral palsy, autism, epilepsy,
muscular dystrophy, multiple sclerosis, cancer, heart
disease, diabetes, Human Immunodeficiency Virus infection,
mental retardation, emotional illness, drug addiction (other
than addiction caused by current, illegal use of a controlled
substance) and alcoholism.
(b) Major life activities means functions such as caring for
one’s self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning and working.
24 C.F.R. § 100.201.
Section 504 covers at least as much, but is potentially broader. Section 504

21

defines “individual with a disability” by cross-reference to the Americans with Disabilities
Act (“ADA”). See 29 U.S.C. § 705(20)(B). Similar to the FHA, a “disability” under the
ADA is “(A) a physical or mental impairment that substantially limits one or more major
life activities of such individual; (B) a record of such an impairment; or (C) being
regarded as having such an impairment.” 42 U.S.C. § 12102(1). Also similar to the
FHA, “major life activities . . . include, but are not limited to, caring for oneself,
performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting,
bending, speaking, breathing, learning, reading, concentrating, thinking, communicating,
and working.” Id. § 12102(2)(A). But, unlike the FHA, the ADA expands “major life
activities” to include “the operation of a major bodily function, including but not limited to,
functions of the immune system, normal cell growth, digestive, bowel, bladder,
neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” Id.
§ 12102(2)(B).
Moreover, the ADA says that “[t]he term ‘substantially limits’ shall be interpreted
consistently with the findings and purposes of the ADA Amendments Act of 2008 [a.k.a.
the ‘ADAAA’].” Id. § 12102(4)(B). The ADAAA includes the following among its findings
and purposes:
[I]t is the intent of Congress that the primary object of
attention in cases brought under the ADA should be whether
entities covered under the ADA have complied with their
obligations[;] . . . the question of whether an individual’s
impairment is a disability under the ADA should not demand
extensive analysis.
Pub. L. No. 110-325, § 2(b)(5). Regulations promulgated under the ADA emphasize
this purpose:
An impairment is a disability . . . if it substantially limits the
ability of an individual to perform a major life activity as
22

compared to most people in the general population. An
impairment need not prevent, or significantly or severely
restrict, the individual from performing a major life activity in
order to be considered substantially limiting.
29 C.F.R. § 1630.2(j)(ii).
Nominally, then, a § 504 “disability” (incorporating the ADA definitions) seems
easier to prove than an FHA “handicap.” Congress specifically directed that the ADA
definition of “disability” be broad, and that any questions on that account be easily
resolved, so that the focus remains on whether the other party complied with legal
requirements. The FHA does not contain similar language.
Although the Court could find no case law explicitly addressing the subject, the
Court is confident that Congress did not intend for the ADAAA to create two standards
for disability (one for the ADA/§ 504, and another for the FHA). At a minimum, the
ADAAA is strong evidence of Congress’s intent as to the meaning of disability
protections generally. Accordingly, the Court finds that the meaning of “substantially
limits” in the FHA should be interpreted congruent with the ADA/§ 504 definition of that
term. This is all the more appropriate given the FHA’s broadly remedial purposes. See,
e.g., Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 209 (1972) (“The language of the
[FHA] is broad and inclusive.”); Tcherepnin v. Knight, 389 U.S. 332, 336 (1967) (“we are
guided by the familiar canon of statutory construction that remedial legislation should be
construed broadly to effectuate its purposes”).
b.

“Record of Disability”

Plaintiffs argue that they have a “record of disability” as a matter of law, thus
satisfying one of the three disjunctive prongs of the “disability” definition. (ECF No. 354
at 24–28.) MHA’s primary counterargument is that Plaintiffs have not shown lack of a
23

genuine dispute over whether they have a record of disability, particularly, whether they
have a record of a claimed impairment that “substantially limits” any major life activity.
(ECF No. 363 at 23–29.) MHA emphasizes the many things Plaintiffs have
accomplished and can do for themselves. (See Parts III.B & III.C, above.)
The Tenth Circuit has stated that “whether the impairment substantially limits a
major life activity is ordinarily a question of fact for the jury.” Carter v. Pathfinder Energy
Servs., Inc., 662 F.3d 1134, 1142 (10th Cir. 2011). But this sentiment traces to preADAAA cases, where the “substantially limits” test was stricter. See Doebele v.
Sprint/United Mgmt. Co., 342 F.3d 1117, 1129 (10th Cir. 2003). The Court does not
doubt that “substantially limits” is still a question of fact, but it is also one that, postADAAA, “should not demand extensive analysis.” Pub. L. No. 110-325, § 2(b)(5).
Here, there is no question that McFadden and A.J. have both been repeatedly
diagnosed with emotional disorders or mental illnesses that affect the major life activity
of effective mental functioning. See 42 U.S.C. § 12102(2)(A)–(B) (ADA/§ 504); 24
C.F.R. § 100.201 (FHA). 11 These disorders or illnesses “need not prevent, or
significantly or severely restrict, the individual from performing a major life activity in
order to be considered substantially limiting.” 29 C.F.R. § 1630.2(j)(ii). In other words,
that McFadden and A.J. can care for themselves and outwardly present as normally
functioning does not mean they are not disabled. No reasonable jury, properly
instructed, could fail to conclude that McFadden’s and A.J.’s extensive medical histories

11

The FHA regulation does not identify effective mental functioning as a major life
activity with the same clarity as the ADA. Nonetheless the regulation states that major life
activities are “functions such as caring for one’s self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning and working.” Id. (emphasis added). Effective mental
functioning is akin, and often a prerequisite, to many of the specifically named activities.

