Hebden v. Anderson

Filing 34

ORDER: Plaintiff Amanda Hebden's Motion for Partial Summary Judgment (Doc. # 31 ) is DENIED. Signed by Judge Virginia M. Hernandez Covington on 4/2/2019. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
AMANDA HEBDEN,
Plaintiff,
v.

Case No.: 8:18-cv-1063-T-33AAS

RONALD ANDERSON,
Defendant.
______________________________/
ORDER
This matter comes before the Court pursuant to Plaintiff
Amanda Hebden’s Motion for Partial Summary Judgment (Doc. #
31), filed on February 15, 2019. Defendant Ronald Anderson
responded on March 15, 2019, (Doc. # 32), and Hebden replied
on March 29, 2019. (Doc. # 33). For the reasons that follow,
the Motion is denied.
I.

Background
Anderson owns a six-unit rental property in Treasure

Island, Florida. (Doc. # 1 at ¶¶ 8-9; Doc. # 27 at ¶¶ 8-9).
In 2012, Hebden — a white woman — and her roommate Karen
Wessel — another white woman — moved into one of Anderson’s
rental units. (Doc. # 1 at ¶ 11; Doc. # 27 at ¶ 11). Typically,
“potential tenants are required to fill out an application
for lease” and Anderson would “do a background check via the

1

internet.” (Doc. # 1 at ¶ 10; Doc. # 27 at ¶ 10). Yet, while
Hebden and Wessel filled out an application, Anderson told
them no background check was done. (Doc. # 1 at ¶ 12; Doc. #
1-3 at 2; Doc. # 27 at ¶ 12). Hebden and Anderson made a
verbal modification to the lease to allow Hebden to pay her
rent on the third day of the month, rather than the first.
(Doc. # 1 at ¶ 14; Doc. # 27 at ¶ 14). Anderson collected the
rent personally and often collected it as late as the tenth
day of the month. (Doc. # 1 at ¶ 15; Doc. # 27 at ¶ 15).
After the one-year lease agreement ended, Wessel moved
out, but Hebden stayed in the unit under a month-to-month
tenancy. (Doc. # 1 at ¶¶ 20-21; Doc. # 27 at ¶¶ 20-21). Then,
Jeff Perro — a white man — moved into the unit as Hebden’s
new roommate in April 2014. (Doc. # 1

at ¶ 22; Doc. # 27 at

¶ 22). Perro was not required to fill out an application or
undergo a background check. (Doc. # 1 at ¶ 23; Doc. # 27 at
¶ 23). Anderson maintained that “[t]he only reason [he] didn’t
obtain an application [from Perro] was due to [Anderson’s]
being a procrastinator” and that he “had intended to [ask
Perro] but never did.” (Doc. # 1-1 at 3).
When Hebden’s upstairs neighbor got a new roommate — a
white woman named Anika Evans — no application was required
and no background check was run. (Doc. # 1 at ¶¶ 25-26; Doc.
2

# 27 at ¶ 25-26). Anderson maintained that an application and
background check were not required for Evans because she “was
never intended to be a resident, but rather a short time guest
of [the upstairs neighbor]” and the upstairs neighbor “was
solely responsible for the rent.” (Doc. # 1-1 at 4).
During this time, the relationship between Hebden and
Anderson deteriorated. (Doc. # 1 at ¶ 28; Doc. # 27 at ¶ 28).
Hebden

alleges

the

reason

for

this

deterioration

was

a

disagreement over the events that led to the deaths of Trayvon
Martin and Michael Brown. (Doc. # 1 at ¶ 28; Doc. # 1-6 at
2). During the conversation, Anderson expressed his opinion
that Michael Brown “got what he deserved,” and used the “Nword” on at least three occasions in front of Hebden. (Doc.
# 1-6 at 2; Doc. # 32-4 at 24:14-30:8; Doc. # 32-3 at 13:1514:2).
Hebden asked that Anderson refrain from using the “Nword” in her presence. (Doc. # 1-6 at 2; Doc. # 1 at ¶ 32;
Doc. # 27 at ¶ 32). She also asked that Anderson no longer
return to her unit and, instead, she mailed her checks to
Anderson beginning at the end of 2014 and would send Anderson
text messages when necessary. (Doc. # 1 at ¶¶ 32-33; Doc. #
27 at ¶¶ 32-33).