24

establish a record of disability under both the FHA and § 504. Accordingly, Plaintiffs are
entitled to summary judgment on this element.
c.

“Regarded As” Disabled

Plaintiffs also argue that MHA indisputably “regarded” McFadden and A.J. White
as disabled. (ECF No. 354 at 28–29.) This argument largely relies on Kincher’s
statements that MHA granted or would have granted the requested accommodations,
the implication being that MHA would not have so acted or intended to act without
coming to regard McFadden and A.J. as disabled.
Because Plaintiffs need only prove one version of the disability definition, and
“record of” satisfies that burden, the Court need not reach the “regarded as” argument.
See 42 U.S.C. § 3602(h); 42 U.S.C. § 12102(1). To the extent it may still matter at the
forthcoming trial, the Court notes that approval of, or intent to approve, an
accommodation does not necessarily mean the person has come to regard the
requesting party as disabled. For example, one can agree to an accommodation to
avoid contention while still harboring significant doubts about the presence of a
disability.
3.

Notice

The next element Plaintiffs must prove is that MHA “knew or reasonably should
have known of the claimed handicap” or disability. Arnal, 226 F. Supp. 3d at 1183.
There is no reasonable, genuine factual dispute here. As described above (Parts III.D.2
through III.D.4), McFadden and Lonnie communicated the relevant claimed disabilities
in person and in writing on multiple occasions to MHA’s agents (the Individual
Defendants). The same evidence shows that the Individual Defendants deliberated
about those claims. Thus, Plaintiffs have shown an entitlement to judgment as a matter
25

of law on the notice element.
4.

Accommodation May Be Necessary

The third element is “that accommodation of the handicap may be necessary to
afford the handicapped person an equal opportunity to use and enjoy the dwelling.”
Arnal, 226 F. Supp. 3d at 1183. “An accommodation is necessary when there is
evidence showing that the desired accommodation will affirmatively enhance a disabled
plaintiff’s quality of life by ameliorating the effects of the disability.” Id. at 1185.
Plaintiffs have presented evidence from competent professional sources that
McFadden and A.J. receive important mental health benefits from having their pets.
MHA presents no countervailing evidence. Plaintiffs have therefore established as a
matter of law that accommodation, in the form of keeping pets, may have been
necessary to afford McFadden and A.J. an equal opportunity (as compared to nondisabled individuals) to use and enjoy their apartments at Karen Court.
5.

Reasonableness of the Accommodation

The fourth element of Plaintiffs’ discrimination claims is “that the accommodation
is reasonable.” Arnal, 226 F. Supp. 3d at 1183. “An accommodation is reasonable
under the FHA when it imposes no fundamental alteration in the nature of the program
or undue financial or administrative burdens.” Id. at 1185–86.
Again, a reasonable jury could only find for Plaintiffs here. MHA has offered no
evidence that allowing McFadden and A.J. to keep their pets in their Karen Court
apartment would impose a fundamental alteration to Karen Court or saddle it with undue
financial or administrative burdens. McFadden kept Chewy in her apartment for six
months before the pet policy change, and A.J. had at least one cat for almost two-anda-half years before the change. MHA does not allege that Chewy or A.J.’s cats posed
26

specific or unusual problems. As far as the record reveals, the only action needed to
accommodate McFadden’s and A.J. White’s pets is inaction. Consequently, Plaintiffs
deserve judgment as a matter of law on this element.
6.

Refusal to Accommodate

The final element is “that defendants refused to make [the requested]
accommodation.” Arnal, 226 F. Supp. 3d at 1183. To be liable under this element, the
defendant
must . . . have been given an opportunity to make a final
decision with respect to [the plaintiff’s] request, which
necessarily includes the ability to conduct a meaningful
review of the requested accommodation to determine if such
an accommodation is required by law. [¶] Once allowed that
opportunity, a violation occurs when the disabled resident is
first denied a reasonable accommodation, irrespective of the
remedies granted in subsequent proceedings.
Id. at 1186. There can be no reasonable dispute that MHA received the opportunity to
make an informed final decision, and that it denied the accommodation as to both
McFadden and the Whites. (See Parts III.D.2 through III.D.4, above.)
MHA nonetheless insists that it did not deny either request. (ECF No. 363 at 30–
31.) Concerning McFadden, MHA says there is a dispute of fact over whether the
notices to vacate were prompted by pets other than Chewy, presumably referring to the
ferret. (Id. at 30.) This is not so much an argument that MHA did not deny the
accommodation request, but that grant or denial is irrelevant because there was an
independent, nondiscriminatory basis to evict McFadden. Although the ferret was at
times an issue, the communications between McFadden and Kincher closest to the date
she was required to move out focus on the need to remove Chewy. (See Part III.D.4,
above.) The fact that a ferret might have previously been part of MHA’s considerations
27