3

Anderson acknowledged that he may have used the “N-word”
in Hebden’s presence, but denies that he is prejudiced against
African Americans. (Doc. # 32-3 at 13:3-14:2). Anderson notes
that he has had African-American tenants in the past and that
he treated African-American relatives and guests of tenants
with respect. (Doc. # 32-9; Doc. # 32-8).
In March 2015, Adam DeSimone — a new white tenant — moved
into an apartment upstairs. (Doc. # 1 at ¶ 34; Doc. # 27 at
¶ 34). Anderson had DeSimone fill out a rental application,
and DeSimone believes that Anderson conducted a background
check. (Doc. # 1 at ¶ 35; Doc. # 27 at ¶ 35).
In April 2015, Anderson spoke to Rosemary Jones — another
tenant of the property — about Hebden. (Doc. # 32-3 at 17:1025; Doc. # 32-6 at 6:10-25, 8:1-5, 9:7-10; Doc. # 32-5).
Anderson told Jones that he intended to terminate Hebden’s
tenancy because of issues he had with her. (Doc. # 32-3 at
17:16-23; Doc. # 32-6

at

Specifically,

told

Anderson

6:14-23, 8:1-5; Doc. # 32-5).
Jones

that

Hebden

had

been

smoking in her apartment, which bothered the tenant in the
apartment upstairs, James Lyngholm. (Doc. # 32-6 at 8:1-5;
Doc. # 32-5). Indeed, Lyngholm had complained to Anderson
that various smells — including cigarette smoke, to which
Lyngholm was allergic — wafted up into his apartment from
4

Hebden’s. (Doc. # 32-7 at 9:8-16, 10:21-11:19). Lyngholm
threatened to move out of the property if the problem was not
resolved. (Id. at 11:20-12:3; Doc. # 32-5). Anderson told
Jones that “[Lyngholm] was an excellent tenant and that he
would

never

loose

[sic]

a

good

tenant

to

keep

a

bad,

disruptive one, he again saying that [Hebden] would have to
go.” (Doc. # 32-5). Lyngholm, who is white, filled out a
rental application and underwent a background check when he
moved in to his apartment. (Doc. # 32-7 at 3:18-21).
Eventually,

Perro

moved

out

of

Hebden’s

apartment.

Michael Peart — a Jamaican-American man — then moved in as
Hebden’s new roommate on June 4, 2015. (Doc. # 1 at ¶ 39;
Doc. # 27 at ¶ 39). Peart moored his boat at the property’s
dock and began parking in the property’s parking lot. (Doc.
# 1 at ¶ 40; Doc. # 27 at ¶ 40).
In late July and early August 2015, Anderson left two
letters

sealed

inside

zip-lock

baggies

on

Peart’s

car

overnight for him to find the next morning. (Doc. # 1 at ¶¶
43-48; Doc. # 27 at ¶¶ 43-48). The first letter — dated July
6, 2015, but not found by Peart until July 25, 2015 —
requested that Peart fill out and return an enclosed rental
application. (Doc. # 1-7 at 2). The letter also notified Peart
that Anderson was “in the process of reassigning parking
5

places” and that Peart’s parking space would “be the third
parking slot from the left when facing the building.” (Id.).
Finally, the letter informed Peart that he did not have
permission to moor his boat to the apartment complex’s dock
on a permanent basis and would have to reach an arrangement
with Anderson to use the dock. (Id.).
Peart did not respond to the first letter and did not
fill out the attached application. (Doc. # 1 at ¶¶ 47, 50;
Doc. # 27 at ¶¶ 47, 50). Not having received a response to
the first letter, Anderson left a second letter for Peart.
(Doc. # 1 at ¶ 48; Doc. # 27 at ¶ 48; Doc. # 1-8). The second
letter, dated August 1, 2015, reads in pertinent part:
Enclosed is a copy of the letter
last Saturday, July 25, 2015. At
provided with a stamped envelope
return the requested information
phone and cell phone numbers.

I left on your car
that time you were
addressed to me to
as well as my home

As you have failed to reply as of this date, I am
giving you this second notice. Understand that your
boat is illegally moored at my dock. You have never
been given permission to moor your boat, and,
unless you contact me and arrangements are made,
your boat will be pulled and impounded. You will
then
be
required
to
pay
the
towing
and
impound/storage fees to have your boat released. A
lien against your boat is also possible.
Kindly contact me as soon as possible but no later
than Monday, August 3, 2015. My contact information
is contained [in] the original letter left for you
on Saturday, July 25, 2015.
(Doc. # 1-8).

6

Again, Peart did not respond to the letter and did not
fill out an application. (Doc. # 1 at ¶¶ 47, 50; Doc. # 27 at
¶¶ 47, 50). Peart told Hebden that he would not fill out the
application because Anderson was a former police officer and
Peart feared Anderson would use his personal information “for
some sort of vendetta or agenda.” (Doc. # 1 at ¶ 50; Doc. #
1-9). But Peart did eventually remove his boat from the dock
on August 17, 2015 — over two weeks after the second letter
was left for him. (Doc. # 1 at ¶ 54; Doc. # 27 at ¶ 54).
Then, on August 18, 2015, Hebden and Peart received a
notice of non-renewal from Anderson, providing that both were
to vacate the property by September 30, 2015. (Doc. # 1 at ¶
55; Doc. # 1-10; Doc. # 27 at ¶ 55). Peart voluntarily vacated
the apartment on September 3, 2015. (Doc. # 1 at ¶ 56; Doc.
# 27 at ¶ 56). But, on September 21, 2015, “Hebden filed a
housing discrimination complaint with the Pinellas County
Office of Human Rights (‘PCOHR’) alleging violations of 42
U.S.C. § 3604(a) and (b).” (Doc. # 1 at ¶ 58; Doc. # 1-12).
After

that,

Anderson

initiated

eviction

proceedings

against Hebden on October 9, 2015. (Doc. # 1 at ¶ 59; Doc. #
27 at ¶ 59; Doc. # 1-13). Meanwhile, the PCOHR’s investigation
continued. Hebden notes that all residents of the rental

7

property were white during the PCOHR’s investigation. (Doc.
# 1 at ¶ 62; Doc. # 27 at ¶ 62).
Hebden

then

initiated

this

action

on

May

1,

2018,

asserting claims for race discrimination and retaliation
under the Fair Housing Act (FHA), 42 U.S.C. §§ 3604 and 3617,
Florida’s Fair Housing Act, Fla. Stat. §§ 760.23 and 760.37,
and the Pinellas County Code, §§ 70-176 and 70-183. (Doc. # 1).
Anderson moved to dismiss on July 20, 2018 (Doc. # 19), and
the Court denied that motion on August 20, 2018. (Doc. # 26).
Anderson filed his Answer to the Complaint on August 31, 2018.
(Doc. # 27). The case proceeded through discovery. The parties
mediated on October 29, 2018, but reached an impasse. (Doc.
# 28).
On February 15, 2019, Hebden moved for partial summary
judgment as to liability for all claims. (Doc. # 31). Anderson
has responded, (Doc. # 32), and Hebden has replied. (Doc. #
33). The Motion is ripe for review.
II.