is, at best, a “mere scintilla” of contrary evidence, and not enough to avoid summary
judgment. Adler, 144 F.3d at 678 n.5.
Also as to McFadden, MHA points to Kincher’s testimony that MHA decided to
grant the accommodation in full, apparently sometime in late August. As the Court
previously discussed (Part III.D.5), there is no record support even in Kincher’s
testimony that the $300 fee was waived. Moreover, MHA fails to present evidence that
it informed McFadden of its decision to grant her requested accommodation. Surely an
accommodating party cannot satisfy its obligations by deciding to grant the
accommodation and then not telling the requesting party of that decision. In this light,
there is no material dispute that MHA denied McFadden’s request.
As to the Whites, MHA says that the request “was never denied; A.J. and Lonnie
White voluntarily moved out of Karen Court on or about October 1, 2017. Until then, the
cats remained in the White’s [sic] apartment.” (ECF No. 363 at 31 (citation omitted).)
The argument is a non sequitur. MHA repeatedly denied the Whites’ request, in writing,
and told them to vacate by September 15, 2016 (see Parts III.D.2 through III.D.4,
above)—an outcome this Court prevented by issuing a TRO. Accordingly, no
reasonable jury could agree with MHA that it never denied the Whites’ request.
***
For all these reasons, the Court grants summary judgment in Plaintiffs’ favor as
to MHA’s liability under Plaintiffs’ Claims 1 and 4. 12

12

Plaintiffs have asserted theories of liability under Claims 1 and 4 that do not rest on
denial of a reasonable accommodation. (See ECF No. 354 at 23, 33.) In light of the foregoing
disposition, the Court need not address these arguments.

28

C.

Interference & Retaliation
The FHA makes it “unlawful to coerce, intimidate, threaten, or interfere with any

person in the exercise or enjoyment of, or on account of his having exercised or
enjoyed, or on account of his having aided or encouraged any other person in the
exercise or enjoyment of” the rights it grants. 42 U.S.C. § 3617. Based on this statute,
Plaintiffs assert separate causes of action against Defendants for interference with FHA
rights and retaliation for exercise of FHA rights. Plaintiffs also assert a § 504 retaliation
cause of action. See Hwang v. Kansas State Univ., 753 F.3d 1159, 1165 (10th Cir.
2014) (“We’ve long explained that the Rehabilitation Act prohibits not just discrimination
on the basis of disability but retaliation against those who report disability
discrimination.”). Interference and retaliation causes of action heavily overlap, including
a requirement that the plaintiff prove the defendant was motivated to interfere or
retaliate at least in part by intent to discriminate. See Carrillo v. Romero, 2013 WL
6133362, at *3 (D. Colo. Nov. 21, 2013).
There are many genuine disputes over whether Defendants possessed the
necessary intent to be liable for interference or retaliation. Summary judgment for
Plaintiffs is inappropriate on their claims for interference and retaliation.
D.

McFadden’s $50 Deposit
There is likewise a genuine factual dispute over whether McFadden ever paid a

$50 deposit. The sole evidence is an ambiguous, unsigned form. (See Part III.D.5,
above.) This is not nearly enough to take the question away from a jury. Summary
judgment is therefore denied on this cause of action.
V. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
29

1.

Plaintiffs’ Motion for Partial Summary Judgment (ECF No. 354) is GRANTED as
to liability on Plaintiffs’ Claims 1 and 4 against MHA, but otherwise DENIED;

2.

Defendants Melinda Parker, Michelle Buckler, Edy George, and Stacie Kincher
are entitled to qualified immunity and are therefore TERMINATED as parties—
counsel shall update their captions to so reflect;

3.

If any party believes this outcome obviates the need to decide any issue in any of
the pending motions to strike or exclude (ECF Nos. 421, 435–37, 440–41), that
party shall file a notice stating as much no later than March 1, 2019;

4.

Defendants’ Motion for Leave to Submit Surreply to Motion for Partial Summary
Judgment (ECF No. 382) is DENIED AS MOOT; and

5.

This matter REMAINS SET for a Final Trial Preparation Conference on April 10,
2019, at 1:30 PM, and a 5-day jury trial commencing on May 6, 2019, at 8:30 AM,
both in Courtroom A801.
Dated this 15th day of February, 2019.
BY THE COURT:

______________________
William J. Martinez
United States District Judge

30