Legal Standard
Summary Judgment is appropriate “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). A factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
8

existence of a genuine issue of material fact will preclude
a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(11th Cir. 1996)(citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if
it may affect the outcome of the suit under the governing
law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997). The moving party bears the initial burden of showing
the court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260
(11th Cir. 2004)(citing Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986)).
“When a moving party has discharged its burden, the nonmoving party must then ‘go beyond the pleadings,’ and by its
own

affidavits,

or

by

‘depositions,

answers

to

interrogatories, and admissions on file,’ designate specific
facts showing that there is a genuine issue for trial.”
Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th
Cir. 1995)(quoting Celotex, 477 U.S. at 324).
9

If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to
be true and all reasonable inferences must be drawn in the
non-moving party’s favor. Shotz v. City of Plantation, 344
F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder
evaluating the evidence could draw more than one inference
from the facts, and if that inference introduces a genuine
issue of material fact, the court should not grant summary
judgment. Samples ex rel. Samples v. City of Atlanta, 846
F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s
response consists of nothing “more than a repetition of his
conclusional

allegations,”

summary

judgment

is

not

only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034
(11th Cir. 1981).
III. Analysis
Hebden insists that summary judgment as to Anderson’s
liability

is

appropriate

because

no

genuine

issues

of

material fact exist regarding the alleged violations of the
FHA and the Florida Statutes and Pinellas County Code sections
that mirror the FHA. (Doc. # 31 at 1-4). Because the state
statutes and county codes at issue mirror the FHA, Hebden
argues that “the same legal arguments apply to all counts of
the Complaint.” (Id. at 12); see Loren v. Sasser, 309 F.3d
10

1296, 1299 n. 9 (11th Cir. 2002)(“The Florida Fair Housing
Act contains statutory provisions that are substantively
identical to the federal Fair Housing Act.”).
The Court will address each alleged violation of the FHA
— and the mirror Florida Statutes and Pinellas County Code
fair housing sections — separately.
A.

Discrimination in Violation of 42 U.S.C. § 3604,
Fla. Stat. § 760.23, and Pinellas County Code,
§ 70.176

In Counts I, III, and V, Hebden claims that Anderson
committed housing discrimination by serving her with the
notice of non-renewal and requiring Peart to submit a rental
application and undergo a background check. (Doc. # 1 at 811). According to Hebden, “Anderson’s Notice of Non-Renewal
to Hebden violates [Section] 3604(a)’s prohibition against
‘making housing unavailable’ on the basis of a protected
characteristic

such

as

race

and

[Section]

3604(b)’s

prohibition against imposing different terms and conditions
because of race.” (Doc. # 31 at 9). Hebden also insists that
Anderson’s request that Peart submit a rental application
“and

undergo

a

background

check

when

previous

Caucasian

roommates of Hebden were not required to do so violates
[Section] 3604(b), because [Anderson] discriminates against
Hebden, via her roommate, because of Peart’s race, in the

11

terms, conditions, or privileges of rental of a dwelling,
violating [Section] 3604(b).” (Id. at 11).
Section 3604(a) makes it unlawful “[t]o refuse to sell
or rent after the making of a bona fide offer, or to refuse
to negotiate for the sale or rental of, or otherwise make
unavailable or deny, a dwelling to any person because of race,
color, religion, sex, familial status, or national origin.”
42 U.S.C. § 3604(a). And Section 3604(b) makes it unlawful
“[t]o

discriminate

against

any

person

in

the

terms,

conditions, or privileges of sale or rental of a dwelling, or
in the provision of services or facilities in connection
therewith, because of race, color, religion, sex, familial
status, or national origin.” Id. § 3604(b). Section 3604(b)
applies to discriminatory evictions and attempted evictions.
See

Harris

v.

Itzhaki,

183

F.3d

1043,

1052

(9th

Cir.

1999)(“Ms. Harris has established a prima facie disparate
treatment claim under the FHA — that Harris, as a protected
class

member

under

the

FHA,

was

subject

to

eviction

proceedings that were contrary to the established policy and
practice.”).
Here, genuine issues of material fact exist regarding
the reason for Anderson’s termination of Hebden’s residence
at the property and for his request that Peart submit a rental
12

application and undergo a background check. There is evidence
that white tenants — including Hebden herself — were often
required to submit rental applications or undergo background
checks to live at the property. (Doc. # 1 at ¶¶ 10, 12, 34,
35; Doc. # 27 at ¶¶ 10, 12, 34, 35; Doc. # 32-7 at 3:18-21).
And Anderson maintains that he did not require Evans — the
white woman who moved in with Hebden’s upstairs neighbor — to
fill out an application because she was merely a tenant’s
guest and not responsible for rent. (Doc. # 1-1 at 4).
Anderson has also presented evidence that he was at least
considering — if he had not already decided on — terminating
Hebden’s residence at the property before Peart became her
roommate. (Doc. # 32-3 at 17:10-25; Doc. # 32-6 at 6:10-25,
8:1-5, 9:7-10; Doc. # 32-5). Furthermore, a reasonable jury
could conclude that Peart’s failure to fill out the rental
application or timely remove his boat from the property’s
dock — rather than Peart’s race — motivated Anderson to
terminate Hebden and Peart’s tenancy. (Doc. # 1 at ¶¶ 47, 50;
Doc. # 27 at ¶¶ 47, 50). Thus, a reasonable jury could
conclude that Anderson did not violate the FHA and the mirror
state

and

county

fair

housing

laws.

Therefore,

judgment is inappropriate for these claims.

13

summary

B.

Interference, Coercion, or Intimidation in
Violation of 42 U.S.C. § 3617, Fla. Stat. § 760.37,
and Pinellas County Code, § 70.183

In Counts II, IV, and VI, Hebden claims that Anderson’s
notice of non-renewal and eviction of Hebden violate Section
3617 of the FHA and its related state and county fair housing
laws. (Doc. # 1 at 9-12).
Section 3617 makes it unlawful
to coerce, intimidate, threaten, or interfere with
any person in the exercise or enjoyment of, or on
account of his having exercised or enjoyed, or on
account of his having aided or encouraged any other
person in the exercise or enjoyment of, any right
granted or protected by section 3603, 3604, 3605,
or 3606 of this title.
42 U.S.C. § 3617.
“To establish a prima facie case of retaliation, a
plaintiff must show that (1) he engaged in a protected
activity; (2) the defendant subjected him to an adverse
action; and (3) a causal link exists between the protected
activity and the adverse action.” Philippeaux v. Apartment
Inv.

&

Mgmt.

Co.,

598

F.

App’x

640,

644

(11th

Cir.

2015)(citation omitted). “A plaintiff engages in statutorily
protected activity when he or she protests . . . conduct which
is actually lawful, so long as he or she demonstrates a good
faith, reasonable belief that the [conduct engaged in] was .
.

.

unlawful.”

Id.

at

644-45

14

(citation

omitted).

Additionally,

to

prove

a

claim

under

Section

3617,

“a

plaintiff must establish intentional discrimination.” Bone v.
Vill. Club, Inc., 223 F. Supp. 3d 1203, 1217 (M.D. Fla. 2016);
Sofarelli v. Pinellas County, 931 F.2d 718, 722 (11th Cir.
1991)(explaining that, to win a Section 3617 claim, the
plaintiff must show that discriminatory animus “played some
role”).
Hebden argues that Anderson violated Section 3617 when
he delivered the notice of non-renewal because Hebden had
told Peart not to fill out the application for residency based
on her understanding that previous white roommates of various
tenants had not been required to do so. (Doc. # 31 at 12).
Additionally, she argues Anderson violated Section 3617 “by
retaliating against Hebden even further by filing an action
for eviction against her, after she had filed a fair housing
discrimination complaint with PCOHR.” (Id.).
Again,

genuine

issues

of

material

fact

exist

that

preclude an award of summary judgment. A reasonable jury could
conclude

that

Anderson

terminated

Hebden’s

tenancy

and

subsequently evicted her because of conflicts Anderson had
with Hebden before Peart moved in and because of Peart’s
failure to complete the rental application or promptly move
his boat. (Doc. # 1 at ¶¶ 47, 50; Doc. # 27 at ¶¶ 47, 50;
15

Doc. # 32-5). In short, a reasonable factfinder could conclude
that Anderson’s actions were not motivated by discriminatory
animus and were not made in retaliation for Hebden’s alleged
protected

activity.

Therefore,

summary

judgment

is

inappropriate.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
Plaintiff Amanda Hebden’s Motion for Partial Summary
Judgment (Doc. # 31) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this 2nd
day of April, 2019.

16